all amounts entering into the calculation to be valued as of the date of cancelation, at the legal rate of interest.

In Smith v. Charter Oak L. Ins. Co. (1876) 64 Mo. 330, it was held, in an action for damages for the wrongful dissolution of an insurance policy by the company, that the measure of damages should be the value of the policy at the date of its dissolution by the company's agent, with interest at 6 per cent.

In Farley v. Union Mut. L. Ins. Co. (1886) 41 Hun (N. Y.) 303, affirmed in (1890) 118 N. Y. 685, 23 N. E. 1151, where the insurance company refused to issue a paid-up policy for an equitable amount according to terms of a contract, it was held that the plaintiffs, as assignees of the policy, were entitled to a paid-up policy for an equitable amount upon the basis of the premiums which had already been paid. The court said: "They were entitled to what was the equivalent of the present value of the $10,000 policy issued to [the insured]; and that was to be determined by the period for which it had then run, his own time of life, and the probability of its continuance, according to the tables consulted and acted upon for such purposes."

In Hayner v. American Popular L. Ins. Co. (1877) 69 N. Y. 435, where a company wrongfully refused to receive premiums tendered, on the ground that the policy had lapsed, the court held that the measure of damages would be the amount of the policy, with interest, less the amount of the unpaid premiums, with interest.

In Garland v. Jefferson Standard L. Ins. Co. (1919) 179 N. C. 67, 101 S. E. 616, where a life insurance company had wrongfully declared the policy canceled for failure to pay premiums, without giving notice to the insured as required by statute, the court held that the present worth of the policy, reduced by the premiums which the jury find that the insured would reasonably be called upon to pay, would be the just measure of compensation for the wrongful cancelation of the policy, when the plaintiff's condition is such, either by reason of age or

physical condition, that he could not reinsure unless the defendant shall elect, as it may, to reinstate the policy upon payment of all arrearages of premiums and interest thereon, as the plaintiff offered to do before bringing this action.

In the reported case (AMERICAN INS. UNION V. WOODARD, ante, 102) where the insurance company carried the contract until the assured became impaired in physical condition to the point where she was no longer an insurable risk, and then wrongfully canceled the contract of insurance, the court held that, in this situation, the insured's damage by reason of the breach of the contract was the present value of the contract, and that, in determining the present value of the contract, the total premiums that would be required to carry the contract during the plaintiff's life expectancy, from the time of the breach of the contract, should be subtracted from the face of the policy; that the assured is entitled to credit for interest on the total amount of premiums for a period of time equal to his life expectancy; and that 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, and that the remainder would be the present value of the policy, and is the damage which the plaintiff suffered by reason of the breach of the contract.

American Ins. Union v. Woodard (1926) 118 Okla. 243, 247 Pac. 401, involved the same facts and the same holdings as the reported case (AMERICAN INS. UNION V. WOODARD).

In Supreme Lodge, K. P. v. Neeley (1911) Tex. Civ. App. —, 135 S. W. 1046, the court holds that the proper measure of damages for the cancelation of a life insurance policy is the value of such policy at the time of such cancelation, and, in discussing the present value of a life insurance policy, the court said: "If the policy was paid up, the answer would be obvious. It would be such a sum as, at a reasonable rate of compound in

terest, would equal the face of the policy at the end of the period of expectancy. If not paid up, its value can be computed with equal certainty. It would be a like sum, less the premiums which would become due during the period of its expectancy, with compound interest thereon." The court, in considering a situation where the insured may be in ill health or not insurable at all, says: "If, in such a case, the measure of damages here proposed cannot be applied by reason of its uncertainty, this affords no excuse for not applying it in cases where such facts are not shown to exist. But in such supposed case, the value of the policy can be ascertained from the opinion of experts, with as much certainty, if not greater, as in the majority of cases where damages are allowed upon expert testimony."

