policy shall become void if this draft is not paid at maturity." This was the condition, and the only condition on which the policy was to become void. The primary condition expressed in the policy itself, of forfeiture for nonpayment of the premium on the day it became due, was waived by the receipt of the draft, and the consequent extension of the time thereby. The renewal receipt given when the draft was received was absolute, it is true, acknowledging the receipt of the premium, and declaring the policy continued in force for another year. But this receipt is explained by the actual transaction, the mode of payment being shown to be the making and delivery of the draft in question, having in it the condition above expressed, which condition was in exact accordance with the secondary condition contained in the policy, namely, "failure to pay at maturity any note, obligation, or indebtedness (other than the annual credit or loan) for premium or interest hereon, shall then and thereafter cause this policy to be void, without notice to any party or parties interested herein."

We think it clear, therefore, that, notwithstanding the renewal receipt, the condition expressed in the draft was binding on the insured. As we have shown, that condition was that the policy should become void if the draft was not paid at maturity. The draft, being without grace, matured on the fourteenth of October, 1871. If not paid on that day the policy was forfeited, unless it was the usage of the New Orleans banks to grant days of grace even when they were waived, of which there was some evidence on the trial. In such case the forfeiture would take place, if the draft were not paid on the seventeenth of October. Of course, it must be presented for payment on the one day or the other, for the drawees could not pay it unless it was presented, for they would not know where to find it. But supposing it to have been presented for payment, and payment refused by the drawees, then the condition of forfeiture was complete. Protest and notice of non-payment might be further necessary to hold the drawer, if the insurance company desired to hold him; but they were not necessary to the forfeiture. That occurred when non-payment at maturity or presentation occurred. The drawer, Pendleton, who took entire charge of the policy for his children, put its existence on the condition of payment of the draft at maturity; and it was his business, as agent or guardian of his children, to see that the draft was thus paid; that the requisite funds were in the hands of the drawees, or that they would pay it whether in funds or not. Such, we think, was the clear purport of the condition, and, as the court below took a different view, holding that the insurance company was bound not only to present the draft for payment, but to have it protested for non-payment before a forfeiture of the policy would ensue, the judgment must be reversed. What might have been the result had the bill of a stranger been taken in payment of the premium, is a different question which we are not now called upon to decide. It may be that in such a case the company would have been required to take all the steps necessary to fix the liability of all the parties to the bill.

With regard to the other points raised by the plaintiffs in error a few words will suffice.

(1) They contended at the trial, and contend here, that no presentment of the draft was necessary, because Pendleton had no funds in the hands of the drawees. The substance and effect of the charge given by the court on this point was that if Pendleton had a reasonable expectation that the draft would be accepted and paid as if there was an agreement between him and the drawees that they would accept his drafts, or a course of dealing between them, in which the drawees were accustomed to accept his drafts without reference to the state of their mutual accounts, he was entitled to demand and notice, or, according to our view of the principal point in the case, the insurance company was bound to present the draft for payment at its maturity. In this, we think, there was no error. The law is laid down substantially to the

same effect in Dickins v. Beal, 10 Pet. 577; and see 2 Daniel, Neg. Inst. § 1074.

*(2) The plaintiffs in error contend that as the draft was not accepted by the drawees when presented for acceptance, they were under no obligation to present it for payment at maturity. This would be so in an ordinary case of non-acceptance of a bill, provided it was followed up by protest and notice. But this particular draft or bill had a condition in it that the policy should be void if it were not paid at maturity, and the plaintiffs in error claimed the benefit of this condition. As forfeitures upon condition broken are to be strictly construed, the condition in this case could not be regarded as broken by the non-acceptance of the bill before maturity, but could only be broken by non-payment at maturity. The drawees might not have felt authorized to accept the bill when it was presented; and yet, when it came to maturity, in consequence of further advice from the drawer or other reasons, they might be ready and willing to pay it. The holders of the policy were entitled to this opportunity of obviating a forfeiture. We are of opinion, therefore, that the court below was right in holding that a presentment for payment was necessary, notwithstanding the non-acceptance.

