Argument for the assured.—An absolute acceptance made by the insurers.

This finding or special verdict-the case-shows:

1. That on the 5th June, 1867, Homans, agent of the New York company, received from Young his note of $99.30, as the first quarterly premium on an application by Young to the company for a policy for $5000 on his own life, payable at forty-five or death, and premiums paid up in full for ten years; and that it was then agreed between Young and the agent of the company that such a policy, from the company, should take effect and be in force from the said 5th of June, provided that the application should be accepted by the company; but that if it should be declined or rejected by the company then that the note should be returned.

The case shows with equal distinctness, and by an express finding,

2. That the application of the said Young was transmitted to the said company and was not declined nor rejected, but that it was by them "accepted," and that a policy in response to the application was made out, signed, sealed, and transmitted to the general agent, who received it, and informed Young that it was awaiting him.

The finding that the application was "accepted" by the company is a finding of a fact. There is nothing to show that an acceptance is found by the court because a policy was transmitted for the applicant. To infer an acceptance from that cause would be to make a conclusion of law, and not to find a fact; which alone, in this part of the case, it was the court's duty to find. There was doubtless evidence, independent of the transmission of the policy, to show an acceptance.

Now, in point of fact, it cannot be doubted that the company meant the policy sent to be, not a rejection of the proposition made, and another proposition; nor, in truth, a qualified acceptance of anything, but to be a substantial compliance with the proposition; a compliance more favorable, if anything, to the applicant than would have been a literal compliance. For though the policy sent did differ in dates and premiums from the offer made, the result of the differeuce was practically small, and might prove a gain to Young.

Argument for the assured.-The absolute acceptance made, not kept.

So far as the amount of premium offered was concerned, Young was plainly a gainer. He offered $99.30. The company took $96.60. The agent had doubtless miscalculated the value of the life. He asked more than the company's rates required. Had Young paid for ten years, which at the age of twenty-six it seemed probable that he would do, the difference would have been $108, pure gain to him. Then, on the other side, the company made the risk begin two months before Young did. The reason is obvious; for the policy shows that Young's birthday was the 5th of April, and the payment became due on his arriving at the age of forty-five; and doubtless in order to facilitate calculation that day was taken. The change caused Young to pay twothirds of $96.30, that is to say, $64.20 more than he offered. So that as undoubtedly the company hoped that Young would live for the whole ten years during which premium was to be paid, and as of course Young expected to do the same, we have a case where on both sides the policy was meant to be in substance what was asked for. Indeed, in a certain result, that is to say, if Young died on a certain day, the result might be exactly the same as would have been a literal compliance.

The opposing counsel, however, consider that the offer made by Young was in fact and form and substance rejected, as one that the company's interest required it to reject; and that a new proposition, one more favorable to its own interest, was offered; and, so far as the company was concerned, accepted in advance. They treat the differences between the proposition and the policy as wide-substantial-and for the sake of the argument we shall now in what we have to say so regard them.

We set out then on the assumption-one which there is then no evading or avoiding-that the company did, as matter of fact, "accept," Young's proposition, as made.

Opposing counsel speak of a "qualified acceptance" as the acceptance which was made. But this is their language; not the language of the finding. It says that "the applica

Argument for the assured.—The absolute acceptance made, not kept.

tion of the said Young was accepted." And again it speaks of an acceptance simply, when it says, "No notice of the acceptance of said application was given." An "acceptance" simply, is an acceptance unqualified; and an acceptance unqualified is an acceptance absolute; an acceptance pure and simple. After this finding of an absolute acceptance, and the signing, sealing, and transmission of a policy, the finding continues: "But the policy did not, in terms, agree with the memorandum as to date and time of payment;" and the differences are stated.

We have then the case of an application to the agent for a policy of a certain date and time of payment, and a contract to furnish such a policy, provided the application is accepted, and an acceptance absolute of the proposition. But instead of the transmission of a policy according to the application which has been accepted-that is to say, one with the proper dates, we have the transmission of one with other dates, dates not according to the proposition which has been accepted, that is to say, one with improper dates.

