Baldwin v. New York Life Insurance & Trust Co. — 16 N.Y. Super. Ct. 530

Majority

p. 530

Baldwin, Administrator, Plaintiff and Respondent, v. The New York Life Insurance and Trust Company, Appellants.

Headnote

1. Where a life policy, made in New York upon the life of a person then residing there, declares that such policy is accepted upon the condition, that if the insured, without the previous consent of the insurer indorsed on the policy, “ shall visit those parts of the United States which lie south of the southern boundaries of Virginia and Kentucky, . . the policy shall be void, null and of no effectand where an indorsement is made by the insurer on such policy on the 24th of October, 1853, that “ the insured has permission to reside, and travel by land or by any of the regular sea steamers, in any part of the United States; to be north of the south bounds of Virginia by the 10th of July, 1854,” and where in pursuance of such permission and soon thereafter the insured goes to Appalachicola, Florida, and is there on the 11th of June, 1854, seized with sickness and is so sick as to be unfit and unable to travel and to start on his return to the north and so continues until the 20th of July, 1854, when he dies at Appalachicola, (distant six days travel from the south bounds of Virginia by the ordinary route and mode of travel); the insurers are not exempt from liability, on the ground that the insured’s being north of the south bounds of Virginia by the 10th of July, 1854, is a condition precedent, the performance of which is so essential to the continuing validity of the policy that its non-performance cannot be excused, though caused by the act of God. (Per Hoffman, J.)

2. Where a life policy contains such a condition, and has such a consent indorsed upon it subsequently, and where performance of the condition rests with the assured exclusively and is wholly personal, and he, while intending in good faith, to perform it literally, is disabled from performing it by the act of God, without.any default or neglect of his own; non-performance of the condition will not, alone, exempt the insurer from liability. (Per Hoffman, J.)

3. The consent indorsed on the policy should be so construed as to conform to the intent of the parties, to be collected from the terms of the whole agreement. (Per Bosworth, Oh. J.)

4. By a just construction of the policy and of such consent, the life insured, was insured against death resulting from disease contracted or first developed, on the 11th of June, 1854, at Appalachicola, (distant from the south bounds of Virginia six days of ordinary travel), provided the disease was of a character that made his death in the highest degree probable, if he attempted to return. (Per Bosworth, Oh. J.)

(Before Bosworth, Oh. J., and Hoffman, J.)

Heard, November 4;

decided, December 4, 1858.

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This is an appeal by the defendants from an order denying a motion made by them for a new trial.

This cause was tried before Mr. Justice Woodruff and a jury, on the 23d of April, 1858, when a special verdict was taken, as hereafter set forth, in favor of the plaintiffs, and for the sum of $3,486.41. A motion was made at Special Term, by the defendants, for a new trial, which was denied by an order of the 7th of May, 1858; and from that order the present appeal is taken.

The action was brought by the plaintiff, Charles N. Baldwin, as administrator of James J. Baldwin deceased, upon a policy of insurance dated October 23, 1849, issued by the defendants, on the life of the said James J. Baldwin, for seven years from the date of the policy, at the annual premium of $34.50.

The policy contained a clause by which it was “declared to be the true intent and meaning of this policy, and the same is accepted hy the assured upon the express conditions, that in case the said James J. Baldwin shall die upon the seas, &c., or shall, without the consent of this Company previously obtained and indorsed upon this policy, visit those parts of the United States which lie south of the southern boundaries of the States of Virginia and Kentucky, this policy shall be void, null and of no effect.”

The following indorsements in writing, were made on the policy, at the time of their respective dates, viz.:

“The party insured has permission to reside and travel inland in any part of the United States, or by any of the regular steamers, to be north of the south bounds of Virginia by the 10th day of July, 1850.

“Wm. Bard, Act'y. D. Thompson,

“P. R. Kearny, Sec'y. President.

“October 23, 1849.”

“In consideration of the extra premium of twenty-two dollars, the party insured has permission to remain in Appalachicola, Florida, until the 1st of August next, to be north of the south bounds of Virginia by the 10th of August, 1850.

“July 19, 1850.”

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“The party insured has permission to reside and travel by land, or by any of the regular sea steamers, in any part of the United States, to be north of the south bounds of Virginia by the 10th of July, 1851.

“ Wm. Bard, Acfy, D. Thompson,

“P. R. Kearny, Sedy. President.

“ October 19, 1850.”

“P. R. Kearny, D. Thompson,

“ Secretary. President.

“October 24, 1858.”

