This is a writ of error to the circuit court of the United States for the Northern district of New York. The defendant in error, Catherine L. Edwards, obtained a judgment in the circuit court for the sum of $5,387.50 against the Travelers' Insurance Company of Hartford, Connecticut, on a policy of insurance upon the life of her brother, Frank Edwards. The suit was originally instituted in the supreme court for Ontario county, New York, from whence it was removed by the plaintiff in error into the circuit court of the United States for that district. The record of a long trial before a jury is presented to us in a stenographic report of the proceedings there, which has been adopted by the parties and by the judge trying the case as a bill of exceptions. It is obvious from this paper that the main controversy before the jury was upon a question of suicide set up by the defendant company, but the brief of the plaintiff in error, and his assignment of errors, eliminates all this, and relies upon the defense stated by the brief in the following language: 'Trial was had before a jury, and a verdict was rendered for the plaintiff, and the questions now arising are whether the plaintiff below complied with those conditions of the policy which required written notice to the company of the death of the deceased, and proofs of the same within seven months thereafter; whether the action was prematurely brought by reason of the plaintiff's failure to comply with such conditions of the policy before bringing suit; and whether certain details of evidence bearing upon the foregoing questions were properly admitted against the objection of the company.'

The assignments of error correspond with this statement, and are given verbatim, as follows: 'The circuit court erred (1) in that it admitted testimony relating to the acts and statements of Mr. E. M. Phillips, the local agent of the insurance company at Southbridge, Mass., with reference to the notice of death to be given by the defendant in error to the insurance company, and the delivery and reception of the proofs of death, as binding the company and affecting the rights and duties of the parties to the contract of insurance, it not appearing that Phillips had authority to represent or bind the company in this regard. Record, 22, 23, 28, 29, 29, 58, 77. (2) In that the court charged the jury as follows: 'If, upon this evidence, you find that upon the third of July, or during the seven months limited by the contract, the proofs of death which have been referred to were served upon Mr. Phillips, who was held out by this company to be its agent, under the circumstances detailed in this case,—that is, if you believe that he stated to the representatives of this assured that the proofs were to be left with him, and served upon him, and not upon the company,—then I say, for the purposes of this case, thatt hat was sufficient service upon the company, within the provisions of the contract.' Charge, 79. (3) In that it refused to rule that the defendant in error had not furnished evidence of the notice of death required by the policy, inasmuch as there was no evidence that any notice in writing was given to the company after the death of Edwards or that proofs of death were furnished to or served upon the company, and within seven months of his death, as required by the policy. Pages 29, 77, 78. (4) In that the court declined to charge the jury as follows: 'That, under the undisputed evidence in this case, the jury must find a verdict for the defendant under the facts alleged in the second separate answer.' Page 82; Second Separate Answer, 3. (5) In that it refused to rule that the suit was prematurely brought, because the plaintiff below had not at the time furnished due notice and proofs of death as required by the policy, and ninety days thereafter had not elapsed. Page 78.'

The language of the policy upon this point is as follows: 'That, in the event of the death of the person insured, then the party assured, or his or her legal representatives, shall give immediate notice in writing to the company at Hartford, Conn., stating the time, place, and cause of death, and shall within seven months thereafter, by direct and reliable evidence, furnish the company with proofs of the same, giving full particulars, without fraud or concealment of any kind.'

The answer of the defendant alleges that the plaintiff did not give to the defendant, at Hartford or elsewhere, immediate notice in writing of the death of the said insured; and that defendant did not receive from said plaintiff notice of the death of the said Frank Edwards until the tenth day of February, 1883, his death occurring on June 19, 1882; and that the plaintiff did not, within seven months after the last-mentioned date, give notice in writing to the defendant, at Hartford or elsewhere, nor in the manner and form as required by the policy, and has not delivered to or furnished the defendant with proofs of the death of said Frank Edwards with full particulars, but, on the contrary, failed and neglected so to do.

The evidence on this subject shows substantially that Phillips was the agent at Southbridge, Massachusetts, of the defendant corporation; that the application on which the policy issued was forwarded by Phillips to Hartford, the policy returned to him, and by him delivered to Edwards; that the receipt for the premium, signed by Rodney Dennis, secretary of the company, declared in the body of it that the policy would 'not be valid until the above-stated premium has been received during the life-time of said Frank Edwards, and this receipt countersigned by E. M. Phillips, agent of this company at Southbridge, Mass.' On the margin of the receipt was the statement that 'the agent who receives the within premium should countersign this receipt, and invariably state over his signature the date at which the payment is made to him.' Across its face was written: 'The within premium received and this receipt countersigned by me this twenty-fourth day of May, 1882. E. M. PHILLIPS, agent at Southbridge, Mass.' It was further indorsed: 'All policies and agreements made by this company are signed by its president or secretary. No other person can alter or waive any of the conditions of the policies, or issue permits of any kind, or make agreements binding upon said company. RODNEY DENNIS, secretary.'

