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1895, the agent of the Union Central Com- 1 year thereafter during the continuance of pany, meeting McMaster on the street in this policy. Sioux City, told him the policies issued by .

After this policy shall have the Union Central Company had been re Incontesta

been in force one full year, if ceived, and in reply McMaster said: 'All bility. it shall become a claim by right. Just hold them. There is no hurry

death the company will not about them.' And in the same conversation contest its payment, provided the conditions he stated that he had other insurance,-re of the policy as to payment of premiums ferring to the policies in the defendant com- have been observed. pany.

The benefits and provisions placed by the “14th. That the action of Frank E. Mo company on the next page are a part of this Master shows, and the court so finds the fact contract as fully as if recited over the

to be, that the said McMaster believed that signatures hereto affixed. the policies issued to him by the defendant Benefits and provisions referred to in this company would continue in force for the

policy. period of thirteen months from the date of

If the insured is living on the policies, and his action with respect to Benects at the 12th day of December in the policies in the defendant company and end of ac- the year nineteen hundred and the proposed insurance in the Union Central cumulation thirteen, on which date the ac

period. Company was based upon and governed by

cumulation period of this pol. this belief on his part.

icy ends, and if the premiums “15th. That Frank E. McMaster died at have been paid in full to said date, the inSioux City on the morning of January 18th, sured shall be entitled to one of the six 1895.

benefits following: (cash value; annuity; "16th. That up to the time of his death paid up policy, etc., etc.) If the insured the said Frank E. McMaster had not paid made no selection dividends were to be apthe second year's premiums on the policies portioned as provided. issued to him by the defendant company,

(Any indebtedness to the company, innor had the said McMaster received or paid ducted in any settlement of this policy or nor have the same been paid

since his death, cluding any balance of the current year's

premium remaining unpaid, will be de for the policies issued by the Union Central

of any benefits thereunder.) Company, and the same had not been de

No agent has power in be livered or become effectual.

Powers not half of the company to make “17th. That due and sufficient notices and

Delegated. or modify this or any contract proofs of the death of said Frank E. Mc

of insurance, to extend the Master were immediately sent to and re- time for paying a premium, to waive any ceived by the defendant company, and due forfeiture, or to bind the company by mak. demand for the payment of the five policies ing any promise or making or receiving any sued on was made by the plaintiff, as ad- representation or information. These powministrator of the estate of Frank E. Mc-ers can be exercised only by the president, Master, and refused by the defendant com- vice president, second vice president, actu. pany on the ground that the policies in ques-ary, or secretary of the company, and will tion had lapsed and were not in force at the not be delegated. time of the death of said Frank E. Mc

All premiums are due and Master, by reason of the failure to pay the Payment of payable at the home office of second year's premiums coming due on said Premiums. the company, unless otherwise policies.

agreed in writing, but may be "18th. That the defendant company has paid to agents producing receipts signed by not paid said policies or any part thereof, the president, vice president, second vice and, assuming the same to be valid, there is president, actuary or secretary, and counterdue thereon November 1, 1898, the sum of signed by such agent. If any premium is ($5,965) five thousand nine hundred and not thus paid on or before the day when sixty-five dollars, after deducting from the due, then (except as hereinafter otherwise face of the policies the amount of the sec- provided) this policy shall become void, and ond premiums, with interest thereon to all payments previously made shall remain March 14, 1895."

the property of the company. The policies were dated December 18,

After this policy shall have* 1893, and provided :

Grace. been in force three months, a

grace of one month will be al. This contract is made in lowed in payment of subsequent premiums, Annual consideration of the written subject to an interest charge of 5 per cent Premium application for this policy, and per annum for the number of days during $21.00. of the agreements, statements, which the premium remains due and unpaid.

and warranties thereof, which During the said month of grace the unpaid are hereby made a part of this contract, and premium, with interest as above, remains an in further consideration of the sum of twen- indebtedness due the company, and in the ty-one dollars and cents, to be paid event of death during the said month this in advance, and of the payment of a like indebtedness will be deducted from the sum on the 12th day of December in every amount of the insurance.

The applications were dated December 12, them estopped his representative from deny. 1893, and contained, among other things, ing that date, or claiming that the request the following:

that the policies should be so dated was not Sum to be insured, $5,000.

made by him. Five policies of $1,000 each.

