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ber and the age of the members who are to pay it, and as these conditions change every day, it is impossible, in a case where a member fails to pay, to restore the company to the condition it would have been in had that member paid on the day. It is on this basis that the defendant is enabled to offer insurance at the favorable rates it does. Forfeiture for nonpayment is a necessary means of protecting itself from embarrassment. Unless it were enforceable, the business of this company would be thrown into utter confusion. Delinquency cannot be tolerated or excused, except at the option of the company. This has always been the understanding and the practice of the defendant with its members. Whatever period of grace is accorded is a matter of stipulation, or of discretion, on the part of the company. And when no stipulation exists, it is the general understanding that time is material, and that the forfeiture is absolute, if the dues are not paid. We must, therefore, regard the payment of the assessments and 384 dues as a condition precedent to any subsequent liability on the part of the defendant: New York Life Ins. Co. v. Statham, 93 U. S. 24; Klein v. Insurance Co., 104 U. S. 88; Worthington v. Charter Oak Life Ins. Co., 41 Conn. 401; 19 Am. Rep. 495.

If a course of conduct had been pursued between the company and its members from which a waiver could be found, a different construction would doubtless be put upon the contract. The conduct between the parties in this case has uniformily been in accordance with the strict terms of the certificate, and therefore the strict letter of the contract must be observed: Hartford etc. Ins. Co. v. Unsell, 144 U. S. 439.

The finding, by the ordinary rules of evidence, must be taken to mean that the notice of the assessment mailed at Hartford on the thirtieth day of January, 1891, reached Mr. Pitts not later than February 3d following. As this notice was addressed to him at the place where he resided and usually received his letters, it must be presumed that he received it in the due course of mail from Hartford to Pittsburg, Pennsylvania. This presumption is one of fact, and, of course, may be rebutted. But in a case where there is no evidence to the contrary, as in this case, it is the duty of the jury or of the court to find the letter was received: 1 Greenleaf on Evidence, sec. 40; Oaks v. Weller, 16 Vt. 63; Russell v. Buckley, 4 R. I. 525; 70 Am. Dec. 167; Huntley v. Whittier, 105 Mass. 392; 7 Am. Rep. 536; Oregon Steamboat Co. v. Otis, 100 N. Y. 446; 53 Am. Rep. 221: Henderson ▼. Carbondale Coal etc. Co., 140 U. S. 26; Schutz v. Jordan, 141

U. S. 213; Rosenthal v. Walker, 111 U. S. 185; Marston v. Bigelow, 150 Mass. 45. In this case, the presumption is strengthened almost to a certainty by the fact that the notice was found in the possession of Mr. Pitts.

It is argued by the plaintiff that, although the notice did come into the hands of Mr. Pitts, yet, by reason of his mental condition, he should be treated as though it had never come to him. Here again we must be governed by the terms of the contract between the parties. It is agreed in the certificate of membership, on which this action is brought, that the depositing in the postoffice at Hartford of a written or 385 printed notice, directed to Mr. Pitts at his address, "shall be deemed a legal and sufficient notice for all the purposes" of the contract. The argument of the plaintiff overlooks this stipulation, and assumes that it was the duty of the defendant company to get the notice into the hands of Mr. Pitts, and was also responsible for his condition of mind when he got it. This argument cannot be sustained. The defendant has never undertaken any such obligation as the plaintiff assumes. The language of this court in Worthington v. Charter Oak Ins. Co., 41 Conn. 401, 19 Am. Rep. 495, is exactly applicable to this case:

The defendants, in

"In terms, the contract is a simple one. effect, say to the other party, 'pay at the time stipulated and you are insured; omit such payment and our proposition is withdrawn, and your right to insure is extinguished.' It is impossible to put any other construction upon it. There is no room for doubt or uncertainty. The payment required is, in no sense, conditional. The proposition is not pay if convenient; pay unless sudden sickness prevents; pay unless some unexpected turn of fortune deprives you of the means of paying; pay unless the act of God or the law intervenes to prevent payment; but absolute payment is required. To make it still clearer, the proposition is not, if poverty, sickness, accident, or the law prevents payment, you shall be insured the same as if you had paid. None of these risks were taken by the defendant; they were all taken by the insured. Every word of the instrument embodying the agreement of the parties is consistent with this view of the contract, and the whole instrument, when fairly considered, is inconsistent with any other view of it. It would seem that this analysis of the contract would, of itself, be a sufficient answer to the plaintiff's claims."

In Wheeler v. Connecticut Mut. Life Ins. Co., 82 N. Y. 550, 37 Am. Rep. 594, it is said that "while, as a general rule, where the

performance of a duty created by law is prevented by inevitable accident, without the fault of the party, the default will be excused, yet when a person, by express contract, engages absolutely to do an act not impossible or unlawful at the time, neither 386 inevitable accident, nor other unforeseen contingency not within his control, will excuse him, for the reason that he might have provided against them by his contract: Harmony v. Bingham, 12 N. Y. 99, 107; 62 Am. Dec. 142; Adams v. Nichols, 19 Pick. 275; 31 Am. Dec. 137; Leavitt v. Fletcher, 10 Allen, 119; Pollard v. Shaffer, 1 Dall. 210; 1 Am. Dec. 239; Linn v. Ross, 10 Ohio, 412; 36 Am. Dec. 95; School District v. Dauchy, 25 Conn. 530; 68 Am. Dec. 371; 1 Chitty on Contracts, 11th ed., 67; Rolle's Abridgment, 420. The principle thus established has been especially applied in reference to policies of insurance, where the payment of the premium is held to be a condition precedent which must be kept or the policy falls": See, also, New York Life Ins. Co. v. Statham, 93 U. S. 24; Roehner v. Knickerbocker Life Ins. Co., 63 N. Y. 160; Evans v. United States Life Ins. Co., 64 N. Y. 304.

