evidence and established the liability of defendants. Morley v. Town of Metamora, 78 Ill. 394; Roper v. Trustees of Sangamon Lodge, 91 id. 518; Longan v. Taylor, 130 id. 412; Cowden v. Trustees of Schools, 235 id. 604.

Finding no reversible error in this record the judgment of the Appellate Court will be affirmed.

Judgment affirmed.

ION T. ROSE, Appellant, vs. THE MUTUAL LIFE Insurance COMPANY OF NEW YORK, Appellee.

Opinion filed April 23, 1909.

1. INSURANCE-delivery of policy is not essential to validity of contract. Ordinarily a life insurance policy becomes binding on the insurer when signed and forwarded to the insurance broker to whom the application was made, to be delivered to the insured, and actual delivery to the insured is not essential to the validity of the contract.

2. SAME-insurance runs from date of policy and not date of delivery. In the absence of any agreement to the contrary, life insurance begins to run from the date of the policy and not from the date of its delivery, where the policy acknowledges the receipt of the first premium, and, in terms, insures the life of the holder from the date of the policy, and there is nothing to contradict the prima facie fact that the application was acccpted, the premium paid and the policy issued on such date.

3. SAME when notice that payment is due is not necessary. The New York statute requiring notice to be mailed to the last known post-office address of the insured in that State as a condition to forfeiture of the policy for non-payment of premiums does not apply to insurance issued by New York companies in other States, even though the contract of insurance provides that it shall be subject to the charter of the company and the laws of New York.

4. SAME a policy may provide for waiver by insured of notice that payments are due. Where a life insurance policy provides that notice that each and every payment of premium is due is given and accepted by the delivery and acceptance of the policy and that any further notice is expressly waived, no notice is required, and if there is a default in payment the company need not declare a forfeiture but may set it up in defense when sued on the policy.

APPEAL from the Appellate Court for the Second District;-heard in that court on appeal from the Circuit Court of Kane county; the Hon. L. C. RUTH, Judge, presiding.

FREDERICK A. BROWN, (WILLIAM R. T. Ewen, Jr., and W. V. EATON, of counsel,) for appellant:

This insurance began upon the delivery of the policy, July 17, 1904. Pease v. Ritchie, 132 Ill. 638; Logsdon v. Supreme Lodge, 34 Wash. 667; Hulick v. Scovill, 4 Gilm. 190; Spencer v. Myers, 26 N. Y. Supp. 371; 1 Randolph on Commercial Paper, sec. 216; 1 Beach on Contracts, sec. 8; McMasters v. Insurance Co. 78 Fed. Rep. 23, and 183 U. S. 25; Stinchcombe v. Insurance Co. 46 Ore. 319; Stramback v. Insurance Co. 94 Minn. 281; Stringham v. Insurance Co. 44 Ore. 447.

The contract is governed by the laws of New York. It is provided therein that it should be subject to the laws of the State of New York and that the contract is to be performed in New York. Lewis v. Headley, 36 Ill. 433; Mason v. Dousay, 35 id. 424; Davenport v. Karnes, 70 id. 465; Abt v. Bank, 159 id. 467; Bank v. Banking Co. 114 id. 483.

The contract being a New York contract, the statute requiring notice to policy holders became a part of the contract. Insurance Co. v. Berwald, 73 S. W. Rep. 436; Mathias v. Cook, 31 I. 83; Baxter v. Insurance Co. 119 N. Y. 450.

Defendant cannot rid itself of the operation of the statute by providing "that notice of each premium due is given by the delivery and acceptance of the policy and any further notice required by statute is thereby expressly waived." Mathias v. Cook, 31 Ill. 83; Baxter v. Insurance Co. 119 N. Y. 450; Griffith v. Insurance Co. 101 Cal, 627.

The provision of the New York statute requiring notice to be sent "to the last known post-office address in this State" does not relieve the company of the duty of sending

a notice to the insured in Kentucky. Bank v. Godfrey, 23 Ill. 531; Starkweather v. Bible Society, 72 id. 50; Bank v. Ware, 13 Pet. 588; Railway Co. v. County Comrs. 6 Kan. 245; Insurance Co. v. Ficklin, 74 Md. 180.

WINSTON, PAYNE, STRAWN & SHAW, (M. H. WHITNEY, of counsel,) for appellee:

The New York statute set forth in the declaration, to-wit, section 92 of chapter 690 of laws of the State of New York, enacted in the year 1897, does not apply outside of said State. Insurance Co. v. Hill, 193 U. S. 551; Insurance Co. v. Cohen, 179 id. 262; 3 Cooley on Insurance, 2293; Allison v. Insurance Co. 107 S. W. Rep. 730; Insurance Co. v. Glover, 78 id. 146; McDougald v. Insurance Co. 146 Fed. Rep. 674; Insurance Co. v. Bradley, 82 S. W. Rep. 1031; Matthews v. Insurance Co. 61 S. E. Rep. 192.

