103 Wis. 427 | Wis. | 1899
1. The primary and vital question in this case is whether the fact that at the time of his decease Reisz had defaulted payment of an assessment due ten days before according to the strict words of his contract had unavoidably forfeited his rights.
It is urged that no such forfeiture occurred because the defendant had by a long course of dealing led the deceased to believe and understand that the provisions of the contract regarding failure of payment on the exact day specified would not be insisted on as suspending him from his membership] The findings of the jury on this subject have support in the evidence. It appears by the entries in decedent’s
The fundamental general rule of the law, of course, is that the contract actually existing between the parties, the performance of the respective obligations to which they have agreed, shall be enforced; but a contract once made may be modified, and provisions favorable to a party thereto may be relaxed or eliminated. Bannister v. Patty's Ex'rs, 35 Wis. 215, 225; Insurance Co. v. Norton, 96 U. S. 234. Whether the minds of the parties have met on such modification or relaxation, then becomes the question for decision, and that question may be resolved as well from acts and conduct as from express words. When the exact performance of a condition is not of importance to the obligee, and results in serious injury or in forfeiture to the obligor, courts lean to such construction of words or acts as relaxes its stringency as being more likely to accomplish the true purpose and understanding of the parties, as well as to promote justice. Erdmann v. Mut. Ins. Co. 44 Wis. 376, 382.
In line with such general policy, the rule has become well established by authority that where, by failure of some exact performance, a forfeiture is imposed on one party by the strict terms of- an agreement, conduct of the other sufficient to induce a belief that such strict performance is not insisted on, but that a modified performance is satisfactory and will be accepted as equivalent, will justify a conclusion that the parties have assented to a modification of the original terms,
This rule is equally applicable to all contracts, although it is perhaps most frequently called into operation in case of insurance contracts, wherein are usually contained the most drastic provisions for forfeiture of all rights of the assured upon the slightest deviation from exact performance of various conditions, of some of which at least momentary and strict performance is often of but slight importance to the insurer. In Hartford L. A. Ins. Co. v. Unsell, 144 U. S. 448, the following language of the trial court is approved by the supreme court: “The plaintiff comes and says, ‘Conceding that this contract reads in this way, the company, by its conduct, waived the necessity of a strict compliance.’ She •does not say the company so said to her, or to her husband, ‘We do hot insist upon this; we waive this;’ but she says that the company so acted — so conducted itself in its dealings with her husband — that he, as a prudent, reasonable man, did believe, and had the right to believe, that payment on the very day specified would not be insisted upon. Of course, we speak by our actions, just as much as we do by
In Insurance Co. v. Eggleston, 96 U. S. 572, Mr. Justice Headley, speaking for the court, said: “We have recently, in the case of Insurance Co. v. Norton, supra, shown that forfeitures are not favored in the law, and that courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or an agreement to do so, on which the party has relied and acted. Any agreement, declaration, or course of action on the part of an insurance company which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will and ought to estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract.”
In Stylow v. Wis. O. F. M. I. Ins. Co. 69 Wis. 228, the court directed a verdict for the plaintiff upon evidence of a custom to receive payment after the day specified, and this court, speaking by Tayloe, J., said: “The assured had every reason to believe that the company would accept the payment of these assessments as it had accepted the payment
The facts found by the special verdict bring the case within the rule above stated, and justify the conclusion that at the time of decedent’s death no forfeiture had occurred, and that he was in good standing, and the plaintiffs entitled to recover the insurance.
Inasmuch as our conclusion upon the above question is effective against the forfeiture of decedent’s membership, it is needless to consider the effect of the fact that on June 30, 1893, he became entitled to a dividend in excess of the amount of the July 1st assessment, or the propriety of admission of evidence to prove it, or the propriety of submitting a question thereon in the special verdict. All such considerations become unnecessary, and any error therein harmless.
' 2. Admission of evidence to prove the modification of the contract or waiver of prompt payment is now assigned as error for the reason that no waiver is alleged in the complaint. This court has more than once held such an objection untenable, as a general proposition. Zielke v. London Ass. Corp. 64 Wis. 444; Foster v. Fidelity & C. Co. 99 Wis. 453. Especially, however, is the admission of such evidence not reversible error where, as in this case, the objection is general, not pointing out the specific ground now urged. In such case a judgment will not be reversed for the admission of evidence if, upon any theory of the case, the evidence could be admissible; nor when, as here, the obstacle to its admission could, without prejudice to the defendant, and doubtless would, have been promptly removed by an amend
3. Defendant requested, and the court refused, three instructions, the purport of which was that if, upon the making of past-due payments, deceased was reinstated, then the questions as to leading him to believe in relaxation of the by-laws, and as to waiver thereof, must be answered in the negative.
The instructions requested were none of them correct. The conduct of defendant upon receipt of these payments was only an element in reaching a conclusion as to the understanding of the insured or as to the waiver; it could not be conclusive. The defendant may have duly entered on its records reinstatement, and deceased had no knowledge thereof. . The jury were instructed to consider the whole conduct of the defendant, and, if any particular part of its conduct was desired pressed on the jury for consideration, it should have been so requested. The requests made went entirely too far, and under the requirement of sec. 2853, R. S. 1878, that they be granted or refused in toto as presented, were properly refused.
The other assignments of error present nothing prejudicial to the appellant, nor anything which, in the light of the rules- of law already announced, demands further discussion in this opinion.
By the Court.— Judgment affirmed.