Thompson v. New York Life Ins.

21 Or. 466 | Or. | 1892

Lord, J.

From this statement of the pleadings, it will be noted that there are presented mainly three issues of fact: First, whether Dinkelspeil made the agreement with the plaintiff for the rebates on annual premiums on behalf of the company; second, whether he had authority co make such agreement as the agent of the company; and, third, whether such agreement was ratified by the company.

There are numerous assignments of error, and of those relied upon for a reversal, several involve the same question, and relate to the ruling of the trial court allowing the depositions of certain witnesses residing in California and Michigan to he read. To understand the nature and force of these objections, it will be necessary to outline a general statement of the facts. It appears from the record that Dinkelspeil was employed by the company for the period of ten years, and from the time of his entry into its service until the expiration of such term, his authority as agent for the defendant remained the same. During the latter part of his term of service, he came out to the Pacific coast as agent for the defendant for the purpose of securing life insurance for it. At that time, the defendant’s business had been established here for many years, with Alex. G. Hawes, as its general agent for the coast, and F. E. Thayer, as its general agent for Oregon. Under these agents the company had an efficient corps of local solicitors, who received their directions from and reported to them.

It is noticeable that Dinkelspeil in the discharge of his agency under his commission, whatever it was, neither took any directions from nor made any report to either of them, hut sent the applications he secured and the premiums collected directly to the home office in New York City, and the policies issued thereon were delivered to him at the home office, and by him countersigned and transmitted directly to the applicants. Neither Hawes nor Thayer assumed any control of his actions, but vouched for his agency when referred to them. To the plaintiff as to others he represented himself as specially authorized by the company to obtain a limited number of large policies on special terms as to amounts and payments of annual premiums, and exhibited his written commission which he carried, from the company’s officers, under its seal, and which upon examination the applicants believed conferred such authority upon him. This instrument was not produced nor was any attempt made by the company to prove its contents. Dinkelspeil first came to San Francisco and commenced operations there, and in the space of a few months he secured the applications of several persons foiT policies of one hundred thousand dollars each, and upon a basis of a reduction or rebate on annual premiums. During this time Hawes was the general agent of the company, met Dinkelspeil, and knew he was taking life insurance applications for the company under a special commission, and, when applied to, assured parties that he was the company’s agent for that purpose.

In the latter part of June of the same year, Dinkelspeil came to Portland and secured applications from the plaintiff Thompson and others for one hundred thousand dollars each, in the same manner and upon the same terms, and Thayer likewise vouched for his authority whenever applied to for information upon the subject. About January, 1889, he commenced similar operations in Detroit, Michigan, and succeeded in a few months in obtaining the applications of a number of persons for large' sums. Like means were employed, and like terms were given in these cases as in those before referred to, the general agent of the state for the defendant conducting himself in a manner somewhat similar in the particulars already mentioned.

As alleged, plaintiff’s agreement with Dinkelspeil was that he should pay six thousand two hundred and sixty dollars for the first premium, three thousand one hundred and thirty dollars for each of the next two, and six thousand two hundred and sixty dollars for each of the next seven, less a reduction or rebate of one-fifth of one per cent on all moneys colleeted by appellant on policies issued in the year 1888 in California, Oregon, and Washington, not exceeding one-half of said annual premiums. The plaintiff paid Dinkelspeil the first premium of six thousand two hundred and sixty dollars in Portland on the twenty-ninth day of June, 1888, and on the twenty-sixth day of July, 1888, he received his policy through the postoffice at Portland. Enclosed in the same envelope were two letters from Dinkelspeil, as agent, addressed to the plaintiff. The first was as follows:

“Oppice op S. L. DxNKelspeil, Special Agent,

“New York Lire Insurance Co., etc.

“D. P. Thompson, Esq., Portland — Dear Sir: On the payment of your premium, on May 7, 1889, and May 7, 1890, on policy No. 287,311, issued upon the life of yourself, I will allow the sum of thirty-one hundred and thirty dollars on each payment when made as above. This is strictly confidential.

“S. L. Dinkelspeil, Agent.”

The next, omitting formal parts, which were like the preceding, stated: “Beginning May 7, 1891, and on the payment of your annual premiums thereafter on policy No. 287,311, issued upon the life of yourself, you will be entitled to a rebate of one-fifth of one per cent upon all the annual premiums written, accepted, and paid for to the company on its new business written in Oregon during the year 1888; it being understood and agreed that this rebate shall not exceed one-half of your annual premium. This contract and policy is strictly confidential,” etc.

