I dissent from the decision about to be made, deeming the judgments below to be erroneous for the following reasons:
1. If the so-called special contract was in fact a contract there can be no doubt as to the agent's power to enter into a contract with the plaintiff in accordance with its terms. The instrument was a printed form given by the defendant to its agents for delivery to persons soliciting insurance, the only blanks being the name of the person to whom it was to be delivered, the amount of insurance sought and the amounts payable under the options mentioned in the instrument. At the end was printed the defendant's name with a blank for the name of the particular agent who might execute it. In this case the agent did nothing except that which the defendant expressly authorized him to do by furnishing him the blank form. The finding of lack of authority on the part of the agent was, therefore, erroneous.
2. The character of the instrument. On its face the instrument purports not only to be a contract but a special contract with a particular individual. If the defendant intended the paper as a mere prospectus it should have been so denominated, but to call it a contract if not intended as such was to practice deception and a fraud on those with whom the defendant's agents might deal. The form of the instrument, leaving a blank to be signed by the particular agent who might deliver it, also tended to show that the instrument was one imposing obligations on the defendant. Besides this, though the blank form was printed it was printed to imitate typewriting, thus conveying to any one who might negotiate with the defendant's agents the belief that this, so far from being a general prospectus, was an exceptional contract especially prepared for him. To allow the defendant to now repudiate its character would permit it to profit by its own fraud. When the plaintiff accepted this instrument and delivered to the agent the premium a valid contract between the parties was created subject to the implied qualification that the plaintiff should satisfactorily *Page 204 pass the medical examination. The plaintiff would not be at liberty to recall the premium without the consent of the defendant and, equally, the defendant was obliged to issue insurance to him on the conditions specified in the written contract. Such preliminary agreements for insurance are valid and enforceable. (Train v. Holland Purchase Ins. Co., 62 N.Y. 598. )
3. Construction of the contract. The contract was prepared by the defendant and it is elementary law that it should be construed most favorably to the other party. This has been so frequently declared, especially in the case of insurance policies, that a citation of authorities is unnecessary. If we suppose that "Tontine" as applied to life insurance has acquired a definite meaning of such common knowledge that every one taking out insurance is bound to understand its import, it is very certain that the same is not at all true of "semi-Tontine." Tontine as defined by the dictionaries is an annuity of survivorship where the ultimate survivor takes the whole. Of course, this definition cannot apply in full force to insurance, but by its use there is naturally to be implied that survivorship till the end of the tontine period secures advantages. In such case the extent of the advantage secured by a survivorship would be contingent and problematical. The agreement, however, was not for a tontine policy, but for a semi-tontine policy, and a semi-tontine policy the one before us certainly is not, whether the contract be construed in accordance with the defendant's claim or with that of the plaintiff. Three options were reserved by the contract. Under the first the amount payable to the plaintiff was contingent; under the second the amount of the insurance to be issued absolute; the third is the subject of the controversy. Therefore, in reality, the only question in this case is whether the policy promised was one-third tontine or two-thirds tontine, and the plaintiff's construction approximates just as closely to a semi-tontine policy as does that of the defendant. But there are considerations much more controlling than refined distinctions as to the definition of *Page 205 terms. The statement "Surplus guaranteed, amount estimated, based on past experience," is not made applicable to the whole series of options but only to the first, while as to the third the contract concludes: "The third option will secure a paid-up policy for $30,000, which will draw large annual cash dividends, together with $25,810.80 in cash." It is difficult to imagine a more positive affirmation excluding all contingency than that which has been quoted, and it is the settled law that the use of even legal expressions in a policy may be controlled and overcome by the use of inconsistent provisions. (Fitch v. Am. Pop. LifeIns. Co., 59 N.Y. 557.) Contrasted with the prospectus in the case of Avery v. Equitable Life Assurance Society (117 N.Y. 451) that instrument and the one now before us are as far asunder as the poles. That in the Avery case was headed in large type "Tontine Savings Fund" followed immediately over the body of the instrument by the words "Estimated results." The provisions of the prospectus equally clearly show that all the insured would be entitled to at the expiration of the tontine policy was his share of the surplus, not any definite sum. That prospectus may have been optimistic, but it was honest. The same cannot be said of the instrument before us unless the obligation to pay a sum certain was absolute. The suggestion that the plaintiff's claim in some manner infringes upon or impairs the rights of others who may have been insured in his class may be summarily disposed of. The relation between the company and an insured under this form of policy is not that of a trustee and cestui que trust, but merely of debtor and creditor. (Uhlman v. N.Y. Life Ins. Co.,109 N.Y. 421.) What I have said equally answers the claim, that by the form of the plaintiff's application and the character of the policy he sought, he disposed of his rights under the special contract.
Lastly we are brought to the question of laches or waiver. It is sufficient to say that the trial court made no finding on these matters. Under the circumstances of this case, bearing in mind that the plaintiff had an absolute contract controlling *Page 206 the terms of any policy that might be issued to him, whether he was guilty of laches in failing to examine the terms of his policy was a question of fact in the determination of which conflicting inferences might be drawn. In such case it is settled that this court cannot make findings on conflicting evidence to support a judgment on a theory upon which it was not decided in the courts below (Armstrong v. Du Bois, 90 N.Y. 95; Clemans v. Supreme Assembly, 131 N.Y. 485; Hollister v. Mott,132 N.Y. 18), especially now that by constitutional limitations our power is restricted to the determination of questions of law.
I cannot but believe that when the defendant effected this insurance it expected to faithfully live up to its contract, believing that past experience warranted it in entering into unqualified obligations as to the amount payable to the insured, and that, as unfortunately too often occurs, finding that the expectations of the past had not been realized in the present, under stress of supposed necessity it has claimed an interpretation of its contract that under more favorable circumstances it never would have advanced. If, however, I am wrong in giving the defendant credit for original integrity of intention, then I must say that its conduct in effecting this insurance, the various devices and false statements it has adopted to entrap the insured, are inconsistent with honesty to such a degree as to contravene not merely ethical standards but legal obligations.
WERNER, WILLARD BARTLETT and CHASE, JJ., concur with HISCOCK, J.; HAIGHT, J., concurs with CULLEN, Ch. J.
Judgment affirmed, with costs. *Page 207