May Term, ciently shown that the law of New-York on the subject of 1854. notes payable at a particular place, was a written law. KENTUCKY Under the statute, it rested in the discretion of the Court MUTUAL INSURANCE CO. Whether parol evidence should be admitted. Having exercised that discretion without any obvious abuse, it is not the subject of review in this Court. v. JENKS. Per Curiam. The judgment is affirmed, with 2 per cent. damages and costs. S. Judah, for the plaintiff. B. M. Thomas and W. E. Niblack, for the defendants. THE KENTUCKY MUTUAL INSURANCE COMPANY V. JENKS. On an application for insurance, where the minds of the contracting parties have met upon a distinct proposition made by the one and accepted by the other, chancery will decree its execution; or regarding that as done which ought to be done, chancery will take an account, and make such decree as is just and proper from the case made in the bill. On the 27th of September, 1850, one J., of Lafayette, being then in good health, completed an application to the Kentucky Insurance Company for an insurance of 1,500 dollars on his life, for the benefit of his wife. The company's agent at Lafayette on that day mailed the application to the company. The application was duly approved, and a policy was issued thereon and mailed to the agent, on the 2d of October, 1850. It insured the life of J. in the sum of 1,500 dollars, for five years from that date, for the benefit of his wife. The policy was received by the agent on the 5th of October, 1850. On the 29th of September, 1850, J. was taken sick, and lingering until the 4th of October following, died. On the receipt of the policy (J. being dead) the agent immediately returned it by mail to the company. While the treaty for insurance was pending and before J.'s application was completed, the company agreed to take the first year's premium in an advertisement of their agency, for six months, in J.'s newspaper at Lafayette; and accordingly the agent in August, 1850, furnished to J. the advertisement, which was published in the paper continuously thereafter, as directed by the agent, for six months. The price of the advertisement fell short of the first year's premium 45 cents. This was a bill in chancery by J.'s widow, praying discovery of the entries upon the company's books, &c., and that the original application for the insurance, and the original policy issued thereon, should be produced, &c.; that an account should be taken, &c.; and for general relief. Held, that the contract of insurance was, at least, complete on the 2d of October, 1850, when J.'s application was approved and the policy was mailed to him; and that there is weighty authority that the acceptance related back May Term, to the period when J. completed his application. Held, also, that the payment of the premium and the indorsement of the payment on the policy, by the very nature of the contract, were not requisite to complete it. Held, also, that it was incumbent upon the company to furnish the matter to be printed, and that the neglect to furnish more matter or to continue its publication longer, so that its value should equal the first year's premium, could not affect the complainant's rights. A substantial compliance with the stipulations usually found in insurance poli- It is not good policy in Courts to favor such cunningly devised insurance poli- APPEAL from the Tippecanoe Court of Common Pleas. STUART, J.-Emeline Jenks filed her bill in chancery against the company to enforce an insurance contract; praying discovery of the entries on the insurance company's books, &c.; that the original application for such insurance, and the original policy issued thereon, be produced and filed; that an account be taken, &c.; with general prayer for such other relief as the case made might require. The contract sought to be enforced was an insurance for 1,500 dollars on the life of James P. Jenks, the husband of complainant, and for her benefit, alleged to have been. effected with the appellant. The cause came to hearing on the bill, answer, exhibits, &c. Decree in accordance with the prayer of the bill. The insurance company appeals. A printed copy of the record and proceedings in the cause, together with several elaborate briefs, all printed, have greatly facilitated our labors. The principal facts, without reference to the order in which they occur in the pleadings and evidence, are briefly these. In August, 1850, Jenks applied to the company's agent 1854. KENTUCKY MUTUAL INSURANCE Co. V. JENKS. Thursday, May 25. May Term, at Lafayette to insure 1,000 dollars on his life, for five 1854. years, for the benefit of his wife. He proposed that the KENTUCKY first year's premium should be paid in advertising their SURANCE Co. agency in Jenks's paper, the "Lafayette Courier." Wil MUTUAL IN V. JENKS. stach, the agent, not feeling at liberty to act on such a proposition, referred it directly to the company, strongly recommending its acceptance. On the 12th of August, 1850, the insurance company replied that "the board had concluded to issue a policy to Mr. Jenks on the terms proposed (first year's premium to be taken in advertising) and that the agent could forward the application as soon as ready." About the middle of August, 1850, Wilstach accordingly handed Jenks for publication an advertisement of the insurance company. It was published continuously in the "Courier" six months. It is not disputed but that this advertisement was to go as payment on the premium of the first year; nor but that