Page:Federal Reporter, 1st Series, Volume 7.djvu/191

 PENDLETON V. ENICEEBBOCEEB LIFE INS. CO. ^9 �draft was not payable absolutely, and the drawer had an option to discontinue the policy by refusing payment. Per- haps the drawer of this draft had no option to discontinue the policy. by refusing to pay the premium itself. He was not in terms bound to pay it. It was the contract of his children, and, while he may have refused to keep it up for them, they could by other means have continued it. The option was theirs, not his. But certainly, in his capacity as drawer of this draft, he had' no option about it. If the necessary steps to charge him had been taken he would have been liable and the company had the option to collect it, or, on non-payment, surrender it and rely on the condition for forfeiture. If it had been accepted, or otherwise secured, as by a mortgage, the company, having fixed the liability of the parties, may have chosen to waive the forfeiture and collect the draft; and, as to all the parties to it, the promise was unconditional. That it was negotiable is established by au- thority. Jarman y. Ins. Co. 3 Cent. Law. J, 303; S. C. 22 Int. Rev. Eec. 162; Kirk v. Iiis. Co. 39 Wis. 138; William$ V. Ins. Co. 19 Mich. 451; Wall v. Ina. Co. 36 N. Y. 157; Roehner v. Ins. Co. supra, at pag3 165 of 63 N. Y.; 1 Daniell, Neg. Inst. (2d Ed.) § 62; Id. §§ 35-44; Bank ofSherman y. Apperson, 4 Fbd. Rbp. 26. �The Jarman Case, supra, by the very able judge of the eastern district of Michigan, sitting in this court, is, on prin- ciple, cbnclusive in favor of the charge given by the court in this case, and so are the others cited ; because, if this draft, or the note in that case, be negotiable, so that it would be entitled to grace, (if it had not been waived,) there is no reason why it is not subject to all the other incidents and rules of the commercial law, as the court held it to be. On the whole, I am satisfied the case was correctly tried, and that the verdict is right. �Motion overruled. ��� �