Pulling v. Travelers' Insurance , 55 Ill. App. 452 ( 1894 )

Mr. Justice Gary

delivered the opinion of the Court.

January 15, 1873, the appellee insured the life of Howell G. Pulling in the sum of ten thousand dollars, payable to the appellant, his wife. Among the conditions of the policy was: “ Third. That this policy shall not take effect until the advance premium hereon shall have been paid, during the lifetime of the person whose life is hereby insured, and that if any subsequent premium on this policy, or any installment thereof, or any note given for the premium, or any part thereof, shall not be paid on or before the day specified for the payment of the same, then this policy shall cease and determine, and this company shall not be liable for the payment of the sum insured herein, nor of any part thereof except as hereinafter provided; and that no premium hereon shall be considered as paid unless a receipt shall have been given therefor signed by the president or secretary of the company.” Also: “ ¡Note. Agents of the company are not authorized to make, alter or discharge contracts, or waive forfeitures.”

Then upon the back of the policy was indorsed: “ Special notice. To the policy holder: The premiums upon this policy are due and payable at the office of the company in Hartford, Conn., and the only evidence of the payment of the same that will be recognized . by the company as valid and binding, is a receipt signed by the president or secretary of the company. For the convenience of the policy holder, the agent through whom this policy was issued or last re-, newed, will be furnished with the proper receipts to be delivered to the policy holder on payment of the premium; and the policy holder is hereby explicitly notified that the possession of the receipts for premiums issued from the home office, and signed by the president or secretary of the company, is the only evidence of the policy holder of the authority of any agent to collect, or receive any premium on account of this policy.”

Attached to this policy, but not a part of it, was what is usually known as an accident policy, called in this case an indemnity contract, for the benefit of Howell G-. Pulling himself, in which the appellant had no legal interest.

The premiums were paid until July 15, 1880. Then Howell Gf. Pulling gave to the local agent a note as follows :

“ $121.54. Chicago, Ill., July 15, 1880.

On demand, after date, I promise to pay to the order of the Travelers’ Insurance Company, of Hartford, Connecticut, one hundred twenty-one and fifty-four one-hundredths dollars, at 177 La Salle street, for value received. It is expressly stipulated that the payment in full of this note at its maturity is absolutely essential to the renewal of the policy Ho. 15,804, and that in case this note is not so paid at maturity, the said, The Travelers’ Insurance Company, shall be wholly released from any claim or demand whatever on said policy and the same shall become null and void and of no effect.

H. Gf. Pulling.”

For which the agent gave him a receipt as follows :

“ (Combined.) Form 110.

Renewal Receipt—Life Department.

The Travelers’ Insurance Company, Hartford, Conn.'

Policy Ho. 15,804. Premium $121.54.

Received $121.54, continuing in force Policy Ho. 15,804 with indemnity contract thereto attached, on life of Howell G. Pulling, for six months from the 15th day of July, 1880.

Bodney Dennis, Secretary.

Countersigned at Chicago, this 15th day of July, 1880.

J. H. Holán, General Agent.”

This note was never paid, nor was any subsequent premium. Howell G. Pulling lived until January 13, 1890. Ho question is made as to his death, notice and proofs, but only whether the policy payable to the appellant was in force at the time of the death.

A clerk of the local agent testified in answer to questions as to making a demand on Howell G. Pulling of payment of the note, “I made demand,and it was some time during the month of July. One instance I remember of taking this (the note) and meeting Mr. Pulling and asking him for the money on it. It was July, 1880. Some time after it (the note) was made. Some time between that, and as I remember it, the first of August, I saw him over on Michigan avenue. I think it was the old Gardner House. I have no recollection of going there (to the Sherman House) now.”

On the note ivas a pencil memorandum in the handwriting of the clerk, “ May be in town and will be at Sherman House at 4:30 to-day,” of which he could give no explanation, and to which he had put no date.

This is very vague and indefinite evidence of a demand on which a forfeiture of a ten thousand dollar policy is to be based. Ho time, no conversation, not a word of what was said, no presentation of the note, and a very uncertain fixing of any place. It is proved that when the next premium would have been due, in January, 1881, a friend of Howell G. Pulling, at his request, went to the office of the local agent, with the money in his possession, and there, to the agent, offered to pay both premiums, that of the then last July and the one which, if the policy was in force, was then due; but the offer was refused and the money rejected, on the ground that the policy was forfeited.

In July, 1881, when the next semi-annual premium would have been due, had the policy remained in force, Howell G. Pulling went with the money and offered to pay the three premiums, and met the same refusal.

On the first occasion the agent said it was no use to bring money, it would not be received, the policy was forfeited.

If an actual production of the money, and showing it, would, under ordinary circumstances, be necessary to make the offer to pay the premium effectual, the peremptory refusal to take the money dispensed with such production. 25 Am. & Eng. Ency. of Law, 904. And that refusal, with the declaration that no further payment of premium would be accepted, dispensed with all further effort, or readiness, to pay. Kadish v. Young, 108 Ill. 170, and cases there cited, especially McPherson v. Walker, 40 Ill. 371.

Without going through the great multitude of cases cited by the parties, we are of opinion that upon the facts of this case the appellant is entitled to recover.

While a note payable on demand is considered due without a demand in fact, so that an action can be maintained upon it, and the statute of limitations will run against it, yet it can not be maintained that the same rule applies to a note given for the purpose of extending some term of credit, and the term of credit being at the option of the holder, if a forfeiture is to follow, an actual demand, or notice in some way that payment is wanted, should be so proved, that from the facts as detailed by the witness, the court' can see that such demand was made or notice given. Hawkins v. Harding, 37 Ill. App. 564, 571, et seq.

The case having been tried below without a jury, a finding of facts will be made here and judgment entered thereon. Manistee Lumber Co. v. Union National Bank, 143 Ill. 490.

The amount of the policy, less all premiums unpaid during the life of Howell G. Pulling, with interest thereon, and compounded at every time premiums ought have been paid during his life at the rate of six per cent per annum to March 26, 1891, being ninety days after proofs of death to the company, with interest on that residue from the last named day to date of judgment here at the same rate, will be the amount of the judgment. The judgment of the Superior Court is reversed.

Mr. Justice Waterman dissents.