National Life Insurance Company of Vermont v. Goble

• Decision Date: 17 March 1897
• Docket Number: 7183
• Citation: 70 N.W. 503,51 Neb. 5
• Parties: NATIONAL LIFE INSURANCE COMPANY OF VERMONT v. FREDERICK E. GOBLE
• Court: Nebraska Supreme Court

70 N.W. 503

51 Neb. 5

NATIONAL LIFE INSURANCE COMPANY OF VERMONT v. FREDERICK E. GOBLE

No. 7183

Supreme Court of Nebraska

March 17, 1897

ERROR from the district court of Webster county. Tried below before BEALL, J. Reversed.

REVERSED AND REMANDED.

Bartlett Baldrige & De Bord and J. S. Gilham, for plaintiff in error:

The sending of the worthless draft and the return of the receipt did not constitute a payment of the premium. (2 Morse, Banks & Banking, sec. 543; 2 Daniel, Negotiable Instruments [ed 1891], sec. 1262; 3 Randolph, Commercial Paper [ed. 1888] secs. 1534, 1548, 1551; 2 Edwards, Bills & Notes [3d ed.], sec. 748; Weaver v. Nixon, 69 Ga. 700; Holmes v. Briggs, 131 Pa. 233; Fleig v. Slect, 43 Ohio St. 53; Gibson v. Toby, 53 Barb. [N. Y.], 191; Johnson v. Weed, 9 Johns. [N. Y.], 310; Mordis v. Kennedy, 23 Kan. 289; Everett v. Collins, 2 Camp. [Eng.], 515; Indig v. National City Bank, 80 N.Y. 100; Vail v. Foster, 4 Comst. [N. Y.], 312; Hodgen v. Latham, 33 Ill. 344; Hopkins v. Detwiler, 25 W.Va. 748; Malpas v. Lowenstine, 46 Ark. 552.)

James McNeny, contra:

The purchase by assured of the draft in accordance with specific instructions of the company, the sending of the draft to the agent, the negotiation thereof by the insurer, the forwarding of the renewal receipt to assured, and the failure to return the dishonored draft amount to a payment of the premium. (Currier v. Continental Ins. Co., 53 N.H. 538; Gurney v. Howe, 9 Gray [Mass.], 404; Warwicke v. Noakes, 1 Peake [Eng.], 98; Jung v. Second Ward Savings Bank, 55 Wis. 364; Kington v. Kington, 11 M. & W. [Eng.], 233; Wakefield v. Lithgow, 3 Mass. 249; Palmer v. Phoenix Ins. Co., 84 N.Y. 71.)

OPINION

The facts are stated in the opinion.

HARRISON, J.

In this action the defendant in error sought to recover damages of the National Life Insurance Company of Vermont, alleged to have accrued in his favor by reason of the cancellation by the company of a policy of insurance on his life which it had issued and delivered to him. In the trial court the defendant in error was given a verdict and judgment, and the unsuccessful party has prosecuted error proceedings to this court.

It appears that on March 12, 1890, the insurance company, in consideration of payments then made and others promised in accordance with the terms of the contract, issued and delivered to defendant in error its policy of insurance on his life in the sum of $ 5,000, payable, at his decease, to his wife. It was stated in the policy: "This policy is issued by the National Life Insurance Company of Montpelier Vermont, where all claims under it are payable, and accepted by the insured and beneficiary under the following conditions: A premium of $ 18 shall be paid to said company upon the delivery of this policy, and a sum of $ 111 on or before the first days of July and January, during the continuance of this contract, in each year for the term of twenty years. Failure to pay any premium or any part thereof, or any note given therefor when due, shall cancel the insurance and this contract; except that after three full annual premiums have been paid the company guaranties--" Here follows an extended statement of what would be done or paid by the company at different dates during the life of the policy, beginning with three years from its date and ending with the twenty-fifth year, in consideration of certain stated acts to be performed by the holder of the policy. The defendant in error made all payments required by the contract to and including the one of $ 111 due January 1, 1891, by which the policy was continued in force to July 1, 1891. At some date during the month of June, 1891, defendant in error received from the agents of the insurance company at Omaha the following communication:

"Mr. Fred. E. Goble, Red Cloud, Neb.--DEAR SIR: The premium of $ 111 on your life insurance policy number 42899 will fall due July 1, 1891. Kindly give this notice prompt attention, as your insurance, if not paid, expires on that date. Please remit by bank draft, registered letter, express or post-office money order to M. L. Roeder & Bro., 403 Paxton Block, Omaha, Neb."

And on the 26th of that month purchased a draft and forwarded it to the agents. The draft was in the following terms:

"RED CLOUD NATIONAL BANK.

"$ 111. RED CLOUD, NEB., June 26, 1891.

"Pay to the order of M. L. Roeder & Brother one hundred and eleven dollars.

CHAS. CLARY,

"Cashier.

"To the Chase National Bank, New York City."

This draft was received by the agents June 27, and on that day deposited in the Omaha National Bank and sent for collection to the Chemical National Bank of New York. On presentation to the Chase National Bank payment was refused, the Red Cloud bank having failed on the 28th of June. On receipt of the draft by the agents at Omaha they forwarded to defendant in error the proper renewal receipt, by which the payment of the premium was in terms acknowledged. The foregoing is a statement of the main and important facts of the transactions, the source of the present controversy, as detailed in the evidence introduced during the trial, and they were practically undisputed. One assignment of error was to the effect that the verdict was contrary to law and the evidence. The inquiry which arises is, were the facts of such a nature as to warrant the verdict and judgment rendered?

The payment of the premium is not claimed except by the draft forwarded to the agents of the company. In regard to this claim it is the established rule that a draft or check is not a payment of a debt in the absence of an express agreement that it is taken or received in payment. It is...