The complaint sets forth the making and delivery of the policy, and a copy of it, with the indorsements made thereon; avers that the annual premium was duly paid up to and including the 23d of October, 1858; that in pursuance of the consent of the 24th of October, 1853, and soon thereafter, the said James went to Appalachicola, Florida, and while there, and in June, 1854, “ the said James was seized with sickness, and became, and was so sick and ill in body, as to be wholly unfit and unable to travel, and to start on his return to the North, and he continued thus sick and unable until the day of his death aforesaid, and that by such sickness and illness, and by that cause alone, the said James was kept and detained at Appalachicola aforesaid, and prevented from leaving the said place during the whole period from the time he was so taken sick in June as aforesaid, up to the time of his death as aforesaid; that in consequence of such sickness and illness as aforesaid, it became, and was impossible for the said James to be north of the south bounds of Virginia by the tenth of July, 1854, and he was thus by the act of God prevented from being north of said south bounds of Virginia by the said tenth day of July; and said plaintiff further shows that it was not through or by means of any act, omission, neglect or default of the said James that he was not north of said south bounds of Virginia by the said tenth day of July, but his not being north of the south bounds by said

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day was caused solely by the act of God, as hereinbefore stated and set forth.”

The defendants, by their answer, “deny that it was impossible for the said James J. Baldwin to be north of the south bounds of Virginia by the tenth of July, one thousand eight hundred and fifty-four. And they deny that he was, by the act of God, prevented from being north of the said south bounds of Virginia by the said tenth day of July, in the year one thousand eight hundred and fifty-four. And these defendants further answering say, that it was through or by means of his own act, omission, neglect, or default, that the said James J. Baldwin was not north of said south bounds of Virginia by the said tenth day of July, one thousand eight hundred and fifty-four, and they deny that his not being north of the south bounds of Virginia by the said day, was caused by the act of God, as stated in said complaint.”

J. M. G. Hunter, and Samuel W. Spencer, and T. J. Eppes, all of Appalachicola, were examined, and gave evidence tending to establish the facts specially found by the jury. No other witnesses were examined.

The special verdict is as follows: “The jurors, after deliberation, rendered their verdict, by which they found as follows: That pursuant to the permission and consent mentioned in the complaint in this action, and that of October 24, 1853, and soon after the making of the same, James J. Baldwin, in said complaint mentioned, went to the State of Florida; that on or about the 11th day of June, A. D. 1854, the said James J. Baldwin, while at Appalachicola, in the said State of Florida, was seized with sickness, and became, and was so sick and ill in body as to be unfit and unable to travel, and to start on his return to the north, and he continued thus sick and unable until the 20th day of July, A. D. 1854, when he died at Appalachicola aforesaid; that by such sickness and illness, and by that cause alone, the said James J. Baldwin was kept and detained at Appalachicola, and prevented from leaving the said place during the whole period from the time he was so taken sick on the 11th day of June aforesaid, up to the time of his death, as aforesaid; that in consequence of such sickness and illness, the said James J. Baldwin was unable to be north of the

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south bounds of Virginia by the tenth day of July, 1854; and that his not being north of the south bounds of Virginia by'the tenth day of July, 1854, was caused solely by the facts aforesaid, and without default or neglect on the part of the said James; that the time required to travel from Appalachicola, in the State of Florida, to the south bounds of Virginia by the ordinary route and mode of travel, does not exceed the period of six days'; that due notice and proof of the death of the said James, and of his sickness aforesaid, were given and furnished to the defendants on or before the 12th day of October, 1855; that at the time of the commencement of this action the plaintiff was, and he still is, the lawful administrator of the estate of the said James J. Baldwin, deceased; that the said plaintiff is entitled to recover of and from the defendants the amount agreed to be paid in and by said policy of insurance; and that there is now actually due to the plaintiff from the defendants upon the said policy of insurance the sum of three thousand dollars, with interest from the 12th day of December, 1855, making in all the sum of three thousand four hundred and eighty-six dollars and forty-one cents.”

The defendants moved, at Special Term, for a new trial, which motion was denied. From the order denying it, the defendants appealed to the General Term.

William Betts, for appellants.

I. The facts, as proved by the plaintiff, do not sustain the allegation of the complaint, in the finding in the special verdict.

II. The special verdict does not find that it was impossible for the assured to have complied with the condition; but only, that on or about the 11th of June, 1854, he was seized with sickness, and thenceforward was unfit to travel, and to start on his return to the north; and that by such sickness alone he was prevented from coming north, without any default or neglect on his own part.

Supposing this to be correct, the testimony of Dr. Spencer shows the character of the prevention: that it was a mere moral coercion, acting upon his mind from the fear of consequences.

IH. Where a party, by his own contract, creates a duty or - charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.

