I concur in the result reached in the majority opinion, but do not concur in the construction of Section 2958, Revised Statutes 1929:
"All instruments of writing made and signed by any person or his agent, whereby he shall promise to pay to any other, or his order, or unto bearer, any sum of money or property therein mentioned, shall import a consideration, and be due and payable as therein specified."
All instruments in writing of a certain character "shall import a consideration." The purpose of that section is to give validity to such undertakings so that in a suit to enforce one it is not necessary to prove a consideration in order to make out a case. A failure of a consideration would be a defense. If a contract stipulates a consideration, as it does in this case, it is not necessary to import one. *Page 251
If a consideration is imported, is it different from the one specified in the contract? If so it would vary the terms of the contract. Does it import the consideration provided for in the contract? Certainly not. That which is expressed cannot be implied. The statute applies only to contracts which express no specific consideration. It applies where it is necessary, not where it would be superfluous.
The statute cannot mean that such contract "imports" any specific consideration. It imports some consideration, which would give the contract validity. It is entirely general, and in effect states a rule of evidence, so that a valid contract is prima-facie proven without proof of a specific consideration. When a contract provides for a consideration prima-facie proof is complete without importing a consideration.
The writer of the opinion, apparently conscious of the necessity of importing something not expressed in the contract, goes further and says on page 7:
"The policy imports payment of the premium."
There we have it. It imports performance of the contract. It might as well have been said that it imports performance of all the other conditions of the contract. It is not the payment of the premium that constitutes the consideration, but the agreement to pay it. In this case it was not paid, nor intended to be paid, until nearly two months after the policy was delivered.
The insurer promises to pay any loss on the property. The insured promises to pay the premium stipulated. One promise was a consideration for the other.
"Where a promise affords a consideration for a contract, it is the promise and not the performance thereof, that constitutes the consideration." [13 C.J. 327.]
The promise here was to pay the premium. The performance was the payment. It was a valid contract and enforceable beforepayment because the consideration was ample.
If the opinion means that payment of the premium was the consideration, then in the interval of more than a month after the delivery of the policy and before the payment there was no consideration, and consequently no binding contract until the payment was made. If a loss had occurred during the interval the defense of no consideration would have been complete on the theory that payment is the consideration which the law imports. If the plaintiff in such case should rely upon the express agreement that the payment was not due, what becomes of the notion that payment was the consideration imported?
No case can be cited where the payment of the premium is held to be the consideration for a policy unless the payment was at or *Page 252 before the delivery of the policy. Even in life policies where yearly assessments are provided for, a failure to pay is not called a failure of consideration but a forfeiture for nonperformance.
The case was tried without error and could have been affirmed without giving the statute a meaning not expressed or implied in it; a meaning entirely foreign to its purpose. Henwood, J., concurs in these views.