The Portland daily press., 1895-01-24

The testimony of Sawyer and Pike,
offered in the same direction, is even
more Intellectual than that of Parcher.
COmplainants admit that II ClarK, s
testimony is to be accepted throughout,
it is fatal to this case. He stands as de-
fendant's witness. la the course of his
evidence he states that he informed the
deceased before he took the policy IN
question, that it contained no provision
for grace, and compliments seek to con-
tradlct him on this point. But IL is
from Clark only that there comes any
proof that the deceased made any In
qulrIes whatever as to the terms OF This
policy, or made any explanation OF what
ne desired to accomplish by a change OF
policies. His deposition relates to sin
gle conversation; and how can this court
accept that part of it which is necessary
to complainant's case, and reject the
rest? 1t it did so, he would still be left
in negative position; there would be
no evidence that the deceased either In
quired about provision for grace, or
was informed about it. 1t does appear
that when the deceased took out The
first, or tontine policy, he read the pro-
vision about grace. and regarded it of
value. But the evidence shows distinct
~, that with the defendant corporation
this provision was peculiar to its tontine
policy, and was used nowhere else. 1t
also appears that the clause granting
grace was not in general use. This is also
a matter of common knowledge, which,
from his experience, shown il the record
as business man, and especially as
public man, the deceased must be pre-
sumed to share. In view of this, he can
not be presumed to have been misled by
the fneness of the type in which the
special provisions were printed on the
policy; and, so far from being m1sled by
the fact that the first policy contained
clause for grace, he may we'll be pre-
sumed to have understood that it was
peculiar and specla! advantage which be
could not expect to find elsewhere.
II the letter of Mr.. Calef of Sept 1, 1892,
and the reference to IL in the plead1ngs,
have any weight, it must be on the ques-
tion of waiver and not on the issue be-
fore the court; and the same is true as to
all the other proofs in the case not
specially referred to by us.
On the whole, if there is any proof in
the record that the deceased was under a
mistake as to the matter which is laid
as the basis of this bill, which mistake
is the first element to be shown in the
progress of compliments case. it is far
from being clear, unequivocal or con-
vincing.
But the bill alleges, and it is main
tanned at the bar, that the deceased
stipulated for certain changes only, and
was not one of them. We're this so. the
case would perhaps be well within
Thompson v. The Phenix Insurance
Company, 1856 U. s. 2s7. 295. But there
is no proof to sustain this proposition.
Clark is the only person who testifies as
to the points which were to be covered,
and nothing in his testimony goes to
the extent Of excluding any appropriate
provisions, usual in endowment policies.
1t would be presumptuous to suggest, or
find, that the deceased expected that the
changes he desired, were to be made in
his old policy, leaving it to stand in all
other particulars. He knew. and ex-
pected, that he would receive new poll
cy of the usual form, as to all details, of
the policies of the class to which it be-
Ionged.
Let there be decree to dismiss the
bill with costs.
J.W. Sym onds for compliments.
C.F. Libby for defendant.