On appeal from the Supreme Court, Hudson county.
For appellant, Randolph Perkins and Perkins, Drewen & Nugent (John Drewen, of counsel).
For the respondent, Saul Nemser and Joseph Moritz.
The opinion of the court was delivered by
LLOYD, J. The action is to recover for life insurance based upon an application for insurance, payment of the first premium, and a receipt therefor issued by the defendant's agent. The case being submitted to the jury, that body found in favor of the plaintiff and the defendant appeals from the judgment entered on the verdict.
On May 2d, 1933, Joseph Reck made application for a $1,000 intermediate insurance policy with a monthly
payment of $3.56. Being unable to pay the first premium at that time, he arranged with the company's agent to hold the application in abeyance for one week, when the first month's premium was paid in full.
The agent was authorized to give, and did give, to Reck a receipt for the first monthly payment reading as follows:
"Received from Mr. J. Reck the sum of Three Dollars and Fifty-six cents, being payment of not less than one monthly premium on account of a twenty year payment, intermediate, monthly premium policy, applied for in the Prudential Insurance Company of America, on the life of as above.
"It is understood that no agent has power, in behalf of the company, to make or to modify any application for insurance, or to bind the company, by making any promise or representation, but that if this payment is equal to the full first monthly premium on said policy (but not otherwise) the insurance shall take effect from the date of the application, in accordance with the provisions of the policy applied for, provided said application is approved and accepted at the Home Office of the Company in Newark, New Jersey, under the plan, for the premium paid and amount of insurance applied for, and provided the person proposed was in sound health on the date of the application.
"It is further agreed that said company will return the amount mentioned herein if it declines to grant the policy on the above life."
By the terms of this receipt it will be noted that the insurance was to take effect on the date of the application which was May 9th, 1933, subject to two conditions (1) that the applicant was in sound health at that date (which is not in dispute); and (2) that the application be approved and accepted by the company at its home office in Newark, to ...