The New York herald., 1870-09-28
PRoeKLYS COURTS.
SUPREME CouRT-sEHtRsL TERM.
sharp Practice Concerning Life insurance
POlicies--lmp0rtane Opinion.

Sharp Practice Concerning Life Insurance
POlicies-Importanr Opinion.
Before Judge Barnard.
Gertrude KOlgerS u.s. The Guardian LIE HastD-
anoe Company.-An important opinion Of Judge Bar,
nard was rendered In this case yesterday. The ac-
ton Is brought against the Life Insurance Company
to recover policy OF $4,000 which was held by the
plaintiff upon the joint lives OF her husband de-
ceased), and herself, payable upon the decease Of
either party to the survivor.
The husband had neglected to pay portion
OF the premium Of the policy, and the vie
discovering such to be the case, called ut
the office Of the company, in Broadway, ana ascer.
tained the amount due. which sum she paid the fol.
said Insurance company, who called at her resi-
dence for the purpose OF receiving the money He
gave her receipt for the amount. Two months
after the date Of this receipt July 25, 1864 the hus
band Of the plairtlf died. An agent OF the com.
pany ascertained that Holly had not handed In the
treasurer OF the company told Holly to make
written report OF the collection and file tine same In
the usual form. This he did.
Two days after K0lgers died the treasurer OF the
company called upon the widow Kolger and told her
me clerk mad no right 70 receive the premium when
therefore desired that she should take back the
amount OF the premium. This she refused to do,
The case then went to trial. and verdict for Mrs.
KOlgers was rendered by the jury In the Supreme
versed the action OF the Court below, aud Justice
Barnard gave the subjoined opinion:--At the time
OF the payment by plaintiff TO Holley OF the two
quarterly premiums the policy was forfeited by its
term. II then became incumbent upon the plaintiff,
ceipg of the premium by some one authorized tore
ceive 1t after forfeiture or TO show ratification OF
ceptance Of the money with knowledge Of the facts.
or in some other way. Ithlnk the case fails to show
Holleys authority to receive the money after for
feture. He was a clerk Of defendants, had been an
agent to receive applications for insurance In New
Jersey, which appointment had been revoved. He
had been sent by previous secretary to collect pre-.
miums, but always with strict orders to collect none
on forfeited policies. Holley signed the receipts for
the payments In question a. agent for the then sec
agent for the secretary. Neither Holley nor this
secretary Is produced as Witness II the secretary
proven to have done it. Holley had never done
like act. HIS power 10 bind the company by
no evidence Of power to waive the forfeiture
by receiving tho premium after the policy
the company have never received the r Premium MUM;
collected by Holley am unable to distinguish tins
district1raylor VS. The British Commercial Life In
surance Company; In this case the policy was upon
agent to receive the premiums. He was Instructed,
II the premiums were not paid in thirty days to re-
turn the receipt to the general agent in New York.
The policy provided that should be void If the pre-
miums were not paid within thirty days after the
same became due. Taylor suffered default for over
thrty days. About fifteen days after the policy be-
came forfeited the assured paid the premium to
CLERK In the ONCE Of the agent Wilson. Within
few days after this payment the assured died.
The company never received the money. The
clerk In the oliice OF the agent had gene
rally recelved the premiums for his father, the
agent. The Court held this William Wilson had
no power to waive the forfeiture to bind the
pany by receiving the money after defaults that he
was special agent and could exceed his powers
as such and bind his principal by his acts, although
the assured knew nothing Of his limited powers. In
this case the charter and bylaws were admitted In
evidence. think 1t was erroneous to exclude them
In this case II they did show who was authorized
to remit forfetures they should have been received
From the evidence or the president OF defendant
suppose they did. The rejected evidence or such
pery have been presented by the case, that this
Court could more satisfactorily determine this point
think the Judgment and order denying new trial
should be reversed and new trial granted, costs to
abide the event. The case now goes to the Court OF
Appeals.