Opinion of the Court.

appear that the defendant was unaware, prior to the entry of judgment, that replications to its first and third pleas were put on file during the progress of the trial, it may be that the court would have set aside the judgment. It appears only that the replications were not on file when the trial commenced, not that their being filed during its progress was unknown to the defendant before the trial was concluded. The defendant was bound to know, when the court ordered the parties to proceed with the trial, that replications had not been filed to its first and third pleas. It should then have asked for a rule upon the plaintiff to file replications. Its failure to do so was equivalent to consenting that the trial, so far as the pleadings were concerned, might be commenced. The objection that replications were not filed when the trial commenced, nor before judgment, with leave of the court, came too late after judgment was entered. In Kelsey v. Lamb, 21 Illinois, 559, the Supreme Court of Illinois said: "If the defendant has filed his plea, and the other party fails to reply within the time required by the rules of the court, he has a right to judgment by default against the plaintiff, but until he obtains such default, the pleas cannot be considered as confessed by the plaintiff. It is the default which gives the right to consider and act upon the pleas as true. In this case no such default was taken. When the parties submitted the case to trial by the court, without a jury by consent, it had the effect of submitting the case to trial on the pleadings, as if there were proper issues formed, and the court will hear evidence under all the pleas presenting a legal defence, precisely as if the allegations of such pleas had been formally traversed. This is the fair and reasonable construction to be given to such agreements. But it is otherwise, where the party is compelled to proceed to trial, without the issues being formed in the case. There the act is not voluntary, and no such intendment can be made." The defendant here was compelled to proceed with the trial, but no objection was made by it to a trial because the issues were not fully made up. See also Bunker v. Green, 48 Illinois, 243; Beesley v. Hamilton, 50 Illinois, 88; Barnett v. Graff, 52 Illinois, 170.

Opinion of the Court.

It is objected that the damages awarded to the plaintiffs are excessive in that their affidavit, filed with the declaration, shows the amount claimed, as of August 16, 1887, when the action was commenced, was only $13,943.23, whereas the judg ment was for $15,568.99. Allowing interest upon the firstnamed sum up to the date of the judgment, the damages given exceed the amount claimed in the plaintiffs' affidavit by more than one thousand dollars. But the ad damnum was twenty thousand dollars, and the bill of exceptions states that "the plaintiffs also introduced evidence tending to show that the amount now [then] due and owing from the defendant to the plaintiffs for the matters and causes of action aforesaid is $15,568.99." It does not state what this evidence was, nor does it appear that the defendant objected to evidence showing an indebtedness on its part in excess of the sum claimed in the plaintiffs' affidavit. Besides, the affidavit, though no part of the declaration itself, was a statutory pleading, which might have been amended upon such a suggestion. Healey v. Charnley, 79 Illinois, 592; McKenzie v. Penfield, 87 Illinois, 38. The only purpose of the affidavit is to entitle a plaintiff to judgment as in case of default unless defendant shall file an affidavit of merits with his pleas, and in case of such default the plaintiff's affidavit may be taken as prima facie evidence of the amount due; but even this is discretionary with the court. Kern v. Strasberger, 71 Illinois, 303. No point was directly made in the court below, either before or after judg ment, that the plaintiffs were limited in their recovery to the sum named in their affidavit. An objection of that character, made for the first time in this court, ought not to be entertained.

No other questions presented by the record are of sufficient importance to be considered. Judgment affirmed.

Statement of the Case.

HARTFORD LIFE ANNUITY INSURANCE COMPANY v. UNSELL.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF MISSOURI.

No. 224. Submitted March 23, 1892. - Decided April 4, 1892.

In an action to recover on a policy of life insurance, error in admitting evidence as to the mental and physical condition of the assured in his last days, when an overdue premium was paid and received, is held to be cured by the charge of the court that the only question was whether there had been a waiver by the insurer, and that it was immaterial whether the assured was or was not ill at that time.

As an action could not have been maintained against the insurer without offer to pay overdue premiums, evidence of such offer was properly admitted.

When the charge contains all that need be submitted to the jury on the issues, it is no error to refuse further requests to charge.