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Therefore impossibility of performance on a special contract is not matter of defense to an action brought. (Co. Litt., 206, b; Litt., ch. 5, § 334; Paradine v. Jane, Aleyn, 26, 27; Shubrick v. Salmond, 3 Burr., 1637; Liddard v. Lopez, 10 East., 526; Monk v. Cooper, 2 Strange, 763; Hallett v. Wylie, 3 J. R., 47; Hadley v. Clark, 8 T. R., 259; Barker v. Hodgson, 3 M. & S., 269; Doctrine in Aleyn, ack’d, 7 Mass., 331 ; 2 Lord Raym., 1164; 1 Lev., 11;. 6 T. R., 719; Beatson v. Schenck, 3 East., 233; Lockyer v. Offley, 1 T. R., 260; Beebe v. Johnson, 19 Wend. R., 500; Warner v Hitchins, 5 Barb. S. C. R., 666; Harmony v. Bingham, 1 Duer R., 209; S. C., 2 Kern. R., 99; Com. Dig., Asst. G., 36 Cond. D., l; Platt on Covenants, 3 Law Lib., 1st Ser., pp. 260, 582; part 6, ch. 2, § 1; Angell on Com. Carr., § 294: W. W. Story on Contr., § 975; Chitty on Contr., Springfield Ed., 1842, p. 734, ch. 5, § 5.)

IV. The plaintiff avers impossibility of performance of a condition precedent, in order to lay the foundation of an action. As this forms no defense, still less can it be allowed to support an action.

A condition precedent must be performed strictly, nothing can excuse its performance. There is no case, dictum or authority known to appellants, which allows a plaintiff to set up impossibility in excuse for performance of a condition precedent.

Where a right of action depends upon the performance of a condition precedent, performance cannot be excused, unless it is dispensed with or prevented by the opposite party; although it has become impossible without any default on the part of the plaintiff, or even by the act of God. (Carpenter v. Stevens, 12 Wend., 589 ; Smith v. Briggs, 3 Denio, 73 ; Page v. Ott, 5 id., 406; Oakley v. Morton, 1 Kern., 21, 30; Com. Dig., ut supra; Burritt v. The Saratoga Mutual Insurance Co., 5 Hill, 188 , 191, 193; Farmers' Insurance and Loan Co. v. Snyder, 16 Wend., 488 .)

V. The plaintiff has no equity. The indorsements on the bond show that on a prior occasion, the assured had paid for an extension of one month, viz.: to the 10th August, 1850, the sum of $22fVIo) or more than seven times as much as the risk at the north. He knew that he was incurring a risk after the tenth of July, seven times as great as the usual risk; and the indorse-

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men! on the policy shows that the company and himself had agreed on that valuation of risk, and he assumed it himself.

VI. Judgment on the special verdict should be pronounced for appellants.

Luden Birdseye & LB. Yates Sommers, for respondent.

I. The policy was to become void, if the insured should, without the consent of the company previously obtained and indorsed upon the policy, visit those parts of the United States which lie south of the southern boundaries of the States of Kentucky and Virginia. The insured visited Florida pursuant to the following consent duly indorsed on the policy: “ The party insured has permission to reside and travel by land or by any of the regular sea steamers in any part of the United States, to be north of the south bounds of Virginia, by the 10th of July, 1854.” It is claimed by the defendants that this consent was conditional, -and that a failure to return at the time mentioned, rendered the policy void. They seek to give it the same effect that it would have, if the following words were added to it, viz.: “ And it is hereby declared to be the true intent and meaning of this consent, and the same is accepted by the assured upon the express condition, that if the said Lames L. Baldwin shall fail to return north of the south bounds of Virginia by the time aforesaid, this policy shall be void.”

We submit that the consent cannot thus be read, and that no such consequences could result from a failure to return, for the following reasons:

1. The condition, if any is annexed to the consent, was made for the benefit of the insurers, and there is nothing upon the face of it to show that the insured assented to the condition. They, therefore, cannot claim any benefit from it- except what is properly and fairly deducible from the language used. (1 Duer on Ins., § 6, p. 101.)

2. To create a condition it is usual to insert the word, “ condition, ” or “proviso.” Such words must be used as clearly show that the grant or license is not absolute; that something is excepted from its general operation, or that its use is dependent upon something to be done by the other party to the contract. And the words used, must not be repugnant or uncertain. Co.

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Lit.. 203, a, 203, b, 204; Bac. Abridg., Title, Condition (A); 3 Com. Digest, 83, Title, Condition. (A 2, A 6.)

