1. The rules laid down in
<|9 Wall. 125|>Norris v.
Jackson, 9 Wall. 125, and in
<|9 Wall. 428|>Flanders
v. Tweed, 9 Wall. 428, and in the preceding case of
Kearney v. Case, supra, <|79 U.S. 275|>275, as to
the mode of finding the facts by the court (waiving a jury), under
the Act of March 3, 1865 (relative to the trial of issues of fact
in civil causes), and as to the effect to be given to such finding,
and the manner in which the record is to be prepared for this and
the extent of the inquiry to be made in this Court, again set forth
in detail.
2. Under that act, when on a suit on a policy of insurance the
question was whether a waiver of a payment in cash of the premium
had or had not been made,
held in a case where the court
found on the evidence as a fact that it had been waived, that the
correctness or incorrectness of a series of requests which were
founded on an assumption that it had not been were not subject to
review here under the act.
3. Where an insurance company instructed its agents not to
deliver policies until the whole premiums are paid, "as the same
will stand charged to their account until the premiums are
received," and the agent did nevertheless deliver a policy giving a
credit to the insurer and waiving a cash payment,
held
that the company, it being a stock company, was bound.
Error to the Circuit Court for the District of Maryland, the
suit being one by Mrs. H. Miller against the Brooklyn Life
Insurance Company to recover $5,000, insured by her husband, Walter
Miller, for her benefit on his own life.
The evidence proved or tended to prove the following case:
The insurance company -- a stock company, not a mutual one --
being desirous of taking risks in St. Louis,
Page 79 U. S. 286
appointed Dutcher & Fasset their general agents for that
place, and gave to them, as they did to all their general agents, a
printed book showing to them their powers as agents and containing
the instructions under which the company meant that they should
act. The book contained these passages:
"
I
NSTRUCTIONS TO AGENTS"
"Agents must not deliver policies until the whole premiums are
paid,
as the same will stand charged to their accounts until
the premiums are received or the policies returned to the
office."
"
POWERS OF AGENTS"
"Agents are not authorized to make, alter, or discharge
contracts, waive forfeitures, name an extra rate for special risks,
or bind the company in any way; their duties being simply to obtain
applications for insurance, to collect and transmit premiums, and
generally to be the medium of communication between the
policyholder and the company."
"Agents are not authorized to write the receipt of premium, or
make any endorsement whatever on the policy. The president or
secretary are alone authorized to sign receipts for premiums on the
part of the company. When a receipt is delivered to a policyholder
by an agent, such agent must countersign the same as an evidence of
payment to him."
The said Dutcher & Fasset being thus established as the
recognized general agents of the company, Walter Miller, the
husband, then of St. Louis, applied, in that place, June 19, 1868,
for a contract of insurance for his wife's benefit to Dutcher &
Fasset, general agents of the insurance company in the State of
Missouri. The application, a printed form in part, was headed:
"
BROOKLYN LIFE INSURANCE COMPANY"
"Statement required from persons proposing to effect assurance
in this company, and which forms the basis of the contract."
It was stated in this paper that the assured wished to pay
Page 79 U. S. 287
partly by note and partly in cash. And at the close of it these
words occur:
"It is agreed by the undersigned . . . that the policy of
assurance hereby applied for shall not be binding upon this company
until the amount of premium as stated therein shall have been
received by said company or some authorized agent thereof during
the lifetime of the party therein assured."
At the time of the application, the deceased having ascertained
from Dutcher what was the amount of the cash portion of the premium
and what the portion to be embraced in notes, said to him:
"Send the policy to me, with the notes, and call on Solomon
Scott for the cash part. He has just promised me that he will pay
it."
This Scott had been a partner in business and was a particular
friend of Miller's.
The application was forwarded by the agents to the home office
in New York, and in the course of a week the policy was received by
Dutcher & Fasset. Miller in the meantime had gone to
Maryland.
The policy, dated June 21, 1868, and the premium notes for him
to sign, were mailed to him, in a note dated July 2, 1868, in which
the agents said:
"You will find enclosed the yearly note and the six months'
note, both of which you will please to sign and return us by mail.
