Carlock v. Phœnix Insurance

28 N.E. 53, 138 Ill. 210

Opinion

Mr. Justice Scholfield

delivered the opinion of the Court: •

We concur in the rulings of the Appellate Court. The case is quite different from one in which, by the terms of the contract, the failure to pay the premium works a forfeiture of the policy. In that case, since there can be no liability to pay premium where there is no liability upon the policy, the acceptance of premium is an implied admission of liability up.on the policy, and it would be a fraud upon the insured to accept .from him payment of premium and at the same time repudiate liability upon his policy. (Lycoming Ins. Co. v. Barringer, 73 Ill. 235, and cases cited.) But here the failure to pay the note at its maturity is not an absolute forfeiture of the rights of the insured under the policy, but a suspension, simply, of those rights until full payment of the note, by which act they -would be revived in all of their original force. The receipt of partial payment of the note waived nothing, for the insured had a right to make payment of the note by partial payments from time to time, and thus to revive the liability of the insurer upon the policy, and what he had a right to pay it was. the duty of the insurer to receive. -That he did not complete, the payment of the note before the loss was in nowise induced by the insurer’s act of receiving partial payments. Curtis v. Phœnix Ins. Co. 78 Cal. 619.

The judgment is affirmed.

Judgment affirmed.