Not being able to concur with the majority in affirming this case, I have concluded to state my views without extended argument. As the disposition of the case is made largely to depend upon the evidence, and not knowing at this time whether or not the majority opinion will contain an extended statement, I have concluded to set out the testimony in its entirety, omitting, however, the correspondence between the assured C. G. Ellis and the general agents of appellant at San Antonio and its cashier in their office during the year 1905, all of which relates to the payment of the annual premium which fell due March 24, 1905. A general statement with respect to that correspondence, it is thought, will be sufficient. That correspondence shows that on receipt of notice of the maturity of said premium, and prior to March 24, 1905, the insured applied for an extension of time within which to pay same, and term insurance was paid, which extended the time for payment to August 22, 1905; that, when the extension expired, Ellis had not paid the premium, and thereafter several letters were written by Bourke, the then cashier, in the office of the general agents at San Antonio. These letters were for the most part answered by Ellis, and the time through which the correspondence ran lasted from August 18 to December 27, 1905. The correspondence indicates that the policy was lapsed some time in September, 1905, the exact date not appearing, and was reinstated upon medical examination and health certificate, some time in October, the exact date not given, and that the premium was at last paid on or about December 22, 1905. In the final settlement it seems that Ellis was allowed $61 rebate for about a month's time during which his policy was lapsed. Ellis applied for further extension to December 22, 1905, which the company granted, and on November 7, 1905, he paid $245 for term insurance which reinstated his two policies issued to him, the one in suit payable to his mother, and another for like amount issued at the same time and payable to Olive Ellis, his wife. The application for reinstatement of said Ellis was made in writing October 21, 1905, to which was attached the certificate of medical examination made by Dr. W. Neal Watt of Austin, Tex. The policy issued, on which this suit was brought, recites that the Equitable Life Assurance Society of the United States here-by assures the life of Caswell G. Ellis of Sartartia, Tex., hereinafter called the assured, and on receipt of satisfactory proofs of the death of said assured, provided this policy is then in force, agrees to pay $25,000, at its office in the city of New York to his mother, Amanda M. Ellis, if living, subject to the privileges and conditions stated on the second and third pages hereof which form a part of this contract, as fully as if recited at length over the signatures hereto affixed. The policy contained the following provision: "This assurance is granted in consideration of the written and printed application for this policy, which is hereby made a part of this contract and of the payment in advance of seven hundred and twenty four 50/100 dollars, and of the payment of a like sum on or before the 24th day of March in every year thereafter, during the continuance of this contract." The policy also contained the following provision: "IV. — Grace in the payment of premiums. Should default be made at any time hereafter in the payment of any premium due upon this policy as herein provided, the society will waive such default and accept the payment of such premium, provided the amount thereof, with interest thereon at five per cent. per annum from the date of default, be tendered to it *Page 191 within thirty days after such default." Reinstatement: "Should this policy lapse by reason of the nonpayment of any premium, it may be reinstated at any time upon the assured furnishing evidence of good health satisfactory to the society, and the payment of all arrears and any indebtedness to the society under this contract existing at the date of lapse, with interest thereon at five per cent. per annum." In paragraph 7 of said policy it is also provided as follows: "This policy shall lapse and together with all premiums paid thereon shall forfeit to the society on the non payment of any premium when due." Paragraph 14 of said policy is as follows: "XIV. Policy and application the entire contract. This policy and the application therefor, taken together, constitute the entire contract which cannot be varied except in writing by one of the following executive officers of the society at its home office in New York, viz.: The president, one of the vice presidents, the secretary, the assistant secretary, the comptroller, the actuary, the assistant actuary, the treasurer, the auditor, the associate auditor, the recorder, the registrar and the assistant registrar." On February 13, 1906, the appellee mailed a notice, addressed to the assured at Sartartia, Tex., notifying him of the maturity of the premium on March 24, 1906, which was received by him on February 16, 1906, and which, with the indorsements thereon, is as follows:
"The Equitable Life Assurance Society of the United States.