On the day the plaintiff received the policy and the accompanying letters, he addressed a letter to Dinkelspeil at New York City, acknowledging the receipt of his life insurance policy, hut calling his attention to the fact that he was entitled to a rebate of one-fifth of one per cent, not alone on the new business in Oregon, as stated in his letter, but “ our agreement was California, Oregon, and "Washington, not to exceed one-half of the annual premium. Please make the correction,” etc.

Dinkelspeil replied, saying that “my personal agreement for one-half of your premiums for the second and third years, if you will remember, was for all compensation due you under the contract for those two years, and my sending to you the contract upon your territory was simply a matter of form. And I have no objections to including as I do now, California, Oregon, and Washington Territory in that agreement.”

About the tenth of April, 1889, the plaintiff received a postal card from the company's home office, signed by its president, Wm. H. Beers, notifying him that the annual premium on his life policy would fall due on the seventh day of May, 1889, but not stating the amount. The plaintiff immediately addressed a letter to the company, acknowledging the receipt of the notice, but saying: “Will you inform me at once what the amount of said premium is? I obtained said policy through the agency of Mr. S. L. Din-kelspeil, and he has sent me his personal agreement, which you can ascertain from him. Please answer at once,” etc.

On the eighteenth day of April, 1889, the home office telegraphed agent Thayer at Portland to get a copy of Dinkelspeil’s agreement with the plaintiff and Dinkel-speil’s letter of the third of August, 1888, and forward the same to it. The plaintiff furnished the copies, and Thayer forwarded them, and they were received at the home office on the twenty-sixth day of April, 1889. Soon afterward Thayer was directed from the home office, as we shall explain more fully hereafter, to accept three thousand one hundred and thirty dollars from the plaintiff and deliver a receipt in full for the second premium. When the third annual premium became due, the plaintiff offered to pay-three thousand one hundred and thirty dollars therefor, according to his agreement with Dinkelspeil, and insisted upon being allowed to do so, but the defendant refused to receive it, and disclaimed being bound by such agreement.

It will be observed that the fact that Dinkelspeil was an agent of the company was not disputed, but the scope and extent of his agency was the important question in issue. Far the purpose of showing Dinkelspeil’s dealing with other parties, under a similar state of facts, involving like authority as agent for the defendant, and its conduct in relation thereto, the plaintiff offered in evidence the depositions of Charles F. Crocker, John F. Merrill, George T. Hawley, G. W. McNear, and J. A. Hooper. These witnesses ¿resided in California. The deposition of Crocker showed B^t he took a policy on his life for one hundred thousand aollars, but was only to pay two thousand five hundred dollars for the first premium, and four thousand three hundred and forty dollars each for the next three. He testifies that he sought to ascertain whether the company recognized his policy as valid, and accepted the terms upon which Dinkelspeil delivered it, and that he had received favorable assurance that the company did recognize and respect his policy; that the special terms on which he received it at the time consisted only of a lower annual rate of premium than is customary for such a policy, and the delivery of it to him with the first annual premium paid of two thousand five hundred dollars. Merrill took a policy for a like sum, and paid the first premium, four thousand nine hundred and fifty dollars, and entered into a contract with Dinkelspeil for a rebate on future premiums. The company refused to recognize this contract of Dinkelspeil’s as to a rebate on premiums, but settled with him after-wards, the company refunding to Merrill the sum of three thousand eight hundred and seventy-eight dollars and forty cents, thus retaining one thousand three hundred and fifty-one dollars and sixty cents. Hawley likewise took a policy for one hundred thousand dollars, paid the first premium, four thousand nine hundred and fifty dollars, and entered into a contract with Dinkelspeil for a rebate on future premiums, but the company refused to recognize it, and afterwards settled, the company refunding to Hawley three thousand five hundred and ninety-four dollars, and thus retaining one thousand three hundred and fifty-six dollars. Likewise, in the cases of McNear and Hooper, with some slight deviations as to the sums.

