
    Sally Ann Howell, plaintiff, vs. The Knickerbocker Life Insurance Company, defendants.
    1. A policy of life insurance for a year, which contains a clause continuing it until the decease of the insured, provided, he should pay to the insurers annually, on a day named, a specified sum; and a condition that no insurance (whether original or by renewal,) should be considered as binding until the actual payment of such sum, ceases to be binding upon the insurers, in case of a failure to pay the premium so fixed for renewal, on or before the day on which it is made payable by such policy.
    2. Parol evidence of a practice or agreement on the part of' the insurers, to receive payment of premiums, after the day on which they became due, (even if admissible,) will not suffice to vary the written contract.
    3. Such a custom on the part of the insurers, or their verbal agreement to that effect, will not apply to premiums not offered to be paid until after the death of the insured.
    4. Where a premium, under such a policy, became payable on the 15th of July, but on the morning of that day, before it had been paid, the insured was struck with apoplexy or a paralysis, and continued in a dying condition until the next day, when he died; MeId, that the death occurred at a time not covered by the policy; that the insurance could not be continued under the policy beyond the day on which the annual premium was rendered thereby payable; and was neither revived nor renewed by a tender of the premium after the death of the insured, though made within a few days after the day of payment.
    (Before Robertson, Ch. J. and Garvin and McCunn, JJ.)
    Heard February 10, 1865;
    decided May 27, 1865.
    Action on a policy of insurance on the life of George E. Howell, for $5000, effected on the application and behalf of the plaintiff, and hearing date July 15th, 1853. The insurance was “ for the term of one year, commencing the 15th day of July, 1853, at twelve o’clock, noon, and ending at twelve o’clock, noon, on the 15th day of July, 1854.” The policy contained this clause : “ And it is hereby agreed, that this policy may be continued in force, from time to time, until the decease of the said George E. Howell, provided that the said assured shall duly pay, or cause to be paid to the said company annually, on or before the fifteenth day of July, in each and every year, the sum of one hundred and thirty-eight dollars and fifty cents.”
    
      Among the conditions annexed to the policy are the following :
    
