Messrs. H. E. Paine and B. F. Grafton, for appellee. Mr. Chief Justice Waite delivered the opinion of the court: payment, the parties may contract for either | Mr. Edwin B. Smith, Asst. Atty Gen., for rate, and the contract will govern. Miller v. appellants. Tiffany, 1 Wall., 298 [68 U. S., XVII., 540]; Depau v. Humphreys, 8 Mart. (N. S.), 1; Chapman v. Robertson, 6 Paige, 627, 634; Peck v. Mayo, 14 Vt., 33; Butters v. Olds, 11 Iowa, 1. The bonds were made with reference to the law of Iowa as to interest, and not to that of New York, where interest above seven per cent. is deemed usurious and avoids the whole contract. The obligor is a municipal corporation of Iowa, the bonds were deliverable in that State, and proceedings to enforce their payment could only be had in courts sitting there. With reference to interest on the coupons after their maturity, that can be allowed only at the rate of six per cent. under the law of Iowa. See, as to coupons drawing interest, Au rora v. West, 7 Wall., 82 [74 U. S., XIX., 42]. It follows, from the views expressed, that the plaintiff was entitled to judgment for the amount of the four bonds and the coupons in suit, with interest on the bonds after maturity until judgment at the rate of ten per cent. a year, and with interest on the coupons after their maturity until judgment at the rate of six per cent. a year; and that the judgment should draw interest at the rate of ten per cent. a year upon the amount found due on the bonds, and at the rate of six per cent. a year upon the amount found due on the coupons, including the costs of the action. The judgment of the Circuit Court must, there fore, be reversed and the cause remanded, with directions to enter a judgment for the plaintiff in conformity with this opinion; and it is so ordered. I, James H. McKenney, Clerk of the Supreme Court of the United States, do hereby certify that the foregoing is a true copy of the opinion of the court in the cases of Charles T. Cromwell, Plff, in Err., v. The County of Sac, State of Iowa; and the County of Sac, Plf. in Err. (cross writ), v. Charles T. Cromwell. mains upon the files and records of said Supreme Nos. 1006, 1023, October Term, 1877, as the same re Morrison, the appellee, a lieutenant in the Tenth Regiment of Cavalry, was appointed regimental quartermaster, and his appointment approved June 30, 1875. On the same day, Hunt, a second lieutenant in the regiment, was promoted to be first lieutenant in the place of Morrison, "appointed regimental quartermaster." On the 22d October, 1875, Morrison, “in addition to his other duties," was "assigned to duty as assistant commissary of post;" and, by virtue of that appointment, served as acting assistant commissary from November 1, 1875, to and including February 28, 1877. He has been paid in full as quartermaster, but nothing in addition as acting assistant commissary. This action is brought to recover at the rate of $100 a year for the extra service. The single question presented in this case is, whether since the Revised Statutes, a regimental quartermaster, serving also as acting assistant commissary, is entitled to additional pay on that account. By section 1102, Revised Statutes, each regiment of cavalry is to have among its officers one quartermaster, who is to be an "extra lieutenant, selected from the first and second lieutenants of the regiment." Such has been the law since 1866. 12 Stat. at L., 599, sec. 11; 14 Stat. at L., 332, sec. 3. The selection is made by the colonel or permanent commanding officer of the regiment, subject to the approval of the Secretary of War. Until 1870, the pay of regimental quartermasters was "ten dollars per month in addition to their pay in the line," and forage, 2 Stat. at L., 482, sec. 24; but the Act of July 15, 1870, 16 Stat. at L., 320, sec. 24, provided that the "pay In testimony whereof I hereunto sub- of regimental quartermaster shall be $1,800 [a [L. S.] Supreme Court, at the City of Washing-year]; the pay of first lieutenant, mounted, Court. scribe my name and affix the seal of said ton, this 20th day of March, A. D. 1885. Cited-96 U. S., 631; 103 U. S., 762; 106 U. S., 592; 107 U. S., 542; 15 Blatchf., 344, 345; 16 Blatchf., 194; 19 Blatchf., 528; 5 Dill., 223; 45 Wis., 116: 33 Hun., 262; 102 111., 603; 18 N. W. R., 41: 40 Am. Rep., 612; 60 Miss., 400; 45 Am. Rep., 415; 73 Me., 151; 40 Am. Rep., 348: 129 Mass., 94; 37 Am. Rep., 313; 45 Wis., 116, 117; 30 Am. Rep., 699, 700. shall be $1,600; the pay of first lieutenant, not * * * A regimental quartermaster is, therefore, either a first or second lietenant in rank, and his pay $1,800. There is no provision for the pay of the rank of lieutenant disconnected from the service to be performed, but the pay of the rank is graduated by the service. The com pensation is not for rank and service, but for rank according to service. Thus, a lieutenant in cavalry service is paid more than in infantry, and in regimental service more than in cavalry. Whether in one service or another, his rank is that of lieutenant and, consequently his pay is that of his rank. Under