The objection against these depositions, which the court permitted to be read to the jury, is, that they are irrelevant, or evidence of collateral facts only, and as such they could afford no reasonable presumption or inference that Dinkel-speil had the authority to make the alleged contract on behalf of the company, or that the company was in any^ way bound by it. The argument is, that as these CalifornJj contracts for a rebate on the premium were rejected by tlm company, no presumption can arise that a similar contract made between the plaintiff and Dinkelspeil was the contract of the company, or that it was bound by it; that the company had the right to recognize or to refuse to recognize any contract that Dinkelspeil might make in California, or elsewhere, and “to settle them as they pleased, and that what they did there, is not competent evidence in this case.” The objection urged against the admission of these depositions, upon the facts as disclosed by this record, may be well taken, but it may be doubted whether the latter part or clause of the argument can be sustained.

If the contracts Dinkelspeil assumed to make with these parties for a reduction or rebate on the premiums were plainly recognized by the company, or his authority unequivocally acknowledged, it would be evidence tending to prove his agency to make other similar contracts. Such a recognition of his agency would make them valid contracts, and in full force and effect. His agency to make a contract for a rebate on premiums as alleged was the important matter in issue to be proved. If shortly prior thereto, Dinkelspeil bad made sncb contracts for a rebate with parties in California, and the company, as his principal, plainly recognized his authority in the premises, these facts would be evidence tending to prove his agency to make other similar contracts or other contracts for a rebate .on premiums. As the contract involved is such a contract, such evidence would have a tendency to show his authority to make it.

In Wilcox v. R. R. Co. 24 Minn. 270, it was held that a single act of an assumed agent, and a single recognition of his authority by the principal, if sufficiently unequivocal, positive, and comprehensive in their character, may be sufficient to prove agency to do other similar acts. In that case, the contention was that there must be more than one act of the alleged agent, and one recognition of the act by the principal, before a presumption would be r&ised that a person is authorized to act for another. But Gileillak, ¡C. J., declared otherwise, saying that “a single act of the agent and a recognition of it by the principal may be so unequivocal and of so positive and comprehensive a character as to place the authority of the agent to do similar acts for the principal beyond any question. The value of such proof does not depend so much upon the number of acts as upon their character.”

In Lovell v. Williams, 125 Mass. 439, it was held in an action against a married woman for goods sold and delivered to her husband and used on a farm owned by her, on which she and her husband resided, that evidence that she paid a bill to another merchant for similar goods bought by her husband during the time covered by the account in suit is competent on the issue, whether or not the husband acted as her agent in carrying on the farm. “ It would be difficult to prove agency,” as Campbell, J., said, “if the acts of the agent accepted by the principal should be excluded.” (Haughton v. Mauser, 55 Mich. 326.)

We think, therefore, if Dinkelspeil made such contracts for rebates on premiums, and the company had accepted them, or recognized bis agency to make them, that such facts would be competent as evidence tending to prove his agency to make the contract in issue, which is a similar contract. But the facts, as disclosed by the depositions, show that the company refused to recognize these contracts as to rebates on premiums, or any contract made by him which differed from the contracts as set forth in the applications of the insured and the policies issued to them. It is true, out of the misunderstanding engendered, legal proceedings were threatened and begun, but the settlements, after\ wf effected, in no way recognized the validity of such cont. jS or Dinkelspeil’s authority as agent to make them; bu„, as we understand, they were settled on the basis of the policies issued to them for the risk incurred during their continuance. If the company had recognized Dinkelspeil’s authority to make them, such contracts would now be in force; their rejection of them, and repudiation of his authority to make; them, is inconsistent with any recognition of their validity.!

There is no pretense that the plaintiff had any knowledge of these contracts which Dinkelspeil had made in California, and it is not possible that they could have influenced his conduct in his dealings with him. It is not perceived, then, how these transactions or contracts made in California, which the company refused to recognize, but distinctly repudiated, can afford any reasonable presumption or inference that a similar contract between the plaintiff and Dinkelspeil was made on behalf of the company, or in any way bound it. In none of the depositions is there any evidence tending to show that the company gave any positive or-unequivocal recognition of Dinkelspeil’s agency to make contracts for rebates on premiums, or of the validity of such contracts; but on the contrary, his acts in the premises, as well as the contracts themselves as to rebates, are distinctly repudiated and rejected; and as a consequence, there is nothing in these transactions which tends to show his agency to make the contract in dispute.

