Rice v. New England Mutual Aid Society , 1888 Mass. LEXIS 234 ( 1888 )

C. Allen, J.

If it be assumed that the payment made on August 19, 1885, was too late, the question remains whether the company by its subsequent acts waived a right to avoid the policy or certificate of insurance on that ground.

Without expressing any opinion as to-the effect of the retention of that money, we think the levy of the subsequent assessments, and the acceptance of the money paid upon them, amounted to such a waiver. When the time came for the levy of a new assessment, if Rice’s policy was to be treated as still in force, he would properly be included in the assessment; otherwise not. Under this state of things, six other assessments upon him were made by the company, all of which were seasonably paid. There was no determination by the directors of the company, that for the time being Rice’s policy should be treated as not in force or suspended; but in making the new assessments, so far as appears, no pains were taken and no intention was formed to exclude him. No condition was in express terms annexed to the levy of these new assessments, or to the acceptance of the payments by the assured upon them. The company, however, contends that the condition of the former acceptance reaches forward, and applies also to the later payments, and that it is not bound by later assessments which it made, and later payments which it received, in ignorance that the assured was in ill health at the time of the former payment. But it cannot be allowed in this way to imply a condition in favor of a forfeiture. It had knowledge that on the former occasion the payment had been made too late, and that the money had been accepted with a condition annexed. If, before levying a new assessment, the company wished to know the particulars as to Rice'S health, and thus to determine whether that payment was valid or not, it was incumbent on it to make inquiry. Instead of doing so, instead of notifying him that it wished for some positive evidence or statement upon the subject, instead of imposing a further condition relating back to the time of the former payment, the company made an unconditional call upon him for the payment of a new assessment. It acted under no deception or misrepresentation, but it had all the information which it cared to take the pains to acquire. We are unable to see how it can properly be held that the former conditional acceptance cuts down the effect of the later unconditional acceptance. The condition relates to the former payment alone. Suppose the payment of the former assessment had never been made at all, and the company, without insisting upon the nonpayment as a ground of forfeiture, had levied new assessments upon the assured, which were all duly paid and accepted without condition ; could it be contended that there was no waiver ? An unconditional acceptance upon assessment waives all former known grounds of forfeiture, and this effect is not varied or limited because an acceptance of a former assessment had been on condition, and had not amounted to such a waiver. Hodsdon v. Guardian Ins. Co. 97 Mass. 144. Bouton v. American Ins. Co. 25 Conn. 542. Phœnix Ins. Co. v. Raddin, 120 U. S. 183. Exceptions overruled.