The cash payment we will get of Scott when the time
arrives."
It was stated in the policy that it was made:
"In consideration of the representations and agreement contained
in the application therefor, and of the sum of $254.85 to them in
hand paid, and of the annual premium of $254.85, to be paid on or
before the 21st of June in each year during the continuance of this
policy."
And it was provided in it, among other things, that in case the
assured
"Should not pay or cause to be paid the premium as aforesaid
Page 79 U. S. 288
on or before the day herein mentioned for the payment thereof,
or any note or notes which may be given to and received by said
company in part payment of any premium &c. . . . then this
policy shall cease and be null, void, and of no effect."
On the margin of the policy were these words:
"Agents are not authorized or permitted to waive, alter, or
change any of the provisions of this policy."
Miller signed the notes sent to him in the letter of Dutcher
& Fasset, and returned them, but said nothing about the cash
premium. In their letter to Miller enclosing the policy, Dutcher
& Fasset sent a receipt in this form, partly printed, and
apparently as to that part a form with which the insurance company
furnished all their agents:
RECEIPT
BROOKLYN LIFE INSURANCE COMPANY
141 Broadway, New York
Walter Miller -- June 21st, 1868 -- Policy No. 4447 -- Life
--
Amount of $5,000 -- Amount of Premium, $254.85
NOTE CASH
One-third loan note $101.94 Two-thirds cash $76.46
Cash note 76.45 Interest on loan note 7.13
------- " cash note 2.67
$178.39 ------
Total cash $86.26
Received payment
DUTCHER & FASSET, Agents
July 1, 1868
N.B. Agents MUST NOT DELIVER policies until premium is
received,
as no policy is IN FORCE until PAID for.
Dutcher & Fasset, as the evidence went strongly to show,
frequently gave credit for the cash payment in the case of persons
whom they knew would pay when called on, and in this case they sent
the receipt because, as one of them testified, they had "confidence
that they could get the money at any time they called for it."
As it turned out, however, Dutcher & Fasset did not get the
money payment from Scott, although it was a fact that
Page 79 U. S. 289
Scott had promised to pay it, and there was no allegation
anywhere of fraud.
The following correspondence now took place.
"
[Dutcher & Fasset to Miller]"
"ST. LOUIS, July 23, 1868"
"WALTER MILLER, ESQ."
"Reese's Corner, Maryland"
"DEAR SIR: The last of the month we make our report according to
custom, and last evening, going home, I (the writer) called in the
store and found our friend Scott intending to start East on Monday.
I suggested to him that he should pay your cash part of premium as
you suggested to me, but he would not listen to it at all; so we
depend on you for it, the amount being $86.26, made up as
follows:"
Interest on annual note. . . . . . 7.13
" " six months' note . . . 2.67
------
$86.26
"For which amount please send me check on New York."
"Truly yours,"
"DUTCHER & FASSET"
"
[Miller to Dutcher & Fasset]"
"REESE'S CORNER, MARYLAND, August 3, 1868"
"MESSRS. DUTCHER & FASSET"
"St. Louis"
"GENTLEMEN: In reply to yours of the 23d, I regret that Mr.
Scott did not do as he promised you. I did not solicit or ask him
to pay the note. He told you that he would pay you the note. Had he
not told you, I should have provided for the amount long since. I
have about sixty dollars on hand. Will get the $86.26 and send to
Baltimore and purchase a draft on New York, and have it sent in a
day or two."
"Hoping that all things will be all right in a few days, I
am,"
"Yours truly,"
"W. MILLER"
Page 79 U. S. 290
"
[Same to Same]"
"REESE'S CORNER, MARYLAND, August 18, 1868"
"MESSRS. DUTCHER & FASSET"
"St. Louis"
"DEAR GENTS: I shall ship some wheat tomorrow to Messrs. Cox
& Brown, Baltimore, and will direct them to send you a draft on
New York for $86.26. I regret the delay, and hope it may never
occur again. Shall be in St. Louis this fall. Will make
arrangements to have all my notes paid at maturity."
