Hanthorne v. Brooklyn Life Ins. Co.
| Decision Date | 02 January 1878 |
| Citation | 5 Mo.App. 73 |
| Parties | HELEN H. HANTHORNE ET AL., Respondents, v. BROOKLYN LIFE INSURANCE COMPANY, Appellant. |
| Court | Missouri Court of Appeals |
1. In a proceeding in equity to enforce specific performance, and to secure the execution and delivery of a paid-up policy, to entitle plaintiff to the relief sought he must show that he has, on his part, performed the conditions precedent to his right to demand a paid-up policy.
2. Where the time when the notice of demand for a paid-up policy is required to be given depends upon the time of payment, a waiver of punctuality in payment is no waiver of punctuality in giving notice, the time of giving notice being a distinct condition.
3. The law does not favor forfeitures; and when forfeiture is claimed, slight circumstances are enough to show a waiver of such forfeiture; but where the claim of waiver is made in an action to compel the execution of a contract, the evidence must be direct, and a chancellor cannot infer a waiver from remote or slight circumstances.
APPEAL from St. Louis Circuit Court.
Reversed and dismissed.
JAMES O. BROADHEAD, for appellant.
EDWARD WHITE, for respondents: Waiver.-- Thompson v. Insurance Co., 52 Mo. 469; Walsh v. Insurance Co., 30 Iowa, 133; Buckbee v. Insurance Co., 18 Barb. 581; Frolich v. Insurance Co., 47 Mo. 406; Ruse v. InsuranceCo., 26 Barb. 566; Helm v. Insurance Co., 61 Pa. 107; Home Life Ins. Co. v. Pierce, 75 Ill. 426. Principal and agent.-- Wing v. Hawey, 5 De M. G. & G. 216; 2 Big. Life Ins. Cas. 165; Hodsden v. Insurance Co., 97 Mass. 144; Dean v. Insurance Co., 4 N. Y. Sup. Ct. 497.
This is a suit in equity to enforce specific performance of a contract of life insurance. M. P. Hanthorne, one of the present plaintiffs, held a policy on his life, in the defendant, on which policy he had paid several premiums. On this policy a semi-annual premium became due on December 28, 1871, and this premium not being paid at that date, several interviews took place between Hanthorne and the defendant's agents; and it is upon what took place at these interviews that the present controversy chiefly turns. By this policy it was provided as follows: “After two annual payments, should the party wish to discontinue (notice to the company being given before the net premium becomes due), the company will issue a paid-up policy for as many tenths of the amount originally assured as there have been annual premiums paid in cash.” Under this clause, the plaintiffs contend that, more than the requisite number of premiums having been paid, they gave notice to the company and became entitled to a paid-up policy. This notice, they claim, was given orally to the defendant's agent by Hanthorne, at one of the interviews above referred to, but the plaintiffs admit that it was not given until sometime in January, 1872, and, consequently, not until after December 28, 1871, when the premium became due. The defendant, on its part, contends that, as this premium became due and remained unpaid, and as no notice was given of plaintiffs' election to take a paid-up policy until January of the succeeding year, the plaintiffs failed to comply with the condition in the clause quoted, and are not entitled to a paid-up policy. In reply to this, the plaintiffs claim that by a previous course of dealing, shown especially in the failure of the defendant to exact many prior premiums on the days they respectively became due, and by receiving them after they were due, the defendant waived the forfeiture of the policy.
As the present is a bill in equity to enforce specific performance, and to secure the execution and delivery of a paid-up policy under the provision recited above, the question is not as to the forfeiture of the policy. The question is, Are the plaintiffs entitled to the relief they seek? And this depends upon whether the plaintiffs have performed the conditions which, by the terms of their agreement, they were bound to perform before they could demand a paid-up policy. The rule that equity will not award specific performance unless it clearly appears that the terms of the agreement have been complied with, has its foundation in the best of reasons. Equity cannot make contracts, but can only compel their execution when made. By an express term of the policy, the defendant had a right to notice before the then next premium became due, and upon this condition precedent depended the plaintiffs' right to a paid-up policy. This notice, before the maturity of the premium obligation, was not given, as the plaintiffs admit; how, then, can they obtain from a court of equity affirmative relief? Here was an obligation on its face requiring action on plaintiffs' part. Without this action, presumptively, the minds of the parties could not have met; and, if the minds of the parties did not meet,--if, through a failure on the plaintiffs' part, one term upon which, by the previous...
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Cravens v. New York Life Ins. Co.
...six months after the policy lapsed, and no such demand could be waived by defendant, so as to affect plaintiff's rights. Hanthorne v. Insurance Co., 5 Mo. App. 73, was a suit in equity to enforce specific performance of a contract of life insurance. The policy contained the following clause......