American Nat. Ins. Co. v. Allen , 226 S.W. 823 ( 1920 )

The first assignment of error is based on the refusal of the court to give a requested peremptory instruction in favor of the defendant. The contention is that as the evidence shows that the premium of August, 1918, had not been paid, there was an insufficient tender of the premium, and therefore the policy had lapsed. The evidence without dispute shows that the authorized agent of the insured at the time the premium of August, 1918, was due made an offer to pay to the accredited agent of the appellant the premium provided for in the policy, and was ready and able and willing to do so, and that when offering or about to produce the money the agent of the appellant told him he would not accept it. If the agent of the appellant to whom the offer to pay the premium was made refused, as conclusively shown, to accept it unless an unauthorized $100 be added, the question is then presented whether the offer or tender has been made in proper form, and whether the insurance company has waived any of its rights to insist on a formal and proper tender. It seems to be well settled that where the debtor is ready and willing and offers to pay the money the actual production of it is waived by the absolute refusal of the creditor to accept it, or his declaration that he will not accept the tender if made. White v. Dennis, 220 S.W. 161; R.C.L. p. 662; 3 Paige on Contracts, § 1425. And there is some evidence that Mr. Binyon was the accredited agent of appellant. The witness Andy Allen testified:

"I know the agent of the American National Insurance Company was Binyon. He told me he was the agent, and he talked to me about $100 bonus asked, and that this policy had lapsed."

There is no other evidence contradictory of this testimony. It is believed that there is sufficient evidence to maintain the issue of tender, and assignment of error No. 1 is overruled.

The second assignment of error is predicated upon the refusal to give a special charge. The charge tells the jury that in order for the plaintiff to recover "the money must have been actually tendered by the plaintiff or his agent, and must have been refused by some person authorized by the defendant to accept the payment of dues upon the policy." On the facts of this case the charge was properly refused, because it, in effect, denied the plaintiff a recovery in the event the jury found that the father of the insured offered to pay and was prevented from doing so by the refusal of the appellant's agent to accept the tender if made.

The third assignment of error complains of the refusal to give a special charge which undertakes to define "tender." The special charge, in effect, restricts the requisites of a legal tender to "an actual production of money and an actual offer of it to the person to whom the tender is made." The charge ignores the issue of waiver of the actual production of the money. Smith v. B. L. Ass'n, 119 N.C. 257,26 S.E. 40. The waiver of the actual production of the money is the very and only issue made by the facts. We think the assignment should be overruled.

The judgment is affirmed.