"Yours truly,"
"W. MILLER"
The draft, however, not coming, Dutcher & Fasset wrote again
thus:
"ST. LOUIS, September 10, 1868"
"W. MILLER, ESQ.,"
"Reese's Corner, Maryland"
"DEAR SIR: Your several letters have been received, the last,
under date of August 18th, in which you remark, 'I shall ship wheat
tomorrow to Messrs. Cox & Brown, Baltimore, and will instruct
them to send you a draft on New York for $86.26.'"
"The draft has never been sent, or it has never come to hand.
Now, sir, we are fearful you will lose your policy if payment is
not made soon. Give it your attention at once, if you please; and
as it has been running so long, you will have to add the interest,
which will be $1.34, making the amount to be remitted $87.60."
"Truly yours,"
"DUTCHER & FASSET, Agents"
And hearing that he was "quite sick," wrote thus:
"ST. LOUIS, October 14, 1868"
"WALTER MILLER, ESQ.,"
"Reese's Corner, Maryland"
"DEAR SIR: We learn from Mr. Scott that you are quite sick. As
you have not paid your cash payment on your life policy in the
Brooklyn, you must be aware that the policy is forfeited, and we
now enclose you two notes for part payment of the premium.
Page 79 U. S. 291
It has now been standing for four months beyond the time of
payment."
"You will please return the policy to us. The writer regrets
very much to hear of your illness, and hope you may speedily
recover."
"Truly yours,"
"DUTCHER & FASSET, General Agents"
Miller died before this last letter reached him, and the company
refusing to pay, solely upon the ground that the policy had never
been in force by reason of the nonpayment of the premium, the widow
brought this suit, as already said, in the court below, on the
policy. By consent of parties, the case was tried by the court
without the intervention of a jury, this sort of trial being in
virtue of the 4th section of an Act of Congress of March 3, 1865,
which, after enacting that issues of fact in civil cases may be
determined by the court without a jury whenever the parties file a
stipulation in writing &c., proceeds thus:
"The finding of the court upon the facts, which finding may be
either general or special, shall have the same effect as the
verdict of the jury. The rulings of the court in the progress of
the trial, when excepted to at the time, may be reviewed by the
Supreme Court of the United States upon a writ of error or upon
appeal, provided the rulings be duly presented by a bill of
exceptions. When the finding is special, the review may also extend
to the determination of the sufficiency of the facts found to
support the judgment."
The testimony which tended to prove a case, such as above given,
being closed, the record thus disclosed
"
THE PLAINTIFF'S PRAYER"
"If the court shall find that the application for the policy was
made by Miller, through the general agents of the defendant at St.
Louis; that upon said application the defendant executed said
policy and sent the same to its general agents at St. Louis; that
the said general agents, upon receipt by them of the policy,
forwarded and delivered the same to Miller, who, in obedience
Page 79 U. S. 292
to the directions of the said general agents executed and
remitted to them the premium notes provided for, and that Miller
died in October, 1868, and that the defendant refused to pay the
insurance money, solely upon the ground that the policy was not in
force; and further shall find that neither at the time of said
application for insurance nor at the time said policy was sent to
or received by said Miller did the said general agents demand
immediate payment of the cash premium, but on the contrary agreed
to call upon Solomon Scott for such case premium when to them it
should seem proper so to do; and said agents waived the payment of
said cash premium for several months, and treated the said policy
as an executed contract, then, if the court so find, the plaintiff,
by her counsel, prays the court to render its verdict and judgment
for the plaintiff, even though it should further find that the said
cash premium was never in fact paid."
Under this prayer of the plaintiff, the court below wrote
this
"
JUDGMENT"
"The court finds all the facts stated in the above prayer, and
orders judgment to be entered for the plaintiff for the sum of
$5,013, and costs."
The defendant had contended and so prayed the court to rule:
1st. That
if Dutcher & Fasset never intended to
waive the payment of the cash portion of the premium, and if
deceased did not believe that said payment was intended to be
waived, there was in law no waiver of it.
2d.
