do an act not impossible or unlawful at the time, neither inevitable accident nor other unforeseen contingency, not within his control, will excuse him, for the reason that he might have provided against them by his contract. A life insurance policy provided that "if any premium on this policy be not paid when due then this policy shall cease and determine and this company shall not be liable for the payment of the sum insured herein nor any part thereof." Held, that a failure to pay the premium when due, caused by the insanity of the insured, whose duty it was to pay it, forfeited the policy, and that equity would not relieve against such forfeiture. Cohen v. New York, etc., Ins. Co., 50 N. Y. 610; Sands v. New York, etc., Ins. Co., id. 626, distinguished.

The policy provided that if default was made after the payment of two or more premiums, the company would grant a paid-up policy for such an amount as the then present value of the policy would purchase, if application should be made within one year after default. Held, that the death of the insured would not relieve the company from its contract to issue a paid-up policy to those entitled, if application was made within one year after default.

A

PPEAL by plaintiff from judgment in favor of defendant upon demurrer to complaint. The opinion states the case.

Everett P. Wheeler, for appellant.
William A. Beach, for respondent.

MILLER, J. The complaint in this action sets forth causes of action upon two separate policies of insurance, claiming to recover the amount named in each, and also alleges that a dividend was declared out of the surplus earuings and receipts of the company, for a portion of which the insured was entitled to a paidup policy, which on demand, was refused. The demurrer to the complaint presents the question whether any cause of action is set forth therein.

The policies on which this action was brought, provided for the payment of an annual premium, and contained a condition as follows, that "this policy shall not take effect until the advance premium hereon shall have been actually paid, during the life-time of the insured, and that if any subsequent premium on this policy be not paid when due, then this policy shall cease and determine (except as hereinafter provided), and this company shall not be liable for the payment of the sum insured herein, nor of any part thereof." The annual premium due on the 28th of October, 1873, was not paid, and the complaint alleges, and upon demurrer it must be taken as true, that Vose, the insured, became, and was by the visitation and act of God insane, and consequently unable to, and did not pay the premium, although he had means to pay the same; but he was bereft of his reason, and in consequence thereof did not know nor remember that said premium was then due, nor that he had agreed to pay the same.

Vose having died without a payment of the premium, according to the terms of the contract, the question arises whether his insanity is an excuse far non-payment, and the forfeiture is thereby waived. Courts of equity will relieve against a forfeiture in many cases, but none of the decisions have gone to the extent of holding that insanity will constitute an excuse for failing to comply with the terms of the condition referred to. In Rose v. Rose, Amb. 332, Lord Hardwicke laid down the rule thus: Equity will relieve against all penalties whatsoever; against non-payment of money at a certain day; against forfeitures of copyholds; but they are all cases where the court can do it with safety to the other party; for if the court cannot put him into as good condition as if the agreement had been performed, the court will not relieve." Even if a condition subsequent becomes impossible by the act of God, or of the law, or of the obligee, etc., the estate will not be defeated. Co. Litt. 206, b. The defendant here could not well be placed in as good a condition as it had been by the payment of the premium after a forfeiture, for by such payment it would be compelled

to pay the amount named in the policies, thus adding to its obligation. So also where the contract is for personal services, which none but the person contracting can perform, inevitable accident, or the act of God, will excuse non-performance. But when the thing or work to be performed may be done by another person, then all accidents are at the risk of the promisor. Story on Bailments, § 36 and notes: Wolfe v. Howes, 20 N. Y. 197; Clark v. Gilbert, 26 id. 279; Spalding v. Rosa, 71 id. 40. In the present case the condition did not require the insured himself to pay the premiums, and it could have been done quite as well by any one on his behalf. After Vose became insane, he was not really the party in interest. He had assigned the policies to his children, and they were the parties interested therein, and to be affected by a failure to perform the condition of the contract. Although Vose was their guardian, if incapacitated by his insanity, a competent person could have been appointed in his place; and hence his insanity was not necessarily an insuperable obstacle to their performance of the condition of the policy, and they were not relieved thereby. So long as the act could be performed by any other person, its performance did not depend upon Vose's continued capacity, and although rendered incapable by his insanity, the case is not within the rule which relieves a party from the consequences of an omission to do an act rendered impossible by omnipotent power. Brown's Legal Maxims (6th Am. ed.), 178, 179; Howell v. Knickerbocker Life Ins. Co., 44 N. Y. 276.

