30 Mich. 410 | Mich. | 1874
It will not be necessary to notice all the errors assigned in this case.
The court erred in receiving the evidence of Griswold as to his custom, or that of the company, of not sending policies to the insured till the whole premium was paid, and this without any evidence, before or afterwards, that defendant was aware of any such custom, or that the contract was made or the note given by him with reference to it.
We do not think it necessary to consider the point upon which the plaintiff in error relied as one of the principal grounds of error: the exclusion of evidence to show that the note was made and delivered upon the agreefnent or condition that the plaintiff in error was to be appointed agent of the company, and to be returned to him if not so appointed; nor how far that agreement might be affected by, or merged in, the written agreement, evinced by the «note and the receipt of Griswold given back to Lawrence at the time. If the evidence was admissible, the court erred in rejecting it; but assuming, as was contended by the plaintiff below, and insisted upon by him here, that the parol
Now it is clear, prima facie, from the face of this receipt, that whatever the custom of the company or the agent had been in other cases as to retaining the policy until the whole premium should be actually paid over in cash, Lawrence’s note was in this instance received as so much payment towards the premium; and neither the company nor its agent had the right to hold both the note and the policy until the note should be paid, nor to make the previous payment of the note a condition of the delivery of the policy. This is clear, not only from the express words, that it was received in payment, but the same intent is indicated even by the blank left unfilled in the receipt, which I have placed in italics, viz.: “and the balance of - dollars is to be paid on the delivery of this policy, or the above amount paid shall be forfeited.” This blank, intended doubtless for cases where only a part of the premium had been paid, and clearly to indicate an express agreement beyond a mere receipt, when filled up in a case to which it was applicable, appears clearly enough to have been purposely left blank in the present case, because the previous portion of the instrument had already acknowledged payment in full for the whole premium, and there was no balance, for the non-payment of which a mere portion already paid could be forfeited.
And entirely consistent with this construction are the concluding portions of the same instrument (which are also
If the construction could in any way be changed by parol evidence, the question would have been one for the jury upon all the evidence upon both sides, and not for the court. But the court charged the jury that, upon the evidence offered, the defendant showed no defense' to the note, and that the plaintiff was entitled to recover the amount of the note, with interest. Under either view, or any view we have been able to take of the case, we therefore think the court erred in giving this charge.
And we may say here, further, that if (under the agreement stated in the receipt) the payment of the premium by the defendant below would have rendered the company liable for the amount insured, in case of death, as assumed by the court, but which we do not think entirely clear, in an action at law, at least; still, if the evidence shows, as
A policy might be much better and more available to bim than any such liability, to be shown only by evidence of all ■the circumstances. He might be able to assign a policy as security for a loan, but such0 doubtful or resulting liability would not be worth as much for this purpose, if for any other, as tbe policy itself; and the court erred in treating it as of equal value to the defendant, and denying to him the right of insisting upon what he had contracted for.
The judgment of the circuit court must be reversed, with ■costs, and a new trial awarded.