It is next objected that the court erred in allowing the plaintiff to read to the jury the depositions of D. M. Ferry, W. C. McMillan, and J. W. Fales, and the exhibits which accompany them. These witnesses reside in the state of Michigan, and it appears that Dinkelspeil made an agreement with each of them for a rebate on the premiums, based upon a percentage on its receipts from its business in that state. In regard to these agreements, Dinkelspeil wrote a letter to the home office substantially to the effect that he had agreed with Mr. Ferry to allow him a reduction of the second and succeding year’s annual premium, as they are paid, an amount equal to one-tenth of one per cent of the annual premium paid, on the new insurance written by the company in the state during the time therein specified; that the allowances under the agreement were to be charged to his account and deducted from any sum or sums that might become due him under his contract, and requesting, if the arragement were satisfactory, to indorse the approval of the company on and return this letter to him for delivery to Mr. Ferry. The president of the company, Mr. Beers, approved the letter, and so indorsed it.

The letters written by Dinkelspeil to the home office with reference to the policies of McMillan and Fales are substantially to the same effect. It appears that Mr. Fales wrote a letter to the company relative to the arrangement Dinkelspeil had made with him. The answer of the president of the company, after stating that his letter was obviously not a reply to any letter written by the company, but as obviously a reply to a communication from Dinkel-speil, among other things states in effect that the company does not accept the premiums otherwise than in cash, and that the premium was paid to the company by Mr. Dinkel-speil in cash; that the company has no knowledge of any note given by him asked to be returned, but that if Dinkel-speil held his note that was a mattter between them; that before approving the letter, Dinkelspeil had given the company the necessary security to secure his agreement, and that it would not have been approved by the company under any other conditions. These facts and circumstances tend to indicate that the company was to receive the full amount specified in the policies, and not the amount to be paid by those parties under their respective contracts with Dinkel-speil; that the company only approved the letter, stating the nature of their agreement for a percentage rebate on its business under the circumstances indicated. However this may be, the fact that Dinkelspeil wrote to the president of the company for his approval and indorsement of these percentage rebates, plainly indicates that he had no authority to make such contracts, or to bind the company by any special contracts about rebates, without its consent.

Bearing in mind that these contracts were made nearly a year after the contract with the plaintiff, how can the depositions and letters in respect to them, when they show a want of authority in Dinkelspeil to make rebate contracts without the consent of the company, have any tendency to show Dinkelspeil’s agency, or his authority to make, on behalf of the company, the rebate contract alleged? We think the objections to these depositions and letters were well taken, and that the court erred, for the reasons stated, in allowing them to be read to the jury.

The next objection, as we shall consider it, involves several assignments of error, and exceptions taken to others given. Among the instructions refused, asked by the defendant, are: (1) “You are instructed that upon the pleadings and evidence in this case the defendant is entitled to a verdict.” (2) “If the jury believe from the evidence in this case that the contract between Dinkelspeil and plaintiff for a rebate upon the premiums named in the policy was a personal agreement, and not the contract of the defendant corporation, they must find a verdict for the defendant.” (3) “The letters referred to, and alleged in plaintiff’s ieply as embodying the contract between Dinkel-speil and plaintiff, do not bind the defendant, because they were not submitted to or approved by any officer q£ the company at the home office in New York.” (4) “The plaintiff is chargeable with notice by the application he signed for the policy that Dinkelspeil had no power to bind the defendant by the contract which he made with the plaintiff for a rebate upon the premiums, contrary to the terms of the policy.” (5) “The only contract binding on the defendant is the contract contained in the policy of insurance, including plaintiff’s written application Jor such policy.”

As to the first of these instructions, it is sufficient to say that there was no error, for the reason that there were facts appearing in evidence which were for the consideration of the jury. As to the other instructions, it is admitted, to some extent, that they were given by the trial court in its general charge; hut the complaint is, that they were so mixed up with modifications and qualifications as practically to impair or defeat their directness and force.

It appears from the charge, that the trial court specifically instructed the jury that these letters indicated upon their face that “they were not the contracts of the company”; that “this was a matter which required the assent of the company” — “some authorization in the first instance to bind the company”; that “this upon its face was a private and personal contract between Dinkelspeil and the plaintiff; and if that was all of it, I should say that the company was in no way bound by the stipulation contained in these papers.” The court then proceeded to say: “ But, although this might have been a contract private and personal between Thompson and Dinkelspeil as agent, yet the company might make themselves a party to it and become bound by its terms. This they could do by having first authorized such a paper to be made. They could do it by ratifying it after ascertaining that such a contract had been made between Dinkelspeil and Thompson. They could also do it by receiving the benefits of such a contract, and recognizing it as received in pursuance of that particular arrangement — that is, by direct authorization, by ratification or by accepting the benefits of the contract, the company could become bound. And it is for you to inquire, in this case, what is the fact in regard to that.”