While as a general rule, where the performance of a duty created by law is prevented by inevitable accident without the fault of a party, the default will be excused, yet when a person by express contract engages absolutely to do an act not impossible or unlawful at the time, neither inevitable accident nor other unforeseen contingency not within his control will excuse him, for the reason that he might have provided against them by his contract. Dexter v. Norton, 47 N. Y. 62; Harmony v. Bingham, 12 id. 99, 107; Tompkins v. Dudley, 25 id. 275. The principle thus established has been especially applied in reference to policies of insurance where the payment of the premium is held to be a condition precedent which must be kept or the policy falls. Roehner v. Knickerbocker Life Ins. Co., 63 N. Y. 160; Evans v. U. S. Life Ins. Co., 64 id. 304; Beebe v. Johnson, 19 Wend. 500. In the case last cited it was laid down that to excuse non-performance, it must appear that the thing to be done cannot by any means be accomplished.

The learned counsel for the plaintiff seeks to distinguish 63 N. Y. 160, and 64 N. Y. 304, above cited, from the case at bar; but we are unable to perceive any such difference as prevents an application of the principle decided in these cases, and we think that they are directly in point upon the question discussed. Reliance is also placed upon the decisions of this court in Cohen v. N. Y. Mut. Life Ins. Co., 50 N. Y. 610, and Sands v. N. Y. Life Ins. Co., id. 626, to sustain the theory of the plaintiff. Those decisions hold that the occurrence of war between two States forbids and excuses the transmission and payment of premiums on the policies then in question from one State to another, and legally excuses their payment; and as the premiums could not be paid as they fell due, they were suspended, and a tender, after the termination of the war, with interest, renewed the policies. This condition of affairs arises from the belligerent attitude between the hostile States, which rendered it impracticable to comply with the terms of the contract. War necessarily prevents communication between the citizens of such States; and as it existed without the fault of the insured, in the cases cited, and for that reason no intercourse could be maintained for business purposes, the insured were not in any sense in fault for a failure to comply with the conditions contained in the policies in ques

tion. As it was impossible for either one of the insured to pay the premium required, or to procure any one else to do so on his behalf, there is no satisfactory reason why he should not be excused. This rule, which is well settled by the law of nations, rests upon grounds of public policy by which contracts between belligerent States are suspended during the war, but are not annulled.

This doctrine is founded upon the principle that the State, and not the individual, wages the war. Phill. on Int. Law, 666; Wheat. on Int. Law (8th ed.) 403, § 317. The cases cited are not analogous, for while here the individual can pay or provide for payment through another, in case of war he is entirely helpless to fulfill and carry out the contract, and at the mercy of the government. The authorities of the hostile States have placed it beyond his control, suspended all intercourse, stopped all business relations, and laid a heavy arm upon all communications between their citizens. As there is no ability to fulfill, no means of paying, the justice and propriety of the rule is apparent, while its application in the case at bar cannot be upheld upon any such ground. There is, we think, a wide distinction in principle recognized in the books between inability to fulfill the terms of the contract, where, by the act of two governments, war intervenes and prevents a fulfillment, and where the default arises from a duty or charge which has been assumed by the party, and is capable of fulfillment either by himself or by another on his behalf.

While a court of equity will interpose its power to relieve against forfeitures for a breach of a condition subsequent, caused by unavoidable accident, by fraud, surprise, or ignorance, in many cases, that power has never been extended so as to excuse a breach of a contract of this description arising from the disability of a party caused by sickness or insanity.

The case of Baldwin v. Nat. Life Ins. Co., 3 Bosw. 530, which is cited and relied upon by the appellant, involved no question as to the non-payment of the premium, but related to a provision in the contract whereby the insured was licensed to travel in prohibited localities, returning within a specified period, and was prevented by illness from performing the condition. It was analogous to contracts for personal services, to which reference has been had, and the authority has no application in the case considered. Besides, it is overruled by Evans v. U. S. Life Ins. Co.,

supra.

