Where the assured has received the statutory notice, containing in the words of the statute a statement as to the effect of non-payment of the premium, the fact that a mistaken additional statement as to the forfeiture of the policy by reason of such non-payment, was contained in the notice is not such a failure to comply with the terms of the statute as will prevent a forfeiture of the policy where it appears that after default the assured received another notice in regard thereto, had an opportunity to reinstate the policy by payment of the premium, within a specified time according to the policy, but made no payment for over three years, and did not ask for any extension of time, and the company had noted the, forfeiture on its books.

MRS. MEINERT, the plaintiff below, filed in the Circuit Court of the United States for the District of Indiana her amended complaint, by leave of court, against the petitioner, the insurance company, to recover $5,000 on a certain policy of insurance for that sum on the life of her deceased husband, William Meinert. She obtained judgment or the trial before a judge without a jury, which was affirmed in the Circuit Court of Appeals. 127 Fed. Rep. 651. This court allowed a writ of certiorari to review that judgment and the case is now here upon the return to that writ.

The material facts are the following: The company, on the fifth day of March, 1896, issued the policy in suit in consideration of the payment of quarterly premiums of $25.25, each on or before the fifth days of March, June, September and December in each year for five years; after that the payments were to be $64.25 for the following fourteen years or until the previous death of the insured, should his death occur before the expiration of the specified period. Four quarterly payments of $25.25 each were made, the last one having been made on or before December 5, 1896. No other instalment of premium was ever paid. The assured died on the twenty-fourth day of March, 1900. Over three years and three months had passed, therefore, since the last payment of any premium. Meinert, up to the time of his death, lived at Evansville, Ind.

On the fifteenth day of February, 1897, the company sent him by mail a written notice as follows:

"Nederland Life Insurance Co. (Ld.).

"Established in Amsterdam, (Holland), 1858.

"United States Branch, 874 Broadway, New York City. "Pursuant to Chapter 690 of the Insurance Law of 1892 of the State of New York, you are hereby notified that the quarterly premium of $25.25 on policy No. 58,021 will fall due on the 5th day of March, 1897, if the policy be then in force. The conditions of your policy provide that unless such premium shall be paid at the United States Branch Office of the company, or to a person authorized to collect such premium holding the company's receipt therefor, by or before that date, the policy and all payments thereon will be forfeited and void, except as to the right to a cash surrender value or paid-up policy.

"L. I. DUBOURCQ,

"President of the U. S. Branch.

"If payment is made to the company directly it can be done by valid draft, check, postal or express money order made out to the order of the United States Branch of the Nederland Life Insurance Co. (Ld.)."

This notice was duly received by the assured February 16, 1897.

On Saturday, April 3, 1897, the company sent him by mail another notice, as follows:

"Nederland Life Insurance Co., Limited. "Established 1858, Amsterdam, Holland,

"United States Branch, 874 Broadway, New York.

"William Meinert,

"New York, April 3, 1897.

"217 Law Ave., Evansville, Ind.

"Dear Sir: The premium on your policy which fell due on the 5th March has not been paid and the policy is therefore

Argument for Petitioner.

199 U. S.

null and void. I beg to inform you, however, that if the same is paid within ten days your policy will be reinstated. "L. I. DUBOURCQ, President.

"Policy No. 58,021."

This notice was received by him in due course of mail on Monday, April 5, 1897, but he never acknowledged its receipt and never took any steps to have the policy reinstated. On April 22, 1897, the company entered on the appropriate records of its office the declaration that the policy was forfeited and lapsed for failure to pay instalment of premium.

It was agreed between the company and the assured that the provisions printed or written upon the back of the policy were to be taken as part of it, as fully as if they were set forth at length on its face, and signed by the parties. One of them was article 2, which reads as follows:

"In case of non-payment of any annual premium or instalment thereof within thirty days after the same shall fall due, this policy shall be null and void, subject, however, to provisions as to cash surrender and paid-up policy values. The company will, however, as a matter of favor and not of right, mail notice to the insured or the assignee at the last address furnished by him or them to the company, to the effect that the policy may be reëstablished by the payment of the annual premium or instalment thereof still due, within ten days after mailing notice."

The application for the insurance, which by agreement was also made part of the contract, provided that "this application shall be governed by the laws of the State of New York, the place of said contract to be the principal office in the United States of said company in the city of New York."

Mr. John L. Cadwalader, with whom Mr. George Coggill and Mr. George W. Wickersham were on the brief, for petitioner: The premium notice sent to Meinert by the petitioner was in conformity to the New York statute, and the cases relied

199 U.S.

Argument for Respondent.

on by the Circuit Court of Appeals do not sustain the judgment. See Mutual Life v. Phinney, 178 U. S. 327.