It thus appears that the instructions numbered two and three were given, but that four and five were not given as asked, for the reason that to have so given them would have had the effect to exclude from the consideration of the jury the evidence which the plaintiff had introduced, and which he was entitled to have submitted to the jury, of authorization and ratification of the contract. It is true, that the depositions of the witnesses from California and Michigan, which-were allowed to be read to the jury as evidence tending to prove Dinkelspeil’s authority to make contracts for rebates on premiums, have been held by us to be error; but without expressing any opinion whether there was any other evidence upon this point, it is enough to say, that there was some evidence, as we shall presently show, introduced by the plaintiff tending to show ratification upon the part of the company which the plaintiff was entitled to have submitted to the jury, but which the giving of instructions four and five as asked would have had the effect to exclude from their consideration. Hence it was not error to refuse them.

As ratification is a vital point in the case, the mistake of counsel is, that they proceed upon the hypothesis that there is no evidence of any nature or description tending to show ratification upon the part of the company, and hence their further objection, earnestly urged, that there is no evidence to sustain that portion of the charge of the trial court as last stated above. The record discloses that the plaintiff received a notice from the home office of the company, signed by its president, informing him that the annual premium on his policy would fall due on the seventh day of May, 1889, but the notice did not state the amount. Plaintiff immediately addressed the letter, already stated, to the president, inquiring the amount of the premium, and stating that Dinkelspeil had sent him his persona agreement, which, the company could ascertain from him. Two days after, the home office telegraphed to Thayer at Portland to obtain a copy of Dinkelspeil’s agreement with the plaintiff and his letter of the third of August, 1888, and forward them to the company. Plaintiff furnished the copies, and Thayer, the general agent, forwarded them to it, so that the company then at least became fully acquainted with the nature of the alleged contract, and its conduct thereafter becomes important as bearing offithe question of ratification of the same. Shortly after these papers were sent to the company, Thayer was directed to accept three thousand one hundred and thirty dollars from the plaintiff in full for the second premium, and deliver him a receipt in full for the second premium six thousand two hundred and sixty dollars, and the money was paid by plaintiff ($3,130), and the receipt for six thousand two hundred and sixty dollars delivered accordingly on the seventh day of May, 1889, at Portland, Oregon. The plaintiff, in testifying in respect to these facts, says: “Mr. Thayer came to me with a receipt for six thousand two hundred and sixty dollars. He said: ‘Now you pay me three thousand one hundred and thirty dollars, and I will give you your receipt; that is the one agreed on by Dinkelspeil with you.’ I told him I was prepared to do it. He says: ‘It is a mere matter of form in this matter in order to close up our books and make it all appear correct; and this is a matter we do not care to go before the public; you give me a receipt for this matter for the balance.’ I said, so I get my receipt, that is all right. He says: ‘I am prepared to give you a receipt in full,’ which he did, and he executed to me a counter receipt, I paying one-half of the amount, as agreed by Dinkelspeil.” He further testifies, in substance, that in signing the receipt presented to him by Thayer, he did not understand that he was receiving any money from Dinkelspeil; that Thayer just proposed to give him a receipt for the full amount and to take a receipt from bim to settle up the matter on their books.

It is not possible to state all or more of the evidence, but this is sufficient to indicate that there was some evidence tending to show that the company, with a full knowledge of all the facts as to the agreement for rebates on premiums made by its agent Dinkelspeil with the plaintiff', accepted the sum of three thousand one hundred and thirty dollars from the plaintiff in payment of the second premium. And if it were accepted under the circumstances indicated, and the jury believed it, the same was evidence tending to prove ratification. It is true that the defendant introduced evidence explaining and contradicting the testimony for the plaintiff, and tending to show that the company never ratified or approved such a contract, or that it received the sum of three thousand one hundred and thirty dollars in pursuance of that arrangement, or that any other or less sum than six thousand two hundred and sixty dollars was paid to the company for the second year’s premium as shown by the receipt of plaintiff to Dinkelspeil for three thousand one hundred and thirty dollars “as commissions or rebates on second annual premium,” etc., indicating, as defendant claims, that of the six thousand two hundred and sixty dollars the sum of three thousand one hundred and thirty dollars was furnished by Dinkelspeil in pursuance of the personal agreement between the plaintiff and Dinkelspeil, and consequently that the company could not nor did not understand or recognize that the three thousand one hundred and thirty dollars paid by the plaintiff was to be in full payment of the second year’s premium, but while this is the company’s side of it we are only concerned with showing that there was some evidence tending to show ratification in support of that portion of the charge excepted to. The truth is, the trial court, recognizing the importance of the question of ratification under the issue, has taken the pains to instruct the jury fully and clearly upon this aspect of the question, as demanded by the different phases of the evidence presented by the parties. Nor to the larger portion of the charge in this particular, is there any exception.

