41 Conn. 97 | Conn. | 1874
The motion for a non-suit in this case we think was properly allowed; we see no good cause for setting it aside.
We reach this result without deciding several of the questions which have been elaborately argued at the bar. As the evidence offered by the plaintiff was wholly in depositions, and as they are made part of the record, the question is presented to us precisely as it was presented to the court below. Taking the whole evidence together, we think it appears that no contract of insurance was ever completed and consummated between the plaintiff’s intestate and the defendants. Our attention therefore will be confined principally to this one question. Whether the answers and declarations contained in the application are warranties or representations, and whether the burden of proving them true does or not, in the first instance, devolve on the plaintiff, it becomes unnecessary to discuss or decide. There is much nice learning involved in the general subject, and it has been a most fruitful source of litigation for more than a century. Highly distinguished legal tribunals still continue to entertain widely different views regarding it, as the recent cases of Fitch v. American Popular Life Ins. Co., 2 N. York Sup. Ct. Rep., 247, and Swicks v. Home Ins. Co., 2 Dill. C. C. Rep., 166, not to mention
But as we have already suggested, we propose to confine ourselves mainly to considering the question whether or not the evidence shows that a contract of insurance was made and completed between the parties.
It appears from the record that Daniel A. Keyes, an agent of the defendants, was living at the Allen House, a hotel in Wolcottville, in this state, in the month of June, 1872. Charles B. Crofut, whose administrator the plaintiff is, came to the hotel and registered' his name as a guest about the 14th of June, 1872. He immediately formed a casual acquaintance with Keyes, whom he told that he, Crofut, was a “ drummer for a house in New York,” that he was a traveling agent to sell stoves. Keyes proposed to him to have his life insured, but he said he was on his outward trip, was not ready, and was averse to doing it at that time, though he thought life insurance was a good thing. Keyes urged the matter, and told him that they had a temporary or agent’s policy, that would bind the insurance from the date of the medical examination, subject to the approval of the company ; but if he did not take that, his insurance would not take effect till he got his other policy and paid the premium. The agent’s policy required the payment of the premium in hand, and though Keyes tried to induce Crofut to take one, and offered to advance half the money necessary if he would pay the other half, Crofut declined. On that day, however, the 14th of June, 1872, Keyes took from Crofut his application for a life insurance, and had him subjected to an examination by a medical gentleman. Crofut expected to be absent from New York for sixty or ninety days. When the policy should be received by Keyes from the company, it was agreed between him and Crofut, that Keyes should forward it to his, Crofut’s, address, in New York. If it was found by Crofut to be as agreed, he was to send the premium—if not,
Some time after this, precisely how long does not appear, Keyes forwarded the policy to New York, the envelope being marked, “ return in ten days if not called for.” It was returned uncalled for. Keyes then sent the policy to Derby, in this state, addressed to D. K. Crofut, supposing him to be the father of Charles B. Crofut, who, he thought, might have left New York and returned home. This letter is dated August 15th, 1872, and was answered by the present plaintiff under date of August 20th. Keyes replied to that letter under date of August 26th, and that closed the correspondence.
It further appears that Charles 'B. Crofut died in New York on the 13tli of August, 1872. At that time the policy of insurance now in question was in the hands of Keyes, the agent of the defendants, having been sent to New York, but returned uncalled for.
We regard this as an inchoate, not a complete contract. The minds of the parties had not met. The sending of the policy was an offer on the part of the defendants, subject to the approval of the party named in the instrument, and when acceded to by him, and notice thereof given by payment of the premium, this offer would mature and become p complete and effectual contract. Until the terms of an agreement have been assented to by both parties, the negotiation remains open, no obligation is imposed. Had Charles B. Crofut been in New York when this policy was forwarded there, and had he exercised his option by declining to receive it, and so returned it to the agent as unsatisfactory, we think it very clear that the company could not have maintained an action against him to recover the premium. True, the policy never came to his hands, he never rejected it, as he might or might not have done, but he never assented to it, as he must have done in order to make a complete and perfect contract. We cannot assent to it for him, without doing that which he did not decide to do for himself, and the law confides no such power to a court of justice.
That the agent of these defendants was very eager and made very strenuous exertions to induce the deceased to take a policy of insurance on his life, is abundantly clear. That the deceased declined to do so is equally clear. The policy was forwarded to him, but failed to reach him, and was returned to the agent, in whose hands it remained till after 0. B. Crofut’s death. Hence, we say, that there was no contract of insurance subsisting between the plaintiff’s intestate and the defendants at the time of the death of the intestate.
It is obviously unnecessary, in this aspect of the case, to examine any other questions which have been discussed.
There is no error in the judgment complained of. The nonsuit should not be set aside.
In this opinion the other judges concurred.