Now what, in law, is the effect of such a transaction? The same exactly as exists in the case of a statute enacting that such and such things shall be, with a proviso repugnant to the nature of the enactment. Such a proviso is simply insensible and void.

If A. offer to sell to B. a house for $10,000, the offer being perfectly explicit, with leave to B. to accept, or to decline, or reject within ten days, and B. within the ten days says, "I do not decline your offer, nor reject it; I accept it;" and with this absolute acceptance he send B. $9750, can any man say that the making of this is a "qualified acceptance," or a refusal to accept what is offered, and the making of a new proposition to treat on a different basis? Could not B. keep the $9750 and sue for the balance? The case before us is after the finding of an acceptance absolute, in essence, that case. And it is unimportant in what way you vary the figures, so long as you assume that there have been-what is here found as part of the case-that the offer made was "accepted."

Argument for the assured.-Forfeiture for non-payment waived.

This "pinch," the opposing counsel perceive and admit when they say:*

"The court did find that the application was accepted, and if such acceptance, accompanied as it was by the act of transmitting a policy different from that applied for, constituted in law an absolute instead of a qualified acceptance, then there was found a contract to insure."

And then they go on a technical ground, shown by themselves, it may be added, not to be true as respects a right to sue, that a contract to insure is not a contract of insurance. Then, if our position as to the effect of sending an improper policy after the proposition of Young had been "accepted," is right, we have the case, confessed by opposing counsel to exist, of a contract to insure according to the application; and an admission also "that upon a contract to insure, the assured has a remedy by action at law, as well as by bill in equity."

The only difficulty set up on the other side is "that in such action the plaintiff must show the conditions of the policy contracted for, and that the loss claimed would be recoverable under them;" and that here two payments were due, which were conditions precedent to the policy taking effect, and that those two payments or the second one has not been made.

Let us concede this as a general proposition, to be true. But it is equally true that such prepayment may be waived. And the question now is, has it in the case before us, been waived?

We assert that it has been.

It is elementary law that forfeitures are not favored, and that provisions for forfeiture must be strictly construed. The authorities also hold that these principles are applicable to forfeitures in insurance policies; that the provisions for forfeiture are inserted for the benefit of the companies and may be waived by them; aud that courts will find a waiver upon slight evidence.t

* Supra, p. 92.

† See among many cases, Ripley v. Etna Insurance Company, 29 Bar

Argument for the assured.—Forfeiture for non-payment waived.

Now, let us see how the company itself applied these principles to the facts of this case.

The company asserts by its special pleas that the policy was issued and delivered to the defendant April 6th, 1867; that the first premium was not then paid; and that the second premium fell due July 6th, 1867, and was not paid.

The policy bears date April 5th, and the receipts prepared by the company correspond with this date. The company, therefore, regarded the second quarter's premium as due July 6th, and acted upon that idea, although the application was made, and the first memorandum, receipt, and contract given on June 5th. The promissory note given for the first quarter's premium being payable without grace, fell due August 4th. It will be seen that the condition of the policy imposing a forfeiture, required payment to be made "at the office of the company in the city of New York, or to agents when they produce receipts signed by the president or secretary, unless otherwise expressly agreed in writing." There is no evidence in this case of its having been otherwise agreed in writing. It does not appear that the policy was received at the San Francisco office before the 2d of August. At or about the 6th of July the policy must have been in the defendant's office in New York, which would give twenty-seven days to August 2d, to make the passage to San Francisco. The defendant knew at the time of dispatching the policy that the second instalment of premium had not been paid at the office in New York. It also knew that it could not be paid to its agents in San Francisco in accordance with the terms of the contract, so as to be obligatory upon defendant, for the reason that the only receipt duly signed as specified in the policy anthorizing the payment to its agents was attached to the policy, and would not reach San Fran

bour, 557; Goit v. National Protection Insurance Company, 25 Id. 189; Baker v. Union Life Insurance Company, 6 Robertson, 394; Boehen v. Williamsburg Insurance Company, 35 New York, 131; Bouton v. American Mutual Life Insurance Company, 25 Connecticut, 542; Pino v. Merchants', &c, Insurance Company, 19 Louisiana Annual, 214; Insurance Company v. Webster, 6 Wallace, 129.