If the deceased knew that Dutcher & Fasset had
no authority to deliver the policy without payment of the cash
portion of the premium, there was no waiver.
3d.
If Dutcher & Fasset's authority was such as
stated above, the defendant was not bound by their delivery of the
policy without payment of the premium.
4th. That the facts, if true, as stated in the testimony in
reference to the application for insurance, the correspondence
between Miller and Dutcher the sending of the policy and receipt to
Miller, and the receipt of the notes by Dutcher & Fasset,
showed that there was no waiver.
Page 79 U. S. 293
5th. That all the facts in reference to the subject, in
evidence, if true, showed there was no waiver.
The court refused thus to rule, but found that the payment of
the cash premium was waived, and gave judgment in the way already
mentioned.
Page 79 U. S. 295
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Issues of fact in civil cases pending in the circuit courts may
be tried and determined by the court without the intervention of a
jury whenever the parties or their attorneys of record file a
stipulation in writing with the clerk of the court waiving a jury.
Such a submission necessarily implies that the facts shall be found
by the court, and the act provides that the finding may be either
general or special, and that it shall have the same effect as the
verdict of a jury in a case where no such waiver is made.
Exceptions, however, may be taken to the rulings of the court made
in the progress of the trial, and if duly taken at the time the
rulings were made, the rulings may be reviewed here, provided
the
Page 79 U. S. 296
questions are properly presented by a bill of exceptions; and
when the finding is special, the review may also extend to the
determination of the question whether the facts found are
sufficient to support the judgment. [
Footnote 1]
On the twenty-fifth of June, 1868, the defendants insured the
life of the husband of the plaintiff in the amount of five thousand
dollars for the term of his natural life, "with participation of
profits." Part of the premium, to-wit, the sum of two hundred and
fifty-four dollars and eighty-five cents was required by the rules
of the company to be paid at the time the policy was delivered, and
the policy recites that the plaintiff paid that sum to the
defendants in hand, and the policy also states that the insured
agreed to pay them a like sum on or before the twenty-first of June
in each year during the continuance of the policy, and that the
defendants, in consideration of those sums and of the
representations and agreements contained in the application,
promised and agreed to pay the plaintiff, or in case she should die
before her husband, to pay the sum insured to her heirs, executors,
administrators, or assigns, within sixty days after due notice and
proof of the death of the person whose life is therein insured.
Process was issued and served, and the defendants appeared and
pleaded the general issue that they never promised in manner and
form as alleged in the declaration, and the issue tendered was
joined by the plaintiff. Errors in pleading were waived, and the
parties filed a stipulation in writing that the issues of fact
should be tried by the court without the intervention of a jury,
and agreed that every defense admissible under any special plea
should be admitted under the general issue. Evidence was introduced
on both sides and the court rendered judgment for the plaintiff in
the sum of five thousand and thirteen dollars and twenty-five
cents, and the defendants sued out a writ of error and removed the
cause into this Court.
Most of the difficulty arising in the case proceeds from
Page 79 U. S. 297
the failure of the court to comply strictly with the
requirements of the act of Congress which provides that issues of
fact in civil cases may be tried and determined by the court
without the intervention of a jury. Where a jury is waived, as
therein provided and the issues of fact are submitted to the court,
the finding of the court may be either general or special, as in
cases where an issue of fact is tried by a jury, but where the
finding is general the parties are concluded by the determination
of the court, except in cases where exceptions are taken to the
rulings of the court in the progress of the trial. Such rulings, if
duly presented by a bill of exceptions, may be reviewed here even
though the finding is general, but the finding of the court, if
general, cannot be reviewed in this Court by bill of exceptions or
in any other manner.
By the express words of the act, the finding may be general or
special, but if general, it is final and conclusive between the
parties unless the court which tried the case shall grant a new
trial or the judgment shall be reversed in the appellate court for
some erroneous ruling made in the progress of the trial which is
duly presented by a bill of exceptions. Whether the finding is
general or special, the rulings of the court in the progress of the
trial, if excepted to at the time and duly presented by a bill of
exceptions, may be reviewed in this Court, and in a case where the
finding is special, the review may also extend to the determination
of the question whether the facts found are sufficient to support
the judgment.
