Howland v. Continental Life Insurance , 121 Mass. 499 ( 1877 )

Morton, J.

The plaintiff can recover only upon the ground that the defendant has rescinded its contract with him. It appeared at the trial that an annual premium was due and payable by the plaintiff on January 25,1874, which was Sunday; that on the Monday following he tendered payment of the same to the defendant’s agent, who refused to receive it, “ saying that the time for payment was passed, that the policy was void and of no effect on that account, and was forfeited, and that the plaintiff was not then insured under the same.” The plaintiff thereupon went away, and gave no notice to the defendant that he should treat the policy as at an end, and took no action until he brought this suit, eleven months after.

If the tender on Monday was not in season, then it is clear that the action cannot be maintained. If the tender on Monday was in season, as contended by the counsel for both parties at the argument, then the defendant had no right or power to rescind the policy, and it remained a continuing contract upon which the defendant was liable.^* And if it be assumed that the plaintiff had the right, at his election, to treat the act of the defendant’s agent as a rescission of the contract, justice requires that he should give notice of this election within a reasonable time. An election made eleven months after, during which time the liability of the defendant had continued, was not within a reasonable time. The ruling of the Superior Court, that the plaintiff could not recover, was correct.

Judgment on the verdict.

* See Hammond v. American Ins. Co. 10 Gray, 806 ; Gen. Sts. c. 58, § 7,