A life insurance company whose policy provides for the payment of premiums at stated times and further that the holder "

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agrees and

accepts the same upon the express condition that if either the monthly dues," etc., are not paid to said company on the day due, then this certificate shall be null and void and of no effect, and no person shall be entitled to damages or the recovery of any moneys paid for protection while the certificate was in force" may nevertheless by its whole course of dealing with the assured, and by accepting payments of overdue sums without inquiries as to his health, give him a right to believe that the question of his health would not be considered, and that the company would be willing to take his money shortly after it had become due without inquiry as to his health, and such a course of dealing may amount to a waiver of the conditions of forfeiture. Courts do not favor forfeitures; but will nevertheless enforce them when the party by whose default they are incurred cannot show good ground in the conduct of the other party on which to base a reasonable excuse for the default.

If, in a case where the evidence warranted a request for a peremptory instruction to find for the defendant, no request for such instruction was made, it cannot be made a ground of reversal that the issues of fact were submitted to the jury.

THE Court stated the case as follows:

This action was brought upon five certificates of membership, in the nature of policies of life insurance, issued by the

Statement of the Case.

plaintiff in error to E. J. Unsell, the deceased husband of the defendant in error, who was the plaintiff below, numbered 24981 to 24985, inclusive, dated September 27, 1881, and each for the sum of $1000; also, upon a similar certificate, numbered 52143, for the sum of $5000, dated July 10, 1882. The charge of the court at the first trial will be found in 32 Fed. Rep. 443.

The petition alleged that the assured died December 31, 1885, having performed all the conditions of the policies on his part to be kept and performed. The answer denied that the assured died December 31, 1885, and alleged that his death occurred on January 31, 1886. It also alleged that none of the certificates were in force at the latter date by reason of the fact that the dues payable by the assured on the first day of January, 1886, were not paid at any time prior to his death; consequently the certificates of insurance ceased to be of any force or effect.

To the answer setting up this defence the plaintiff replied: "She admits that her husband, Elias J. Unsell, died January 31, 1886, and not December 31, 1885, as through clerical error was averred in the petition. Further replying, she denies that the said Elias J. Unsell failed to pay the monthly dues for the month of January, 1886, as averred in the answer, but avers the same were paid. And for further reply this plaintiff says that for several months before his death the said Elias J. Unsell was in such agony and pain of body as to seriously affect his mind and render him unfit for attention to any business; that in consequence thereof, said Unsell lost his memory and the knowledge of all his business affairs, but was fully conscious that he was about to die. That in December, 1885, and while he was so under disability and possessed of a consciousness of his approaching death, he informed plaintiff and his friends that he had paid up all that was due by him to the defendant; that plaintiff supposed and yet believes such to be the fact; that during the whole of the month of December, 1885, said Elias J. Unsell was at home confined to his bed; that he never received any notice, or had any knowledge that anything was due on any of said certificates, nor

Statement of the Case.

had this plaintiff, or any of his friends, such knowledge until on or about January 26, 1886, when a notice was received through the mail from defendant that dues from January 1, 1886, were in arrears. That she at once, for said Elias J. Unsell, forwarded to defendant the sum of $5, to pay dues for the months of January and February, 1886, which sum was duly received by defendant and was kept by it and not returned until after defendant had learned of the death of said Elias J. Unsell.

"And for further reply, plaintiff says that defendant is and ought of right to be estopped from now setting up the alleged failure to pay said dues in advance as any defence, for she avers that during the whole time said Unsell has been the owner of certificates, in the defendant company, said defendant has without objection received from him the monthly dues long after the date on which by the terms of the contract they were payable, and had thereby led said Unsell to believe that the payment in advance was not essential and had waived the payment thereof in advance."

The material conditions of insurance under the several certificates were as follows:

"Of payments. The person to whom this certificate is issued agrees to pay to said company three dollars per annum, for expenses, on the first day of the month after date of issue, and at every anniversary thereafter, so long as this certificate shall remain in force; or by monthly or other pro rata installments of the same in advance for periods of less than one year.

"Conditions of acceptance. The holder of this certificate further agrees and accepts the same upon the express condition that if either the monthly dues, assessments or the payment of the ten dollars toward the safety fund, as herein before required, are not paid to said company on the day due, then this certificate shall be null and void and of no effect, and no person shall be entitled to damages or the recovery of any moneys paid for protection while the certificate was in force, either from said company or the trustee of the safety fund."