Bogardus v. New York Life Ins. Co.
| Citation | 4 N.E. 522,101 N.Y. 328 |
| Parties | BOGARDUS v. NEW YORK LIFE INS. Co. |
| Decision Date | 19 January 1886 |
| Court | New York Court of Appeals |
OPINION TEXT STARTS HERE
B. F. Tracy, Wm. Wirt Hewett, and Lucius McAdam, for appellant.
Wm. B. Hornblower, for respondent.
The appellant asserts in his beief, used on the argument, that the count of the complaint demurred to states a cause of action ex contractu alone, and we are also of the same opinion. It is essential to the legal statement of such a cause of action that it should show an existing contract, and the performance by the plaintiff of such conditions precedent as are thereby provided, or a tender of their performance, or some adequate excuse for non-performance. This may be done by a general allegation of performance, but in some form the fact must be alleged, and, if controverted, proved on the trial. Code Civil Proc. 533.
The cause of action stated in this count is for an alleged breach of the conditions of a policy of insurance dated November 3, 1871, and which purports to have been issued by the defendant to the plaintiff upon the life of her husband, and is stated to be in consideration of the sum of $377.45 to them in hand paid, and of the annual premium of $377.45, to be paid ‘in every year during the continuance of this policy until ten full years' premiums shall have been paid.’ It further provides that ‘if the premiums as above stipulated’ shall not be paid, ‘then and in every such case this company shall not be liable for the payment of the sum aforesaid, or any part thereof, and this policy shall cease and determine.’ ‘In every case when this policy shall cease and determine or become null and void, all payments thereon shall be forfeited to this company, and no action or right of action shall remain to or be maintained against the company by the assured, or by any other person by virtue of this policy, or of anything connected therewith;’ ‘that this policy is issued on the ten-year dividend system;’ and ‘that the ten-year dividend period for this policy shall be completed’ on the third day of November, 1881; ‘that no dividend shall be allowed or paid upon this policy unless the person whose life is assured shall survive until the completion of its ten-year dividend period, and unless the policy shall then be in force.’ The complaint alleges payment of the annual premium stipulated for only to the third day of November, 1879, and this action was commenced on the twentieth day of January, 1881, nearly a year before default could be made in the payment of dividends on the insurance, and more than a year after the policy had ceased to be an existing contract unless some adequate reason is alleged for the non-payment of premiums by the plaintiff.'
The contract, as pleaded, provides for the regular payment, by the assured, of the annual premiums, and such payments are made the condition of any claim thereunder, and the non-payment of such premiums causes the policy to become null and void, and forfeits to the company all payments made thereon. These conditions were lawful. The parties were competent to enter into them, and, unless non-performance or its equivalent is alleged, the plaintiff has failed to state a good cause of action, and must abide by the case as shown by her complaint.
The statement in the complaint with reference to the payment of the annual premiums is equivalent to an admission that they were not paid after November, 1879, and it contains no allegations that she was in any way prevented by defendant from performing; but it is now argued that the alleged non-performance by the defendant of certain obligations alleged to have been assumed by it may be considered as equivalent to an allegation of performance by her. We are very clearly of the opinion that this claim is not substantiated by the terms of the contract or the allegations of the complaint. The failure of one party to a contract to perform some of its obligations, when it consists of a number of independent provisions, furnishes no excuse for non-performance to the other party. It is only when the non-performance is of a condition precedent,or where such party has wholly refused to perform, or has wholly disabled himself from completing a substantial performance, that the other party is relieved from performance, or a tender thereof. People v. Empire Mut. Life Ins. Co., 92 N. Y. 109;Shaw v. Republic Life Ins. Co., 69 N. Y. 293.
The complaint alleges the obligations of the defendant, which it charges were not performed by it, in the following language:
‘That by the contract or policy of insurance issued to her as aforesaid, a copy of which is hereto annexed, the defendant then and there bound itself to receive and keep separate all the premiums paid upon policies of the same class to which her policy belonged, as aforesaid, and to keep as a separate fund all the incomes, profits, and accumulations that should accrue therefrom, or upon policies of the insured in such class, and to add thereto, as forming part of and in addition to the fund so created for said class to which the plaintiff belonged, the shares of those members who should die during the ten-year dividend, or tontine period, the shares of those members which should become forfeited for any cause during said term, and all accumulations and profits belonging thereto, and to declare annual dividends of the income and profits so derived, and to invest and reinvest from year to year the dividends so derived, until the end of the ten-year dividend or tontine period, and to hold the same in trust, and then to divide the same to the survivors of the class to which the plaintiff belonged.’
The appellant's contention is that the defendant's neglect to keep and invest separately the funds referred to, justified the plaintiff in her neglect to perform, and established a cause of action against defendant. The policy is annexed to, and, by the clause quoted, is made a part of, the complaint.
Assuming for the present that the facts alleged have been so pleaded as to entitle the plaintiff to urge them as an excuse for her admitted nonperformance, we are brought to an inquiry as to their sufficiency for such purpose. This depends upon the considerations (1) whether the complaint correctly describes the obligations assumed by the defendant; (2) whether the obligations in fact assumed by it constituted material conditions of the contract; (3) whether there is a sufficient allegationof the non-performance of them by defendant; and (4) whether their non-performance was the occasion of injury to the plaintiff. These questions must be determined by an examination of the policy, and a consideration of its provisions.
In interposing the demurrer, the defendant did not thereby admit the construction put upon the contract by the pleading demurred to, or the correctness of the inferences drawn from the facts admitted, but only the truth of such facts as were properly stated therein. Bonnell v. Griswold, 68 N. Y. 294;Buffalo Catholic Inst. v. Bitter, 87 N. Y. 250. The contract itself having been set forth, the rights of the parties must be determined by the terms of that instrument as construed by the court. Reference thereto shows that the material obligations assumed by the defendant related to the payment to the assured, or, in the event of her death, to certain other persons described, the sum of $5,000 upon the death of Abraham Bogardus; and (2) in case the said Bogardus survived for a period of 10 years, and the said policy should continue in force until that time, the payment in cash or in annuity bonds to the said assured, or, upon her direction, of a proportioned share of the aggregate sum produced by the accumulations of dividends, accretion, and interest during the period of 10 years from a fund to be created by certain contributions furnished by a class of policy-holders consisting of those who effected insurance on the tontine plan during the year 1871; (3) that the surplus and profits derivable from certain described funds shall be equitably apportioned among the surviving policy-holders belonging to the class from which such funds are derived.
The obligations assumed in the policy are not changed or enlarged by the consent of the assured, given in the application for insurance to the defendant, to place all dividends accruing on her policy in a reserve fund. That provision merely waives the right of the assured to demand the payment to her of any annual...
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