The jury has found that the general field superintendent, at the interview in February, 1911, and the cashier at and prior to that time, understood the condition of the health of the insured. The trial justice has not disturbed those findings, but, upon the theory that they had such knowledge, says the fact is immaterial under the authorities. The jury has believed the plaintiff rather than those officials. The plaintiff says the petition for reinstatement was made after the cashier knew of the ill health of the assured and after plaintiff had informed her that she could not truthfully make the petition, and that when she explained that the check had been put in the envelope, and she was surprised' to find that it was not mailed, the cashier said she was very sorry about it, and “ she knew the company would do what was right.” After the petition had been forwarded the cashier called the plaintiff to her office and introduced her to the general field superintendent, and said that .he had brought the reinstatement paper to her from Binghamton, the home of the company," He delivered it to her and said “knowing .the condition of affairs, and knowing how very sick my husband was, that the company had done me a very great favor in reinstating him.” *40She had the right to believe, and evidently did believe, that he came to her as the representative of the home office to close the transaction with her. He had a general supervisory power over agents and to look out for the interests of the company wherever he is. He says that if he knew an applicant was not entitled to reinstatement it would be his duty to report the facts to the company at once. If he was intrusted by the home office with a reinstatement to deliver, and delivered it to a party known by him to be in ill health, he bound the company where the party has relied upon his acts. The plaintiff evidently had no exact knowledge of the powers of the superintendent or the cashier. She may have exaggerated the authority of the cashier, as over her desk, in large letters, was the placard “Security Mutual Life Insurance Company.” That fact, and the fact that the superintendent brought the reinstatement papers from the home office, undoubtedly caused her to believe that she was dealing with the company. The correspondence betweep the cashier and the company with reference to the petition, the reinstatement and the check is not in evidence. It was her duty to inform the company of the known condition of the insured. We must assume that she performed that duty in the absence of proof to the contrary. There is no proof that she and the superintendent failed to perform their duties to the company. The medical examiner says he did not know, but the correspondence was not with him, and the superintendent did not report to him. The petition was simply handed over to him by the company for his consideration. If the company felt that under the circumstances it was not just or wise for it to contest its liability upon technical grounds, evidently it would not have informed the medical examiner, as his approval was desired. If the plaintiff is telling the truth about the attempt to mail the check and the reinstatement, the company would at least have been acting very technically and shortsightedly if it had refused reinstatement. The insured was helpless and failing in strength from day to day; the insurance was constantly in the mind of himself and wife; the default was purely accidental. If the company did not have knowledge of the condition of the health of the insured, the circumstances *41were such that it is estopped by the acts of its representatives under the circumstances shown.
At the time of the default the policy had a surrender value of $900; there was a note against it of $282. The husband was in a hopeless condition and clearly could survive hut a short time. If the company had refused reinstatement it would have been easy for her, in his condition of health, to borrow the amount of the loan upon the strength of the paid-up policy, which would have resulted at the worst in her receiving $618. The plaintiff had no intention to defraud the company. She was acting with its representatives who knew the facts as well as she did; she believed they were honestly representing the company and in fact were the company.
The cases relied upon by the respondent indicate that the cashier had not the power to bind the company by knowledge which she had and did not communicate to the company. We need not quarrel with them, for the fair inference is that the company had the knowledge. If the general field superintendent can bring from the home office and deliver a reinstatement to a dying man, under circumstances which render such delivery just and reasonable, and the company can avoid the effect of it after the assured, relying upon it, has allowed the time to obtain the surrender value on the policy to lapse, then technicality prevails over justice. I think the verdict of the jury, and the inferences fairly coming from it, indicate that the company had knowledge of the condition of the insured at the time it received the check for the premium in dispute, and that it is, therefore, liable on the policy.
The company received the check which had been drawn in December and signed the receipt prepared for the December payment, giving it the date of December 10, 1910, and marking it “reinstated.” It was practically ignoring the fact that there had been a default and was treating the matter as if the check had been received in due course of mail. It is not going too far, under all the circumstances, to say that the reinstatement was dated back as of December 10, 1910, and under the terms of the policy was incontestable.
In addition to the criticisms on the notice made by Justice Howard, it should be stated that the notice is condi*42tional upon its face. It states that the premium will be due upon a certain day if the policy is in force on that day. Why throw a doubt upon the validity of the policy ? Why leave it to the assured to determine whether the premium is due on that day or not ? The law required the company to give notice of the fact, and did not intend that whether the premium was due. or not should be worked out in the mind of the insured. The law contemplates by the notice that it should in substance be a demand for the payment of a certain sum of money on a day stated. A demand by a plaintiff as a basis for a replevin that the property be delivered to him if he is the owner and if he is entitled to the possession is not the unequivocal positive demand which the law contemplates. It is not an absolute requirement that the property be delivered as matter of right. The party making a demand must lay aside all doubt, and by positive act assert his right. The statute contemplates that the notice shall only be given to those who have a legal policy, and that it shall be a positive statement that a certain sum of money is due on a date specified and that a failure to make payment will avoid the policy.
The notice requires payment to the comptroller at Binghamton and is signed by the secretary. A postscript with the initials “M. F. H.” authorized the payment to any authorized collecting agent having a receipt. We do not know how many such agents there are. It also states that payment may be made to M. F. Hearley, authorized collector, at Albany. This was confusing. A technical effect is sought to be given to the notice; it, therefore, should comply with the law. The court cannot be called upon to help it out. I, therefore, favor a reversal and judgment for the plaintiff.
Woodward, J., concurred; Smith, P. J., dissented.