"Take notice that a premium of $724.50 will become due on policy No. 1324813 if all previous premiums have been paid and said policy is otherwise in force on March 24th, 1906, and be payable to said society at its office No. 120 Broadway, in the borough of Manhattan, city of New York.
"Unless the premium then due shall be paid to said society or the duly appointed agent or person authorized to collect such premium by or before the day it falls due, the policy and all payments thereon will be forfeited and void, except as to the right to a surrender value or paid up policy, as provided in the insurance law, chapter 690 of the laws of 1892 of New York, and except as otherwise provided in the policy.
"Said premium may be paid on or before the date when due by express bank money order, draft, check or post office to Jas. H. Wyman, Cashier, Austin, Texas, or to such person as he may duly appoint on the production of the proper receipt therefor, signed by the secretary of the society. If any claim for or right of forfeiture or any default on the part of the holder of the said policy now exists, the society does not by this notice waive the same.
"M. Murray, Cashier.
"Note. — The policy referred to in the above notice contains the following provision: `Should default be made at any time hereafter in the payment of any premium due upon this policy as herein provided, the society will waive such default and accept the payment of said premium, provided the amount thereof with interest thereon at five per cent. per annum from date of default be tendered to it within thirty days after such default.' (Over.)
"No payment of premium made to any person except in exchange for the official receipt signed by the Secretary of the Society, can be recognized. Enclose this card with your remittance in payment of premium specified on the other side.
"Please notify the Equitable Life Assurance Society, 120 Broadway, New York City, of any error or change in your post office address in writing at same time giving numbers of all policies on your life in the society.
"Agents are not authorized and cannot grant an extension of the time for payment of premium. If the society has heretofore granted such extensions it in no way binds it to make other or further extensions, and it is not to be construed as its practice or custom."
Thereupon the following correspondence took place:
"Sartartia, Texas, Feb. 16, 1906. Mr. Jas. H. Wyman, Cashier, Austin, Texas — Dear Sir: I have your notice stating that my premium would come due on the 24th of March on the two policies which I hold. Yours truly, C. G. Ellis."
"Austin. April 3, 1906. Mr. C. G. Ellis, Sartartia, Texas — Dear Sir: Replying to your letter of the 30th ult. to Mr. Baker in which you applied for a loan on your policies (Nos. 1,324,813-814, the loan value of each policy is $575. You will see that it will therefore be necessary for you to send me a remittance of $356.50 in order to complete the transaction. I enclose loan agreement which should be executed as indicated before a notary public and returned me with the policies. Do not fill in the dates of the agreements, this will be done the day the loan is completed. You should also sign and return the slip attached, asking us to deduct the premiums from the loan. On referring to the applications you gave for these policies, I find that one of the policies is payable to your wife and the other to your mother. Not keeping a complete record of these policies, I do not know which is which. I will therefore ask that you fill out the agreements in accordance with the reading of the policies. Your wife should join with you in executing the agreement on the policy payable to her, and your mother with you in executing the agreement on the policy payable to her. When these papers are completed, send them all to me with the remittance, and I shall be pleased to refer them to the home office for their approval. 1 would suggest that you call my attention to the matter *Page 192 next fall when you are in a position to make a payment on your policy, and at that time we can arrange it so that you can pay an irregular premium, carrying your policy in force from March, 1907, until some time in the fall of the year, at date most convenient for you and the annual premium to fall due on that date each year thereafter. Awaiting your further advice, I am very truly yours, Jas. H. Wyman, Cashier."
Inclosed with this letter were two loan agreements, each in the following words and figures, except that one related to policy No. 1324813, and the other to policy No. 1324814, to wit:
$575.00.
"This agreement made this _____ day of ______ between the Equitable Life Assurance Society of the United States party of the first part and ______ parties of the second part, witnesseth: The party of the first part agrees to loan and does hereby loan to the parties of the second part the sum of five hundred and seventy five dollars, receipt of which is hereby acknowledged by the parties of the second part; and the said parties of the second part agree to repay the same to the said party of the first part at its office, 120 Broadway, New York City, on the ______ day of _____, 19__.