      “2. No insurance, whether original or for which a renewal receipt has been issued by the company, shall be considered as binding until the actual payment of the premium.”
    3. Every contract of insurance, whether original policy or receipt for the renewal thereof, to be binding upon the company, shall first be signed by the president and secretary, and sealed with the seal of the company.”
    The complaint avers an application on the 16th day of May, 1853, by George R. Howell, the husband, on behalf of the plaintiff, for an insurance upon his life ; the delivery of the policy, a copy of which was annexed. That there was only one contract of insurance, which was to insure the whole term of the life of G. R. H.' for the annual premium of $138.50, and continued binding and valid up to, and at the time of the death of G. R. H. That it was well known to the defendants that the whole business of effecting the insurance, and continuing the same by the payment of the annual premiums, was conducted by the husband, and it was understood that he would be looked to for the payment of the premiums, as- if he had taken the insurance in his own name. The plaintiff never had any knowledge of the terms of the policy, but relied solely upon her husband to keep the same in full force, who paid the annual premium punctually on the 15th day of July in each year, and the same was fully paid down to twelve o’clock, noon, of the 15th day of July, 1862. That at or about half past ten o’clock on the morning of the 15th of July, 1862, her said husband “ was struck with apoplexy and paralysis, which rendered him speechless, and totally unable to conduct or speak of any business whatever, and he so continued all the while sinking, until the next day, when he died.” That the husband had no intention of forfeiting the insurance, but intended to pay the premiums before twelve o’clock, and had made a memorandum of that as one of the things to be done, and while there was yet time to do it, was struck down as stated, “ and could not, therefore, and did not complete the work of paying the said premium which he had intended to do.” That the plaintiff was not aware of the non-payment of the premium until about the day of the burial of her husband. Immediately thereafter, and within five days from the day when the same became due, she caused the same to be tendered and • offered to the defendants; that the defendants were notified of the death and of the facts, yet they refused to receive the premium, or recognize the validity of the policy. That it had been and was the usage and custom of the defendants to allow to persons for whose benefit insurances were effected, certain days of grace beyond the time limited for the payment of premiums, and to receive the same after they became due and treat the policy as valid, and that the policy in suit was issued and the insurance effected upon and in reference to such usage, and moreover it was “ understood and agreed ” that if any thing should happen to prevent the payment of the premium on the day, the policy should continue a reasonable time to allow the payment of the premium. That an accident did befall the husband, which prevented the payment of the premium; that he had made a bona fide commencement to pay it, and would have completed it if he had not been so struck down with apoplexy ; that he was prevented from paying the premium by an “ act of God,” and the premium was tendered and offered within a reasonable time thereafter. That her husband was “ struck with death on his first attack, and continued in a dying condition until the next day, when he breathed his last.” That the policy was in full force up to and at the time of the death of the husband. That proof of death and of interest were furnished the defendant as required by the “ terms and conditions ” of the policy, and that all the conditions of the policy were complied with. The defendants were requested to pay after the expiration of ninety days after notice of the death, and refused, &c. For a second cause of action the complaint alleged the making of the like policy and the payment of seven annual premiums prior to October 31, 1860, by reason whereof the plaintiff became entitled to a reversionary dividend on the premiums paid. That on the 15th day of January, 1861, a dividend of $787 was declared on the said policy, payable on the termination thereof, and a certificate was issued to the effect that the holder of the policy was entitled to said dividend, ‘‘payable only upon the termination of the said policy by the death of the assured, and not to be binding upon the defendants if the policy was in any way forfeited.” It then averred the death of the husband on the 16 th of July, 1862 ; that the plaintiff was the holder and owner of the policy ; that all the premiums had been duly and legally paid and offered to the defendants ; and that said amount became due and payable to her on the 16th of July, 1862. It also averred the non-payment thereof, and demanded judgment for $787 and $5000, less the premiums which became due J uly 15th, 1862, making $5648.50, with interest from the 4th of November, 1862.
    The defendants, by their answer, admitted the making of the policy, and that the premiums were paid annually thereon, on the 15th day of J uly of each year, for eight consecutive years, continuing the policy down to, and ending with the 15th of July, 1862, and denied every other allegation of the complaint.
    The action came on to be tried before Garvin, J. and a jury, on the 25th day of April, 1864. The plaintiff’s counsel opened the case “ by stating the facts set forth in the complaint, and stating that the plaintiff would prove the truth of the same.” The defendants’ counsel thereupon moved to dismiss the complaint, on the ground that the facts stated and so proposed to be proved, would not constitute a cause of action. The motion was denied, and the defendants excepted. In the progress of the trial several exceptions were-taken to the rulings and decisions of the court, admitting proof of facts proposed to be proved by the plaintiff. In most instances, proof of the facts proposed to be proved was waived by the defendants, and the facts admitted for the purposes of the trial, subject to the objection and exception. At the close of the trial, the defendants renewed their motion to dismiss the complaint, which was again denied, and the defendants excepted.
    
      The jury, thereupon, under the direction of the court, rendered a verdict for the plaintiff, “ subject to the opinion of the court upon a case to be made by the plaintiff, containing the aforesaid objections and exceptions; and the court further directed that such objections and exceptions be heard in the first instance at the general term.”
    
