ClakksoN, J.
At tbe close of plaintiff’s evidence and at tbe close of all tbe evidence tbe defendant made motions for judgment as in case of nonsuit. Tbe court below overruled these motions, and in this we can see no error.
Tbe question involved: Did tbe defendant, under tbe facts appearing ■of record, waive tbe forfeiture of tbe policy for nonpayment of tbe January, 1933, assessment, and was tbe policy of fire insurance in full force and effect on tbe date of tbe fire on 10 October, 1933 ? We think so, under tbe facts and circumstances of this case.
In Vol. 2, Couch Cyc. of Insurance Law, part of section 533, page 1631, is tbe following: “It has been intimated that, in order to revive a policy which is absolutely forfeited, there must be a new contract, founded upon a valuable consideration, or such conduct by tbe company or its authorized agent as misleads tbe insurer to bis prejudice, and operates as an estoppel; but tbe better rule seems to be that, if an .agent’s authority is such that be may issue policies and make contracts of insurance, or if be has apparent authority to act in tbe premises, .and tbe insured has no knowledge, actual or constructive, of any conflicting limitations of authority, the agent necessarily has, as such, the right to revive lapsed or voided policies, provided tbe original contract .at its inception was neither illegal nor against public policy. And in so far as an insurance agent has power to waive a forfeiture of tbe policy, be has authority to revive it, inasmuch as a waiver of forfeiture operates as a revival. This, it is held, may arise from tbe agent giving a renewal receipt with knowledge of the facts from which a forfeiture may arise, or by receipt of tbe premium, or by some other unequivocal act sufficient to effect a waiver of forfeiture.”
In
Moore v. Accident Assurance Corp.,
173 N. C., 532 (536-537), citing numerous authorities, we find: “It was not merely a courtesy or favor extended to- tbe insured, as in
Hay v. Assn.,
143 N. C., 257. A casual indulgence would not be sufficient to show a waiver, as decided in that case, and so tbe judge charged tbe jury, but be left it to them to find whether there bad been such ‘a long-continued course of dealings’ on the part of the defendant as showed that it did not intend to rely upon tbe delay in payment, but that it extended credit to tbe insured for
the brief spaee of time. It was said in
Painter v. Industrial Life
Assn., 131 Ind., 68, approving and quoting from
Sweetser v. Odd Fellows Assn.,
117 Ind., 97: Tt is abundantly settled that an insurance company will be estopped to insist upon a forfeiture if by any agreement, either express or implied by the course of its conduct, it leads the insured honestly to believe that the premiums or assessment will be received after the appointed day. The decisions which hold and enforce this view are very numerous.’ ”
Grubbs v. Insurance Co.,
108 N. C., 472;
Perry v. Ins. Co.,
132 N. C., 283;
Murphy v. Ins. Co.,
167 N. C., 334;
Sellers v. Insurance Co.,
205 N. C., 355.
In
Penland v. Ingle,
138 N. C., 456 (457), to establish a custom, the law is thus stated: “The character and description of evidence admissible for establishing the custom is the fact of a general usage and practice prevailing in the particular trade or business, and not the opinions of witnesses as to the fairness or reasonableness of it.”
Crown Co. v. Jones,
196 N. C., 208.
The evidence on the part of the plaintiff fully sustained plaintiff’s allegations of waiver in his reply. There was abundant evidence of a custom by numerous witnesses. In fact, the testimony of J. L. Little, which is in part as follows, tends to sustain plaintiff’s contentions: “I have been secretary and treasurer for thirty-eight years, and during that time have collected assessments levied from time to time, and assessments have been paid to me as treasurer. The help referred to that I thought I might be able to give Mr. Paramore was that I could let him be reinstated by paying the lapsed assessments and waiving the September assessment.
It has been a custom with me for a long time to mail notices of a second assessment when a former assessment had not been paid and I have collected a good many and reinstated a good many members by sending them notices of new assessments calling their attention to their failure to pay the old assessment.”
(Italics ours.)
The plaintiff testified: “I went to see Mr. Little because I got to studying about my insurance on my house, and I didn’t really know whether I owed for it or not. I know they usually send out assessments the first of the year, but I didn’t remember whether I got a card or not. I went in to talk it over with Mr. Little, and when I did he told me he was going to call a meeting within a few days, the first of September, and he was going to make a motion to cancel out the premiums that was not over one behind and let them start with the new assessment of September, and he asked me didn’t I think that would give the members some encouragement. The motion to cancel out the assessment was for everybody who was not more than one premium behind.
“Q. In going to see Mr. Little at that time, was it your purpose to pay up your assessment, if you owed any?