Application for the policy was made by the husband of the
plaintiff, since deceased, and he obtained the same for her benefit
through the general agents of the insurers. Actual payment of the
cash premium was never made by the plaintiff nor by her deceased
husband. Nothing of the kind was pretended at the trial, but the
plaintiff introduced evidence tending to prove that the agents of
the company delivered the policy without complying with that part
of their instructions; that they agreed to waive that requirement
and to call upon a third person, named by the decedent, for
Page 79 U. S. 298
the same whenever they should deem it proper so to do, and that
the policy was delivered to the applicant and became operative
under that arrangement.
Policies, as the defendants proved, were required to be issued
by the officers of the company, and could not be legally executed
by the ordinary agents. All such agents could do in the outset was
to prepare the application, have it duly executed, and transmit it
to the home office, and it appears that they did so in this case
and that they received a policy in return duly executed. Whereupon
they enclosed the policy, with the two notes for the credit portion
of the premium, to the decedent, who promptly signed the notes and
enclosed the same in a letter addressed by mail to the persons from
whom the notes, with the policy, were received. In their letter to
the decedent enclosing the policy, the agents say, "the cash
payments we will get of Scott when the proper time arrives." They
subsequently called upon that person for the cash premium, but he
refused to pay it as he had agreed to do with the decedent, and the
agents thereupon gave notice of his refusal to the applicant for
the policy and requested him to make the payment. He acknowledged
the receipt of their letter and promised to procure a draft for the
amount and send it to them in a few days, but he did not send the
draft, and the agents wrote him again informing him that the draft
had never come to hand, and expressing their fears that if the
payment was not made soon he would lose his policy, adding that the
payment had been delayed so long that he would have to add interest
to the premium, amounting to one dollar and thirty-four cents.
Payment being still neglected, and the agents having learned from
Scott that the person insured was "quite sick," they informed him
by letter that his policy was forfeited, and enclosed to him the
two notes given for the credit portion of the premium, but the
letter did not "reach his home" till after his death.
Such agents were instructed not to deliver policies until the
whole premium was paid, and were told that if they did, the premium
would stand charged to them until the same
Page 79 U. S. 299
was received by the company or the policy was returned to the
office. Evidence to that effect was also given by one of the agents
who delivered this policy, but he admitted that it was their custom
in some cases not to call for the money at the time from parties
with whom they were well acquainted, and when asked on
cross-examination what they meant by saying, in their letter
enclosing the policy to the applicant, that they would get the cash
payment of the person named when the proper time arrived, he
admitted that they sometimes gave the receipt before they received
the money, and that they had confidence in this case that they
could get the money on call.
But the payment of the cash premium was not made, and in view of
that fact and the other evidence in the case, the defendants
requested the court to rule as follows:
(1) That the evidence showed that the agents never intended to
waive the prepayment of the cash premium, and that the applicant
for the policy did not believe that they intended to make any such
waiver, and that the defendants, if the court so find, are not
liable in this action.
(2) That if the court so find, and that the applicant knew that
the agents had no authority to deliver the policy without such
payment, then there was no waiver of that requirement and the
defendants are entitled to judgment.
(3) That if the court believe from the evidence that the
authority of the agents was such as is shown in their instructions,
then the defendants are not bound by the act of the agents in
delivering the policy without such payment, and the plaintiff
cannot recover.
(4) That the facts given in evidence, as recited, show that
there was no waiver of that requirement, as is supposed by the
plaintiff.
(5) That the facts testified to by the two witnesses examined
under the commission, if true, show that the agents of the
defendants did not waive the payment of the cash premium.
