Folger, J.
This is a suit in equity to have the court declare existing: and in force a contract of insurance upon the life of the plaintiff’s husband, which the defendant claims is lapsed by non-payment of the yearly premium. Such a suit can be maintained, when the premiums have been tendered, and refused on the ground that the contract has been canceled and forfeited, when all the parties are before the court in an actual controversy sincerely promoted and carried on, when it is necessary for Intelligent action for the parties to know at once what are "their reciprocal rights and obligations.
(Cohen
v.
N. Y. Mut. Life Ins. Co.,
50 N. Y., 610;
Hayner
v.
Am. Pop. Life Ins. Co.,
36 N Y. Sup. Ct. [4 J. & S.], 211; S. C., .affirmed, 62 N. Y., 620.) These things exist in this case, .and it is only to inquire whether the defendant has been in the wrong in declaring the policy lapsed and canceled.
By some of the terms of the written contract between the parties, it was a condition precedent to the continued liability of the defendant to the plaintiff that the latter should in each year, on or before the twentieth day of March, at noon, pay to the former the sum of $200.44. The plaintiff did .not on 20th March, 1874, make that payment in exact ^accordance with those terms, and if held to them exclusively -and strictly, she has lost all rights under the contract and ’has no claim against the defendant; but there are clauses in the contract which affect the parties to it, and modify the terms of it which have just been mentioned. Thus it is stated in it that “ this policy is with profits,” the significance of “which will appear as we proceed. There is also a clause, looking to the giving by the plaintiff of notes to the defendant for the annual payment or premium above mentioned or
a part thereof, and also for interest or for some other obligation on the contract. It is also provided, by clauses-appended to the main contract, that the premiums or payments might be made quarterly or semi-annually as well as-annually. We are not surprised, then, that intervening the issuing of the policy, and the time when that lapse of exact-payment took place, much had passed between the parties'which materially affected their mutual rights and obligations.
Up to the year 1873, or for a space of six years, the-defendant had received from the assured, without objection, on its part, the payment of the yearly recurring premiums in a manner different from that expressed in the policy. In the year 1873 it agreed with the plaintiff to another material change in the mode of payment, and until a time after the 20th March, 1874, it had never given notice or hint-that it would not be satisfied with the substituted method thereafter. It had also, on one occasion, received a post-office order from the plaintiff as a means of payment, and made no demur. It is true that there was a stipulation in the policy that the acceptance of payment after the pay day named therein should not be deemed to enlarge the time for payment, nor to be evidence of a usage-of the defendant to receive the same after that day. But that stipulation doos not vary the effect of the conduct of the-defendant above recited, in the particular hereinafter stated. Another circumstance is, that the policy had originally been, bargained for, at the place of abode of the plaintiff] with a local agent of the defendant stationed there, distant from the office of the defendant; and payments of premium before March, 1874, had been made, upon information as to the amount thereof, which amount, by the operation of some of the clauses of the contract, availed of by the parties by mutual consent, was not necessarily always the same, which information -was got from that agent, by means of a particular statement thereof sent by the defendant to him for delivery to the plaintiff, and which was delivered by him to her..
This agent had been, before 20th March, 1874, discharged by the defendant from its service, and no one put in his place, and there was no ready way for the plaintiff of communication with the defendant but by the mail. It is true, that there was no contract obligation, express or to be implied, upon the defendant to continue that agency. But the discontinuance of it, rendering communication with the defendant more difficult, did heighten the duty upon it of "taking notice of and replying to correspondence with it upon the subject of its business. So, to, in the course of the time for which the policy had run, the plaintiff had earned an interest or share in the funds of the defendant, by virtue of the clause of the policy providing for a share of its profits. The manner of applying that interest or share to the benefit of the plaintiff) in connection with the system of credit, allowed by the defendant to her for a part of the yearly premium, had made it impossible for her to know of herself just the amount which would at the beginning of any year .satisfy the premium therefor.
