Page:Federal Reporter, 1st Series, Volume 5.djvu/253

 PENDLETON V. KNICKERBOCKEB LIM INS. 00. 241 �contained a statement that it was given "for premium on policy No. 2346, which polioy shall become void if this draft is not paid at maturity," and bas never been paid. The de- fence of the company is that the condition for payment has been violated, and the policy ceased before the death of Pen- dleton. This is undoubtedly » good defenee, unlesa the law imposed some obligation on the company to perforai some duty in respect to the draft which it bas not performed, and the neglect of which precludes it from invoking the breach of the condition for payment as a defenee. In other words, if by ita own laches, and neglect of the duty assumed by it as holder of the draft, the failure to pay has occurred, or the parties bave been injured, the company cannot rely on the breach of this condition as a defenee. What, then, were the duties imposed on the company as the holder of this draft by the eontract of the parties ? The defendant company claims that it was the duty of the drawer, or the plaintiffs, to place funds in the hands of Greenwood & Co. to meet this draft at its maturity, and if the proof shows there were no funds there on that day to pay it, the policy became void on non-pay- ment of the draft, whether you find as a fact that it was pre- sented on that day for payment or not, and certainly if you find that it was so presented. I do not think this is a cor- rect view of the law of the case or rights of the parties. This draft, according to its terms, being payable without grace, was payable on demand, at the counting-house of Greenwood & Co., in the city of New Orleans, on the fourteenth day of October, 1871. I have been inclined to think that if the draft was presented for payment on that day, at that place, and payment refused, the condition of the policy was broken ; and, on the other hand, if no presentment for payment was made at that time and place, there has been no breach. The eontract was that the sum should be paid at a particular time and place, or the policy should be void. If the com- pany did not bave the draft there at the time of maturity the condition could not be performed, and by its fault the per- formance became impossible, and, therefore, it cannot çlaim a breach. But I bave concludod that the true measure of v.5,no.3— 16 ����