Page:North Dakota Reports (vol. 1).pdf/207

 forfeiture, also that an extengion of time upon a premium note after the due-day of the note has the same effect upon a forfeiture caused by non-payment of the note at maturity. We think that this case comes within the principle of these cases. The demand for judgment upon a note given for the premium is a formal recognition by the defendant, made after full knowledge of the facts which would defeat the policy in its inception, of the original binding force of the contract. The assertion of the demand assumes the original validity of the policy, and such assumption is made after knowledge that the policy was voidable for a fraud which would defeat both the note and the policy at defendant’s option. We hold that this waives the forfeiture caused by the silence of the plaintiff as to the false answers in the application.

The case would have been widely different if the defendant had elected to stand only on the other defense pleaded in the answer to the complaint. The defense that the plaintiff sued too late, or that the requisite notice of loss, or preliminary proofs of loss. were not furnished, are all and singular such defenses as do not go to the original validity of the note and policy, and, whether any and all of such defenses are true or untrue, would not affect the validity of the note or the policy as original contracts. It follows that pleading the counter-claim would have been entirely proper, if set up only in connection with the last-mentioned defenses, and would not have operated to estop the defendant of availing itself of such defenses. But the defendant has not seen fit to pursue that course, and must accept the consequences of the election it has made to sue for the premium with full knowledge of the forfeiture of the policy for fraud in its inception.

The policy provides that the loss will be paid according to the terms and conditions of the policy, “but not until requisite proofs, duly certified and sworn to by assured and one disinterested party, are received at the office of the company in Chamberlain, Dakota.” The insurance was for the term of “six months, from the 6th day of May, 1885, at noon, to the 6th day of November, 1885, at noon.” The policy further provides: “All loss and damage under this policy shall be due and payable