The opinion of the court was delivered by
Powers, J.I. It is insisted that the action was improperly brought in the name of Chapman’s administrators.
In the case of Davenport, Adm'r of Twombly, v. N. E. Mut. Life Association, 47 Vt. 528, which was an action of assumpsit upon a policy of life insurance, it was held that the action was improperly brought in the name of the administrator. But an examination of that case will show that the decision was based upon the averment in the special count that the defendant “ undertook and then and there faithfully promised to pay to the wife and children, or their legal representatives, &c.” To this count there was a demurrer; and in accordance with the rule that on demurrer pleadings will not be helped out by inferences, the court held that the promise alleged was express to the wife and children and no promise to the intestate, whom the plaintiff represented, was to be inferred. In the case at bar the engagement of the company is expressed as follows: “ And the said company do hereby promise to, and agree with, the insured, his executors, administrators or assigns, to pay, &c.,.....(and in case of his death before A. D. 1913), to pay his mother, Clara M. Chapman, &c.”
Here it is seen the contract is made with Chapman; the consid*107eration moved from him; the promise moved to hiifi, and the action is for the breach of this promise. Clara M. Chapman is in a contingency the beneficiary of the contract, but is not a party to it. The promise upon which the obligation of the defendant to pay, rests, was made to the intestate, and his representatives alone can enforce it.
II. It is further claimed that there was a variance between the declaration and the evidence offered in support of it. This objection went upon the ground that the several conditions embodied in the policy were not set out in the count, and compliance with their terms, by the insured averred — except as to the fourth condition, the count alleges “ that the said George R. Chapman during his lifetime, to wit, at Burlington aforesaid, performed and kept all and singular the agreements and conditions on his part to be performed and kept.” It would be useless to set out the conditions in haec verba and then proceed with proper language to allege performance of the same. To entitle the plaintiffs to recover, it is not necessary to make proof that the insured did not die in a duel, or while employed on a railroad, or while engaged in any of the vavarious hazardous employments specified in the conditions of his policy. Why then necessary to aver such facts ? The most elaborate and detailed recital of the conditions with the fullest and most technical allegation of compliance therewith, amount to nothing more than a statement that the insured has kept and performed his agreement.
As to the fourth condition, the count avers a waiver of the payment of the premium due July 24th, 1877. The policy makes the payment of the premium on the day named a condition precedent to the further continuance of the contract. If the plaintiffs had offered the policy alone in evidence it is clear that there would be a variance between the count and the evidence. But the plaintiffs supplemented the evidence afforded by the policy by proof that compliance with the fourth condition had been waived by the company and thus the proofs accorded with the allegations in this respect.
If a written contract has been varied in its terms ,by the par*108ties, the new or varied contract is the one upon which suit is to be brought; and if one of the parties thereto has been excused from the performance of a condition imposed by the contract upon him,, this excuse should be set forth in the declaration, if the party expects to offer proof of it on trial.
III. Finding no difficulty with the question of pleading raised, we come to the more substantial and doubtful question whether the evidence disclosed a waiver of the fourth condition, so far as the same required the payment of the current premiums as they matured.
The language of this condition is, “ in case the premium shall not be paid to said .company, on or before the time herein mentioned for the payment of the same, then and in every such case . . . this policy shall cease and determine.”
There is much conflict in the authorities upon this question of waiver ; but the trend of the decisions is in the direction of up. holding the contract in cases where the insurers by this course of dealing with the insured have given him the right to understand that a strict compliance with the language of the condition requiring payment of his premiums on the day fixed, would not be exacted. The requirement of such payment is inserted in the contract for the benefit of the insurers, and is voidable at their election. If they see fit to waive the condition, the policy continues obligatory upon them on its original terms. The evidence tended to show that not only respecting the policy in question but respecting another policy held by Chapman and others procured through his agency, the company had in many instances, accepted' premiums overdue for periods ranging from five months to nearly a year. In these instances the company had the right to declare the poli, cies forfeited, but had elected to treat them as on foot and to collect the premiums as soon as they could. This evidence with other kindred facts shown, fully warranted the court in submitting to the jury to determine whether the company, by its course of dealing, had given Chapman to understand that the fourth condition of his policy would not be insisted upon, and whether he would have indulgence respecting his payments.
*109The special question submitted, examined in connection with the charge of the court, is not objectionable in form. If the indulgence granted to Chapman was indefinite as to time and was granted under such circumstances as to estop the company from now repudiating it, it had all the force of an agreement for delay. The scope of the question could not have been misapprehended by the jury in view of the instructions given them. The jury was in substance told that to warrant a recovery the indulgence must have been granted in duration, long enough to cover Chapman’s life, and absolute enough in character to cover intervening occurrences affecting the risk — as for instance — sickness and death. But the general verdict for the plaintiff rests upon the same basis as the special one; the latter, therefore, was unnecessary.
The company insists and has insisted since Chapman’s death that the policy lapsed July 24th, 1877, by the non-payment of the premium then due. It is not apparent how a tender of that premium by the administrators would affect their right of recovery under such circumstances. The policy provides that the sum payable is to be redeemed by any balance of unpaid premiums for the year. Some other points were made in argument, but the views herein expressed render discussion of them unncessary.
The decision herein announced is the conclusion of the majority of the court. Judgment affirmed.