The period of insurance covered by the policy expired thirteen months from the date thereof. McMaster v. Insurance Co. 183 U. S. 25; Tibbitts v. Insurance Co. 65 N. E. Rep. 1033; Methvin v. Life Ass. 61 Pac. Rep. 1112; Jewett v. Insurance Co. 112 N. W. Rep. 734; Stringham v. Insurance Co. 44 Ore. 447; Wilkie v. Insurance Co. 60 S. E. Rep. 427; Insurance Co. v. Stegall, 58 id. 79; McDougald v. Insurance Co. 146 Fed. Rep. 674; Johnson v. Insurance Co. 143 id. 950; Bryan v. Insurance Co. 42 Atl. Rep. 513; Armstrong v. Assurance Society, 2 Ont. 771.

Actual delivery of a policy to the insured is not essential to the validity of the contract, unless the contract so provides. I Cooley on Insurance, 442.

Mr. CHIEF JUSTICE CARTWRIGHT delivered the opinion of the court:

Appellant brought this suit in assumpsit in the circuit court of Kane county against appellee to recover $5000 insurance upon the life of Herbert A. Rose, her father. Her declaration finally contained eight counts, but the sixth (a

consolidated common count) was withdrawn. The court sustained a general and special demurrer of appellee to the declaration, and appellant having elected to stand by her declaration, judgment was entered in favor of the appellee. Appellant took the case to the Appellate Court for the Second District by appeal, and that court having affirmed the judgment, she prosecuted this further appeal.

The first, fifth, seventh and eighth counts set out the contract of insurance and sought a recovery upon it. The second count alleged that the application of Herbert A. Rose named the plaintiff, Ion T. Rose, his daughter, as beneficiary; that the policy of insurance was issued dated May 23, 1904, and thereafter, on July 17, 1904, was delivered to him; that he refused to accept the policy because said Ion T. Rose was therein described as his wife, and he also feared an intention on the part of defendant to give him but ten months' insurance for a full year's premium, whereupon the defendant agreed to have another policy issued dated of the day of delivery and properly describing the beneficiary, and that, relying upon the said promise, he retained the policy but defendant did not deliver to him a new policy as agreed. The third count, like the second, averred that Herbert A. Rose refused to accept the policy until the defendant agreed to issue a new policy identical with the one then offered him, excepting the beneficiary was to be described as his daughter and the policy dated July 17, 1904. The fourth count alleged that on May 12, 1904, the defendant agreed with Herbert A. Rose to pay to the plaintiff, on his death, $5000 in consideration of a certain premium paid, and then agreed to make and deliver to him a policy of insurance in accordance with that agreement to be in force from the time of its issue, but that the defendant refused to issue said policy and said Herbert A. Rose afterward died.

In presenting the argument asking for reversal counsel pay no attention to said second, third and fourth counts

and make no claim that either of them stated a good cause of action. It is manifest that if the plaintiff acquired any right by virtue of the alleged agreement to issue another policy it could not be enforced by a suit of this character.

The policy of insurance was dated May 23, 1904, and the first annual premium was paid but no further payment was made, and the insured died on August 3, 1905. Thirty days' grace was allowed for the payment of subsequent premiums, and the real questions in the case are whether the insurance began to run on May 23, 1904, or at some subsequent date, and whether a statute of New York requiring notice to policy holders before forfeiture, and prohibiting forfeiture within one year after default without giving notice as therein provided, became part of the contract of insurance.

Counsel state, in a general way, the averments of the first, fifth, seventh and eighth counts, which set out the contract, without separating the counts or stating their contents separately, and the same course will therefore be followed in this opinion.

The material facts averred and presented in argument are as follows: On May 12, 1904, Herbert A. Rose made and signed at Paducah, Kentucky, where he resided, an application to the defendant for insurance on his life to the amount of $5000, payable to the plaintiff, Ion T. Rose, his daughter, who also resided at Paducah, Kentucky. The application provided that it was the basis and part of a proposed contract of insurance, "subject to the charter of the company and the laws of the State of New York;" that the policy to be issued should not take effect until the first premium should have been paid during his continuance in good health and the policy should have been signed by the secretary of the company and issued. The application stated that the applicant resided at 319 Jackson street, in the city of Paducah, county of McCracken, State of Kentucky, and it gave his place of business as 104 and 105