3. The only words which can be relied upon as creating a condition in the consent, are the words, “ to he north of the south bounds of Virginia by the 10th of July, 1854.” This language is altogether too indefinite and uncertain to create such a condition as is contended for. For aught that appears upon the face of the consent, this language was used by the insurers merely as expressive of a determination that the insured should return at the time specified. They do not say that the policy should be void if he did not return. If they intended it to have that effect, they should have so declared. The language is that of their own selection. It must be presumed that they said all they intended. The words are merely words of limitation. (Bacon’s Abr.', Title, Condition, Introduction.)

4. If it is claimed that the language of the consent is to be construed with reference to the policy, we submit that it cannot be so construed for the purpose of creating a condition out of words, which, standing alone, do not amount to one. To constitute a valid condition, there must be a distinct and independent sentence expressly specifying the limitation or proviso with reference to which the grant is made, and it must not depend upon another sentence or instrument for its effect. Bacon’s Abridg., Title, Condition. (A.)

5. The construction contended for would make the consent,1 in its nature, a warranty. Now, it is well settled that a warranty cannot be created by construction. It must either appear in express terms, affirmative or promissory, or must necessarily result from the nature of the contract. It must, therefore, appear on the face of the policy in order that there may be unequivocal evidence of a stipulation, the non-compliance with which, is to have the effect of avoiding the contract; or, if on another part of the same sheet, or on a sheet physically attached, the stipulations must, of themselves show, that they were intended to be incorporated in and form a part of the contract. If they appear in another paper, they must not only be referred to in the policy itself, but must be referred to in such a manner as clearly to show that they were intended to be incorporated in

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the policy and form a part of its conditions. (Jefferson Ins. Co. v. Cotheal, 7 Wend., 80 ; Reynolds on Life Ins., 92.)

6. But a reference to the policy, to ascertain what construction should be put upon the words in question, would not help the defendants. For the policy nowhere provides that it shall be void, if the insured fails to return within the time specified in the consent. The consequences of a visit without consent, are specified, but the policy is silent as to the consequences of a failure to return, in case of a visit by permission. There is, therefore, nothing in the policy which will aid in creating the condition contended for.

7. Ho penalty is fixed for a failure to perform this provision of the consent. The insurers have distinctly specified the cases in which the policy should become void. A failure to comply with the requirement in question is not one of these cases. It is no part of the original contract that, if the insured goes beyond the specified limits with consent, he shall return within a given time, or forfeit the policy. If the defendants have any right to repudiate their contract, and declare the policy at an end, because the insured did not return within the specified time, ' such right must be derived from the terms of the consent itself. Ho such right is conferred by the consent.

(a.) The consent does not, in terms, attach any penalty to a non-compliance with its terms. It does not say that the policy shall be void, if this provision is not fulfilled. For aught that appears from the language used, some other penalty may have been intended than that of a forfeiture of the policy.

(6.) If the condition did confer such a right, then a new and independent proviso would be created not within the terms of the policy.

(c.) To create such new proviso would be a modification of the original contract.

(d.) To modify the original contract, it would be necessary to have the consent of all the contracting parties, and no consent of the insured is shown, or is properly inferrible, either from the terms of the writings, or the conduct of the parties.

8. The consent, if capable of a construction which makes it a warranty or condition, is also capable of another reading, which will not result in a forfeiture. Ho language capable of such a

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double reading will ever be held to constitute a warranty or condition, the breach of which works an absolute forfeiture.

9. But the parties have put a construction on this language, which shows that neither of them considered it as constituting a warranty or condition. The consent of October 23, 1849, is in the same form as that of October 24, 1853, under which this question arises. The consent of July 19, 1850, shows that the insured had remained in Florida till after July 10, 1850, and gave him permission to remain there still longer. Thereby clearly conceding that the policy was not avoided absolutely, by the mere failure to be north of the south bounds of Virginia by the time limited in the consent for that purpose. The consent of October 24, 1853, was accepted by the assured in the light of that construction put on the same consent by the insurers. And there can be no pretence that the assured, in accepting this consent, could have intended to bind himself by it as a warranty or condition.

II. Giving to the consent the full effect claimed for it by the defendants, the plaintiff would still be entitled to recover, because the insured was excused from performing the condition. The jury have found affirmatively, that he was taken sick on the 11th of June, and continued ill and wholly unable to travel, from that time to the time of his death, which occurred on the twentieth of July following; that his failing to comply with the condition was without default or neglect on his part. He was, therefore, prevented by the act of God, from performing the condition, and the act of God will excuse performance.

