Opinion of the Court. ford, January 21, 1886, and which stated that payments were in arrears for dues from January to May, $5. The admission as evidence of the answers to these questions is the foundation of some of the assignments of error in this court. It is sufficient to say that whatever error may have been committed by admitting this evidence was cured by the charge of the court to the jury; for they were instructed that there was but one question in the case, namely, as to the alleged waiver by the company of the terms of the contract in respect to the payment of premiums or dues at the times stipulated, and that it was immaterial whether the contract was a stringent one or not, or whether the assured was sick the last of December or in the first part of January. 2. There was no error in admitting as evidence the plaintiff's letter of January 28, 1886, transmitting five dollars for dues from January 1, 1886, on her husband's policies. That letter was written in reply to defendant's notice by postal card mailed January 21, 1886. It was competent as showing that the payment of the amount due January 1, 1886, was, in fact, made or tendered, though not at the precise time specified in the contract. If the plaintiff had sued on the policies or certificates without having paid or tendered the amount due to the company-the non-payment of which, at the time stipulated, was relied on to prove that the policies had become forfeited that fact would have been fatal to a right to recover, in any view of the case. Thompson v. Insurance Co., 104 U. S. 252. 3. The refusal of the court to give the instructions asked by the defendant is also assigned as error. But such refusal constitutes no ground for reversal, for the reason that the charge of the court contained everything that need have been said to the jury upon the single question submitted to them, namely, whether, under all the circumstances, the defendant waived a strict compliance with the stipulation in the contract as to the payment, at the times specified, of the premiums or dues on the certificates of insurance. The court, among other things, said to the jury: "Nobody is bound to enter into any contract. It is perfectly voluntary Opinion of the Court. on the part of either side; but when they once enter in, the terms of the contract, as expressed in the writing, control. The plaintiff comes in, however, and says: Conceding that this contract reads in this way, the company by its conduct waived the necessity of a strict compliance.' She does not say the company so said to her, or to her husband, We do not insist upon this; we waive this;' but she says that the company so acted, so conducted itself in its dealings with her husband that he, as a prudent, reasonable man, did believe, and had the right to believe, that payment on the very day specified would not be insisted upon. Of course we speak by our actions, just as much as we do by our words; and although there may be no spoken word, no written word, declaring a waiver, yet it may be that a man by his conduct, his course of dealing, justly and fairly leads the other party to believe that he does. not care about a strict compliance. That is what this plaintiff says was the case here; that while the contract reads 'payment must be made on specified days,' yet the company did not insist on such payment. It did, when her husband was alive and well, take the dues from him after the time specified and permit the policy to continue in force, and that it did so until he had a right, as a reasonable man, to believe, and did in fact believe, that that was to be the rule in the future. I do not think that any particular number of instances, one or more, can be said as a matter of law to make or not make a waiver. It is a question for you, as reasonable men, to consider what did the company intend; what would its conduct make a reasonable man believe in reference to it. So far as the matter of notices is concerned, and the receipt of notice, it is a matter that need not concern you. The company did not contract to give notice; the policy specifies when the payments are due." But the part, and the only part, of the charge to the jury to which the defendant excepted was in these words: "But the plaintiff says, that beyond these receipts of money after the day specified, there were instances in which money was received without any such notice. Now the question comes up in respect to that, was there such a continuance of business, Opinion of the Court. was the whole course of business, from the commencement to the close, such that from this and that, and from all the receipts and all the transactions, he had a right to believe and did believe that the question of health even would not be considered, and that it would be willing to take his money shortly after it had become due without inquiry as to his health? If so, that makes a waiver. If the company, by its conduct, led him, as a reasonable and prudent business man, to believe that he could make payments a few days after, sick or well, it cannot turn around now and say, 'You did not pay at the time.' I cannot say to you, as a matter of law, that one receipt, after the time specified, would make a waiver, or that fifty would. * It is not in the numbers. The question is for you to consider and determine from all of them and from the whole course of business, whether, as a prudent business man, he had a right to believe that it was immaterial whether he paid on the day or a few days later. If the