In the case at bar, it is not claimed that the performance was strictly impossible, and therefore it was excused by law or that equitable relief should be granted upon that ground; and we are unable to discover that a case is made out, within any acknowledged principle, which authorizes the interposition of a court of equity.

Nor is there any ground for claiming, that by the provisions of the contract, the intention of the parties was that the terms of payment should not be obligatory in case of unavoidable sickness or of insanity. The law places a reasonable construction upon all contracts, but in cases of insurance policies, where the prompt payment of premiums is an important element of the business, and forms the basis of its calculation by the compounding of interest thereon, it is scarcely to be supposed that such payment can be waived, except in conformity with some established rule of law or by express agreement. The claim of the plaintiff that the moneys in possession of the company belonging to Vose, being dividends on the policies in question, should be applied in payment of the premiums falling due, is without merit, as such dividends would have been insufficient to pay the premiums due,, even if applied. Nor was the company bound to pay such dividends to the insured, and notify him that the policy was forfeited if not applied. The money was

never demanded, nor any request made to apply the same; and hence the defendant was under no obligation to apply or to pay the dividends on account of the premiums. The views expressed lead to the conclusion that no action lies to recover the amount named in the several policies mentioned in the complaint, or the dividends, and the demurrer must be sustained, unless it can be upheld upon some other ground.

The allegations in the complaint in regard to dividends which have been earned, and the refusal of the defendant to issue a paid-up policy, stand, we think, in a different position. The sixth condition of the policy provides, "That if, after the payment of two or more annual premiums upon this policy, the same shall cease and determine by default in the payment of any subsequent premium when due, then, notwithstanding such default, this company will grant a 'paid-up policy' (payable as above) for such amount as the then present value of this policy will purchase as a single premium, provided that this policy shall be transmitted to and received by this company, and application made for such paid-up policy' within one year after default in the payment of premium hereon, shall first be made." The complaint shows that under this clause, a dividend was declared out of the surplus earnings and receipts for the preceding year, on the 1st day of January, 1873, payable to its several policy-holders, and to Vose as one of them; that none of this has been paid, and it was still retained by the defendant, and was in its possession when the premium not paid became due, and at the time of Vose's death. Three annual premiums had been paid upon the policies, and the provision cited entitled the insured or his assignees to the benefit of the dividends actually made. And as the complainant avers that when the proofs of loss were presented to the defendant the policy of twenty thousand dollars was transmitted to and received by it, and that it refused to grant a paid-up policy for such amount as the then present value of the policy on the twenty-eighth day of October, 1873, the day when default was made, would purchase as a single premium or to pay such amount, a cause of action is made out which entitles the plaintiff to relief. The facts stated establish a demand for a paid-up policy, within one year after default in payment of the premium, in the mode prescribed, and a refusal to comply with such demand. A cause of action was thus made out. The fact that Vose was dead does not relieve the defendant from liability, as no such contingency by the terms of the policy is provided for as an excuse for not granting such paid-up policy. The conditions were: first, that two or more annual premiums should be paid; and second, that the application should be made within one year after default. All this has been done, and the company were bound to comply with these conditions. Although the insured was dead, the right to a paid-up policy, or its value, remained to his assignees. If the insured had lived, he was entitled to it; and his assignees succeeded to his right. The same rule applies as when insurance companies, or their agents, have made contracts to issue policies which have neither been made out nor delivered. In such cases the loss is payable the same as if a policy had been actually issued and delivered. Although not very distinctly or precisely set forth, a cause of action was stated in substance, which entitled the assignee of Vose to a paidup policy or its equivalent. A refusal to perform this condition created a liability for the amount for which the paid-up policy might have been issued, and this was a good cause of action, for which the plaintiff was entitled to recover.

As the complaint contained distinct causes of action, and a demurrer to the whole complaint was interposed, and one of them is good and sufficiently pleaded, the result is that the judgment of the General Term must be reversed, and that of the Special Term affirmed,

with leave to the defendant to answer upon the usual terms.

Rapallo, Earl, Danforth and Finch, JJ., concur. Folger, C. J., and Andrews, J., being interested as policy-holders in the defendant, took no part.

