Phœnix Mutual Life Insurance v. Baker

Citations

• 85 Ill. 410

Syllabus

<p>1. Life insurance—right to home a paid-up policy. Where a party takes a policy of insurance on his life for five years, with the privilege, at any time after the payment of three annual premiums, of taking a paid-up policy by a surrender of the original policy, if he wishes to avail himself of this privilege he must do so before the policy expires. If he</p> <p>waits the expiration of five years, his rights will he gone, and he will have nothing to surrender for a paid-up policy.</p> <p>2. Monet had and received—when it lies. The count for money had and received can not be maintained if the contract has been in part performed, and the plaintiff has derived some benefit, and by recovering a verdict the parties can not he placed in the exact situation in which they originally were when the contract was entered into.</p> <p>3. Under a life policy of insurance for five years, with a provision that the assured may, after making three annual payments, receive a paid-up policy by surrendering the original, for the amount of the premiums paid, less the amount of his unpaid notes and interest, the assured can not maintain an action for money had and received for a refusal to give him a paid-up policy, even if he has surrendered the original policy.</p> <p>4. Measure oe damages—refusal to give paid-up policy of insurance. If a policy of insurance provides that the assured, after the payment of three annual premiums and the surrender of the original policy, may have a paid-up policy for the amount of the premiums actually paid, subject to the unpaid notes given, the measure of damages for a refusal to give a paid-up policy after performance of the conditions precedent, is not the amount of the premiums paid, less the notes given, but the actual value of such a policy.</p>