"In consideration of said loan the parties of the second part hereby assign, set over and transfer all their right, title and interest in policy No. 1324813 on the life of C. G. Ellis, issued by said party of the first part, together with all money which may be payable under the same to said party of the first part as collateral security for the payment of said loan.
"In the event of default in the payment of said loan upon the date hereinabove mentioned, the party of the first part is hereby fully authorized and empowered, without notice to and without demand for payment by the parties of the second part, to cancel said policy and apply the cash surrender value of such cancellation to the payment of said loan and any unpaid interest. Should the surrender value of said policy exceed the amount of above loan With interest at five per cent. thereon, then and in that case the excess value above the loan and interest shall be made due and payable to the legal owner or owners of the policy on demand.
"In witness whereof we have hereunto set our hands and seal. In the presence of
"___________
"Name of assured
"___________
"Address.
"___________
"Name of Beneficiary.
"___________
"Address.
"[Notary's Seal.]
"N. B. If witnessed by the society's manager or cashier the signature of a notary will not be required."
Attached to each of said instruments was a slip reading as follows: "Equitable Life Assurance Society, Austin. Equitable Life Assurance Society. Please deduct $724.50 premium due 3-24-06, from loan made on my policy No. 1324813. Loan papers enclosed herewith" — one of said slips being intended for policy No. 1324813 and the other for policy No. 1324814, but in other respects identical.
"Sartartia, Texas. Apr. 5, '06. Mr. James H. Wyman, San Antonio, Texas — Dear Sir: I have your letter of the third relative to my insurance policies. I think probably there is some mistake in this. I want the date of payments to be set up just nine months, that is, from the 24th of March to the 24th of December, and I want to make the payments in such a way that it will bring about these conditions. Now the premiums on my two policies amount to $1449, or $120.75 a month, which would be $1086.75. You said that the loan on the policies would be $575 each or $1150 on the two, which would be in excess of the amount of the premium for nine months and make the premiums become due on the 24th of December. Also the two notes which you wish us to execute amount to $1150, you also ask for a cash payment of $356.50, this amount added to the two notes would be $1506.50, which would be in excess of the year's premiums $57. We suppose that there is a mistake somewhere in this discrepancy. I would be glad if you would look this over and would arrange it so as to bring about the desired results, or explain to me where this difference comes in, and in what way they are going to work. Yours truly, C. G. Ellis."
"Sartartia, Texas. April 11, 1906. Mr. James H. Wyman, Austin, Texas — Dear Sir: Referring to the correspondence of several days ago about the payment of the premiums on my two policies, will say that I have had no reply and would be pleased to hear from you at your earliest convenience. Yours truly, C. G. Ellis."
"Austin, Texas, April 12, 1906. Mr. C. G. Ellis, Sartartia, Texas — Dear Sir: I am in receipt of your letter of the 11th inst. and enclose herewith an exact copy of my letter to you of the third. I do not understand why this letter did not reach you. If I can be of any further service to you, kindly advise. Very truly yours, James H. Wyman, Cashier."
"Sartartia, Texas. Apr. 15, 1906. Mr. James H. Wyman, Cashier, Austin, Texas — Dear Sir: Replying to yours of the 12th will say that we received the original letter of April 3rd and replied to it, which evidently you did not receive. I herewith enclose you copy of reply to yours of the 3rd. Yours very truly, C. G. Ellis."
"Austin, Texas. April 16, 1906. Mr. C. G. Ellis, Sartartia, Texas — Dear Sir: Yours of the 15th inst. enclosing copy of your letter of the 5th inst. which we did not receive. *Page 193 It is necessary to complete the transaction as advised in my previous letter, as loan on policies cannot be made unless premiums are paid for three full years. If you only paid the premiums for this fall it would not complete the year. It is therefore necessary to execute the loan agreement for $575 on each policy, remitting me the balance, to complete the transaction. The difference in your letter of $57.50 is one year's interest in advance on loan. This fall, if you wish to make an irregular payment, then you can do so, carrying your policy in force from March, 1907, until such date in the fall as you may wish, and thereafter the premiums will fall due in the fall of the year. Should you continue to pay the premiums for the full twenty years instead of paying the full annual premium for the twentieth year you will pay only a balance necessary to carry your policy from the date in the fall until its maturity in March. I hope I have made myself clear, if not kindly advise me further. Yours very truly, James H. Wyman, Cashier."