NEGLECT OF LOT-OWNER TO REMOVE SNOW FROM SIDEWALK.

MICHIGAN SUPREME COURT, JANUARY 5, 1881.

TAYLOR V. LAKE SHORE & MICHIGAN SOUTHERN RAILROAD Co.

A municipal corporation, under authority granted in its charter, by ordinance required owners and occupants of premises upon its streets to remove snow, ice, etc., from the sidewalks in front of such premises. The charter provided that the owner or occupant failing to comply with such ordinance should be liable to the city for damages recovered against it for injury occurring by reason of such failure. Held, that one injured by reason of neglect to remove ice or snow from the sidewalk in said city would not have a right of action for his injury against the individual guilty of the neglect.

ACTION for injury caused by slipping upon an icy

sidewalk. The opinion states the facts.

Griffin & Dickinson and Henry M. Campbell, for plaintiff.

Ashley Pond, for defendant.

COOLEY, J. The plaintiff sues the railroad company to recover compensation for an injury suffered by her in consequence of slipping and falling upon ice which had formed on a sidewalk in front of the premises occupied by defendant in the city of Monroe, and which the defendant had failed to remove as required by law. It is not claimed that any such action would lie at the common law, and the right of recovery is supposed to arise from certain State and municipal legislation.

The State legislation in question is the general act for the incorporation of cities, passed in 1873, under which the city of Monroe is now organized. Chapter 12 of this act relates to the sidewalks. Section 1 gives the city council control of all sidewalks, with power to construct and maintain the same and charge the expense thereof upon the lots and premises adjacent to and abutting upon such walks. Section 2 empowers the council to require the owners and occupants of adjacent lots to construct and maintain sidewalks, and section 3 is as follows: "The council shall also have power to cause and require the owners and occupants of any lot or premises to remove all snow and ice from the sidewalks in front of or adjacent to such lot or premises and to keep the same free from obstructions, encroachments, filth, and other nuisances."

Section 4 provides that if any owner or occupant shall fail to perform any duty required by the council in respect to sidewalks, the council may cause the same to be performed, and levy a special assessment to meet the expenses on the lot or premises adjacent to and abutting on the sidewalk.

Section 6 is as follows: "If any owner, occupant or person in charge of any lot or premises shall neglect to repair any sidewalk in front of or adjacent to such premises, or to remove any snow or ice therefrom, or to keep the same free from obstructions and incum brances, in accordance with the requirements of the ordinances and regulations of the council, he shall be liable to the city for the amount of all damages which shall be recovered against the city for any accident or injury occurring by reason of such neglect." Gen. Laws 1873, pp. 244, 325, 326.

Acting under the authority conferred by this act,

the city council adopted an ordinance whereby it was provided that the owner or occupant of any house or building, or person entitled to the possession of any vacant lot, or person in charge of any church or other public building, or any street, alley or public space, shall not permit the sidewalk and gutter adjoining the same to be obstructed by snow, ice, filth, dirt or other incumbrance, and when ice is formed on any sidewalk and gutter, such owners, occupants, or persons having charge, or entitled to possession of property adjoining, as above provided, shall, within twenty-four hours after the same has formed, remove the same, or cause sand, sawdust or ashes to be strewn thereon.

The defendant, it is alleged, failed to remove, within twenty-four hours as required by this ordinance, the ice which had formed on the sidewalk in front of its premises, and the plaintiff sustained a severe injury by slipping and falling thereon.

It is said on behalf of the plaintiff that the obligation to keep the sidewalks free from snow and ice is imposed as a duty on all persons who may have occasion to use the walks in passing and repassing, and that the neglect to do so, in consequence of which any one lawfully using the walk is injured, is a neglect of duty to him, and entitles him on well-recognized principles to maintain an action. Crouch v. Steele, 3 Exch. 402; Aldrich v. Howard, 7 R. I. 214.

To maintain this proposition it is necessary to make it appear that the duty imposed was a duty to individuals rather than a duty to the whole public of the city; for if it was only a public duty it cannot be pretended that a private action can be maintained for a breach thereof. A breach of public duty must be punished in some form of public prosecution, and not by way of individual recovery of damages. Nevertheless the burden that individuals are required to bear for the public protection or benefit may in part be imposed for the protection or benefit of some particular individual or class of individuals, also, and then there may be an individual right of action as well as a public prosecution if a breach of the duty causes individual injury. Atkinson v. Water Works Co., Exch. 404.

