It is stated in the case that the jury, under the direction of the court, rendered a verdict for the plaintiff, "subject to the opinion of the court upon a case to be made by the plaintiff containing the objections and exceptions," and that the court further directed "that such objections and exceptions be heard in the first instance at the General Term." It is somewhat in doubt whether the court intended to direct a verdict subject to the opinion of the General Term or intended to direct a verdict for the plaintiff, and orders the exceptions, which the defendant had taken, to be heard in the first instance at the General Term. It could not do both, and *Page 284 probably did not intend to; and as this was not a proper case for a verdict subject to the opinion of the General Term, it must be held that the court intended to do a right thing and order verdict for the plaintiff, and that a motion for a new trial on the part of the defendant upon its exceptions be heard in the first instance at the General term. We must so treat it upon this appeal.
The policy of insurance, upon which the action was brought, contained the clause: "And it is hereby agreed that this policy may be continued in force from time to time until the decease of the said George R. Howell, provided that the said assured shall duly pay or cause to be paid to the said company annually, on or before the 15th day of July in each and every year, the sum of one hundred and thirty-eight 50/100 dollars." On the 15th day of July, 1862, Howell went to his place of business, prepared and intending to pay the said annual premiums; but before he did so, he was stricken down with paralysis, and died the next day, without having made the payment.
If the clause which I have quoted from the policy had in no way been modified, I should have no hesitation in holding that the plaintiff could not recover. Payment was a condition precedent to the continuance of the policy, and no mere accident or act of God, however controlling, could continue the policy in force after the pay day without payment. This could be done only by the agreement or consent of the defendant, properly given, or by some act which would estop the defendant from denying payment. But, at the trial, the counsel for the defendant admitted "that it was understood and agreed by and between the defendant and the said George R. Howell, at the time the said insurance was effected, and the policy was issued, and also thereafter when the annual premium was paid, that if anything should happen to him to prevent his paying such premium on the day whereon the same became payable, the said policy should not thereby become null and void, but should continue in full force for a reasonable time thereafter, so that the said premium could be *Page 285 paid; that by the act of God he was prevented from paying the said premium on the 15th of July, 1862, and that the same was tendered and offered to the defendant within a reasonable time thereafter."
Here it is admitted that, at the time the policy was issued, it was agreed as stated. We have no right to assume that that was not a valid agreement, as not in writing. As the parties admitted that it was "agreed," we must hold the admission to extend to everything essential to a valid agreement, and must assume that the agreement was in writing. Hence this agreement must be construed in connection with and as really a part of the policy. It was not an agreement that the policy might be revived after it had been forfeited and become null and void. It was an agreement to continue the policy in force after the 15th of July in any year, for a reasonable time, to enable the premium to be paid. Instead of requiring prepayment of the premium, it gave a credit for a reasonable time. It was not an agreement which would allow an insurance upon the life of a dead man, but it continued the policy in force, so that there was no forfeiture of the policy or termination of the insurance, provided that payment was made within a reasonable time, no matter whether the person whose life was insured was dead or alive. Hence if there was no other agreement than the one here alluded to, there could be no reason for saying that the policy was not in force at the time of the death of Mr. Howell.
But it is further admitted that at a time when the annual premium was paid, the same agreement was made; and I think we must, for the same reason, assume that this was in writing, and this agreement, even in the absence of the other one, was sufficient to continue the policy in force. And it would unquestionably have had the same effect if the agreement had been by parol. (Trustees, etc., v. Brooklyn Fire Insurance Co.,19 N Y, 305.)
Hence, in any aspect we can view this case, it comes here with an admission, substantially and in effect, that the policy was in force at the time of Howell's death. This may be a *Page 286 broader admission than the defendant intended to make. But we must take it as it is, and give it all the effect its terms authorize and require; and this leads to a reversal of the judgment of the General Term, and judgment for the plaintiff upon the verdict, with costs.