"Sartartia, Texas. April 18, 1906. Mr. James H. Wyman, Austin, Texas — Dear Sir: I have your letter of the 16th and will say that I cannot understand why it is that the policies have a loan value of $150 more than I want, why it is necessary for me to pay near $400 more than what I want and which I am not prepared to do. I trust that the matter can be arranged in this way and which I am ready to carry out any day. The way you propose arranging it will still make the premium due on the 24th of March, the very thing that I am trying to get away from, and would require me to execute my note and a lien on the policies for more money than contemplated, and would be required to carry the policies from the 24th day of March to the 24th day of December, besides paying interest on the full amount, it strikes me that it would be a rather one-sided trade. I am willing to give my note, secured by a lien on the policies for the amount of the premiums on the policies from the 24th of March to the 24th of December, together with five per cent. interest on the same. The loan value, according to your letter exceeds the amount of these premiums about $150. Kindly let me hear from you at your earliest convenience. Yours truly, C. G. Ellis."
"Austin. April 19, 1906. Mr. C. G. Ellis, Sartartia, Texas — Dear Sir: Referring to your letter to me of recent date, I am taking the matter up with the home office in regard to loan to pay premiums on your policies, and will advise you just as soon as I hear from them. In the mean time, in order that you may be fully protected under these policies, I enclose a request for extension of thirty days, which kindly sign and return to me with a remittance of $61 to cover term rate for that time. This amount will be held in this office in suspense until the matter is adjusted. I ask this, because your thirty days of grace expires on next Tuesday. Yours very truly, James H. Wyman, Cashier."
"Austin. May 1st, 1906. Mr. C. G. Ellis, Sartartia, Texas — Dear Sir: I have not heard from you in reference to your policies Nos. 1,324,813-14 which were due March 24th, the 30 days grace carrying them to April 24th. As I advised you, I wrote the home office in reference to a loan, they could not at this time grant a loan unless the premiums were paid carrying the policy in force to March 24th, 1907. I hope I will receive a remittance from you covering the amount necessary to complete the transaction, and, in as much as the premiums are now past due, it will be necessary for you to add five per cent. interest to the premiums from March 24th, the due date of the same. Kindly let me hear from you by return mail. Yours very truly, James H. Wyman, Cashier."
"Sartartia, Tex. May 2nd, '06. Mr. James H. Wyman, Austin, Texas — Dear Sir: I fully note the contents of yours of the first, which is about what I expected. Yours very truly. C. G. Ellis."
"Austin. May 9th, 1906. Mr. C. G. Ellis, Sartartia, Texas — Dear Sir: Your letter of the 5th inst. has been forwarded to me from San Antonio, as you will see by the enclosed envelope. I am sorry that I did not make the matter plain to you in reference to the loan on your policies. You will see by referring to the policies themselves that three full years premium must be paid before a loan can be obtained. That is the reason why we are compelled to ask you for a remittance to complete the loan transaction. We cannot grant you a loan on the policies to pay the premiums for nine months, it is necessary to pay the premiums carrying policies in force from March, 1906, to March, 1907, in order to secure the loan. In other words, we cannot make you a loan on the policies unless the premiums for three years are paid. The society is willing to lend you $1159 on the policies to apply towards the payment of premiums due a short time ago. Yours very truly, James H. Wyman, Cashier."
