Page:Federal Reporter, 1st Series, Volume 7.djvu/185

 PENDLBTON V. KNICKERBOCKER LIFE INS. CO. 173

But aside from the obligations of the commercial law, the rules of which have been so much relied on by the defendant Company to excuse their obvions laches, conceded to be suf- ficient to prevent recovery of this were a suit upon the draft itself, while repudiating them as to all responsibility for a compliance with the ordinary duties of a holder of such pa- per, there is that element of fair dealing in this case which would seem torequire that the agents of this company should have substantially pursued the course indicated by the com- mercial law before claiming a forf eiture of this policy. I did not think the facts justified the court in submitting to the jury whether or not there had been a waiver, under the de- •eisions on that' subject, although Mr; Justice Bradtey, m 'a case against this company^ when there was involved oue of the premium notes oonditioned like this draft, indicates a principle that possibly, justified the learned counsel for the plaintiffs in claiming a waiver. He says: �" Forfeitures a*re not favored tn the^la'W. They areoftett tie taie^ns-'of great/ oppression affidiniustice. iAiid,;wliereadequatex6mpenBati(oniaan ,1)6, made^ the law in n;iauy ,cae|/?Si'an(i, ftquity, jn all, cases, diacha^ges ..the forteiture upon suck compensation being made. It is true, we held in 3tathain,'s(Atie,^2 V. S. 24, thsit in life insurance time of paymeit isina- terialv and cannot be extended by the coarts against the assent of the com- pany. But ifhere such, a^se»i^l^..,given the ocurts should be liberal in construing the transaction in fayqr of avoiding the forfeiture." �Again, after citing casas to sustan the above position, he �says: �"These cases sjiow the readines,s with which pourts seize hold of any •circumstances ^that indidate an election or inteht to waiye a forfeiture." Insurance Oo. v: 'Narton, 96 'G. 8. 234 ; Ifisurance '<3o. v, Eggteston, Id. 572 ; Insurance G<a.v.Wolff,WV.&. 326. �It seemed to the court that it was here more a question whether the forfeiture had taken place, than "whether it had been waived bythe laches of the Company ; and that themost favorable view to be taken for the compatiy was to give them the benefit of the commercial law to excuse the laches, is under it the facts would so excuse. But the view of the sub- ject taken in the requests of the defendant coinpaoy foi instructions, and in the quotation from the brief already