LII!'lll &fANNUITY INS. CO.
chancellor, (Sir THOMAS PLUMER,) contains a different doctrine, all I can say is ldo not acceMto itsatithoritYi and I fall back uppn the more intelligible and reasonable doctrine of Lord HARDWICKE in Pcrpe v. Our/., 2 Atk.342, and Lord APSLEY in the case of v. Stanh.crpe l 2 Amb. 737, and of Lord Keeper HENLEY EDEN in the caseor.Duke of Queen8bm-y v. Shebbeare, 2 Eden, 329, which Lord ELDON has riot scrlipledto hold to be binding authorities upon the point in Gee v. PritChard, 2 SwaDst. 403." If this be the law, where the right of publication is in question, assuredly it is not less so in a case where third persons, having obtained possession of private letters, are seeking to make them the subject of sale and purchase, without the consent of the writers; Nor do I think the court should hesitate to apply the principle here,although the writers are nottheniselves interposing for equitable relief, since, if the property right is yet retained by the writers, no lawful sale of the letters can be made. In Eyrev. Higbee, 22 How. Pl'. 198,-'-decided by Judges GOULD, MULLIN'.; 'and INGRAHAM, an concurring,-it was adjudged that letters in regard to matters of husiness or friendship, although they pass to ap-executor or administrator,arendt assets in their hands, and cannot be mitdethe subject of sale or assignment by them. This judgment olthe oourtwltS made expressly to rest upon the principle that "the property which. the rElceiver of letters acquires in them is not such a property as the holder must have in order to make them assets." Motion for a new trial overruled.
HARTFORD LIFE & ANNUrrY INS. Co.
(Oirouit Oourt, E. D. MU8OUri, B. D. October 14, 1887.)
When. a policy of life insurance provides that payments of premiums should be made on a given day or days, and that, in default of such payment at the time specified, the policy should be void, but the company issuing such policy afterwards pursues a practice of premiums after the time of payment specified in the policy, without insistlUJ1,' upon the forfeiture. then such practice of ,r eceiving premiums overdue operates as a waiver of the right of forfeiture. ' .' A receipt of an insurance company for an overdue premium contained the following conqition: "It being understood that the receipt by this company of payments after date due is only on condition that the member is alive, and in good health, at the date of such receipts." Held, that such receipt, even though it be for an assessment paid after it was due, does not tend to show a waiver by the company of its right of forfeiture for non-payment of dues at maturity, except in the event that the assured is alive and in good health when payment is tendered.
Plaintiff, in an action on a policy of insurance, was under no obligations to make out formal proofs of death of her intestate alter the insurance company had advised her that 'they did not recognize the policy as being in force, and had refused payment on that
IN'l'EREST-ON INSURANCE POLICY.
In estimating damages in an action on a policy of iUl\urance, interest may ;be computed on the face oftha policy from the time it was payable.
D.:&ynolds, for pla.intiff. Krv/tii &: Jrmas, for defendant.
J., (charging jury orally.) This case lieswithjna very narrow under the view which the court takes of it, and hag taken from beginning. The suit is on six policies, or, as they are termed, "certificat,es of membership," issued by the Hartford Life & Annuity InsuranceCompanyto E. J. Unsell. It seems that these policies contemplated paYIllents of three kinds, to be by the holder of the same. (1) He was required to pay $10 on each $1,000 of insurance taken out; to make up what is known as a trust or guaranty fund. With that class of payments you have nothing to do, as no charge of a default in such payments has been , (2) As losses occurred, the holder of these policies of insurance Wag required to stand his pro rata assl:!ssment, to makeup a fund to pay such loss,es. You have nothing whatever to do with that class of payments. For aught that appears, those:payments were all duly made. The' policy wso required the assured to pay $3 per annum for each thousand dollars of insurance, which went to make. up a fund to pay the operating expenses of the company, and those payments were to be made in advance. The policy contemplated that those annual dues, as they are called, should be paid for the full year in advance, or paid monthly in advance, or quarterly in advance, just as the parties might agree. The controversy here is over the payment of those annual dues. One . condition of.the policieS is as follows: "The holder of this certificate further agrees and accepts the same upon the express condition that if either 'the monthly dues. asSessments. or the payment of the $10 towards the safety fund as hereinbefore required. are not paid to said company on the date due, then this certificate shall be null and void, and of no effect, and no person shall be entitled to damages or the recovery of any moneys paid for proteotion while the certificate was in force, eitherfromsaid company Or the trustees of the safety fund." Now, the answer in this case states that the annual dues were all paid up to and including the thirty-first of December, 1885; that the annual dues which matured on the following day-that is, January 1, 1886, -,-were not paid, and were not paid during that month; and that the assured died on the twenty-eighth of January, 1886; and that, by virtue ofthe provi$ion of the policy above stated, the policy was null and void, and of no effect when he died. . That is; a perfectly good defense to this action, if it is true, and it is conceded by the plaintiff that the dues that matured on January 1, 1886, were not paid. But the plaintiff seeks to escape from the forfeiture of the policy under that condition, by saying that the particular provision of the policy which I have Just read to you had been waived by the defendant company, and for that reason the non-payment of the
UNSELL V. HARTFORD LIFE &. Al'ONUITY INS. 00.
