Heusser v. Continental Life Ins. Co.

• Decision Date: 12 May 1884
• Citation: 20 F. 222
• Court: U.S. District Court — District of Connecticut
• Parties: HEUSSER v. CONTINENTAL LIFE INS. CO.

20 F. 222

HEUSSER v. CONTINENTAL LIFE INS. CO.

United States Circuit Court, D. Connecticut.

May 12, 1884

Charles J. Cole, for plaintiff.

Charles E. Perkins, for defendant.

SHIPMAN J.

This is an action at law, which was tried by the court, the parties having, by a duly-signed written stipulation, waived a trial by jury. The facts which are found to have been proved, and to be true, are the following:

On April 4, 1867, in consideration, among other things, of the annual premium of $386.90 in hand paid and to be paid to the defendant by Susan Heusser, the wife of the plaintiff, on or before the fourth day of April in each and every year during the term of 15 years, the defendant, a life-insurance company duly incorporated and located in Hartford, Connecticut, made its policy of insurance in writing, and thereby assured the life of the plaintiff, now of Syracuse, New York, in the amount of $5,000. In and by said policy of insurance, it was agreed that if, after the receipt by said company of not less than two annual premiums, default should be made in the payment of any subsequent premium, said policy should then be binding on said company for as many fifteenth parts of the sum originally insured as there should have been complete annual premiums paid, without subjecting the assured to any subsequent charge, and that if the plaintiff should survive until April 4, 1882, the amount insured should be paid to him, deducting therefrom all his indebtedness to the company if any, then existing. Five consecutive annual premiums were paid by Susan Heusser to the defendant upon said policy. Said payments of premium ceased on April 4, 1871. On April 4 1882, Henry Heusser was and still is living. One-half of each annual premium was paid in cash, and one-half was paid by note of Henry Heusser, the interest being paid in advance. On April 4, 1882, the defendant held and still holds four of said notes, each for $193.45, and dated April 4th, in the years 1867, 1868, 1869, and 1870, respectively, each payable 12 months after date to the order of the defendant, with interest, and each having been given for one-half of the premiums which were payable at the respective dates of said notes. On the first note the following indorsement had been made, dated April 4, 1872: 'Received on the within note one hundred and thirty-five 75-100 dollars, dividend. ' On the second note the same indorsement had been made, dated April 4, 1873. On the third note the following indorsement had been made, dated April 4, 1874: 'Received on the within note thirty 20-100 dollars dividend. ' Each one of said indorsements was, in 1880 erased by lines drawn through them, respectively, by the secretary of the company, who also added the words, 'Error-- no dividend.' This was done with the knowledge and approval of the directors. These indorsements were made by the direction or under the instruments of the president or secretary of the company, in the usual course of business, and, as was supposed, by authority of the following votes of the directors of said company, the first having been passed February 6, 1871, the second on February 19, 1872, and the third on December 2, 1873:

'Voted, that a dividend from the surplus of the company of 50 per cent. upon life policies entitled to participate in the profits which were issued prior to January 1, 1869, and of 40 per cent. upon endowment policies of the same year, be declared and made payable, in accordance with the rules of the company, upon premiums paid in 1868, when renewed previous to January 1, 1873.'

'Voted, that a dividend from the surplus of the company of 50 per cent. upon life policies entitled to participate in the profits which were issued prior to January 1, 1870, and of 40 per cent. upon endowment policies of the same year, be declared and made payable, in accordance with the rules of the company, upon premiums paid in 1869, when renewed previous to January 1, 1874.'

'Voted, that a dividend be, and hereby is, declared to those policy-holders entitled to participate in the profits of the company,

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