I dissent from the order denying a rehearing. The language of this policy was chosen by the defendant, and seems to have been chosen not for the purpose of expressing a clear intention, but rather with a view of giving it the appearance of intending one thing while really providing for something inconsistent. In one clause (clause 3) it provides that in a certain contingency there shall be a partial forfeiture of the policy, and this provision is set out *Page 484 with considerable fullness and rotundity of expression. In another clause, by a half-dozen words at the end of a sentence, an absolute forfeiture is provided upon the same contingency. I do not think that the defendant is entitled to claim for itself the most favorable construction of a contract which it has purposely made ambiguous, and especially where the result is manifestly unjust.
In this particular case, perhaps, no serious injustice is done, for the notes given by the insured in payment of the premiums, which by the terms of the policy were payable only in cash, and were forfeitable in case of default, would, with interest, amount to as much as the unforfeited portion of the policy, and they, in my opinion, constitute a counterclaim in favor of the defendant.
But the principle of the opinion, applied to other claims upon similar policies, might work the grossest injustice. As, for instance, in the case put by counsel: "The insured may have paidten premiums in cash and notes; he may have paid interest on these notes for many years, until all of them, except the last, have been canceled by dividends; he may then default in the payment of the annual interest on the last uncanceled note,reduced by dividends to a nominal amount. On the construction which the court gives the policy, the insured loses everything, although, if he had not paid any part of the tenth premium, he would have been entitled to nine tenths of the policy in paid-up insurance! Because he received term insurance for the tenth year for the face of his policy (which he could have purchased forless than half the cash part of the tenth premium), he is put in a worse position than if he had failed to pay any part of the tenth premium! Because he received something which he more thanpaid for, he must lose that which he fully paid for!"
A construction of this policy which would inevitably lead to such a result in the case supposed, and in other like cases, certainly has little to recommend it, and, in my opinion, may be avoided upon two grounds: 1. That the doubtful or conflicting clauses of an agreement should be construed against the party responsible for the ambiguity; and 2. Because a provision involving a total forfeiture should yield to a provision involving only a partial forfeiture. *Page 485