Shaw v. Republic Life Insurance (69 N.Y. 286, 1877)

Folger, J.

Inasmuch as there was testimony tending thereto, the verdict of the jury establishes the facts; that the persons who negotiated with the plaintiff and her husband were authorized so to do by the defendant, in its behalf; that the defendant agreed with the plaintiff to issue to her its policy, as a new insurance upon the life of her husband; and that the note of the husband was taken as an adequate consideration for that agreement.

These results are an answer to the exception to the refusal to nonsuit the plaintiff, save as to one ground of the motion, which we will notice further on.

The exceptions to the charge were not well taken. The agreement was in writing, and could not be added to by parol. As the husband of the plaintiff was in no way bound to the defendant, as he had no pecuniary interest in the policy, and his estate would have none at his death, we do not see why his note, absolute in its terms, and creating a liability against him which would affect his estate after his death, was not the note of a third person. The rule given to the jury as to it, was correct in law, such being the fact. The other exceptions to the charge, or to the refusals to charge, are not tenable. One of them we will notice more particuularly.

The defendant made the point at the trial, both by motion for nonsuit and by exception to refusal of request to charge, that the plaintiff could not recover without showing payment, or tender of payment of a premium in September, 1873.

In the view we take of the case, it is not needful to dispute that the annual premium on the policy would have become due and payable on some day in September, 1873, either the 8th or the 15th. Had the company adhered to its agreement to issue its policy, and the policy had been delivered and accepted, with either of those days named in it as the day for payment of premium, failure by the plain- • tiff to make payment, or tender of payment, would have forfeited the contract. But the defendant had, before either of those days arived, refused to take payment of the note, which represented the premium of 1872, had thrown it back, and had, in the language of the charge, “ repudiated the whole arrangement, and was only willing to negotiate .