The next objection is to the following instruction: “Itis claimed by the counsel on the one side that this form of agreement was adopted by the company for purposes of its own, as an arrangement by which certain advantages or supposed advantages might be gained, without spreading the transaction upon the records of the company, and that the company by its executive officers, did authorize just such a thing to be done; just such a form of contract to be made as Dinkelspeil and Thompson entered into, hut understood and intended that it should be the contract of the company; that the company would abide by it and fulfill its terms. You will inquire by your verdict from all this testimony whether that is the fact or not.” We doubt whether there is any evidence sufficient to sustain this portion of the charge in its full signification. We recall the evidence of Thompson of what Thayer said concerning the receipt already alluded to, but we doubt whether the inference to be drawn from that circumstance would justify the charge as given As the case is to be tried over, the error to which this portion of the charge is subject may be easily avoided.

As to the next portion of the charge excepted to, which is quite long, and is omitted, we think there is some evidence to sustain it, and that the objection as taken cannot be sustained. We have not noticed the motion for nonsuit, for the reason enough has already been stated to show that the facts appearing in evidence require that the case should be submitted to the jury. The argument as to the conclusive effect which should he given to the application and policy, overlooks some important facts, and wholly ignores the theory upon which the action was brought and tried. That theory is, that this rebate contract alleged was the contract of the company, — that they authorized and ratified it, — and in that view and the issue made upon it, the argument cannot be sustained. To hold that the plaintiff was bound by their terms, and give the effect to them claimed, would be to ignore the issue and the evidence of the plaintiff in support of his contention.

The next objection relates to the remedy sought by this action, and arises out of an instruction asked and refused, and an instruction given by the court to the effect that plaintiff might recover the premium paid by him, with legal interest, upon proof of the facts alleged. The instruction asked and refused was to the effect, that as the plaintiff was insured for a year for the sum specified, he could not recover the premium paid by him in this action. The argument, however, addressed to us, does not go to this extent. It only claims that the plaintiff, having received a consideration for the premiums which he paid, cannot recover back the entire amount of the premiums paid, with interest; that all the plaintiff could recover, in any event, would be the amount of damages which he has sustained by the alleged violation of his contract. On the other hand, it is urged that the plaintiff contracted for the payment of a stipulated sum to be paid at his death, and that to secure this he agreed to make ten annual payments; that the contract on the company’s part was executory and would have remained so until his death; that the defendant gave the plaintiff nothing but its promise to pay the stipulated sum on the happening of his death, and that before that occurred, and while its engagement was executory,, it refused to carry it out; that plaintiff never received any part of what he contracted for, and has nothing now that he can restore. Hence the plaintiff claims, as the defendant refused to be bound by the agreement, and to recognize his rights under it, he had a right to rescind it, and to recover back what he had paid under it with interest. There is undoubtedly some conflict in the authorities as to the proper remedy to be pursued in such cases, as is admitted by the learned counsel for the company.

Mr. Justice Bradley stated in New York Life Ins. Co. v. Statham, 93 U. S. 30, that the annual premium is not paid solely for an insurance for the year in which it is paid, but each premium is part consideration of the entire insurance for life. He said: “ The contract is not an assurance for a single year, with a privilege of renewal from year to year, by paying the annual premium, but it is an entire contract of assurance for life, subject to discontinuance and forfeiture for non payment of any of the stipulated premiums. * * * Each installment is, in fact, part consideration of the entire insurance for life. The value of assurance for one year of a man’s life when he is young, strong, and healthy is manifestly not the same as when he is old and decrepit. There is no proper relation between the annual premium and the risk of assurance for the year in which it is paid.” It is true that Mr. Justice Stkong expressed a different view, saying: “ The applicant for insurance, by paying the first premium, obtains an insurance for one year, together with the right to have the insurance continued from year to year during his life, upon payment of the same annual premiums, if paid in advance.”