The appointment of J. H. Wyman as cashier is provided by section 20 of the general agents contract and his powers and duties are therein defined. Said section is as follows: "(20) The said society reserves the right to appoint a cashier for the purpose of keeping the accounts and making collections. In case of the appointment of such cashier, all collections shall be made by him, and the bank account for the deposits of all funds shall be kept in the name of the Equitable Life Assurance Society of the United States. It shall be the duty of such cashier to keep exclusive control of all policies, renewal receipts, and other vouchers subject to the rules of said society and the instructions given by its principal officers. In case a cashier is appointed, said party of the second *Page 194 part may collect only first premiums on policies obtained through his instrumentality. New policies may be delivered to said party of the second part by the cashier for such collection, or may be sent for collection on the specific order of the said party of the second part to such person or persons as he may designate, but are to be returned to the cashier from time to time when not collected, as may be desired by the cashier or said society. All premiums as soon as settled, shall be immediately paid over to the cashier." R. H. Baker testified that he was general manager for appellant for a large portion of the state of Texas when the policy in suit was issued; that J. H. Wyman was the appellant's cashier in his office in 1906; that said Wyman was not in Texas; that he had left the state; that witness had supervision over the general agents, but had no authority to employ or discharge agents. Testifying as to the duties of cashier Wyman in his office, he said the renewal receipt was sent to the cashier by the home office, and, when the policy holder paid the premium, it was countersigned by the cashier and delivered to the assured. He further testified that he had no authority, either as general agent or general manager, to grant extensions on renewal premiums on policies that had been issued. Mr. Wyman had no such authority, and the home office only could grant the extension. In 1906 witness stated that Gerald F. Brophy held the position of superintendent of the extension and loan department. In case a policy holder wishes a loan on his policy, a blank form would be sent to the applicant to be filled out and sent to the cashier and by him to Mr. Brophy or the loan department in New York. If the loan is granted, the cashier is notified, and a check for amount of loan is sent to the cashier. The policies are assigned and delivered when the check is delivered. "I don't know the details of it, as I never managed a loan personally. The cashier handles that."
The following correspondence between J. H. Wyman and G. F. Brophy was introduced by appellee:
"Austin, Texas. April 19, 1906. Mr. G. F. Brophy, Superintendent — Dear Sir: I have had some correspondence with Mr. C. G. Ellis in connection with the annual premiums due March 24th on his policies Nos. 132481314. He wishes to have an irregular payment made, carrying these policies in force for nine months, but he is not in the position to make the payment. I suggested that he apply for a loan for enough to carry the policies in force for one year, remitting the balance necessary to complete the transaction. He now states that he is not in the position to do this, and wants to know if he cannot make a loan for an amount large enough to carry the policies in force to December 24th of this year, when he will be in the position to meet the full annual premium. He is very anxious to continue these policies, and this appears to be the only way that he can continue with us. I am writing you for this information at the request of Mr. Baker, who is very anxious to have the policies kept in force, as they are large policies and Mr. Ellis is a well known man in this section of Texas. Yours very truly, James H. Wyman, Cashier."
"New York, April 25th, 1906. Mr. James H. Wyman, Austin, Texas — Dear Sir: Your letter of the 19th inst. in regard to policies Nos. 1324813 and 1324814 — Ellis — is received and carefully noted. We find that these policies were issued in March, 1904, so that only two full years premiums have been paid on each. We could not, therefore, consider the matter of a loan unless premiums are paid for another full year on each policy, thereby completing the three years payments which must be made before the contracts become entitled to any surrender value. Much as we would like to assist you in retaining this business on the books, we are unable to extend the desired aid in this instance for reasons above explained. Provided that premiums are paid to March 24th, 1907, a loan for $575 could be granted on the security of each contract; in fact, it would not be necessary for Mr. Ellis to actually pay these premiums in order to obtain the loans. It is possible for us, as you are aware, to complete the loans, applying the proceeds in payment of the premiums, but we cannot undertake these transactions unless the balance required to close the deal is forwarded to us, together with the policies and necessary loan agreements. Regretting our inability to serve you, we remain, very truly yours, G. F. Brophy, Superintendent."
John C. Sullivan testified that as attorney for appellee on May 22, 1906, he tendered to J. H. Wyman $775 for premium due March 24, 1906; that he kept up said tender, and was willing to pay it at any time which tender he declined to accept.
Mrs. Olive Ellis, widow of said C. G. Ellis, testified that her husband was in excellent health from May 1, 1906, up to the time he received a gun shot wound about 6 o'clock p. m. May 11, 1906, and he died from the effects of said wound about daylight of the next day. She further testified that during said time he was a very busy man; that they worked on the plantation between 150 and 175 men; that he was going from daylight until dark, only taking time to eat his dinner.
