Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1879-10-23
ehs Daily 2ress aud patotatan
VAhkToN DAKOTA
thursday Evening, Oct. %, 1879. /.

O"A4I1s 10pOrL0f.
In THE SUPREME CouRr OF THE TERRI.
tory OF DAKOTA, AT December Term.
1878.
MARIANA X. CLEvESGEn,
II MUTUAL LIFE INSURANCE COMPANY.
OF New YORK, appellant.
Appeal from the District Court OF Yank.
ton county.
Gamble Brothers, attorneys for appellant.
Oliver Shannon, attorney for respondent.
Continued from yesterday.l
II, for the time being, We assume that the
Agent Farmer has attempted to change tr
alter the contract of insurance as stipulated
and agreed upon by thep parties to it, clear.
~ he had no power to do 80 as was we'll !
known and understood by plaintiff and de.
PENDANT. It is unnecessary to discuss the
nature of Mr.. Farmers agency. For. be it
specific or general, by the solemn compact
and contract made in writing by the con-
tracing parties, the agent Farmer, il other
wise possessing power, is BY the contract
and agreement of the parties, in this in
stance completely and absolutely divested
of it.
The plaintiffs counsel refers to the case
of "Phebe A. Norton vs. Kn%ickerbocker'
life insurance company of New York.
Sixth Otto page 234. Why the plaintiff
cites this case 1 I'm unable to discover.
The case of Morton va. insurance company.
was to recover upon an insurance on the
life of Jessie o. Norton, by his widow
Phebe A. Norton. n
The company resisted payment, on the
ground that Norton, in his lifetime, failed
to pay a note or notes to the company at
maturity, and that thereby, and by the terms
of the contract, the rights of the assured
and of the plaintiff under the policy had
become forfeited.
The plaintiff replied that the agent of the
insurance company at Chicago, regularly
authorized by defendant so to do, extended
the time of payment Of the note to a day
certain, and on that day the money was
~|,roperly rendered, and the tender refused.
The defendant denied the extension OF
time on the waiver of the forfeiture, and
this was the issue tried.
And the burden of proof upon this issue
was conceded to be upon the plaintiff, to
maintain which the plaintiff called three
witnesses. The agent with whom the agree
ment for the extension Of time of payment,
was made, one Randall, a formeragent, and
Martin Norton, who acted for his father in
procuring the extension.
The testimony Of these three witnesses
tended to prove that formerly the company
had allowed these agents to extend the time
of payment on premium notes, ninety days
after that for sixty days and then thirty
days, and that at the time in question as q
general rule the agent was required to re-
turn notes by the middle of the month fol
lowing that on which they become due.
AS 10 what took place with reference t.
the extension of the time Of payment ther,
is some conflict between the Witnesses as Il
the two questions of facts.
The authority of the agent to grant tn
indulgence or extension of time, and as t
the further question whether the extension
Of time was in fact given, being the tw'
material issues, they were submitted to th
(jury from the evidence to determine.
case, delivered the opinion of the cour
"The material question in this case il
whether, in view of the express provision
of the policy, the evidence introduced b,
the assured was relevant and competent (
show that the company had authorized it
agent to grant indulgences as to the time o
paying the premium notes, and waive th'
forfeiture incurred by their non-payment a
maturity F; or to show that any valid exten
sion had, in fact been granted or the for
FIXTURES Of the policy waived.
The written agreement Of the parties, a
embodied in the policy, and the endorse
ment thereon, as we'll as in the notes and tn
receipts given therefor, was undoubtedly I,
the express and purport that . failure I
pay the notes at maturity would incur
: forfeiture of the policy. 1t also contained
I an express declaration that the agents Q
= the company were not authorized to make
alter or abrogate contracts or waive forfeit
ures, and these terms, had the company 81
. chosen, 1t could haze insisted on"
But a party always has the option I
! waive Il condition on stipulation made i
his own favor The company was not boun,
to insist upon a forfeiture, though incurred
: but might waive it. 1t was not bound I
act upon the declaration that its agents ha
no power to make agreements or waive fol
FIXTURES; but might at anytime, at itssoptior
give them such power.
The declaration was only tantamount to
notice to the assured, which the ecompan
could waive and disregard at pleasure. !
either case. both with regard to The forfei
ure and 10 the powers OF its agent, a waive
of the stipulation or notice would not b
~repugnant to the written agreement, Ebecaus
it would only be the exercis
Of an option which the agreemel
left in it. And whether it did exc
else such option or not was a fact spfovabl
by parole evidence as we'll as by writing, *
the obvious reason, that itconld be dor
without writing.
That it did authorize its agents.to tax
notes instead of money. for premiums,
perfectly evident. from its constant practit
of receiving such notes when takenS6y then
that it authorized them to grant indulgenns
on these notes, if the evidence is 70 be p
= Me .eon y s,eG a n q and ratified their acts
d this behalf. For a long period. it Above
them to give an indulgence Of ninety day
after that Of sixty then of thirty days.
is in vain to contend that it gave them !
authority to do this, when it is constant