[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 29
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 30 The complaint alleges that Harriet Leslie, when the owner of the policy, by her agent, applied to the defendant, who had it in possession, to be told when the premium for June, 1870, and the interest on the note given by the insured, would become due; and at the same time promised to pay the same when due. It further alleges, that thereupon the defendant declined at that time to give the information, but promised and agreed to give notice of the time when they would become due and of the amount. This is a substantial allegation of reciprocal promises. As Harriet Leslie was not before that bound to the defendant to pay the premium nor the interest on the note, and did then undertake so to do, there was a consideration furnished for the agreement of the defendant. They were reciprocal promises, and sustained each the other. The defendant did not keep its agreement, according to the allegations of the complaint, whereby, as it is further averred, the plaintiff suffered damage. The other allegations of the complaint need not be recited. (See Dean v. Ætna Life Ins.Co., Ct. App., Sept., 1875, Ms.*)
The counsel for the plaintiff, in opening the case to the jury, stated the facts contained and alleged in the complaint. They showed a cause of action, and the motion to dismiss the complaint upon the opening, and upon the allegations in the complaint, was denied without error.
When the plaintiff rested her case the allegation of a promise by Harriet Leslie was not sustained by the evidence; *Page 32 and though there was testimony tending to show an agreement by the defendant, it did not have the consideration of her undertaking. But the defendant did not repose upon the denial of the motion then made for a dismissal of the complaint, and went into proofs for the defence. So that all the evidence which appears in the case is to be considered, to determine if there was enough to sustain the verdict of the jury, upon the single view of the case upon which it was left to them by the court. In doing that I will first notice the charge. That gave the case to the jury on this single question: Whether the company had done any act which prevented the owner of the policy from performing the condition precedent of paying the premium and interest when due? The learned judge charged them that if an officer of the company, having authority, made the promise testified to, and omitted to perform it, with the purpose of procuring a lapse of the policy, then the owner of the policy had the right, in a reasonable time after the omission, to tender the amount, although the day of payment had then passed; and that if in such reasonable time a tender was made, and again made when the premium again became due, then the policy was kept alive. This charge did not place the right of the plaintiff upon an agreement to be enforced as an agreement merely, nor upon a technical waiver, nor upon a technical estoppel in pais. It placed it upon the purpose of the defendant, sought to be reached by misleading the owners of the policy. It instructed the jury to find whether these things existed, viz.: A promise to send the notice, a purpose to procure the lapse of the policy, a design to effect that purpose by omitting to send the notice, a tender or offer to pay the premium within a reasonable time after lapse; and it laid down the rule of law that, if they were found to exist, then the policy was alive, and the plaintiff entitled to recover; inasmuch as it was by the act of the defendant that the owner of the policy was prevented from paying when due, and inasmuch as the defendant could not by its own act, the owner of the policy being unwilling, produce the state of things which would effect *Page 33 the lapse of it. It is to be perceived that the charge does not specifically instruct the jury to find whether the plaintiff's assignor, in ignorance, relied upon the promise, and so relying omitted to push inquiry; that is to say, was induced by the promise to lie by, and not exercise her rights. But this was implied in the instruction that the defendant could not, by its own act, effect a lapse, and the jury must have understood that the fact must exist, that it was alone the act of the defendant which brought about the result. That the charge was so understood by counsel, appears from the omission to make request to further charge, or to take specific objection to any lack in the charge given.
There is no doubt that the rule laid down by the court is correct. One, who by the terms of a contract is entitled to a forfeiture thereof to his own benefit on the occurrence of a certain fact or omission, which may be prevented by action taken in time by the other party to the contract, may not intentionally so act as to put the other off his guard, and induce him to refrain from preventive action. A forfeiture so induced will not prevail, if the party in technical default, with reasonable speed, performs or offers to perform the omitted act. It is a fraud and deceit upon the party thus to put him off his guard, which may not prevail to destroy his rights.
Even if there be no primary hostile purpose in the action of one, who may in a certain event, become entitled to a forfeiture or other right arising from the non-performance of a condition, if by his act he has induced another to omit strict performance, he may not take the benefit or exact the forfeiture.