“A. Yes, sir. I did not receive any notice of any meeting that was had after this conversation. I received this card through the mail (card exhibited to him). I received it on or about 21 September. The fire that destroyed my house occurred on 10 October, 1933. After I received this notice I went to see Mr. Little. I went to see him the next day after the fire.
“Q. What was your conversation with Mr. Little at that time?
“A. I went in and told him I wanted to straighten out my insurance and he said all right. He was at. the front part and he got up and we went on in the back, and as we were going on back there together I told him that I was sorry to tell him, but I had a fire last night, so he went on and got his books like everything was all right and he looked on there, and I took the money out of my pocket and counted it. I took out $19.00 and laid it out there and he acted like he was going to take it, then he told me he couldn’t take it. I asked him why, and he said if he took the money the company would have to pay out money. I said let me pay and then you pay me, and he said no, I can’t do that. He said that if I had not had the fire they would be glad to take it, and that he always wants to take in money, so he handed me the $19.00 back.
“Q. Mr. Paramore, in your experience as a policyholder in this company, what, if anything, do you know of the practice and custom of the company to take assessments from its policyholders after sixty days from the notice of the assessment?
“A. Well, as far as my knowledge, they took the money. As far as I have ever had the experience they always took the money when they can get it. I know of an instance when they took money or assessments after the sixty days had expired. My brother, Tom, paid one assessment after the sixty days had expired after the notice.” . . . “Mr. Little told me not to pay the January assessment and to wait until September.”
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ClakksoN, J.
At tbe close of plaintiff’s evidence and at tbe close of all tbe evidence tbe defendant made motions for judgment as in case of nonsuit. Tbe court below overruled these motions, and in this we can see no error.
Tbe question involved: Did tbe defendant, under tbe facts appearing ■of record, waive tbe forfeiture of tbe policy for nonpayment of tbe January, 1933, assessment, and was tbe policy of fire insurance in full force and effect on tbe date of tbe fire on 10 October, 1933 ? We think so, under tbe facts and circumstances of this case.
In Vol. 2, Couch Cyc. of Insurance Law, part of section 533, page 1631, is tbe following: “It has been intimated that, in order to revive a policy which is absolutely forfeited, there must be a new contract, founded upon a valuable consideration, or such conduct by tbe company or its authorized agent as misleads tbe insurer to bis prejudice, and operates as an estoppel; but tbe better rule seems to be that, if an .agent’s authority is such that be may issue policies and make contracts of insurance, or if be has apparent authority to act in tbe premises, .and tbe insured has no knowledge, actual or constructive, of any conflicting limitations of authority, the agent necessarily has, as such, the right to revive lapsed or voided policies, provided tbe original contract .at its inception was neither illegal nor against public policy. And in so far as an insurance agent has power to waive a forfeiture of tbe policy, be has authority to revive it, inasmuch as a waiver of forfeiture operates as a revival. This, it is held, may arise from tbe agent giving a renewal receipt with knowledge of the facts from which a forfeiture may arise, or by receipt of tbe premium, or by some other unequivocal act sufficient to effect a waiver of forfeiture.”
In
Moore v. Accident Assurance Corp.,
173 N. C., 532 (536-537), citing numerous authorities, we find: “It was not merely a courtesy or favor extended to- tbe insured, as in
Hay v. Assn.,
143 N. C., 257. A casual indulgence would not be sufficient to show a waiver, as decided in that case, and so tbe judge charged tbe jury, but be left it to them to find whether there bad been such ‘a long-continued course of dealings’ on the part of the defendant as showed that it did not intend to rely upon tbe delay in payment, but that it extended credit to tbe insured for
the brief spaee of time. It was said in
Painter v. Industrial Life
Assn., 131 Ind., 68, approving and quoting from
Sweetser v. Odd Fellows Assn.,
117 Ind., 97: Tt is abundantly settled that an insurance company will be estopped to insist upon a forfeiture if by any agreement, either express or implied by the course of its conduct, it leads the insured honestly to believe that the premiums or assessment will be received after the appointed day. The decisions which hold and enforce this view are very numerous.’ ”
Grubbs v. Insurance Co.,
108 N. C., 472;
Perry v. Ins. Co.,
132 N. C., 283;
Murphy v. Ins. Co.,
167 N. C., 334;
Sellers v. Insurance Co.,
205 N. C., 355.
In
Penland v. Ingle,
138 N. C., 456 (457), to establish a custom, the law is thus stated: “The character and description of evidence admissible for establishing the custom is the fact of a general usage and practice prevailing in the particular trade or business, and not the opinions of witnesses as to the fairness or reasonableness of it.”