With this state of things grown up between the parties, we find the plaintiff by her husband, her agent, as early as 14th March, 1874, seven days before the premium for that year became payable, addressing a letter to the defendant, asking for information of the amount needed to make that payment. That letter was received in due course of mail by the defendant, but was not duly replied to. In that letter there was inclosed a post-office order for a sum, in the belief of the plaintiff, expressed to the defendant in that letter, equal to the then last prior payment received by it of her. It is earnestly contended by the defendant that the post-office order was never received by the defendant, and that the phraseology of the letter was not such as to inform it that it was her purpose to inclose it therewith. But the finding of the trial court is otherwise, upon testimony, which, though conflicting, is enough to sustain it. And however dark the meaning of the letter, it was plain enough .from it and from the money order that went with it, that
there was an intent on the part of the plaintiff to keep her contract, and a wish and an asking for information from the defendant to enable her to do it; and it knew that she did not have that information, that she could get it nowhere else but at its office, and that it had up to that time been given to her therefrom. It was willful for the defendant to remain silent, when so called upon to speak. That communication by mail was equivalent to the plaintiff going in person to the office of the defendant in due time, and there in person, handing in and leaving the post-office order, and orally asking them to tell her how much besides she need to pay to keep alive her policy for another year. When it is also a fact that, from the course of business between them, she could not know unless told by it, and that the defendant could and did know what that sum was, it is at- once plain that by every rule of fair dealing,' it was put upon the defendant to at once tell her what she asked for, or at the very least, to at once explicitly refuse and put her upon her vigilance. The defendant did neither but kept her money order and her letter and made no reply to it.
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Folger, J.
This is a suit in equity to have the court declare existing: and in force a contract of insurance upon the life of the plaintiff’s husband, which the defendant claims is lapsed by non-payment of the yearly premium. Such a suit can be maintained, when the premiums have been tendered, and refused on the ground that the contract has been canceled and forfeited, when all the parties are before the court in an actual controversy sincerely promoted and carried on, when it is necessary for Intelligent action for the parties to know at once what are "their reciprocal rights and obligations.
(Cohen
v.
N. Y. Mut. Life Ins. Co.,
50 N. Y., 610;
Hayner
v.
Am. Pop. Life Ins. Co.,
36 N Y. Sup. Ct. [4 J. & S.], 211; S. C., .affirmed, 62 N. Y., 620.) These things exist in this case, .and it is only to inquire whether the defendant has been in the wrong in declaring the policy lapsed and canceled.
By some of the terms of the written contract between the parties, it was a condition precedent to the continued liability of the defendant to the plaintiff that the latter should in each year, on or before the twentieth day of March, at noon, pay to the former the sum of $200.44. The plaintiff did .not on 20th March, 1874, make that payment in exact ^accordance with those terms, and if held to them exclusively -and strictly, she has lost all rights under the contract and ’has no claim against the defendant; but there are clauses in the contract which affect the parties to it, and modify the terms of it which have just been mentioned. Thus it is stated in it that “ this policy is with profits,” the significance of “which will appear as we proceed. There is also a clause, looking to the giving by the plaintiff of notes to the defendant for the annual payment or premium above mentioned or
a part thereof, and also for interest or for some other obligation on the contract. It is also provided, by clauses-appended to the main contract, that the premiums or payments might be made quarterly or semi-annually as well as-annually. We are not surprised, then, that intervening the issuing of the policy, and the time when that lapse of exact-payment took place, much had passed between the parties'which materially affected their mutual rights and obligations.
Up to the year 1873, or for a space of six years, the-defendant had received from the assured, without objection, on its part, the payment of the yearly recurring premiums in a manner different from that expressed in the policy. In the year 1873 it agreed with the plaintiff to another material change in the mode of payment, and until a time after the 20th March, 1874, it had never given notice or hint-that it would not be satisfied with the substituted method thereafter. It had also, on one occasion, received a post-office order from the plaintiff as a means of payment, and made no demur. It is true that there was a stipulation in the policy that the acceptance of payment after the pay day named therein should not be deemed to enlarge the time for payment, nor to be evidence of a usage-of the defendant to receive the same after that day. But that stipulation doos not vary the effect of the conduct of the-defendant above recited, in the particular hereinafter stated. Another circumstance is, that the policy had originally been, bargained for, at the place of abode of the plaintiff] with a local agent of the defendant stationed there, distant from the office of the defendant; and payments of premium before March, 1874, had been made, upon information as to the amount thereof, which amount, by the operation of some of the clauses of the contract, availed of by the parties by mutual consent, was not necessarily always the same, which information -was got from that agent, by means of a particular statement thereof sent by the defendant to him for delivery to the plaintiff, and which was delivered by him to her..
This agent had been, before 20th March, 1874, discharged by the defendant from its service, and no one put in his place, and there was no ready way for the plaintiff of communication with the defendant but by the mail. It is true, that there was no contract obligation, express or to be implied, upon the defendant to continue that agency. But the discontinuance of it, rendering communication with the defendant more difficult, did heighten the duty upon it of "taking notice of and replying to correspondence with it upon the subject of its business. So, to, in the course of the time for which the policy had run, the plaintiff had earned an interest or share in the funds of the defendant, by virtue of the clause of the policy providing for a share of its profits. The manner of applying that interest or share to the benefit of the plaintiff) in connection with the system of credit, allowed by the defendant to her for a part of the yearly premium, had made it impossible for her to know of herself just the amount which would at the beginning of any year .satisfy the premium therefor.
