before the annual premium became due on | insured furnish due proof that he became toMay 1, 1915, respondent gave the insured no- tally disabled before default in the payment tice thereof, by mail, addressing him at his of any premium, then the company must pay post office address at Dayton. Again, about for said insured all premiums, etc. May 13, 1915, respondent mailed to the insured a letter calling attention to the nonpayment of the annual premium and cautioning him not to overlook it and that the 30 days of grace allowed by the policy would soon be up, and further stating that the company was ready to extend assistance by permitting semiannual or quarterly premium payments if preferred. Again, on June 3, 1915, respondent wrote as follows: "Western Union Life Insurance Company. "Spokane, Washington, June 3, 1915. # 13686. "Mr. Geo. W. Eyre, Dayton, Washington, 5th & J.-Dear Sir: We notice that the grace allowed by the company in the payment of the premium on your policy No. 13686 expired 6/1/15 and we wish to know if this is intentional or otherwise on your part. "If you are doing so because you are tempo rarily short of the necessary funds, we wish you to let us know what arrangement you would like to make to defer the payment of part of the premium. "If you wish, the same can be changed to either semi-annual or quarterly payments, and in fact almost any reasonable arrangement can be made if you will only let us know your wish “J. N. Wright, Secretary." This last letter manifestly proceeded out of consideration of the company for the insured, because the provision in the policy for reinstatement after it had lapsed for nonpay ment of premium depends upon a written application therefor by the insured. None of the three letters was returned, nor was any answer ever made to either by Eyre or any one in his behalf. Afterwards, and prior to the receipt of the notice of disability through the attorney for the insured in October, 1915, respondent canceled the policy upon its records. The premium falling due on May 1, 1915, was never paid, nor was there any application for reinstatement. The case involves a construction of the contract of insurance. The respondent contends the disability clause of the contract must be held to mean that, if the insured, under an existing policy, demand that the insurer pay subsequently accruing premiums, accompanying such demand with due proof of total disability, it must pay such premiums so long as the disability continues, and thus preserve the policy in force; but that such obligation is not placed upon the company where the demand is made and proof of total disability furnished after the expiration of the grace period of 30 days from the premium due date, default in payment by the insured, and cancellation of the policy by the company. On the other hand, appellant contends the contract means, and says, that if, at any Appellant's counsel argue that the determination of the dispute requires an examination of the policy, from which it will appear that, in the last analysis, the total disability clause contains all of the policy which furnishes any aid. [1] Certain rules are recognized for the construction of written contracts for the purpose of ascertaining from the language the extent to which the parties intended to be bound; and it is the duty of courts to observe them and not attempt to vary, change, or withhold their application. The first and most important of such rules is that the intent of the parties, as expressed in the words they have used, must govern. With such understanding counsel for appellant, protesting inability to see how there can be two opinions as to what the total disability clause means, present their view by quoting from the clause as follows: "If the insured, before attaining the age of sixty years, shall furnish due proof that he has, before default in the payment of any premium, become wholly disabled, * # the company will pay for the said insured all premiums, etc." * And it is seriously contended, considering the words and punctuation, that the insured has, under this contract, until just before he is 60 years of age to furnish proof that at some prior time (say a quarter of a century ago), while he was not yet in default of premium payment he became totally disabled, without losing his rights under the contract. [2] A clumsy arrangement of words, even coupled with the "comma fault," will not be allowed to contravene a reasonable interpretation according to the intention of the parties at the time of using them. [3] In the language last above quoted, it is to be noticed that the word "has" is used only once. Now, if in its stead the word "had" or "did" was employed, and no portion of the policy on this particular point considered other than this thus