72 Mo. App. 92 | Mo. Ct. App. | 1897
This is a suit on an insui’ance policy for $1,000 covering plaintiff’s dwelling in the village of Halt, G-rundy county. The policy was issued in December, 1895, in pursuance of a written application therefor made through one Oowhick, a local agent at G-alt. The premium agreed to be paid was $15 a year, or $75 for the entire five years the policy was to run. Plaintiff seems to have been unable to meet the first payment of $15 when the policy was issued but paid to the agent only $1 at the time, and gave his ninety-day note for the $14 payable to the said agent, and for the remainder of the premium made an installment note to the company whereby he agreed to pay $15 on the first days of December, 1896, 1897, 1898, and 1899. Plaintiff also failed to pay the note of $14, which had been given for the first or cash installment, and was in default on that account at the date when the building was burned in June, 1896.
Because of this default on the part of the assured the defendant denied its liability and contended that the policy was avoided under and by virtue of the fol
In reply to this defense the plaintiff set up that the company by its policy had in terms acknowledged receipt of the first or cash installment, and that it was therefore estopped to deny such receipt, or that at all events defendant had received all of such premium to which it was entitled, and therefore had no right to claim a forfeiture of the policy.
The cause was tried before the court without the aid of a jury, resulting in a judgment in plaintiff’s favor and defendant appealed.
The policy in suit as well as the written application therefor seems to recognize that although payment in cash be acknowledged on the face of the instrument, yet a note may be taken for such acknowledged cash; and then it is provided, in plain and unambiguous terms contained in the application, that if such note “be not paid promptly when due, then said policy shall be suspended, inoperative, and of no force or effect until such installment or promissory note is paid.” Even to admit then that the policy in suit on its face acknowledges the receipt in cash of the first yearly premium, yet the proof shows that such premium was not paid in cash (except to the extent of $1 only) but that a note was given by the assured due in ninety days and that at the date of the loss such note was past due and unpaid. According to the contract then existing between the parties the policy was then inoperative and. of no force or effect.
But the position of plaintiff’s counsel can not be maintained because of another aspect of the case. The note given by the assured to the agent for and on account of the first yearly premium was not shpwn to be the property of the agent. The first installment, or so-called cash premium, belonged to the insurance company. It is true that ordinarily this agent collected the first or cash premium and deducted therefrom his commission, accounting to defendant for the remainder. But in this case the agent’s commission did not amount to so much as the face of the note or first installment. Nor did the agent claim this note as his individual absolute property. He testified that if the entire premium for the five years had been collected he would have been entitled to fifteen per cent of the $75 or $11.25, but if only a yoart thereof was collected
The judgment will be reversed and the cause remanded.