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Willcuts v. The Northwestern Mutual Life Insurance Company.

Co. v. Dutcher, 95 U. S. 269. But granting the rule, and giving it the utmost force possible, it only brings us back again to the original difficulty; it does not enable us to surmount it. The construction given the contract, allotting to the evidence the effect most favorable to the appellant, is, that the services were to be credited and the remainder of the premium was to be paid in money. So the rule does not enable us to make one step of progress.

The second of the theories, by which appellant seeks to escape the difficulty caused by the failure to pay or tender the amount of the premium in excess of the value of the services of Dr. Willcuts, is, that the act of the company excused performance.

The law unquestionably is, that, if performance is prevented by the act of one of two contracting parties, the other is ercused from tendering performance. So, too, if one party avows an intention not to perform, it will, in most cases, excuse the other from offering to perform his part of the contract. Ruble v. Massey, 2 Ind. 636; Turner v. Parry, 27 Ind. 163; Phoenix, etc., Ins. Co. v. Hinesley, supra.

An insurance company, by demanding more than it is entitled to receive, and notifying the insured that nothing but a compliance with the demand will be deemed performance, will excuse the latter from tendering the premium. May Insurance, 2d ed., section 358. To state the general rule is easy enough; but to always properly apply it, is a perplexing and difficult task.

The single fact which appellant relies on to show that performance on the part of the insured was excused is, that on the first day of July, 1878, a notice was issued by the company, and a week or two after its issue served on Dr. Willcuts. The notice, omitting heading and signature, is as follows: “The second S. A. premium of $11.39, on your policy No. 95,594, falls due at the office of the company in Marion, Indiana, before noon on the 27th day of August, 1878. The conditions of your policy are that payment must be made on or before the day the premium is due, and members neglect

Willcuts v. The Northwestern Mutual Life Insurance Company.

ing so to pay are carrying their own risk. Members should not assume that it is just as well to pay at any time during the month. Agents have no right to waive forfeitures, or to restore lapsed policies. Upon a receipt of a proper certificate of good health, in accordance with its rules, and within one year from date of lapse, the company will restore lapsed policies. Please present this notice at time of payment. Prompt payment is necessary to keep your policy in force.” We are unable to assign to this notice the force claimed for it by the learned counsel for appellant. Liberal as is the rule to be applied in favor of their client, it will not justify the inference that the company would refuse to make the proper

credit and receive nothing less that the whole amount of the premium in money. The notice is nothing more than the usual one informing the insured of the time his semi-annual premium is due, and calling attention to the conditions of the policy. By no possible intendment, within the bounds of reason, can it be construed as meaning that payment must be made in money, and that no credit for services will be allowed. Broad as is the rule which here comes to the assistance of the appellant, it will not justify the inference that the company either meant to, or did, notify the insured that his claim for services would not be allowed in part payment. We can not agree with counsel, that the company repudiated any agreement with Dr. Willcuts. Conceding the claim of appellant that the latter was entitled to a credit on the premium for services rendered, yet it is clear that this credit was not to be made until the payment of the premium, and then to be taken pro tanto in payment. There is no evidence justifying any inference under the most liberal rule conceivable, that a credit was to be entered as the services were rendered. The utmost that can be said is, that there was an agreement, that when the premium became due it might be paid partly in services and partly in money.

The case of Phoenix, etc., Ins. Co. v. Hinesley, supra, is essentially unlike the present upon the point under immediate disWillcuts v. The Northwestern Mutual Life Insurance Company.

cussion. There the contract required the payment of interest on premiums, at the rate of six per cent., the company demanded seven per cent., and it was held that this was notice to the insured that the company would not receive payment at the contract rate, and excused performance. It was said by Howk, C. J., by whom the opinion of the court was delivered: “If, as alleged, the appellant wrongfully, and in violation of its agreement with the appellee, demanded of her that she should pay the interest on the outstanding notes at the rate of seven per cent., when six per cent. only was payable thereon, and notified her that six per cent. interest would not be received, if tendered, and that no other or succeeding premiums would be received on said policy unless the rate of seven per cent. was paid on said notes, it is very clear, we think, that the appellee was thereby and thereafter excused from the performance of her part of her agreement with the appellant." The notice in the present case does not call upon the insured to do anything more than his contract required him to do. It notified him that he was expected to pay according to the agreement; it apprised him of the time of payment, directed attention to the conditions of the contract, and warned him of the consequences of non-performance.

