170 Wis. 1 | Wis. | 1919
Lead Opinion
The defendant contends that there is no evidence in the case sustaining the finding of the jury to the effect that the defendant extended credit to Nicholas Z. Wagener for the first premium, due September 9, 1914, on the insurance policy in question. The plaintiff asserts that such credit was extended to Wagener by acceptance, of his note by the agent, Hocks, under the facts and circumstances shown by the evidence. It is an accepted and well established rule of law in this state that the taking of a promissory note, either for a preceding liability or a debt incurred at the time, is not payment unless expressly agreed to by both parties. Aultman & Co. v. Jett, 42 Wis. 488; Ford v. Mitchell, 15 Wis. 304; Paine v. Voorhees, 26 Wis. 522; Willow River L. Co. v. Luger F. Co. 102 Wis. 636, 78 N. W. 762.
Credit for the first premium due on a life insurance policy may be extended to an insured, and may be shown by the facts and circumstances under which the application for insurance and delivery of the policy was carried out and the general course of business as conducted by the insurance company through its agent. Hartwig v. Ætna L. Ins. Co. 164 Wis. 20, 158 N. W. 280.
A note given for a premium does not operate as a payment in the absence of an express agreement to that effect. Kinne v. Mich. Mut. L. Ins. Co. 92 Wis. 335, 66 N. W. 359; McDonald v. Provident S. L. Assur. Soc. 108 Wis. 213, 84 N. W. 154.
The question arises, Do’ the facts and circumstances shown by the evidence in this case permit of the inference that it was agreed by Wagener and the local agent, Hocks, that the note of Wagener, payable to Hocks, was given and accepted as a payment of the first annual premium, due September 9, 1914, on the policy in question, or that the
As shown by the foregoing statement, Wagener, on May 14, 1914, at the request of the insurance company, signed and delivered to defendant the writing whereby he agreed, for himself and his legal representatives, that in event he
Does the evidence of Hocks permit of an inference that the note was given and accepted by him as payment of the premium due September 9, 1914, or that it was taken as part of an arrangement to extend credit for the first premium? It is to be noted that the note and original application bear the same date, April 9,1914; that the original application is for a ten-year term policy, to become effective immediately upon delivery; that the note is not made payable to the insurance company, but is payablé to Hocks individually; that he held and treated it as an individual note and did not claim after Wagener’s death that it was the company’s note; that on October 9th,' when it became due, he treated it as his individual note, and that on October 9th he offered to pay defendant $60 in cash on the premium of $85.50, which under the terms of the policy became due on September 9th. True, Hocks testifies that he took the note to cover a year’s premium, but explains that payment of the first premium
It follows that the court erred in refusing to direct a verdict on this issue in the defendant’s favor. It necessarily follows that under the terms of the policy it was not in force and operative from September 9, 1914, by reason of the default in payment of the first annual premium due on that date. There is no groundHor the claim that the letter of Waldman to Wagener dated September 24, 1914, calling to his attention the fact that the first premium was due September 9th, and asking him to give the matter his immediate attention if the premium had not already been paid, is binding as a declaration that the policy was then in force. The letter, as Waldman testifies, was sent as a friendly admonition to Wagener. Its contents do not indicate that the policy was treated as in force, nor do they constitute a
By the Court. — The judgment appealed from is reversed, and the cause remanded with direction to award judgment. dismissing the plaintiff’s complaint.
Dissenting Opinion
(dissenting). I concur in tha, above dissent for the reasons therein stated and also in view of the fact that at the time the application was sent to defendant it was bound to take notice from the recital therein that an
A motion for a rehearing was denied, with $25 costs, on November 4, 1919.
Dissenting Opinion
(dissenting). The jury found (1) that the defendant company extended credit to the deceased, Nicholas Z. Wagener, for the first premium due September 9, 1914, on the insurance policy in question in its general course of business as conducted by said company through its agent; (2) that the defendant company, by and through its agent, had knowledge of the condition of the health of deceased, Nicholas Z. Wagener, a reasonable length of time prior to his death, October 3, 1914, to have demanded a return of the policy in question.
These findings are supported by the evidence, and upon the findings of the jury and the evidence in the case I am convinced that the judgment below is right and should be affirmed. Rasmusen v. New York L. Ins. Co. 91 Wis. 81 (64 N. W. 301), at p. 87; Hartwig v. Ætna L. Ins. Co. 164 Wis. 20, 158 N. W. 280; McDonald v. Provident S. L. Assur. Soc. 108 Wis. 213 (84 N. W. 154), at p. 216; Dick v. Equitable F. & M. Ins. Co. 92 Wis. 46 (65 N. W. 742), at p. 48; Joliffe v. Madison M. Ins. Co. 39 Wis. 111, at p. 119.