(COURT OF APPEAL)·
HUSSEIN ADAM MANDIL vs. MISR INSURANCE Co.
On appeal from the High Court
AC-Revision-132-58
Revision
Principles
· Insurance – Notice of forfeiture of policy- Implied terms in contract- Frustration- Agency- Acceptance of offer made through Agent
The Appellant tok out an insurance policy with the Respondents; his premiums fell into arrears. Shortly after he stopped payment of premimus he went to Egypt wher he met with an accident and was in hospital for nearly six months. During this time the Respondents sent Appellant notice. Under Clause 9 of the policy, at his Khartoum address, that unless the arrears were paid within 15 days the policy would be forfeited. On his return to Khartoum the Appellant made an offer to the Respondents, through their agent, to pay off both arrears an current premiiums at the rate of £S.20 a month. Two such payments were made but the Appellant again defaulted. The Respondents thereupon returned the two monthly payments of £S.20 and cancelled the policy.
Held:
(i) that the notice warning the Appellant of forfeiture of the policy was properly sent to the Appellant’s Khartoum Address although Respondents’ agent knew he was in Cairo at the time, there being no such stipulation in the policy requiring them to send it to any other address. Dictum of Lord Warrington in May and Butcher v. The
(ii) that the Appellant’s illness did not amount to frustration of the contract. Taylor v. Caldwell (1863) 3 B. & S. 826 applied.
(iii) That the Respondents had not accepted, through their agent, the offer made by the Appellant to pay off the arrears so that there was no new contract between the Appellant and the Respondents.

Judgment
The facts as stated by the Chief Justice were as follows:- On 21th April 1953 the Plaintiff and Defendants concluded a contract of life insurance. The Plaintiff, being the insured, undertook to pay a monthly premium of £S.9.477m/ms as from 1st January 1953. At the time of the signature of the insurance policy, the Plaintiff had already paid £S.37.908m/ms. The Plaintiff continued to pay regularly until 31st March1954 after which he ceased to pay; and therefore the total amount paid by him amounted to £S.142.155m/ms.
In April 1954 the Plaintiff left Sudan on leave to be spent in Egypt, and while he was Egypt he met with a serious accident as a result of which he was admitted to hospital on 9th May 1954. The Plaintiff remained in hospital for nearly six months after which he was discharged from hospital on 18th November 1954. At the end of November 1954 the Plaintiff returned to Khartoum.
On 15th may 1954 the Defendants sent a notice to Plaintiff at his address in Khartoum warning him, that if he did not pay within 15 days the installement falling due on 30th April 1954, his rights under the policy would be forfeited. This notice was admittedly sent to Plaintiff under claused 9 and 10 of the insurance policy.
In February 1955 the Plaintiff approached the Defendants’ agent in Khartoum and offered to pay £S.20 monthly of which £S.9.47m/ms would be for the current premium and the balance towards the settlement of the unpaid premiums. On 22nd February 1955 the Plaintiff paid £S.20. on 15th March 1955 the Plaintiff sent a letter to the Defendants asking them to accept £S.20 monthly as is suggested above. The Defendants’ agent in Khartoum recommended to his principals the acceptance of the offer made by Plaintiff. On 17th May 1955 the Plaintiff made another payment of £S.20 to Defendants’ agent. No further payments were made by Plaintiff and on 22nd October 1955 the Defendants informed the Plaintiff in writing that as he had failed to pay the arrears and also failed to submit himself to medical examintation, they authorised their agent to refund himself the £S.40 desposited by him and cancelled the insurance policy. On 10th June 1956 the Plaintiff recovered the £S.40 from the Defendants.

Advocate: Abdalla El Hassan…for Applicant
Ahmed Kheir… for Respondent
M.A Abu Rannat C.J. :- This is an application for revision by Hussein Adam Mandil, the Plaintiff in CS-865-57, claiming recovery of £S.142.155m/ms being total amount of premiums paid by him until 31st March 1954 under a policy of insurance. In the above-mentioned civil suit, the District Judge Khartoum ordered the Defendants to pay to the Plaintiff £S.142,155m/ms and costs, and on application for revision by the Difendants to the Judge of the High Court Khartoum, the Learned Judge set asied the decree of the District Judge and dismissed Plaintiff’s claim. Theis application is against the decision of the Judge of the High Court dismissing Plaintiff’s calim.
(After stating the fact his Honour continued:) In the first place, it is contended on behalf of the Applicant that is was wrong to send the notice under Clause 9 of the Insurance Policyto the Applicant’s address in Khartoum, while the Respondents’ agent knew that the Applicant ws at the time in hospital in Egypt, and that the failue to send that notice to Applicant’s address in Egypt renders that notice inoperatiove.
This contention is against the general principles of the law of contract. To accept such a contention, it does not only amount to implying something about which the parties have been silent. But is would be to insert in the contract a stipulation contrary to that for which they had agreed. To do habe signed. Lord Warrington in May and Butcher v. The King (1934) 2 K.B.22.
The second ground of appeal is that the payment of the premiums was rendered impossible by the incapacitating illness of the Applicant, and that to such a contract, the doctrine of frustration should be applied. I do not thikn that the interveningf illeness of the Applicant relives him of his liability under theis contract. It was stated by Lord Blackburn in Taylor v. Caldwell (1863) 3 B. & S. 826 that impossibility which areise subsequently to the formation of a contract does not of iteself excuse the promisor from the perfromance; for wher there is a positive contract to do a thing, not itself unlawful, the conctactor must perform it or pay damages for not doing it, although in consequence of unforeseen accidents the performance of his contract has been unexpectedly burthensome or even impossible. The authorities on the doctrine of frustration are classified into well-known groups, of course, and I am unable to find a single authority that can applied to this case in my view the doctrine of frustration deos not apply to the facts of this case.
Now I wish to deal with the subsequent bargaining which took place in February 1956. The Applicant approached the Respondents’ agent in Khartoum and offered to pay the premiums plun and equivalent amount to his settlement of the unpaid arrears. The agen recommended tis offer to his principals in Cairo, but the Applicant did not comply even with this offer.
He paid £S.20 on the 22nd February 1955 and £S.20 on 17th May 1955. He did not do anything until 22nd October 1955 when the Respondents informed him of the forfeiture of the policy, and the repayment of the £S.40 he had paid to them. The Respondents as insures did not accept the offer made through their agent, and therefore there was not a new contract between them and Applicant.
The Application for revision is dismissed with costs wish are taxed at £S.5,000m/ms.
M.I. El Nur J. : - I concur
(Application dismissed)