Suppose the facts proved to have been as assumed by the
defendants in their requests, then it might well be conceded that
the judgment was for the wrong party, but the issues
Page 79 U. S. 300
of fact were tried and determined by the circuit court, and the
act of Congress provides that the finding of the circuit court in
such cases shall have the same effect as the verdict of a jury, and
the Constitution provides that no fact tried by a jury shall be
otherwise reexamined in any court of the United States than
according to the rules of the common law. [
Footnote 2] Facts so tried could only be reexamined,
under the rules of the common law, either by the granting of a new
trial by the court where the issue was tried or to which the record
was returnable, or by the award of a venire facias
de novo
by an appellate court for some error of law which intervened in the
proceedings. [
Footnote 3]
Matters of fact found by the circuit court under such a submission
cannot be reexamined here, as by the express language of the act
the review, when the finding is general, is confined to the rulings
of the court in the progress of the trial, and even when the
finding is special, nothing else is open to review except the
inquiry whether the facts found are sufficient to support the
judgment.
Tested by these rules, which are believed to be undeniable, it
is clear that no one of the said several requests presented by the
defendants shows any ground for reversing the judgment, as every
one of them assumes as facts matters dependent upon the evidence,
and which are not embraced in the findings of the circuit court.
All matters of fact must be found by the circuit court, and not by
the Supreme Court, as the act of Congress provides that the issues
of fact may be tried and determined by the circuit court where the
suit is brought. Rejected by the circuit court as the several
requests under consideration were, it is too plain for argument
that no one of the propositions of fact therein contained is found
to be true by the circuit court. On the contrary, the complaint of
the defendants is that the circuit court improperly found a
different state of facts and gave judgment for the plaintiff. They
contend that the circuit
Page 79 U. S. 301
Court ought to have found the facts to be as assumed by them in
their requests, and what they seek to accomplish by the writ of
error is to show that the finding of the circuit court is
erroneous, and to induce this Court to set aside that finding,
affirm the propositions of fact assumed in their requests, reverse
the judgment of the circuit court, and grant a new trial or render
judgment in their favor. Enough has already been remarked to show
that nothing of the kind can be done, as the act of Congress
requires that the facts must be found by the circuit court.
[
Footnote 4] Inferences of fact
must be drawn by the circuit court, which, by the agreement of the
parties, is substituted for a jury, and cannot be drawn by this
Court, which sits as a court of errors. [
Footnote 5] Conclusions of fact cannot be found by this
Court when sitting as a court of errors under the act of Congress
authorizing the circuit courts to try and determine issues of fact
in civil cases, as in the case before the Court. What is required
is that the findings of the circuit court shall contain the
conclusions of fact, or, as the rule is stated in a recent decision
of this Court, a statement of the ultimate facts or propositions
which the evidence is intended to establish, and not the evidence
on which those ultimate facts are supposed to rest, and it is well
settled law that the finding must be sufficient in itself without
inferences or comparisons, or balancing of testimony or weighing
evidence. [
Footnote 6]
Testimony as to a conversation between the agent of the
defendants and the person designated by the applicant to pay the
cash premium was introduced by the plaintiff, subject to the
objection made by the defendants, but it is not necessary to
examine that objection, as the testimony was subsequently stricken
out at the defendants' request.
Having disposed of the exceptions to the rulings of the court,
it only remains to determine whether the facts found are sufficient
to support the judgment. Separate findings are much to be preferred
in such a case to the form adopted
Page 79 U. S. 302
by the circuit court, as the review extends to the inquiry
whether the judgment can be supported by the findings. Instead of
that, however, the circuit court adopted the prayer presented by
the plaintiff, and certified in the record that
"the court finds all the facts stated in the above prayer, and
orders judgment to be entered in the above prayer, and orders
judgment to be entered for the plaintiff"
in the sum therein specified.
Throughout the trial, it was conceded by the plaintiff that the
cash premium was never paid, but she insisted that the requirement
that it should be paid before the delivery of the policy was waived
by the general agents of the defendants, and the prayer presented
by her counsel embodied most or all of the evidence introduced to
prove that theory. Omitting unimportant words, it was to the effect
following: that if the court shall find that the application was
made by the husband of the plaintiff through the general agents of
the defendants, and that the defendants thereupon executed the
policy and sent it to their general agents, and that the latter,
upon the receipt of the policy, forwarded and delivered the same by
mail to the applicant, who, in obedience to the directions of the
said general agents, executed and remitted to them the premium
notes as provided in the policy, and that the person whose life was
insured died at the time alleged, whereof the defendants received
notice prior to the institution of the suit, and refused to pay the
sum insured solely upon the ground that the policy was not in
force, and shall further find that said general agents did not
demand immediate payment of the cash premium, neither at the time
of the application nor at the time the policy was sent to or
received by the person whose life was insured, but agreed with him
to call upon the person named in the evidence for the same when to
them it should seem proper so to do, and that said general agents
waived the payment of said cash premium for several months, and
treated the policy as an executed contract, then the plaintiff is
entitled to judgment.
