“ Rep. 35, and quoted the following principle: 'Forfeitures are not favored in the law, and will not be sustained upon mere inferences. Where, upon breach by one party of a condition or stipulation in a contract, the other party thereto has the option to declare the contract forfeited, and thus relieve himself from liability upon it, and seeks to exercise such option, he must do so unconditionally, and in plain, positive, and unmistakable terms.' And the court finally concludes that, 'in the case at bar, the company should not have retained the check and note and remained silent, as they did. ”

“ They are often the means of great oppression and injustice. And where adequate compensation can be made, the law in many cases, and equity in all cases, discharges the forfeiture upon such compensation being made. It is true we held in Statham's Case, 93 U.S. 24, 23 L. ed. 789, that in life insurance time of payment is material, and cannot be extended by the courts against the assent of the company. ”

“ And other cases hold that when the condition of forfeiture is in the note only, the mere fact of nonpayment at maturity does not of itself avoid the policy. A review of the cases we do not consider necessary. We prefer to follow our own decisions.
Some of those decisions, hold, however, as we have seen, that a waiver of forfeiture may be inferred from the conduct of the company, and that 'courts seize hold of any circumstances that indicate an election or intent to waive a forfeiture.' 96 U.S. 244, 24 L. ed. ”

“ By the policy the plaintiff in error promised to pay defendant in error the sum of $3,000 upon the death of Thomas M. Lewis, if death should occur on or before the 4th day of March, 1900, and to pay the sum within sixty days after the receipt by plaintiff in error of satisfactory proofs of death and its cause. Lewis died on the 7th of October, 1899.
The issues in the case besides the constitutionality of the Texas statute are (1) whether the insurance company waived proof of death; (2) whether the policy had ceased and determined before the death of the insured by nonpayment of the premium. ”

“ Lewis was to do it and let Starn have the fees. No work ever was done, and no money ever was paid to S. E. Starn or the defendant in pursuance of this verbal arrangement. Except that the note was given and the verbal agreement made, as just above stated, the defendant never received, and the insured never paid, anything upon account of the premium for the policy sued upon. S. E. Starn testified that before the issuance of the policy he reported to the defendant his agreement with Dr. Lewis concerning the payment of the premium. ”

“ In other words, held, not the law of commercial paper, but the contract of the parties, determined the conditions of forfeiture, and that the contract of the parties was expressed in the draft to be that the policy should become void if the draft was not paid at maturity. 'We think it clear,' was said:
'Therefore, that, notwithstanding the renewal receipt, the condition expressed in the draft was binding on the insured. As we have shown, that condition was that the policy should become void if the draft was not paid at maturity. ”

“ The instruction is assigned as error. We concur with the circuit court. The conduct of the company was tantamount to a waiver. Knickerbocker L. Ins. Co. v. Pendleton, 112 U.S. 696, 28 L. ed. 866, 5 Sup. Ct. Rep. ”

“ While the doctor was in the house the plaintiff requested him to call on J. R. Reeves at the latter's pharmacy and ask him to pay off the insured's note for them, held by Starn; the doctor agreeing to do so. Dr. Green and S. E. Starn rode in the former's buggy from the plaintiff's residence to the business portion of the city of Fort Worth Mr. Starn left the buggy as soon as the business portion of the city was reached and Dr. Green drove immediately to Reeves's pharmacy and indicated to him the plaintiff's request. Mr. ”