But the policies were not dated December Please date policy same as application. 12, and were dated December 18, the day on [It was averred in the complaint and found which they were actually issued. The apby the circuit court that these words in plications were in terms parts of the policies,., italics were inserted by the agent after the and by them it was agreed that the policies, applications were signed and without ap- the actual payment and acceptance of the

though issued, should not be in*force until plicant's knowledge.] Annually.

premiums. This was a provision intended Premium payable Semi annually.

to cover any time which might elapse beQuarterly.

tween issue and delivery and payment. So Note: Strike out the rates not desired.

that, notwithstanding the premiums in this

instance were not actually paid and received Ordinary Life. Life premium.

and the policies delivered until December 26, On what table Endowment payable in... years it may be conceded that, and in accordance

Limited endowment payable with the practice in such matters, the conin....years.

tracts of insurance commenced to run from I do hereby agree as follows:

2.

December 18 rather than from December 26. That inasmuch as only the officers at the They were certainly not in force on Decemhome office of said company, in the city of ber 12, 1893. No controversy was raised New York, have authority to determine whether or not a policy shall issue on any inclusion of the first day, and it was con

as to fractions of a day, or the exclusion or application, and as they act on the written ceded that payment on January 12, in one statements and representations referred to, view, or on January 18, in the other, would no statements, representations, promises or have averted a forfeiture. information made or given by or to the per.

Assuming, however, that the alleged reson soliciting or taking this application for & policy, or by or to any other person, shall quest was not made by McMaster, that it

was not, at least literally, complied with, be binding on said company, or in any man

or that it was immaterial, the company in. ner affect its rights, unless such statements, sists that the policies expressly required representations, promises, or information be reduced to writing and presented to the payment of the annual premiums, subseofficers of said company, at the home office quent to the first (payable and paid on de in this application.

livery), on December 12 in each year, com

,. 4. That any mencing with December 12, 1894; that Mcpolicy which may be issued under, this ap. Master in accepting them without objection plication shall not be in force until the act. became bound by this requirement, and could ual payment to and acceptance of the not plead ignorance thereof resulting from premium by said company or an authorized not reading them when tendered; and that, agent, during my lifetime and good health. therefore, these policies were properly for

Messrs. Henry J. Taylor, Frank E. Gin, feited January 12, 1895, being twelve and Eric A. Burgess for petitioner.

months from December 12, 1893, with a Messrs. W. E. Odell, Frederic D. Mo-month of grace added. Kenney, and George W. Hubbell for re

The applications were part of the policies, spondent.

and from them it appeared, and was found

by the circuit court, that McMaster applied Mr. Chief Justice Fuller delivered the for insurance "on the ordinary life table, opinion of the court:

the premium to be payable annually." He By the payment of the annual premiums was solicited to insure by the company's in advance and the delivery of the policies, agent, and might, according to the com. McMaster's life became insured in the sum pany's form which was used, have asked of $5,000.

Êhat the premiums be payable annually, The contracts were not assurances for a semiannually, or quarterly, but he chose single year, with the privilege of renewal that they should be payable annually, and from year to year on payment of stipulated that the rate of premium should be calcupremiums, but were entire contracts for life, lated on that basis by the ordinary life table. subject to forfeiture by failure to perform The company assented to this, and fixed the the condition subsequent of payment as pro- annual premium on each policy at $21, on vided, or to conversion in 1913 at the elec- payment of which-that is, payment in ad. tion of the assured. Thompson v. Knicker-vance—the policy was to go into effect. The bocker L. Ins. Co. 104 U. S. 252, 26 L. ed. payments were made, and the insurance 765; New York L. Ins. Co. v. Statham, 93 was put in force for McMaster's life,* subU. S. 30, 23 L. ed. 791.

ject, it is true, to forfeiture for nonpayment The contention of the company presented of subsequent premiums, but forfeiture by its answer was that McMaster requested when? If within the first year then the that the policies “should be issued, dated, payment for that year did not secure the and take effect the same date as the appli- immunity from forfeiture during the year, cation, namely, the 12th day of December, which had been contracted and paid for. 1893;" that the policies were accordingly so But the company says that McMaster ra issued; and that McMaster's acceptance of 'quested that the policies should go into edo

*35

fect on December 12, 1893, and that his rep- verted into the agent of the assured by any resentative is estopped from denying that provision in the application. that is the operation of the policies as In that case the applicant was required to framed and accepted, or that the second state whether he had any other insurance premiums matured December 12, 1894. on his life. He was in fact a member of

