| Ill. | Oct 11, 1895
delivered the opinion of the court:
It will be observed that the note executed on the 15th day of July, 1880, for the semi-annual premium due on that date, was made payable on demand, after date, and it is insisted on behalf of the insurance company that during the next two weeks after the note was executed a demand of payment was made and payment refused, and upon such demand and refusal the policy became forfeited, and no action could thereafter be maintained upon it. As has been seen from the" foregoing statement of facts, the policy provided that if any subsequent- premium on the policy or any installment thereof, or any note given for premium or any part thereof, should not be paid on or before the day specified for the payment of the same, the policy should cease and determine. The note executed for the premium, being payable on demand, could not be regarded as matured, for the purpose of a forfeiture, except by a demand of payment from the maker. Indeed, it is conceded in the argument that the insurance company was bound to establish a demand of payment of the note before it could rely upon a forfeiture of the policy for a non-payment of premium when due, as provided in the policy. The circuit court found that there was a demand of payment of the note, but the Appellate Court found otherwise and incorporated its finding in the final judgment. There was but one witness called in the circuit court to establish a demand. The Appellate Court recites the evidence of this witness in its final judgment, and then concludes its finding as follows : “That such evidence does not tend to prove with the necessary particularity a demand by appellee for payment of the note, and therefore it is to be assumed that no such demand was in fact made.” The first question to be determined is, what effect is to be given to this finding of fact incorporated in the judgment of the Appellate Court? Is the finding final"and conclusive, or is it open to review on appeal?
Section 88, chapter 110, of Hurd’s Statutes, provides: “If any final determination of any cause, as specified in the preceding sections, shall be made by the Appellate Court, as the result, wholly or in part, of the finding of the facts concerning the matter in controversy different from the finding of the court from which such cause was brought by appeal or writ of error, it shall be the duty of such Appellate Court to recite in its final order, judgment or decree the facts as found, .and the-judgment of the Appellate Court shall be final and conclusive as to all matters of fact in controversy in such cause.”
The construction of this statute has been before us in a number of cases, and it has been uniformly held, that where the Appellate Court finds the facts different from the circuit court, and incorporates the-facts as found in its final judgment, such finding is final and conclusive. (Siddall v. Jansen, 143 Ill. 537" date_filed="1892-03-24" court="Ill." case_name="Siddall v. Jansen">143 Ill. 537, and cases there cited.) In Brown v. City of Aurora, 109 Ill. 165" date_filed="1883-11-20" court="Ill." case_name="Brown v. City of Aurora">109 Ill. 165, the question arose in regard to what constituted a proper finding of fact under the statute, and it was held that the Appellate Court was not required to incorporate or set out the evidence in its judgment, but the finding of facts contemplated is the finding of the ultimate fact or facts upon the existence or non-existence-of which, as set" up in the pleadings in the cause, the rights of the parties depend. ’ It does not mean that the Appellate Court shall find what was the evidence of these facts, or that it shall find those merely subordinate or evidentiary facts which, when established, contribute to the establishment of the ultimate fact which must exist in order to sustain the alleged cause of action or defense.
Under the rule laid down in the case -last cited it was not necessary for the Appellate Court to set out the evidence introduced on the trial bearing upon the question of demand, ■ and the evidence thus set out may be disregarded and rejected. The ultimate-facts found are only required to be incorporated in the judgment, and they alone are to be considered in the decision of the case on appeal. The Appellate Court found that no demand was made. Under the .statute that finding is conclusive on this court. It therefore follows that the policy was binding on the insurance company.
It is said in the argument that the policyholder never gave any notice to the insurance company that the attempted forfeiture of the policy was insufficient, and the want of such notice is fatal to plaintiff’s claim. It will be observed that the renewal receipt executed by the company on July 15, 1880, continued in force the policy for six months from that date. If payment of the note executed on the same day was not sooner demanded under this receipt there would be no default until January 15, 1881. In order to comply with the terms of the policy, on January 14, 1881, the policyholder notified the company that he would pay the note and the premium on the next day, and on that day the money was tendered to the company and refused. Again, on July 15, 1881, the policyholder offered to pay the note and interest and the premiums then due, but payment was again refused, and notice given by the company that Pulling need not bring any more money as no money would be accepted. After these repeated efforts to pay, and the refusal of the company to accept payment, and the notice that no money would in the future be received from Pulling, he was under no obligation to make any further efforts to pay premiums or give notice that the forfeiture was insufficient. He had done all that could be required, and his silence thereafter did not impair his rights under the policy.
It is also said the averments of the declaration that Howell G-. Pulling was ever ready, willing and able to pay further installments of premium were not proven. As has been seen, offers of payment of premiums were made to the company, but Pulling was notified that no money would then or thereafter be received. This may be regarded as sufficient.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.