Crown Co. v. Jones,
196 N. C., 208.
The evidence on the part of the plaintiff fully sustained plaintiff’s allegations of waiver in his reply. There was abundant evidence of a custom by numerous witnesses. In fact, the testimony of J. L. Little, which is in part as follows, tends to sustain plaintiff’s contentions: “I have been secretary and treasurer for thirty-eight years, and during that time have collected assessments levied from time to time, and assessments have been paid to me as treasurer. The help referred to that I thought I might be able to give Mr. Paramore was that I could let him be reinstated by paying the lapsed assessments and waiving the September assessment.
It has been a custom with me for a long time to mail notices of a second assessment when a former assessment had not been paid and I have collected a good many and reinstated a good many members by sending them notices of new assessments calling their attention to their failure to pay the old assessment.”
(Italics ours.)
The plaintiff testified: “I went to see Mr. Little because I got to studying about my insurance on my house, and I didn’t really know whether I owed for it or not. I know they usually send out assessments the first of the year, but I didn’t remember whether I got a card or not. I went in to talk it over with Mr. Little, and when I did he told me he was going to call a meeting within a few days, the first of September, and he was going to make a motion to cancel out the premiums that was not over one behind and let them start with the new assessment of September, and he asked me didn’t I think that would give the members some encouragement. The motion to cancel out the assessment was for everybody who was not more than one premium behind.
“Q. In going to see Mr. Little at that time, was it your purpose to pay up your assessment, if you owed any?
“A. Yes, sir. I did not receive any notice of any meeting that was had after this conversation. I received this card through the mail (card exhibited to him). I received it on or about 21 September. The fire that destroyed my house occurred on 10 October, 1933. After I received this notice I went to see Mr. Little. I went to see him the next day after the fire.
“Q. What was your conversation with Mr. Little at that time?
“A. I went in and told him I wanted to straighten out my insurance and he said all right. He was at. the front part and he got up and we went on in the back, and as we were going on back there together I told him that I was sorry to tell him, but I had a fire last night, so he went on and got his books like everything was all right and he looked on there, and I took the money out of my pocket and counted it. I took out $19.00 and laid it out there and he acted like he was going to take it, then he told me he couldn’t take it. I asked him why, and he said if he took the money the company would have to pay out money. I said let me pay and then you pay me, and he said no, I can’t do that. He said that if I had not had the fire they would be glad to take it, and that he always wants to take in money, so he handed me the $19.00 back.
“Q. Mr. Paramore, in your experience as a policyholder in this company, what, if anything, do you know of the practice and custom of the company to take assessments from its policyholders after sixty days from the notice of the assessment?
“A. Well, as far as my knowledge, they took the money. As far as I have ever had the experience they always took the money when they can get it. I know of an instance when they took money or assessments after the sixty days had expired. My brother, Tom, paid one assessment after the sixty days had expired after the notice.” . . . “Mr. Little told me not to pay the January assessment and to wait until September.”
The letter of 15 September, 1933, recites: “Previous assessment $9.50. Total $19.00. The above assessment is due within sixty days from date and if not paid at maturity your policy will be forfeited.”
The fire occurred within the sixty days, on 10 October, 1933. Within the sixty days the plaintiff tendered the $19.00. The testimony of plaintiff as above set forth was excepted to, and assignments of error duly made. We think the evidence competent with the other evidence of custom.
We think the court below, in its charge, taking the evidence of all the witnesses as to custom, more liberal to defendant than it was entitled to.
Crown Company v. Jones, supra.
The court below charged the jury: “And then you heard the defendant explain about the other losses, there were two others, I believe, I think that is not sufficient, that evidence is not sufficient to establish a custom or a general course of action, taking only three instances, and with the explanation that had been
made. But tbe course of dealing tbat they received assessments by more than sixty days after they were due may be considered by the jury in connection with the testimony of the plaintiff. That in August, before the fire, he went, to the office of Mr. Little, the secretary and treasurer, to see how his insurance stood and got information that he had not paid the assessment of January preceding, and that he offered to pay that, and thereupon Mr. Little told him if he was in his place he would not pay it then, and stated' that he, Mr. Little, would have a meeting about the first of September of the directors and make a suggestion to them to refinance policyholders on past-due assessments, if only one was past due, and considered together with the mailing of the postal card, which the plaintiff received about 20 September, and which I have just read you from the replication, consider all this upon the question as to whether its association waived the forfeiture for failure to pay assessment January, 1933.”
~We
do not think that C. S., 6351 and 6352, cited by defendant, applicable to the facts in the case. The exceptions and assignments of error made by defendants cannot be sustained.
On the whole record, we find no prejudicial or reversible error.
No error.