dues on January 1,1886, did.notwork a forfeiture of the policy, and the sole q\lJ*ltionthat you must determirre is whether there was or was not such a waiver. There is a rule of law applicable to cases of this kind, and it is, in substance, as follows: When a polley of life insurance provides that payments of premiums shall be made on a given day or days, and further provides that, in default of. the payment of such premium on the day or days specified, the policy shall therevoid, and the company issuing such policy upon become void, or afterwards pursues a practice of accepting premiums after the time of paymentspecifie<i in the policy, without insisting upon the forfeiture, then such prlloctice on the part of the company, of receivi ng premiums which are overdue, operates as II. waiver of the right of forfeiture. This rule rests upon the ground that the company by its conduct, in accepting premiums after they are due, has led the insured to believethat it will not insist on a forfeiture if the premium is not paid on the day that it is due. and that it does not intend to exercise that right, and, for that reason, that it would be unjust, under such circumsiances, to insist upon a forfeiture for non-payment of the premiums, after the assured, by the practice of the company, has been lulled into a state of fancied security. It is that rule which the plaintiff invokes to recover on these policies, and she must stand or fall according as she brings her case within that rule. She has offered in evidence a number ofreceipts for annual dues under the policies in ..suit, covering a period from October 10, 1881, down to December 31, 1885. The purpose ofthis proof is to satisfy you that the defendant received annual dues from the deceased after they were due, on so many occasions, or under such circumstanceA, as to warrant you in finding, aecording to rule last stated, that it waived its right to forfeit the policies in suit for the non-payment of annual dues at maturity. These, then, are the questions which you will have to determine: (1) Did the defendant receive annual dues after they feU.due? al).d (2) did the defendant receive annual dues on so many occasions, or under such circumstances, as would fairly warrant the assured in believing that the defendant had abandoned, or did not intend to insist upon, a forfeiture of the policy, even though annull:l dues were not paid at maturity? To warrant you in finding that the defendant waived its right offorfeiture for non-payment of dues at maturity, the plaintiff must satisfy you (and the burden is upon her to show) that the defendant received annual dues after maturity on so many occasions, or under such circumstances, as would fairly.and reasonably induce the deceased to believe that the company did not intend to insist upop its right of forfeiture, even though the annual dues were not paid at maturity. If the plaintiff has succeeded in satisfying you that such was the case, then you must find. in her favor. If she has failed to satisfy you of such fact, then you should find for the defendant. There is a class of receipts before you, gentlemen, being receipts for dues that were paid apparently after maturity, which cannot, in any view of the case, be regarded in themselves as .establishing an absolute
ver,. and you will not so 'regard,them. . I refer' to. It class.of. receipts whicbcotitain acertriin'bondittbn. I will read you one ofthereceipts:as 8.'sample.It is asfollaws: . "HARTFORD, CoWi., January 12,1884. '. of E. J:1.-qp.sell IDpptbly dues on 24,981 to 24,985, fiveqoIlars; due!! January 1, 1884, to. May 1, 1884, in .tlj.e safety fund depart. . . '. Thisi.s the, c)ausetowhiyh, I your a.Uentic:m: "It beingnndersfuodthat the receipt by this company of payments after date'due iii only on condition that the member is alive, and'in good health, at the date of such receipts. . [Signed] "STEPHEN BALL, Secretary." Now,gentlemen j a receipt of that kind, even thpugh it be for dues paid after they were due, (and it purports to be.for such dues,) does not tend to show an absolute waiver: by the company of its right of forfeiture, and these receipts were not admitted by the court on that theory. Receipts in this form only tend to show that the company would accept paymerrtsatler due, and after a ' right of forfeiture had accrued to it, in the event that the 'member was alive and in good health. They were admitted by the court because I deemed it to be the fairest course to lay all the receipts before you, (those of this form as well as those in other