Soon

In Clemmitt v. New York L. Ins. Co. (1882) 76 Va. 355, subsequent appeal in (1883) 77 Va. 366, a husband insured his life for the sole benefit of his wife, with the condition stated in the policy, "in case of the death of his wife before the deceased of the insured, that the amount of the insurance would be payable after her death to her children." The insured paid the premium up to the time of the war, but no premiums were paid during the war. After the war the insured, by his agent, went to see the president of the insurance company, who said that the policy was annulled by the war, and repudiated it. after this time the wife died, and, pending suit by the only surviving child, the insured died. The court, after holding that the war did not abrogate, but merely suspended, the contract, held that the plaintiff was entitled to recover the value of the policy which in the present case would be the present value as at the date of the repudiation of the contract by the company of the sum assured and payable at the death of the person whose life was insured, to be abated, however, by the present value at the same date of the premiums subsequently accrued, and also by the amount of the premiums · previously accrued (which were unpaid). and interest thereon. The pres

ent value of the sum assured, thus ascertained and abated, with interest from the date of the repudiation of the contract, would seem to be the just measure of recovery in this case.

And in Merrick v. Northwestern Nat. L. Ins. Co. (1905) 124 Wis. 221, 109 Am. St. Rep. 931, 102 N. W. 593, as admitted by demurrer, the insurance company had wrongfully refused to accept further payments of assessments, and declared that the insurance had elapsed and the certificate for membership had become forfeited. The beneficiary elected to consider the policy at an end, and was seeking to recover its value, as damages for breach of the contract. The court, following the New York adjudications, as the true rule of damages in such cases, held that the policyholder was entitled to recover as damages the value of the policy at the time of the breach.

d. Cost of similar insurance.

In Bass v. Life & Annuity Asso. (1915) 96 Kan. 205, 150 Pac. 588, it is held that the ordinary measure of damages for the wrongful refusal to issue a paid-up policy is the cost of just such a policy as was stipulated for in a responsible company.

In Keyser v. Mutual Reserve Fund Life Asso. (1901) 60 App. Div. 297, 70 N. Y. Supp. 32, it is held that, where there has been a breach of the contract by the insurer, the amount of damages should be the cost of replacing the policy on the same terms in a sound company at the time of the cancelation of the policy.

In Speer v. Phoenix Mut. L. Ins. Co. (1885) 36 Hun (N. Y.) 322, an action was brought to recover damages for an alleged breach of contract by defendant in refusing to receive the annual premiums on a policy of life insurance, on the ground that the policy was obtained by fraudulent representations as to material facts. Under the rulings of the lower court the plaintiff was allowed to recover premiums, with interest on them respectively from the date of payment. The state supreme court, however, held that this measure of damages

could only be sustained upon the basis of a total failure of consideration for the premiums annually paid, and ruled that the proper measure of damages in this case which would make good the loss caused by the breach would be the difference in cost between the present insurance and insurance of the same kind and amount in a responsible company, and that payment of that difference, together with the amount of premiums called for by the present policy, would put the plaintiff in the position in which he would have been had no breach occurred. (However, in this case the court suggested that the measure of damages would be different from this rule if the insured was no longer an insurable risk.)

e. Miscellaneous.

In Lovell v. St. Louis Mut. L. Ins. Co. (1884) 111 U. S. 264, 28 L. ed. 423, 4 Sup. Ct. Rep. 390, as summed up by the court: "The complainant surrendered his policy, as he had a right to do, for the purpose of having it commuted to a paid-up policy; that he did so with the understanding between him and the agent of the company that the paid-up policy was to be for such amount as the premiums paid would purchase, and that his premium note should be returned to him. So far as the amount of the paid-up policy was concerned, the complainant and the agent acted under a mutual mistake; but the company kept the policy for six months without giving the complainant any notice of the mistake, and then, by indorsement on the policy, attempted to reduce it to a different amount, subject to the payment of interest of the premium note, and kept the note instead of delivering it up for cancelation. In the meantime, the company conveyed all its assets to another company, and transferred to such other company all its business and all interest in its outstanding policies, and completely and utterly put it out of its own power to fulfil any of its obligations, and virtually went out of existence." The court said "that, since the

company totally abandoned the performance of the contract made with

the complainant, and transferred all its assets and business to another company, and since the contract is executory and continuous in its nature, the complainant had a right to consider the contract as at an end, and to demand what is justly due to him by reason of its abandonment by the company."