altered, there would be force in the argument made; but the word "has" is quite significant. It is a word which is always used in the present tense. So that the words "shall furnish proof that he has" mean at the present time, and, taken in connection with the other language in the part of the total disability clause quoted, mean that he shall "furnish" the proof before "default in the payment of any premium." [4] In addition, the rule for the construc tion of contracts first mentioned is qualified or extended in such way that the intention of the parties is to be gathered, not from detached parts of the instrument, but from the whole of it. Other portions of the policy in this instance may be noticed with advan clause, in speaking of the payments the company will make for the insured, they are described as those "which shall become due and payable during the continuance of such disability." Not those which "did" or "had" become due, but those which "shall" become due. Thus showing the plan by which, if the insured become totally disabled and prevented thereby from pursuing any gainful occupation, and furnish proof thereof before default in the payment of any premium, then the company, for the insured, will make all payments of premiums which shall become due and payable during the continuance of such disability. Such a plan is manifestly designed to save the insured, in misfortune, from a forfeiture of his rights under a policy of "term insurance," which otherwise gives the insured only the right, upon the payment of a premium, to insurance upon his life for the term paid for, and the right to continue that insurance from term to term, at the same rate. Other language in this same clause may be considered. It provides: "The insured shall, however, upon due date of any premium, if so requested by the company, furnish due proof of the continuance of such disability. If the insured shall fail to furnish such proof, the company's obligation to pay the premium hereunder shall cease and the insured shall then resume payment of premiums." This provision contemplates a possible restoration of the insured from total disability (a change by no means improbable), whereupon the company in its turn is to be relieved from the obligation of paying premiums for the insured. But if appellant's idea of what this contract means shall prevail, when and by what means shall the company ever know of any relief to the insured from total disability? Obviously the insured would gain nothing by giving such information, but, on the contrary, would profit by withholding it until just before he became 60 years of age, or if he die before reaching that age for his beneficiary then to furnish proof to the company that years ago, and prior to the expiration of a period of term insurance, the insured became totally disabled, and in either of such cases hold the company liable and thus deprive it of any possible opportunity under this part of the contract. * There are a number of other provisions in the policy that point this same way, only two of which need be considered: First. Under the clause "Consideration," it is stated to be "the advance payment in cash of an annual premium of $23.70 for term insurance for one year ending on the first day of May, 1915, and the payment of an equal amount upon each anniversary date until the date of the death of the insured." Second. In the clause entitled "Grace in Payment of Premiums," it says: after the first policy year there will be allowed "In the payment of all premiums hereunder a grace of one month (not less than thirty days) ** during which time this policy shall remain in full force and effect." * reference to grace in payment of premiums It is to be observed that the provision with is required by subdivision 1, § 6059-184, Rem. Code, in all such life insurance policies after January 1, 1912. Clearly, these the Payment of Premiums," make the contwo features, "Consideration" and "Grace in tract one of "term insurance"; that is, insurance in force during the term or period for which a consideration or premium has been paid and the grace period of 30 days. It is so declared by the words "during which time this policy shall remain in full force and effect," which words, of themselves, are at once useless unless they constitute a limitation as to time upon the vitality of the contract. With what success shall it be contended that such language, which by the statute is required to be placed in all annual premium payment life insurance policies, is not out of harmony with the heavy obligations sought to be imposed upon the company by appellant's interpretation of the total disability clause of the policy? Reading this contract as a whole, there is no doubt that the contention of respondent is correct. The judgment of the trial court so construing it is affirmed. (104 Wash. 196) BANK OF CALIFORNIA, NATIONAL ASS'N, v. MORTGAGE CO., HOLLAND-AMERICA. (No. 14937.) (Supreme Court of Washington. Nov. 19, 1918.) 