*651 corporation void which were entered into in | Tennessee, under the statute of which state violation of the conditions. usury was claimed, did not prohibit contracts which made the laws of another state applicable thereto. In that case, therefore, the law of the contract stipulated by the parties could be applied. Judgment affirmed. There is nothing inconsistent with these views in Bedford 'v. Eastern Bldg. & L. Asso. 181 U. S. 227, 45 L. ed. 834, 21 Sup. Ct. Rep. 507. In that case there was a consummated contract, and we held invalid a law enacted subsequently that made the enforcement of the contract depend upon the performance of onerous conditions. There was a question of usury in the case, but Mr. Justice White took no part in the decision of this case. (193 U. S. 551) MUTUAL LIFE INSURANCE COMPANY | premium was, in 1887, forwarded to the loOF NEW YORK, Petitioner, v. ELIZA MAUD HILL, George E. Hill, Ellen Appeal questions open on second review life insurance-application of New York statutes respecting forfeiture to contracts made in other states. 1. A judgment of reversal is not necessarily an adjudication by the appellate court of any other than the questions in terms discussed tions which appear on the record and have not already been decided are open for considera and decided, and on a second review all ques tion. 2. A general declaration in a life insurance contract executed in another state that it is to be held and construed to have been made in the city of New York does not make controlling the requirement of N. Y. Laws 1876. chap. 341, as amended by Laws 1877, chap. 821, for notice as a condition of forfeiture for nonpayment of premiums, where the contract contains an express stipulation with reference to notice which amounts to an admission by the insured of the receipt of every notice in respect to the payment of premiums which can be implied from any other part of the policy, or required by any statute. [No. 166.] cal agent at Seattle, presented by him to Hill, and not paid. No subsequent premiums were paid, and on December 4, 1890, Hill died. Thereafter this action was commenced in the circuit court of the United States for the district of Washington. The contention of the plaintiffs is that, although the annual premiums for 1887, 1888, 1889, and 1890 had not been paid, the insurance company was nevertheless indebted to them for the full amount of the policy and interest, by reason of the fact that it had failed to give the notice of forfeiture prescribed by chapter 341, Laws 1876, as amended by chapter 321, Laws 1877, of the state of New York. The complaint set out a copy of the policy, alleged the payment of the first annual premium, the death of the insured, and the relationship of the plaintiffs to the beneficiary. The defendant relied upon the nonpayment of the premiums other than the first, and an abandonment of the contract. A demurrer to these defenses was sustained and a judgment entered for the plaintiffs, which was affirmed by the court of appeals 49 L. R. A. 127, 38 for the ninth circuit. A writ of cerC. C. A. 159, 97 Fed. 263. tiorari was issued by this court (176 U. S. 683, 20 Sup. Ct. Rep. 1032), the judgment reversed, and the case remanded for further proceedings. 178 U. S. 347, 44 L. ed. An amended Argued March 1, 2, 1904. Decided April 4, 1097, 20 Sup. Ct. Rep. 914. 1904. ON See same case below, 55 C. C. A. 536, 118 answer and a replication were then filed by 118 Fed. 708) and the case Messrs. Julien T. Davies, Edward Lyman Short, John B. Allen, Frederic D. MoKenney, and E. C. Hughes for petitioner. Messrs. Stanton Warburton, George Turner, Eben Smith, and Harold Preston for respondents. Mr. Justice Brewer opinion of the court: delivered the Statement by Mr. Justice Brewer: On April 28, 1886, George D. Hill, at Seattle, Washington, signed a written application to the Mutual Life Insurance Company of New York (hereinafter called the insurance company) for a policy of $20,000. The application was forwarded to the home A preliminary matter is this: When the office. The insurance company accepted the case was here before we held that, upon the application, executed a policy, and forward- record, there was disclosed an abandonment ed it to its local agent at Seattle, who of the insurance contract by both the inthere, on June 12, 1886, received the first sured and the beneficiaries, and on that It is premium and delivered the policy to Hill. ground the judgment was reversed. The beneficiary named in the policy was El- now contended that "the only question left len K. Hill, the wife of the applicant. She open by the mandate of this court was a died on February 14, 1887, leaving four submission of this question;" that our dechildren, the present defendants in error. cision was substantially an adjudication A premium receipt for the second annual that the plaintiffs had a right to recover *553 552 *554 unless it was shown that there had been antracting outside of the state of New York abandonment of the insurance contract, and may, by agreement, incorporate into the that upon this trial it was shown that there contract the laws of that state and make had been no such abandonment, the