The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1880-12-30

1878, when the company resumed businass
At the maturity of the premium. Septem
Der 2 1877, Whitehead offered to paw. bu
the agent of the company advised him +,
await the result of the litigation to ascer
tain whether the company would resum,
business.
In the policy it was stipulated that il
case of default in any payment. after three
annual premiums had been paid, said policy
might be exchanged for a paid up policy
OF the same amount as the original. for a
term to be fixed according to table given
In the policy. By this table Whitehead
having paid four full years, would have been
entitled to paid up policy of 81, 900, for two
years and 292 days from September . 1877.
But to entitle him to such exchange he was
required, within sixty days after default. to
transmit to the company the original policy,
duly receipted This was not done.
Whitehead died in Sept. 1888. Notice
was promptly given to the company and
payment of the policy demanded, which was
refused.
On the 9Th Of December 1873, paid up
| term policy was also demanded of the com
Pany, annd this was refused.
The administrators of Whitehead filed
this bill against the company, seeking to
obtain paid up policy and to enforce its
payment.
A demurrer to the bill being overruled,
defendant appealed.
CAMPBELL, ].
Held
|. The fact that the company was en-
Joined from the performance of corporate
acts, and thus tenn pOrarily disabled to issue
paid up term policy, if it had been prop
erly applied for, did not change the terms
on which alone the assured was entitled to
demand such a policy
The right to the exchange did not depend
on any act or omission of the company, but
on something to be done by the assured.
Although the company was enjoined from
issuing the term policy, he was not hindered
from doing what would have entitled him
to such policy.
The doctrine that the obligation to per-
form some act in order to entitle a party to
recover against the other party to a contract
is excused by the fact that such other party
is disabled to do what he has undertaken
to do, is inappicable. The question is,
whether the temporary interference with
the exercise OF the powers OF the company
entitle the assured to demand a new policy
upon conditions different from those stipu
lated The temporary incapacity of the
company to issue paid up policy, did not
entitled the assured to pre5ermit what he
was required to do to create a liability
against the company. Had he sent the re-
ceipted policy to the company within the
time specified, the injunction might have
been so modified as to allow the issuance of
the new policy
In re Assurance Company, Law r. 8 Eq.
Cases, 703, the assured had to perform a
condition which would entitle him to GER
tain benefits, and before the time of per-
formance arrived, the company, by their
own act, rendered it impossible for him to
perform the condition. Such was not the
case here.
2. 1t is clearly implied in the stipulation
as to the paid up policy that the option to
obtain it was to be exercised by the assured
while living and not by his representative
after his DEATH The new policy was to be
on his life and the election to take it should
have been indicated by him at the proper
time.
Decree reversed Demurrer sustained and
bill dismissed.