
    Jacob H. Wheatfield, Respondent, v. Byron A. Beal, Appellant.
    (City Court of New York, General Term,
    May, 1896.)
    Contract — Services — Waiver of conditions.
    A contract between the general agent of an insurance company and a canvasser provided that brokerages should accrue only as the premiums should be paid to the company. A policy procured by the canvasser was delivered to the insured without payment of the premium, and was subsequently returned to the manager by him for change to another kind of policy, which the manager agreed to have done. . On an examination of the insured, however, the manager refused to issue a new policy or return the old one on the ground that he was growing too fast. Held, that the condition in the contract was waived by the agreement to exchange the policy, and by the failure to assert nonpayment as a ground for the subsequent refusal:
    Appeal from judgment in favor of the plaintiff, and from order denying a motion for a new trial.
    Alexander & Green, for appellant. . '
    Secor & Page, for respondent.
   McCarthy, J.

This is an appeal from a judgment in favor of the plaintiff for three hundred and ninety-eight dollars and sixty-three cents ($398.63), and from the order denying the motion for a new trial.

The action is to recover commissions claimed to be due the plaintiff on the procuring of a policy of insurance on the life of one. David Haas.

Plaintiff and defendant on August 10, 1893, entered into a written contract, embracing many provisions, the following being material to the issues here presented:

This agreement, made the 9th day of August, 1893, between Byron A. Beal, of Brooklyn, county of Kings, and state of Hew York, party of the first part, general agent of the Equitable Life Assurance Society of the United States, a corporation of the state of Hew York, and Jacob H. Wheatfield, of Hew York, county of Hew York, state of Hew York, party of the second part, witnesseth:
That the said party of the first part doth hereby appoint the said párty of the second part to transact business upon the following terms and conditions:
The said party of the second part shall canvass, personally, and ■ through subordinates, for applications for assurance on the lives of • individuals, and forward the same through the said party of the first part to. said, society; and if the risks are approved, and policies issued by said society, The said party, of the second part .shall collect and forthwith pay over to the party of the first part the premiums on assurance -thus effected, unless otherwise directed by the said society. ■
“ The brokerage to be allowed by the said party of the first- part on premiums for the first year of assurance on policies issued through the instrumentality of the said party of the second part shall be as follows:
“ 7. Brokerages shall accrue only as the premiums are paid in cash to the said party of the first part, or said society. (Ho policy or premium receipt shall be considered- as settled for, nor shall any risk be assumed thereunder by said society unless the premium shall have been paid in cash to said society.) ” '

About January 5, 1895, the plaintiff, through bis efforts, obtained an application of one David Haas for a policy of insurance to the defendant. The amount of the policy was to be $10,000, and the premium $500. .

This was received by the defendant and acted on by the society, Who thereupon had David Haas examined by the. company’s physician, one Dr. Box. Later Haas was accepted, and the policy of insurance issued to him. It was, however, handed to the plaintiff, who delivered it to him. The premium was' not collected by plaintiff at this time, as Haas expressed a desire to have the policy already delivered to him changed to another kind of a policy.

Tbis was communicated to the defendant, the plaintiff taking Haas to the defendant, and he agreeing to change the same. That thereupon -this policy, the property of said Haas, was handed to Said defendant, whose office was in connection with the Equitable-Insurance Company’s office. Haas was, some time later, again examined.' The defendant afterward, on demand, refused to grant the new policy, just applied for, and also refused to return the one which had been granted and delivered, on the specific ground that the said Haas was growing too fast.”

Haas, was, at that time, about eighteen or nineteen years old. The defendant now refuses to pay these commissions on the ground that the plaintiff should not have delivered the policy to Haas before he collected the premiums, and that his commissions depended on the payment to the defendant or to the society.

We think the defendant waived these conditions, and that there is sufficient evidence to sustain the verdict. Underwood v. Farmers’ Joint-Stock Ins. Co., 57 N. Y. 500; Goodwin v. Mass. Mutual Life Ins. Co., 73 id. 480.

AVhen the defendant agreed to give Haas a different policy, to-wit, “ Endowment,” in exchange for the one he then had, the defendant made no objection on the ground of the’nonpayment of the premium, nor did he make any demand for the same, and, finally, when he refused to return the same, he did not object to the giving of the policy on the ground that the premium had not been paid.

For, if that were so, Haas could have paid it or had his father pay it, or plaintiff could have paid it for him.

It was in evidence that, in some cases, the premium had not been collected within a certain period, and that then the plaintiff paid it without objection.

Haas never absolutely surrendered or gave up the first policy of insurance.

He wished to change it from an “indemnity bond,” to an endowment policy, if the plaintiff would change it, and if he would not, he was satisfied with the one he had.

Hpon the- defendant agreeing to change he handed it to the plaintiff.

This was, therefore, conditional, and, upon the refusal of the defendant to' change it, Haas was entitled to a return of the same.

The case was properly tried and fairly submitted to the jury and we find no material error.

Judgment is, therefore, affirmed, with costs.

Corn.an .and Scotchman, JJ., concur.

Judgment'affirmed, with costs.  