Reduced to the last analysis, the majority opinion rests upon the principle very generally recognized, that an election once made is final and irrevocable. Collins v. Whigham, 58 Ala. 438; Alexander v. Mobile Auto Co., 200 Ala. 586, 76 So. 944; Mobile Towing Wrecking Co. v. Hartwell, 208 Ala. 420, 95 So. 191; Phillips v. Sipsey Coal Mining Co., 218 Ala. 296, 118 So. 513; 13 C. J. 630; 6 R. C. L. 860.
But, though the insured made an election, yet, for it to be conclusively binding, the election must become effective, as illustrated in Collins v. Whigham, supra, as well as by a consideration of the underlying principles governing elections (2 Williston on Contracts, § 683 et seq.), to the effect that "a choice made by election gives the one making it an advantage which he could not otherwise have had. Though he surrenders one right he gains or keeps by so doing another and inconsistent right"; and in section 685, the author further says: "The principle of election is an equitable one and unless the other party has been deceived or the situation changed it is inequitable to regard a choice as final unless the party having the right of election was aware, or should have been aware, of all material facts making one choice desirable or the reverse."
Here, the insured expressed his choice, gave his directions and remained ignorant of the fact that his request was disregarded. His election never became effective, and could not on any equitable principle be declared as forever binding and conclusive. So far as its effectiveness was concerned, his election was but a mere gesture. And all of this was through the fault of the defendant company, which must be charged with the knowledge of the election, and held accountable for its disregard. It does not lie with the defendant, therefore, to assert its own neglect in the establishment against the insured of an irrevocable election and the forfeiture of his policy. The money was in defendant's hands, and by it diverted to a purpose not authorized. Defendant therefore had money in its hands which in equity and good conscience belonged to the insured.
Defendant may have acted in entire good faith, and no wrongful intention involved, yet it nevertheless has, through its own negligent conduct, used the funds of the insured in an unauthorized manner, and in such manner to be held accountable for money had and received. 2 C. J. 720.
Thus analyzed, the defendant, therefore, under the agreed facts, must be held as a legal *Page 545 consequence to have had in its hands on January 11, 1931, funds of the insured more than sufficient to meet the premium payable on that date, and was, by virtue of the principle recognized on the former appeal, under the legal duty to so apply it as to prevent a forfeiture.
I am persuaded the judgment rendered is correct, and, therefore, respectfully dissent.
THOMAS and BOULDIN, JJ., concur in the foregoing views.