the publication was of the value of 12 dollars. Wilstach testifies that the 1,000 dollars was at first mentioned only generally; but that on subsequently looking over the insurance company's tables, they (Jenks and Wilstach) found that the premium on 1,500 dollars would about amount in his case to the value of the printing. The application for insurance on 1,500 dollars was therefore prepared, and signed by Jenks. It was not, however, complete; as to one of the questions there was a blank, which he was not then ready to answer without further inquiry. Thus the matter stood till the 27th of September, 1850, Wilstach frequently urging Jenks to fill the blank and complete the application, that he, Wilstach, might have it off his hands. On that day the papers were fully made out, and Wilstach mailed them to the insurance company. Jenks was then in good health. It does not very clearly appear when this communication was received by the insurance company. But the company's books show that Jenks's application was duly approved, and that the policy was issued thereon October 2, 1850. The substance of the policy was, insuring "the life of James P. Jenks in the sum of one thousand five hundred dollars," for the term of five years from the 2d day of October, 1850, until the 2d day of October, 1855, at 12 o'clock, noon, &c., for the benefit of Emeline Jenks. On the same day, October 2, 1850, the insurance company mailed the policy, duly executed, to Wilstach, their agent. It was received by him on the 5th of October, 1850. Meanwhile, on the 29th of September, 1850, Jenks was taken sick, and lingering until the 4th of October following, died. Upon the receipt of the policy by the agent after the death of Jenks, it was immediately returned by mail to the insurance company. On this state of facts the insurance company insists that the contract to insure was not complete. And though the argument takes an unnecessarily wide range, this is, in fact, the only material question in the case. For if the contract was complete-if the minds of the contracting parties met upon a distinct proposition, made by the one and accepted by the other-chancery will decree its execution. Or regarding that as done which in equity and good conscience should have been done, chancery will take an account, and make such decree as is just and proper from the case made in the bill. Jenks's application was forwarded, it seems, September 27, 1850. That was a proposition to the company to insure his life to the amount of 1,500 dollars, for five years; the first year's premium to be paid in advertising. It is to be inferred from the course of the mail, as disclosed in the other parts of the case, that the application reached the company on the 1st of October, 1850. Its approval and acceptance on that or the next day, as shown by the books of the company, closed the contract. It is true there is considerable conflict among the authorities on this point; some holding that the contract thus made by mail is not complete, until the party making the proposition is advised of its acceptance. Thus Parker, C. J., held that the contract was open till the knowledge of its acceptance, that is, the letter announcing its acceptance, was received, or the regular time for its arrival by mail had May Term, 1854. KENTUCKY MUTUAL INsURANCE Co. V. JENKS. MUTUAL IN V. JENKS. May Term, elapsed. Mc Culloch v. The Eagle Insurance Company, 1 1854. Pick. 278. There are also several later cases in the MassaKENTUCKY chusetts reports to the same effect. Walworth, chancellor, SURANCE CO. lays down the doctrine quite as broadly, viz., "the minds of the contracting parties must not only meet, but the fact of such concurrence must be communicated to each other, in order to consummate the contract." Frith v. Lawrence, 1 Paige 434. But the English cases on the authority of which these decisions were made, namely, Payne v. Cave, 3 T. R. 148, and Cook v. Oxley, id. 653, have been frequently questioned, and may be regarded as overruled. 2 Kent 477.-1 Duer 118, note.-16 East 45. Even the Supreme Court of Massachusetts, in the subsequent case of Thayer v. The Middlesex Insurance Company, is generally conceded to have very materially modified the doctrine laid down in 1 Pick., supra. 10 Pick. 332. The case of Frith v. Lawrence, supra, came before the Court of Errors in New-York under the title of Mactier's Administrators v. Frith; and the decision of the chancellor on this point was reversed. 6 Wend. 103. In accordance with the case of Adams v. Lindsell, 1 Barn. and Ald. 681, Mr. Justice Marcy, delivering the principal opinion given, held that the contract was perfected when the proposition made by letter was accepted, even though the letter of acceptance could not have reached the residence of the other party till after his death. A similar doctrine had been long since held in the Circuit Court of the United States. Kohne v. The Insurance Company of North America, 1 Wash. 93. A proposal transmitted by letter is regarded as a continuous offer up to the time of answer sent; and then the acceptance thus given completes the contract. Adams v. Lindsell, supra. The better opinion of jurists, says Kent, is, that as soon as an offer by letter is accepted, the consent is given and the contract complete, though the party making the offer may be ignorant of such acceptance. 2 Kent 477, and note. In a case not referred to by counsel-Tayloe v. The Merchants' Insurance Company-the same question came before the Supreme Court of the United States. Nelson, |