The notice sent to Mr. Pitts was a good one, in any event, of the amount of his assessment to the mortality fund. This amount was in the notice, set in an item separate from the amount of the monthly dues. If it be true, as claimed by counsel for the plaintiff, that he had the right to exercise his choice as to whether he would pay the monthly due one month in advance or three months, it would seem that the seven years' usage to pay three months in advance, which he had uniformly followed without objection or dissent, a usage adopted for his safety and convenience as well as for that of the company, would be sufficient to show that he had exercised his choice to pay each three months in advance, and that the notice was not defective.

The superior court is advised to render judgment for the defendant.

In this opinion the other judges concurred.

CONTRACTS-LIFE INSURANCE EVIDENCE.-One who agrees to do an act must do it unless absolutely impossible. He should provide against contingencies in his contract: Superintendent v. Bennett, 27 N. J. L. 513; 72 Am. Dec. 373. The sickness of the assured, disabling him from transacting business, is no excuse for the nonpayment of a life insurance premium: Carpenter v. Centennial etc. Assn., 68 Iowa, 453; 56 Am. Rep. 855. Ordinarily, time is not of the essence of a contract, unless injury would result from the delay: Note to Johnson v. Evans, 50 Am. Dec. 675, 676. A clause in a policy rendering it void for the nonpayment of premiums when due does not render it void as to the insurer, but voidable, and this option must be clearly asserted:

Note to Lantz v. Vermont Life Ins. Co., 23 Am. St. Rep. 215. A letter properly stamped and mailed, and containing a notice, is presumed to have been received, but this presumption may be rebutted: Pennypacker v. Capital Ins. Co., 80 Iowa, 56; 20 Am. St. Rep. 395; German Nat. Bank v. Burns, 12 Col. 539; 13 Am. St. Rep. 247.

AGENCY

DAVIS V. KING.

[66 CONNECTICUT, 465.]

APPOINTMENT AND AUTHORITY OF SUBAGENTS.-As a general rule, an agent has no right to delegate his authority to a subagent without the consent of his principal. If, in the absence of such consent, he does delegate his authority, the subagent whom he appoints will be regarded as his agent, and not the agent of the principal.

AGENCY-LIABILITY OF AGENT FOR ACTS OF SUBAGENT.-If an agent has the consent and authority of his principal to employ a subagent, he may employ one; and if, in so doing, he, in good faith, selects a suitable and proper subagent, he is not responsible to his principal for the acts and omissions of such subagent.

AGENCY-IMPLIED AUTHORITY TO EMPLOY SUBAGENT.-The consent of a principal to his agent to employ a subagent may be given expressly or by implication.

AGENT, LIABILITY FOR SUBAGENT.-If a subagent, employed with the consent, express or implied, of the principal to collect a note, wrongfully returns it to the maker, who destroys it, giving a renewal note in place thereof to the subagent, the principal agent is not answerable for the act of the subagent in surrendering the note.

Action to recover damages for the conversion of a note placed in the hands of the defendant for collection. The plaintiff recovered a judgment for the value of the note, with interest, and the defendant appealed.

Three notes of a thousand dollars each, payable to the order of a trust company, were secured by a single mortgage on real estate. One of the notes was indorsed to the defendant, an investment broker, who indorsed and sold it to the plaintiff. The plaintiff did not know that the other notes were secured by the mortgage. The defendant was in the habit of collecting the interest coupons for the plaintiff, through the trust company, without charge. The plaintiff's note was not paid when due. The trust company, with the consent of the holders of the other two notes, but without the knowledge of the plaintiff or defendant, extended the loan. After such extension, but before a knowledge of it reached the plaintiff or defendant, the plaintiff placed his note for collection in the hands of the defendant, at the latter's solicitation. The defendant forwarded the note to the trust

company, with instructions to collect and remit to him. When the plaintiff's note was received by the trust company, it wrongfully returned it to the maker, who destroyed it, and sent back a renewal note, which was tendered to the plaintiff, who refused to accept it. The plaintiff thereupon sued the defendant for a conversion of the note, claiming that its delivery by him to the trust company was unauthorized, but it was held that the plaintiff had impliedly authorized the defendant to employ the trust company to collect the note, and that as the loss resulted from the act of his own agent, he must look to him and not to the defendant.

John C. Chamberlain, for the appellant.

Charles E. Searls, for the appellee.

469 TORRANCE, J. This is an action to recover damages for the conversion of a note. The court below made a finding of facts, and upon those facts rendered judgment for the plaintiff, and from that judgment the defendant brings the present appeal.

The following is a somewhat condensed statement of the facts found: On and before June 1, 1890, the defendant was in business in Danielsonville in this state, under the name of C. D. King & Co., and advertised himself under that name as an investment broker and negotiator of southern loans. He continued said business there under that name down to the time of the trial. About June 1, 1890, the plaintiff, at the solicitation of the defendant, purchased of him the note in question. It was dated June 1, 1888, for the sum of one thousand dollars, signed by one Colley, payable to the order of the Georgia Loan and Trust Company, and due five years from date, with interest at eight per cent, payable semi-annually. It was indorsed by the Georgia Loan and Trust Company to the defendant, and by him to the plaintiff. No mortgage deed or other papers accompanied the note, and the plaintiff never saw any papers, other than it, although he understood that the note was secured by mortgage to the loan and trust company, on certain real estate situated in Georgia. The note sold to the plaintiff was one of three notes, of like amount, tenor, and date, made by Colley in June, 1888, to said loan and trust company, for a loan of three thousand dollars then made by it to him, and all three notes were secured by one and the same mortgage deed of trust, made by Colley to said company, upon land of his in Georgia. The company desired to have the notes made in three amounts for convenience

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