McCraw v. The Old North State Ins. Co.

• Decision Date: 31 January 1878
• Citation: 78 N.C. 149
• Court: North Carolina Supreme Court
• Parties: JOHN C. MCCRAW, Trustee v. THE OLD NORTH STATE INSURANCE COMPANY.

78 N.C. 149

JOHN C. MCCRAW, Trustee

v.THE OLD NORTH STATE INSURANCE COMPANY.

Supreme Court of North Carolina.

January Term, 1878.

CIVIL ACTION, tried at Spring Term, 1877, of WARREN Superior Court, before

Buxton, J.

This action was brought by plaintiff as trustee of Perkinson & Nicholson to recover the sum of $2000 the amount of a policy of insurance issued by the defendant company to Perkinson & Nicholson, on the 27th of October, 1874, (and continued in force by renewals) insuring their store house and stock of goods in Warren County. The amount of the premium ($30) was not paid in cash, but a note was given therefor payable on the 1st of February, 1876, to keep the policy in force from October 27, 1875, to October 27, 1876, and the defendant gave the ordinary renewal receipt. The property covered by the insurance was destroyed by fire on the 11th of April, 1876. No part of said note was ever paid, but the amount was tendered to the defendant after the fire, and refused. The policy contains the following provision; “No insurance whether original or continued shall be considered as binding until the actual payment of the cash premium; but when a note is given for cash premium, it shall be considered a payment, provided the notes are paid when due, and it is hereby expressly stipulated and agreed by and between the parties, that in case of loss or damage by fire to the property herein insured, and the note given for the cash premium, or any premium, or any part thereof shall remain unpaid and past due at the time of such loss or damage, this policy shall be void and of no effect.”

Perkinson testified that B. F. Long, the general manager and secretary of the company, had agreed by parol with him to extend the time of payment of said note for ninety days after its maturity; that in previous transactions with the company, the time for payment of similar notes had been extended; and that when he first asked for this indulgence, he requested said Long to give him some written evidenee of the extension, and that Long replied, he only made a minute to that effect in a book kept for that purpose.

Long testified that the time of payment of this particular note had not been extended, and admitted the custom and manner of extension as stated by Perkinson; that the conversation about extending the time on this note occurred in his office, and it was his universal habit, so far as he could remember, when extending the time of payment of a premium note, if he was in his office, to make a minute of the fact in his book of bills receivable; and that this book had no entry in it extending the time upon the note in question. He then testified as to the manner of conducting the business of the company in respect of extension of time upon such notes, &c.

Davis, a witness for the defendant, testified that at the fire “he asked Perkinson if the property was insured; and he replied, he did not know, he did not think it was, he was afraid he had let the time pass by, he had asked Nicholson to attend to it, and did not know whether he had done so or not;” and another witness testified “that he also, immediately after the fire, asked Perkinson about his insurance; and he replied, he could not tell, but he did not think he would have neglected so important a business, that Mr. Nicholson had gone to Warrenton to see about it.”

Perkinson was then recalled and stated “that he was so excited and confused by the fire, he at the time had no recollection of the agreement to extend the payment of the premium note; that he had responded to the inquiries without reflection and at a time of great excitement and distress;” and to corroborate this explanation, the plaintiff introduced one Fitz and proposed to show by him, that while the property was burning he also asked Perkinson if it was insured, and that “he replied, he did not know, his mind was so confused and excited, he could not recollect.” Upon objection this evidence was excluded by His Honor on the ground that the declaration was made, if made at all, at a different time from the declarations testified to by Davis and the other witness. The witness however was allowed to say that Perkinson appeared to be much disturbed and depressed. The plaintiff also offered to show “that shortly after the fire had subsided, Perkinson's mental condition was such as to excite the attention and remark of one of his friends who had come to see him, and to call for the advice of this friend, that he was so much affected, it would be better for him to take a drink of liquor.” This was objected to by defendant, and excluded.

The plaintiff asked the Court to charge “that a forfeiture by reason of the non-performance of a condition subsequent was not favored, and the waiver of the forfeiture by the company might be inferred from the dealing of the company with the insured, and from the known custom of the company with reference to matters insisted on as working the forfeiture, as well as it might result from express agreement.” His Honor responded; “The forfeiture for non-payment of premium note...