insured its provisions controlling upon both parties, having always expressed a wish to continue provided such provisions do not conflict, the policy, the beneficiary named in the with the law or public policy of the state in policy having died before the second which the contract is made. Equitable premium became due, and her children, who Life Assur. Soc. v. Clements, 140 U. S. 226, became entitled thereafter as beneficiaries, 232, 35 L. ed. 497, 500, 11 Sup. Ct. Rep. being minors and in actual ignorance of its 822; Mutual L. Ins. Co. v. Cohen, 179 U. S. existence. That decision was based upon 262, 45 L. ed. 181, 21 Sup. Ct. Rep. 106. If the averments of the pleadings, and these it were necessary, other cases from this and pleadings were amended after the judgment state courts might be cited in support of was reversed and the case returned to the these propositions. Applying them, it foltrial court. Clearly, the contention of the lows that, as Washington was the place of plaintiffs is not sustainable. When a case the contract, the laws of that state control is presented to an appellate court it is not its terms and obligations, unless the parties obliged to consider and decide all the ques- thereto have stipulated for some other laws. tions then suggested or which may be sup- Such a stipulation, it is insisted, is found posed likely to arise in the further progress in this contract. In determining the effect of the litigation. If it finds that in one re- of such a stipulation it must be borne in spect an error has been committed so sub-mind that the applicability of other laws stantial as to require a reversal of the judg- than those of the state of the place of conment, it may order a reversal without enter-tract is a matter of agreement, and that the ing into any inquiry or determination of agreement may select laws and also limit other questions. While undoubtedly an the extent of their applicability. The case affirmance of a judgment is to be considered is precisely like one in which the parties, an adjudication by the appellate court that without mentioning laws or state, stipulate none of the claims of error are well found that the contract shall be determined in aced, even though all are not specifically re- cordance with certain specified rules. ferred to in the opinion,-yet no such conclusion follows in case of a reversal. It is impossible to foretell what shape the second trial may take or what questions may then be presented. Hence the rule is that a judgment of reversal is not necessarily an adjudication by the appellate court of any other than the questions in terms discussed and decided. An actual decision of any question settles the law in respect thereto for future action in the case. Here, after one judgment on the pleadings had been set aside, on amended pleadings a trial was had, quite a volume of testimony presented, and a second judgment entered. That judgment is now before us for review, and all questions which appear upon the record and have not already been decided are open for consideration. This insurance policy contains these recitals: "In consideration of the application for this policy, which is hereby made a part of this contract, the Mutual Life Insurance Company of New York promises to pay at its home office in the city of New York, unto Ellen Kellogg Hill, wife of George Dana Hill, of Seattle, in the county of King, Washington territory, for her sole use, if living, in conformity with the statute, and if not living, to such of the children of their bodies as shall be living at the death of the said wife, or to their guardian for their use, $20,000; upon acceptance of satisfactory proofs at its said office, of the death of the said George Dana Hill during the continuance of this policy, upon the following condition; and subject to the provisions, requirements, and benefits stated on the back of this policy, which are hereby referred to and made part thereof: "The annual premium of $814 and cents shall be paid in advance on the delivery of this policy, and thereafter to the company at its home office in the city of New York, on the 29th day of April in every year during the continuance of this contract. Previous decisions in kindred cases have established these propositions: First, the state of Washington, was the place of the contract. Equitable Life Assur. Soc. v. Clements, 140 U. S. 226, 232, 35 L. ed. 497, 500, 11 Sup. Ct. Rep. 822; Mutual L. Ins. Co. v. Cohen, 179 U. S. 262, 45 L. ed. 181, 21 Sup. Ct. Rep. 106. Second, the statutory provision of the state of New York in reference to forfeitures has no extraterritorial effect, and does not of itself apply to contracts made by a New York company "Payment of premiums.-Each premium outside of that state. Mutual L. Ins. Co. is due and payable at the home office of the v. Cohen, 179 U. S. 262, 45 L. ed. 181, 21 company in the city of New York; but will Sup. Ct. Rep. 106. Third, parties con- be accepted elsewhere when duly made in *557 *556 exchange for the company's receipt, signed | sentence, to wit, the "declarations, agreeby the president or secretary. Notice that ments, and warranties herein contained." each and every such payment is due at the This contention is reinforced by the fact date named in the policy is given and accepted by the delivery and acceptance of this policy, and any further notice required by any statute is thereby expressly waived. "Paid-up policy.