At the time of the payment by plaintiff to Holley of the two quarterly • premiums, the policy was forfeited by its terms. It then became incumbent upon the plaintiff, in order to recover upon the policy, to show a receipt of the premium by some one authorized to receive it, after forfeiture, or to show a ratification of an unauthorized receipt by the company, by an acceptance of the money with knowledge of the facts, or in some other way. I think the case fails to show Holley’s authority to receive the money after forfeiture. He was a clerk of defendants, had been an agent to receive applications for insurance in New Jersey, which appointment had been revoked. He had been sent by a previous - secretary to collect premiums, but always with strict orders to collect none on forfeited policies. Holley signed the receipts for the payment in question as agent for the then secretary. There is no proof of his power to act as agent for the secretary. Neither Holley nor this secretary is produced as a witness. If the secretary had the power to.waive the forfeiture, he is 'not proven to have done it., HoHey had never done a like act. His power to bind the company, by receiving money on policies on life, would be no evidence of power to waive the forfeiture by receiving the premium after the policy had ceased to exist, by reason of nonpayment. The company had never received the premium collected by HoHey.
I am unable to distinguish this case, in principle, from an unreported case in this district—Taylor v. British Commercial life Ins. Co.
In this case the policy was upon the life of one E. P. Taylor. WiHiam Wilson was the agent to receive the premiums. He was instructed, if the premiums were not paid within thirty days, to return the receipt to the general agent in New York. The poHcy provided that it should be void if the premiums were *94not paid within thirty days after the same became due. Taylor suffered default for over thirty days. About fifteeen days after the policy became forfeited, the assured paid the premium to a clerk in the office of the agent, Wilson. Within a few days after this payment, the assured died. The company had never received the money; The clerk in the office of the agent had generally received the premiums for his father, the agent. The court held this William Wilson had no power to waive the forfeiture or to bind the company by receiving the money after default; that he was a special agent, and could not exceed his powers as such and bind his principal by Ms acts, although the assured knew nothing of his limited powers.
In that case the charter and by-laws were admitted in evidence—I think it was erroneous to exclude them in this case. If they did show who was authorized to remit forfeitures they should have been received. From the evidence of the president of defendants, I suppose they did.
The rejected evidence, or such parts of it as would show its pertinency, should properly have been presented by the case, so that this court could more satisfactorily determine this point. I think the judgment and order denying new trial should be reversed, and new trial granted, costs to abide the event.
Order accordingly.