With this state of things grown up between the parties, we find the plaintiff by her husband, her agent, as early as 14th March, 1874, seven days before the premium for that year became payable, addressing a letter to the defendant, asking for information of the amount needed to make that payment. That letter was received in due course of mail by the defendant, but was not duly replied to. In that letter there was inclosed a post-office order for a sum, in the belief of the plaintiff, expressed to the defendant in that letter, equal to the then last prior payment received by it of her. It is earnestly contended by the defendant that the post-office order was never received by the defendant, and that the phraseology of the letter was not such as to inform it that it was her purpose to inclose it therewith. But the finding of the trial court is otherwise, upon testimony, which, though conflicting, is enough to sustain it. And however dark the meaning of the letter, it was plain enough .from it and from the money order that went with it, that
there was an intent on the part of the plaintiff to keep her contract, and a wish and an asking for information from the defendant to enable her to do it; and it knew that she did not have that information, that she could get it nowhere else but at its office, and that it had up to that time been given to her therefrom. It was willful for the defendant to remain silent, when so called upon to speak. That communication by mail was equivalent to the plaintiff going in person to the office of the defendant in due time, and there in person, handing in and leaving the post-office order, and orally asking them to tell her how much besides she need to pay to keep alive her policy for another year. When it is also a fact that, from the course of business between them, she could not know unless told by it, and that the defendant could and did know what that sum was, it is at- once plain that by every rule of fair dealing,' it was put upon the defendant to at once tell her what she asked for, or at the very least, to at once explicitly refuse and put her upon her vigilance. The defendant did neither but kept her money order and her letter and made no reply to it. It cannot now avail itself of the lapse on the part of the plaintiff to make strict performance of the contract, that lapse being encouraged — nay produced — by the omission and neglect of the defendant, and its sudden unnotified deviation from the mode of dealing with her which had become usual. It seems so plain, as that elaboration would but obscure it, that where, if a payment is not made by a certain day by the terms of a contract, a harm will come to one party and a benefit to the other, and what is the amount of that payment on that pay day is, from the course of business of the parties, known to the latter only, who, on the request of the former, refuses to make known the amount or keeps silence as to it when asked, and thereby the day goes past without payment being made, the party so refusing or being silent is derelict in duty to the other and may not take a benefit from the lapse.
True, the complaint alleges in general terató that her
lapse in making payment was through accident, mistake and ignorance ; but it states in particular terms that such ignorance arose from the omission of the defendant to give to her that knowledge which it had before that imparted in due-season, and which it alone could impart; and thus founds, her claim for relief upon the action or refusal of action of the defendant. There may not have been originally any duty upon the defendant to give to the plaintiff information of the amount of the yearly premium from time to time in¡ good season before pay-day. But when the defendant had so dealt for some time with the plaintiff, as to create a necessity for that information from it for the plaintiff to have-positive knowledge of the exact amount of a premium for any year, and had led the plaintiff to suppose that such, information would be given on application ; and when the: plaintiff asked in due time for that information", and could,, had it been given, have easily made due payment, or had it been refused, have bestirred herself and kept her rights ; the defendant could not be dumb and then avail itself to her harm and its benefit of a lapse thus produced, even though, there was no ill purpose in its silence at first, or ever. The-principles stated in
Leslie
v.
The Same Defendant
(63 N. Y., 27) uphold this conclusion; and see a late case in the-United States Supreme Court, reported in 17 Albany Law Journal, page 368,
New York Life Insurance Company
v.
Eggleston.
Nor was it needful after repeated offers to pay the recurring premiums, sufficient offers, inasmuch as they were in, such shape as if received by the defendant would have put in its hands the money ; and after repeated refusals thereof, and repeated declarations that the policy had ceased and had been canceled on the books of defendant, that the plaintiff should on each following pay-day make formal offer of payment. The plaintiff’s claim for relief is on the foot of as-full compensation by her to the .defendant as strict observance of the contract would have yielded to it. The judgment provides for the same thing, and this is enough.
(Shaw
v.
Rep. Ins. Co.,
in this court [69 N. Y., 286.], April, 1877;
Hayner
v.
Pop. Ins. Co.,
id., 435.) ,
The judgment should be affirmed.
All concur.
Judgment affirmed.