
    Rockwell vs. The Mutual Life Insurance Company of Wisconsin.
    
      Life insurance — Renewal of policy after forf'dime— Waiver of condition.
    
    In au action on a life insurance policy, it appeared from plaintiff’s evidence that the assured sent a draft for the amount of the premium after the same was past due, and the company collected the draft; and that its agent wrote to the assured, “ As this is past due, it will accord with our rules for you to send us a certificate of good health, and in yonr case we will be satisfied with your own. You did not instruct ns where to send the renewal receipt, and so I have not enclosed it.” R.eld, that it is not clear from this evidence that the assured did understand, or could have understood, that his money was received onl/y on &M-dition of his furnishing the certificate of good health; and it was error thereupon to nonsuit the plaintiff.
    APPEAL from tbe Circuit Court for Waulcesha County.
    Tbis was an action upon a policy of insurance upon tbe life of John S. Rockwell, plaintiff’s husband, deceased ; and the defense was that the plaintiff had failed to pay the annual premium last preceding the death of her husband, the condition of the policy being that upon such a default in payment it should be forfeited. The plaintiff claimed that the policy had been renewed, the premium having been paid to and received by the company at a subsequent date; while the company claimed that its acceptance of the premium and agreement to renew the policy were conditioned upon its being furnished with a certificate of the good health of the person whose life was insured; which certificate was not furnished. The circuit court nonsuited the plaintiff; and she appealed.
    
      Gill & Barber, for appellant,
    cited Sheldon v. Ins. Go., 25 Conn., 220 ; Bouton v. Ins. Go., id., 550 ; Ky. Mut. Ins. Go. v. Jenlcs, 5 Porter (Ind.), 97; Buclcbee v. Ins. Go., 18 Barb., 541; Busev. Ins. Go., 26 id., 556 ; Trustees &c. v. Ins. Go., 19 N. Y., 305; Wing v. Harvey, 27 Eng. L. & E., 140 ; McHwen v. Ins. Go., 5 Hill, 101, 147; Mayes' v. Webster, 18 Wis., 393; Beal v. Ins. Go., 16 id., 241; Keeler v. Ins. Go., id., 523 ; 2 Parsons on Con., 487.
    
      Palmer & Hooleer, for respondent,
    to the point that the policy lapsed on default in payment of the annual premium, cited Ruse v. Ins. Go., 23 N. Y., 516 ; Pritchard v. Life JLss. Soc., 3 Com. Bench, N. S., 622 (91 E. O. L. 619); LaTbyv. Ufe Ass. Go., 15 Com. Bench, 365, 387 (80 E. C. L., 386); Tarleion v. Staniforth, 5 Term, 695 ; Salven v. James, 6 East, 571; Want v. Blunt, 12 id., 183; Mut. Ben. Ufe Ins. Go. v. Ruse, 8 Gra., 534; Acey v. Ins. Go., 7-Mees. & Weis., 150; Angelí on Ins., p. 420, §§ 348^4, and p. 96, § 51; Phillips on Ins., p. 538, § 592 ; Ellis & Shaw on Ins., 143-4. 2. Counsel contended that the evidence did not show that the company waived the production of the certificate of health; and to the point that the evidence of such waiver must be clear and satisfactory, they cited Gornell v. Ins. Go., 18 Wis., 387; Lycoming Go. Mut. Ins. Co. v. Schollenberger, 44 Pa. St., 259 ; Ti-aslc v. Ins. Go., 29 id., 198; Smith v. Ins. Co., 1 Allen, 297 ; Boumage v. Ins. Co., 1 Green (N. J.), 110; Nashv. Ins. Co., 43 Me., 343 ; Eastman v. Ins. Co., 45 Me., 307; Edwards v. Ins. Co., 3 Gill, 176; St. Louis Ins. Co. v. Kyle, 11 Mo., 278; Inland Ins. Co. v. Stauffer, 33 Pa. St., 397; Breiver v. Ins. Co., 14 Gray, 203; Lothrop v. Fire Ins. Co., 2 Allen, 82 ; Baxter v. Ins. Co., 1 id., 294.
   Downer, J.

Tbe only ground on wbicb tbe nonsuit granted in tbe court below can be sustained, is tbat tbe plaintiff failed to prove an unconditional renewal of tbe policy. October 6tb, 1862, tbe company received tbe note of tbe assured, and John S. Rockwell’s draft payable at tbe Summit Bank, on wbicb tbe Insurance Company received tbe money. Tbe money and note, if received unconditionally, it is admitted, would bave renewed tbe policy and continued it in force until after tbe death of Rockwell. It is contended tbat tbe plaintiffs proved tbat they were received only upon condition tbat Rockwell was tben in good bealtb. All the evidence of sucb condition is in tbe letter of tbe secretary of tbe company to Mr. Rockwell, in wbicb, after acknowledging the receipt of tbe note and draft to pay tbe annual premium on tbe policy, be says: “ As this is past due, it will accord witb our rules for you to send us a certificate of good bealtb, and in your case we will be satisfied witb your own. You did not instruct me where to send tbe renewal receipt, and so I bave not enclosed it.” The closing sentence, about sending tbe renewal receipt, must be regarded as equivalent to saying tbat it would bave been sent if tbe secretary bad known where to send it; and tbat, too, notwithstanding there was no proof tbat Mr. Rockwell was then.in good bealtb.

It may be said tbat such renewal receipt, if it bad tben been sent without tbe certificate of bealtb, would bave been a certificate renewing tbe policy only on tbe condition tbat Mr. Rockwell was tben in good bealtb. Tbe rule of tbe company, if rule there be, is not before us, and we are not informed of tbe terms of that rule; whether it is that no renewal at all shall be made unless the proof of good health is first made, or whether the renewal may be conditional, or whether it is discretionary with the secretary or officers of the corporation to insist upon the proof or not just as they may please. But the question is, whether it is certain from the evidence that Mr. Rockwell must have understood and did understand, if he exercised ordinary care, that the money and note were received conditionally. For if no such information was given him, the policy was renewed by the company’s receiving his money and the note. There is nothing in the evidence to the effect that they would be returned, or held subject to the order of Mr. Rockwell, if the certificate of good heath was not forthcoming. But there is an intimation that the renewal receipt would have been sent without such certificate, if the secretary had known where to send it. The presumption from the evidence is, that the company still retain both money and note, without even having offered to return them. It is not clear to our minds that Mr. Rockwell did or could have understood from the letter that his money was received only on condition of his furnishing the certificate of good health. The nonsuit was wrongly granted.

By the Court. — The judgment of the circuit court is reversed, and a venire denovo awarded.  