102 Ky. 80 | Ky. Ct. App. | 1897
delivered the opinion op the court.
Tbis suit was instituted in the Marion Circuit Court by the appellees against the appellant seeking to obtain judgment for a paid-up insurance policy. It appears from the petition tbait a $3,000 policy of life insurance was issued by appellant on the life of said Benjamin F. Jarboe, payable to bis wife, appellee herein. Said policy was issued on what is known as the twenty-year distribution plan, and on
It is also claimed in the petition that there should be added to the sum of $450 dividends thereon. The insurance policy was made part of the petition. One of the provisions reads as follows: “After three full annual payments have been paid upon this policy the company will, upon the legal surrender thereof before default in payment of any premiums, or within six months thereafter, issue a nonparticipating policy for paid-up insurance, payable as hereinafter provided, for the proportion of the amount of this policy which number of full year’s premium paid bears to the total number required.”
The contention of appellant is that inasmuch as the policy issued by it to the appellees was not surrendered before default in the payment of premium had occurred, or within six months thereafter that the right to the paid-up policy was. forfeited, or the obligation of appellant to issue a paid-up policy had terminated, and cites Hexter v. U. S. Life Insurance Co., 91 Ky., 357; and Northwestern Mutual Life Insurance Co. v. Barbour, 92 Ky., 429, in support of its contention.
It will be seen from an examination of the first-named case that the policy was issued in 1867, and that nearly fifteen years thereafter, the assured in the meantime having died, suit was' brought to recover upon the policy, hence the facts in the case at bar are essentially different from the case, supra.
Jn the case in 92 Ky., 429, it will be seen that several notes were executed by the assured for the payment of premiums and default made as to the payment of the notes;
The ease of Montgomery v. Phoenix Mutual Life Insurance Co., 14 Bush, 51, is a well-considered case, and in which, it seems to us, the question involved is practically the same involved in the case under consideration. The appellee in that case had issued a policy of insurance to Montgomery on his life in the sum of $10,000, payable in ten annual payments. Among other conditions the following condition was embraced in the policy: “It being understood and agreed that if, after the receipt by this company of not less than two or more annual premiums, this policy should cease in consequence of the nonpayment of premiums, then, upon a surrender of the same, provided such surrender is made to the company within twelve months from the time of such ceasing, a new policy will be issued for the value acquired under the old one, subject to any notes that may have been received on account of premiums; that is to say, if payments for two years shall have been made it will issue a policy for two-tenths of the sum originally insured; if for three years, for three-tenths, and in the same proportion for any number of payments without subjecting the assured to any subsequent charge except the interest annually in advance on all premium notes remaining unpaid on this policy.”
It seems after making five payments, assured made de
“1st. Did the failure to surrender, or to offer to surrender, the policy within twelve months after the default in the payment of premiums release the company from any further liability on the policy, or any part of the sum insured?
“2d. Was the policy forfeited by the failure to pay the note for $129.40 when due?
“3d. If the foregoing questions be answered in the negative how much is the appellant entitled to recover?”
The court further said: “Prior to September 5, 1872, the insured had paid for four full annual premiums, and on that day had a right to demand a paid-up policy for $4,000, not ■ex gratia, as appellee’s counsel seems to intimate, but because it had been paid for. Each annual premium paid for carrying the policy for the current year and for $1,000 of paid-up insurance, and at the end of four years a paid-up policy was as certainly paid for, at the-contract price, as the four years of current insurance.
“If, as we assume for the present, the premium for the year commencing September 5, 1872, was not paid, the stipulation is that the company shall not be liable for the payment of the whole sum assured, but only for a part thereof
We quote further from the case supra: ‘‘Time is not generally of the essence of contracts (Story’s Equity, section-776). It may be so when the contract is executory on both, sides, or when the nature of the transaction or the stipulation of the parties shows it was so intended by them. But when the defendant has received the entire consideration for performance on his part, and has no other defense except that the plaintiff did not come within the stipulated time to demand performance, we are not acquainted with any authority or legal principle upon which such a defense can. be upheld in a court of equity. If for any reason the defendant has become unable to perform his agreement, or performance would be more difficult or onerous at the time of the demand than it would have been at the time stipulated, there might be plausibility in such a defense, and a court of equity would no doubt either deny all relief to the plaintiff or grant relief upon terms that would compensate the defendant for the additional burden resulting from the plaintiff’s delay. But nothing of the kind is pretended in this case The proposition upon which this branch of the company’s defense rests in this, and nothing more. It is admitted that the assured paid for a paid-up policy for $4,000, and if the old policy hád been surrendered at any time between September 5, 1872, and September 5, 1873, the company would have been bound to issue a new policy for that sum, and because the old policy was not surrendered within that time that the assured has lost the benefit of $4,000 of paid-up insurance.”
It seems clear to us that under the principles announced’ in Montgomery v. Phoenix Mutual Life Insurance Co. that the appellees were entitled to recover in this action, and we adhere to the doctrine announced in that decision. Tq the extent, if any, that the principles announced in the de
For the reasons indicated the judgment is affirmed.