      E. H. Owen and S. P. Nash, for the plaintiff.
    I. The policy insured the life of George R. Howell, not from year to year, but for the whole term of his life, and by the true construction of its provisions, it was not forfeited or avoided by the omission to pay the annual premium on any 15th of July. The premium simply became then due and payable, and constituted a debt against the assured.
    (1.) The policy was a life policy, with participation in profits. The undertaking was to pay “ to the assured all loss under this policy not exceeding the sum of $5000, within ninety days after due notice and proof of the death of George R. Howell.” That is, of his death at any time, not “ of his death within one year,” as should have been the undertaking, for a policy from year to year. (See form in Ellis on Ins. 101. Law Lib. vol. 4.) The provisos to defeat this undertaking were, death upon the seas, or beyond certain limits, entering the military or naval service, death from certain named causes, untruth of statements in the proposals, and misrepresentations in reference thereto. These only are introduced specially as matters of proviso and condition; there is no provision that the policy shall be avoided by any delay in the payment of the premium. (2.) The language of the clause, was “ that such policy might be continued in force, from time to time, until the decease of the said George R. Howell, provided that the said assured shall duly pay, or cause to be paid, to the said company, annually, on or before the 15th day of July, in each and every year, the sum of $138.50,” not, that “ this policy shall be void unless,” but only it “ may be continued in force.” It is the language appropriate to a policy from year to year, which would terminate at the end of each year, and require to be continued. The next clause favors this view : “ In case of loss, all unpaid notes, or other indebtedness, will be deducted from the sum insured,” clearly implying that notwithstanding an unpaid premium, a loss may occur within the policy, and the sum insured become due, less the unpaid premium. So where the premium is payable quarterly, the company deducts the full amount of the annual premium. ' As the undertaking of the company was already for the .whole life of the assured, and there was no provision terminating the liability on the nonpayment of premium, this printed clause, incongruous, if literally construed, should be controlled by the special arrangement with the assured, and interpreted to mean merely that the annual premium was to be $138.50, due and payable on every 15th July. Because an interpretation which creates a forfeiture is not to be favored. Where it is doubtful whether a clause be a covenant or a condition, the courts incline against the latter view as one that defeats estates.
    2. An estate or fixed interest was, therefore, already created by the express terms of the agreement. The insurance was for the whole life, the premium paid was upon that footing, the interest of the assured in the accumulated profits of the company resulted from this permanent arrangement, and the assured was liable to pay, for his whole life, the annual premiums, even though he might have desired to annul the arrangement. The printed language, therefore, “ this policy may be continued in force,” was inapplicable to the contract .really made, as the policy was, by its terms, a permanent one, liable to be avoided only by the refusal of the assured to pay the premium.
    II. The provision for the payment of the premium on the 15 th July created a condition subsequent, not precedent; a condition to defeat an insurance made and running, not a condition precedent to an insurance taking effect.
    If this were a policy insuring for a year, with a provision that it might be extended for additional years, on the payment of the premium named, such payment wotild be a condition precedent. . But, as the policy insures for the whole term of life, the most that can he claimed from this provision is, that if the premium be not paid, the insurance shall cease.
    If a lease be made for a year, to commence on a day named, provided the tenant pay a sum certain by that day, such payment is a condition precedent to the vesting of the estate, but if a lease be made for years, or for life, provided that, during the term, the tenant pay certain rents quarterly, &c. such payments are conditions subsequent. (4 Kent, 124-5.)
    A condition will be construed as subsequent, rather than precedent, as being less rigorous.
    III. If such provision be a subsequent condition, the plaintiff is entitled to recover.
    (1.) A demand of the premium on the part of the defendants, . was necessary to work a forfeiture. (Van Rensselaer v. Jewett, 2 Comst. 141. Hogeboom v. Hall, 24 Wend. 146. Moore v. Smith, 24 Ill. 512. Brooklyn Central Railroad Co. v. Brooklyn City Railroad Co., 32 Barb. 358, 367.)
    (2.) The rights given by the contract are not lost, by want of strict performance, if the failure in performance was caused by the act of God. (Wolfe v. Howes, 20 N. Y. Rep. 197. Clark v. Gilbert, 26 id. 279. Baldwin v. The N. Y. Life Ins. Co., 3 Bosw. 530.)
    The occurrences which caused the non-payment, on the day named in the policy, show such an intervention of divine agency as is properly expressed by the phrase, “ the act of God.”
    (3.) The failure of strict performance is relievable in equity on the ground of accident. (2 Story’s Eg. § 1315.) It is to be assumed in this case, that the continuance of the policy, not its forfeiture, was for the benefit of both parties. Had the assured remained on the 16th July in the same state of health that he apparently enjoyed on the morning of the 15th, it is indisputable that the company would have preferred to receive the premiums, and have the policy remain in force. The provision fixing a particular day for the payment of the premium was simply to secure its payment in fact, not to entrap the assured into a forfeiture, and, like the penalty of a bond, should be made to answer only its legitimate purpose.
    
