Insurance Company v. Mowry

ERROR to the Circuit Court of the United States for the District of Rhode Island.

This was an action by Daniel A. Mowry, upon a policy of insurance for the sum of $10,000, issued to him, for his sole benefit, by the Union Mutual Life Insurance Company,-a corporation created by the laws of Maine,-upon the life of Nelson H. Mowry.

The facts of the case and the instructions to the jury are stated in the opinion of the court.

The concluding clause of the policy is as follows: 'But the same [the policy] shall not be binding until countersigned and delivered by John Shepley, agent at Providence, R. I., nor until the advance premium is paid.'

There was a verdict for the plaintiff; and, judgment having been rendered thereon, the defendant sued out this writ of error.

Mr. Benjamin F. Thurston and Mr. Charles H. Parkhurst for the plaintiff in error.

The representations of Shepley, relating to the rights and liabilities of the parties to a contract to be executed in futuro, are not matter of estoppel; but, if they were, there must be proof that the company authorized him to make them, or subsequently ratified them. There was no such proof. The only ratification is contained in the last clause of the policy, and his authority is there expressly limited to countersigning and delivering that instrument and receiving the premium. His promise that the company would give timely notice to the plaintiff when the premiums were due did not bind the company, nor waive the forfeiture incurred by the non-payment of them.

The policy determines the rights of the parties; and its provisions cannot, in the absence of fraud, be defeated by the verbal agreements, or the conduct of the parties or their agents, which preceded its execution and delivery.

The instructions of the learned judge below were evidently erroneous.

Mr. J. J. Storrow, contra.

The failure of the plaintiff to pay the second premium ad diem was owing to the conduct of Shepley. He was the agent of the company to negotiate the contract of insurance and give validity to it by his signature, as well as to receive the premium. As no limitation of his authority was proved, the jury were warranted in inferring that none existed, and that his representations and promises which misled the plaintiff were those of the company. The latter was therefore estopped from setting up the clause of forfeiture. Insurance Company v. Wilkinson, 13 Wall. 222; Same v. Mahone, 21 id. 152; Rockford Insurance Co. v. Nelson, 75 Ill. 548; Boos v. World Mutual Life Insurance Co., Thomp. & C. (N. Y.) 364; Mayer v. The Mutual Life Insurance Co. of Chicago, 38 Iowa, 304.

MR. JUSTICE FIELD delivered the opinion of the court.