Section 92 of the insurance laws of New York is not applicable to this case but the place of the contract was the State of Indiana. See Mutual Life Ins. Co. v. Hill, 193 U. S. 551; Equitable Life Assurance Soc. v. Clements, 140 U. S. 226; Mutual Life Ins. Co. v. Cohen, 179 U. S. 262; Mutual Life Ins. Co. v. Hathaway, 106 Fed. Rep. 815, to the effect that the statutory provision of New York in reference to forfeitures has no extra-territorial effect, and does not of itself apply to the contracts made by a New York company outside of that State. Phelan v. N. W. Mutual, 113 N. Y. 147; Schad v. Security Mutual, 155 N. Y. 640; Hicks v. Nat. Life Ins. Co., 60 Fed. Rep. 690; Prov. Svgs. Life v. Nixon, 73 Fed. Rep. 144; Equitable Life v. Nixon, 81 Fed. Rep. 796; Born v. Home Ins. Co., 81 N. W. Rep. 676; Smith v. Continental Ins. Co., 79 N. W. Rep. 126, relied on by respondent as to the notice and its effect, all are distinguished, and the decision in N. Y. Life Ins. Co. v. Dingley, 93 Fed. Rep. 153, is clearly wrong.

The insured's acts in connection with the policy show that he abandoned it. Lone v. Mutual Life Ins. Co., 33 Washington, 577; Cooley's Const. Lim., 6th ed., 214; Mutual Life Ins. Co. v. Hill, 193 U. S. 551, 560; Mutual Life Ins. Co. v. Phinney, 178 U. S. 327, 344. De Frece v. National Life Ins. Co., 136 N. Y. 144; Baxter v. Brooklyn Life Ins. Co., 119 N. Y. 450; Carter v. Brooklyn Life Ins. Co., 110 N. Y. 15, do not apply to this case.

Mr. G. K. Denton, with whom Mr. Albert J. Beveridge and Mr. Larz A. Whitcomb were on the brief, for respondent:

The repudiation of the contract by the company before the expiration of the time for the payment of the premium, excused the insured from thereafter making a tender of the same. See authorities collected 4 Ency. Pl. & Pr. 630, note 1. See also Hanna v. Phelps, 7 Indiana, 21; House v. Alexander, 105 Indiana, 112; Tobin v. Young, 124 Indiana, 512; Turner v.

Perry, 27 Indiana, 163; Blair v. Hamilton, 48 Indiana, 32; Willcuts v. Northwestern Mutual &c. Co., 81 Indiana, 312; Phoenix Ins. Co. v. Hinesley, 75 Indiana, 1.

This principle has been applied to the payment of premiums in the following cases: Manhattan Life v. Smith, 44 Ohio St. 156; Sourwine v. Supreme Lodge K. of P., 12 Ind. App. 447; Heinlein v. Ins. Co., 101 Michigan, 250; Union Central Life Ins. Co. v. Caldwell (Ark.), 58 S. W. Rep. 355; National Mutual v. Home Benefit (Pa.), 37 Atl. Rep. 519; Guetspow v. Mich. Mut. (Wis.), 81 N. W. Rep. 652; Supreme Lodge v. Davis (Col.), 58 Pac. Rep. 595; Supreme Council v. Bailey (Ky.), 55 S. W. Rep. 888; Dennison v. Masonic Society, 69 N. Y. Supp. 291; TeBow v. Wash. Life, 69 N. Y. Supp. 289, and authorities cited; Sullivan v. Industrial Ben. Assn., 26 N. Y. Supp. 186.

Payment or tender of payment of premiums is not necessary where the insurers have already declared the policy forfeited or done any other act which is tantamount to a declaration on their part that they will not receive it if tendered. May on Insurance, § 358; 19 Am. & Eng. Enc. of Law, 2d ed., 57.

The notice was not in compliance with the New York statute. Phelan v. N. W. Ins. Co., 113 N. Y. 147; McDougall v. Prov. Savings Society, 135 N. Y. 551; N. Y. Life v. Dingley, 93 Fed. Rep. 153. There was no abandonment of the contract. Strauss v. Mut. Reserve, 36 S. E. Rep. 352; S. C., 39 S. E. Rep. 55; A. L. of H. v. Black, 123 Fed. Rep. 650; Ebert v. Mutual Reserve, 83 N. W. Rep. 506; Met. Life Ins. Co. v. Bowser, 20 Ind. App. 557; Taylor v. Mutual Reserve, 97 Virginia, 60; Phoenix Ins. Co. v. Hinesley, 75 Indiana, 1.

MR. JUSTICE PECKHAM, after making the foregoing statement, delivered the opinion of the court.

The judgment in favor of the plaintiff below for the recovery of the amount found due upon the policy in question is based on the above-mentioned facts, the courts holding that the policy was not forfeited but was in full force because of the