1. The very nature of the stipulation is such, that the parties must have intended that a compliance with the condition should be dependent upon the physical power of the insured to perform it. It must receive a reasonable construction, and one which will not enhance the risk beyond what was fairly contemplated by the insurers. If the condition is to be performed, at all hazards, it would increase the risk, because the very act of performance might'cause the death of the insured, and thus result in loss to the insurers. It cannot be that they intended to impose a condition which might render a loss inevitable.

2. The fact that consent is required to authorize the visit, implies that it will be attended with danger, and may result in

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an inability to perform the condition. To give it any other construction would be to assume that the insured actually contracted to do an act which, at the time, he knew would or might be beyond his power to perform.

3. The covenant relates to the health and life of the party making it, and must therefore be presumed to have been made with reference to the physical ability of the covenantor to perform, and to the contingencies and hazards attaching to human life.

4. But whether the parties actually intended that performance of the condition should depend upon the physical capacity of the insured or not, would make no difference, for the law would excuse performance of such a condition as this where performance had become impossible by the act of God. Bacon says, that if a man 'covenant to build a house by a certain day, and the plague is there before the day, and continues there till after the day, this shall excuse him from the breach of the covenant for the not doing thereof before the day, “for the law will not compel a man' to venture his life for it." (Bacon’s Abridg., Title, Condition, Q. 1.) This has always been the rule in relation to covenants dependent upon the life or health of a party. (The People v. Manning, 8 Cow., 298 ; Carpenter v. Stevens, 12 Wend., 589 ; Browning v. Hanford, 5 Denio, 586 ; 3 Comyn’s Dig., Title, Condition, D. 1; 2 Co. Litt., 206, a, b.)

5. The case in question is clearly distinguishable from that of a common carrier, or other contractor, who covenants to do an act relating to property, for in such a case it is in the power of the covenantor to provide against the consequences of accident. He may provide against the consequences of his own sickness. But in this case the insured could not have provided for a performance of the condition, in case of his own inability to perform it.

III. But it may be said, that although the act of God is a sufficient excuse for non-performance, where it is set up as a defense to an action, yet it is not, where performance is a condition precedent to a right of action. To this we reply that the return of the assured at the time specified in the consent is nowhere made a condition precedent to his right to recover. We have already shown that no such stipulation is contained in the policy itself, and it is clear that none is contained in the consent.

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IV. The verdict of the jury was warranted by the evidence, and therefore, if either of the foregoing positions are correct, the motion for a new trial should be denied.

—I agree with the counsel of the defendants that the consent of October 24, 1853, must be read in connection with the provision in the policy, which it affects. The case then is thus presented. ' The life of the plaintiff’s intestate was insured by the contract, while he remained within certain territorial limits. If be went beyond those limits without consent, the policy was to be void. Then the consent modified the restriction, permitted him to go within the before prohibited limits, but required that he should return from within them, by the 10th of July, 1854.

I treat then the legal scope and import of the contract as stringent as it can possibly be treated, when I regard it, as if on the twenty-third of October, the parties had made the insurance, giving liberty to the assured to go and remain south of the specified bounds down to the 10th of July, 1854, and declaring that the policy should be void if he was not north of those bounds by that day. The license then would be. accompanied with a provision or stipulation, or condition, whatever may be the proper term; and so here, the relaxation of the original prohibition is accompanied with the same modification attached to it.

The learned counsel of the defendants insists that there is a condition precedent here, which must be literally and absolutely fulfilled, before a recovery can be had. He must, upon the theory he advocates, sustain a proposition like this; that the agreement was, that the company would be liable, if death occurred within the specified limits, between the 23d of October, 1853, and the 10th of July, 1854; or beyond those limits at any other period of the year; but in no other event. The occurrence of death, under one or the other of these contingencies, was the casus foederis, a condition precedent to any liability.

That the whole instrument, the policy and indorsement taken together, admits of such a construction, may not be doubted; neither can it be questioned that no particular form of words is necessary to constitute a condition precedent. “ It is dependent upon the intention of the parties, to be collected in each case

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from the terms of the agreement itself, and from the subject matter to which it relates.” (Per Timbal, Ch. J., 2 Man. and Gran., 266.)

Such cases as Graves v. Legg, (25 Eng. L. and Eq. Rep., 552,) Kearney v. The West Granada, &c., Co., (38 id., 327,) and Inman v. The Western Fire Ins. Co., ( 12 Wend., 452 ,) are striking examples of conditions precedent deduced from words, portions of a sentence, even parenthetically used, and far from wearing the form of a condition or proviso.

