Loomis, J.
The policy of insurance in question was issued May 21st, 18G7, on the joint lives of the plaintiffs, payable to the survivor on the death of either. The annual premium was $120.08, of which $30.04 was to be paid in cash on the 21st days of May and November in each year, and the remain[493]*493ing $60 by note dated May 21st and payable one year from date. The premiums had been regularly paid up to November 21st, 1876, inclusive.
For the cash payment of $30.04 due May 21st, 1877, and the interest on the outstanding notes ($23.76,) amounting in all to $53.80, Mr. Wilmot, one of the plaintiffs, gave his note for three months, and thereupon the defendants gave a receipt to the plaintiffs as for a renewal of the policy. At the same time the defendants took the usual premium for $60. The $53.80 note was afterwards renewed by a two months note for the same amount, which fell due October 27th, 1877, and was not paid.
Afterwards, on the 1st day of November, 1877, the defendants notified Mr. Wilmot that the note had been returned unpaid, and that they had canceled the policy. On the 14th day of November, lie replied by letter, inquiring what right the company had to cancel the policy when he had a receipt to the 21st of November.
Subsequently the plaintiffs’ attorney called at the office of the defendants and demanded the return of all the premiums paid by the plaintiffs ou the policy. The date of this demand was a disputed question of fact on the trial, the plaintiffs claiming that it was the 20th of November, and the defendants claiming, and offering evidence tending to prove, that it was either the 23d or the 24th of November.
The present action having been brought in the life-time of the insured and in advance of the time specified in the policy for the performance of the contract on the part of the defendants, two things are indispensable requisites for its maintenance:—
1st. That the policy was wrongfully rescinded by the defendants, and
2d. That the plaintiffs so assented to the rescission as to give a present right of action.
The first proposition depended upon the questions whether the note of May 21st, 1877, and the renewal note due October 27th, ,1877, were received by the defendants as payment of the premium of May 21st, and whether the facts showed an [494]*494agreement on the part of the defendants with the plaintiffs to keep the policy alive until November 21st, 1877, which would be a waiver of the right to claim a forfeiture prior to that time.
We think the charge of the court covering these points, based upon the claims of the parties as to the evidence, was substantially correct, and is sustained by the authorities; Insurance Co. v. Norton, 96 U. S. Reps., 234; Insurance Co. v. Eggleston, 96 U. S. Reps., 572; Sheldon v. Conn. Mut. Life Ins. Co., 25 Conn., 207.
In relation to the second proposition, as to the plaintiffs’ assent to the rescission, we think the charge as given was erroneous.
There was no pretence of any election on the part of the plaintiffs to treat the policy as rescinded prior to the time when their counsel called at the office of the defendants. If it was conceded that this occurred, as the plaintiffs claimed, on the 20th of November, there would be nothing in the charge to furnish ground for a new trial. But the motion shows that there was evidence strongly tending to show that it was on the 23d or 24th of November, and the jury might have so found. If so it would have been ascertained that before the plaintiffs assented to any rescission, another premium, that of November 21st, 1877, had become due, for which no payment or tender had been made and no waiver was claimed. If this fact had any legal significance as bearing on the time within which the plaintiffs’ election was to be made, it should have been recognized by the court, but it was treated as of no importance.
The defendants requested the court to charge the jury that “ if the cancellation by the company of the plaintiffs’ policy, declared in the letter of November 1st, 1877, was justifiable, the verdict must be for the defendants. If not justifiable, the policy remained in force up to November 21st, 1877, when the nest premium fell due, notwithstanding such attempted cancellation, unless the plaintiffs before that day assented to the cancellation. If they did not assent to it, and notify the company of such assent, on receiving the letter of November [495]*4951st, 1877, or within a reasonable time thereafter, and before November 21st, then the policy remained in force on November 21st, and upon that day became forfeited for non-payment of the new premium due on that day, and the verdict should be for the defendants.
The court not only failed to comply with this request, but gave a direct charge to the contrary, “ that if you find that the plaintiffs did not notify'the company until after November 21st, and that there was no unreasonable delay, the policy did not lapse by non-payment of the November 21st premium.”
In many matters the question of reasonable time would be within the exclusive province of the jury. But in Averill v. Hedge, 12 Conn., 424, where there was a proposal to sell to another certain goods, the reasonable time within which such proposal must be accepted to make it a binding contract was assumed to be a question of law for the court to decide. Now contracts of life insurance are surely of no less importance than ordinary mercantile contracts, and under the peculiar circumstances of this case we think the question, what was a reasonable time in which to assent to the cancellation of the policy, ought not to have been left to the jury without any limitation at all.
