McIntyre v. Michigan State Ins. Co.

• Citation: 52 Mich. 188,17 N.W. 781
• Court: Supreme Court of Michigan
• Decision Date: 20 December 1883
• Parties: MCINTYRE v. MICHIGAN STATE INS. CO.

17 N.W. 781

52 Mich. 188

MCINTYRE v. MICHIGAN STATE INS. CO.

Supreme Court of Michigan

December 20, 1883

As between the maker and payee of a note not made payable at any place, no demand for payment upon the former at maturity is necessary to make the note due and suable; the maker must seek out the holder, the necessity of demand being only in case of indorsers, whom the law favors so far as to require some preliminary effort to get payment from the party primarily liable.

Where such a note is given in payment of the premiums on an insurance policy, mere non-payment is default.

Where suit is brought against an insurance company after 12 months from the loss, (the limit fixed in the contract of insurance,) it will not avail in order to avoid this limitation that previous suits brought in the proper time but in courts not having jurisdiction, were brought in good faith.

Evidence tending to show the effect on the plaintiff's mind of the statements of the agent, and not what was said by the agent is properly excluded.

Error to Sanilac.

Geo. P. Voorhees, for plaintiff and appellant.

Millard Weaver & Weaver, for defendant.

GRAVES, C.J.

The plaintiff was insured by defendant in 1878 in the sum of $600, and on the twenty-first of July, 1879, he procured another policy from the company for $17. It was for three years, and covered his barn and certain other property. He paid the premium by his note made in these terms;

"$17. FREMONT, MICH., July 21, 1879.

"In 90 days, for value received in insurance by the Michigan State Insurance Company, I promise to pay to the order of the secretary of the company the sum of seventeen dollars, with interest. HUGH MCINTYRE."

The business was transacted by the company through its local agent, Mr. James Brown, of Brockway Centre, a place near the insured property and to the plaintiff's residence. The note was handed to Brown on his delivering the policy. Among the provisions in the policy was one requiring payment of the premium note at maturity, and another prescribing that in case of any action commenced against the company more than 12 months subsequent to a loss, the lapse of time should be taken as conclusive evidence of the invalidity of the claim. The words of the provision first named are as follows "A promissory note given for such premium shall be deemed the payment of the premium until said note shall become due; but in case said note shall not be paid when due then this policy shall be void and of no effect, and shall continue void until the payment of said note. And when paid, if before a loss, this policy shall be in force and effect until its expiration, subject to the conditions therein contained." A secondary provision was inserted to preclude any deviation from the express terms except by an explicit stipulation with defendant's secretary. It reads as follows: "There shall be no revision or evasion of any of the terms or conditions of this policy, and no agent or servant of this company has any right or power to waive or to dispense with any of the terms or conditions of insurance as printed or contained in the application or in this policy, excepting that the same is done by the concurrence of the secretary of the company, indorsed hereon, or otherwise specifically acknowledged in writing by him."

These clauses were not covertly inserted. They did not enter the contract by a back door. They were heralded by the application itself, in that the plaintiff declared as follows: "I hereby further agree that the policy of insurance based on this application shall be void if the premium or note or any part thereof given for the same remains unpaid at the time agreed upon, and acknowledge myself indebted for the full amount of the premium or note given for the policy issued on this application. This application is made after a full knowledge to me that no agent of said company has any authority to waive or dispense with true answers to all the above questions or with any provision of this application or the policy."

Moreover, it is admitted by the plaintiff that on the execution of the policy his attention was expressly directed to this clause for avoiding it for nonpayment of the note, and that in answer to his observation that he thought it did not amount to much, the agent Brown remarked that he thought it did. About the close of 1879 the defendant withdrew from insurance and reinsured its risks in the Home Insurance Company of New York, and on the first of January, 1880, it notified its policy holders, including plaintiff, thereof. August 11, 1880, the plaintiff incurred a loss within the words of the first policy, and also of this, and on the seventh of September he exhibited the proper proof.

The premium note on this last policy had never been paid. It had remained in Brown's hands in order that the plaintiff might take it up, and subsequent to the loss the latter offered to pay it, but the agent refused to accept payment. The defendant paid the loss covered by the policy of 1878 but...