In Hancock v. New York L. Ins. Co. (1873) Fed. Cas. No. 6,011, the plaintiff insured his life with the defendant company in the sum of $5,000, payable to his wife at his death, agreeing to pay the defendant the annual premiums at Richmond, Virginia, which he did until the Civil War, when the defendant removed its agency from Richmond, However, as soon as the war was over, and the company reestablished an agency in Richmond, the plaintiff went to it and offered to pay up all his premiums that had accumulated during that period, but the defendant refused to receive his premiums and declared the contract at an end, upon the ground that all his rights under it had been forfeited by his failure to pay his annual premiums as they fell due, between the years 1861 and 1865. However, Bond, C. J., instructed the jury in substance as follows: If the jury find that the defendant and plaintiff entered into the contract of insurance, and that the premiums on same were paid until the agency "was withdrawn by the company because of the outbreak of hostilities, and if the jury find that within a reasonable time after the close of hostilities, and the re-establishment of the company's agency at Richmond, the plaintiff offered to pay the premiums fallen due during the war, but that the company refused to receive such premiums unless the [insured] would submit to a medical examination for a new policy, and wholly refused to be bound by said contract of life insurance, then the plaintiff is entitled to recover such damages as they may find, from the evidence in the cause, the plaintiff had suffered by reason of the defendant's breach of contract." The jury returned a verdict in favor of the defendant.

In Day v. Connecticut General L. Ins. Co. (1878) 45 Conn. 480, 29 Am. Rep. 693, the insured did not wait for the policy to become a claim, did not resort to a court of equity to have the policy established, and did not elect to consider the policy at an end, but brought suit on an alleged implied promise, and sought to recover the full amount of the premiums paid, with interest, leaving the question of the defendant's liability on the express promise contained in the policy an open one. The court held that this could not be done.

In Order of R. Conductors v. Clark (1924) 159 Ga. 390, 125 S. E. 841, the court held that, where the order has repudiated the contract of insurance, the rights of the member are not to be measured by the terms of the contract.

In Alabama Gold L. Ins. Co. v. Garmany (1884) 74 Ga. 51, where the plaintiff brought suit for the amount of premiums which he had paid, the court said: "We think the company, when it violates the conditions and stipulations of its contract, is liable to return to the assured at least as much as he would lose by his voluntary failure to keep on foot his policy by paying according to its terms."

In Metropolitan L. Ins. Co. v. McCormick (1898) 19 Ind. App. 49, 65 Am. St. Rep. 392, 49 N. E. 44, where an action was brought to recover premiums paid, on account of wrongful cancelation of a policy of insurance, but the court held that the complaint did not state facts sufficient to constitute a cause of action, the court, by Wiley, J., said: "There seems to be a well-defined distinction between cases where the risk has attached and where it has not attached. In the latter case, all the premiums must be returned, and an action will lie for their recovery. . But where the risk has attached, and the company has assumed liability in case of loss, the rule must be different. It cannot be presumed that an insurance company can assume liability upon one of its policies, and, after carrying the risk for a certain period, be required

to refund all the premiums paid, while, as in this case, as charged, the policies were in full force and valid, and the company refused to accept the payment of another premium when due, and canceled it. In each of the policies issued to appellee by appellant, premiums were paid, and the risks attached."

In People v. Empire Mut. L. Ins. Co. (1883) 92 N. Y. 105, the Empire Insurance Company, after having been in business about three years, entered into a contract with the Continental Life Insurance Company, whereby the latter agreed to reinsure the outstanding risks of the former at a specified price, and the Empire Company contracted to relinquish immediately the business of life insurance, and do whatever might be necessary to wind up its affairs, The Empire Company, after transferring all of its assets, still owed that company, on the contract, an amount which it had no means of paying and never did pay; subsequently it went out of the insurance business, and seven years thereafter dissolved and had a receiver of its assets appointed. The Continental Company continued its existence for several years, when it also became insolvent, and was dissolved, and a receiver appointed of its effects. During the period of its existence, the Continental Company received such of the policyholders of the Empire as consented to come in and accept policies from it, but the plaintiffs refused, or neglected, to accept new policies from the Continental, and omitted to pay their annual premiums to the officers of either company, and claim damages for a breach of the contract by the Empire Company when it first entered into the contract with the Continental Company. The court held that, if the insurer had violated its contract, and voluntarily disabled itself from performance, the insured was doubtless excused from further performance or offer to perform on his part, and might recover such damages as he could show he had suffered.

In Locomotive Engineers' Mut. L. & Acci. Asso. v. Higgs (1922) 79 Ind.