The appellant read1s in evidence the receipt given C. G. Ellis for the first premium due on the two policies for $1,449, reciting that same was given for first premium on $50,000 life policies for self on his application for said insurance in said amount, the assurance to be from date of receipt March 24, 1904, provided application was accepted, etc. It will be seen that by the very terms of the policy itself it lapsed and ceased to insure when the assured failed to pay the premium *Page 195 maturing on the 24th day of March, 1906. It is true that the assured had the contract right, within 30 days thereafter, to pay said premium with interest, and the company would, under such circumstances, be compelled to waive the lapse, and the policy would be restored by virtue of its own terms. It required no act to be done on the part of the company to lapse the policy. Nonpayment of the premium lapsed it. Insurance Co. v. Reppond, 81 S.W. 1012; Laughlin v. Insurance Co., 8 Tex. Civ. App. 448,28 S.W. 411; Cowen v. Equitable Life Assurance Society,37 Tex. Civ. App. 430, 84 S.W. 404; Thompson v. Insurance Co.,104 U.S. 257, 26 L. Ed. 765. This proposition might be supported by the citation of many decisions by the courts of final resort in perhaps all the states of the Union. It is not controverted in the majority opinion. It is insisted, however, that the forfeiture clause in the policy, inserted for the benefit of the insurance company, had been waived by it, and that the policy sued on was in full force on May 12, 1906, the date of the death of the assured.
If the testimony sustained the waiver, or if there is enough in the evidence to warrant a difference of opinion among reasonable men, then the verdict of the jury ought not to be disturbed by this court. Counsel for appellee contend, both by brief and oral argument, that the testimony establishes, or at least tends to establish, three grounds, upon either of which this court ought to affirm the judgment of the district court: First, estoppel; second, waiver; and, third, a new contract. It seems to me too plain for argument that the record contains no element of estoppel against appellant. Nothing that it ever did or stated to the assured prior to March 1, 1906, was shown which remotely indicated to him that the company would not require prompt payment of this premium when due. On the contrary, the written notice of its maturity received by him more than a month before it became due informed him that it must be paid on that day or his insurance policy would lapse. No new contract of insurance was made with the assured. If it can be said that the insurance company offered to receive the premium after its maturity, it is certainly true that the insured, if he ever promised to pay the same, never in fact paid the premium. How then can it be contended that he and the company ever made a new contract of insurance? As before stated, the policy lapsed on March 24, 1906, on nonpayment of the premium, unless the company by its authorized agents elected to waive the forfeiture before or at that very date. Nothing occurring before that time even remotely indicates such conclusion. The decision of the question is then narrowed down to the correspondence between that date and the 9th day of May, when J. H. Wyman, cashier, last wrote the assured in relation to the loan on the policies to enable him to make the payment of the then past due premiums on this policy, and another of equal amount in favor of his wife. The policy was no more a lapsed policy after April 24th than it was between that date and March 24th. The only difference was that up to April 24th the company was under contract to waive the forfeiture and restore the policy on payment of the premium, with interest from the day of its maturity. The company had to do nothing affirmatively to forfeit nor to restore it between those dates. At any time after the 30 days of grace, the assured could be reinstated by making application therefor accompanying the application with a medical certificate of good health, and the amount of past due premiums, with interest from the date it was due. There was no express waiver shown, nor do I believe that the testimony warranted the jury in finding that there was an implied waiver. On April 19, 1906, Wyman, the cashier, between whom and the assured several letters had passed relating to securing a loan on his policies, wrote to G. F. Brophy, superintendent of the loan department in New York, inquiring if the company could vary the terms of the policy and make assured a loan, notwithstanding the policy stated that the same had no loan value until three annual payments had been made. Only two annual premiums had been paid. Ellis had written Wyman that he did not have the money to pay the premium. On April 25th, one day after the 30 days of grace had expired, he replied to said letter, stating that the company could not make the loan unless three