Upon the payment of the cash premium and giving of the premium notes by the assured to the insurers, the policy became a binding contract; although by one of the conditions annexed, upon which it was declared to be made and accepted, it was to cease and determine in case of a failure to pay any premium note when due. The terms of the receipt given for the cash premium did not change the nature of the contract of insurance in this respect. The burden of proving a breach of this executory stipulation and an avoidance of the policy, by non-payment of one of the premium notes, was upon the defendants. Gray v. Gardner, 17 Mass. 188. Kingsley v. New England Insurance Co. 8 Cush. 393. Daniels v. Hudson *148River Insurance Co. 12 Cush. 426. Orrell v. Hampden Insurance Co. 13 Gray, 431.
On the point whether the premium note in question had been paid, the evidence was conflicting, and was submitted to the jury with suitable instructions. Although an agent of the company had no authority to bind them by receiving payment of a premium note after it was due, the company might receive such payment at any time. If they received the amount of the note from their agent after it was due, they were bound to inform themselves of the time when it had been paid to him; and by receiving it from him without inquiry they waived the right to insist on the delay in the.payment as a ground of forfeiture of the policy. Exceptions overruled.