. But I do not think that even in the case I have supposed, the construction of the agreement contended for as above stated, is a necessary one. The distinction is considerable, between language defining the case of a liability and excluding expressly every other case, and words simply declaring that unless a party was beyond a certain place by a given day, the assurers should be exempt. I think the consent is to be regarded as a qualification, and a qualification upon terms. Assume that those terms substantially amount to a proviso, or condition, it is not one, inflexible, arbitrary and incapable of exception, or of anything short of literal performance. Full license is accorded to be within the before excluded limits for the period mentioned. There is an obligation imposed upon the party to return, there is an implied stipulation on his part to return, treat it as in substance a condition that he should return; and yet there is not the absolute exclusion of every possible excuse for not returning by the day fixed.

If so, we come to the question whether the facts found by the special verdict are sufficient to dispense with the literal fulfillment of what is now treated as a condition.

It admits, indeed involves, the idea of an intention to return within the period prescribed. It is found that Baldwin’s not being north of the boundary was solely caused by the illness which resulted in his death. And we see that when his inability to travel commenced, he had twenty-nine days to perform a journey which required but six.

In the case of Carpenter v. Stevens, ( 12 Wend., 589 ,) these propositions are laid down: 1st. “ That where the condition of a bond or recognizance is possible, at the time of making it, and before it can be performed, becomes impossible by the act of God or of

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the law, or of the obligee, there the obligation is saved, as if the condition is, that a man shall appear at the next term of a Court, and before the day he dieth, the recognizance is saved.” It is as if the duty had been fulfilled. 2d. “ That where a right of action depends upon the performance of a condition precedent, performance cannot be excused, unless it is dispensed with or prevented by the opposite party, although it has become impossible without any default on the part of the plaintiff, or even by the act of God. The rule is different, where the impossibility of performance is set up as matter of defense.”

The case was this: The defendants had given a replevin bond to the sheriff for the return of a mare taken by him. Judgment of return was given for the defendants in the replevin suit. In an action on the bond, the plea was, that the mare had died from inevitable accident, and without the fault of the obligors. Judgment was given for the defendants. Lord Coke’s authority is cited, (1 Inst., 206, a, b).

The case of Williams v. Lloyd, (William Jones, 179,) is to the same point. A horse was delivered to the defendant, upon an undertaking to" return it on demand. It was pleaded that the horse had died before request made, and the plea was held good.

So in The People v. Manning, ( 8 Cow., 297 ,) the action was upon a recognizance for the appearance of a sheriff arrested on attachment, at the next term of the Court, viz., the third Monday of February ensuing. The plea was, that on the 1st of February the sheriff was taken violently sick; was confined to his house and bed; and could not be removed therefrom, and continued sick until he died on the 22d of March. It was held, that the recognizance was like a bond with a condition, a compliance with which had become impossible by the act of God. And in such a case, the performance is excused; no action lies. Coke upon Littleton, (206, a,) is cited. Judgment was rendered for the defendants on demurrer to the plea.

For the second proposition stated in Carpenter v. Stevens, the following cases are cited: Moakley v. Riggs, ( 19 John., 69 ; Wood v. Worsley, (2 H. Black., 574; S. C, 6 T. R, 710; Routledge v. Burrell, 1 H. Black., 258; Taylor v. Bullen, 6 Cow., 624 ; and Inman v. The Western Insurance Company, 12 Wend., 452 .)

There is nothing in the case of Moakley v. Biggs, but a sug

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gestión that it may be doubted whether the engagement by one to perform an act on the previous performance of another act by the other, can be enforced without showing the previous act done; or that its performance was dispensed with or prevented by him who was to perform the subsequent act. The decision rested upon the neglect to do a previous act, which it had been in the power of the party to perform for some time after performance would have discharged him.

In Taylor v. Bullen, ( 6 Cow., 624 ,) Taylor and Otis had warranted the collection of a promissory note, and to pay all costs of suits legally commenced for its recovery. One Stroud, was the maker. The note was to run two years. Stroud died before its maturity. In an action on the guaranty the plea was, that he died seised and possessed of large real and personal estate. It was held that the condition had not been complied with, as the heirs had not been sued. Chief Justice Savage says: “Here was a condition precedent; that condition was not' confined to a prosecution of Stroud himself. Had it been so, then indeed the plaintiff would possibly have'been excused, as that was rendered impossible by the act of Grod, the death of Stroud. Even this however may be doubted.” He then cites the language of Spencer, Oh. J., in Moakley v. Riggs.

Wood v. Worsley was the case of a condition in a policy ot insurance, that a certificate of the minister and church wardens to a certain fact should be produced. It was not procured, and was refused without cause. It was held essential.

Routledge v. Burrell, ut supra, is to the same point. And this decision was recognized and followed in a very similar case in Maine. (Leadbetter v. The Ætna Ins. Co., 1 Shepley, 265.)

