Mr. Justice Gordon
delivered the opinion of the court,
But a single question presents itself for consideration in this case; that question is, did the company defendant, by its own act, render the performance of the contract with Martin A. Seipel impossible, or, if not wholly impossible, were such new circumstances and conditions thrown around and imposed upon its execution, by the company, as warranted him in treating it as rescinded? A statement of the facts will, resolve this matter.
The defendant was a New Jersey corporation; it had complied *50with the laws of Pennsylvania and established an agency at Allentown, and it had, therefore, the power to solicit and take risks in this Commonwealth. Seipel was a citizen of Allentown; he paid to the company $2500, which it agreed should be treated as first premiums, paid in advance, on life risks, of an acceptable character, to that amount, and which Seipel was empowered to present, within two years from the date of the contract, and which the company was bound to accept. The plaintiff was thus constituted an agent of this corporation; for it was only by virtue of such power that he could comply with the terms of the contract; and, on the other hand, the defendant could only accept the risks offered by the plaintiff by virtue of the power it acquired by a compliance with the statutes of this state. When, therefore, it expressed its determination to abandon the business of life insurance, and at the same time withdrew its agencies from Pennsylvania, it thereby not only disqualified itself for receiving risks, but also rendered it impossible for Seipel to solicit or procure them. For, in order to act even as a subordinate agent he must have an appointment, from the general agent for the state, duly certified by the auditor-general. Now, what signified, the fact that the defendant reserved the right to issue policies to fulfil contracts made previously to the time of the abandonment of its general insurance business ? It had, by its own act, put an end to the plaintiff’s power to procure risks within his own state, the place of the contract, and hence its reservation did him no good. True, he might have gone into New Jersey and canvassed that state for risks; but, in the first place, it would be inequitable to compel him to accept a contract which had been mutilated by the cutting out of his own state, the place where both he and the company had intended he should procure the necessary risks to pay him back the money which he had advanced; and, in the second place, it would he rowing against tide to attempt to procure risks, even' in New Jersey, for a company which had forestalled such attempt by announcing to the world that it had abandoned the insurance business. A more effectual method for blocking the way to the performance of a contract than that presented in the case in hand can scarcely be conceived, and we are not willing to agree that the party causing such obstruction should be permitted to profit thereby. It was also a mistake to suppose that a tender of the money, paid to the plaintiff for the mortgage sold by him to it, was a condition precedent to the plaintiff’s right of action. That transaction does not in any way enter into the contract before us; the defendant, for reasons of its own, took especial care to make these transactions separate and distinct. Apart, however, from this, the default in performance, as we have shown, results from the act of the defendant, and it is upon this default, which amounts to a rescission, that the plaintiff’s action is founded; he has, therefore, no precedent conditions to perform.
*51And now, March 12th 1877, the judgment upon the award is reversed and set aside, and judgment is now entered for the plaintiff, Martin A. Seipel, and against the defendant*, the International Life Insurance and Trust Co. of New Jersey, in the sum of $243-1.58, with costs of suit. And it is ordered that the records be transmitted to the Court of Common Pleas of Lehigh county for execution.
STATEMENT.
Amount contract November 25th 1871, due November 25th 1873 . §2500.00
Less payment.......... 464.93
§2033.07
Interest............401.51
§2434.58