The policy provides in the first condition, that “ in case any premium or payment required or agreed to be made, now or hereafter, in connection with this insurance, shall not be so paid when due, then this contract shall become null and void, and of no effect, except as provided in the special conditions on the back of this policy.” The fifth condition of the policy is as follows: “ The contract of insurance is contained only in this
The eighth condition of the policy is as follows: “ This policy is issued under the limited tontine dividend plan of this company, on the special conditions stated on the back of this policy, which are hereby accepted by the assured as part of this contract, as fully as if they were recited at length over the signatures affixed hereto.”
On the back of the policy is the following condition: “ Fifth. After there shall have been paid under this contract three full years’ premiums, if default shall be made in any payment within specified, the entire reserve on this policy, as calculated at that date according to the actuaries’ table of mortality, with interest at the rate of four per cent per annum, and the net annual premiums method, after deducting the amount of any note, draft, indebtedness, or charge, with the interest thereon accrued against this policy, shall, on written demand made at the company’s principal office in New York City, upon the blank forms furnished by the company on application therefor, within six months after such default, and during the life of the insured, be taken as a single premium to continue the insurance named in this policy in force at its full amount for such time beyond such default as such single premium will purchase that amount as (non-participating) paid up insurance at the company’s present published rates, taken at the age (nearest birthday) of the insured at the date of said default, subject to all the conditions and agreements of this contract; provided, however, that if the death of the insured occurs within three years after such default, and during such continued time of insurance, there shall be deducted from the principal sum payable the amount of all payments that would have become due up to the time of said death had no default Occurred.”
The policy was dated May 28, 1887, and the premiums were duly paid thereon semiannually up to and including the premium due May 28, 1890; thereafter no premiums were paid. Ernest •H. Porter, the insured, died on July 1,1891. Neither he nor any one in his behalf made a written demand upon the company for
There was evidence on the part of the plaintiff from which the jury might find, as they did, that the neglect of the insured to make the demand for an extension of the policy pursuant to the fifth condition on the back was occasioned by what was said to the insured or to his agent by Waite, although Waite was called as a witness and contradicted this evidence; and the jury might also find from this evidence that the company had waived- this condition, or was estopped from setting it up if Waite, without the consent or knowledge of the company, or of its president and secretary or actuary, could waive it, or by his conduct could estop the company from relying upon it.
The terms of the policy are clear. The contract is to become null and void if the premiums are not paid when due, except as provided in the special conditions on the back of the policy, and these conditions cannot be modified or waived except in writing signed by the president and secretary or actuary. The receipts for premiums given to the insured stated that “ No person except the president, secretary, assistant secretary, or actuary is authorized to make, alter, or discharge contracts, or waive forfeitures.” It does not appear that Waite ever before had attempted to waive the conditions of the policy, or that the company or its directors, or that the president and secretary or actuary ever knew that Waite had ever made such an attempt, or claimed to have any such power. There is no evidence of any conduct of the company, or of any officers expressly authorized to waive any of the conditions of the policy, which can be held to estop the company unless Waite’s conduct can have that effect; and we do not