58 Iowa 29 | Iowa | 1882
Lead Opinion
“ Sec. 2. Whenever any assessment shall have been declared by the company, and notice thereof forwarded to the insured by mail or otherwise, and the insured shall, for the space of thirty days after such notice, refuse or neglect to pay the same, the. directors may sue for and recover the whole amount of said premium note or notes, and at their option annul the policy of insurance.”
The District Court instructed the jury that defendant was not authorized to annul the policy except upon notice given to plaintiff, and that a resolution or other action of the defendant’s directors, done in the exercise of the option to cancel the policy for non-payment of assessments on the premium note, would not terminate the contract, unless notice thereof was given to plaintiff. The instructions presenting this rule are complained of by defendant as erroneous. We think they
Coles v. Iowa State Insurance Company, 18 Iowa, 425, and Greeley v. The Same, 50 Iowa, 86, are not in conflict with this conclusion.
“ No. 11. If you find from the evidence in this case, that upon the execution of this mortgage, John Bell & Co. gave notice of its execution tó the defendant, and sent the policy*32 to the company, so that the company had the opportunity to indorse their consent thereto on the same, or if consent was not given to cancel the policy, and you find that the company did not cancel-the policy, but returned the same to John Bell & Go., with directions about the payment of the premiums claimed to be due, and did not then, or within a reasonable time thereafter, notify plaintiff that the company did not consent to the execution of the mortgage, then you would be justified in finding that the company consented to the execution of the mortgage, and waived any right of objection thereto, even though such consent might not be indorsed upon the policy by the secretary. If the company did, in fact, consent to the execution of the mortgage, it cannot now avail itself of the mere fact that such consent is not indorsed upon the policy.”
This instruction, in our opinion, is erroneous. Under the terms of the condition just quoted, the policy became void upon the execution of the mortgage. Assent to the mortgage indorsed upon the policy by defendant would revive it. The instruction in effect holds that, notwithstanding the mortgage, the policy was binding until canceled by defendant, and that an opportunity to express consent to the mortgage, and its return without a subsequent notice given by defendant that it would not consent to the mortgage authorized the jury to find that consent was given, and objection on account of the mortgage was waived.
The policy became absolutely void upon the execution of the mortgage. The defendant was not required to do any act in order to avoid it. But by indorsing consent to the mortgage upon the policy, the company would revive the contract. This act of revival rested in the option of defendant. Now, surely, the failure or refusal of defendant to give consent, or a proposition to give it upon conditions that were not performed, cannot be regarded as evidence that assent was given, or objection on account of the mortgage was waived. It cannot be claimed that defendant, while relying upon the
When the defendant was notified of the loss, it based its refusal to pay on the sole ground of the non-payment of the assessments on the premium note. As we have seen, the defendant proposed to revive the contract by assent to the mortgage on condition that the delinquent installments be paid. The refusal to pay may, therefore, be understood to be, in effect, based upon the fact that the policy was annulled by the mortgage, and was not revived by the payment of the premium in accord with defendant’s, proposition, made when it was notified of the mortgage.
1. No objection was made or question raised in the court below on the ground of the want of a reply, unless the objec
2. Conceding that the objection to the evidence under consideration was based upon the want of a reply, which certainly does not clearly appear from the abstract, there was no error in admitting the evidence, for the reason that it was given in rebuttal of testimony of the secretary of the company, introduced by defendant to the effect that, when he returned the policy to the mortgagees, he wrote to them that the insurance for two years, or two assessments, was due, and that he received no reply .to the letter from the plaintiff, or the mortgagees. The evidence in question tends to contradict this testimony. The defendant opened the door for the introduction of the evidence under consideration, and will not be now heard to object to it.
The foregoing discussion disposes of all questions discussed by counsel. For the error above pointed out, the judgment of the District Court is
Eevbesed.
Dissenting Opinion
dissenting. — The court instructed the jury, in substance, that if the policy was sent to the company with request that the company should indorse upon it its consent to the mortgage, and the company in fact consented to the mortgage, but returned the policy without its consent indorsed thereon, it could not be heard to say that the policy was void because its consent was not thus indorsed. I do not understand my associates to hold that the rule of law enunciated is not correct abstractly considered, but that there was no evidence of consent; and for that reason, it was error to give the instruction.
It is certain that no express consent was given, verbally or in writing, but I think that the circumstances were such that the consent might justly be inferred. The letter written by the secretary of the company to the mortgagees, is in these words:
*35 “ Gentlemen: Eranlc Supple’s policy No. 8,162 I this day return to you. There is due upon said policy two years insurance, amounting to $28.80. Upon receipt of a draft for $28.80 from him, or you, we will transfer said policy to you in case of loss.”
It will be seen that no allusion is made to the mortgage. The company, then, did not refuse to consent to the mortgage, nor did it, as the majority seems to assume, propose to give its consent on a condition which was never performed. ' It was simply silent in respect to the mortgage, and proposed to consent to the transfer of the policy on a condition. The condition was not performed, and the transfer was not made, and the mortgagees are claiming nothing. The failure by the insured to pay the premium did not, as the majority holds, avoid the policy. The case to my mind, so far as the validity of the policy is concerned, stands precisely as it would have stood if the insured had paid, but had not transferred the policy. The failure to pay goes for nothing. Now, when the company returned the policy, and called for payment, it treated the policy as not having been avoided by the execution of the mortgage. It is plain to be seen that the company had no objection to the mortgage. It could, of course, have refused to consent, though it had no objection, or have offered to consent on condition of payment of the premium, but it did not do this, but did that whereby its want of objection to the mortgage was clearly evinced, and whereby its understanding that the policy was still in force was also evinced. -In my opinion the court did not err in giving the instruction.