Assume the facts to be as stated in that prayer and found by the
circuit court, the Court here entertains no doubt that they are
sufficient to support the judgment, which is
the only
Page 79 U. S. 303
question raised by any special finding. Beyond all
doubt they show a waiver, and it may be proper, in view of the
circumstances, to remark that the evidence reported in the record,
if it could be reexamined, is even more persuasive and convincing
to that effect than the statement of the plaintiff or the finding
of the circuit court.
Evidence of the most convincing character is reported showing
that it was the custom of the agents to give credit in certain
cases to persons with whom they were well acquainted and knew to be
responsible, and not to call for the money at the time the policy
was delivered; and one of the instructions given to such agents
affords a strong presumption that the custom was known to the
company, as the instruction states that agents must not deliver
policies until the whole premiums are paid, as the same will stand
charged to their account until the premiums are received or the
policies are returned to the office. Such evidence, however, cannot
be reexamined, as this Court is confined to the special finding and
the rulings of the circuit court.
Attempt is made in argument to show that general agents have no
power to waive such a requirement or to deliver the policy to the
insured without first exacting the payment of the cash premium, but
the Court here, in view of the circumstances of this case, is
entirely of a different opinion. [
Footnote 7]
Where the policy is delivered without requiring payment, the
presumption is, especially if it is a stock company, that a credit
was intended, and the rule is well settled where a credit is
intended that the policy is valid though the premium was not paid
at the time the policy was delivered, as where credit is given by
the general agent and the amount is charged to him by the company,
the transaction is equivalent to payment. [
Footnote 8]
Premium notes were given in this case, and it must be
Page 79 U. S. 304
held under such circumstances that the insurance company assumes
a reciprocal obligation where there is no evidence to impeach the
bona fides of the transaction. [
Footnote 9]
Conditions, it is sometimes said, cannot be waived even by a
general agent, but the decisive answer to that suggestion in this
case is that the policy, when properly construed, does not contain
any absolute condition that it shall not attach or be operative
unless the cash premium is first paid by the insured, and in the
absence of any such positive condition in the policy, it is not
necessary to enter upon a discussion of that topic.
Judgment affirmed.
[
Footnote 1]
13 Stat. at Large 501.
[
Footnote 2]
2 Story on the Constitution § 1770.
[
Footnote 3]
<|2 Pet. 448|>Parsons v. Bedford, 2 Pet. 448; 2
Story on the Constitution § 1770.
[
Footnote 4]
<|9 Wall. 127|>Norris v. Jackson, 9 Wall.
127.
[
Footnote 5]
Tancred v. Christy, 12 Meeson & Welsby 323.
[
Footnote 6]
<|1 Wall. 102|>Burr v. Des Moines Co., 1 Wall.
102.
[
Footnote 7]
Boehan v. Insurance Co., 35 N.Y. 131.
[
Footnote 8]
Goit v. Insurance Co., 25 Barbour 189;
Sheldon v.
Atlantic F. & M. Insurance Co., 26 N.Y. 460;
Wood v.
Insurance Co., 32
id. 619;
Bragdon v. Insurance
Co., 42 Me. 262;
Trustees v. Insurance Co., 18
Barbour 69;
S.C., 19 N.Y. 305.
[
Footnote 9]
Whitaker v. Insurance Co., 29 Barbour 319;
Post v.
AEtna Insurance Co., 43
id. 351;
Com. M. Ins. Co.
v. Union M. Ins. Co., 19 How. 323.
