28 FEDERAL naronrnn.
The argument is that, while payment in fact was not made, effort was
made to pay it, and everything was done that reasonable diligence could
demand in order to insurepayment, and, having done that, the fact that
no payment was made is immaterial; that he was ready to pay, and offered
` to pay, at a subsequent time. That contract of insurance was good or bad,
was closed or continued in force, on the night of the lst of' November.
What took place at that time preserved it to the next day. or else it was
dead. There are three kinds of cases in which this matter of forfeiture
arises, and the rule controlling in each is different. Where a party seeks
to enforce a forfeiture of money which has been paid, the courts will look
unfriendly towards that claim, and see that everything exists which com-
pels the court to sustain the forfeiture. I have had quite a number of
cases of that kind in the state of Nebraska. A man contracts to sell a
farm for say $1,000, payable in 10 annual payments, with a provision
in his contract that if the money is not paid each year, on the day
named, a forfeiture of the contract and the money already paid shall
result. Now, suppose the purchaser pays seven or eight years the annual
,_ payment of $100, and on the eighth or ninth year fails to make payment
or tender on the very day named, and the vendor insists upon a forfeit-
ure, and seeks to retake the land, and also retain the seven or eight
hundred dollars, which the purchaser has paid. It is seen at a glance
that he is seeking to enforce a harsh rule against the purchaser, and
courts will not enforce the forfeiture if there is any reasonable excuse for
refusing it. -He is trying to rest upon the strict letter of the contract,
and retake that which he had agreed to sell, and for which he had re-
ceived a large part of the consideration, and also to retain the money
which has been paid. Then there is an intermediate class of cases where
one party contracts to sell a piece of property worth a thousand dollars
A for a thousand dollars, the money to be paid at a future time, and the
t money is not paid. Neither party stands in a position, one to the other,
where a forfeiture would work any hardship. The one party still has his
property, and the other his money. If the position of the property has
remained unchanged, and the purchase money has not been paid, the
matter does not appeal to the court strongly on either side. Then, again,
as in this case, one party seeks to compel the payment of a large sum
of money which was promised to be paid in consideration of a small
sum,—here, the payment of $5,000 for $32.50,-and the party insists
that, although he has not paid, he was ready to pay, and attempted to
pay. The parties occupy a different attitude in such a case, so far as
their equities are concerned, from the other cases. Now, it is conceded
that the money was not paid. The claim of the beneficiary, the plain-
tid here, is that the insured took reasonable means to make payment,
and failed. As I said before, the insured went with Mr. Terpenning to
the office, the general oflice, of the company here. The party who had
been the generalagent said he was no longer general agent, but Mr. Mc-
Galfey was, and he must be seen. Then Mr. Cronkhite went out, and
told Mr. Terpenning to go back and pay the premium; and he went back,
as he says, two or three times. Now, there was some diligence, there