Rose v. Citizens' Ins. Co. of Missouri

Citation210 Ala. 72,97 So. 81
Decision Date28 June 1923
Docket Number4 Div. 84.
CourtSupreme Court of Alabama
PartiesROSE v. CITIZENS' INS. CO. OF MISSOURI.

Appeal from Circuit Court, Pike County; Arthur B. Foster, Judge.

Action on promissory note by the Citizens' Insurance Company of Missouri against J. B. Rose. From a judgment for plaintiff defendant appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

R. S Parks, of Troy, for appellant.

Steiner Crum & Weil, of Montgomery, and C. C. Brannen, of Troy, for appellee.

SAYRE J.

This was an action on a promissory note given to secure the payment of the premium for a policy of fire and tornado insurance. The insurance was for a period of five years and the premium was payable in five installments yearly in advance. Appellant failed to pay the second installment whereupon appellee sued for the entire unpaid premium. Appellant's third plea set out the following stipulation of the contract of insurance:

"It is understood and expressly agreed that this company [appellee] shall not be liable for any loss or damage that may occur to the property herein mentioned while any installment or the installment note, given for the premium upon this policy, remains past due and unpaid; or while any single payment, promissory note, given for the whole or any portion of the premium remains past due and unpaid. *** The Company may collect, by suit or otherwise, any past-due note or installments thereof and a receipt from the said Atlanta office of the company for the payment of past-due notes or installments must be received by the assured before there can be a revival of the policy, such revival to begin from the time of said payment, and in no case to carry the insurance beyond the end of the original term of this policy,"

and alleged nonpayment of all installments falling due since the first. Appellee's demurrer to this plea was sustained, and that ruling is assigned for error.

The substance of the argument for the plea is that the suit amounts to an effort to enforce a forfeiture to which the court will not lend its aid. The binding force of the stipulation, into which the parties have entered freely, is maintained by the courts elsewhere with practical unanimity. 26 C.J. § 120, p. 115; 2 Cooley's Briefs, p. 1873, where the cases are collected. We see no convincing reason why this court should hold otherwise.

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