Page:Federal Reporter, 1st Series, Volume 7.djvu/189

 IENDLETON ». KNIOKEEBOOKBE LIFE INS. 00. 177 �for the purpose of collecting the premium or enforcing a for*eiture for non-payment. 1 Daniell, Neg. Inst. § 452. If the Company could have shown anything to excuse thia neglect, such as want of funds, or reasonable eipectation of acceptance and payment, or other fraud, the charge given permitted such excuse ; but on the facts the jury were clearly authorized to say none existed. �It is claimed that, because the policy contains a clause that "the omission to pay any premium, * * or failure to pay at maturity any note, obligation, or indebtedness for premium or interest herein, shall then and thereafter cause this policy to be void, without notice to any party or parties interested herein," by its very terms, protest and notice were waived upon this draft, or cannot be required to secure the forfaiture, however the failure to give it may operate to pre- vent a recovery on the draft itself. What has already been said to show that the obligation to pay the draft has never been fixed, and therefore there has been no breach of the condition on which the forfaiture depends, is a suffieient an- Bwer to this argument. If the company could nOt recover in a suit on the draft itself there is no reason why it should have any benefit for its non-payment. But it is obvions that the clause was not intended to waive protest and notice on the draft, and that is not the character of notice referred to by it. It was intended to provide against the necessity to give notice that the company claimed and would insist on a forfaiture. The decisions are not uniform in determining whether the con- dition for prompt payment is a condition precedent or subse- quent, and there may be a distinction, and probably is, on this point, as applied to the premium and a note given in pay- ment of it. Perhaps in our courts, under the influence of the cases already cited from the supreme court of the United States, it would be treated as a condition subsequent, though I am not sure the point is decided. At all events, many cases hold that no forfeiture is incurred untU notice by the com- pany that itis claimed has been given; and all agree that the conduet of the company may be such as to waive the condi- �T.7,no.2— 12 ��� �