26 Pa. Super. 521 | Pa. Super. Ct. | 1904
Opinion by
The policy of insurance upon which this action is founded insured the life of Hester Baer in favor of her sister, the plaintiff ; it was duly executed on March 31, 1902, at the home office of the company in the city of New York, was tendered to the insured on April 2, 1902, but was not on that day delivered for the reason that the insured did not pay the premium, and was retained by the representative of the insurance company until April 26, 1902, upon which date the first premium was paid and the policy was delivered to the insured. The consideration for the obligation which the company assumed was by the policy declared to be “ the payment of the quarter annual premium of nine dollars and thirty-four cents on or before the delivery of this policy, and of a like amount on or before the 31st day of March, June, September and December of each and every year during the life of the insured.” The cov
The insured did not pay the premium which became due on the last day of June, 1902, but did pay it on July 11, 1902, and the company gave her and she accépted and retained without objection a receipt which stated that the premium had become due on June 30, and which had plainly printed upon it a notice that “ the acceptance by the company at any time of a premium past due is to be taken as an act of grace by the company and not as a precedent, nor as a waiver of any of the policy conditions.” When the next premium became due, on the last day of Septemher, 1902, a representative of the company called- upon the insured and was unable to find her; he again called at her residence in Philadelphia, on October 10, and was informed by her sister, the plaintiff, that the insured was visiting in Baltimore and expected to return within a short time. The' representative of the company again called at the residence of the insured on October 14,1902, and, in the absence of the insured, her sister, the plaintiff, tendered the agent the amount of the premium then overdue. The parties have expressly agreed that the agent declined to receive the money on behalf of the company on the ground that the premium was past due, but in response to plaintiff’s request consented to
The plaintiff subsequently brought this action on the policy, and the question submitted for the determination of the court below, under the facts agreed upon in the case stated, was whether “ the third premium was tendered in time to the defendant’s company ”; if it was, then judgment to be entered in favor of the plaintiff in the amount agreed upon, and, if it was not, judgment to be entered in favor of the defendant. The court below entered judgment in favor of the defendant. The learned counsel for the appellant contends that the policy contemplated the payment of premiums quarterly from the time the policy took effect as a binding contract, that the payment of the first premium on April 26, paid for three months’ insurance, or to July 26, and that the payment of the second premium on July 11, paid for three months’ additional insurance, or until October 26; and, the insured having died before the expiration of this period, the company is liable.
The fact that the second premium, which became due on the last day of June, was accepted by the company on July 11 was not sufficient to establish such a course of dealing between
The judgment is affirmed.