1. PRINCIPAL AND AGENT 183(1)-ACTION BY AGENT RECOVERY OF MONEY PAID UNDER MISTAKE. Where an agent pays money to a third person for his principal under a mistake of fact and contrary to the strict directions of his principal, he may sue to recover it. 2. PRINCIPAL AND AGENT_183(1)—MONEY PAID UNDER MISTAKE-RECOVERY. Where a bank, empowered to make conditional tender of payments under a contract, paid the money but accepted an altered receipt, the bank on the principal's refusal to accept it could bring suit for the money so paid. 3. TENDER 20-CONDITIONAL TENDER-AC A bank, occupying the relation of agent to a depositor, must account to him for sums intrusted to it with which to make conditional tender of payment of a debt owing by the depositor. Department 2. Appeal from Superior Court, King County; Everett Smith, Judge. Action by the Bank of California, National Association, against the Mortgage Company, Holland-America. Judgment for plaintiff, and defendant appeals. Affirmed. Ernest B. Herald, of Seattle, for appellant. Kerr & McCord, of Seattle, for respondent. HOLCOMB, J. This cause of action originated out of a transaction between the appellant and McPherson Bros. Company. In 1915, McPherson Bros. Company negotiated with appellant for a building loan of $2,300 evidenced by three promissory notes, one for $1,300 and two for $500 each, dated November 5, 1915, and agreed that the first of the $500 notes was due November 1, 1916, and that the interest on all the notes was payable semiannually on the 1st days of May and November, respectively. These notes were secured by a mortgage, and executed prior to the payment of the money by appellant to a broker alleged to have been representing McPherson Bros. Company. This broker retained the difference between $2,300 and $2,146.41 as commission. McPherson Bros. Company contended that it was not chargeable with a brokerage commission, and assumed the position that it had received but $2,146.41 from appellant, while appellant contended that it had paid the entire $2,300 to McPherson Bros. Company, or on its account, and that therefore the true amount of indebtedness was $2,300 as evidenced by the notes. When the first installment of interest became due, McPherson Bros. Company remitted only a sufficient amount to cover interest at the agreed rate on the prin Said "Brewster, Wash., Oct. 30, 1916. "First National Bank of Brewster, Brewster, Washington-Gentlemen: Inclosed herewith we hand you our check for $585.75, which sum we will ask you to pay to Mortgage Co. Holland-America, 402 Hoge Bldg., Seattle, Wash., subject to the following conditions: $500 of which is to be applied on the principal on a loan made by that Co. to us for $2,146.41. interest on said note due Nov. 1st, 1916. The $85.75 is to pay the second installment of Mortgage Co. shall deliver to you two coupon interest notes, one due May 1st, 1916, which interest you paid for us on said last named date; also, one coupon interest note due Nov. 1st, 1916, for which you will pay them $85.75. If however said Mortgage Co. refuses to deliver to you the two coupon interest notes above mentioned, and indorse on the principal note the $500 payment you make them, on such refusal, you shall retain until further notice check, subject to the demand of said Mortgage from us, the full amount represented by this Co. on compliance with the conditions above mentioned to wit: the delivery to you for us the two coupon interest notes above mentioned, of the $500 on said principal note. and proper acknowledgment of the payment "Yours truly, McPherson Bros. Co. "By Peter McPherson." Respondent prepared and addressed a letter to appellant, accompanied by a form of receipt to be signed and executed by appellant, which are as follows: "The Bank of California, National Association. "Seattle, Wash., November 1, 1916. "Mortgage Co., Holland-America, 402 Hoge Building, Seattle, Washington-Dear Sirs: At the request of the First National Bank, Brewster, we inclose herewith our manager's check for $585.75, together with receipts in duplicate. the principal of the McPherson Bros. Co. loan "Of this amount, $500.00 is to be applied on for $2,146.41. The $85.75 is to be the second installment of interest of the said note, due November 1st, 1916. interest notes, one due May 1st, 1916, which "Please deliver to the bearer two coupon interest was paid on that date, also interest coupon due November 1st. "Please deliver the receipts to the bearer. "The Bank of California, N. A., "$585.75. Seattle, Washington. "Received of the Bank of California, National