(3) The plaintiffs in error further contend that the charge was erroneous in holding that no formal proof of the death of S. H. Pendleton was necessary in this case. On this point the charge was as follows: "As to the proof of loss not being filed, it is conceded notice of the death was given. If, when that was done, the agents of the company repudiated all liability, and informed the parties that the policy had lapsed, then no proof of loss was required by them, and the failure to file it cannot alter the case." We think that there was no error in this instruction. The weight of authority is in favor of the rule that a distinct denial of liability and refusal to pay on the ground that there is no contract, or that there is no liability, is a waiver of the condition requiring proof of the loss or death. It is equivalent to a declaration that they will not pay, though the proof be furnished. Tayloe v. Merchants' Fire Ins. Co. 9 How. 390, 403; Allegre v. Maryland Ins. Co. 6 Har. & J. 408; Norwich Co. v. Western Mass. Ins. Co. 34 Conn. 561; Thwing v. Great Western Ins. Co. 111 Mass. 93, 110; Brink v. Hanover Fire Ins. Co. 80 N. Y. 108: May, Ins. §§ 468, 469.

The preliminary proof of loss or death required by a policy is intended for the security of the insurers in paying the amount insured. If they refuse to pay at all, and base their refusal upon some distinct ground, without reference to the want or defect of the preliminary proof, the occasion for it ceases, and it will be deemed to be waived. And this can work no prejudice to the insurers, for in an action on the policy the plaintiff would be obliged to prove the death of the person whose life was insured, whether the preliminary proofs were exhibited or not. The judgment of the circuit court is reversed, and the cause remanded, with directions to award a new trial.

(112 U. S. 670)

TOWN OF MARTINTON v. FAIRBANKS.
(January 5, 1885.)

APPEAL-EXCEPTIONS-ACT OF MARCH 3, 1865-FINDING BY COUrt.

Where, in the trial of a cause by the court without the intervention of a jury, there is no demurrer to the declaration cr other exception to the sufficiency of the pleadings, no exceptions to the rulings of the court in the progress of the trial in the admission or exclusion of evidence, or otherwise, no request for a ruling upon the legal sufficiency or effect of the whole evidence, and no motion in arrest of judgment, and the only matter presented by the bill of exceptions is the general finding by the court upon the evidence adduced at the trial, under the act of March 3, 1865, the general finding is conclusive of the issues of fact, and is not reviewable upon appeal by this court.

In Error to the Circuit Court of the United States for the Northern District of Illinois.

Robert Doyle, for plaintiff in error. Thomas S. McClelland and Geo. A. Sanders, for defendant in error.

One

WOODS, J. Two actions of assumpsit were brought by Fairbanks, the defendant in error, against the town of Martinton, the plaintiff in error. action was brought upon what the declaration alleges to be "certain instruments in writing, called promissory notes or bonds or railroad bonds," made and issued by the town. They were not under seal, and were payable to bearer. The other was based on the coupons or interest warrants, also*not under seal, which had belonged to and had been detached from the said bonds. The declaration in both cases was in the form used in the action of assumpsit. The plea in both cases was the general issue. The two suits were, by the agreement of the parties and consent of the court, consolidated and tried together. The parties filed with the clerk a stipulation in writing by which they waived a trial by jury. The causes were thereupon tried by the court as one case, and its action was thus stated upon the record: "After hearing the evidence, the court finds the issue for the plaintiff, and assesses his damages at eleven thousand two hundred and nine dollars." Upon this finding the court entered judgment for the plaintiff for the damages so assessed. During the trial a bill of exceptions was taken which simply set out all the evidence in the case, and closed as follows: "Which was all the evidence of fered in said causes; on which evidence the court found for the plaintiff in the sum of $11,209, and entered judgment accordingly; to all of which said defendant then and there excepted. And, as said facts do not appear of record, this bill of exceptions is prepared, and we ask that the judge may sign and seal the same, and it is done accordingly."