It was found from the evidence that after several co-operative associations, and there McMaster had signed the applications, and fore did have other insurance; but the soliowithout his knowledge or assent, the agent iting agent of the company, to whom he state of the company inserted therein: "Please ed the facts, believing that insurance of that date policy same as application;" and it was kind was not insurance within the meaning further found that when the policies were of the question, wrote “No other” as the returned to Sioux City, and were taken by proper answer, at the same time assuring the company's agent to McMaster, he “asked the applicant that it was such. And this the agent if the policies were as represented, court held that the company was bound by and if they would insure him for the period the interpretation put upon the question by of thirteen months, to which the agent re- its soliciting agent. plied that they did so insure him, and there When, then, McMaster signed these appli. upon McMaster paid the agent the full first cations he understood, and the company by annual premium or the sum of $21 on each its agent understood, that if the risks were policy, and without reading the policies he accepted at the home office he would, by pay. received them and placed them away.". ing one year's premium in full, obtain con.

We think the evidence of this unauthor-tracts of insurance which could not be for. ized insertion, and of what passed between feited until after the expiration of thirteen the agent and McMaster when the policies months. were delivered, taken together, was admissi. The company accepted the risks and issued ble on the question whether McMaster was the policies December 18, and they were de bound by the provision that subsequent pay. livered and the premiums paid December 26. ments should be made on December 12, com. Bearing in mind that McMaster had made mencing with December 12, 1894, because no request of the company in respect of an. requested by him, or because of negligence tedating the policies, and was ignorant of on his part in not reading the policies.

the interpolation of the agent, and ignorant The applicable statutes of Iowa declared in fact, and not informed or notified in any that "any person who shall hereafter solicit way, of the insertion of December 12 as the insurance or procure applications therefor date for subsequent payments, he had the shall be held to be the soliciting agent of the right to suppose that the policies accorded insurance company or association issuing a

with the applications as they had left his policy on such application, or on a renewal hands, and that they secured to him, on pay. thereof, anything in the application or pol- ment of the first annual premiums in ad. icy to the contrary notwithstanding."

vance, immunity from forfeiture for thirteen Each policy provided that after it had been months. And the agent assured him that in force for three months "a grace of one

this was so. month will be allowed in payment of subse

The situation being thus, we are unable to quent premiums, subject to an interest concur in the view that McMaster's omission charge of 5 per cent per annum for the num- to read the policies when delivered to him ber of days during which the premium re- and payment of the premiums made constimains due and unpaid. During the said tuted such negligence as to estop plaintiff month of grace the unpaid premium, with from denying that McMaster by accepting interest as above, remains an indebtedness the policies agreed that the insurance might due the company, and, in the event of death be forfeited within thirteen months from during said month, this indebtedness will be P. v. Withers, 177 U. S. 260, 44 L. ed. 762,

December 12, 1893. Supreme Lodge K. of deducted from the amount of the insurance.” | 20 Sup. Ct. Rep. 611, and cases cited; FitchThis was a month in addition to the period ner v. Fidelity Mut. F. Asso. 103 Iowa, 279, covered by premiums already paid. McMaster was justified in assuming, and spection & Ins. Co. v. Cartier, 89 Mich. 41,

72 N. W. 530; Hartford Steam Boiler Inn on the findings must be held to have as. 50 N. W. 747. sumed, that if he paid the first annual pre On the other hand, can the company deny mium in full he would be entitled to one that McMaster obtained insurance which year's protection, and to one month of grace was not forfeitable for nonpayment of pro in addition, that is, to thirteen months' im- miums within thirteen months after the first munity from forfeiture. And the findings payment ? show that the company, by its agent, gave if it can, by reason of its own act, without that meaning to the clause, and that Mc- McMaster's knowledge, actual or legally im. Master was induced to apply for the insur: putable, then the company's conduct would ance by reason of the protection he supposed have worked a fraud on McMaster in disapwould be thus obtained.

pointing, without fault on his part, the ob In Continental L. Ins. Co. v. Chamberlain, ject for which his money was paid. The 132 U. S. 304, 33 L. ed. 341, 10 Sup. Ct. Rep. motive of the agent to get a bonus for him. 87, it was decided that a person procuring self rather than to deceive McMaster is not an application for life insurance in Iowa be material, as the result of his action would came by force of the statute the agent of the be the same To permit the company to company in so doing, and could not be con- 'deny the acts and statements on which the