The evidence further shows that, on the day after the death of Edwards, a gentleman named Bartholomew, who was a friend, and probably the attorney, of the family, met Mr. Phillips in the street; that Phillips said to him in regard to Edwards, whose death was then just known, that he was insured in the Travelers' Life Insurance Company, and that he (Phillips) was going to Hartford. The witness Bartholomew testifies: 'I asked him if that was so. I didn't at that time know that he had a policy in thatc ompany. He said he was going to Hartford, and would give to the company the notice of his death, and would procure the blanks for the proofs of loss. I asked him if it would do as well for him to give the notice to the company in that way as for any party interested. He said it would, and I think that was all that was said then; saw Mr. Phillips some days after that; met him somewhere in the street,—can't tell where,—and he told me he had been to Hartford, and had procured the blanks, and that if I would come to his office he would deliver them to me.' The other evidence in the case, including that of Mr. Dennis, the secretary of the company, leaves no doubt of the fact that Mr. Phillips informed him of the death of Edwards, and of all that was known about it at that time, though very little was known in Southbridge, as he died in Boston. Mr. Dennis gave Phillips the blanks for the regular proofs of death, which the company always required, which blanks contained instructions as to how these proofs should be made out, and what should be contained in the affidavits directed by the company to be made. Mr. Phillips delivered these papers to Bartholomew within a day or two after his visit to Hartford, and said to him: 'When you get them completed I want you to return them to me.' This Bartholomew swears to positively, and Phillips, while be does not recall the direction to return them to him, says that he is not willing to swear to the contrary. These affidavits were made out and delivered to Phillips on the third day of July. Through some neglect on his part, they remained in his office beyond the period of seven months which the policy fixed as the time within which they should have been delivered at the Hartford office. His attention having been brought to these papers in some manner, not particularly described, he called upon Bartholomew with them, and stated that they were not sufficient in regard to the particulars of the death of Edwards. They were afterwards returned to Phillips, who forwarded them to the company about the seventh day of February, 1883, which the company now insists was too late.

The whole of the testimony upon this narrow issue turns upon the question whether the absence of a written notice of the death of the insured, when the company had full notice of it through Phillips, their agent, and whether the delivery of the proofs of death to the company after the expiration of the seven months, although they had been delivered to the agent Phillips within the time required, shall defeat a recovery.

The opinion of the judge who tried the case, on a motion for a new trial, states the facts as he understood them, and, as we think, with accuracy, together with his view of the law of the subject, so well that we transcribe it here: 'The facts are as follows: The insured died June 19, 1882. A day or two afterwards E. M. Phillips, who is described in the receipt referred to as 'agent of this company at Southbridge, Mass.,' met one of the family of the deceased on the street, informed him that he was going to Hartford, and would give the company the requsite notice, and would procure the necessary blanks for the proofs of death. He did go to Hartford on or about the twenty-first of June, saw the secretary of the company, gave him notice of the death, stating all the particulars which he then knew, and obtained the blank proofs. On his return he handed the blanks to one of the plaintiff's representatives, saying at the time, 'When you get them completed I want you to return them to me.' They were filled out and delivered to him July 3, 1882. He retained them for several months, and then returned them to a brother of the plaintiff, saying that they were incomplete, and demanded additional information. On the twenty-ninth of January, 1883, they were again delivered to Phillips, and by him sent to the company on or about the seventh of February. The company, in acknowledging their receipt, made no objection that they were received too late, and retained them ini ts possession. They were produced on the trial by the defendant's counsel. It must be held that, if the plaintiff has not followed the contract literally in these particulars, it was because she was misled by the course of the defendant, and that the defendant is not now in a position to take advantage of the plaintiff's omission, having waived a strict performance of the contract.' See Edwards v. Travelers' Ins. Co., 22 Blatchf. 225, 20 Fed. Rep. 661.

Solomon Lincoln, for plaintiff in error.

[Argument of Counsel from pages 463-466 intentionally omitted]

W. N. Cogswell and W. F. Cogswell, for defendant in error.

MILLER, J.