(dissenting). Under the contract of insurance involved in this case the insured was obliged to make periodical payments of the stipulated premium under penalty of having his contract rights forfeited. The payment of these premiums was entirely consistent with a determination on the part of the insured to stand on the contract obligation and insist that the insurer abide thereby. The insured was entitled to proceed to carry out his part of the contract, and might well ignore the arbitrary and impudent assumption, on the part of the insurer, of the right to relieve itself of two thirds of its contract obligation by going through the formula of passing a by-law to that effect. The obligation of a contract is not so easily disposed of. If it could be, there would be little stability to such obligations. As was well said by the Pennsylvania court in Becker v. Berlin Ben. Soc. 144 Pa. St. 232, 22 Atl. 699, the passing of the alleged by-law “was certainly an easy mode of relieving the society of an obligation, and, if successful, will doubtless be followed by other similar associations. The difficulty in the way of this convenient mode of paying debts is that it is repudiation pure and simple.” To the same effect are Covenant Mut. L. Asso. v. Kentner 188 Ill. 431, 442, 58 N. E. 966; Becker v. Farmers’ Mut. Ins. Co. 48 Mich. 610, 12 N. W. 874; and People v. Empire Mut. L. Ins. Co. 92 N. Y. 105.
The ability or inability on the part of the insurer to carry out its contracts is immaterial. Whether it would be wise *505or unwise for the policy-holders to insist on their rights is beside the question. The courts are not mailing contracts for parties. If the insurance company could induce the policyholders to surrender the contracts which they held and accept others in lieu thereof, it was within its province to do so. If it could not, then it should take the route traveled by other insolvents. It could not, without the consent of the insured, assume to substitute an entirely different obligation on its part from that which it was bound under the contract to meet. To say that a party may deprive himself of two thirds of the benefit of his contract without consideration, by carrying out his part of it and by simply disregarding an unwarranted attempt on the part of the insurer to foist another contract on him, is carrying the doctrine of waiver away beyond where T think it should be carried. The insurer has not been misled to its detriment, and had no right to assume, in the absence of express consent by the insured, that any such proposition would be agreed to.
If A. writes B. that the latter owes him $1,000 and B. ignores the letter, in a suit brought to recover such sum, by most courts the fact of writing the letter, and of failure to reply, could not be shown in evidence. In some jurisdictions such facts might be shown as tending to establish an admission; but the evidence at best, if receivable at all, would be very weak. Jones, Ev. § 583 (599) ; 2 Wigmore, Ev. § 1073. Here, it seeems, the same facts are not only admissible as tending to show assent or ratification, but the evidence is held conclusive. What, at best, is only held to be inconclusive evidence of a weak and unsatisfactory character of an eviden-tiary fact, is here decided to conclusively establish a waiver.
Neither do I think there is any justification for construing a contract made by a mutual life insurance company differently from a contract made by a stock company engaged in the life insurance business. Considering the purposes for which this class of contracts are made, stability above all *506things is desirable. In my judgment it is neither just to the insured nor expedient for the insurer that such contracts should rest in uncertainty. The holder of a policy in a mutual life insurance company should feel that his contract is just as inviolable as that made with any other insurer. The volume of this class of business is too large to be jeopardized by anything bordering on a lax construction of such contracts. The authorities do not recognize any such distinction. Ins. Co. v. Connor, 17 Pa. St. 136; Covenant Mut. L. Asso. v. Kentner, 188 Ill. 431, 58 N. E. 966; Becker v. Farmers’ Mut. F. Ins. Co. 48 Mich. 610, 12 N. W. 874; People v. Security Life Ins. & A. Co. 78 N. Y. 114, 125.
A motion for a rehearing was denied January 26, 1909.