JOHN HANOOCK MUT. LIFE INS. CO.
law will not charge him with contributory negligence, unless the danger was so glaring that no prudent man would have entered into it, even under orders from one having authority over him. 2 Thompson, Negligence, 914-6. , There may be cases in which a court can say, as matter of law, that a servant receiving an order from his master, or from a superior) is guilty of negligence in obeying it, but ,the present is not such a case. The law will rarely declare the act of obedience negligence per se. If the circumstances be such that men of ordinary intelligence may honestly differ as to the question of negligence, it must be left to the jury. Lalor v. Railroad Co. 52 Ill. 401; O'Neil v. Railroad Co. 9 FED. REP. 331. The demurrer to the complaint must be overruled,and it is accordingly so ordered.
See Hough v. Texas & Pac. R. 00.11
REp. 621, note.
JOHN HANOOOK MUT. LIFE
(Circuit Court, E. D. NetD York. June 17,1882.)
LIFE INSURANCE-TENDER OF PREMIUM-FORFEITURE FOR NON-PAYMENT.
In an action on a policy of life insurance to recover the amount of the policy on the death of the insured, the company cannot set up in defence a forfeiture of the policy by failure to payor tender the premium on a particular day named in the policy, where the policy-holder was misled as to the day of payment and tender by information derived from the duly-authorized agents of the company, whereby tender was not made till after such date.
Estes tt Barnard, for plaintiff. Blatchford Seward and Griswold
Deco8ta, for defendant.
WHEELER, D. J. This is an action upon a policy of life insurance, and has now, after verdict for the plaintiff and before judgment thereon, been heard upon a motion of the defendant for a new trial. The policy provided for the payment of a premium at the office of the company, "or to their agents producing the receipt of said com· pany," on or before the thirteenth day of July in every year during the continuance of the policy; that if any premiums should not be paid on or before the day when due, the policy should thereupon become forfeited and void, except as provided by the non-forfeiture law of Massachusetts; and that no person except the president or secre-
tary was authorized to make, alter, or discharge contracts or waive forfeitures. The premiums were paid to and received by agents pro. ducing receipts-for 1871 on July 17th; for 1872 on July 13th; for 1873 on August 1st; for 1874 on September 25th. The assured died March 13, 1879. The premium for 1875 was not paid on or before July 13th, and has never been received. If the plaintiff is entitled to have that premium treated as paid or tendered in due time, the non-forfeiture laws of Massachusetts would continue the policy so as to cover the death, otherwise not. The plaintiff's evidence tended to show that some time before !July 13th, in that year, the assured and the plaintiff, being about to leave home, arranged with Edson C. Chick, a friend, to see to this payment for them; that afterwards, but still some time before the day, Chick called upon the ag(>nts who had charge of the defendant's business for that state, a,nd who had pro. duced the prior receipts and received the payments, and who had the receipt for that premium, and inquired when the premium would be due, being ignorant of the precise day and having no means at hand to ascertain it; that the agent said that their safe was locked and another agent was gone out with the key, so that the information could not then be given; that he then took Chick's address, and told him, further, that he would inform him seasonably of the day; that he never did inform Chick or the assured or the plaintiff of the day; that on the eighteenth day of August the assured took the requisite amount of money and started for the office. of the agents, saying he would go there and tender the amount of the premium and returned saying he had 'dnne so; that controvetsy soon arose about non-acceptance of the premium, which was renewed after the death, in which the agents and officers of the defendant were fully informed that a tender on that day was claimed to have been made, and did not deny or dispute it. 'I'he defendant's evidence tended to show that notice was directed to be sent to the assured 30 days before the day; that no arrangement was made with Chick about informing him of the day; and that no tender of that premium was made. The defendant requested that a verdict be directed in its favor. The jury was instructed that if the assured and the plaintiff arranged with and relied upon Chick to see to the payment of that premium, and Chick applied at the office of the agents before the day for information as to the day, and the agent agreed to furnish it and did not, and Chick waited until the day, relying upon that agreement. so that in fact Chick and the assured and the plaintiff were deceived into letting the day pass without payment by the agreement of the agent to inform Chick and
SELVAGE V. JOHN HANCOOK HUT. LIFE INS. 00.
