Benjamin N. Cardozo

“ If, however, the insured became totally and permanently disabled before the age of sixty, the company, petitioner, was to pay him a monthly income at an agreed rate and was to waive the payment of any premium that would otherwise be due. Disability was to be considered total when the insured was so affected by bodily injury or disease as to be wholly prevented from performing any work, from following any occupation, or from engaging in any business for remuneration or profit. ”

“ In particular, 'the total and irrecoverable loss of the sight of both eyes or of the use of both hands or of both feet or of one hand and one foot' was to constitute 'total disability for life.' Before making any income payment or waiving any premium, the company might demand due proof of the continuance of total disability, not oftener, however, than once a year after such disability had continued for two full years. ”

“ There may be times when justice requires that, irrespective of repudiation or abandonment, the sufferer from the breach shall be relieved of a duty to treat the contract as subsisting or to hold himself in readiness to perform it in the future. ”

“ On the other hand, a party to a contract who has no longer any obligation of performance on his side, but is in the position of an annuitant or a creditor exacting payment from a debtor, may be compelled to wait for the instalments as they severally mature, just as a landlord may not accelerate the rent for the residue of the term because the rent is in default for a month or for a year. ”

“ If he had recovered the use of hand or foot and was not otherwise disabled, his right to benefits had ceased, and the payment of the premium was again a contractual condition. There is nothing to show that the insurer was not acting in good faith in giving notice of its contention that the disability was over. Mobley v. New York Life Insurance Co., 295 U.S. 632, 638, 55 S.Ct. 876, 79 L.Ed. 1621, 99 A.L.R. 1166. If it made a mistake, there was a breach of a provision of the policy with liability for any damages appropriate thereto. We do not pause at the moment to fix the proper measure. ”

“ In the second count, after stating the same facts, he claims for damages the total benefits that will be payable to him during the same period of expectancy, if he lives that long and his disability continues. The damages so computed are $15,900. No deduction is made on account of future premiums, for by hypothesis the disability will continue during life. The defendant demurred to both counts, stating in the demurrer that the declaration sets forth a cause of action for the benefits and premiums accruing prior to the date of the writ, and for nothing in excess thereof. ”

“ If he is already in default for the nonpayment of a premium, he will not be in any worse predicament by multiplying the defa lts thereafter. On the other hand, if his default is unreal because the premiums had been waived, the insurer will be estopped from insisting upon later premiums until the declaration of a lapse has been canceled or withdrawn. Besides, if the disability is permanent, there will be nothing more to pay. ”

“ Horst, supra; Pollock on Contracts (9th Ed.) p. 293; Williston, Contracts, vol. 3, § 1296, et seq., collecting the decisions. It is the outcome of words or acts evincing an intention to refuse performance in the future. ”