amount of premiums for a period of time equal to the life expectancy of the assured. A further sum of money equal to the interest on the face of the policy, after deducting the premiums, for a period of time equal to the plaintiff's life expectancy, should be deducted from the remainder of the face of the policy. After making the two deductions from the face of the policy, as set forth, and giving the plaintiff the credit referred to, the remainder will be the present value of the policy, and is the damage that plaintiff suffered by reason of the breach of the contract.

We think the situation of the parties in this case requires the application of the foregoing rule to repair the damage suffered by plaintiff on account of the wrongful breach of the contract.

The question of the measure of damages was before the Circuit Court of Appeals on a record, as involved in the instant case. On this point, the court said, in the case of Mutual Reserve Fund L. Asso. v. Ferrenbach, 7 L.R.A. (N.S.) 1163, 75 C. C. A. 304, 144 Fed. 342: "In view of all of the special circumstances of the case, the character of the policy, the physical condition of the insured, and the absence of any measure promising more accurate compensatory results, we are of opinion that the recovery should be for the amount of the policy, less the cost of carrying it to maturity had it remained in force."

without the intervention of a jury, and judgment was entered in favor of the plaintiff for the face of the policy in the sum of $1,000, plus interest from date of the declared forfeiture. feiture. Recovery should have been allowed plaintiff on the basis of the foregoing rule. However, the plaintiff should be allowed interest on the present value of the policy from the time of the breach of the contract. All calculations mentioned refer to the date of the declared forfeiture of the contract by the insurance company. The life expectancy of the plaintiff is a ques- Trial-question tion of fact for de- for jury-life termination by the expectancy. jury. On account of the physical condition of the plaintiff at the time of the breach of the contract, the life expectancy should not be controlled entirely by the American mortality tables, or other tables showing the life expectancy of persons of given age. The life expectancy of the plaintiff must be determined, as judged with the mortality tables in connection with the health of the assured. It is for the jury to say from all the facts what the probable expectancy of the plaintiff would be as judged from her age, and physical condition, in connection with the mortality table. A person of plaintiff's age, in reasonably sound health, would be expected to live longer than a person of the same age afflicted with tuberculosis.

The cause is reversed and remanded for further proceedings in accord- Evidenceance with the views herein expressed.

sufficiency.

I. Scope, 107.

II. Remedies of insured:

a. General rule, 107.

III. Rights of beneficiary, 109.

a. In general, 110.

I. Scope.

As the title indicates, the question under annotation presupposes that the insurance has been wrongfully canceled, and the annotation is not concerned with any question in that regard, nor with any question as to the rights and remedies of the insured or beneficiary where the cancelation was justified.

II. Remedies of insured.

a. General rule.

Even though there is authority to the effect that an action for damages cannot be maintained by the insured for anticipatory breach of the insurance contract by the insurer, on the ground that the time for performance has not arrived, and that a declaration by one party, that he will not perform the contract when the time comes, does not give a present right of action (Porter v. Supreme Council, A. L. H. (1903) 183 Mass. 326, 67 N. E. 238, and Kelly v. Security Mut. L. Ins. Co. (1906) 186 N. Y. 16, 78 N. E. 584, 9 Ann. Cas. 661, reversing (1905) 106 App. Div. 352, 94 N. Y. Supp. 601),

in the latter case the court said that the insured should resort to a court of equity to compel the insurer to recognize the contract as in force,

the rule as reported by the weight of authority is that where an insurer wrongfully cancels, repudiates, or terminates the contract of insurance, the insured may, at once, pursue either of three courses: (1) He may elect to consider the policy at an end and recover the just value of the policy, or such measure of damages as a court in the particular jurisdiction approves; (2) he may institute proceedings to have the policy adjudged to be in force; or (3) he may tender the premiums, and, if acceptance is refused, wait until the policy by its terms becomes payable and test the forfeiture in a proper action on the policy.

Connecticut. Day v. Connecticut General L. Ins. Co. (1878) 45 Conn. 480, 29 Am. Rep. 693. Georgia.

Supreme Council, A. L. H. v. Jordan (1903) 117 Ga. 808, 45 S. E. 33.

Indiana. Indiana Life Endowment Co. v. Carnithan (1915) 62 Ind. App. 567, 109 N. E. 851; Metropolitan L. Ins. Co. v. McCormick (1898) 19 Ind. App. 49, 65 Am. St. Rep. 392, 49 N. E. 44.

In the reported case (AMERICAN INS. UNION V. WOODARD, ante, 102) the court said: "If a fraternal insurance company notifies the assured that it has canceled the contract of insurance, and the forfeiture be in violation of the provisions of the contract, the assured may treat the contract as wrongfully breached by the insurance company. The assured will not be required to wait until the time that the insurance company ought to have performed the act for the benefit of the assured, but may treat the contract as terminated, and sue on the contract immediately for the wrongful breach."

In O'Neill v. Supreme Council, A. L. H. (1904) 70 N. J. L. 410, 57 Atl. 463, 1 Ann. Cas. 422, it is held that where a mutual benefit society renounces its agreement by the passage of a by-law reducing the amount of a benefit certificate from $5,000 to $2,000, a member of the society may maintain an action to recover damages for the wrongful renunciation, before the time set for performance.

The following cases recognize the immediate right of the insured to maintain a particular action, or else his immediate right to elect between remedies:

In Order of R. Conductors v. Clark (1924) 159 Ga. 390, 125 S. E. 841, it was held that expelling a member from a beneficial order, by its vote and action, but without just cause or legal warrant or authority, thus canceling and repudiating his certificate of membership in the nature of a contract of life insurance, without his consent and over his objection, did not preclude an action at law in the courts by the member, seeking merely the recovery of assessments and other

moneys paid by him during his membership.