The nature of the duty and the benefits to be accomplished through its performance must generally determine whether it is a duty to the public in part or exclusively, or whether individuals may claim that it is a duty imposed wholly or in part for their especial benefit. In this case the duty was to keep the sidewalks free from obstructions. It will not be claimed that this was not a duty to the whole public of the city, and the disputed question is whether it is also a duty to each individual making use of the walks. An obstruction by snow or ice may make the use of a walk dangerous, or may wholly preclude its use for the purpose for which walks are constructed. If the duty to keep the walk free from obstructions is a duty to individual travellers desiring to use it, it is as much broken when the walk is wholly obstructed as when it is capable of use but is dangerous, and an action will as much lie by one who is compelled to go around an obstruction, as by one who slips and falls in a dangerous place. Moreover as the lot-owner is required to keep the walk free from all nuisances, an individual traveller who can maintain the proposition that this is a duty to him, must be entitled to bring suit wherever the existence of a nuisance diminishes either the comfort or the safety of the use of the walk by him. This view of the obligation of the lot-owner would add greatly to his common-law liabilities, and it is not easy to draw the lines which should definitely limit and confine his liabilities.

But if we look a little further into the statute under which the city is incorporated, we shall see that all its provisions respecting sidewalks, so far as they impose duties upon the owners of adjoining or abutting lots, have one common object, namely, to provide suitablo

and safe passage-ways for foot passengers by the side of the public streets, and to keep these in condition for safe use. The expense of such ways is imposed on the owners of adjacent lots, and these owners must keep them free from encroachments. Will it be claimed that if the city council shall require a lot-owner to construct a sidewalk in front of his premises, and he should fail to obey the requirement, every person who should come upon the street desiring to pass on foot where the walk should be, and who should be precluded from doing so by the walk not being constructed, might bring suit against the lot-owner for the neglect to build it as a neglect of duty to the traveller himself? He is damnified in that case as clearly as when he falls upon a dangerous walk and is hurt; though the damage may perhaps be insignificant.

But it is clear, we think, that the duty to build the walk is only a public duty, and the duty to keep it in condition for use is also a public duty. Exactly what force is to be given to the provision of statute that the lot-owner shall be liable to the city for all damages which the city may be compelled to pay for his default, we need not consider in this suit. It is enough to say here that an action grounded on that particular provision of the statute could only arise after the city had been rendered liable in a suit against it. If the statute contemplated public duties only, the city ordinance could not go further and give individual rights of action. But neither, we think, has it attempted to do. The judgment of the Circuit Court must stand affirmed with costs.

AUTHORITY OF WIFE TO PLEDGE HUSBAND'S CREDIT.

HOUSE OF LORDS, NOVEMBER 27, 1880.

DEBENHAM V. MELLON, 43 L. T. Rep. (N. S.) 673. There is no necessary presumption that a wife living with her husband has authority to pledge his credit; and a husband who is able and willing to supply his wife with necessaries, and has forbidden her to pledge his credit, cannot be held liable for necessaries bought by her; so that a tradesman who, without notice of the husband's prohibition, has supplied goods to the wife, cannot maintain an action against him for the price.

THIS

HIS was an appeal from a judgment of the Court of Appeal (Bramwell, Baggallay and Thesiger, L. JJ.), affirming a judgment of Bowen, J., at the trial. The case is reported in 5 Q. B. Div. 394, and 42 L. T. Rep. (N. S.) 577.

