Statement of case.

Ins. Co. v. Pierce, 75 Ill., 426; Gray v. Green, 9 Hun, 334; Boody v. R. and Bur. R. R. Co., 3 Blatch., 25; Lindley on Part., 804; B'klyn L. Ins. Co v. Dutcher, 5 Rep., 97.) Such an arrangement made verbally would be binding. (Dean v. Etna L. Ins. Co., 62 N. Y., 642; Ludwig v. Jersey City Ins. Co., 48 id., 379; Blanchard v. Trim, 38 id., 225.) Plaintiff's technical default having been contributed to by the acts and omissions of defendant, it cannot insist upon a forfeiture. (Cohen v. N. Y. Mut. L. Ins. Co., 50 N. Y,, 610, 618; Sands v. N. Y. L. Ins. Co., id., 631, 632; Homer v. The Guardian Mut. Life Ins. Co., Ct. of Ap., Dec. 12, 1876; N. Y. Life Ins. Co. v. Stalham, 93 U. S., 24; Hamil ton v. Mut. Life Ins. Co., 9 Blatch., 234; Bird v. Penn. Mut. Ins. Co., 5 Bigelow L. & Ac. R., 487, pp. 491, 492; Story on Contracts [5th ed.], § 48; McNeilly v. Cont. Life Ins. Co., 66 N. Y., 23; McAllister v. N. E. Mut. Life Ins. Co., 101 Mass., 558; N. E. Mut. Life Ins. Co. v. Hasbrook, 32 Ind., 447; Leslie v. Knickerbocker Life Ins. Co., 63 N. Y., 27; S. C., 5 N. Y. S. C. [T. & C.], 193; Rowley v. Empire Ins. Co., 36 N. Y., 550; Van Benthuysen v. Sawyer, 36 id., 150; O'Reilley v. Guardian Mut. Life Ins. Co., 3 T. & C., 487; Buckbie v. U. S. Ins. Co., 18 Barb., 541; Harris v. Troup, 8 Paige, 423; Home Life Ins. Co. v. Pierce, 75 Ill., 426; Mayer v. Mut. Life Ins. Co., 38 Iowa, 304; Union C. Life Ins. Co. v. Poettker, 5 Big. L. & Ac. R., 449; Helme v. Pa. Life Ins. Co., 61 Penn. St., 107; Thompson v. St. Louis Mut. L. Ins. Co., 52 Mo., 469; Braswell v. Amer. Life Ins. Co., 75 N. C., 8; Fitzpatrick v. Life Ins. As. of La., 25 La. Ann., 443; Doe ex dem. Knight v. Rowe, 2 Carr. & Payne, 246; Hughes v. Metrop. R. R. Co., L. R., 1 C. P. D., 120; Vogler v. World M. L. Ins. Co., 51 How. Pr., 301; Ohde v. N. W. Mut. Life Ins Co., 40 Iowa, 357; Hull v. N. W. Mut. Life Ins. Co., 39 Wis., 397; Chitty on Contracts [11th Am. ed.], pp. 1069–1072; Smith v. Lascelles, 2 Term, 187.) Non-performance of a condition precedent is excused when caused by the party to whom performance is due. (Young v. Hunter, 2 Seld., 203; Man.

Statement of case.

and Fr. Bk. v. Hazard, 30 N. Y., 226; Moses v. Bierling, 31 id., 462; Jencks v. Robertson, 58 id., 621; Hale v. Patton, 60 id., 233; Niblo v. Brusse, 3 Abb. Ct. Ap., Dec., 375; Broom's Leg. Maxims, p. 282.) Defendant is estopped from exacting the forfeiture, by its receipt for the money order and by its letter. (Parsons on Contracts [6th ed., II], 794, n. r.; Kelly v. Scott, 39 N. Y., 595; Cont. Nat. Bk. v. N. Bk. of Commonwealth, 50 id., 575; Pratt v. N. Y. Central Ins. Co., 55 id., 505; Voorhis v. Olmstead, 66 id., 113; Blair v. Wait, Ct. of Ap., March 20, 1877; McNeilly v. Cont. L. Ins. Co., 66 N. Y., 29; Mitchell v. Vermont Copper Co., Ct. of Ap., Nov. 14, 1876; Georgia Masonic Co. v. Gibson, 52 Ga., 640; Walters v. Fire Ins. Co., 39 Wis., 489; Blake v. Ex. Mut. Ins. Co., 12 Gray, 265; May on Insurance, §§ 361, 505, 507; Bliss on Life Insurance, § 266, et seq.; Leslie v. Knick. L. Ins. Co., 5 N. Y. S. C. [T. & C.], 193; Underwood v. Farmers' Joint Stock Ins. Co., 57 N. Y., 500; Dohn v. Farmers' Joint Stock Co., 5 Lans., 275; Post v. Etna Ins. Co., 43 Barb., 351; Homer v. Guard. L. Ins. Co., Ct of Ap., Dec. 12, 1876; Globe Mut. L. Ins. Co. v. Wolff, U. S. S. C., Nov. 5, 1877; The Reporter, vol. V, 1; Plaintiff, under the facts proved, was entitled to equitable relief. (1 Spence's Equit. Jurisdic., 628, et seq. 631; 2 Story on Equity Juris., chap. 34; Willard on Equity Juris., 56, et seq.; Baxter v. Lansing, 7 Paige, 350; De Forest v. Batts, 1 Edw. Ch., 394; Giles v. Austin, 62 N. Y., 486; Skinner v. White, 17 J. R., 357, see 369, 370; Cythe v. La Fontaine, 51 Barb., 186; Grigg v. Landis, 21 N. J. Eq., 494; Henry v. Tupper, 29 Vt., 358; Saunders v. Pope, 12 Ves., 283, 291; Bird v. Penn. Mut. Ins. Co., 5 Big. L. & Ac. R., 487, 493; Story on Equity Juris., §§ 110, 118, 147, 1316; Atkins v. Chilson, 11 Metc., 112; Cohen v. N. Y. Mut. L. Ins. Co., 50 N. Y., 610, 623; Sands v. N. Y. L. Ins. Co., 50 id., 626, 637.) There has been no omission of duty on the part of plaintiff since March 20, 1874. (Shaw v. Republic L. Ins. Co., Ct. of App., Apr. 10, 1877; 5 N. Y. Weekly Dig., 2; Hayner v. Amer. Pop. L. Ins.

Opinion of the Court, per FOLGER, J.

Co., Ct. of App., Apr. 27, 1877; Bird v. Penn. Mut. Ins. Co., 5 Bige. L. & Ac. R., 487; Sampson v. Warner, 48 Vt., 247; Howard v. Daly, 61 N. Y., 362, 368–370; Hartley v. James, 50 id., 38, 43; Carpenter v. Holcomb, 105 Mass., 280.)

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 liabil ity 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

Opinion of the Court, per FOLGER, J.

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 obliga tions.

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 postoffice 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 particu lar statement thereof sent by the defendant to him for delivery to the plaintiff, and which was delivered by him to her.

Opinion of the Court, per FOLGER, J,

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