Thus, where a lessee had covenanted to insure in the names of his lessor and himself to the amount of two-thirds the value, and there was a further provision in the lease that if he omitted to do so, the lessor might insure and collect the premium paid, as rent; the lessor on one occasion had stated the covenant in general terms to be that the lessee should insure the premises, and, if no insurance, the lessor to be at liberty to insure; the tenant omitted to insure, and the landlord *Page 34 insured for £ 800, which, it was claimed, was not a two-thirds value; the tenant afterward insured for the same amount in his own name. This was claimed to be a breach of the covenant, and it was held that there was no dispensation of the condition; but it was left to the jury whether the conduct of the lessor was not such as to induce a cautions and reasonable man to suppose that he was doing enough if he insured to the amount of £ 800 in his own name. If they so found the lessor was not to recover possession of the demised premises for a forfeiture of the lease. (Doe ex dem. Knight v. Rowe, 2 Car. Payne, 246.) This was anisi prius case, but the principle is elsewhere recognized. SeeWest v. Blakeley (2 Man. Gr., 729, 750), where it is said by TINDAL, Ch. J.: "If the lessor had himself occasioned the breach, that would have been an answer to the complaint founded on that breach; not on the ground of an agreement, but because the act complained of would have been the act of the lessor himself." (And see page 752.)
A fortiori, where there enters into the act an intent to mislead for the purpose of obtaining the benefit. Thus, if a lease provide for a license in writing before some act can be done by a lessee, if he do the act relying upon a parol license and thus a forfeiture be worked, equity will relieve under circumstances of fraud, if the parol license was used as a snare. (Richardson v. Evans, 3 Mad., 218; see, also, Jones v.Walker, 13 B. Mon., 165, and cases cited there.)
It is now left to be seen whether there was the evidence upon which this charge and this verdict could be based.
There was no doubt, if the testimony is to be credited, that some person did promise Leslie, the witness, to send to him a statement of amount and time when the premium would be due; and the inference was plain that he relied upon that statement and was induced thereby to omit inquiry. The jury might also find that that person was the representation of the defendant and spoke with authority. The transaction was in its office during its business hours, and clerks were at their places in regular and customary employment. That person *Page 35 stood at the cashier's desk where Leslie had before paid to him premiums on policies. It is not to be inferred that he was a stranger and an interloper, or that he was not one used to be in that place for all that kind of duty. It is plain that he had knowledge of the affairs of the defendant, and of this policy and its adjuncts; for he first, spoke of the interest past due upon the note, which should have been paid at the last semi-annual payment. He had a right, it appeared, to receive from policyholders payment of premiums, and to ascertain the amount and time of payment thereof. It was shown that it was the general practice of the company, before the day of payment, to send out notices to policyholders, and the address of Leslie was left and taken so that notice might be sent to him. The duty at the cashier's desk was intrusted to but three of the clerks of the defendant, neither of whom was called to show lack of authority to engage to carry out this practice; nor was there any evidence given by defendant to that end. It was not beyond the province of the jury to infer from all of this that the person who was at the cashier's desk was properly there, and had a right to engage that the general practice of the defendant in giving notice should be continued and kept up with Leslie. It is beyond question that there was an omission to send notice; thus, as to this policy at this time, suspending the general practice, and failing to keep the particular engagement. It was shown that the defendant had information of the ailing condition of the insured, and that inquiry was made for his health when Leslie was at the office; that his ill-health was spoken of at the office as a matter of business; to enforce the rules, if the premium was not paid. It is to be inferred that this general practice to send notices was in the usual course of business with the defendant. It is then to be inferred that this would not have been departed from by subordinates unless by affirmative and particular direction from superiors, and for some particular reason, and with a definite purpose. It was not, then, a strained inference that it was for the purpose named in the charge and found by the jury. *Page 36 The offer to pay in a short time after the premium of the third of June was due, and again on the third of December was shown. There was, then, enough in the testimony to warrant the learned judge in his charge to the jury, and them in their verdict. And hence it also appears that the court was not in error in refusing the motion to dismiss made at the rest of the plaintiff's case and again at the close of all the proofs.
It is said that there was no allegation in the complaint that the omission to send notice was with the purpose found by the jury. There was no such objection to the admission of the testimony; and moreover the complaint avers a willful and wrongful omission.
There was an exception to the admission of testimony of the custom of the defendant as to receiving payment of premiums after the day. As the case went to the jury on the sole ground above considered, and they were distinctly charged that there was no proof on which they could find a verdict of waiver, it is manifest that the defendant was not harmed by that testimony. It could have had no effect in producing the verdict.
The judgment should be affirmed.
All concur.
Judgment affirmed.
* 62 N.Y., 462.