So in Campbell v. French, (cited by Oh. J. Savage, 6 T. R., 200,) the condition was to pay bills if returned protested for non-payment, and they were returned protested for non-acceptance. It was held, not to be complied with.

In these cases there was no impossibility or insuperable difficulty, in literally performing the agreement; and strong reasons existed, resulting from the nature of the contract, for requiring a strict fulfillment. Those reasons are clearly set forth in the opinions in Wood v. Worsley, particularly in that of Mr. Justice Lawrence. . Inman v. The Western Insurance Co., ( 12 Wend.,

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452 ,) was of the same character. The policy there required notice of the loss to be given forthwith. It was not given for thirty-eight days after the fire occurred.

In the People v. Bartlett, ( 3 Hill, 570 ,) Chief Justice Nelson, states broadly, that it is a general principle of law, that where the performance of the condition of a bond or recognizance has been rendered impossible by the act of God, or of the law, or of the obligee, the default is excused. He cites Bac. Abridg., Title, Condition, Vin. Abr., Ibid, and the cases.

There is another class of cases of which Harmony v. Bingham, ( 1 Duer, 209 , 2 Kernan, 99,) is a marked example. Under a contract to transport and deliver goods at a certain place, by a certain day, without any exception, the obligation is absolute; and a defense that unavoidable accident, such as freshets in a river, prevented performance is unavailable. The rule as expressed in Paradme v. Jane, (Aleyn, 26,) is stated as the law, and need not be repeated.

When the case of Harmony v. Bingham was in the Court of Appeals, the learned Judge observed, “ It is not found that the thing covenanted to be done could not by any means be accomplished ; and there is no fact from which we can draw any such inference.”

. Many of the leading authorities will be found to have in them this important element, that there did exist means to accomplish or meet the condition. Such was the case in Oakley v. Morton (1 Kern., 25); in Beatson v. Schenck, (3 East., 233); in Inman v. The Western Insurance Co., ( 12 Wend., 452 ); and in the strong case of Beebe v. Johnson (19 id., 500 ).

It may also be useful to advert to the series of decisions in the slaveholding states, upon bonds given for the hiring of slaves for a particular period. It is held in many of them, that the death of some of the slaves within the period, is a ground for an abatement of the sum to be paid; in others, a different rule prevails. The authorities are fully stated in Harman v. Herring, ( 25 Miss. Rep., 135 ,) in which it was held that no deduction should be made. The opposite cases proceed on the ground that the act of God had interfered to prevent the entire fulfillment of a contract. (See also Mozely v. Baker, 2 Sneed’s Rep., 370.)

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The cases from 6th and 8th Cowen before cited, and the rule of law which they recognize and apply, have not as far as I am aware, been overruled or controverted. They establish, that an inability, short of absolute impossibility, may exempt a party from his liability under a contract, if this inability result from the act of God. The rule laid down in the other cases is not then imperative, and without exception or qualification. In some instances at least, that which amounts to an act of God, creates an exception.

After a careful examination, I have not been able to find a decision in which the distinction suggested by Chief Justice Spencer, has been acted upon in a case similar to the present; where, though the events, amounting to an act of God, would have constituted a defense had Baldwin or his estate been in the position of a defendant, they form no ground for supporting a claim. • Had there been a penalty to be paid by the assured, for an absence beyond the day, it is clear he would have been exempted from it. I do not see any satisfactory reason for the distinction referred to, in a case like this. Had the condition been so positive and explicit as to preclude any exception, my views would have been different.

But the language of the provision admits of the reasonable construction, that absolute inability to return by the day prescribed, from accidents consistent with the attempt or fixed intention to return, may be treated as a contingency within the view of the parties, and the contract be subjected to such contingency. If it be urged, why then did not the assured provide for it, the reply may be, why did not the insurers use language which would preclude the possible exception?

My conclusion is that in a life policy, where the performance of such a condition or provision as exists in this case, rests with the assured exclusively, which does not admit of his employing any agency, but is wholly personal, and he is disabled from performance by the act of God, without neglect or default of his own, but with the intention to perform literally, the condition is saved, and the insurers are liable.

I consider also that the death which here took place, was a death from the act of God. “It was something in opposition to the will and act of man.” (Lord Mansfield, Forward v. Pittard,

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1 T. R., 29; Oakley v. The Pori of Portsmouth, &c., 84 Eng. L. and Eq. R, 530.)

I have considered this case precisely as if in the license or consent of the 24th of October, 1853, the words had been “provided,” or “ upon condition that he be north of the south bounds,” &c. I think the order should be affirmed.

