Carlock v. Phoenix Ins. Co.

• Citation: 28 N.E. 53,138 Ill. 210
• Parties: CARLOCK v. PHOENIX INS. CO.
• Decision Date: 10 June 1891
• Court: Supreme Court of Illinois

138 Ill. 210

28 N.E. 53

CARLOCK

v.PHOENIX INS. CO.¹

Supreme Court of Illinois.

June 10, 1891.

Appeal from appellate court, third district.

Thos. F. Tipton and W. B. Carlock, for appellant.

Kerrick, Lucas & Spencer, for appellee.

SCHOLFIELD, C. J.

This was assumpsit in the McLean circuit court upon a policy of insurance. The policy contained the following condition: ‘In case the assured fails to pay the premium note or order at the time specified, then this policy shall cease to be in force, and remain null and void during the time said note or order remains unpaid after maturity, and no legal action on the part of this company to enforce payment shall be construed as reviving the policy. The payment of the premium note, however, revives the policy, and makes it good for the balance of its term. No agent or employe of this company, or any other person or persons, have power to or authority to waive or alter any of the terms or conditions of this policy, except only the general agent at Chicago, Illinois, and any waiver or alteration by him must be in writing.’ The premium was not paid in cash, the following note being given therefore: ‘$62.00. On the first day of October, 1885, for value received, I promise to pay to the Phoenx Insurance Company of Brooklyn, New York, (at the First National Bank in Bloomington, Illinois,) or order, sixty-two dollars and fifty cents, in payment of premium on policy No. 0,756,750 of said company. If this note is not paid at maturity, said policy shall then cease and determine, and be null and void, and so remain until the same shall be fully paid and received by company. In case of loss under said policy, this note shall immediately become due and payable, and shall be deducted from the amount of said loss. It is understood and agreed that this note is not negotiable. A. H. CARLOCK.’ There was evidence that the time for the payment of the note was extended two or three times by the agent of the insurer, but this extension was not until the time of the loss. A partial payment was made on the note after its maturity, but the note was not paid at the time of the loss. On the first trial, judgment was rendered for the insured, but this was reversed on appeal to the appellate court of the third district, (Insurance Co. v. Carlock, 32 Ill. App. 255,) and the cause was remanded to the trial court. On the second trial, judgment was rendered in favor of the insurer, and on appeal to the appellate court of the...