In Howland v. Continental Life Ins. Co., 121 Mass., 499, this question was assumed to be and was decided as a mere question of law, and that too in a case where no additional premium had become due between the date of the attempted cancellation and the plaintiffs’ notice. But in the case at bar the last mentioned fact exists and introduces a legal element which we think should control the question of reasonable time.
Assuming that the defendants had no right to cancel the policy on the 1st of November for the non-payment of the May premium, the policy remained a continuing contract in full force and vigor until the plaintiffs elected to treat it as rescinded. Day v. Conn. General Life Ins. Co., 45 Conn., 480. If either of the plaintiffs had died before they had given notice to the defendants of their election, the company [496]*496would liave been liable for the amount of the insurance as on a policy in full force.
The claim of the plaintiffs in answer' to the alleged forfeiture for the non-payment of the May premium, was in substance, that the defendants had agreed to extend the time until November 21st, but no longer. The defendants until notice from the plaintiffs had the locus penitentice and might have waived even a good ground for the forfeiture of the policy.
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Loomis, J.
The policy of insurance in question was issued May 21st, 18G7, on the joint lives of the plaintiffs, payable to the survivor on the death of either. The annual premium was $120.08, of which $30.04 was to be paid in cash on the 21st days of May and November in each year, and the remain[493]*493ing $60 by note dated May 21st and payable one year from date. The premiums had been regularly paid up to November 21st, 1876, inclusive.
For the cash payment of $30.04 due May 21st, 1877, and the interest on the outstanding notes ($23.76,) amounting in all to $53.80, Mr. Wilmot, one of the plaintiffs, gave his note for three months, and thereupon the defendants gave a receipt to the plaintiffs as for a renewal of the policy. At the same time the defendants took the usual premium for $60. The $53.80 note was afterwards renewed by a two months note for the same amount, which fell due October 27th, 1877, and was not paid.
Afterwards, on the 1st day of November, 1877, the defendants notified Mr. Wilmot that the note had been returned unpaid, and that they had canceled the policy. On the 14th day of November, lie replied by letter, inquiring what right the company had to cancel the policy when he had a receipt to the 21st of November.
Subsequently the plaintiffs’ attorney called at the office of the defendants and demanded the return of all the premiums paid by the plaintiffs ou the policy. The date of this demand was a disputed question of fact on the trial, the plaintiffs claiming that it was the 20th of November, and the defendants claiming, and offering evidence tending to prove, that it was either the 23d or the 24th of November.
The present action having been brought in the life-time of the insured and in advance of the time specified in the policy for the performance of the contract on the part of the defendants, two things are indispensable requisites for its maintenance:—
1st. That the policy was wrongfully rescinded by the defendants, and
2d. That the plaintiffs so assented to the rescission as to give a present right of action.
The first proposition depended upon the questions whether the note of May 21st, 1877, and the renewal note due October 27th, ,1877, were received by the defendants as payment of the premium of May 21st, and whether the facts showed an [494]*494agreement on the part of the defendants with the plaintiffs to keep the policy alive until November 21st, 1877, which would be a waiver of the right to claim a forfeiture prior to that time.
We think the charge of the court covering these points, based upon the claims of the parties as to the evidence, was substantially correct, and is sustained by the authorities; Insurance Co. v. Norton, 96 U. S. Reps., 234; Insurance Co. v. Eggleston, 96 U. S. Reps., 572; Sheldon v. Conn. Mut. Life Ins. Co., 25 Conn., 207.
In relation to the second proposition, as to the plaintiffs’ assent to the rescission, we think the charge as given was erroneous.
There was no pretence of any election on the part of the plaintiffs to treat the policy as rescinded prior to the time when their counsel called at the office of the defendants. If it was conceded that this occurred, as the plaintiffs claimed, on the 20th of November, there would be nothing in the charge to furnish ground for a new trial. But the motion shows that there was evidence strongly tending to show that it was on the 23d or 24th of November, and the jury might have so found. If so it would have been ascertained that before the plaintiffs assented to any rescission, another premium, that of November 21st, 1877, had become due, for which no payment or tender had been made and no waiver was claimed. If this fact had any legal significance as bearing on the time within which the plaintiffs’ election was to be made, it should have been recognized by the court, but it was treated as of no importance.