The question raised by the appeal was, whether a husband who has withdrawn his wife's authority to pledge his credit, but has given no notice whatever of such withdrawal, is liable for necessaries ordered and supplied to his wife while living with him. The appellants were a firm of drapers, carrying on business in Wigmore street, London, and the defendant was Mr. Alfred Mellon, living at Bradford, in Yorkshire. Shortly before July, 1877, the appellants supplied the wife of the respondent while living with him with clothes necessary for her and their children to the amount of 431. 9s. 6d. The appellant having brought an action against the respondent to recover that sum, at the trial the respondent and his wife stated that in 1869 a verbal agreement was made between them whereby the respondent forbade his wife to pledge his credit, and further stated that such prohibition was continued without interruption down to July, 1877. They further stated that throughout such period the respondent had allowed his wife an annual sum for the purpose of obtaining clothes and other goods for the use of herself and her children. No notice of such prohibition, however, was given to the appellants or

to any other person. At the trial before Bowen, J., and a common jury, in December, 1879, at Guildhall, it was admitted that the goods were supplied on the order of the wife of the respondent, that they were necessaries; that the prices were fair and reasonable; that the respondent and his wife were living together, and that at the time the goods were supplied the appellants had no knowledge of the prohibition by the respondent against his wife pledging his credit. The learned judge thereupon directed that judgment should be entered for the respondent, and his decision was affirmed by the Court of Appeal. Against the latter judgment the present appeal was brought.

Benjamin, Q. C., and A. L. Smith, for appellants, cited Manby v. Scott, 2 Sm. L. C. (8th ed.) 445; Montague v. Benedict, 3 B. & C. 673; Ruddock v. Marsh, 1 H. & N. 601; Johnston v. Sumner, 3 id. 261; 27 L. J. 341, Ex.; Dyer v. East, 1 Mod. 9; Etherington v. Parrott, 2 Ld. Raym. 1006; 1 Salk. 118; Holt v. Brien, 4 B. & Ald. 252; Read v. Levard, 6 Ex. 636; Morgan v. Chetwynd, 4 F. & F. 451.

Willis, Q. C., M'Call and Newson, for respondent, referred to Reid v. Teakle, 13 C. B. 627; 22 L. J. 116, C. P.; Renaux v. Teakle, 8 Ex. 680; Atkins v. Curwood, 7 C. & P. 756; Lane v. Ironmonger, 13 M. & W. 368; Freestone v. Butcher, 9 C. & P. 643; and the cases in the note; Mizen v. Pick, 3 M. & W. 481; Dennys v. Sargeant, 6 C. & P. 419; Bolton v. Prentice, 2 Stra. 1214; Eastland v. Burchell, 3 Q. B. Div. 432; 38 L. T. Rep. (N. S.) 563; Atkyns v. Pearce, 2 C. B. (N. S.) 763.

The LORD CHANCELLOR (Selborne). My Lords: This case raises the very important question whether the decision of the Court of Common Pleas, in 1864, in the case of Jolly v. Rees (ubi sup.), which, so far as I know, has not been seriously called in question since that time, and was never brought to this house for consideration, is right. The point determined was this, as I understand it; that the question whether a wife has authority to pledge her husband's credit is to be treated as a question of fact, to be determined upon the circumstances of each particular case, whatever may be the rules of law as to the prima facie presumptions to be drawn from a particular state of circumstances. That principle is now controverted, and the first question is, whether the mere fact of a marriage implies a mandate by law making the wife (who cannot herself contract, unless so far as she may have a separate estate) the agent in law for the husband, to bind him and to pledge his credit, by what otherwise might be her own contract if she were a feme sole? It is sufficient to say that all the authorities show that there is no such mandate in law, except in the particular case of necessity, a necessity which perhaps prima facie may arise when the husband has deserted the wife, or compelled her to live apart from him, without properly providing for her, but which, when the husband and wife are living together, cannot be said ever, prima facie, to arise, because if in point of fact she is maintained, there is, in that state of circumstances, no prima facie evidence that the husband is neglecting to discharge his proper duty, or that there can be any necessity for the wife to run him into debt for the purpose of keeping herself alive or supplying herself with necessary clothing. I therefore lay aside that proposition, and think it clear that there is no mandate in law by the mere fact of marriage applicable to such a state of circumstances as we have at present. Then, the next question is, whether the law implies a mandate from cohabitation? If it does, on what principle does it do so? Cohabitation is not like marriage, a status, or a new contract-it is a general expression for a certain condition of facts; and if the law does imply any such mandate from cohabitation, it must be as an implication of fact, and not as a necessary conclusion of law. There are, no doubt, various authorities