the law as it was before 1870, he was paid for his service upon the staff in addition to that for his rank, but now the pay of his rank includes all. Being an extra lieutenant in the regiment assigned to duty as quartermaster and, consequently, performing regimental service, his pay as lieuten ant is $1,800. When, therefore, the additional | notes are not paid at maturity, then the Comduty of acting assistant commissary is put up- pany shall not be liable to pay the sum insured, on him, it would seem to be clear that, looking and the policy shall cease and be of no further at the statute alone, he is entitled to the addi- force and effect, without notice to any party tional pay allowed for that service. interested therein. It is contended, however, that he is not, because, by the army regulations, "No officer shall receive pay for two staff appointments at the same time.' Army Reg., 1863, par. 1345. If it be conceded that both the quartermaster and acting assistant commissary are now staff appointments, the result claimed does not necessarily follow. When these regulations were adopted, the compensation of a quartermaster for his staff service was by a specific addition to his pay in the line. At that time, therefore, it might well be said that the addition was pay for the staff appointment. But now there is no compensation for staff service separate from that of rank; and, in our opinion, it cannot be said that, within the meaning of the regulation, a quartermaster receives pay for his staff appointment. He gets more pay as lieutenant by reason of his transfer to a new service, but nothing separate for his appointment. This being the case, the additional compensation which the law gives an acting assistant commissary is not, in the case of a quartermaster performing that service, pay for a second staff appointment. Judgment affirmed. THE KNICKERBOCKER LIFE INSUR- v. PHOEBE A. NORTON. (See S. C., 6 Otto, 234-245.) Insurance-waiver of conditions in policy-parol evidence-question of fuct-forfeiture waived. 1. A declaration in a policy that the insurer's agents had no power to make agreements or waive forfeitures, is only a notice to the assured, which the insurer could waive and disregard at pleasure. A waiver of the stipulation or notice would not be repugnant to the written agreement, because it would only be the exercise of an option which the agreement left in it. 2. Whether the insurer exercised such option or not is a fact provable by parol evidence, as well as by writing. The parties had a perfect right to make such a contract as this, and the court must enforce it as made. Pitt v. Berkshire L. Ins. Co., 100 Mass., 500; Roehner v. The Knickerbocker L. Ins. Co.,4 Daly, (N. Y.),512; Robert v. N. E. Life Ins. Co.,1 Disn., 355; Fifty Associates v. Howland, 5 Cush., 214; Baker v. Union Mut. L. Ins. Co., 43 N. Y., 283; Howell v. Knickerbocker L. Ins. Co.,3 Robt., 232; Catoir v. Am. L. Ins. & Trust Co., 33 N. J.,487; Robert v. N. E. Mut. L. Ins. Co., 1 Disn. (Su. Ct. of Cin.), 355; Baker v. The Union Mut. L. Ins. Co., 43 N. Y., 283; Wall v. The Home Ins. Co., 36 N. Y., 157: N. Y. L. Ins. Co. v. Statham, 93 U. S., 24 (XXIII., 789); Beadle v. Chenango Co. Mut. Ins. Co., 3 Hill, 161; Shaw v. Berkshire L. Ins. Co., 103 Mass., 254; Bradley v. Potomac F. Ins. Co.. 32 Md., 108; Union Mut. L. Ins. Co. v. McMillen, 24 Ohio St., 67: Mut. Benefit Ins. Co. v. Ruse, 8 Ga., 534; Sullivan v. Cotton States L. Ins. Co., 43 Ga., 423. The first note matured on the 20th of June, and no application was made to have it extended until after the 22d of June, when the son of Judge Norton applied to the agent and requested that payment of the note be postponed until the 20th of July. The note was payable without grace. So the policy was already forfeited when this application, for what is erroneously called an extension of the note, was made. The phrase "extension of the payment of the note, and thus continuing the life of the policy," cannot properly be predicated of any declaration of the agent made after the note matured, and after the life of the policy had ceased. Security Ins. Co. v. Fay, 22 Mich., 472. It is not claimed that any act was done by the Company or its agent which could operate as an estoppel upon the Company. Security Ins. Co. v. Fay, 22 Mich., 468. Messrs. S. P. McConnell and H. Crawford, for defendant in error: An insurance company may waive any condition of a policy inserted therein for its benefit. And though a policy of insurance may provide that an agent shall have no power to waive forfeitures, or modify the contract in any way, the Company may, nevertheless, so authorize its agents, or estop itself by its conduct from deny 3. Evidence as to the practice of the insuring com- 4. Whether such company had or had not authorized its agent to make such extensions, and whether an extension was made in a case; are questions for the jury. 5. A forfeiture may be waived, as well by an agreement made for extending a premium note after its maturity, as by one made before. [No. 745.] Submitted Jan. 7, 1878. Decided Feb. 18, 1878. Etna