With reference to the action of the court is sustaining demurrers to special pleas 6, 7, 8, and 9, it will *Page 562 suffice to say that the benefit of the theory of substantial defense (unless avoided by appropriate replication) illustrated by these pleas was available to defendant under the averments of plea 5, which reads:
"For further plea, the defendant says that after the execution and delivery of the instrument sued on the same was canceled by mutual consent of the defendant and the said insured."
As appears the agreement averred in plea 5 was one to which the insured himself was a party. In such circumstances no prejudicial error attended the sustaining of demurrers to pleas 6 to 9, inclusive. The allegation in plea 5 of cancellation of the contract "by mutual consent" was the averment of an ultimate fact, not the conclusion of the pleader.
Amended replication 13, to plea 3, appears in the statement ante. This replication averred the authoritative acceptance by the agent, Shannon, of Russell's note (referred to in plea 3) "in payment of the said first premium and delivered the policy" to Russell, who received and accepted the policy. These allegations were descriptive of a completed contractual agreement between the company's agent, averred to have had authority to that end, and the insured that the notewas received by the company's agent in actual payment of the first premium. The averment that the policy was in full force and effect at the decease of the insured detracted nothing from the replication's allegations of fact. Besides, abstractly considered, it was a reiteration of a substantially similar averment in the complaint. Grounds of demurrer to this replication taking the character of objection indicated were without merit. Plea 3 relied upon provisions of the application stipulating that the policy issued thereon should not become effective until the initial premium was actually paid, supplementing these averments with quotation from the policy of provisions requiring the advance payment of premiums, etc. It is not averred in the plea that there was any stipulation in the note, in the application, or in the policy, that the failure to pay at maturity a note received as payment of the initial premium should terminate, should forfeit the insurance on or after the maturity of the note. In the absence of effective contractual stipulations so concluding (Satterfield's Case, 171 Ala. 429, 55 So. 200; Brannum's Case, 203 Ala. 145,82 So. 175, and Norris' Case, 198 Ala. 41, 73 So. 377, in each of which the contractual status considered was materially different in respect to forfeiture from that disclosed by the present plea 3), the failure of the insured to pay a note, authoritatively received as payment of the premium, wrought no forfeiture of the insurance for the period such premium would maintain the insurance. 25 Cyc. pp. 826-828. Amended replication 13 was not subject to any of the criticisms urged in the brief as upon grounds of demurrer so objecting. There was evidence tending to show authority in the company's agent, Shannon, to receive the note in payment of the initial premium, and also that it was so received by the agent. In this connection Shannon testified on the cross by plaintiff:
"I had the right to collect the premium for the policy. As to receiving notes in payment of the premium, that is up to me. I had a right to receive the note instead of cash. I did it continually, and I took instead of cash notes for the first premium, continually, and I had authority to do that, and I did it in this case. I took this note in lieu of the first premium, and accepted it in lieu of the cash, from Mr. Russell. When I received this note I accepted it for whatever the premium was."
The plaintiff thereupon propounded this question: "You had authority to do it and they (meaning the company) knew you weredoing it?" (Italics supplied.) The defendant objected to the italicized part of the question on the ground that that part of the question sought a conclusion of the witness; and the court overruled the objection. The objection was well taken. L. N. R. R. Co. v. Perkins, 165 Ala. 471, 473, 474, 51 So. 870, 21 Ann. Cas. 1073; Norton, etc., v. Martin, 202 Ala. 569, 573,81 So. 71. But no prejudice resulted to defendant from this erroneous ruling, since the witness, in replying, testified: "Not that I know of." Whether there was an effected surrender and cancellation of the contract by mutual consent of Russell and the company was the chief issue in the cause. It appears without dispute that the agent, Shannon, wrote Russell on December 12, 1920, calling his attention to the maturity of Russell's premium note on December 15, 1920, and requesting payment. Russell received this letter. Under date of December 15, 1920, 3 days after the date of the letter to Russell from Shannon, Shannon received through the mail a letter, written on the stationery of O. W. Tinney, of Talladega, Ala., to which Russell's name was affixed, in which reference was made to a letter received from Shannon a "couple of days ago," as well as to the note given by Russell to Shannon. This letter recited the fact of inclosure therein of the policy now sued on, that Russell did not want the policy, and hence returned it, because it was issued by a company other than the one in which he desired the insurance written, and that Russell would not pay for the policy, directing Shannon to return the note, "which," the letter stated, "I would have owed you" if the application had been placed with the preferred insurance company. This letter was dated Talladega, Ala. Russell's post office was Alpine, Ala. Russell was a mail carrier. Alpine is in the same county, *Page 563 apparently about 8 or 10 miles from Talladega, the county site. Shannon gave the policy thus received to another agent of the defendant, through whom and the defendant's Birmingham office it was sent to the home office, where, in regular course, on December 21, 1920 (5 days before Russell's death), the company's representative stamped thereon the words, "Not taken." The note was not returned to Russell. It has not been since returned. It was not paid before Russell's death. The plaintiff's subsequent tender of payment of the note was refused by the company. The evidence leaves in no fair doubt that the signature to the letter of December 15, 1920, purporting to be from Russell to Shannon, was not signed by Russell's own hand.
