
    Anna B. Stewart, App’lt, v. Union Mutual Life Insurance Company, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 16, 1894.)
    
    Insurance—Life—Forfeiture—Waiver.
    Where a policy provides that only the president or secretary, in writing, has power to waive a forfeiture, an agent cannot waive compliance with a provision thereof, unless the company has extended his authority.
    Appeal from a judgment dismissing the complaint.
    • Samuel B. Paul, for app’lt; Sawyer & Getty, for resp’t.
   Van Brunt, P. J.

This action was brought on a policy of insujance, in the sum of $5,000, on the life of Joe H. Stewart, for the benefit of the plaintiff. The defendant was a corporation of the state of Maine, having its principal place of business at Portland, in that state, and having an office for and transacting business in the state of New York. The policy was duly executed and sent by the company to one John M. Crane, who was claimed by the plaintiff to be the manager of the defendant’s business in the state of New York. The policy was delivered by Crane to the insured in April, 1890, and a note was givqn for the premium. On the first of May, 1890, a letter was received from the cashiér in the New York office by the insured as follows:

“Your note for $123.10, given in settlement .'of premium due policy Ho. 93,094, will be due and payable on the 31st inst at your office, where it will be presented at that date.

It would appear that a check had been given for this note by the insured; for oii the 7th of August, 1890, a letter .from Crane was sent to the insured, as follows:

“I have deposited your check for $123.10 for collection to-day. Kindly see that it is protected.”

On the 9th of August, Crane wrote again:

“The bank has returned your check, marked ‘Hot good.’ Iam sorry for this, as it places me in •& somewhat unpleasant position.

I feel sure that you must have overlooked the matter, and will fix> it up as soon as your attention is drawn to it.”

The insured wrote on the 12th of August that he had been very sick in bed since Wednesday, and hoped to be out by the last of the week, and would at once provide for the check, to which Crane replied that he was sorry to hear of his being ill, and trusted he would soon be better. Instead of getting better, the insuredAied, and the check was never paid. Upon suit being brought upon this policy, the defendant set up as a defense, that,' by the terms of the application and policy, the failure to pay the premium in cash upon the delivery of the policy avoided the same ; and the question presented is whether there was any evidence upon which a waiver of the terms of the application and policy could be found. It appears that by the application, which was made a part of the policy, it was provided that such application should constitute— “Ho contract of insurance "until a policy shall first have been is- ' sued.and delivered by the company, and the first premium thereon paid, during the life of the party proposed for insurance, in the same condition of health as described in the application.”

The policy provided that the same was to issue upon and subject to the condition, among others, that:

“All premiums are due at the office of the company in the city of Portland, Maine, at the date named in the policy; but, at the pleasure of the company, suitable persons may be authorized to receive such payments at other places, but only on the production of the company’s receipt therefor, signed by the president, secretary, or assistant secretary. No payments made to any person, ■except in exchange for such receipt, will be recognized by the company, or be deemed by either party as a valid 'payment. No agent, nor any other person, except the president or secretary, in writing, has power to alter or change in any way the terms of this contract, or to waive forfeture.”

It also provided that the first year’s premium, of $123.10, should be paid at the home «office on the delivery of the policy.

There is no question but that the premium was not paid at the time of the death of the insured. But it is urged that a credit had been extended in the payment of the premium upon this policy, .and that, therefore, it had become a binding contract between the parties ; and various cases are cited to support this proposition. It is undoubtedly true that notwithstanding the provisions in a policy of this description, where, from the course of business between the parties, authority to waive this condition may be inferred to rest in any one of the officers or agents of the company, a waiver by such officer or agent is binding upon the corporation. But the difficulty about the plaintiff’s cause of action, in the case at bar, is that there is no evidence whatever of any authority upon the part of Crane to waive the conditions of the policy. It is true that the jury might find that he was the manager of the business in New York; but it is equally true that, by the very terms of the contract itself, no one except the president or secretary, in writing, had power to alter or change the terms of the contract, or waive any of its conditions. And there is no evidence that any practice had obtained by which any person had the right to assume that- these provisions in the contract had been departed from, in the manner in which this defendant conducted its business ; and it would seem from the rule laid down in Conway v. Phœnix Mut. Insurance Co., 140 N. Y. 79; 55 St. Rep. 571, no ground of recovery appeared from the plaintiff’s proofs. In that case it was held that no different rules apply to contracts of insurance than from those which obtain in the case of other contracts, and that where the parties have deliberately and formally executed a contract for the purpose of defining their respective engagements, and of securing due and exact performance thereof, they should be held to the same, and that the only cases in which recoveries have been permitted contrary to the provisions of the contract are where it has been shown that there has been such a usuge or course of business, or such consent, express or implied, as to justify the inference that the insurer had extended its agent’s authority, and thus modified the restrictions contained in the policy, In the case at bar, there is no évidence whatever of any usage or course of business upon the part of the defendant, nor of any consent to the doing of that which the manager did by accepting a note, instead of the cash, upon the delivery of the policy. It is undoubtedly true that the proof might be of such a character as to show a waiver, of the conditions contained in the policy and the application therefor. But in the absence of such proof the jury cannot be allowed to-speculate upon the fact that such might have been the case. We think, therefore, -that the court was correct in dismissing the complaint, and that the judgment should be affirmed, with costs.

All concur. 1  