Busher v. N.Y. Life Ins. Co.

• Court: New Hampshire Supreme Court
• Writing for the Court: BINGHAM, J.
• Citation: Busher v. N.Y. Life Ins. Co., 58 A. 41, 72 N.H. 551 (N.H. 1904)
• Decision Date: 03 May 1904
• Parties: BUSHER v. NEW YORK LIFE INS. CO.

58 A. 41

72 N.H. 551

BUSHER

v. NEW YORK LIFE INS. CO.

Supreme Court of New Hampshire. Hillsborough.

May 3, 1904.

Exceptions from Superior Court; Wallace, Judge.

Action by Nettie A. Busher against the New York Life Insurance Company. There was a verdict for defendants, and plaintiff excepts. Exceptions overruled.

Hamblett & Spring and Doyle & Lucier, for plaintiff.

George B. French, for defendants.

BINGHAM, J. The plaintiff brings this suit to recover the amount specified in a policy of insurance which she alleges the defendants issued, or agreed to issue, on the life of her husband for her benefit. The contract, if consummated, was bilateral in its nature, and involved mutual promises. To establish a contract of this character, when the parties are at the same place, there must be, according to the principles of the common law, an offer and an acceptance thereof in accordance with its terms; and the acceptance, to be complete, must be actually communicated to the offerer. Beckwith v. Cheever, 21 N. H. 41, 43; Perry v. Insurance Co., 67 N. H. 291, 33 Atl. 731, 68 Am. St. Rep. 668; Prescott v. Jones, 69 N. H. 303, 41 Atl. 352; Thompson v. Jones, 18 Dunlop, 1; 1 Lang. Cont. 125; Vassar v. Camp, 11 N. Y. 441; Hebb's Case, L. R. 4 Eq. 9; 1 Lang. Cont. 156, 162; 2 Lang. Cont. 993, § 14; 9 Cyc. 270-273.

An exception, however, is recognized when the parties to such a contract are at a distance from one another, and the offer is sent by mail or by telegraph, in which case it is commonly held—and such is the law of this state—that the reply accepting the offer may be sent through the same medium, and the contract will be complete when the acceptance is mailed, or delivered at the telegraph office, properly addressed to the party making the offer, and beyond the acceptor's control. Abbott v. Shepard, 48 N. H. 14; Davis v. Insurance Co., 67 N. H. 218, 34 Atl. 464. The theory advanced in support of such a holding is that when one makes an offer through the mail, or like agency, he authorizes the acceptance to be made through the same medium, and constitutes that medium his agent to receive the acceptance, and that the acceptance, when mailed or delivered at the telegraph office, is then constructively communicated to the offerer. 2 Lang. Cont. 995, § 15, par. 2. While constructive notice of acceptance is permitted to take the place of actual communication in such cases, still the law requires that the message of acceptance shall pass beyond the recall or control of the acceptor.

If the contract sought to be established is unilateral—that is, where the offerer simply requires the offeree to do something, and not to promise to do something—an intention on the part of the offeree to accept the offer, accompanied by a performance of the act, is all that is essential to the completion of the contract. In this case it is said that performance of the act is all the notice that the offerer requires, or that the form of the offer shows that notice is waived. Prescott v. Jones, supra; 9 Cyc. 270.

Applying these principles to the facts in this case, can it be said that the defendants' intention to accept the application and issue a policy in compliance with its terms was ever communicated to the applicant in his lifetime, so as to make a completed contract? We think not. It appears that on May 15, 1902, the plaintiff's husband signed a written application at Nashua for a...