Edward Hincken et al., Executors, etc., Respondents, v. The Mutual Benefit Life Insurance Company, Appellant

Edward Hincken et al., Executors, etc., Respondents, v. The Mutual Benefit Life Insurance Company, Appellant. (Argued June 13, 1872; decided June 20, 1872.) This action was upon a policy of life insurance for $10,000 upon the life of Peter Rice, which sum was agreed to he paid “ within ninety days after due notice and proof of interest and of the death of said Peter Rice.” Upon the trial the only evidence of compliance with this condition was in response to the following question, asked a witness by defendant’s counsel: “ Did you deliver preliminary proofs ?” The witness answered that he did, at defendant’s office, and fixed the time more than ninety days before the commencement of the suit. At the close of the evidence defendant’s counsel moved to dismiss the complaint upon the ground that plaintiffs were bound to produce in evidence the proofs served, or some proofs, to show a performance of the condition precedent, furnishing due proof of Rice’s death ninety days before suit brought. The motion was denied and plaintiffs obtained a verdict. Held, that the fact that preliminary proofs had been delivered was some evidence of the performance of the condition precedent, and these proofs being in defendant’s possession, and it not having accounted for or produced them, and having received and retained them, as far as appears, without objection, it would not be assumed that they were defective, and that the evidence was sufficient to sustain the verdict. Alvin C. Bradley for the appellant. George G. Reynolds for the respondents. [MAJORITY — Allen, J.,] Allen, J., reads for affirmance. All concur. Judgment affirmed.