The opinion
Stacy, O. J.
The theory of the nonsuit is that .the policy lapsed for nonpayment of semiannual premium of $12.16 due 14 June, 1935. Nevertheless the policy recites payment of $23.40, annual premium, before unconditional delivery, which, on its face, is sufficient to keep the policy in force until 14 December, 1935. This defeats the motion to nonsuit.
Ferrell v. Ins. Co.,
208 N. C., 420 , 181 S. E., 327 ,
S. c.,
207 N. C., 51 , 175 S. E., 692 ;
Green v. Casualty Co.,
203 N. C., 767 , 167 S. E., 38 .
The authorities are to the effect that a recital of payment in a policy of insurance, unconditionally delivered, may not be contradicted to work a forfeiture of the policy, or to defeat a recovery thereon, in the absence of an allegation of fraud.
Grier v. Ins. Co.,
132 N. C., 542 , 44 S. E., 28 . To this extent it is contractual and binding upon the parties.
Britton v. Ins. Co.,
165 N. C., 149 , 80 S. E., 1072 . Compare
Smith v. Land Bank, ante,
79.
“If the premium in fact is not paid, the acknowledgment of payment, so far as it is a receipt for money, is only
prima facie,
and the amount
*379
can be recovered; but so far as tbe acknowledgment is contractual, it cannot be contradicted so as to invalidate the
policy”
— Clark,
C. J.,
in
Grier v. Ins. Co., supra.
See
Kendrick v. Ins. Co.,
124 N. C., 315 , 32 S. E., 728 ; 70 A. S. R., 592;
Harper v. Dail,
92 N. C., 394 ;
Bank v. Robertson,
210 N, C., 436, 187 S. E., 575 ;
Pate v. Gaitley,
183 N. C., 262 , 111 S. E., 339 ;
Ins. Co. v. Morehead,
209 N. C., 174 , 183 S. E., 606 .
The
Britton case, supra,
is directly in point and decisive of the present appeal. As said by
Brown, J.,
in that case: “The defendant better change its custom rather than knowingly to embody in its policies statements it declares are untrue.”
There was error in sustaining the motion to nonsuit.
Reversed.