—James J. Baldwin, the insured, was taken sick, at Appalachicola, in Florida, on the 11th of June, 1854. If he had died there, before the tenth of the following July, of the disease with which he was attacked on the eleventh of June, the defendants would be liable on the policy. So too, if he had started north, in time, and so as to have passed north of the south bounds of Virginia by the 10th of July, and had died north of such bounds on the eleventh of July, the insurers, on the principies contended for by them on the argument before us, would have been liable, even though such a journey, performed under such circumstances, diminished the insured’s chances of recovery.

Under this construction of the license granted to the insured, the latter, in order to keep the policy in force, if taken sick in Florida on the 11th of June, must start north, at whatever peril to his life; in time to be and succeed in being north of the south bounds of Virginia, a living man, by the 10th of July. If he does not, this policy would become void. And this consequence follows; although there be the highest moral certainty, that if he performs the journey, his disease will be, thereby, so aggravated that his death will be inevitable, and the company made liable to pay the sum insured. Hence, if that is the proper construction of the license or consent, the insured, if taken suddenly ill, when he has five times as long a period remaining as is ordinarily required to perform the journey, must, although there may be a reasonable prospect of his restoration to health by a day subsequent to the tenth of July, if he continue where he is; either forfeit his policy if he remains there, or earn the sum insured by terminating his life, before the tenth of July south of the south bounds Virginia, or north of them immediately thereafter, by reason of the rash and hazardous attempt to perform such journey.

In other words, under Such a state of facte as the evidence in

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this case established, in order to keep the policy in force, the insured must do acts which will unavoidably subject the insurers to a loss of the sum insured, and thus literally “ die by his own hand,” in which event, the policy, by its terms, becomes .void.

If the insured, when taken sick, had been north of the south bounds of Virginia, but absent from his home, and the nature of his disease and its aggravated condition were such, at the. time, as in the judgment of those conversant with such subjects, death would inevitably ensue if he should attempt to journey home; while his recovery would be, in the highest degree, probable if he continued wheré he was, and submitted to the regimen prescribed by competent professional advisers, and he. should nevertheless, against such advice, persist in the . attempt to journey home, and by reason of it, should die on the way, his conduct would fall within the spirit of the condition last referred to, though it might not within the letter of it, as it has been judicially interpreted. (Breasted v. The Farmers' Loan and Trust Co., 4 Seld., 299; Parsons Merc. Law, 544, note 1.)

On. such a state of facts, it would be difficult to say that, the death of the insured was not caused by his own default or neglect.

As the policy in question is one upon the life of the deceased, I think the terms of the license or consent should be so construed as not to require him to attempt to return north of the south bounds of Virginia by the tenth of July, when,' in consequence of sickness suddenly and unexpectedly contracted or developed, an attempt to do so, would be certain, so far as the human mind can foresee results, to produce the, death of the insured.

By the ordinary route and mode of travel, hé Could have passed from the place, where he was taken sick, north of those bounds in six days. Excluding the eleventh of June, on which day he was taken sick, and the tenth of July following, ' there were twenty-eight days remaining.

He was taken and became “so sick and ill in body as to be unfit and unable to travel, and to start on his return home,” and continued so until he died.

I do not think the consent or license should be so construed as to require him to start in that condition, with the certainty

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that, if he did start, he would die, in consequence of his sickness and of such acts on his part south of the south bounds of Virginia before the tenth of July, or north of those bounds immediately thereafter.

That, it could not have been the intention of the parties to this contract that, the insured, under the state of facts established by the special verdict, should do acts which would make his own death inevitable, in order to a proper performance, on his part, of his duty, as prescribed and declared in such license or consent..

That, by a - just construction of the policy, he was insured against death resulting from a disease contracted or first developed on the 11th of June, 1854, at the place where he then was, if the disease was of a character that his death was in the highest degree probable, if he attempted to travel.

And that, his being north of the south bounds of Virginia by the 10th' of July, 1854, is not a condition precedent to the right to maintain an action upon the policy in case of his death, in such sense that, if in consequence of sickness, discovered on the eleventh of June, (at a distance from such bounds of six days ordinary travel,) and so severe that his death will be in the highest degree probable if he attempts to travel, the insured must endeavor to reach these bounds, with the certainty, that if he does, he will die before the tenth of July and before crossing them, or as soon as he has passed north of them, either on the tenth, or immediately thereafter. The consent or license, should be so construed as to conform to the intent of the parties, to be collected from the terms of the whole agreement, and the subject matter to which it relates.

I. think, it was the intent of the parties that, the defendants should be liable, in the event that has happened, and on its happening under the circumstances, under which it is proved to have, occurred. :

The order should be affirmed.

Order affirmed.