course of conduct was such that he had a right to believe that he could pay only in good health, then there was no waiver applicable to the case at bar. It must have been such a course of conduct as would lead a reasonably prudent man to believe that the company was willing to take payment, sick or well." The law applicable to the case was stated to the jury with substantial accuracy. It is a mistake to suppose that the charge was inconsistent with the principles announced in Thompson v. Insurance Company, or in any other case decided by this court. In the case of Insurance Company v. Eggleston, 96 U. S. 572, 577, Mr. Justice Bradley, speaking for the court, said: "We have recently, in the case of Insurance Co. v. Norton, 96 U. S. 234, shown that forfeitures are not favored in the law; and that courts are always prompt to seize hold of any circumstances that indicate an election to waive a forfeiture, or any agreement to do so on which the party has relied and acted. Any agreement, declaration or course of action, on the part of an insurance company, which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will and ought to estop the company VOL. CXLIV-29 Opinion of the Court. from insisting upon the forfeiture, though it might be claimed. under the express letter of the contract. The company is thereby estopped from enforcing the forfeiture.” These principles were not modified in Thompson v. Insurance Company. Alluding to the claim, in that case, that the company had, by its conduct, waived the requirement as to the punctual payment of premiums, Mr. Justice Bradley, again speaking for the court, said: "The assured had no right, without some agreement to that effect, to rest on such voluntary indulgence shown on one occasion, or on a number of occasions, as a ground for claiming it on all occasions." After observing that a fatal objection to the entire case was, that payment of the premium note there in question had never been made or tendered at any time; that there might possibly be more plausibility in the plea of former indulgence and days of grace allowed, if payment had been tendered within the limited period of such indulgence; and that "a valid excuse for not paying promptly on the particular day is a different thing from an excuse for not paying at all," the court proceeded: "Courts do not favor forfeitures, but they cannot avoid enforcing them when the party by whose default they are incurred cannot show some good and stable ground in the conduct of the other party, on which to base a reasonable excuse for the default. We do not accept the position that the payment of the annual premium is a condition precedent to the continuance of the policy. That is untrue. It is a condition subsequent only, the non-performance of which may incur a forfeiture of the policy, or may not, according to the circumstances. It is always open for the insured to show a waiver of the condition, or a course of conduct on the part of the insurer which gave him just and reasonable ground to infer that a forfeiture would not be exacted. But it must be a just and reasonable ground, one on which the insured has a right to rely." The principles of the above cases were reaffirmed in Phoenix Ins. Co. v. Doster, 106 U. S. 30, 34, et seq. The charge was in entire consonance with the settled doctrines of this court as established in the cases to which we Syllabus. have adverted. The only ground for serious doubt in respect to the case is, whether the evidence was sufficient in any view of it to sustain the theory that the defendant had by its course of business with the assured led him to believe, and that he, in good faith, believed, that the company waived, as to him, a strict performance of the conditions as to the payment of dues or premiums, and whether if the court had given a peremptory instruction to find for the defendant, the verdict and judgment would have been disturbed. But we need not consider the case in those aspects; for the defendant assumed that it would be submitted to the jury, and asked instructions touching the several points on which it relied. It did not ask a peremptory instruction for a verdict in its behalf. It cannot, therefore, be a ground of reversal that the issues of fact were submitted to the jury. As no error of law was committed to the prejudice of the defendant, the judgment must be Affirmed. DODGE v. TULLEYS. APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF NEBRASKA. No. 222. Argued and submitted March 22, 23, 1892. — Decided April 11, 1892. Interest at the rate of 8 per cent in Nebraska is not usurious. The cestui que trust is not a necessary party to a bill by a trustee to foreclose a mortgage. A loan was made February 1, and the mortgage and notes were dated on and bore interest from that day; but as there were sundry incumbrances part of the money was retained; one sum applied to a payment March 4; another sum March 11; a large proportion of the whole debt was not remitted to the borrower until June 8; and on the 8th of October a final sum of $3000 was sent to the borrower's agent to pay a judgment of $2466, which was paid, the agents retaining the balance. On a suit to enforce the lien of the mortgage a decree was entered for the plaintiff with an allowance of $1000 as an attorney's fee. Held, (1) That no rebate of interest should be allowed on the payments made March 4, March 11 and October 8; (2) That a rebate should be allowed on the remittance of June 8; (3) That the attorney's fee should be reduced to $500. |