Page:Federal Reporter, 1st Series, Volume 5.djvu/256

 a4-4 FEDERAL EBPOETERi : • 'i �yoti fiiid they paid other drafts and similar xmm to this Com- pany without funds, — these circumstances would show reason- able groimds of expectation to entitie him to demand and notice. On the other hand, if you find that Pendleton had no contract or arrangement with Greenwood & Co. to accept and pay, and that tbeir course of dealing did not justify him in drawing without funds, or that by the contract or course of dealing he was required to give them notice of drafts by let- ters of advice, and that no such letters were sent as to this draft, he had no reasonable expectation of acceptance or pay- ment without funds ; and if you find there was no provision made to meet this draft the plaintiffs cannot recover. You will apply these instructions to the presentation for accept- ance, and if you find there were neither funds, contract, or other arrangement, nor a reasonable expectation of acceptance, the failure to protest and give notice would be excused. If this default was thus excused, then it was still the duty of the Company to present for payment on the fourteenth day of October, 1871. If you find the draft was presented on that day, protest and notice not having been given, or if you find it was presented af ter that da;y, you will apply these instruc- tions to that presentation also;' and if you find there were no funds, and no reasonable expectation of payment, the plaintiffs cannot recover. You are to determine these ques- tions of fact on ail the prooî, and say whether the default of the Company has been excused by want of funds and want of reasonable expectation of acceptance of payment. �As to the proof of loss not being filed, it is conceded notice of the death was given. If, when that was done, the agents of the Company repudiated ail liability, aad informed the parties that the policy had lapsed, then no proof of loss was required by them, and the failure to file it cannot alter the case. If, however, the company or its agent did not thus waive proof of loss, then this action is prematurely brought, and the plaintiffs cannot recover until 90 days after proof filed with them. �There is a clause' in this policy which authorizes ail unpaid premiums to be deducted. I think the inexorable logic of a ����