      III. But whether the clause requiring payment of the annual premium he a condition subsequent or precedent, the condition was waived by the acts of the defendants..
    (1.) It being their usage and custom to allow some extension or days of grace within which to pay the premium, after the day named in the policy, and the assured having contracted in view of this usage, and it being virtually agreed between the defendants and the assured after the policy was issued that if anything should happen to him to prevent his paying the premium on the day it fell due, that the same should continue in force a reasonable time thereafter, it is well settled, that in such case the defendants are estopped from setting up the failure in punctual payment. (Buckbee v. The U. S. Ins. Co., 18 Barb. 541. Ruse v. The Mutual Benefit Life Ins. Co., 26 id. 556.) Although this latter case was reversed in 23 N. Y. Rep. 516, it was upon grounds not affecting .the case at bar.
    (2.) In this case, it is not necessary to rely upon the prospectus of the company, or other representation made prior to, or at the time of the issuing of the policy, for the case shows an agreement, subsequently, between the assured and the company, allowing the alleged grace or delay in the payment of the premiums. The cases are abundant which hold the companies to be bound by such arrangements. (Trustees, &c. v. The Brooklyn Fire Ins. Co., 19 N. Y. Rep. 305. Goit v. Nat. Trot. Ins. Co., 25 Barb. 189.) The ruling, in 23 N. Y. Rep. 516, against the admissibility of the prospectus, was abandoned on the motion for a rehearing. (24 N. Y. Rep. 653.)
    (3.) Good faith towards the assured, requires that the companies should not be permitted to take advantage of any laxity in the punctual payment of premiums, occasioned by their own agreements, representations or usages. They may hold dealers to the utmost strictness, but any indulgence calculated to throw them off their guard, should be construed rigidly against the companies, especially after the payment of numerous successive premiums may make it to their interest to forfeit the policy, and tempt them to treachery in taking advantage of delays they had encouraged.
    
      (4.) In view of the express agreement/that any accidental delay in the payment of the premium, on the day fixed, should not avoid the policy, the course of the defendants in repudiating- that agreement is so faithless, considering the sudden calamity which contributed to the delay, as to be utterly irreconcilable with just dealing. By it they seek to forfeit to their own use nine previously paid premiums, amounting to $1246. 50, and the store which the assured supposed he had provided for his wife and children. A fitter case for the application of the doctrine of estoppel in pais cannot be presented.
    IV. But assuming that the policy is to be considered as expiring on the 15th July, 1862, its terms are still sufficient to make the defendants liable for the sum insured.
    (1.) In the view that the policy in fact expired on the 15th July, 1863, its language would, as if it had been made on the 15th July previous, read thus : Whereas Sally Ann Howell hath proposed to effect an insurance upon the life of George R. Howell, and hath paid “ for the said assurance for the term of one year, ending at 12 o’clock, noon, on the 15th day of July,” 1862 : Now, therefore, the defendants agree to pay “ all loss under this policy,” not exceeding $5000, within ninety days after due notice, and proof of the death of the said George R. Howell. What is the loss which the defendants agreed to indemnify the plaintiff against to the extent of $5000 ? Clearly, loss or damage resulting from matters destructive of the life of her husband. She was interested in that life, as her support; the life was destroyed within the year, utterly, so far as her pecuniary interest in it was concerned ; the loss or damage against which the defendants undertook to indemnify her then occurred, and the death or consummation of the loss followed the next day, from which the ninety days were to be computed to make her indemnity due and payable.
    This point presents the question whether an assurance upon the life of a person for a year, is precisely the same thing as an assurance against death within a year. Both forms of policy are used. (See form in Ellis on Ins. p. 232; 4 Law 
      