•40

transaction rested would produce the same had been paid. But if not, taking all the injury to MaMaster, no matter what the provisions together, and granting that the agent's motives,

words included December 12, 1894, neverthe But what is the proper construction of less it would not follow that forfeiture could these contracts in respect of the asserted for be availed of to cut short the thirteen feiture? The company, although retaining months' immunity from December 18, 1893, the premiums paid, and not offering to re as the premiums had already been paid up turn them, contends that, if McMaster was to December 18, 1894. And the company not bound by an agreement that the subse could not be allowed, on this record, by makquent premiums should be paid on Decem-ing the second premiums payable within the ber 12, then that the minds of the parties period covered by the payment of the first had not met because it had not contracted premium, to defeat the right to the month except on the basis of payments so to be of grace which had been proffered as the inmade; but the question still remains wheth- ducement to the applications, and had been er the right of recovery in this case is de relied on as secured by the payment. If pendent on such payment on the 12th day of death had occurred on December 18, 1894, December, 1894, or within thirty days there or between the 12th and 18th, it is quite after.

clear that recovery could have been had, and We are dealing purely with the question of as the contracts were for life, and were not forfeiture, and the rule is that if policies of determinable (at least for twenty years) at insurance contain inconsistent provisions, or a fixed date, but only by forfeiture, it apare so framed as to be fairly open to con- pears to us that the applicable rules of con. struction, that view should be adopted, if struction forbid the denial of the month of possible, which will sustain rather than for- grace in whole or in part. feit the contract. Thompson v. Phenix Ins. It is worthy of remark that it was specifiCo. 136 U. S. 287, 34 L. ed. 408, 10 Sup. Ct. cally provided that after the policies had Rep. 1019; First Nat. Bank v. Hartford F. been in force one full year they should be Ins. Co. 95 U. S. 673, 24 L. ed. 563.

come incontestable on any other ground than Each of these policies recited that it was nonpayment of premiums, and we suppose made in consideration of the written appli- it will not be contended that if any other cation therefor, which was made part there ground of contest had existed and death had of, and of the payment in advance of an an- occurred between December 12 and December nual premium of $21, "and of the payment 18, 1894, the company would have been cut of a like sum on the 12th day of December off from making its defense, because the poliin cvery year thereafter during the continu- cies had been in force "one full year" from ance of this policy."

December 12. Does this latter provision require payment And if not in force until December 18, the of an annual premium during the year al- date of actual issue, how can it be said that ready secured from forfeiture by payment liability to forfeiture accrued before the made in advance?

twelve months had elapsed ? May not the words "in every year there The truth is the policies were not in force after" mean in every year after the year the until December 18, and as the premiums premiums for which have been paid? Or in were to be paid annually, and were so paid every year after the current year from the in advance on delivery, the second payments date of the policy !

were not demandable on December 12, 1894, At all events, if the payment in advance as a condition of the continuance of the poliwas a payment which put in force a contract cies from the 12th to the 18th. And as the good for life, determinable by nonpayment of policies could not be forfeited for nonpaysubsequent premiums, and this first payment ment during that time the month of grace was payment of the premiums for a year, could not be shortened by deducting the six could the requirement of payment of a sec- days which belonged to McMaster of right. ond annual premium within that year be În our opinion the payment of the first given greater effect than the right to cancel year's premiums made the policies nonfor-* the policies from January 18, 1895, if such feitable for the period of thirteen months, payment were not tendered until after the and inasmuch as the death of McMaster took lapse of thirteen months from December 12, place within that period, the alleged forfeit1893?

ure furnished no defense to the action. To hold the insurance forfeitable for non The judgment of the Circuit Court of Appayment of another premium within the year peals is reversed; the judgment of the Cirfor which payment had already been fully cuit Court is also reversed, and the cause is made would be to contradict the legal effect remanded to the latter court, with a direcunder the applications and policies of the tion to enter judgment for plaintiff in acfirst annual payment. Clearly, such a con- cordance with the eighteenth finding, with struction is uncalled for, if the words "the interest and costs.

12th day of December in every year thereafter” could be assumed to mean in every Mr. Justice Brewer did not hear the ar. year after the year for which the premiums Igument and took no part in the decision

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(183 U. S. 62) DISTRICT OF COLUMBIA, Appt., vided, by the Secretary of the Treasury."

