On June 10, 1885, the petitioner delivered to Alexander Cohen, in the state of Montana, a life insurance policy for $3,000, conditioned upon the annual payment of a premium of $89.61. Upon it the insured paid premiums up to and including June 10, 1892. No subsequent premiums were paid. On September 21, 1897, he died. His wife, Tine Cohen, was the beneficiary named in the policy.
The application commenced in these words: 'Application for insurance in the Mutual Life Insurance Company of New York, 140 to 146 Broadway, corner of Liberty street, New York city, subject to the charter of such company and the laws of said state.' It further contained this provision: 'That if the insurance applied for be granted by the company, the policy, if accepted, will be accepted subject to all the conditions and stipulations contained in the policy. Among those conditions and stipulations was this: 'Notice that each and every such payment is due at the date named in the policy is given and accepted by the delivery and acceptance of this policy, and any further notice, required by any statute, is thereby expressly waived.'
On November 9, 1898, this action was commenced in the circuit court of the United States for the district of Washington.
The single defense was the nonpayment of premiums after June 11, 1892. There was no suggestion of rescission, abandonment, knowledge by the beneficiary of the nonpayment of the premium, or any refusal or failure on her part in respect to the policy. A demurrer to the answer was sustained, judgment rendered for the amount of the policy, less the unpaid premiums, which judgment was affirmed by the United States circuit court of appeals for the nonth circuit (38 C. C. A. 696, 97 Fed. Rep. 985), and thereupon the case was brought here on certiorari.
Mr. Justice Brewer delivered the opinion of the court:
Mutual L. Ins. Co. v. Phinney, 178 U.S. 327, 44 L. ed. 1088, 20 Sup. Ct. Rep. 906, was an action against the same insurance company, in the same district, on a policy like the one in controversy here, save that in that the insured was himself the beneficiary. It resulted in a judgment in the circuit court against the company. Thereupon the company sought to transfer it by writ of error to the court of appeals of that circuit, but that court dismissed the writ of error. Thereafter, on April 19, 1897, a certiorari was issued by this court. 166 U.S. 721, 17 Sup. Ct. Rep. 1004. On examination we held that the court of appeals erred in dismissing the writ of error, that it had jurisdiction, and that it ought to have reversed the judgment of the circuit court. The decision was based on the ground of error in the ruling of the circuit court in respect to rescission and abandonment. In the opinion we referred to the fact that there was a primary question of the applicability of a statute of the state of New York, but deemed it unnecessary to decide it. That decision was followed by the cases of the same company against Sears (178 U.S. 345, 44 L. ed. 1096, 20 Sup. Ct. Rep. 1032) against Hill (178 U.S. 347, 44 L. ed. 1097, 20 Sup. Ct. Rep. 1032) against Allen (178 U.S. 351, 44 L. ed. 1098, 20 Sup. Ct. Rep. 1032),-all of which cases were disposed of in like manner.
The primary question noticed, but not decided, in those cases is distinctly and solely presented in this.
The insurance policy contained a stipulation that it should not be binding until the first premium had been paid and the policy delivered. The premium was paid and the policy delivered in the state of Montana. Under those circumstances, under the general rule, the contract was a Montana contract, and governed by the laws of that state. Equitable Life Assur. Soc. v. Clements, 40 U.S. 226, 232, sub nom. Equitable Life Assur. Soc. v. Pettus, 35 L. ed. 497, 500, 11 Sup. Ct. Rep. 822. In that state, there being no statutory provisions to the contrary, the failure to pay the annual premium worked, in accord with the terms of the policy, a forfeiture of all claims against the company.
New York, on the other hand, the state by which the insurance company was chartered and in which it had its principal office, by § 1 of chapter 321 of 1877 had enacted— 'Sec. 1. No life insurance company doing business in the state of New York shall have power to declare forfeited or lapsed any policy hereafter issued or renewed by reason of nonpayment of any annual premium or interest, or any portion thereof, except as hereinafter provided.'
The provision rererred to, and which is stated at length in the succeeding part of the section, is one for notice of a special kind and to be given in a particular way. The section is quoted in full in 178 U.S. 330, 44 L. ed. 1089, 20 Sup. Ct. Rep. 906.