      Lib. 138.) In the one case it may, perhaps, he held that the assured must actually expire within the time limited by the policy ; in the other, that it is enough if within that time he receive a mortal stroke.
    (2.) The following cases show, by analogy, a basis for the distinction : A vessel insured against perils of the sea, was damaged by storm on the 26 th of April, and by reason of that damage, sunk on -the 6 th of May ; held that a parting with interest between those dates did not affect the policy, as the loss was total prior to the transfer. (Crosby v. The N. Y. Mutual Ins. Co., 5 Bosw. 369.) An insurance on horses, “ against all risks, including the risk of death,” until safely landed: A horse injured by a storm, died shortly after being landed ; held a total loss within the policy. (Coit v. Smith, 3 John. Cas. 16.) It may be said that in these cases the peril was insured against, which caused the subsequent total loss ; or, as it is stated in 1 Phil. on Ins. (§ 1148,) remarking upon Lockyer v. Offley, (1 Term R. 252,) to render the cases parallel, “ the insurance on the life should be, not against death, merely, as a life policy is, but against wounds, as a ship is against perils of the seas.” It is the effect of this very distinction that the policy in question escapes. An insurance upon the life of a person is an insurance against all death-wounds or death-risks, while an insurance against death only may not cover the perils causing death.
    A policy upon a life is, in its nature, an insurance upon the benefits which depend upon the life ; and it is a valued policy in respect to the damages to be paid for the loss of these benefits. (Per Woodruff, J., in Miller v. The Eagle Ins. Co., 2 E. D. Smith, 268, 298.) Clearly the loss has occurred when the mortal stroke falls. If it be said that this construetion makes the policy one against disease—a health, not a life policy—this might be true, did not the policy make the loss payable only after death.
    (3.) But whether the distinction above taken be well founded or not, upon the proof stated, Howell was substantially dead on the 15th July, within the life of the policy.
    
      Y. If any of the preceding points are well taken, they are available to the plaintiff, notwithstanding there may have been a duty on her to comply with the provisions of the policy. The fact that the policy was effected by her husband, and all the business connected with it transacted by him, entitles her to the same equitable relief, if any be necessary, that would have been applicable had her husband insured his own life, instead of having it insured by her.
    YI. The exception to the refusal to dismiss the complaint is untenable. A refusal to dismiss the complaint is not error, if the evidence subsequently given will supply any deficiencies in it; provided the cause of action be not changed. (Morton v. Pinckney, 8 Bosw. 135. Lounsbury v. Purdy, 18 N. Y. Rep. 515, 520.)
    
      W. F. Allen, for the defendants.
    I. The policy was for a single year, with liberty of renewal annually during the life of the person insured, by the payment of the annual premium on or before the 15th day of July in each year. The payment of an annual premium was contemplated, and not the payment of a sum in gross for the entire term. It was immaterial whether the policy was in the form adopted, or for life, acknowledging the payment of the premium for a single year, and providing for payment annually thereafter. The substance of the contract was the same In the one case the policy would become void by non-payment, in the other it would have expired, and could not be renewed or continued. (Angell on Insurance, § 284. Ellis on Fire and Life Insurance, Shaw’s ed. 105. 1 Phil. on Ins. 46, § 64.) Otherwise, the contract of insurance could not be controlled or varied by the application upon which it was based, or any negotiations preceding the making of it,
    II. The policy, however, expired by its own limitation at twelve o’clock, noon, of the 15th of July, 1862, and the payment of the premium on or before that day was, by the terms of the policy, a condition precedent to its renewal or continuance for another year, to be averred and proved by the plaintiff. (Want v. Blunt, 12 East, 183. Hammond v. Am. Mut. Life 
      