Ins. Co. v. Maguire, 51 Ills., 350; Perkins v. Wash. L. Ins. Co., 4 Cow., 645. Private instructions not communicated to the insured will not avail the Company as a defense. Lightbody v. N. Am. L. Ins. Co., 23 Wend., 18; McEwen v. Montg. Co. Mut. Ins. Co., 5 Hill, 101; Eclectic L. Ins. Co. v. Fahrenkrug, 68 Ill., 463; Keenan v. The Mo. St. Mut. Ins. Co., 12 Ia.,131. The extent of the agent's authority is a question for the jury. Hough v. The City F. Ins. Co., 29 Conn., 10; Sheldon v. The Conn. Mut. L. Ins. Co., 25 Conn., 207; Farmers' Ins. Co. v. Taylor, 73 Pa., 342. A new consideration is not necessary, to sustain a waiver of forfeiture and extension of time to pay premium or premium notes. Leslie v. Knickerbocker L. Ins. Co., 2 Hun, (N. Y.), 618; 5. T& C., 193; Viele v. Germania | note, the agent of the defendant, regularly auIns. Co., 26 Ia., 9. thorized so to do, waived all advantages the "It is a well settled and salutary rule of law, Company might have claimed because of its nonthat a party cannot insist upon a condition pre-payment at maturity, and extended the time of cedent when its non-performance has been caused by himself." Young v. Hunter, 6 N. Y., 207. Mr. Justice Bradley delivered the opinion of the court: This action was brought on a policy of insurance, issued on the life of Jesse O. Norton, for the benefit of his wife and children. The original policy was dated April 20, 1867; and, being partly destroyed by fire, was re-issued in April, 1874. The premium was $385, payable annually on the 20th day of April in each year; and the policy, amongst other things, contained the following condition: Second. If the said premium shall not be paid on or before twelve o'clock, noon, on the day or days above mentioned for the payment thereof, at the office of the Company in the City of New York (unless otherwise expressly agreed in writing), or to agents when they produce receipts signed by the President or Secretary, or if the principal of or interest upon any note or other obligation given for the premium upon said policy shall not be paid at the time the same shall become due and payable, then and in every such case, the Company shall not be liable to pay the sum assured, or any part thereof; and said policy shall cease and be null and void, without notice to any party or parties interested herein, except that the stipulation for a new policy, as herein before provided, shall remain in force. payment, as before stated, with an averment of tender and refusal. The defendant, by way of rejoinder, denied that it had extended the time of payment, or that it had waived any advantages, as alleged. And this was the issue at the trial. It appeared on the trial that the premium in question was settled by the payment of $50 in cash, and the balance in two promissory notes, given by Jesse O. Norton to the Insurance Company, payable respectively in two and three months, and maturing, one on the 20th of June, the other on the 20th of July, 1875. Each note contained a clause, declaring that if it were not paid at maturity the policy would be void-this being the usual form of premium notes. On the issue as to extension of time on the notes, and the authority of the agent to grant it, the plaintiff produced three witnesses: Randall, agent of the Company down to March, 1874; Frary, his successor, who was agent at the time in question; and Martin Norton, son of the insured, who acted in behalf of his father in reference to the alleged extension, and to the tender of payment. The testimony of these witnesses tended to show that formerly the Company had allowed their agent to extend time on premium notes for a period of ninety days; that this indulgence was afterwards reduced to sixty days, and then to thirty; and that, at the period in question, the agent was required, as a general thing, to return the notes in his hands if not paid by the 15th of the month following that in which they became due. Third. In case a loan of or credit for a portion of said premium shall be made on this policy, said policy shall be subject to all of the terms and conditions expressed in the acknowl-notes edgment or obligation given for such loan or credit, and to the payment of interest thereon in advance; and said loan or credit shall be a just counterclaim against any amount which shall become due and payable on the policy, and shall be deducted therefrom." By an indorsement on the policy, it was de clared that "Agents of the Company are not authorized to make, alter or abrogate contracts, or waive forfeitures." Norton, whose life was insured, died on the 3d of August, 1875; and the Company refused to pay the insurance, on the ground that the policy was forfeited by reason of the non-payment of certain notes given for the last premium which was due April 20, 1875. It was conceded that all the other premiums had been paid. The declaration, besides a special count on the policy, contained the ordinary money counts. The defendant pleaded the general issue and, specially, that the premium notes were not paid at maturity, and that the policy thereby became