82 N.Y. 543, Wheeler v. Connecticut Mut. Life Ins. Co.

Citation:82 N.Y. 543
Case Date:November 16, 1880
Court:New York Court of Appeals

Page 543

82 N.Y. 543

MYRA A. WHEELER, Appellant,



New York Court of Appeal

November 16, 1880

Argued Oct. 14, 1880.

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Everett P. Wheeler for appellant. Equity will relieve against a forfeiture caused by the non-payment of premiums upon a policy of life insurance. (Cohen v. N.Y. Mut. Life Ins. Co., 50 N.Y. 610; Sands v. N.Y. Life Ins. Co., Id. 626; Homer v. Ins. Co., 67 Id. 478, 481; Hamilton v. Mut. Life Ins. Co., 9 Blatchf. 234; N.Y. Life Ins. Co. v. Clopton, 7 Bush [Ky.], 179; Worth v. Edmonds, 52 Barb. 40.) The payment of the premium was a condition subsequent. (People v. Security L. Ins. Co., 78 N.Y. 115, 126.) Equity will relieve against a forfeiture for breach of a condition subsequent, caused by unavoidable accident, by fraud, by surprise, or by ignorance not willful. (2 White & Tudor's Leading Cases in Equity, 1105 [4th ed.], note to Sloman v. Water; Eaton v. Lyon, 3 Ves. Jr. 690; Hill v. Barclay, 18 Ves. 56, 62; Harris v. Troup, 8 Paige, 423; Bargent v. Thompson, 4 Giff. 478; Henry v. Tupper, 29 Vt. 358.) No agreement of the parties can deprive courts of equity of this power, or exclude its application to a particular case. (2 Wash. on Real Estate, 68; Ins. Co. v. Morse, 20 Wall. 445.) The insanity alleged could justly be called the "act of God. " (2 Kent's Com. 597; Baldwin v. N.Y. Life Ins. Co., 3 Bosw. 530; Howels v. Knickerbocker Life Ins. Co., 44 N.Y. 276.) The company had in its possession, when the premiums became due, unpaid dividends on the policies, and should have applied them as a partial payment of the premiums falling due on that day. (Cavilli v. Allen, 57 N.Y. 508; Stephen v. Fowler, 9 Paige, 280; Wilder v. Ewbank, 21 Wend. 587; Brooklyn Cent. R. R. v. Brooklyn City R. R., 34 Barb.

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358, 366; Van Rensselaer v. Jewett, 2 Comst. 141; Hogeboom v. Hall, 24 Wend. 141.)The courts have been astute to find occasion to hold that the strictness of these clauses of forfeiture has been waived. (Homer v. Guardian Ins. Co., 67 N.Y. 478; Dilleber v. Knickerbocker Life Ins. Co., 76 Id. 567; Buckbee v. U.S. Ins. Co., 18 Barb. 541; Wing v. Harvey, 27 Eng. L. & E. 9, 140; Life Ins. Co. v. Eggleston, 6 Otto, 572.) A tender of the unpaid premium was not necessary or appropriate. (50 N.Y. 636; Everett v. Saltus, 15 Wend. 474; Miesell v. Globe Ins. Co., 76 N.Y. 115.) Plaintiff is still entitled to paid-up policies under the sixth clause of the policy. (Homer v. Guardian Ins. Co., 67 N.Y. 478; Ellis v. Albany City Ins. Co., 50 Id. 402; Post v. AEtna Ins. Co., 43 Barb. 351; Marine Bank v. Fiske, 71 N.Y. 353.)

W. A. Beach for respondent. The subsequent insanity of a contracting party does not discharge him from the obligation of his contract or relieve him from the performance of its conditions. (Howell v. The Knickerbocker Life Ins. Co., 44 N.Y. 276.) The doctrine by which performance of contract conditions is excused, when rendered impossible by the act of God, is confined exclusively to cases where the act to be done is personal and can be performed only by the party disqualified. (Wolfe v. Howes, 20 N.Y. 197; Clark v. Gilbert, 26 Id. 279; Spalding v. Rosa, 71 Id. 40.) The non-performance of a contract is not excused by the act of God when it may be substantially carried into effect although the act of God makes a literal and precise performance of it impossible. (Williams v. Vanderbilt, 28 N.Y. 117; Beebe v. Johnson, 19 Wend. 500; Blacksmith v. Fellows, 7 N.Y. 401, 415 [affirmed in S.Ct. U.S. 19 How. 366]; Norton v. Woodruff, 2 N.Y. 153; Tompkins v. Dudley, 25 Id. 272; Harmony v. Bingham, 12 Id. 99; 52 Barb. 40; 6 Rep. 141; 47 N.Y. 62.) When a party engages unconditionally, by an express contract, to do an act, performance is not excused by inevitable accident or other unforeseen contingency not within his control. (Dexter v. Norton, 47 N.Y. 62; Tompkins v. Dudley, 25 Id. 275, 277;