There was no demurrer to the declaration or other exception to the sufficiency of the pleadings, no exception to the rulings of the court in the progress of the trial, in the admission or exclusion of evidence, or otherwise, no request for a ruling upon the legal sufficiency or effect of the whole evidenc and there was no motion in arrest of judgment. The only matter presented by the bill of exceptions which this court is asked to review arises upon the exception to the general finding by the court for the plaintiff upon the ev dence adduced at the trial. The defendant in error insists that, upon thi state of the record, no question of law is presented which the court here ca: review. We think this contention is well founded. The provisions of the acts of congress which relate to the trial of issues of fact by the court are found in section 22 of the act of September 24, 1789, (1 St. 73, c. 20,) “An act to establish the judicial courts of the United States," and in section 4 of the act of March 3, 1865, (13 St. 500, c. 86,) "An act regulating proceedings in criminal cases, and for other purposes. The provision in the act of 1789 is reproduced in section 1011 of the Revised Statutes, as follows: "There shall be no reversal in the supreme court or in any circuit court upon a writ of v.58-21

674

.673

error

for any error of fact." The provisions of the act of 1865 are reproduced in sections 649 and 700 of the Revised Statutes, as follows: Sec. 649. "Issues of fact in civil cases in any circuit court may be tried and determined by the court without the intervention of a jury whenever the parties, or their attorneys of record, file with the clerk a stipulation in writing waiving a jury. The finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury." Sec. 700. "When an issue of fact in any civil cause in a circuit court is tried and determined by the court without the intervention of a jury, according to section six hundred and forty-nine, the rulings of the court in the progress of the trial of the cause, if excepted to at the time and duly presented by a bill of exceptions, may be reviewed by the supreme court upon writ of error or upon appeal, and, when the finding is special, the review may extend to the determination of the sufficiency of the facts found to support the judgment."

The provision of section 1011, Revised Statutes, continues in force and forbids a reversal of the judgment of the circuit court for any error of fact. Upon the issues of fact raised by the pleadings in this case there was a general finding for the plaintiff. The defendant contends that the evidence submitted to the court did not justify this general finding. But, if the finding depends upon the weighing of conflicting evidence, it was a decision on the facts, the revision of which is forbidden to this court by section 1011. If the question was whether all the evidence was sufficient in law to warrant a finding for the plaintiff, he should have presented that question, by a request for a definite ruling upon that point. Sections 649 and 700 were first fully construed by this court in Norris v. Jackson, 9 Wall. 125. The court, in that case speaking by Mr. Justice MILLER, laid down the following propositions: “(1) If the verdict be a general verdict, only such rulings of the court in the progress of the trial can be reviewed as are presented by bill of exceptions, or are presented by the pleadings; (2) in such cases a bill of exceptions cannot be used to bring up the whole testimony for review any more than in a jury trial; (3) if the parties desire a review of the law involved in the case, they must either get the court to find a special verdict which raises the legal propositions, or they must present to the court their propositions of law and require the court to rule on them; (4) objection to the admission or exclusion of evidence, or to such ruling on the propositions of law as the party may ask, must appear by bill of exceptions." These propositions have been persistingly adhered to by this court. Thus, in Miller v. Life Ins. Co. 12 Wall. 298, it was said: "The finding of the court, if general, cannot be reviewed in this court by bill of exceptions or in any other manner.