forfeited. The plaintiff replied: first, that the agent of the defendant at Chicago, regularly authorized by the defendant so to do, extended the time of payment of the first note, which became due on the 20th of June, to the 20th of July, when she tendered the amount thereof to the agent, who refused to receive the same; and that she also tendered the amount of the second note at its maturity, which was likewise refused; second, that, after the maturity of the first As to what took place with reference to the in question, there is some conflict in testimony between Martin Norton and the agent, Frary. The former testified, in substance: that he called on the agent, in behalf of his father, in June, 1875,a few days after the first note became due, and told him that his father wished it extended for thirty days; to which the agent agreed-his answer being, "All right." That he called again on or about the 8th of July, to request an extension of the other note, which would become due on the 20th of that month, and a further extension of the first note to the 10th of August. That the agent said he would have to write to the Company about this. That, on the 13th, he called again, and told the agent that his father had concluded to pay both notes; and the agent gave him the figures, showing what was due on them. That he called again on the 15th, prepared to pay the notes, when he was informed by the agent that he could not receive the money, having received orders from the Company to return all the papers to New York, and he had done so. That he then made a legal tender of the amount due on the first note, which was refused. Frary testified that he had no recollection of the first interview, or of agreeing to extend the first note. As to the rest, they did not materially differ. In addition to the testimony relating to the general practice of the agents in granting extensions of time for the payment of premium notes, evidence was given tending to show that Norton, the insured party in this case, had usually received more or less indulgence of that kind. The counsel for the defendant moved to strike out the testimony touching the usages of the Company as to non-payment of prior premium notes by Norton, and prior indulgence thereon to him, as incompetent, and in conflict with the terms of the policy, and as showing no authority in Frary to give the alleged extension; which was without consideration, if made, and after the forfeiture had occurred. was only tantamount to a notice to the assured, which the Company could waive and disregard at pleasure. In either case, both with regard to the forfeiture and to the powers of its agent, a waiver of the stipulation or notice would not be repugnant to the written agreement, because it would only be the exercise of an option which the agreement left in it. And whether it did exercise such option or not was a fact provable by parol evidence, as well as by writing, for the obvious reason that it could be done without writing. That it did authorize its agents to take notes, instead of money, for premiums, is perfectly evident, from its constant practice of receiving such notes when taken by them. That it authorized them to grant indulgence on these notes, if the evidence is to be believed, is also apparent from like practice. It acquiesced in and ratified their acts in this behalf. For a long period, it allowed them to give an indulgence of ninety days; after that, of sixty; then of thirty days. It is in vain to contend that it gave them no authority to do this, when it constantly allowed them to exercise such authority, and always ratified their acts, notwithstanding the language of the written instruments. The counsel for the defendant also moved to strike out that portion of Martin Norton's testimony relative to an agreement for an extension of the premium notes, such agreement being without authority on the part of the agent, etc. The court overruled the latter motion; and, as to the first, directed the jury to disregard so much of Randall's testimony as tended to show the conduct of the defendant and plaintiff in regard to former payments; but allowed to stand so much of Randall's and Frary's testimony as tended to show the powers of the agents in reference to giving extensions on premiums or premium notes. This ruling was excepted to. In charging the jury, the court left it to them to say, from the evidence, whether the agent of We think, therefore, that there was no error the defendant had power to waive a strict com committed by the court below in admitting evipliance with the terms of the agreement as to dence as to the practice of the Company in althe time of paying the notes given for the pre-lowing its agents to extend the time for paymium; and, if he had such power, whether such ment of premiums and of notes given for prea waiver was in fact made; if it was, and if the miums, as indicative of the power given to those insured offered to pay the notes within the time agents; nor any error in submitting it to the to which they were extended, and the Company jury, upon such