Association, Seattle, Washington, five hun dred eighty-five and 75/100 dollars as per mail order of First National Bank, Brewster, for account of McPherson Bros. Co., $500 applied on principal note $2,146.41, $85.75 payment interest due November 1st, 1916. "Dated October 30, 1916." The foregoing letter, check, and receipt were delivered to appellant by respondent's bank messenger. The appellant's representative took the receipt tendered by the respondent's messenger, changed the $2,146.41 to $2,300, and inserted after $85.75 the words "to apply on," and after payment inserted the word "of," so that the latter part of the receipt read $500, applied on principal note of $2,300.00, $85.75 to apply on payment of interest due November 1, 1916. He retained the check and delivered the altered receipt and the $500 note due to the messenger, but neglected to deliver the interest coupons to the messenger as directed in respondent's letter. Upon the return of the messenger to the bank with the receipt in its altered form, respondent telephoned appellant and was informed by it that the matter had been adjusted with McPherson Bros. Company, that appellant had correspondence to show that fact, and that therefore the alteration was all right. Respondent, relying on the representation, transmitted the receipt and note to the First National Bank of Brewster. On or about November 6, 1916, respondent received the return of the note and receipt as not satisfactory and not as tendered, and requested that they be returned to appellant and that $585.75, the amount paid as a conditional tender, be returned. The respondent took the matter up with appellant in an en deavor to have appellant return the money to respondent, offering in return to restore the note and altered receipt to appellant, without effect. Counsel for respondent also called on the appellant's representative with a view of getting matters amicably adjusted. On January 13, 1917, the First National Bank of Brewster demanded of respondent the return of the $585.75 unless the receipt be executed as outlined in the instructions sent with the draft on October 30, 1916. | Laing v. Nelson, 41 Minn. 521, 43 N. W. 476; Brown v. Shaw, 51 Minn. 266, 53 N. W. 633; Parks v. Fogleman, 97 Minn. 157, 105 N. W. 560, 114 Am. St. Rep. 703, 4 L. R. A. (N. S.) 363. [2-4] It is clear that defendant obtained the money from the possession of plaintiff's messenger, and retained it without right, tion in the receipt and the appropriation of by the alteration of the receipt. The alteraamount of damage to the plaintiff's princithe money may have caused but a small pal, but that does not matter. A conditional tender must be strictly followed if accepted, or entirely refused. Respondent, as agent, was and is liable to account to its principal for the whole sum intrusted to it. The whole sum intrusted to it belonged to appellant if it accepted the offer as made, and to the principal if not. The demurrer was properly over ruled. HOLCOMB, J. This action was commenced June 7, 1917, against the defendants, who are the executors of the last will and testament of Orion O. Denny, who died in Seattle, February 26, 1916. Issues were joined and the cause set for trial January 3, 1918. On The rights of appellant and McPherson Bros. Company are not at issue in this ac tion. So far as the rights of appellant and respondent are concerned, the facts are that respondent tendered to appellant a conditional payment to be accepted upon the conditions or to be declined absolutely. Appellant | December 28, 1917, upon motion supported by demurred to the plaintiff's complaint, upon the grounds that the respondent was not the proper party plaintiff, and that it did not state facts sufficient to constitute a cause of action. [1] Where an agent pays money to a third person for his principal under a mistake of fact and contrary to the strict directions of his principal, he may sue to recover it back. affidavit, plaintiff asked for a continuance, and again on January 3, 1918, at the date of the trial, renewed her motion for continuance, supported by additional affidavits, These motions were both denied; whereupon, plaintiff being unable to proceed further, judgment of dismissal with costs was granted the defendants. From this judgment plaintiff appeals. The controlling question is whether the trial court abused its discretion in denying a continuance and in denying the motion for a new trial. The affidavits and letters purporting to have been used at the hearing and in support of the motions for a continuance and for a new trial, not having been embodied in a statement of facts or a bill of exceptions and by the certificate of the trial judge made a part of the record, must be stricken. Chevalier & Co. v. Wilson, 30 Wash. 227, 