I dissent. The main policy, which was an ordinary life policy, provided for the payment of $5,000 to the beneficiary at the company's office in San Francisco, upon due proof of death. Attached to this policy was a rider providing for an annual payment of $500 "to the insured" upon due proof of total permanent disability. In my opinion this was a separate and distinct contract of indemnity and no place of payment thereof was provided for therein. At least the question is left in doubt. The general rule is stated in 48 Corpus Juris, at pages 592, 593, with an abundance of supporting authorities, as follows: "As a general rule, in the absence of any agreement or stipulation to the contrary, a debt is payable at the place where the creditor resides . . . or wherever else he may be found; and it is ordinarily the duty of the debtor to seek the creditor for the purpose of making payment, provided the creditor is within the state of his residence when the payment is due, unless otherwise provided by statute." It is not otherwise provided by statute in this state. Moreover section 1489 of the Civil Code specifically provides that in the absence of an express provision to the contrary an offer of performance may be made at the option of the debtor "1. At any place appointed by the creditor; or 2. Wherever the person to whom the offer ought to be made can be found." In this case the creditor elected to have the payment at his place of residence, known to the debtor, in Mendocino County. He could be found there and that was the appropriate place for tender of payment in order to discharge the obligation of the debtor. (24 Cal. Jur., p. 521.) Having failed to make tender of payment at the creditor's place of residence, a breach of the debtor's promise to pay occurred at that place and under section 16 of article XII of the Constitution the defendant could be sued at that place, no other place of payment being stipulated. (SeeBank of Yolo v. Sperry Flour Co., 141 Cal. 314 [65 *Page 578 L.R.A. 90, 74 P. 855].) In order to conclude that the defendant must be sued in the city and county of San Francisco, the main opinion indulges in inferences as to what was intended by the parties. When inferences must be resorted to, the provision for payment is necessarily not express and uncertainty is present. The rider was on the printed form prepared by the defendant and it is a cardinal rule that, when uncertainty exists, the contract is to be construed most strongly against the party who caused the uncertainty to exist. (Sec. 1654, Civ. Code.) Furthermore, if the terms of the contract are uncertain they must be interpreted in the sense in which the promisor believed, at the time of making it, that the promisee understood it. (Sec. 1649, Civ. Code.) It is inconceivable that the defendant, the promisor in this case, believed that the plaintiff, in case of his permanent total disability, understood that he was to proceed or was to dispatch an agent to San Francisco to demand payment or, in the event of the refusal of payment, that he would be compelled to go to San Francisco to bring suit or suffer his testimony to be taken by deposition.
Much more compelling is the universal rule with reference to insurance policies that when uncertainty exists they will be construed most strongly in favor of the insured. From any and every approach to the problem I think the trial court drew the proper inferences and conclusions and that its order should be affirmed.
Curtis, J., concurred.
Mr. Justice Preston did not participate. *Page 579