evidence, to find whether the refused to receive payment, that then the plaint- defendant had or had not authorized its agent iff was entitled to recover. The jury were fur- to make such extensions; nor in submitting it to ther instructed that the power vested in Ran- them to say whether, if such authority had been dall, the previous agent, was only pertinent as given, an extension was made in this case. it tended to throw light on the powers vested in Much stress, however, is laid on the fact that his successor, Frary. The defendant's counsel the extension claimed to have been given in excepted to the charge, and submitted several this case was not given, or applied for, until aftinstructions, the purport of them being, in suber the first note became due and the forfeiture stance, that, in view of the express provisions of the policy, the evidence was utterly irrelevant and incompetent to show any authority in the agent to grant any indulgence as to the time of paying the notes, and to waive the forfeiture incurred by their non-payment at maturity; or to show that any valid and legal extension was, in fact, granted, or that the forfeiture of the policy was waived. And whether the evidence was competent for that purpose or not is the material question in the cause. had been actually incurred. But we do not deem this to be material. The evidence does not show that any distinction was made in granting extensions before or after the maturity of the notes. The material question is, whether the forfeiture was waived; and we see no reason why this may not be done as well by an agreement made for extending the note after its maturity, as by one made before. In either case, the legal effect of the indulgence is this: the Company say to the insured: pay your note by such a time, and your policy shall not be forfeited. If The written agreement of the parties, as em- the insured agrees to do this, and does it, or bodied in the policy and the indorsement there tenders himself ready to do it, the forfeiture on, as well as in the notes and the receipt given ought not to be exacted. In both cases the partherefor, was undoubtedly to the express pur- ties mutually act upon the hypothesis of the port that a failure to pay the notes at maturity continued existence of the policy. It is true, if would incur a forfeiture of the policy. It also the agreement be made before the note matures contained an express declaration that the agents and before the forfeiture is incurred, it would be of the Company were not authorized to make, a fraud upon the assured to attempt to enforce alter or abrogate contracts or waive forfeitures. the forfeiture, when, relying on the agreement, And these terms, had the Company so chosen, he permits the original day of payment to pass. it could have insisted on. But a party always On the other hand, if the agreement be made has the option to waive a condition or stipula- after the note matures, such agreement is itself tion made in his own favor. The Company a recognition, on the Company's part, of the was not bound to insist upon a forfeiture, continued existence of the policy and, consethough incurred, but might waive it. It was quently, of its election to waive the forfeiture. not bound to act upon the declaration that its It is conceded that the acceptance of payment agents had no power to make agreements or has this effect; and we do not see why an agreewaive forfeitures; but might, at any time, at its ment to accept, and a tender of payment acoption, give them such power. The declaration | cording to the agreement, should not have the same effect. Both are acts equally demonstra- | referred to Green's case, 1 Cro. Eliz., 3, where tive of the election of the Company to waive calling the party a tenant, in a receipt for bythe forfeiture of the policy. Grant that the gone rent, was held to be sufficient evidence of promise to extend the note is without consider- a waiver, though the acceptance of that rent ation, and not binding on the Company, which was not such. And he adds: "If it had been is perhaps true as well when the promise is proved that the father had notice of the alteramade before maturity as when it is made after- tions, and he had still allowed the son to rewards, still it does not take from the Company's ceive the rent, the forfeiture might have been act the legitimate effects of such act upon the waived. But that was not proved; and the quesforfeiture of the policy. Perhaps the note might tion of waiver does not, therefore, distinctly be sued on in disregard of the extension; but arise in the case. If it had, the authorities cited if could be, that would not annihilate the fact show that this was a lease voidable at the elec that the Company elected to waive the for tion of the landlord. Then, I think that an abfeiture by entering into the transaction. If it solute, unqualified demand of rent, by a pershould repudiate its agreement, it could not re- son having sufficient authority, would have pudiate the waiver of the forfeiture, without at amounted to a waiver of the forfeiture, and it least giving