44 Neb. 745 | Neb. | 1895
This suit is on a promissory note for the sum of $40, bearing date July 10, 1887, due in one year, made by the defendant in payment of the premium upon a policy of fire insurance issued to him by the plaintiff. Upon the trial the court rendered judgment against the defendant for the sum of $19.28. To review this judgment is the object of this proceeding. The only contention here is that the verdict is contrary to the law and the evidence. The cause was tried and decided in the court below upon the following stipulation of facts:
“ It is admitted that the defendant executed the note hereto attached, and that the consideration for said note was the execution and delivery to the defendant by plaintiff of a policy of insurance, a copy of which is hereto attached, and marked ‘Exhibit B;5 that the defendant duly received said policy, and has at all times since said day re*747 tuined possession of the same; never offered to surrender it to the plaintiff, or to any one for it, nor has it ever been demanded from the defendant by the plaintiff; that the defendant, at the time of the execution and delivery of the said note and the receipt of the said policy, was fully advised as to the provisions and conditions of the said papers.
“ It is further stipulated that the usual, customary, and reasonable price of the insurance mentioned in the policy, if taken for one year only, would be $13.33, but that in the consideration of the defendant taking-the policy for five years the plaintiff agreed to insure said defendant for five years for the amount of three years’ premium if taken for a single year.
“ It is further stipulated that the plaintiff duly issued the said policy and delivered the same to the defendant; has never canceled the same, but at all times since the said note became due has endeavored to collect the same, and that if the defendant has not had insurance for the full term of five years, as stated in said policy, it is wholly due to the fact of the failure of the defendant to pay the said note, taken in connection with the conditions in said note and policy.”
The note, which is the foundation of the suit, contained this clause: “If this notéis not paid at maturity, said policy shall then cease and determine, and be null and void, and so remain until the same shall be fully paid and received by said company.”
The following condition appears upon the face of the policy of insurance: “In ease the assured fails to pay the premium note or order at the time specified, then this policy shall cease to be in force, and remain null and void during the time said note or order, or any part thereof, remains unpaid after its maturity; and no legal action on the part of this company to enforce payment shall be considered as reviving the policy; the payment of the premium in full, however, revives the policy and makes it good for the balance of its term.”
The defendant relies upon three cases to justify his position, namely, Yost v. American Ins. Co. 39 Mich., 531, American Ins. Co. v. Stoy, 41 Mich., 385, and Matthews v. American Ins. Co., 40 O. St., 135. These cases are not like the one under consideration. In each a note payable in annual installments was given for the premium, each installment being a premium for a distinct year’s insurance. The policy stipulated that, if any installment was not paid at maturity, the policy should be null and void until payment was made. It was held that the insurance was not for a term of years, but as an annual insurance renewable each year for a period not exceeding such term, the policy was void so long as there was any default in the payment of any installment, and that no recovery could be had for successive installments of the premium. In the case before us the defendant agreed to pay a gross sum as premium for the carrying of the risk for the full period of five years, subject to the provisions of the policy. In the Ohio case two of the judges dissented, and the Michi
The findings and judgment of the district court are reversed, and the cause remanded.
Reversed and remanded.