Counsel for appellee have called our attention to a clause in the policy not treated by us in the opinion, nor in their briefs theretofore filed. The clause referred to is in paragraph 5 of "Special Provisions and Conditions," where it is provided that: "The cash loan, paid up and extended insurance values shall not become available until three years from the date of issue, as set forth on page one hereof."
Counsel feel that our opinion runs contrary to that clause in the policy, in connection with the other provisions which we mentioned in the opinion. On page 1 of the policy there is a clause to which we referred in our opinion that the "non-forfeiture values shall be computed as if this certificate had been issued on the 1st day of April 1925." Then follows: "Issued at Omaha, Nebraska, this the 9th day of April 1929." It is argued that we have not distinguished the date of the "availability" of the "non-forfeiture values" from their "computation," and that it means that they shall become available not before April, 1932, and then they shall be computed as though the policy had been dated in April, 1925; that thereby the first available "certificate year" is computed as the seventh for cash and loan values, and that the other certificate years in the table have no application.
Appellee is responsible for the language of this contract. It is on a printed form. If that construction had been intended, its meaning to that effect could have been easily so stated. But the language of the application, which is part of the contract, is that by agreement it shall "bear the date of April 1, 1925," and that the values shall be "available" after "three full years from its date," and the policy stipulates that such values shall be computed as of the 1st day of April, 1925. The newly cited clause in the policy, and that which fixes its date for computing values, and the date fixed in the application which the policy shall bear, and when the values shall be available, all naturally relate to the same occasion.
Counsel argue that their construction of the policy is borne out by the further consideration that on April 9, 1929, when the policy became effective, the period of three years after April, 1925, had elapsed, and that the clause could not have literal application as of that date because the policy was not effective three years after that date. But the clauses mentioned were printed, and were not written in the policy to fit accurately the date of April, 1925, which was the written part made to fit as near as may be that which was already printed for general use. When appellee undertook to fit such a date in such a contract, the meaning is that, though the values were stated to be available three years from the date agreed upon, they in fact became available by such agreement immediately after its effective execution, since three years had then expired; not, of course, that any such values accrued on April 1, 1928, three years after its date, because there was then no such contract.
This member had been in good standing about thirteen years before this policy was issued. He had aided in establishing its financial standing. It was not unreasonable that appellee should accord him some substantial benefits from his long and continuous contribution to its resources. This it undertook to do, as the contract imports, and as all parties agree, but by saying to him that we will cancel your old policy which contained no such values, and give you a new one and will fix its date April, 1925, instead of now, April, 1929, as the date when your values shall be computed, both in fixing the date of their availability, and therefore of necessity the method of determining their worth. It is admitted that the four-year period was granted the policyholder. The only question is whether it shall not become available until three years after the new policy becomes effective. We think that the rule of strict construction against appellee operates to a different result. We therefore maintain our view as expressed in the former opinion.
Application for rehearing overruled. *Page 648