80 Mo. App. 192 | Mo. Ct. App. | 1899
This case is here on a second appeal. An understanding of the questions involved may be had by consulting our former opinion, 72 Mo. App. 92.
So in the case we have here, conceding that the acknowledgment of payment of the premium in the face of the policy may be sufficient to give life to the contract when made, and "yet if it should appear that for this so-called cash premium a note was given payable at a future time, and the policy should provide (as it does here) that the instrument should become inoperative and suspended during a default in the payment of such note, we know of no reason or authority why the contract should not be given effect as the parties have made it. As said in Baker v. Ins. Co., 43 N. Y., cited by Judge Gantt: “The evidence in explanation of the receipt here was not to show that the contract was origmally void for want of consideration, but to show in what the consideration in fact consisted, and that the policy had become void for condition broken.”
It also further appears from the evidence that said agent. treated said note as his own property and from time to time extended the date of payment, assuring plaintiff that the company had nothing to do with it, that he had accounted to it for the note, etc.
TJnder these circumstances then it would seem clear that the defendant can not complain of the default in paying the first premium, for as to said company it had been paid, nor as to default in paying the note given therefor since it manifestly belonged to the agent. It has been repeatedly decided that where the insurance company charges premiums personally to the agent, who gives credit to the insurer, it amounts to payment to the company. Ins. Co. v. Teiger, 90 Va. 277; Ins. Co. v. Hoover, 113 Pa. St. 591; White v. Ins. Co., 120 Mass. 330; Shelden v. Ins. Co., 26 N. Y. loc. cit. 464.
And further as to the agent; even if we concede that he is entitled to the protection of the policy, and that its provisions were intended to secure him as well as the company, yet since, as the evidence shows, he consented to the default and voluntarily agreed with plaintiff for the extension of time, he will be deemed as having waived the protection of the terms of the policy.
Under the circumstances, therefore, as they now appear from the evidence, the failure on plaintiff’s part to pay the note given for the first annual premium is no defense, because,
The judgment of the circuit court will be affirmed.