the failure to do SO, and the premium was in tendered 'within a reasonable time of waiting for the information, the plaintiff was entitled to a verdict; but that if they were not so deceived into letting the day pass without payment, or if the tender of the premium was not in fact made, or if it was not made within a reasonable time for waiting for the information, the verdict should be for the defendant. The motion is urged principally on the ground that there was not sufficient evidence that a tender was actually made to be submitted to the jury upon that point, a.nd because a verdict for the defendant was not directed. What the assured said that he was going to do or had done about making the tender would not' probably be sufficient to support the finding. What he said in starting with the money might be admissible as part of the res geatm,· what he'said in returning was a mere narrative of a past transaction, hearsay; and of no weight. There is no question, however, as to the admissibility of this evidence under consideration; the question is whether all that was put in was sufficient. The conduct of a party with reference to a claim made about which the party is called upon to act is always admissible in evidence and important; and when a claim was' made founded upon a fact, entirely, the existence of which was within the knowledge or reach of the knowledge of the party and not controverted,but proceeded about as if it existed, all this was not only competent but quite' strong evidence in' the nature of an implied admission that the fact existed. It is doubtless trne, as hs been well argued for the defendant; that . in case of such policies payment of· the premiums must with great strictness be made at the day, and 'that misfortune or accident, or indulgence at some times after the day, will not excuse from payment, or entitle delinquents to indulgence at other 'times. N. Y. Life Ins. Co. v. Statham, 93 U. S. 24; Kline v. N. Y. Lifelns. Co. 3 Morr. Trans. 110; Thompson v. Life Ins. Go. Id. 332. It is also true that these agents were somewhat special agents, with limited authority in respect to making new contracts and ing forfeitures in respect to the policy, and that notice of the limitation was carried to policy-holders by the policy itself. Still, the requirement of payment was not so absolutely strict but that the con- . duct of the defendant could change or modify it. Ins. Co. v. ton, 96 U. S. 572. Neither was the limitation upon the authority of the agents imposed by any statute or law, or otherwise, so that full authority might not be giveu by those entitled to confer authority, nor so but that it might be proved by course of dealing, or otherwise,
a.s such authority is usually proved. These agents were well authon ized to receive payment according to the terms of the policy itself, and to transact the whole of that business in behalf of the defenda.nt. Had they taken counterfeit money and called it good,probably no one would say that the policy was forfeited, although. that would be non-payment, if good money was .offered when the character of the bad was discovered and made known. Nor if they said that only part was due, and only what they said was due· was offered, would anyone probably say that the policy was forfeited because the whole was not offered? They were authorized to give all necessary inforbusiness, and the defendant would mation for the transaction of be bound to the correctness of such as they should give. As has been said on behalf of the defendant, the assured could look at the policy for information as to the day, and Chick could have inquired of him j but Chick had not the information at hand, and although he had other sources to go to for it, and although they might not be bound to give it, still he had the right to ask for it of them, and if they gave it they were bound to give it correctly, and if they undertook to give it they ought to do so. They were not asked to waive a forfeiture, for there was none j nor were they asked to make, alter, or discharge any contract; they were merely asked for information and undertook to give it, but did not, and misled those interested in keeping up the insurance. This was done in a matter entrusted to them, and the defendant, which entrusted them, ought to bear the consequences. Had the assured called the thirteenth of July and inquired,.and they had told him that the next day was the day, and relying upon that they had waited until the next day, and then been told it was too late, probably no one would say that the defendant was not estopped from claiming it was too late. That would be the same as this, except this was misleading for a longer time j but, as the jury have found, not longer than was reasonable to be relied upon. The motion is denied, and the stay of proceedings is vacated.
. aANSOHtl. GBER."
and another, as Ex'rs,
(hrcuit Oourt,8. D, NfIU) York.
EXECUTORS AS CO-REPRESENTATIVEs-REMEDY BETWEEN·.
Owing to the community of interest DO action lies at law by one executor or administrator against his co-representative, but the remedy is in equity. 80, where complainants, as executors, seek to recover a deficiency arising upon the sale of mortgaged premises sold for satisfaction of a mortgage made by defendant, a co-executor and one of the obligees iil the bODd, and mort_ gagee in .the mortgage executed by him:self; they are properly in a court of equity, and having;in their hands the funda out ()f which defendant's sions are payable for his services as therc'!'n retain the sum a8 his share, and apply it to reduce his indebtedness to'the estate.
BANKRUPTCy-CoMPOSlTION-RtGHTS OF CREDITORS.
A composition proceeding not carried out, Dor performailceof the resolution tendered by the insolvent, is an accord without a satisfaction; it Is not a discharge of the debt, and will not prevent a creditor from pursuing his action t9 recover hla' d e b t . ' . .
Butten, StiUman tl Hubbard, for complainants. Bristow, Peet,Burnett et Opdyke, for defendant. WALLACE, C. J. The complainants' bill is filed upon the. theory that they are entitled to invoke the jurisdiction of equity to set off the cross demands between themselves and the defendant. . The complainants and defendant were co-executors and trustees under the will of Jonathan D. Ransom, deceased, and upon several occasions the defendants borrowed a portion of the trust· funds and executed and delivered his three several bonds and mortgages therefor. The defendant was named as one of the obligees in the bond, and as one of the mortgagees in the mortgages executed by him. He failed to make payment, and the mortgages were foreclosed in the court of chancery of New Jersey, and the mortgaged premises were sold under the decree on the seventh day of October, 1879. The sale failed to satisfy the mortgages, and a deficiency arose,in the sum of $21,290.40. The bill alleges and the answer admits that under the decree of the surrogate of the city and county of New York, the accounts of the executors and trustees have been finally settled, and that they are authorized to retain, out of the funds remaining in their hands, the sum of $14,034, as commissions, of which the share'of the defendant is one-third, or $4,678.20; that the still remains un.. drawn; and that he refuses to apply such sum toward the payment of his indebtedness to the estate, and is insolvent. The defendant insists