*

In Insurance Co. v. Folsom, 18 Wall. 237, the court said: "When the find ing is general the parties are concluded by the determination of the court, except in cases where exceptions are taken to the rulings of the court in the progress of the trial. When a case is tried by the court without a jury a bill of exceptions brings up nothing for revision except what it would have done had there been a jury trial." So in Cooper v. Omohundro, 19 Wall. 65, this court, affirming the case last cited, held that "when issues of fact are submitted to the circuit court, and the finding is general, nothing is open to review * except the rulings of the court in the progress of the trial, and the phrase 'rulings of the court in the progress of the trial' does not include the general finding of the circuit court, nor the conclusions of the circuit court embodied in such general finding." See, also, Town of Ohio v. Marcy, 18 Wall. 552; Insurance Co. v. Sea, 21 Wall. 158; Jennisons v. Leonard, Id. 302; Tyng v. Grinnell, 92 U. S. 467; The Abbottsford, 98 U. S. 440; Otoe Co. v. Baldwin, 111 U. S. 1; S. C. 4 SUP. CT. REP. 265.

* **

The proposition that the general finding of the court in this case is open to review is in direct opposition to the rulings of the court in the cases cited

The plaintiff in error seeks to make the question whether the evidence set out in the bill of exceptions justified the finding by the court for the plaintiff of the issue of fact raised by the pleadings. This is, in defiance of the decision of this court that it cannot be done, an attempt upon a general finding to bring up the whole testimony for review by a bill of exceptions.

The theory of the plaintiff in error seems to be that the general finding in this case, like a general verdict, includes questions of both law and fact, and that, by excepting to the general finding, he excepts to such conclusions of law as the general finding implies; but section 649, Rev. St., provides that the finding of the court, whether general or special, shall have the same effect as the verdict of a jury. The general verdict of a jury concludes mixed questions of law and fact, except so far as they may be saved by some exception which the party has taken to the ruling of the court upon a question of law. Norris v. Jackson, ubi supra. But the plaintiff in error has taken no such exception. By excepting to the general finding of the court, it is in the same position as if it had submitted its case to the jury, and, without any exceptions taken during the course of the trial, had, upon a return of the general verdict for the plaintiff, embodied in a bill of exceptions all the evidence, and then excepted to the verdict because the evidence did not support it. The provision of the statute, that the finding of the court shall have the same effect as the verdict of a jury, cuts off the right of review in this case; for the seventh amendment to the constitution of the United States declares that "no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law." The only methods known to the common law for the re-examination of the facts found by a jury are either by a new trial granted by the court in which the issue had been tried, or by the award of a venire facias de novo by the appellate court for some error of law. Insurance Co. v. Folsom, ubi supra. The court below having made a general finding, which by the statute has the same effect as the verdict of a jury, the plaintiff in error can resort to no other means of redress than those open to it had the case been tried by a jury and a general verdict rendered.

But the very question now under discussion was decided by this court adversely to the views of the plaintiff in error in the case of Coddington v. Richardson, 10 Wall. 516. In that case a jury was waived under the act of March 3, 1865, by stipulation in writing, "and all just and legal objections and exceptions which might be made were reserved by each party.' "The court found the issue for the plaintiff, and assessed his damages at $5,000. The defendant moved for a new trial, but his motion was overruled by the court, and judgment was entered on the finding against the defendant. He took a bill of exceptions, which set out all the evidence and showed that he excepted to the rulings of the court in finding the issue for the plaintiff, in assessing the plaintiff's damages, in overruling the motion for a new trial, and in rendering judgment. No exceptions were taken during the course of the trial. Upon this state of the record this court said: "There is no question of law upon the pleadings or the trial. Those attempted to be raised refer to the evidence as embodied in the record, but which, on a trial of the facts before the court, a jury being waived, we do not look into. We look into them only when found by the court." The statute under consideration could have no other reasonable construction. Prior to the enactment of the act of March 3, 1865, it was held by this court that "where the case is submitted to the judge to find the facts without the intervention of a jury, he acts as a referee by consent of the parties, and no bill of exceptions will lie to his reception or rejection of testimony, nor to his judgment on the law," (Weems v. George, 13 How. 190;) and that "no exception can be taken where there is no jury, and where the question of law is decided in delivering the final judgment of the court." U. S. v. King, 7 How. 853. See, also, Craig v. State, 4 Pet.