      Ins. Co., 10 Gray, 356. Nightingale v. State Mut. Life Ins. Co., 5 R. J. 38. Boulton v. Am. Mut. Life Ins. Co., 25 Conn. R. 542. Inman v. Western Fire Ins. Co., 12 Wend. 452. Wood v. Worsley, 2 H. Bl. 574. Oakley v. Morton, 1 Kern. 25. Pike v. Butler, 4 Comst. 360. Tarleton v. Staniforth, 5 T. R. 695. S. C. 1 B. & P. 471. Simpson v. The Accidental Death Ins. Co., 2 C. B. R. 257, 89 E. C. L. Pritchard v. The Merchants and Tradesmen’s Mutual Life Insurance Society, 3 C. B. 622, 91 E. C. L.) Payment at a subsequent day would not fulfill the condition, or renew or continue the policy. '
    III. At twelve o’clock, noon, of the 15th.day of July, 1862, the life insured was in existence—George R. Howell was alive. It is so averred in the complaint, and was proved upon the trial, and is conceded by the deduction from the amount claimed, of the premium for the year commencing at that time. The defendants had not then become liable upon their contract. It is not claimed that the premium due and payable on that day was paid or offered to be paid until several days thereafter, and after the death of George R. Howell. At the time of the death, therefore, there was no insurance upon the life, under the policy in suit. The risk had terminated by the limitations of the policy. On the 15th of July it was optional with the plaintiff whether she would renew it. After that day it was optional with the defendants whether they would accept the premium and continne the risk. (12 East, 183. 10 Gray, 356. 5 R. I. Rep. 38. 25 Conn. R. 542. 89 E. C. L. Rep. 257. 91 E. C. L. Rep. 622.)
    IV. The facts alleged in the complaint, and proved or admitted on the trial, did not destroy the force of the condition, or relieve the plaintiff from its performance. The plaintiff voluntarily assumed the performance of the condition, and no-provision was made for any days of grace for the payment of the premium, as might have been and sometimes is done.
    (1.) The condition was not imposed by law, but arose out of the contract of the parties, and therefore strict performance is only excused either by the consent of the defendants or some act of theirs preventing performance. (Broom’s Leg. Max. 118. 1. H. Bl. Rep. 433; S. C. in error, 4 Term Rep. 94. 8 id. 267. 13 East, 533. Pike v. Butler, 4 Comst. 360. Harmony v. Bingham, 2 Kernan, 99.)
    (2.) A recognized distinction exists between matters in excuse of performance, when alleged as part of the defense in an action brought against the party in default, and when asserted in support of and as giving a cause of action. The more stringent rule is applied in the latter case. (Oakley v. Morton, 1 Kernan, 25. Pike v. Butler, 4 Comst. 360.)
    (3.) Even if in cases of conditions imposed by law, and not by the contract of the parties, performance may be excused, when rendered impossible by the act of a stranger, or by the “ act of God,” neither agency intervened in this case.
    
      (a.) George R. Howell, the husband, was in no sense a stranger to the transaction. He was the agent of the plaintiff in effecting the insurance, and in renewing it from year to year. His acts and neglects were hers, and she must abide by the consequences. She cannot assume and avail herself of such as are beneficial and repudiate others. She claims the fruits of his agency, and must take them cum onere. (Smith’s Merc. Law, 133. 7 East, 366. Farmers’ Loan & T. Co. v. Walworth, 1 Comst. 433. Cobb v. Dows, 6 Selden, 335.) Ho party can be relieved by the acts of a stranger. (Broom’s Leg. Max. 120. 7 Term R. 384. Bac. Abr. Condition, 24.)
    
