The opinion of the court was delivered by: MCVICAR
The New York Life Insurance Company, defendant, June 7, 1918, issued a policy of life insurance insuring the life of Benjamin Silverman in the sum of $4,000, with double indemnity, of $8,000, if death resulted from violence. The wife and children of the insured were named beneficiaries. The policy states that: "This contract is made in consideration of the payment in advance of the sum of $113.32, the receipt of which is hereby acknowledged, constituting the first premium and maintaining this Policy to the Twenty-second day of November, Nineteen Hundred and eighteen, and of a like sum on said date and every six calendar months thereafter during the life of the Insured."
Also that: "If any premium is not paid on or before the day it falls due the policyholder is in default; but a grace of one month (not less than thirty days) subject to an interest charge of five per cent per annum will be allowed for the payment of every premium after the first, during which time the insurance continues in force. If death occurs within the period of grace the unpaid premium for the then current insurance year will be deducted from the amount payable thereunder."
The premium on the policy was paid up to and including May 22, 1930. No premium was paid thereafter. December 22, 1930, being the last day of grace for the payment of the premium due November 22, 1930, Sam Silverman, a son of the insured (without any proof of agency), mailed a check to the company drawn by "Midland Ice & Products Co. By Sam Silverman," in the sum of $107.36 for the premium due November 22, 1930.In the envelope containing the check was inclosed the following letter:
"Midland, Pa. December 22, 1930.
"New York Life Insurance Co., Liberty & Fifth Ave., Pittsburgh, Pa.
"Gentlemen: I am mailing a check of $107.36 for policy No. 6305174-95 as my father is now in Chicago and I am a little short of cash at this time. Please send in papers to make a loan to take care of this premium.
"Branch Office at Pittsburgh, Pa.
"Mr. Benjamin Silverman, Midland Ave., Midland, Pa.
"Dear Air: The check which you gave on account of the premium due Nov. 22 on Policy No. 6 305 174 and of which the following is a copy:
"Midland Ice & Products ...