The condition is one of which performance could be waived and waiver will be inferred by the court. GWYNNE J.-The first condition of the policy was quite sufficient to entitle the company to claim that the policy was void for non-payment of the premium.
It was paid by a promissory note which enabled the policy to issue, but it was agreed that if the note was not paid the policy was to be void, or, if not void, voidable and I do not think it would aid the appellant to hold that it was only voidable.
I agree with the judgment of the Chief Justice of the Court of Appeal and would dismiss this appeal with costs.
J.-I am also of opinion that the appeal should be dismissed.
KING J.-The note was taken as conditional payment of the premium and until it matured the policy was valid, but when it matured and was not paid it came within the first condition and made the policy void. 'V think the term void in that condition means voidable. The stipulation was for the benefit of the company who had a right to elect whether it should be void or not. Then, was anything done to show an intention on the part of the company that the policy should continue notwithstanding the breach of the condition ? I cannot see that what was done was equivalent to an expression of any such intention.
The insured had had eleven months of protection under the policy and I cannot see that the request for payment of the note would operate as a waiver of the forfeiture.
I agree in the appeal being dismissed.
Appeal dismissed with costs.