Manhattan Life Insurance v. LePert

52 Tex. 504, 1880 Tex. LEXIS 19

• Court: Texas Supreme Court
• Decided: February 18, 1880
• Status: Published

Opinion

Gould, Associate Justice.

To the question presented for our decision, we respond: The forfeiture of the policy was not prevented, either by the tender to E. P. Hunt, as agent, at his office in Galveston, January 27, 1862, (during the war,) of the annual premium then due, or by the tender made to the same person, as agent, in 1865, (after the war,) of all premiums and dues that had accrued on the policy since January 27, 1861.

By this we do not mean that Hunt’s authority to receive premiums was revoked by the war, nor that the tender to him in 1862 and 1865 was insufficient to prevent the forfeiture of the policy up to the time of the last tender. What we do intend to decide is, that the forfeiture of the policy for subsequent failures to pay accruing and accrued premiums was not prevented by those tenders.

If Hunt’s authority to receive premiums continued during the war, it will scarcely be asserted that his authority to represent the company generally remained unsuspended and unimpaired. But whatever may have been the extent of his power to act for the company in declaring a policy forfeited, it. does not appear that he assumed to do so, and refused to receive the premiums on the ground that the policy was forfeited. His refusal was not placed on a claim of forfeiture, but upon the ground that he had not heard from his principal. The inference from the facts agreed upon is, that he refused because, not having heard from the company, he was unwilling to act for it. Under the circumstances, the refusal did not authorize the policy-holder to assume that the company treated his policy as forfeited, and that any further tender of premiums would be an idle formality. LePert, in our opinion, should have repeated the tender, either to the company itself, or to Butler, who, after April, 1866, acted as its sole agent in Texas. Hot having done so, and not having made any tender of subsequent premiums, we think his former tender did not prevent a subsequent forfeiture.

Whilst this case has been submitted and disposed of as an agreed case, under rule 59, we do not think the “ points of law or of fact involved in the record ” were agreed upon in the manner intended by that rule. The question presented evidently involves both questions of law and of fact, which should have been agreed upon and stated separately. The effect of the war on the contract and on the agency were points of law on which the parties differed. Whether Hunt in fact acted as agent in 1862 and 1865, and whether he, as agent, so acted as to excuse any further tender, were, in part at least, questions or points of fact involved in the question submitted.

[Opinion delivered February 18, 1880.]

An agreed case, under rule 59, should, we think, present separately and distinctly each point of law and of fact involved in the record, and which may have to be passed upon in disposing of the case as submitted.

The judgment is reversed and the cause remanded.

Reversed and remanded.