-After three full annual premiums have been paid upon this policy, the company will, upon the legal surrender thereof before default in payment of any premium, or within six months thereafter, issue a paid-up policy, payable as herein provided for the amount required by the provisions of the act of May 21, 1879, chap. 347, Laws of the state of New York." “4th. Policyholders must not expect to be notified when their premiums will be due. It is a practice of the company to send these notices, as reminders when the address is known, but no responsibility is assumed on the part of the company in consequence of their nonreception." that elsewhere in the contract there is special mention of one statute of New York,— to wit, chap. 347, Laws 1879,-which is made controlling in reference to a single matter. But assuming that the general declaration that the contract is to be held and construed to have been made in the city of New York would, if there was nothing else, make controlling all the applicable statutes of that state, it is limited by other express agreements of the policy. Among these are that "notice that each and every such payment is due at the date named in the policy is In the application are these provisions: given and accepted by the delivery and ac"If said policy be issued, the declarations, ceptance of this policy, and any further noagreements, and warranties herein con- tice required by any statute is thereby extained shall be a part thereof; and the con-pressly waived," and also that "policyholdtract of insurance when made shall be helders must not expect to be notified when and construed at all times and places to their premiums will be due. It is a prachave been made in the city of New York. tice of the company to send these notices, as reminders when the address is known, but no responsibility is assumed on the part of the company in consequence of their nonreception." Language could not be clearer to the effect that the party accepting the pol icy admits thereby the receipt of every notice in respect to the payment of premium which can be implied from any other part of The statute of New York, relied upon as the policy or required by any statute. The controlling, forbids the forfeiture of any life contention is that this express stipulation insurance policy unless "a written or print-in reference to notice is nullified by the gen ed notice stating the amount of such premi-eral provision that the contract is to be conum or interest due on such policy, the place strued to have been made in the city of New where said premium or interest should be York. It is urged that the laws of New paid, and the person to whom the same is York control in the construction of any conpayable, shall be duly addressed and mailed tract made in that state, that they require to the person whose life is assured, or the notice as a condition of forfeiture, and forassignee of the policy, if notice of the as- hid a waiver of such notice, and therefore sigument has been given to the company, at that the agreement in the policy in respect his or her last known post office address, to notice is overthrown by the law of the postage paid by the company, or by an state. But that assumes that the contract agent of such company or person appointed was made in New York, whereas it was in by it to collect such premium. Such notice fact made in Washington, and the laws of shall further state that unless the said pre- New York are controlling in any respect mium or interest then due shall be paid to only because the parties have so stipulated, the company or to a duly appointed agent or and, as we have indicated, the stipulation in other person authorized to collect such pre- respect thereto is to be harmonized with the mium within thirty days after the mailing other stipulations in the contract. The of such notice, the said policy and all pay-ordinary rule in respect to the construction ments thereon will become forfeited and of contracts is this: that where there are void." two clauses in any respect conflicting, that Now, to what extent were the statutes of which is specially directed to a particular New York made by these stipulations con- matter controls in respect thereto over one trolling? It is stated in the application which is general in its terms, although that the contract of insurance is to "be held within its general terms the particular may and construed at all times and places to be included. Because, when the parties exhave been made in the city of New York." press themselves in reference to a particular It might with some plausibility be contend-matter, the attention is directed to that, and ed that this general provision is limited to it must be assumed that it expresses their the matter which precedes it in the same intent; whereas a reference to some general *558 699* matter, within which the particular may be included, does not necessarily indicate that the parties had the