Which of these is the true theory, we are not so well advised as we would like. As noted, contracts for life insurance differ from contracts for any other class of insurance. In these the risk for one year is practically the same as another, and of equal value to the assured. Under such contracts, there is more reason for the claim that courts of equity may apportion the premiums paid with the benefits received, where they terminate before the time agreed upon by the parties. But if life insurance contracts are to be treated as indivisible, and the consideration for the premiums paid and to be paid is an entirety for the reason suggested, they would not seem to come within the reason of the equitable rule, or at least ought not to be applied to a party having the right to rescind.

However this may be, it was held in McKee v. Phœnix I Co. 28 Mo. 383; 75 Am. Dec. 129, that if an insurance company should wrongfully refuse to receive the premiums due on a life policy, the assured may treat the policy as at an end and recover back all the money paid under it for premiums; and this case discloses that the court thought that this might be a very inadequate measure of damages, remarking that “ the mere return of the premiums with interest would not be the standard in all cases. In many it would be very unjust, especially after the policy had continued for years and the period of existence had consequently been shortened.” This case is admitted to be in point. (Hedden v. Griffin, 136 Mass. 229; 49 Am. Rep. 25; Fisher v. Hope M. L. I. Co. 69 N. Y. 161; Norton v. Gleason, 61 Vt. 474. As at present advised, and in view of the unsettled state of authorities, we are not prepared to say there was any error, especially in consideration of the fact that it is quite doubtful whether the question can be raised under the pleadings.

There is an objection raised by the plaintiff to several of the assignments of error in the notice of appeal for want of sufficient specification. The statute requires that the notice of appeal “shall specify the grounds of error upon which the appellant intends to rely upon the appeal.” (Hill’s Code, § 527.) As illustrative of several of such assignments of error in the notice of appeal, the following will serve as a specimen: “Said court erred in allowing plaintiff to read to the court and jury the deposition of J. A. Hooper, and in overruling the defendant’s objection thereto.” By this assignment there is a general allegation of etror, but it does not specify in what that error consists, or the grounds of error upon which the defendant as appellant intends to rely. Various grounds of error might be specified, any one of which, under such a general assignment, might be urged as error in allowing the deposition to be read to the jury, and none of them the one which was passed upon by the trial court and excepted to. The ground of error is not specified by the assignment. The adverse party knows that the appellant assigns that the trial court erred in allowing the deposition to be read, but whether this was because the deposition was irrelevant as evidence or incompetent for want of proper certification, or other grounds of error which might be specified, he cannot say from such a general assignment. In Swift v. Mulkey, 17 Or. 534, in passing upon the necessity of a specification of error in the notice of appeal, Stkahan, J., said: “Since the enactment of the present code, where an assignment of error in the notice of appeal is necessary, it must consist of a specification of particulars, so that the adverse party, as well as the court, may know upon what particular errors he intends to rely on the appeal.” As if to emphasize its importance and necessity, he said: “The proper rule of practice is, that the appellant must put his finger on the error complained of. He cannot be permitted to make a general assignment, and then upon the argument select some particular portion of the charge which is claimed to be within the general statement.” Of similar purport is the language of Woeks, J,, in Miller v. Wade, 87 Cal. 410, in which he says: ‘ ‘ The assignment of error is the pleading which points out the particular question raised and passed upon in the court below, and presented to this court for review. The bill of exceptions is intended to present the facts and the exception which sustains the point made and thus reserved for our determination. If this were not so, this court would be compelled, instead of looking to the assignments of error for the question presented, to search the whole transcript to find them; opposing counsel would have no means of knowing what points would be relied upon until the briefs were filed in this court, and questions could be urged here that had never been called to the attention of the court below.”

Clearly, then, under our statute it is not enough to simply state in an assignment of error that the court erred in doing so and so, or in failing to do so and so; but the appellant must point out or specify the ground of error upon which he intends to rely. Test'ed by this principle, the assignment, and those like it, were insufficient. Each of them relates to and covers all objections to the reading of a particular deposition, but none of them specify a single ground of error. But as the defects in these assignments are sufficiently specified by others in which the error relied upon is raised, we have not felt bound to consider them, and have only adverted to them as due to the able argument presented against them, and to attract attention to the importance of complying with the statute in this regard.

The judgment is reversed and a new trial ordered.