In Brooklyn L. Ins. Co. v. Weck (1881) 9 Ill. App. 358, where the insurer had wrongfully canceled the policy of insurance, the court held, in an action by the beneficiary before the death of the insured, that if, by reason of impaired health or other cause for which the assured was not to be charged, he was no longer an insurable risk, he ought not to acquiesce in the company's declaration of forfeiture, but insist upon his right that the policy should be continued in force, and to that end institute a proceeding in chancery to have the policy adjudged in force; or else he should tender the premiums, and, if refused, wait until the policy by its terms became payable, and bring an action on the policy.

In Indiana Life Endowment Co. v. Carnithan (Ind.) supra, it is held that repudiation of an executory contract of insurance does not necessarily require such action on behalf of the other party, but that he may elect to stand upon his contract, and perform or offer to perform all of the conditions thereof required of him, and then, when the day of performance arrives, proceed to enforce his contract.

In Van Werden v. Equitable Life. Assur. Soc. (1896) 99 Iowa, 621, 68 N. W. 892; Gaskill v, Pittsburgh Life & Trust Co. (1918) 261 Pa. 546, 104 Atl. 775; and Titlow v. Reliance L. Ins. Co. (1914) 246 Pa. 503, 92 Atl. 747, it is held that the assured may elect whether to enforce the contract, or treat it as rescinded and recover for the breach.

In Fort v. Iowa Legion of Honor (1909) 146 Iowa, 183, 123 N. W. 224, the defendant increased the annual assessments and also scaled down the amount of plaintiff's certificate without his consent, thus announcing its intention not to carry out its previous contract with the plaintiff. The court held that this justified the plaintiff in rescinding the contract and bringing suit for its breach.

In Kerns v. Prudential Ins. Co. (1899) 11 Pa. Super. Ct. 209, the court,

following the case of American L. Ins. Co. v. McAden (1885) 109 Pa. 399, 1 Atl. 256, apparently holds that when one party to an insurance contract refuses, without right, to perform his part, the insured may elect either to sue on the contract to recover damages for the breach, or to rescind the contract and sue in assumpsit to recover back the money paid under it. In Clemmitt v. New York L. Ins. Co. (1882) 76 Va. 355, subsequent appeal in (1883) 77 Va. 366, the court, with reference to an instruction, said: "It announces, in substance, the well-settled law of this state, that the war did not abrogate, but merely suspended, the contract . . and the further proposition, equally sound, that the repudiation by the company of the binding force of the contract excused a tender of premiums, and, what may be inferred from the views already expressed, as in our opinion correct, that after the company had repeated its denial of further obligation, the appellant had a right of election between remedies-either to sue at once for damages for the breach of the contract, or to await the event on which the sum assured became payable under the policy, and, when it became payable, to sue for its recovery."

As previously stated, one of the remedies of the insured, where there has been wrongful cancelation of the insurance contract, is to resort to a court of equity, where relief will be specially given.

In the following cases, equity gave relief by a decree in effect reviving the policy or declaring it in force:

- where its surrender had been secured by the insurer through wrongful representation that it was a wagering contract, and that the insured could not recover anything if the matter were taken into court, the surrender being induced by repayment of premiums paid by the insured, Heinlein v. Imperial L. Ins. Co. (1894) 101 Mich. 250, 25 L.R.A. 627, 45 Am. St. Rep. 409, 59 N. W. 615;

-where an agent of the insurer had fraudulently represented the policy as forfeited, Tabor v. Michigan.

Mut. L. Ins. Co. (1880) 44 Mich. 324, 6 N. W. 830;

where there was an anticipatory breach of the contract by the insurer wrongfully declaring the contract void and forfeited, Kelly v. Security Mut. L. Ins. Co. (1906) 186 N. Y. 16, 78 N. E. 584, 9 Ann. Cas. 661 (reversing (1905) 106 App. Div. 352, 94 N. Y. Supp. 601);

where insurer failed to give information as requested by the insured, concerning the amount of premium due, and, by a sudden unnotified deviation from the mode of dealing with the insured, prevented the payment of a premium when it was due, Meyer v. Knickerbocker L. Ins. Co. (1878) 73 N. Y. 516, 29 Am. Rep. 200;

- where the insurer wrongfully canceled the policy and refused to accept further premiums, on the ground of fraudulent representation in securing the policy, Mausbach v. Metropolitan L. Ins. Co. (1877) 55 How. Pr. (N. Y.) 496 (the court in this case followed Cohen V. New York Mut. L. Ins. Co. 50 N. Y. 610, 10 Am. Rep. 522).

See Brooklyn L. Ins. Co. v. Weck (1881) 9 III. App. 358, which recognizes the insured's right to institute a proceeding in chancery to have a policy adjudged in force.

In Langan v. Supreme Council, A. L. H. (1903) 174 N. Y. 266, 66 N. E. 932 (reversing (1902) 69 App. Div. 616, 75 N. Y. Supp. 1127, reargument denied in (1903) 176 N. Y. 595, 68 N. E. 1118), it was held that where the insurer reduced its liability from $5,000 to $2,000 by the adoption of a void by-law, to which the insured refused to acquiesce and continued to tender premiums, that there was no breach, which justified an action for damages, but that he could resort to a court of equity to compel the insurer to live up to its contract.

III. Rights of beneficiary.

In Brooklyn L. Ins. Co. v. Weck (1881) 9 Ill. App. 358, it is held that the beneficiary, being the person entitled to enjoy the advantages to be derived under the contract of insur