Opinion
January Term, 1867
J.M. Van Cott, for the appellants.
W.A. Butler, for the respondent.
The defense in this case arises upon the following clause of the policy: "In case the note or obligation given for the premium herefor be not paid at maturity, the full amount of premium shall be considered as earned, and this policy becomes void while said note or obligation remains overdue and unpaid." The premium to be paid by the assured was not required to be paid in cash. Instead thereof, it was agreed that the assured should give his note therefor, payable at the expiration of four months. This was a waiver of prepayment which the parties had a perfect right to make. They added, however, to this waiver, a condition that if the note was not paid at maturity, the full amount of the premium should be considered as earned. I understand this to mean, that the duty of indemnity on the part of the insurer should thereupon cease; that they had earned all the premium agreed to be paid, and as there was no further compensation to be paid by the assured, no further indemnity from the insurer was expected. The condition further provided that while the note remained overdue and unpaid, the policy should become void. This was a reiteration and enlargement of the same idea. This note matured on the 20th of September, was protested and remained unpaid. On the 9th of October, the vessel insured was lost. On the 20th of October, the plaintiff, being advised of the loss, of which the defendants were ignorant, offered to pay the amount of the note, which offer was declined and the note yet remains unpaid. There was thus a clear breach of a valid condition, and by the terms of the contract, the obligation of the insurer was at an end, before and at the time of the occurrence of the loss; the note, however, remaining in full force and effect. ( Beadle v. Chenango M. Ins. Co., 3 Hill, 161; Neely v. Onondaga M. Ins. Co., 7 id., 49; Smith v. Saratoga M. Ins. Co., 3 id., 508).
On the trial the plaintiff claimed that this condition of the policy had been waived by the defendants, through the action of their agent, D.C. Dobbins, and asked to be allowed to go to the jury on that question. The court held that there was no evidence upon the point for the jury, and nonsuited the plaintiffs. This judgment was sustained by the General Term, and whether it was correct, is the question now to be considered. The evidence of Elijah K. Bruce is relied upon to sustain their claim of waiver. He testified as follows: "I saw him (Dobbins) at the corner of the Merchants' Exchange; he said the note could lie over a few days without any prejudice to the policy; not exactly those words; he said the note would be all right to lie over; he said his company would as soon have the interest as the money; he had said that to me before in other cases. I said to him the indorsers were perfectly good; he said he knew that."
On his cross-examination, he says this was within a day or two of the maturity of the note, and in answer to the question, "Give the jury the precise language," he says: "I told him I wanted him to wait till the Zenobia came home, for payment of that note; I referred to the note; I told him the note was perfectly good; he said he knew that. Have you stated all that was said? As nearly as I can recollect." Wm. Moore was examined on commission and testified, that a few days after the maturity of the note he had a conversation with Mr. Dobbins in relation to it. "State what he said about this note. A. I believe I introduced the subject by asking why he did not renew the note for Bruce, as the indorser was good; he said it was good enough the way it was, the way or shape or some such expression; that is about all the conversation we had in relation to it. Q. Can you state whether he used the expression `it is just as well for everybody as it is,' or any equivalent expression? A. It seems to me he did make use of that expression; come to think it over I feel pretty confident he made use of that expression." On his cross-examination he says: "I asked him why he did not extend it as the parties were perfectly good who indorsed it. When you stated on your direct examination, that he said it was good enough the way or shape it was, did you mean to say that he used these words? Yes, sir. Q. Have you a present recollection of the precise language of Mr. Dobbins? A. That is as near as I can remember it." Upon this evidence would the jury have been justified in finding an agreement by Dobbins, that notwithstanding the dishonor of the note, the policy should be and continue an available security? Upon a motion for nonsuit, the evidence is not to be weighed or balanced. The plaintiff is entitled to an affirmative answer upon every question of weight or degree. There must, however, be legal evidence in support of the claim. Giving the full benefit of all question and doubt, I can see no evidence here to justify the plaintiff's claim that Dobbins agreed that the policy should continue in force. The expression as given by Bruce, that he said the note could lie a few days without any prejudice to the policy, was immediately corrected by him when he puts the answer in language which applies to the note only and not to the policy. The conclusion and the only conclusion to be drawn from this evidence is, that Dobbins would not press for payment of the note; that it might lie over for a short time. It contains no reference to continuing or reviving a liability on the policy.
If I am right in this view of the testimony, it is not necessary to inquire into the authority of Dobbins.
I think the judgment is right and should be affirmed.
Affirmed.