annual premiums were first paid, but explaining that the amount of the loan could be deducted from the annual premiums that were due on the two policies issued to the assured. On May 1, 1906, Wyman wrote Ellis, acquainting him with the contents of Brophy's letter, and expressed the hope that he would receive remittance covering the amount necessary to complete the transaction; and further calling his attention to the fact that 5 per cent. interest on the premium due March 24th must be remitted. On May 2d Ellis replied acknowledging receipt, and stating that "is about what I expected." This is the last word received from him. On May 9th, Wyman, on receipt of Ellis' letter of April 5th, which had been misdirected and addressed to him at San Antonio, again wrote to Ellis regarding said loan substantially in the same language as his former letter. He closes this letter by stating: "The society is willing to lend you $1,159 on the policies, to apply towards the payment of premiums due a short time ago." The majority of the court concluded that the language used in the Brophy letter and in the two letters written by Wyman after April 24th, read1s in *Page 196 the light of all the correspondence in 1906, hereinbefore set out, shows, or tends to show, that the company had elected to waive the forfeiture by reason of the nonpayment of the premium on March 24, 1906. In this conclusion I cannot concur. At the most, the testimony tends to show that if the assured, on receipt of the last letter of Wyman, which he doubtless received on May 10th, had remitted the amount of said premium, with 5 per cent. interest since the default, and was in good health, the company would have waived the default and restored the policy, and this, too, without a medical examination and certificate of health. But this concession comes far short of conceding any waiver of forfeiture, either express or implied. Mere indulgence on the part of the company does not show or tend to show waiver. Cohen v. Insurance Co.,67 Tex. 327, 3 S.W. 296, 60 Am.Rep. 7; Sovereign Camp Woodmen of the World v. Hicks, 37 Tex. Civ. App. 424, 84 S.W. 425; Cowen v. Equitable Life Assurance Society, 37 Tex. Civ. App. 430, 84 S.W. 404; Thompson v. Insurance Co., 104 U.S. 257, 26 L. Ed. 765; Lantz v. Vermont Ins. Co.,139 Pa. 546, 21 A. 81, 10 L.R.A. 577, 23 Am. St. Rep. 202; Iowa L. Ins. Co. v. Lewis, 187 U.S. 335, 23 S. Ct. 126, 47 L. Ed. 204. But Ellis never paid the premium, nor, in fact, promised to do so. After stating that he was not prepared to pay, he opened up with Wyman, cashier, at Austin, a correspondence, in which he expressed a desire to pay the premium, provided he could borrow the money on his policies, on which he had paid only two annual premiums, but which had no loan value at all, until he had paid three annual premiums. In the correspondence which followed, we discover that Wyman was only endeavoring in every way he could to assist Ellis to keep his policy alive. The policy having lapsed by its own terms on the failure of the assured to pay the premium on March 24th, neither Brophy nor Wyman (neither of whom had authority to waive forfeitures and restore policies) could by implication restore a lapsed policy by the mere failure to refer to it as a lapsed policy in their letters to assured relating to a loan. Ellis was under no legal obligation to pay the premium after the policy lapsed. The company could not have enforced its collection by suit. Lantz v. Vermont Ins. Co., 139 Pa. 546, 21 A. 81,10 L.R.A. 577, 23 Am. St. Rep. 202; Fraser v. Home Life Ins. Co., 71 Vt. 482,45 A. 1047.
If, as the majority holds, the jury were authorized to infer from the correspondence that the company waived the forfeiture on March 24th, then we ask how long must the waiver be presumed to exist. If the answer is up to May 10th, when Ellis received Wyman's last letter, must it then continue indefinitely? If so, we have the company carrying a risk on the two policies for $50,000 without cost to the insured. Appellee's counsel in their brief and oral argument say that it must continue for a reasonable time, and that the jury had a right to presume two things: First, that he would be willing to pay; and, second, that he would have the ability to pay. The answer to this is that Ellis' promise to pay (if he made any, which he did not do) was wholly nudum pactum. He would not be entitled to recover until he accepted the indulgence offered, and paid the premium. If he had done this, a new contract would have been created, founded, it is true, upon the lapsed and dead policy. He did not accept the offer by payment of the premium. The beneficiary in the policy cannot after his death, even within the shortest time thereafter, pay a premium for a dead person on a dead policy. Thompson v. Insurance Co.,116 Tenn. 557, 92 S.W. 1099, 6 L.R.A. (N.S.) 1039, 115 Am. St. Rep. 823; Nat. Life Ins. Co. v. Manning, 38 Tex. Civ. App. 498, 86 S.W. 618.