      (b.) The payment of the premium was not prevented by the u act of God.” It was negligence to delay the payment until the last hour, and incur the risk of being prevented from performing the condition by some casual or unexpected hindrance. This excuse includes only those things which are inevitable, which no industry can avoid or policy prevent. The default of the party must not concur. The legal rights of the parties are not affected by the intention of the plaintiff and her agent, or her reasons for not attending to the payment sooner after the death of her husband.
    Y. The allegation, in the complaint, of the usage and custom of the defendants to receive premiums after the day upon which by the terms of the policy they are payable, and that this policy was made in reference to that custom, and that it was understood and agreed that the premium might be paid at a later day, if payment at the day should be prevented, could not, if established, relieve the plaintiff from the terms and conditions of the policy, and give her an action as upon a strict performance.
    (1.) There is nothing in the policy, or in the terms employed, which is ambiguous, or needs explanation or elucidation, by reference to any usage or custom. This is the only office of evidence of usage in cases of this kind. (Broom’s Leg. Max. 420.) It cannot be resorted to to vary the terms or conditions of a contract. (26 How. Pr. 197. Broom’s Leg. Max. 303. Barrett v. Duke of Bedford, 8 Term Rep. 602. Payne v. Burridge, 12 M. & W. 727. Wadsworth v. Allcott, 2 Selden, 64. Wheeler v. Newbould, 16 N. Y. Rep. 392. Dawson v. Kittle, 4 Hill, 107. Turner v. Burrows, 8 Wend. 144.) And all prior and contemporaneous agreements and understandings are merged in the written contract. (Wolfe v. Myers, 3 Sandf. 7. Erwin v. Saunders, 1 Cowen, 249. Tibbits v. Percy, 24 Barb. 39.)
    (2.) It is not claimed that the plaintiff omitted to pay at the day, relying upon such usage, or any prior dealings of the defendants with her.
    VI. It follows that the complaint should have been dismissed, on the statement and opening of the case to the jury. The exception to the refusal to nonsuit was well taken.
    VII. The exceptions to the subsequent rulings of the learned judge, in the admission of evidence, only present the same questions arising upon the sufficiency of the allegations in the complaint in another phase. It is proper to state that the rulings of the judge upon the trial were merely formal, and for the purpose of putting the case in a proper shape for deliberate examination and decision by this court at a general term. So the admissions and the waiver of formal proof of many things which probably could not have been proved, were with the same view.
    
      YIII. The certificate for dividends, and the right to receive them, stands upon the same footing as the claim upon the policy. The payment is made to depend on the same condition, to wit, “ the termination of the policy by the death of the assured and it was not to be binding “ if said policy is in any way forfeited.”' The policy was forfeited before the death of the assured, by non-payment of the premium, and did hot terminate by his death.
    IX. The general direction, at the close of the trial, was also erroneous. The defendants were entitled to a dismissal of the' complaint. .
   By the Court, McCunn, J.

In this case it is only material to consider whether at the time of the death of the life insured the policy had not expired ; because if the policy had expired at the time, the plaintiff cannot recover.

The insurance was for one year, and it was agreed that it should be continued or renewed from time to time until the decease of Mr. Howell, provided always that the life insured, or those interested in that life, should pay or cause to be paid annually to the company, on or before the 15 th day of July, in each year, the sum of $138.50 ; and one of the conditions annexed to the policy was that roo insurance, whether original or a renewal by receipt, should be binding on the company until the actual payment of 'the premium, and the whole frame of the policy shows that every premium must be paid during the life of the insured ; indeed, the agreement and consideration for the insurance is the payment of the yearly pre-. mium to be paid during the life of Mr. Howell, and the risk insured against is Mr. Howell’s death. It is contended, on the part of the plaintiff, that on the 15 th day of July, the day on which Mr. Howell was stricken with apoplexy, he received his death wound or mortal stroke, and that he was then dead to all intents and purposes. This cannot be, because Mr. Howell was alive and died dn the 16th; and it will not be contended that if Mr. Howell, after apoplexy had seized him, had lingered for months, and the policy had not been renewed by the payment of the premium, the.parties for whose benefit the policy was effected could have recovered, and the rule is as strict with a day of neglect as. with a year ; if they could not renew after the lapse of a year, they could not after the lapse of a day, without the consent of the company. Something has been said about an agreement on the part of the company with the deceased, to the" effect that days of grace would be allowed if the premium was not paid on the day it became due. I can find no such agreement in the case : on the contrary, the complaint alleges that the yearly premiums were all paid promptly on the 15th day of July in each and every year, agreeably to the terms of the policy.

