eizomkmrn v. Accxnnnr INS. co. OF Nonwn Ammuca. 29
was some effort made, to make payment. There are cases that lay
down the rule as absolute that when a party, under such circumstances,
receivescredit as a favor, he takes all the responsibility of that favor,
and he must make the payment within the time, or else the benent of
that credit is lost; that is, with this single exception. Those cases ad—
mit that if the party to whom the payment is to be made, through his
intentional misconduct, prevents payment, and the party who is to make
the payment is thereby unable to do so, according to the terms of the
credit, he is protected as if he had made the payment. I think that the
rule is better that the party must use all reasonable diligence and effort
to make the payment, and unless he does that it must be held that it
annuls the contract. In this case Mr. Terpenning was the man who ne-
gotiated this insurance, and was the man who took the application of
Mr. Cronkhite to the general agent. He was the man who received the
policy from the general agent and delivered it `to Mr. Cronkhite, and he
was authorized to receive the premium. He did in fact collect tive dol-
lars between the 3d of October and the 1st of November. Mr. Cronkhite
paid it, and recognized that he was entitled to receive it. Mr. Terpen-
ning stood by him on that 1st day of November, and, instead of handing
the money to Terpenning, he said: "I want you to make payment, and
I will settle with you." Instead of saying: "Here is the money. I
want to make payment, and have this contract carried out, and this
matter closed up,"—he simply left the matter to Terpenning. Counsel
argue that, as Mr. Terpenning agreed to pay it, it was the same as though
the money had actually been paid. I think there is a marked distinc-
tion. If the money is actually paid to the agent, in the discharge of
his duties, thecompany can enforce collection by the strong process of
the criminal law; but where the agent has simply said to the debtor, "I
will pay the money for you," it cannot be enforced by any process that
the criminal law affords. The company, when it gave to Mr. Terpen- _
ning the right to collect this money, never consented to take Mr. Ter-
penning as its debtor, and never permitted him to say, "I will be good
for this premium, and will pay you the money, and the insured will
settle with me." That is no payment. The money must come out of
the pocket of the insured, and pass into the hands of someperson who
has authority to receive it from the company; because after it passes into
the hands of some person authorized to receive it, an agent either special
or general, the money can be collected by the company, for, if he does
not turn it over}, he is chargeable with embezzlement. So it stands thus
that there was a party present who was entitled to receive the money,
and who hadreceived part of the money; and the insured never gave him
the money,iand never made any further etlbrt to make payment, but
simply said to this collector, "You make the payment, and I will settle
with you.” It seems to me very clear that that cannot be held asethe
exercise of reasonable diligence to accomplish the payment of the money.
The man was immediately present who had given him the policy, who
had conducted the negotiations, who had received part of the premium,
and who was in fact authorized _to receive it all; and he never handed