particular matter in thought. Here, when the parties stipulate that no other notice shall be required, attention is directed to the particular matter of notice. When the stipulation is that the contract shall be construed to have been made in New York, no particular statute is referred to, and the attention may not be directed to the matter of notice or any other special feature of New York law. The special controlled the general; that which must have been in the minds of the contracting parties controls that which may not have been, although included within the language of the latter stipulation. This is the general rule in the construction of all documents, contracts as well as statutes. Bock v. Perkins, 139 U. S. 628, 35 L. ed. 314, 11 Sup. Ct. Rep. 677, and cases cited; Rodgers v. United States, 185 U. S. 83, 46 L. ed. 816, 22 Sup. Ct. Rep. 582, and cases cited; Winebrenner v. Forney, 189 U. S. 148, 47 L. ed. 754, 23 Sup. Ct. Rep. 590; Sedgw. Stat. & Const. Law, 2d ed. p. 360 and note; 2 Parsons, Contr. 6th ed. p. 501 and note. Obviously, the express stipulation in the policy as to the matter of notice must be held paramount, and to that extent limiting the provision of the New York law in reference to notice which was not specially referred to in the contract, and can be invoked only because it is one of the various statutes of New York applicable to insurance policies. not ignore the scope and efficacy of such statutory provisions; but, nevertheless, a judgment for failure to perform against one party in favor of the other, when the latter was the first delinquent, is offensive to the sense of righteousness and fair dealing. We have had before us a series of cases coming from the same jurisdiction in which, when the insured had, for a series of years, neglected to pay their insurance premiums or perform their parts of the insurance contract, their heirs or beneficiaries have, on their deaths, sought to obtain judgments against the insurance company for the amounts which would have been due on the policies if the insured had performed their stipulations in respect to the payment of premiums. Courts have always set their faces against an insurance company which, having received its premiums, has sought by technical defenses to avoid payment, and in like manner should they set their faces against an effort to exact payment from an insurance company when the premiums have deliberately been left unpaid. We cite with approval the decision of the supreme court of Washington in a recent case (Lone v. Mutual L. Ins. Co.) decided December 21, 1903, and reported in 74 Pac. 689, in which, as in this case, the insured made payment of one premium and then lived years without making further payment, and in which the court said, in reference to the New York statute here relied upon, and the conduct of the insured: "The statute, it is true, provides that no life insurance company shall have power to declare forfeited or lapsed any policy by reason of the nonpayment of any annual premium, unless notice be given in a specified manner; but a statute must be construed, and its provisions enforced, with reference to its objects; and the legislature, taking into consideration the infirmities of memory, enacted this statute for the purpose of preventing insurance companies from taking what, in homely phrase, is termed 'snap judgment' on its patrons, thereby depriving them of the benefit of contracts by reason of slight negligence on their part, and when there was no real intention to rescind,-a beneficent and just law if enforced in the spirit of its enactment, but oppressive and unjust if construed with narrow and literal exactness. Beyond the proposition that, by the terms of the policy, the insured was bound to take notice of the time when the payment of the second premium was due, it was also shown by the testimony that the renewal receipt was forwarded to the local agent at Seattle and by him presented to the insured, so that there was notice in fact as well as notice implied from a receipt of the policy. Under those circumstances the insured failed to pay, and continued such failure for four years prior to his death. Yet, notwithstanding his failure to perform his part of the contract, and performance by the insured underlies the obligation of the insurance company to perform on its part,-this action was brought to compel the same performance by the company that would have been due if he had performed. It is simple justice between two parties to a contract containing depending stipulations that "We are satisfied that the thought never neither should be permitted to exact per- occurred to Rex during his lifetime that he formance by the other without having him- had a claim against this company on the self first performed. It is true cases arise policy which had been issued so many years in which one party is enabled to take ad- before, or, if he did, after the lapse of any vantage of some statutory provision and ex-appreciable time, it was a dishonest thought, Act compliance from the other without hav- for he knew that he had not performed the ing himself first complied, and courts may duties which devolved upon him under the 560 |