The letter of December 15, 1920, purporting to be from Russell to Shannon, is shown by its terms to be a reply to Shannon's letter, which was otherwise shown to bear date December 12, 1920. It was received by Shannon in due course through the mails. The authenticity essential to render a letter admissible in evidence is afforded, prima facie, where it is shown that the letter offered was a reply to a previous letter to that person, received in due course by mail. The presumption of genuineness thus indulged is, of course, rebuttable. 14 Ency. of Ev. pp. 744, 745; 22 C. J. pp. 908, 909; Rike v. McHugh Groom, 188 Ala. 237, 241, 66 So. 452; American Workmen v. James, 14 Ala. App. 477, 480, 70 So. 976. The rule stated cannot be denied application in the present instance, because the letter, disclosing its character as a reply to previous letter of a "couple of days ago," was dated Talladega instead of Alpine. To rebut the stated presumption it is necessary for the party against whom such presumptively authentic letter is presented to not only adduce testimony designed to show that the purported author of the letter did not sign it, but also to adduce testimony designed to show that the purported author did not authorize another to formulate and send the letter. Capital City Supply Co. v. Beury, 69 W. Va. 612, 72 S.E. 657, 658; 22 C. J. pp. 908, 909, note 1 on latter page. Assuming that Russell did not sign the reply letter, there is no evidence tending even to negative the idea that Russell authorized another to formulate and send the reply letter in his name. As evidence upon the issue whether the policy was in force at the time of Russell's death, this letter, presumptively genuine, is to be accorded such effect as its terms fairly import. The letter, in response to the agent's request for payment of Russell's premium note due December 15, 1920, expressed in unmistakable language Russell's refusal of the policy, gave his reason for so declining to accept it, and also avowed his purpose not to pay therefor, and demanded the return of his note taken by the agent before the policy was delivered to Russell. Notwithstanding Russell's delay in avowing his purpose and in returning the policy (which under other circumstances might have become important if the company had questioned the legal efficacy of his delayed avowal and action), the company, at its home office, accepted Russell's repudiation of the contract by indorsing thereon, before Russell's death, the words, "Not taken," thereby manifesting the company's accord with Russell's view and contention. These expressions and acts of Russell and of the company effected a surrender and cancellation of the policy (2 Black on Rescission and Cancellation, § 492), unless the failure of the company to advise Russell of its acceptance of his act and avowal as an extinguishment of the contract (assuming, quite doubtfully, that the acts of the parties did not evince a mutually consummated agreement that a contractual status never had been attained), or unless the failure to restore the note before Russell's death operated to render incomplete the cancellation of the insurance.
In respect of the failure to restore the note before the death of Russell, it will suffice to say that the letter surrendering the policy to the company's agent and avowing Russell's purpose to not pay therefor did not interpose the return of the note as a condition precedent to the cancellation of whatever liability, ad interim, there may have been on the policy. Indeed, the terms of the letter disclose Russell's purpose to have been to refuse the policy and to consummate that through a surrender thereof, and, consequent upon this action, to demand the restoration of his note. Russell was the actor in the premises; and, if his proposal was accepted by the company, the failure to restore the note did not postpone the full accomplishment of the cancellation beyond the date (December 21, 1920) the company manifested its agreement by indorsing thereon, in regular course, "Not taken." Like considerations, afforded by the stated acts of Russell and of the company, require the conclusion that notice of acceptance of Russell's avowal, accompanying the return of the policy, was not necessary to effectuate the complete extinction of liability on the policy before Russell's death. There was shown by the evidence an agreement, a meeting of the minds of these parties, the company accepting the proposition of Russell. Defendant was entitled to affirmative instruction against a recovery by plaintiff on the defense that the contract was canceled.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur. *Page 564
On Rehearing.