We do not see our way to the construction of this contract asserted by the insurer. That concedes the right of the insured upon failure to pay stipulated premiums after the first two have been paid, to demand a paid-up policy "for the full amount of premium paid," but interpolates, as an unexpressed restriction, that such amount shall in no event exceed the original insurance. No such words of restriction are contained in the policy. They are sought to be argued into it *Page 348 from the general scope and character of the contract. It is not easy to determine what the insurer intended by the provision as it was framed. If it really meant what it says, and the company proposed to carry their risks and pay expenses out of interest only, returning always the whole premiums received, and often much larger amounts, it would doubtless be true, as the appellant contends, that the system if continued would "end the business of the defendant." Commissions, salaries, expenses, and death losses, with no fund behind them save the interest upon premiums, since the latter must be kept to be returned in full, would speedily exhaust the limited resource provided. But whether the option given was the result of accident, or lack of comprehension of sound principles of insurance, does not alter the fact of the contract, or the just construction of language which is definite and unambiguous. Difficult as it is to treat the insurer as consciously and intelligently making such a contract, the difficulty is sensibly increased by the interpretation now sought to be given to it. Neither party so understood it. The company did not, for the inevitable and apparent effect would be to make every policy become unfruitful, and payments of premiums stop, the moment such premiums paid equaled the amount insured, and those policies only would mature by the death of the insured while premiums were being paid, which involved a loss to the insurer in excess of the premiums received. The insured could not have so understood it, for he continued to pay premiums after the amount of the policy was reached, and is put in the absurd position of consciously paying an annual sum to secure payment at death, of the precise amount he is already entitled to receive in a paid-up policy without delay of a day or advance of a dollar. His payments thus continued become free gifts of so much money, for which he receives no return and not the least consideration. No such contract was in the contemplation of either party, and since we are satisfied of that, the sole alternative left is to construe the stipulation as it stands without interpolating a restriction not existing in the words of the contract, or the thought of the contractors. The construction *Page 349 sought to be argued out is more difficult to believe within the contemplation of the parties than the one founded upon the language of the policy.
The objection that the old policy was not actually surrendered, was clearly waived if it had any force. The company tendered a paid-up policy, and the only dispute was as to its amount.
The judgment should be affirmed, with costs.
All concur, except ANDREWS, J., absent, and EARL, J., not voting, RAPALLO and DANFORTH, JJ., concurring in result.