The comet. [volume] (Jackson, Miss.) 1877-1882, 1880-11-20
SUPREME COURT DECISIONS.
reported weekly by j. w. Jenkins,
AttOrncy.Rt-LRW,
OCTOBER TERN. 1850.
UNIVERSAL LIRE ms. Co., {.

UNIVERSAL LIFE ms. Co.,
IHE VS..
IRENE WHITEHEAD, Admr'X. a
Appeal from the Chancery Court LIST
District Kinds county, Hon. Il. G. Peyton
Chancellor.
p. u. Whitehead took out policy OF
Insurance in the Universal Life Insurance
Company, on the I'd day of Sept, 1873,
for $4,000. The premiums thereon were
payable quarterly, on the I'd day ofSeptem-
Der, December. March and June rcspec-
lively. They were all paid to jane :, 1871
inclusive, making four annual premiums,
which continued the policy in force
till September ID, 1877. Soon after
the last mentioned premium was paid,
the Attorney General of the State OF
| New York filed an information in the
Supreme Court thereof against sand Com
pany alleging its insolvency and praying
for I'M order requiring it to show cause
why its business should not be closed, and
for Il decree for dissolution, &c. Upon
said information an order was made by said
Supreme Court on 23d day of August, 1877
restraining and enjOining said Company
and its officers. from exercising any Of its
corporate rights, privileges and franchises,
except receiving and paying monies as
hereinafter authorized, and from paying
out, or in any way transferring or deliver
ing to any person any of the effects, monies
or property of said Company, except sala-
rics of employees and officers then due, and
from collecting or receiving any debts or
demands, except interest, agents balances,
and premiums, until the court should
otherwise order Said order remained in
force till Oct. 30, 1873.
Upon maturity of the premium Sept. .,
1877, Whitehead went to the agent of said
Company and proposed to pay it, but was
advised by the agent to await the result
of said litigation, as it could not then be
determined whether the company would
resume business.
BY the terms of said policy it was stipu
lated that in case of default in any payment
after three full annual premiums had been
paid thereon, said policy might be eX-
changed for paid up tempolicy ofthc same
amount as the original, for term stated in
table given in said original policy, accord
ing to which table Whitehead, having paid
four full years premiums would be enti-
tied to II paid up term policy for $4,000 for
term of two years and 292 days from
Sept. ,, 1877. In order to cattle the holder
to such exchange he would be required to
t,,,n liza nni,. tnnl
policy, duly receipted, within sixty days
from such default. Whitehead died in
Sept. 1878, notice of which was promptly
given to the Company and payment de-
paid up term policy was demanded of the
Company, which was also refused.
Appellee as administrators of said White
head. filed her bill against the Company,
praying for decree that she be entitled to Il
paid up term policy for $4,000 upon the life
taken showing the amount due thereon
and decree for its payment.
A general demurrer to the bill was over
ruled-hence this appeal.
j. II. Watson for appellant.
Pittman, Pittman Il Smith for applee.
CAMPBELL, j,
Held-
l. The fact that the Company was ell
joined from the performance of corporate
acts, except as stated in the order for in
junction, and was thus temporarily dis
abled to Issue paid up term policy to the
assured, if he had within sixty days after
his default in payment delivered his policy
duly receipted to the Company did not
change the terms on which alone he was
entitled to paid up term policy.
., The right to such policy did not de-
pend on any act or omission of the Com
pany, but ON something to be done by the
assured. 1t was ut his option to secure a
right by certain acts, and although the
Company may not have responded to his
demand his right would have been made |
clear by the concurrence of those acts by
which it was to arise. Although the Com
pany was enjoined from issuing paid up
term policy, the assured was not hindered
from doing what would have entitled him
to such policy, and which could have been |
enforced, if he had entitled himself to it.
3. The doctine that the obligation to per-
form some, act in order to entitle a party to |
recover against the other party to con-
tract is excused by the fact that such other |
party is disabled to do what he has under
taken to do is inapplicable here. The ques-
JlOu DlcsCnlOu ny blllS CASE Is, WHCUHcT lut
temporary and transient interference by |
injunction with the regular exercise of its |
powers by the Insurance Com
pany entitled the assured to demand new
policy upon conditions different from those |
stipulated in the policy.
4. The assured was required to do some
thing, which he alone could do, without
which he had no right. The oblig alton of
the company was to spring from the doing
Of the thing stipulated to be done by the
assured. The temporary incapacity of the |
company to issue Il paid-up term policy, il
it had been called for, did not entitle the
assured to pretermit what he was required
to do to create liability against the COM
Dany, and subsequently to call for a recOg-
lition of the right he had lost by his own
lelay. He should have performed the con-
ltions imposed on him, and his right
would have been clear. Had he sent the
policy duly receiptcd to the company with
n sixty days after default in payment of
he premium, it cannot be affirmed that
laid-up term policy would not have been
ssued. The injunction might have been
70 modified as to allow the company to
ssue such policy.
3. This case is obviously distinguishable
rom In re albert Life assurance Compdny,
Eq. Gases, 703, relied on by counsel for
ppellee. In that case the assured had to
'erfOrm a condition the performance of
which entitled him to certain benefits,
nd before the day arrived OH which he was
o perform the condition, "the company
endered it absolutely impossible, by their
,wn act, for him to perform that condi-
iOn."
6. 1t is clearly implied in the stipulation
# the policy as to u paid-up term policy,
hat the option to obtain it should be eXer-
ised by the assured, and not by his repre- !
entative, after his death. The new policy
vas to be ON his life. The election to take a
aid-up term policy should have been made !
nd indicated during the life to be insured !
Decree Overruling demurrer reversed,
emurrer sustained and bill dismissed.