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Harmony v. Bingham, 12 Id. 99, 107, 115; Thornborow v. Whitacre, 2 Ray, 1164.)The contracts of a lunatic are not per se either void or voidable. Unsoundness of mind will not vacate a contract, if unknown to the other contracting party, and no advantage is taken of the lunatic. (Molton v. Cameron, 4 Exch. 17; S. C., 12 Jur. 800; Campbell v. Hooper, 3 Smale & Giffard, 153; S. C., 1 Jur. [ N. S.] 670; 17 Law Reg. 305; Affleck v. Affleck, 3 Smale & Gifford, 394.) To excuse nonperformance of a contract it must appear that the thing to be done cannot, by any means, be accomplished. (Beebe v. Johnson, 10 Wend. 500.) Mere difficulty of performance is not enough. (Blacksmith v. Fellows, 7 N.Y. 401, 415.) Sickness, disabling a contracting party from performance in person, should not absolve him from performance through others where it was possible. (Howell v. The Knickerbocker Life Ins. Co., 44 N.Y. 281; 2 Com. on Eq., § 1303.) This is not a case for equitable relief. (N.Y. L. I. Co. v. Statham, 3 Otto, 24, 30; 2 Story's Eq. Jur., § § 1313, 1316, 1323; Eaton v. Lyon, 3 Ves. Jur. 690, 693; 1 Story's Eq. Jur., § 244, etc.; 1 Powell on Mort. 7, 250; Kortright v. Cady, 21 N.Y. 343; Stoddard v. Hart, 23 Id. 560.) If there was power somewhere to revive the policy for cause, it was annulled by the failure to pay. (Wall v. Home Ins. Co., 36 N.Y. 158.) The insured being dead the policy could not be revived. (Tarleton v. Stainforth, 5 Term R., 695; Want v. Blunt, 12 East, 183, 186; Simpson v. The Accident Ins. Co., 2 Com. Bench [N. S.], 251; S. C., 89 Com. L. 256; Pritchard v. The Merchants' L. I. Co., 3 Com. Bench [N. S.], 622 and 91; Com. L. 619, 621, 641; Wall v. Home Ins. Co., 36 N.Y. 157.)


The complaint in this action sets forth alleged causes of action upon two separate policies of insurance, claiming to recover the amount named in each, and also alleges that a dividend was declared out of the surplus earnings and receipts of the company, for a portion of which the insured was entitled to a paid-up policy, which on demand was refused.

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The demurrer to the complaint presents the question whether any cause of action is set forth therein.

The policies upon which this action was brought provided for the payment of an annual premium, and contained a condition as follows: "That this policy shall not take effect until the advance premium hereon shall have been actually paid, during the life-time of the insured, and that if any subsequent premium on this policy be not paid when due, then this policy shall cease and determine (except as hereinafter provided), and this company shall not be liable for the payment of the sum insured herein, nor of any part thereof." The annual premium due on the 28th of October, 1873, was not paid; the complaint alleges, and upon demurrer it must be taken as true, that previous to the day last mentioned, Vose, the insured, became and was by the visitation and act of God insane, and consequently unable to and did not pay the premium, although he had means to pay the same; but he was bereft of his reason and so continued until his death which occurred March 17, 1874, and in consequence thereof did not know nor remember that said premium was then due, nor that he had agreed to pay the same.

Vose having died without a payment of the premium, according to the terms of the contract, the question arises whether his insanity is an excuse for non-payment and the forfeiture is thereby waived. Courts of equity will relieve against a forfeiture in many cases, but none of the decisions have gone to the extent of holding that insanity will constitute an excuse for failing to comply with the terms of the condition referred to. In Rose v. Rose (Amb. 332), Lord HARDWICKE, laid down the rule thus: "Equity will relieve against all penalties whatsoever; against non-payment of money at a certain day; against forfeitures of copyholds; but they are all cases where the court can do it with safety to the other party; for if the court cannot put him into as good condition as if the agreement had been performed, the court will not relieve."Even if a condition subsequent becomes impossible by the act of God, or of the law, or of the obligee,...

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