
    Theodore H. Babcock, Respondent, v. Everett C. Baker and Others, Appellants.
    
      Insurance policy — when the premium is payable upon its delivery—its delivery without such payment is not a waiver.
    
    Where an application for the renewal of an insurance policy provides “for which we will pay you premium amounting to (§200.00) two hundred dollars,” and the policy issued upon such application states that the company, “in consideration of the receipt of §200, do insure,” etc., and, also, that if the company should cancel the policy "it “ will return to the assured a pro rata part of the remaining premium for the unexpired term,” and that if the insured should request its cancellation, the company, “after deducting the charges for inspection and the customary short rates for the time the policy has been in force, will return to the assured the remaining portion of the premium,” the premium is payable upon the delivery of the policy.
    'The delivery of the policy to the policyholders, without such payment having been made, is not a waiver of the company’s right to demand and receive the premium.
    Appeal by the defendants, Everett O. Baker and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th -day of November, 1898, upon the verdict of a jury rendered by -direction of the court.
    
      William B. Ellison, for the appellants.
    
      John Larkin, for the respondent.
   Barrett, J.:

This action was brought to recover the amount of an insurance premium upon a renewal policy issued to the defendants by the plaintiff’s assignor. The question is whether the premium was payable upon the delivery of the policy. The defendants insist that it was not, in the absence of an agreement to that effect. There was here, however, such an agreement, not in express terms, but clearly implied. The general rule upon the subject is stated by Hr. Phillips in his treatise on the Law of Insurance (Yol. 1 [3d ed.], ■§ 505) as follows: “ The premium on the whole amount insured is usually considered to be due on delivery of the policy for the whole voyage or other period of the risk in a marine ¡policy; for the whole ■or a certain period or proportion in a fire policy; and for one year in ¿advance in a life policy; though not always then wholly payable.”

In the case at bar it is manifest that the intention of the parties was in accordance with this general rule. In the application for renewal the defendants asked for a $25,000 policy “ for which,” they say, “ we will pay yon premium amounting to ($200.00) two hundred dollars.” This plainly meant, we will so pay yon upon delivery of the policy. It certainly did not mean at the expiration of the renewed insurance term of three years. This is emphasized by the policy itself, which reads that the company, “ in consideration of the receipt of two hundred dollars, do insure,” etc. It is not in consideration of the receipt of the defendants’ promise to pay the $200 in ftituro, but in consideration of its present and acknowledged receipt. Then, too, the policy provides that in case the company ■shall cancel the policy at any time, it “ will return to the assured a pro rata part of the remaining premium for the unexpired term; ” and in case the assured, under certain specified circumstances, shall request its cancellation, the company, “ after deducting the charges for inspection and the customary short rates for the time the policy has been in force, will return to the assured the remaining portion of the premium.”

It is entirely clear that the parties thus throughout contemplated payment of the premium upon delivery of the policy.

The appellants in their second point contend that, even if the premium was payable in advance, the unconditional delivery of the policy to the defendants was a waiver thereof. It was a waiver in the sense that the insurance at once took effect, though the premium was not actually paid, but it certainly was not a waiver of the company’s right to demand and receive its money. As the books say, the company thereby gave the defendants credit, but it was the kind of credit which a shopkeeper gives when he leaves his goods at a customer’s house without insisting upon cash on delivery. There was here no credit for any given time. There was simply a delivery of the policy, crediting the defendant with ability to pay upon demand the premium then due.

There is no merit in the defense or in the appeal, and the judgment should be affirmed, with costs.

Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.

Judgment affirmed, with costs.  