forms,) iu order that you might see the whole course of dealing between the parties; with reference to ,the payment orannual dues; and be the better able to determine intelligently the question of waiver which is hereby submitted to you. Now, gentlemen, if on the testimony in the case you are of the opinion that the plaintiff has failed to make out a waiver by the company of the right of forfeiture, and you will apply to the determination of that question the' principles I have defined,then you will find a verdict for the defendant. . If ,the plaintiff has established such waiver to your satisfaction,thenyou will find in her favor. If you find in her favor, you will have to assess her damages. It has transpired on the trial that after the death of·her husband she communicated with the company, and asked for forms to make out proofs of loss, rand was informed that the company did not recognize any liability to her. .In estimating the damages in the case,you may <Jompute interest on the face of the policies from a date 90 days after the date of the communication which she received from the company, to the effect that they did not recognize any liability under these poliCies, as the policies. were payable 90 days after the receipt of proofs of loss. Plaintiff was under no obligations to make out formal proofs of death after the company had advised her that they did not recognize the policy as being in force, and had refused payment on that ground. .iThElre are two counts in the petition, and you will have to assess the damages under each separately, and state the damages separately in your verdict. In my judgment, under the proof in·' this case, if you find for the plaintiff, she will be entitled to recover $5,000 under the first count, and $5,000 under the second, together with interest, computed in the man-
· 'BLOCH". PRICE.
aer t have directed. There is no evidence in this case to warrant you in imposing 10 per cent. damages as' a penalty for a vexatious refusal t& pay the polidy, and you will· not award any such 'penalty, even though you should be of the opinion the plaintiff is entitled to recover.
PRICE and others.
October ,14, 1887.)
(Olrcuu. OOurt, E. D. Mi88ouri, E. D.
JUDGMENT-IN FAVOR OF Co-DEFENDANT-RE8 AnJUDICATA.
'In an action in a :MlsBouristate court against four defendants, judgment was .rendered In favor.of one of them and against .the others, as is permitted by. Code Proc. Mo. § 8678. The latter made a motionfor a new trial, and in arrest of judgment, which was overruled in the court below, but sustained on appeal on' the ground ofinsufilcient' evidence. The action was subsequently dismissed in the state court,· but recommencEld in the federal court againstaU four defendants qn same cause of action. He'(d" that the former ,- judgment, as far as it related to the defendant In whose favor it was rendered, Dot having 'been appealed from,wasa bar to the action against him in the federal,court··
.Mills &:Flitcrajt, for plaintiff. O. M. Naptpn, for defendants.
THAYER, J., (orally.) In the case of A. Bloch against W'I1liam M. pr.we, Stephen G. Price, Darwin W. Marrtl4duke, and Leslie Marmaduke, iug the alleged firm of Price, Marmaduke & Co., Darwin W. Marmaduke has filed a plea of former adjudication, and the testimony relied upon to support the same was submitted the other day for the purpose of having the court determine, in advance of the trial, whether the tes-' timony was sufficient to support the plea. I have looked into the record of the former case, and I find that it was a suit in which the four defendants last named were sued on what was alleged to be a joint contract; .tha,t>. on the trial, of the case in the state court, ajudgment was entered in: favor of the defendant Darwin W. Marmaduke, and against the other defendants; that it was so entered in accordance with section 3673 of the Missouri Code of Procedure, which permits judgment to be given "for or against one or more of $eVe-fal plaintiffa, andJor or against one O'fmore :of 8everal d<je'lU1ant8." I find from an examination of the record that no motion fora new trial, or in arrest of judgment, was filed with respect to the judgment in favor of Dlj.rwiu W. Marmaduke, and no appeal was taken from the Ndgment in his favor. The record shows that a motion for a new trial and in arrest of judgment was filed with respect to the judgment against the other defendants, and, the same having been overruled, that an appeal was taken,by said other defendants from the them, and tbat.the judgment was reversed by the appellate conrt. But