[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 225 The question to be determined in this case, is whether there was evidence upon the trial to submit to the jury to show a waiver of the condition in the policy, that the company should not be liable until the premium was actually paid. We think that there was such evidence, and that the court erred in refusing to submit the case to the jury and in granting a nonsuit. The payment of the premium at the time of making the contract of insurance is not necessary to bind the company, and if a credit be given by the agent it is equally obligatory (Angell v.Hartford Ins. Co., 59 N.Y., 171), and the agent may waive such condition and give such credit. (Boehen v. Williamsburgh Ins.Co., 35 N.Y., 131; Sheldon v. Atl. F. and M. Ins. Co.,26 N Y, 460.) There was evidence upon the trial which showed a prior dealing of the plaintiff with the company for many years, and that he was in the habit of getting policies without paying for them at the time. This was a circumstance to be considered, although by no means controling on the question as to the intention of the agent to waive the payment. The fact, however, that on a single occasion credit was given for the premium, as was proved, is to be considered upon the question of waiver. (Bowman v. Agricultural *Page 226 Ins. Co., 59 N.Y., 521; see also 26 N.Y., supra, pp. 465, 466.) It also further appears from the testimony that the plaintiff on the 6th of September, 1871, called at the company's office to get the property insured for the ensuing year, saw the secretary, and tried to prevail upon him to reduce the old rate, which he declined to do, and the plaintiff then replied, "very well, I must have it insured." The next day afterwards the defendant made out the policy to the plaintiff, by which it insured the plaintiff from the sixth of September. On the ninth the plaintiff called again and asked the secretary if he had taken the building, and he replied that he had, at the old price. No objection was interposed to this and no further conversation took place. It, perhaps, was a fair question, whether, taken in connection with what had previously been said by the plaintiff, that he must have it insured, it might not be inferred that the plaintiff assented to this. Subsequently, on the sixteenth of October, the plaintiff again called for the purpose of obtaining an insurance upon other property. The secretary was not in, but the plaintiff then stated to the clerk that he had another policy, evidently referring to the one upon which this action is brought, and would pay for the two together, and the clerk replied, "very well," thus apparently assenting to the arrangement. The plaintiff did not call again until November eighth, after the fire, which took place on the seventh of November. The plaintiff informed the secretary of the loss and offered to pay for the two policies, but he refused to take any thing on the policy in suit, stating they were not liable because the house was not occupied, and he paid neither, leaving both. A few days subsequently he paid the premium on the second policy from its original date, which was accepted, thus conceding that this policy was valid.
Under the circumstances presented, although the testimony is not entirely conclusive and satisfactory, we think there was sufficient evidence to leave to the consideration of the jury the question whether a credit was not intended to be given and payment at the time waived.
As already seen, there was some evidence that plaintiff *Page 227 assented to the old rate of premiums, at which he was informed the insurance had been taken, and it was a question to be determined whether, if the secretary intended to demand payment before the policy took effect, he should not have so said, and was not bound to speak. His failure to do so might, perhaps, bear the interpretation that he assented to a credit being given as had been the case on a previous occasion and as was given in the second policy. Besides, when plaintiff advised the secretary of the fire, no objection was made that the premium had not been paid, but a liability was repudiated on another and entirely a different ground — a want of occupancy. Some inference may also be derived from the circumstance that the secretary conceded that the company were liable on the second policy from date without payment or delivery, but this is not very material.
Considering all the circumstances and the previous dealings between the parties, we are of the opinion that it could not be held, as a matter of law, that there was no waiver of the payment of the premium according to the condition of the policy and no credit for the amount thereof given to the insured, and the court having committed an error in withholding the case from the jury and in granting the nonsuit, the judgment must be reversed and a new trial granted, with costs to abide the event.
All concur.
Judgment reversed.