This case was tried before Mr. Justice GAYNOR and a jury in Westchester county.
The defendant is a building and savings association, dealing apparently in insignificant amounts and whose patrons are taken mainly from the poorer classes.
The plaintiff in November, 1900, took out a certificate, so called, in this association and subscribed for twenty shares of what is known as monthly payment stock of the par value of $100. The plaintiff agreed to pay the defendant association the sum of fifty cents per share on account of the monthly payments, which aggregated the sum of ten dollars per month, until such certificate should reach the so called maturity or par value. The plaintiff paid these monthly installments until he had paid $120.
The plaintiff sought to avail himself of this privilege under the following circumstances: It seems that the monthly payments on the shares were required to be made at the principal office or through a local branch. The plaintiff resided at Mt. Vernon, Westchester county, and when payments were due under the certificate he was regularly called upon by an accredited agent of the defendant in Mt. Vernon; and it is assumed that this answered the provision of payment through a local branch, as the company had, in the case of twelve payments, recognized the regularity of this collection.
After the plaintiff had made twelve payments on this certificate, he claimed to be within the provision that his certificate was withdrawable. Thereupon the plaintiff called at the *Page 120 principal office of the defendant on Fourteenth street, in the city of New York, where he saw the secretary of the defendant and told him that he wished to take the necessary steps to withdraw his certificate. Thereupon he was handed a paper which proved to be a regular withdrawal blank duly filled out and he signed and returned it to the secretary. The latter then demanded the return of the certificate and the pass book showing payments and their date. The plaintiff refused to deliver these unless he was given a receipt therefor, and as that was declined the interview terminated, he leaving the certificate of withdrawal with the association.
The question of law, according of Judge GAYNOR, was whether the conceded facts, growing out of the payment of the twelve installments and the interview with the secretary, constituted a waiver of further formalities, and entitled the plaintiff to withdraw his certificate and surrender it and the pass book on receiving some written evidence from the company of the transaction occurring at the main office of the association as hereinbefore stated.
This case turns on the question whether the plaintiff made twelve monthly consecutive payments on his contract of insurance, and was entitled to withdraw his certificate and be accorded such benefits as had then accrued. The claim of the plaintiff is that he made twelve monthly consecutive payments in law which were duly recognized as regular on his pass book issued by the association in due course. The learned trial judge has ruled that two irregularities in making these payments were waived by the company owing to the action of its duly accredited agent or collector. The claim that this plaintiff was four months in arrears of his monthly payments at the time he sought to surrender his certificate in March, 1902, at the general office of the company, is not sustained when the record in this case is carefully scrutinized. When the various dates are examined it becomes perfectly clear that the claim that the plaintiff was four months in arrears when he sought to surrender his certificate, is not borne out by the record facts, entirely aside from the testimony *Page 121 of the plaintiff, who at one point in his testimony became somewhat confused as to dates. The pass book or card must govern. The certificate of the plaintiff is printed in the record and dated November 1st, 1900. The monthly payments required under this contract of insurance were entered by the agent of the company and receipted for by him on what was called a pass book or card which is in evidence. It appears that from November, 1900, to June, 1901, both dates inclusive, the plaintiff paid ten dollars dues a month. In September, 1901, he made a payment of twenty dollars which covered July and August, 1901. These are the payments where the defendant first waived strict compliance with the requirements of the association and disposes of two of the four months alleged to be in default. In January, 1902, the plaintiff paid ten dollars which covered September, 1901, and in February, 1902, he paid ten dollars which covered October, 1901. These last two payments are a waiver on the part of the company and dispose of the remaining two months alleged to be in default. The regular payments and the payment made after they were due and delay waived amounted to $120, which entitled him to surrender his certificate.
The contention of the association is that the plaintiff could not surrender his certificate upon the basis of these payments of $120, for the reason that two of them, July and August, 1901, were not paid until September, 1901; also that the payments for September and October, 1901, were not made until January and February, 1902.
The very obvious answer to this is that these four alleged belated collections were made and receipted for by the agent of the company and amounted to a waiver of earlier payment. It is true that the plaintiff did not make his application to surrender his certificate until early in March, 1902, a few days after the last collection was made in February, 1902. This was for the reason that he was in no situation to surrender his certificate until after the February payment. The plaintiff was led to believe that the company were satisfied *Page 122 with the somewhat irregular manner in which their agent collected of him the four monthly payments, as the pass book or card discloses.
It seems very clear that the four belated collections amount to a waiver on the part of the company by an apparent lack of promptness in collecting the same. The plaintiff had followed the usual course of procedure after he took out his certificate. He was bound by its terms to make his payments at the general office of the company or at some local agency. The general office of the company was in the city of New York and the plaintiff lived in Mt. Vernon, Westchester county. As soon as the certificate was issued the local agent or legal representative of the company began collecting monthly payments and continued to do so throughout the accruing of the twelve monthly payments in question. The claim that four months are in default is unfounded in view of the action of this local agent. The association clearly waived prompt payment.
After the plaintiff had rested, the defendant swore one Frederick J. Weiss, who testified that he was assistant secretary of the defendant and had the custody of the records, and that he examined the papers of the company as to Mr. Hoyt, the plaintiff, and found nothing except the application blank and this card already in evidence. Mr. Bacon, counsel for the company, then offered in evidence the pass book or card, which was received in evidence and speaks for itself. After the defendant rested the plaintiff's counsel moved to go to the jury, but finally joined with defendant's counsel in moving the court to direct a verdict. The court then said: "It is all a question of law; there is no question for the jury that I can see. I will take briefs on the question as to whether there was a waiver, and I will direct a verdict later. Hand in your briefs." Later the court directed a verdict for the plaintiff for $146.40.
It will thus be observed that the trial of this case went off simply on the ground of waiver, as disclosed by the payments entered in the pass book or card in evidence. *Page 123
I am of opinion that the trial judge was right in holding that the evidence amounted to a waiver of all irregularities as to payments which were accounted for by the dilatory methods of the collector of the association, for which the plaintiff was in no way responsible. There is no question of forfeiture in this case.
The account of the interview between plaintiff and the secretary of the association at the general office in New York in March, 1902, does not show that the latter made the slightest objection to the surrender of the certificate. When told by plaintiff that he desired to surrender it, he immediately filled out the usual formal blank for the purpose, and plaintiff signed it; he then demanded the surrender of the certificate and pass book or card, and plaintiff offered to do so on receiving a receipt for the same; this was refused and the interview terminated. A clearer waiver of all other formalities could not have been made. The learned Appellate Division adopted this view, and although the order does not show upon its face that the affirmance was unanimous, neither does it show that any judge dissented.
The judgment appealed from should be affirmed, with costs.
CULLEN, Ch. J., GRAY, VANN and WERNER, JJ., concur with CHASE, J.; HAIGHT, J., concurs with EDWARD T. BARTLETT, J.
Judgment reversed, etc.