70 Pac. 487; Gray v. Granger, 48 Wash. 442, 445, 93 Pac. 912; State v. Lee Wing Wah, 53 Wash. 294, 101 Pac. 873; Hayworth v. McDonald, 67 Wash. 496, 121 Pac. 984; Gazzam v. Zimmer, 68 Wash. 41, 122 Pac. 366; Powers v. Washington Portland Cement Co., 79 Wash. 1, 3, 139 Pac. 615; Thurman v. Kildall, 80 Wash. 283, 141 Pac. 691; Van Dyke v. Johnson, 82 Wash. 377, 384, 144 Pac. 540; Lebovitz v. Cogswell, 83 Wash. 174, 179, 145 Pac. 212; State v. Armstrong, 87 Wash. 275, 277, 151 Pac. 775; Kuykendall v. Lambie, 99 Wash. 366, 169 Pac. 853; Lansdown v. Huff, 174 Pac. 21; Davidson v. King, 174 Pac. 434; Norris-Short Co. v. Everson Mer. Co., 174 Pac. 645. The record of this case being incomplete, the affidavits in support of the motions for a continuance and for a new trial being stricken, the appeal must be dismissed, and the judgment is affirmed. MAIN, C. J., and FULLERTON, MOUNT, and PARKER, JJ., concur. (31 Idaho, 724) BETTILYON HOME BUILDERS CO. v. (Supreme Court of Idaho. Nov. 6, 1918.) Rev. Codes, § 2792, refers to foreign corporations "doing business" in this state. 2. CORPORATIONS 657(3)-FOREIGN CORPORATIONS DOING OF BUSINESS - ENFORCEMENT OF CONTRACT. A contract or agreement which cannot be sued upon or enforced in any court of this state by a foreign corporation under the prohibitions of Rev. Codes, § 2792, is one growing out of the "doing of business" in this state, or one so connected therewith as to be an element of such transaction. 3. CORPORATIONS 661(2)-FOREIGN CORPORATIONS-ENFORCEMENT OF CONTRACT-DoING BUSINESS IN STATE. T. Bailey Lee, of Burley, for appellant. RICE, J. The plaintiff alleged in the first cause of action that it was and is a corporation, organized and existing under the laws of Utah, with its principal office at Salt Lake City, and is engaged in a general real estate brokerage; that on or about May 25, 1914. the defendants, at Salt Lake City, Utah, hired and employed the plaintiff to secure for defendants a satisfactory buyer for certain hotel property situated in American Falls, in this state; that thereafter plaintiff secured a satisfactory buyer of said property in the person of one C. W. Thompson of St. Anthony in this state. In their answer defendants allege that if the plaintiff is a corporation, as alleged in the complaint, is has no legal capacity to sue in the courts of this state, for the reason that it had failed to comply with the laws thereof relating to foreign corporations. At the trial, after the plaintiff rested, a motion for nonsuit was made and granted on the ground that the plaintiff, being a foreign corporation, had not complied with the laws of this state requiring the filing of articles of incorporation, and the designation of an agent, at the time it made the contract and performed the services alleged in the complaint. [1, 2] It is conceded that at the time the contract was entered into, and the services thereunder performed, the corporation had not complied with the provisions of Rev. Codes, § 2792. It is provided in this section that every corporation, not created under the laws of this state, must, "before doing business in this state," comply with the provisions of the law with reference to filing certified copy of its articles of incorporation with certain designated officers, and the appointment of some person in the county in which the principal place of business of such corporation in the state is conducted upon whom process may be served. It also contains the following provision: "No contract or agreement made in the name of, or for the use or benefit of, such corporation prior to the making of such filings as first herein provided, can be sued upon or enforced in any court of this state by such corporation." The section refers to corporations "doing When a contract or agreement sued upon business in this state." This court has been by a foreign corporation proves to be one which called upon on several occasions to consider was made and performed outside of this state, the question as to whether it was doing other the question as to what transactions business within the state is not material. are included within the meaning of the exAppeal from District Court, Power Coun-pression "doing business in this state.” Katz ty; J. J. Guheen, Judge. v. Herrick, 12 Idaho, 1, 86 Pac. 873; Belle City, etc., v. Frizzell, 11 Idaho, 1, 81 Pac. 58; Toledo Computing Scale Co. v. Young, 16 Idaho, 187, 101 Pac. 257; Bonham Nat. Bank v. Grimes Pass P. M. Co., 18 Idaho, 629, 111 Pac. 1078; Foore v. Simon Piano Co., 18 Idaho, 167, 108 Pac. 1038; Diamond Bank v. Action by the Bettilyon Home Builders Company against W. H. Philbrick and R. B. Greenwood, partners doing business under the name and style of Philbrick & Greenwood. Judgment of nonsuit and plaintiff appeals. Reversed. |