. It is true there is evidence introduced to the effect that the company, in dealing with other persons, allowed days of grace within which to pay the annual premium beyond the time fixed by the policies, and that, in accordance with that custom, they had been in the habit in some cases of receiving premiums after the days fixed, and that it was understood and agreed verbally between Mr. Howell and the company, at the time the insurance was effected, that, if any thing should happen to him to prevent his paying, the premium on the day it became due, the policy should not become null and void. • This evidence was objected to, and should have been excluded; but even if it had not been objected to, it would not help the plaintiff's case. No verbal agreement or understanding of any kind can vary the terms of the policy, (Tarleton v. Staniforth, 5 Term R. 695; Pritchard v. The M. & T. Mutual Life Ass. Society, 3 Common Bench, N. S. 622; Buckbee v. The U. S. Insur. Co., 18 Barb. 541,) and the custom of the company or their verbal agreement, if any there was, only extended to lives in being. It could not, and was not intended to apply to premiums offered to be paid after the death of the insured. In the case of Pritchard v. The Merchants’ Life Insurance Co. where the insured had thirty days after the date fixed in the policy for the paying of the same, and the life insured died before the thirty days of grace had expired, it was held by the full bench that the parties- interested in the policy, even where the pre> mium was paid and accepted within the thirty days, could not recover.

In the case of Ruse v. Mutual Benefit Life Ins. Co. (23 N. Y. Rep. 516,) Judge Selden says : “It is plain that if we are to look at the policy alone as containing the contract between the parties, the obligations of the defendant cease upon the failure of the plaintiff to pay the annual premium on the day fixed in the policy for such payment.” The policy under consideration is almost similar to the one passed upon by that learned judge, and nothing can be more explicit on the subject of paying the annual premium than the language of the clause of the policy under consideration, and no verbal understanding can vary it. The cases of Wood v. Worsley, (2 H. Bl. 574,) Nightingale v. The State M. Life Ins. Co., (5 R. I. Rep. 38,) Want v. Blunt, (12 East, 183,) Simpson v. The Accidental Death Ins. Co., (2 Com. B. N. S. 257,) and numerous other American and English cases can be cited in support of this doctrinó, and have been unable to find in any of the books a single case tending in the slightest degree to shake this rule.

The conditions imposed' by the policy arise from the contract between the parties; they are not conditions imposed bylaw-—they are conditions precedent, and, therefore, strict performance can only be excused by consent, or by some act of the defendants. (Piker. Butler, 4 N. Y. Rep. 360. 1 H. Bl. 433. Harmony v. Bingham, 2 Ker. 99. Weston v. Collins, 12 Law Times, N. S. 5.)

It is, therefore, clear that the payment of the premium, on or before the 15th day of July, was a condition precedent to the renewal or continuing of the policy, and that, before a recovery can be had on this policy, the parties seeking such relief are bound to prove all the conditions contained therein, and especially the condition requiring the payment of the premium on the 15th of July, the day on which it became due, or at least the payment of the same before the death of Mr. Howell. (12 East, 191.)

For these reasons, we are of opinion that the death of Mr. Howell, which happened on the 16th of July, 1864, was during a period of time not covered by the policy, and that, under a fair construction of the same, the insurance could not be continued beyond the day on which the annual premium was payable, which was on the 15th of July, 1864, and was not revived or renewed by a tender of the premium after his death, though within two or three days after the date upon which the premium was payable.

Judgment reversed, and new trial ordered, with costs.  