Page:Federal Reporter, 1st Series, Volume 7.djvu/322

 310 FBDEBAIj bbpobteb. �as we have seen, unfounded in fact. And further, as late a» March 14, 1879, it was reptesented by the compiany that it was still in the hands of the court, with the order of October 29th yet in force and the application for a receiver still pending. Now, undoubtedly, if the circumstances were sucb as to excuse the complainant from literal compliance with the condition of the policy as to its transmission, duly re- ceipted, it was bis duty, if he would avail himself of the right to a paid-up policy, to act with requisite promptness after those circumstances ceased to exist. And I think such action was taken when a surrender was offered, in March, 1879. In the light of all the facts and circumstances of th& case, I have no hesitation in holding that the complainant had at that time a right to take the necessary steps to secur& a paid-up policy. After ali that transpired between the com- plainant and the company, from August 23, 1877, to March,^ 1879, 1 think the company should be held estopped to assert that the complainant forfeited his rights by failing either to- pay the premium on the twenty-third day of August, 1877, or to transmit the policy receipted and to demand a paid-up policy within sixty days after such default. �I have carefully examined and thoroughly considered th& authorities cited on the argument, and especially the case of Wkitehead v. Universal Life Ins. Co., decided by the supreme court of Mississippi, unreported, and in which a manuscript copy of the opinion bas been furnished. In that case the court held that the clause in the policies of this company requiring the policy to be transmitted, duly receipted, within sixty days after default in the payment of any premium, if a paid-up policy was desired, was a condition precedent ; that time was of the essence of the contract, and that, to entitle the assured to a paid-up policy, he must have strictly com- plied on his part with the literal terms of that condition, notwithstanding the company was disabled by the proceed- ings against it in the courts of New York to issue a paid-up policy. The question arose in that case on demurrer to a Mil to enforce the issuance of a paid-up policy, filed by the rep- resentative of the assured after the latter's death; and it was ��� �