13 Colo. App. 493 | Colo. Ct. App. | 1899
The New Zealand Insurance Company which prosecutes this appeal issued a policy to Paul Maaz on a dwelling house, furniture, barn and other personal property situate on some part of section 22, township 4, in Arapahoe county, running for five years, and covering a loss to the amount of $2,050. The premium was not paid at the time the policy was issued, but under an arrangement with the company, Maaz executed a note for $61.50, whereby on the 1st of July, 1892, he promised to pay that sum to the insurance company at their office in Denver on this policy with ten per cent interest. ' Attached to the note and part of it, there was an agreement, that if the note was not paid at maturity, the entire premium should be considered as earned and the policy should be null and void so long as the note remained past due and unpaid. There was a further provision that in case of a loss before the maturity of the note, the note should be deducted and in no event
A number of questions have been presented by counsel in their briefs and the appellant relies on other matters as well as what we have cited, especially those respecting other insurance for the purpose of a defense to the suit. Since we reach the conclusion that the action is necessarily defeated by the failure to pay the note at maturity or at any time thereafter, we shall decide only this question, reverse the judgment
These cases all concur in holding such a contract entirely valid, the policy void and unenforceable in cáse of nonpayment. It therefore follows no right of action accrued to Maaz when the property was destroyed in March, 1896, because neither at that date nor at any time prior had he paid the note or the judgment which the company had procured thereon. Not having paid his premium within the life of the paper and before its maturity, or at any time before the-loss occurred, the obligation of the company to pay did not arise, or if it arose and continued during the life of the note, it became null when it matured and remained unpaid at the time of the loss. Maaz, therefore, cannot recover on this policy unless what the record contains with reference to the proceedings in the action on the note amounted to a payment,
We do not enter the disputed territory whether an ultimate payment of the note or a payment of the judgment at any time prior to the loss and before the expiration of the term of the policy would revive it and make it a binding and valid obligation enforceable against the insurance company. Some cases so hold, others seem to intimate the contrary, but since it is unimportant to the determination of the exact point which we decide, we leave it unconsidered.
We do hold, however, that the contract contained in the note was a valid and binding agreement. That it was incumbent on Maaz to pay his note or to pay the judgment in order to revive the policy and make it an enforceable obligation. Since he did neither and the levy of the execution on real estate is insufficient to operate in any wise as a satisfaction, it necessarily follows the company was released from its obligation, the agreement of insurance was null and void, and Maaz had no cause of action. The instructions of the court were entirely opposed to this theory and were erroneous. We do not deem it necessary to go through the record and review them, nor to determine the effect of the other insurance, nor to dispose of any of the other collateral questions presented. What we have decided disposes of the case. Maaz has no claim. Since the suit is thus radically and fully disposed of we see no occasion to extend the opinion by a consideration of the other questions.
As we hold that Maaz can never obtain judgment or maintain suit against the company, we see no reason to reverse the case and send it back for a new trial, but exercising our
Reversed.