7 N.Y.S. 152 | New York Circuit Court | 1889
By the failure to pay the dues, $10, on or about August 21, 1884, the policy became null and void, and all previous payments made thereon were forfeited to the company. The contract of life insurance was then at an ■end. This was the situation when Mr. Hardenburg went to the office of the company on September 26, 1884, and paid the $10 so due on the 21st of the preceding August. Mr. Hardenburg was bound to know that a reinstatement of the policy on September 26th depended upon tlie will of the company, and accordingly he should have examined the instrument given to him at the time of payment. Such instrument could not, in the nature of things, have been understood to be an ordinary receipt of dues. It would naturally express tlietérms of waiver, or the conditions of reinstatment, or whatever else was essential to give renewed life to the old policy or to create a new contract. Tlie receipting clerk had no authority in law to contract afresh for the company, except upon the terms and conditions to which he was limited by the instructions given to him pursuant to the constitution and by-laws, which ■constitution and by-laws were made part and parcel of the original contract ■of insurance. Accordingly the payment of the $10, and the delivery, contemporaneously therewith, of the receipt, together constitute the fresh contract. The insured thereupon became bound by the terms and conditions embodied in the receipt, and he so became bound whether he or Mr. Hardenburg read it or not. He was as much bound by the terms of the receipt as he was by the terms of the original policy. How, this is a conditional receipt. It specifies the fact that the time for the payment of the dues had expired; that such payment was tendered after the expiration of the contract period; and that the receipt was given and accepted upon certain conditions. These conditions read as follows: “That the said member is nowliving, and of temperate habits, and is in as good health as when originally received as a member of the association under the certificate.” And it further provides that otherwise the payment and the receipt and the original certificate should be null and void. It is clear, upon the evidence, that the insured was not, on September 26, 1884, a man of temperate habits, nor in as good health as when originally received as a member of the association under the certificate. It would seem to follow, therefore, that the payment at that date of the August dues was null and void, and that the original certificate received no fresh life. It remained just as it was at the time of payment,—null and void.
It is also contended that there was a waiver resulting from the request for proofs of death, and from the instructions given in regard to them. In my judgment this request and these instructions did not amount to a waiver of an existing forfeiture. The plaintiff was not thereby misled to her prejudice. Her rights depended upon the facts existing at the death of her husband. The question of waiver might subsequently arise with respect to conditions as to the proofs of death, but tlie insurer is not bound to abandon its claim of forfeiture if it would insist upon a compliance with the terms of the policy as to the proof of death. The case of Insurance Co. v. Stevenson, 8 Ins. Law J. 922, is in point. The principle which I have stated was there maintained by the court of appeals of Kentucky, and the learned editor of the journal adds a very copious and instructive note, citing all the cases upon the subject, and making the following clear and correct statement of the results; “If the mere demand for formal proof of loss, with a knowledge that the insured had violated a policy stipulation, were liable to operate as a waiver of such stipula