The defendants requested the court to charge the jury that “ if the cancellation by the company of the plaintiffs’ policy, declared in the letter of November 1st, 1877, was justifiable, the verdict must be for the defendants. If not justifiable, the policy remained in force up to November 21st, 1877, when the nest premium fell due, notwithstanding such attempted cancellation, unless the plaintiffs before that day assented to the cancellation. If they did not assent to it, and notify the company of such assent, on receiving the letter of November [495]*4951st, 1877, or within a reasonable time thereafter, and before November 21st, then the policy remained in force on November 21st, and upon that day became forfeited for non-payment of the new premium due on that day, and the verdict should be for the defendants.
The court not only failed to comply with this request, but gave a direct charge to the contrary, “ that if you find that the plaintiffs did not notify'the company until after November 21st, and that there was no unreasonable delay, the policy did not lapse by non-payment of the November 21st premium.”
In many matters the question of reasonable time would be within the exclusive province of the jury. But in Averill v. Hedge, 12 Conn., 424, where there was a proposal to sell to another certain goods, the reasonable time within which such proposal must be accepted to make it a binding contract was assumed to be a question of law for the court to decide. Now contracts of life insurance are surely of no less importance than ordinary mercantile contracts, and under the peculiar circumstances of this case we think the question, what was a reasonable time in which to assent to the cancellation of the policy, ought not to have been left to the jury without any limitation at all.
In Howland v. Continental Life Ins. Co., 121 Mass., 499, this question was assumed to be and was decided as a mere question of law, and that too in a case where no additional premium had become due between the date of the attempted cancellation and the plaintiffs’ notice. But in the case at bar the last mentioned fact exists and introduces a legal element which we think should control the question of reasonable time.
Assuming that the defendants had no right to cancel the policy on the 1st of November for the non-payment of the May premium, the policy remained a continuing contract in full force and vigor until the plaintiffs elected to treat it as rescinded. Day v. Conn. General Life Ins. Co., 45 Conn., 480. If either of the plaintiffs had died before they had given notice to the defendants of their election, the company [496]*496would liave been liable for the amount of the insurance as on a policy in full force.
The claim of the plaintiffs in answer' to the alleged forfeiture for the non-payment of the May premium, was in substance, that the defendants had agreed to extend the time until November 21st, but no longer. The defendants until notice from the plaintiffs had the locus penitentice and might have waived even a good ground for the forfeiture of the policy. It seems to us unreasonable to allow the plaintiffs to delay notice of their election to treat the policy as at an end, not only until after the additional premium due November 21st had become payable, but even after the deferred premium of May 21st for which the forfeiture had been declared had also become due according to the plaintiffs’ own showing, when there was ample opportunity for the plaintiffs to communicate with the defendants on the subject prior to that time. We conclude therefore that the instructions asked for by the defendants on this point were correct in law and ought to have been given to the jury.
The motion also presents a question of evidence—whether the defendants, upon the facts as stated in the record, were entitled to the reply which Squire, as an officer of the defendant company, made to Dustin, when the latter communicated the message and demand from the plaintiffs’ counsel. The grounds on which its admissibility was claimed by the defendants were, that in making the communication Dustin was the agent of the counsel and not of the company, and that the reply of Squire was part of the res gestee.
We think this claim might be well founded if it did not appear that the counsel, at the same time that he authorized Dustin to deliver his message, particularly requested that the reply should be by mail; which would seem to exclude any further agency on the part of Dustin after he had delivered the message as requested.
The counsel for the defendants argues that this reply of Squire would have been very important in fixing the date of the demand, which as we have seen was a material fact. But Squire’s mere declaration as to the date would have been [497]*497hearsay evidence and inadmissible unless it was part of the res gestos. Another way to |fix the date was open to the defendants. Dustin it seems testified that he communicated the message from the counsel immediately upon the return of Squire the same day, and the latter it would seem stood ready to testify that thereupon he had his attention distinctly called to the date and to the fact that the additional premium for November 21st was then past due.
As the point on which a new trial is 'advised may finally dispose of the case, we leave the question as to the rule of damages an open one for future consideration.
A new trial is advised.
In this opinion the other judges concurred; (Judge Sanford of the Superior Court sitting in the place of Judge Carpenter, who was disqualified by interest.)