$ 5. COLUMBUS J. ESLIN, Administrator of These consolidated suits were brought unDaniel A. Connolly, Deceased, et al.

der the above act, and within the time lim

ited by its provisions. Appealstatutes.

In the progress of the cause a judgment

was rendered in one of the cases in favor The repeal, by the act of Congress of March 3, of the District for $658.05, and in the others

1897, chap. 387 (29 Stat. at L. 665, 669), of the petitions were severally dismissed. New the act of February 13, 1895, chap. 87 (28 trials were granted in each case, and time Stat. at L. 664), and the enactment that all

was given for further proof. proceedings pending under the act so repealed shall be vacated, and that no judgment here

By an act of Congress approved Februtofore rendered in pursuance of said act shall ary 13th, 1895, chap. 87, amendatory of the be paid, precludes the Supreme Court of the above act of June 16th, 1880, it was proUnited States from taking jurisdiction of an vided that in the adjudication of claims appeal by the District of Columbia from a brought under the act of 1880 "the court judgment allowing certain claims, although of claims shall allow the rates established the application for the appeal had been made and paid by the board of public works; and and notice glven before the repeal of the stat- whenever said rates have not been allowed, [No. 36.)

the claimant or his personal representative shall be entitled, on motion made within

sixty days after the passage of this act, to Argued October 23, 1901. Decided Novem- a new trial of such cause. 28 Stat. at L. ber 4, 1901.

664.

The cases were heard on the exceptions Claims against the District of Colum- the aggregate amount found due from the bia. Dismissed for want of jurisdiction. District was $13,458.33. And the record

The facts are stated in the opinion. states that upon the facts set forth in the

Mr. Robert A. Howard and Assistant referee's report "the court, under the act Attorney General Louis A. Pradt for ap- of February 13, 1895 (28 Stat. at L. 664, pellant.

chap. 87), and in accordance with the agree Messrs. George A. King, J. W. Doug- ment of the parties, decides, as conclusions lass, and Wm. B. King for appellees. of law as to the said sum of $13,458.33, so

found due from the District of Columbia, Mr. Justice Harlan delivered the opin- that the several claimants named below each ion of the court:

recover judgment against the United States By an act of Congress approved June in the amounts stated, viz." * Here follows, 16th, 1880, chap. 243, the jurisdiction of the in the record, a statement of the amount court of claims was extended to all claims found due each claimant, the aggregate bethen existing against the District of Co-ing the above sum. lumbia, arising out of contracts by the late The order referring the cause for a stateboard of public works and extensions there-ment of the several accounts was made after of made by the commissioners of the Dis- the passage of the act of February 13th, trict, as well as to such claims as had arisen 1895, and the referee's report was made purout of contracts by the district commission- suant to the provisions of that act. ers after the passage of the act of June In accordance with the findings of fact 20th, 1874 (18 Stat. at L. 116, chap. 337), and of law the court, on the 22d of June, and all claims for work done by the order 1896, entered final judgment in favor of the or direction of the commissioners and ac- respective claimants for the amounts found cepted by them for the use, purposes, or due them respectively, the judgment upon benefit of the District prior to March 14th, its face purporting to be "within the intent 1876. It was provided that all such claims and meaning of the act of February 13th, against the District should in the first in- 1895." stance be prosecuted before the court of

On the 3d of September, 1896, the District claims by the contractor, his personal rep- of Columbia, by the Attorney General of resentatives, or his assignee, in the same the United States, made application for and manner and subject to the same rules in the hearing and adjudication of the claimg gave notice of an appeal to this court. Subas the court then had in the adjudication sequently, February 25th, 1897, the District of claims against the United States. 21 moved to set aside the judgment of June Stat. at L. 284, 285, $$ 1, 2.

220, 1896, and to grant a new trial. By the same act it was provided that if

While the motion for new trial was pendno appeal was taken from the judgment of ing Congress passed the act of March 3d, the court of claims in the cases therein pro- 1897, chap. 387, making appropriations for vided for, within the term limited by law the expenses of the government of the Disfor appealing from the judgments of that trict for the fiscal year ending June 30th, court, "and in all cases of final judgments 1898. That act, among other things, proby the court of claims, or, on appeal, by vided that the above act of February 13th, the supreme court where the same are af. 1895, “be, and the same is hereby, repealed, firmed in favor of the claimant, the sum due and all proceedings pending shall be vacat. thereby shall be paid, as hereinafter pro- ed, and no judgment heretofore rendered in

22 S. C.-2.

80.

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