The opinion of the Court was delivered by
Moses, C. J.The testimony in the cause presented no issue of fact for the solution of which the conclusion of the jury was necessary.
The facts may be conceded as established by the evidence adduced on the part of the respondents, and if they do not constitute a sufficient cause of action against the appellants they were entitled to a non-suit. The determination of the ease depended on the construction of the policy and of its conditions, which was the contract between the parties, and this was for the Court and not for the jury.
Before entering on what really appears to us the merits of this contention, it may be satisfactory to refer to the position submitted on the argument in behalf of the respondents, which claims the existence of the policy at the death of the assured, by reason of the alleged payment of the premium in his lifetime. There is a distinction between a tender and actual payment itself. The former may sometimes so operate as to place the party making it in a position in which he may be entitled to the full benefit of some condition which was to avail, if within a certain time he made payment of the stipulated sum fixed by the agreement, but it cannot amount to full and complete satisfaction. Here the point relied on was, not that payment of the required premium had been made, but the intention of the assured, by enclosing the money in a package, its direction to the General Agent of the Company, and its presenta*327tion after his death by Herrick and Lake, amounted to a compliance with the stipulations on the performance of which the interest in the policy was preserved to the respondents. This raised a question of law. The facts from which the legal conclusion was to be drawn, were not contested and presented as. a proposition purely for the judgment of the Court.
To give, however, to the respondents the full benefit of the acts through which they contend the policy was savéd to them, for the purpose of the argument, we will consider what would have been their effect if the assured had been living, and claimed, that his policy was still of force by virtue of the transactions which the respondents aver, he being dead, secure to them the benefit of the covenant. “ The conditions annexed to a personal contract, like a policy of insurance, must be performed according to the terms used, and the apparent intent of the parties, and are not satisfied by a performance cypres.” — 3 Steph., N. P., 2072. Every warranty in the policy is a condition precedent, and the assured must aver and prove performance of it. It is held that a liberal construction must be given to such an instrument in seeking for th'e true intention of the parties, but if the terms leave no doubt of this, it must be enforced according to their plain meaning.
The following extracts from the policy show so much of its con-, ditions as is necessary for a proper understanding and decision of the case. “ The company, in consideration of the first annual payment on the policy, continues the same in force from the 5th day of March, 1869, to the 5th day of March, 1870, and in consideration of the payment of the like sum in cash every twelve months as hereafter stated, and of the annual premium of eighty-six dollars and seventy-five cents, to be paid on or before the day of in every year, during the continuance of this policy, (or within thirty days thereafter,- within the lifetime of the assured, when the payments are annual,) do assure the life of David Lewis Donald, &c.;” “ and it is also understood and agreed, * * * * or in case the said party contracting for this assurance shall not pay the said premium on or before the several days hereinbefore mentioned for the payment thereof, then, and in every such case, the said company shall not be liable for the payment of the sum assured, or any part thereof, and this policy shall cease and determine.”
The notice endorsed on the policy, which is made part of the con*328tract, declares that “the premium is payable at the commencement of this risk in one or more payments as within expressed. If the assured desires to alter the mode of payments, application must be made to the company in writing for permission, which the company will grant at its discretion. The premiums are always due on the several days stipulated in the policy, and all risk to the company commences at the time of the actual payment of the first premium, without regard to the date of the policy, (unless otherwise stipulated in the policy), and continues until the day named in the policy for the payment of the next premium, at 12 o’clock noon, and no longer, except that thirty days’ grace are allowed, as within provided, where payments are annual, but no days of grace on less than annual premium.”-
“No premium will be received by the company continuing any risk after the day named in the policy for the payment of such premium, unless the insured is in perfect health, and the risk continued at the entire option of the company, and no payment of premium is binding on the company, unless the same is acknowledged by a printed receipt, signed by the President, or Secretary, or Actuary of the company. Agents are not authorized to bind the company by the issue of policies or permits, nor give receipts for the renewal of premiums; neither are they authorized to waive forfeiture, or make, alter or discharge contracts.”
The policy expired on the 5th of March, 1871, and the risk could be extended beyond that time only “ at the entire option of the company.” The days of grace terminated on the 4th of April following — the assured died on the 7th.' The appellants well contend “ that if he had died on the 3rd of that month, and the amount of premium had been tendered on that day, the company would not have been bound to accept it.” The liability of the company depended on the death of the assured during the continuance of the risk. This ended on the 5th March, 1871, and the extension within the time fixed as days of grace was subject entirely to the will of the company.
The principles decided in Simpson et al., Executors, vs. The Accidental Death Insurance Company, 88 E. C. L., 257, apply to the case here, and the facts are analogous. The premium there was payable on 22d January in each year, and by one of the conditions endorsed on the policy “ the premium was to be paid within 21 days from the day on which the same should first accrue or be*329come due — and that, provided the same should be from time to time paid within such space of 21 days, the policy should not be void, notwithstanding the happening before the expiration of such space of 21 days of the event or events upon the happening whereof the amount secured by the policy should, according to the terms thereof, become payable.” By another condition, it was provided “that if the premium should be unpaid for 21 days next after it should become due, the policy should be absolutely void.” And it was further (fourthly) provided, “ that in every case in which a new premium should become payable, the Directors should be at liberty to terminate the1 risk by refusing to accept such premium.”
A. paid the premiums to the year 1855. On 22d January, 1856, one of the premiums, payable as in the policy mentioned, became due. February 1, 1856, he died from an accident which happened to him on January 27th preceding. It was held that there was nothing in the conditions to enable his executors to pay the premium after his death, and that if they had tendered it within the twenty-one days the company would not have been bound to accept it; that the policy was, by reason of the non-payment of the premium within the terms of the policy and conditions, absolutely void, and that the company were not estopped from denying the payment; that neither the plaintiffs (executors) nor the assured (had he been living) would have had an absolute right to keep the policy alive by payment or tender of the premium within the twenty-one days, the fourth condition giving the Directors the option of refusing to continue it or not, at their pleasure. The principles which governed this decision had been applied in Tarleton, et al., vs. Stanforth, et al., 5 T. R., 695, to a case of insurance against loss by fire, and in Want and Gaskoin vs. Blunt, et al., 12 East., 183, to one arising out of a policy of life insurance. The reasoning in the cases leave nothing for further elucidation, and are conclusive on the points made here in behalf of the respondents.
Nor can the verdict be sustained upon the presumption that the deceased was a recognized agent of the company, authorized to receive payment of premiums for others, and, therefore, to be held invested with the same right, as to himself, the exercise of which continued his policy. In the first place, the evidence contradicts the inference that he had paid the premium by charging it in his account with the company, for he proposed to send it to the General Agent, not in satisfaction of *330money with which he was so charged, but “ to pay premium,” adding, “ if amount is not sufficient, will arrange it when we meet,” and the endorsement on the policy (made part of the contract) expressly forbids agents from giving “ receipts for the renewal of premiums,” and declares that “ no payment or premium is binding on the company unless the same is acknowledged by a printed receipt, signed by the President or Secretary, or Actuary of the company.” As agent, therefore, he could. not have given a binding renewal receipt to a third person, under his own hand, much less have renewed his own policy by a payment to himself.
However reluctant, we are obliged to say that we see no cause of action on the part of the respondents, and the motion lor the non-suit refused by the presiding Judge must prevail, and it is so accordingly ordered.
Wright, A. J., and Willard, A. J., concurred.