ullfortunate, for, then we have a parol contract of insuranee. have already seen, all the facts material to the risk were known to the insurance company, and it agreed to insure the plaintiff on hiscMgo of salt for $45. The premium was paid, and the agreement was complete in all its parts before any effort was made to reduce it to writing. It is now well settled that contracts of insurance may be made by parol unless prohibited by statute. Relief Ins. Co. v. Eggleston, 96 U. S. 574; Sanborn v. Fireman'8 In8. Co. 16 Gray, 448. The demurrer is overruled.
GARDNER 17. UNION CENTRAL LIFE
(Circuit Court, S. D. Ohio. December, 1880.)
1. LIFE 'lNSURAROE -
INTEREST UPON LoANS -PREMIUMS-POLICY CoNSTRUCTION-FoRFEITURE.
Where a paid-up policy for $1,500, issued on the Burrenderof a previous recited as a part of the consideration for its issuance "the annual interest of $24.18 to be paid on or before the eighth day of October in every year during the continuance of this policy, and of all loans outstanding " thereon, and acknowledged the receipt of a sum entitling the assured, under the original policy, to a pl,lid-up policy for 1,1100, the following indorsements appeared upon the policies: On the original, "Loans out, $403;" and on the paia.up policy," Loans outstanding on Oint. Mutual polley 1789, $103 i" and there was no other evidence as to how the amount of interest was arrived at, or tl:e condition in which the principal was held. The policy provided that the non-payment of t, JY!'einium,q,' '' '' '' on or before the day upon which they became due," forfeited the policy; and the annual interest was not paid, llr-?d, that the sum of $403 was a loan, and that the annual interest sl ipllJated for was not a' premium, the non-navment of which would forfeit the policy. ' ,
The policy sued on was a paid.up endowment policy. It matured on the twenty-eighth of October, 1879,dl,tring tho life of the assured..
'*Reported by Messrs. Florien Giauquo and J. C. Harper, of the CIncinnati har.
UNION CENTRAL LIFE INS. CO.
The case was submitted' tathe ,court on an agreed statement of facts. From that it appeared that nO interest had been paid after the paid-up policy was issued. The other facts appear in the opinion. L. H. Swormstedt, for plaintiff. Matthews, Ramsey d; Matthelc8,for defendant. SWING, D. J. This is an action brought by the plaintiff upon a policy of insurance issued by the' defenc1antto the plaintiff on the thirtieth day of December, A. D. 1872. The policy says that "this policy of insurance witnesses that the Union Ce'ntral Life Insurance Company, in consideration of the surrender of Cincinnati Mutual policy 1789, the representations made to them in the application for this policy, and the sum of $1,598.70 to them in hand paid by Catlierine, wife of Thomas J. Gardner, on policy No. 1789,'paid on the non-forfeiture plan, and which policy and diVidends are this day surrendered, and by agreement thereon replaced by present policy, and of the annual inte'rest of $24.18 to be paid on or before the twenty-eighthdafof'October in every' year during the continuance of this policy,and of all loans outstanding upon this policy, do insure the life of Thomas J. Gardner in the amount of $1,500, without participation in profits, for the term of seven yeais, ending on the twentyeighth day of October, 1879." i r,., The policy contains a clause that it is issued and a:ccepted upon the.:express conditions contained upOn 'the back orthe policy. The third ofaaid conditions is that,:tlIe' premiums" should be paid on or before the day 'upon'w'h'ich 'they 'became due at the office of said company in Cincinna'ti, or to their duly authorized agents, whentb'ey producerec'eipts signed by the president, vice-president,or secretary.i' And "the" eighth condition provides that in case of the violn:tion of the foregoing condition;,· or any of· them, - , . '. '. ' tl:J.is policy should become void; and the ninth cOlidition is that Shodld this policy become null and void byreason:'6¥'the"viblation of the foregoing conditiobs, or any of them, made thereon shall be forIeitedtosaid company: :On back of said policy is "Loans on policy N8.;" and in figures
"10,148;" and below it, in print, "Doll., and in writing, "Dec. 30, 1872, loans outstanding on Cint. Mut. policy 1789, surrendered, $403. There is no proof in the case which shows what payments had been made by the assured under the policy surrendered, but by the terms of the policy it was provided that a paid-up policy should be issued upon its surrender for an equitable sum, which should be, for three years' premiums, at least $1,500. The date of that policy was October 28, 1869, and the date of the present was the twentieth dlliyof December, 1872; but payments of interest are provided for from the twenty-eighth of October, 80 that it is fair to say three years' premiums had been paid when this policy was issued. And, besides, the annual premiums upon the first policy were $532.90, and the amount acknowledged as received in this policy is $1,598.70, which is the amount of three years' annual premiums. There is no testimony in the case, outside the policy of insurance, which shows how the sum of $24.18 interest provided to be paid was arrived at, or in what condition the principal upon which this interest was to be paid was held by the Cincinooti Mutual. There is upon the policy of that company a pencil memorandum of "Loans out, $403," and the indorsement upon the policy in suit hereinbefol'e referred to. By the agreed statement of fact it is shown that the Union Central Life, by an agreement with the CinciIUlati Mutual, assumed the liabilities of said company upon all its outstanding policies, and that in pursuance of said agreement the policy in suit was issued. The, issuing of the new policy must, therefore, be treated as if the Cincinnati Mutual had issued to the parties a paid-up policy for the amount specified, for this policy is in fulfilment of their contract. If, at that time, the Cincinnati Mutual held the notes of the assured for a part of the annual premiums of the three years, and instead of requiring their payment them to the Union Central Life, who, in issuing the new policy, instead af requiring their payment, agreed to treat them as & loan upon
RICARD 'D. INHABITANTS OF TP. OF NEW PROVIDENCE.
the policy, requiring the assured to pay interest annually upon them, it certainly could not be claimed that such interest should be treated as a premium to be paid upon the paid.up policy. Griggsby v. Ins. Co. 10 Bush, 310. It would seem clear that the parties to this paid-up policy regarded this sum of $403 as a loan, and they made no provision for the forfeiture of the policy for the non-payment of the inter· est thereon; and. it would be a strained construction to say that the interest provided for in the body of the policy was a premium, within the letter or spirit of the third condition, the non-payment of which would make a forfeiture of the policy which had been paid up. This construction works no injus. tice to the defendant, for its debt, with the interest, is a lien upon the policy; it must be deducted, and the plaintiff reo receives only.the balance, which .seems his equitable right. Ins. Co. v. Ducker, 95 U. S. 269. Judgment for plaintiff for the amount of the policy, less the loan of $4.03, with interest thereon.
INHABITANTS OF THE TOWNSHIP OF NEW PROV
(Circuit OO'UlT't, D. New Jersey.
January 26, 1881.)
H 103-4, 110.
The Practice Act of the state of New Jersey (sections 103-4) reqUlres the plaintiff to file his declaration against the defendant within 30 days after being returned" summoncd," and the defendant his plea within 30 days after the expiration of the time limited or granted for tiling the declaration; and provides (section 110) that if any party shall not file his plea":;ng in the cause within the time required by law, and shall file the same after the expiration of such time, he shall give the adverse party notice in writing of the time of filing such pleading, and that the adverse party shall not be requirlXi to plead in reply thereto until ruled so to do. Held, under such statute, where a declaration was not filed within the time required by law, but within the time in which the defendant consented that it might be filed, that the defendant was not reqUired to plead until so ruled by the· plaintiff.-[ED.
In Debt. Motion to set aside judgment. v.5,no.5--28