The solitary fact favorable to the appellant, if it can be said to be favorable, is this notice. The testimony of Lenfestey, the local agent, indicates very strongly that the insured desired not to apply on the premium the three dollars due him for services, but desired that it should be paid to him. We quote from the testimony of this witness: “In the conversation I had with him” (the insured), " he said there was three dollars due him, and asked who was to pay it; don't think he said what he wanted to do with it; I told him I would write to Dr. Martin about it; I don't call to mind which of us said there was $8.39 after the payment of the $3; it was prior to that he asked who would pay the $3." This conversation took place three or four weeks before the time the premium became due. Whether this testimony does,

The State r. Bunnell.

or does not, show that there was an agreement to permit Dr. Willcuts to pay premiums in professional services is not, at this point, the enquiry. The question here is : Does it tend in any degree to prove that the company either repudiated the agreement, or refused to permit the proper credit to be given? It certainly does not tend to prove anything that excused the insured from tendering performance of his part of the agreement.

The judgment must be affirmed.

No. 10151.

THE STATE 1. BUNNELL.

CRIMINAL LAW.- Affidavit und Information.-Statute Construed. Witnesses.

Section 1679, clause 5, R. S. 1881, construed in connection with sections 1671 and 1756, does not imperatively require the names of the witnesses to be stated in the body of the affidavit on which an information is based; and it is error to quash it for the omission to do so. From the White Circuit Court.

D. P. Baldwin, Attorney General, F. P. Hench, Prosecuting Attorney, W. S. Hartman, Owens and W. E. Uhl, for the State.

A. W. Reynolds and E. W. Sellers, for appellee.

NIBLACK, J.—This was a prosecution upon affidavit and information for selling intoxicating liquor without a license.

The body of the affidavit was as follows:

“ Peter Hemmer, being duly sworn, on his oath says that Thomas J. Bunnell, on the 16th day of January, 1882, at the county of White and State of Indiana, did unlawfully sell to one Peter Hemmer intoxicating liquors, to wit, one quart of intoxicating liquors, at and for the price of twenty cents, to be drank and suffered to be drank in the house and appurte

The State r. Bunnell.

nances thereto belonging of him, the said Thomas J. Bunnell, he, the said Thomas J. Bunnell, not then and there having a license to sell intoxicating liquors to be drank or suffered to be drank in his said house, or the appurtenances thereto belonging, according to the laws of the State then in force, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana." The names of Peter Hemmer and Mike Burke were endorsed on the affidavit as witnesses.

As to its substantial averments the information followed the affidavit.

On motion of the defendant, Bunnell, both the affidavit and information were quashed and he was discharged.

The State has appealed and assigned error upon the decision of the court quashing the affidavit and information.

The motion to quash both the affidavit and information was sustained upon the ground that the affidavit did not contain the names of the witnesses by whom the offence charged in it could be proven.

The fifth clause of section 106 of the criminal code of 1881, Acts 1881, p. 134, provides that, “Whenever, either in term or vacation, any competent and reputable person has knowledge of the commission of any misdemeanor, not within the exclusive jurisdiction of a justice of the peace, he may make an affidavit before any person authorized to administer oaths, setting forth the offence, and the person charged, in plain and concise language, together with the names of the witnesses, and file the same with the clerk, who shall thereupon notify the prosecuting attorney thereof. The prosecuting attorney shall at once prepare and file an information, in term or vacation, in every case against the person charged in said affidavit."

On behalf of the appellee, it is contended that the plain meaning of this clause is, that the names of the witnesses must be inserted in the body of the affidavit to be filed with the clerk, and that thereby the names of the witnesses are made

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