to the assured reasonable notice to would have been like the case I cited from pay the money. Croke's Reports.' Forfeitures are not favored in the law. They are often the means of great oppression and injustice. And, where adequate compensation can be made, the law in many cases, and equity in all cases, discharges the forfeiture, upon such compensation being made. It is true, we held in Statham's case, 93 U. S., 24 [XXIII., 789], that, in life insurance, time of payment is material, and cannot be extended by the courts against the assent of the Company. But where such assent is given, the courts should be liberal in construing the transaction in favor of avoiding a forfeiture. The case of leases is not without analogy to the present. It is familiar law, that, when a lease has become forfeited, any act of the landlord indicating a recognition of its continuance, such as distraining for rent, or accepting rent which accrued after the forfeiture, is deemed a waiver of the condition. In Ward v. Day, 4 Best & S., 337, after a forfeiture of a license to gather minerals off of a manor had been incurred, the landlord entered into negotiations with the licensee and his son, to grant to the latter a renewal of the license when it should expire; and terms were agreed on, which the landlord afterwards refused to carry out. It was held that, by entering into these negotiations, he waived the forfeiture of the original license. The negotiations assumed that the original license was to continue to its termination. The exaction of the forfeiture was in the landlord's election; and he evinced his election not to enforce it by entering into the negotiations. Justice Blackburn says: "Most of the cases in which the doctrine of election has been discussed have been cases of landlord and tenant under a regular lease, in which has been reserved a right of re-entry for a forfeiture; that is, an option to determine the lease for a forfeiture; but this doctrine is not, as Mr. Russell seems to think, confined to such cases. So far from that being so, the doctrine is but a branch of the general law, that, where a man has an election or option to enter into an estate vested in another, or to deprive another of some existing right, before he acts he must elect, once for all, whether he will do the act or not. He is allowed time to make up his mind; but when once he has determined that he will not consider the estate or lease, whichever it may be, void, he has not any further option to change his mind." And then the learned Judge cites In Doe v. Meux, 4 Barn. & C., 606, there was a general covenant to repair, and a special covenant to make specific repairs after three months' notice; and a condition of forfeiture for nonperformance of covenants. The landlord gave notice to the tenant to make certain specific repairs within three months. This was held a waiver of the forfeiture already incurred under the general covenant. Justice Bailey said: "The landlord, in this case, had an option to proceed on either covenant; and, after giving notice to repair within three months, he might have brought an action against the defendant upon the former covenant, for not keeping the prem-authorities, going back to the Year Books, to ises in repair. But that is very different from insisting upon the forfeiture. *** I think that the notice amounted to a declaration that he would be satisfied if the premises were repaired within three months, and that he thereby pre cluded himself from bringing an ejectment before the expiration of that period.' In Doe v. Birch, 1 Mees. & W., 402, there was a covenant on the part of the tenant to make certain improvements on the premises within three months, or that the lease should be void. He failed to make the improvements in the manner stipulated; and, after the expiration of the three months, the landlord's son, on his father's behalf, made a demand of a quarter's rent. But, it not appearing that the landlord knew of the tenant's failure with regard to the improvements, it was held that the son had not sufficient authority to waive the forfeiture. Otherwise, it seems, that the demand of the rent would have amounted to a waiver. Baron Parke show that a determination of a man's election in such cases may be made by express words, or by act; and that if, by word or by act, he determines that the lease shall continue in existence, and communicates that determination to the other party, he has elected that the other shall go on as tenant. These cases show the readiness with which courts seize hold of any circumstances that indicate an election or intent to waive a forfeit ure. We think that the present case is within the reason of these authorities; and that the objection, that the note was already past due when the agreement to extend it was made, is not suf ficient to prevent said agreement from operating as a waiver of the forfeiture. Several minor points were raised by the defendant; but they are all either substantially embraced in the main points already considered, or are not of sufficient force to require special discussion. |