We now come to the discussion of the question as to whether Wyman, the cashier, or Brophy, the superintendent of the loan department, had any authority to grant extensions or waive forfeitures, if, indeed, it can be claimed that this record shows they did, or attempted to do so. As before stated, I do not believe the record shows any such assumption by them or either of them. As will be seen, Brophy's letter was written to Wyman, cashier, in answer to his relating to a loan desired by the assured. That was the only matter about which the correspondence related. Wyman had written to Ellis prior to April 24th, notifying him that the 30 days grace would expire on that date and had inclosed an application for term insurance for 30 days, and requested the remittance of $61 to cover the term insurance. In this letter this procedure was suggested so that Ellis might be fully protected. The assured refused, or at least, failed, to sign and return the application for extension, or to remit the money. Notwithstanding this, however, Wyman wrote to Brophy, and received his reply, stating that the company could not change the policy, and make the loan unless three annual premiums were first paid, however much the company would like to accommodate Mr. Baker in his desire to keep the policies on his books. Ellis was plainly advised by the policy itself, and by the notice that he had received, that none but the executive officers named in the policy had any authority to grant extensions or to waive the forfeitures. While it is true that the company, notwithstanding the limitations in the policy, could either in writing or by parol employ other persons than those named in the policy to do the very things confided to the agents and officers therein named, it is also likewise true that the testimony must show either express or implied *Page 197 authority conferred by the company on Brophy or Wyman to grant extensions and waive forfeitures. No express authority is shown by the record which would authorize either of them to do these acts. Nor can it be successfully contended that Wyman had such implied authority by reason of the fact that the renewal receipts were sent to him and he had the duty imposed of receiving collections on renewal receipts, and remitting the money to the home office. It has been directly decided by the Supreme Court of the United States that it cannot be inferred from the agent's authority to collect that he had the power to waive forfeitures. Insurance Co. v. Lewis, 187 U.S. 335, 23 S. Ct. 126, 47 L. Ed. 204.
There was no effort made to show that the officers authorized to make waivers and extensions ever knew of the correspondence set out in the beginning of this opinion; nor that either Brophy or Wyman had ever exercised or attempted to exercise such powers before, or that the company had ever, on any occasion, granted them or either of them any such powers. The correspondence in the record alone must be relied on to support the assumption of implied authority to waive. My opinion is that no waiver was shown. United Moderns v. Pike, 76 S.W. 774; Laughlin v. Fidelity Mut. L. Ass'n, 8 Tex. Civ. App. 448, 28 S.W. 411; Fitzmaurice v. Mut. L. Ins. Co., 84 Tex. 62, 19 S.W. 301; Ins. Co. v. Lewis,187 U.S. 335, 23 S. Ct. 126, 47 L.Ed., 204, supra.
I have carefully considered all of the authorities upon which the majority base their opinion, but have not space to review them here. In most, if not all, of them, the insurance company was held bound upon the ground that the agent acting was the general agent of the company in its alter ego. In some of them the company was held to be estopped to refuse payment under the particular circumstances of the case.
I think the anniversary of premium on the policy was March 24th, and not on April 16th, the date of the policy, nor on May 6th, the date of its delivery, and therefore conclude that appellee's cross-assignments of error raising this issue are not well taken, and should be overruled.
It follows from what has been stated that my opinion is that the judgment below ought to be reversed, and judgment here rendered for appellant
KEY, C.J., and RICE, J., disqualified; BARBER, Special Chief Justice, and RECTOR, Special Associate Justice, sitting in their stead. *Page 378