(concurring1). I concur in the result reached by the court in this case, but dissent from the grounds upon which such result is based and the reasoning in support thereof. To my mind the provision of the insurance con*633tract discussed in tbe court’s opinion is unambiguous. Tbe language “If any premium is not duly paid, . . . tbis policy will be indorsed for tbe amount of paid-up insurance specified,” etc., “on written request tberefor within six months from tbe date to wbicb premiums were duly paid. If no sucb request is made, tbe insurance will automatically continue from said date for $1,000 for tbe term specified,” etc., is about as plain, it seems, as English words can well be.
Tbe assured was given tbe option of $1,000 of insurance for a limited time or tbe smaller amount absolutely, tbe former to be regarded as bis choice in tbe absence of notification to tbe contrary within six months. Eacing that plain language, to bold that tbe assured was given bis option to have absolute insurance for $1,000 for tbe limited time with tbe option to substitute tberefor tbe smaller amount of absolute insurance at the end of six months by notice to tbe company within sucb time, seems to be a plain judicial change of tbe contract tbe parties made for themselves rather than a construction thereof.
Tbe reference to tbe New York law prohibiting discrimi-nations and its application in support of the court’s decision, tbe theory being that any other construction of tbe contract would be a violation of sucb law, seems illogical, since, so long as every policy-holder of tbe class is given tbe same option, as is manifestly the case, there cannot be, in tbe very nature of things, any discrimination in bolding tbe parties to tbe plain terms of tbe writing.
Notwithstanding tbe foregoing it was doubtless competent for tbe company to relieve tbe assured from any mistake be may have made in making bis election to take absolute insurance and surrendering bis privilege as to tbe greater insurance for a limited time, long before tbe expiration of tbe period within which be was required to act in tbe matter expired. Tbe company acted commendably in writing assured, •calling attention to bis apparent mistake and expressing the *634Rope that Re "would correct it before it was too late. That plainly and legitimately Reid out an offer to the assured of a reasonable time to make the correction. The only correction that could Rave been in the minds of the parties was a suspension of the election already made to take absolute insurance till about the time limited for action in the matter. The assured seasonably replied 'to the company’s communication, notifying it that Re desired all the advantages which the contract gave Rim. That cannot reasonably be construed otherwise than a correction of the mistake in making an early election ; a withdrawal or modification thereof to the end that it might take effect only at the termination of the six months; the doing of the very thing which the company suggested to the assured he ought to do in his own interest while there was yet time given him by the favor of the company for that purpose. Such being the case, the company acted in fraud of the rights of the assured and the beneficiary in treating the election as not withdrawn. There was in fact no election at the time the assured died except one to take effect at the end of the six months. Therefore a recovery should have been allowed in accordance with the conclusion which the court has reached.