Page:North Dakota Reports (vol. 48).pdf/542

 Affirmed.

Newton, Dullam & Young, for appellant.

There was no delivery of the policy. Delivery while the applicant was in good health was essential to a completed contract. Thompson v. Travelers’ Insurance Co. 13 N. D. 444; Bowen v. Prudential Ins. Co. of America, 51 L. R. A. (N. S.) 587; May on Insurance, 4th ed. Vol. 1, p. 60.

The defendant is not bound by any estoppel or waiver. Roth v. Mutual Reserve Life Ins. Co. 89 C. C. A. 262.

The general rule is that a return of the policy is not essential to the avoidance of a policy, nor is its retention a waiver. Blaeser v. Milwaukee Mechanics Mutual Ins. Co. 37 Wis. 31; 19 A. R. 747; Woodard v. German American Ins. Co. 128 Wis. 1; 106 N. W. 681.

Jacobson & Murray, and Benjamin Rigler, for respondent.

The non-return of the premium made the company liable upon its contract for the policy of insurance, if it failed to issue such a policy. Stearns v. Merchants Life & S. Co. 38 N. D. 525. . Physical delivery of the policy is not necessary. A legal delivery is sufficient. Unterharnscheidt v. Missouri State Life Ins. Co. (Iowa) 138 N. W. 459; New York Life Ins. Co. v. Pike, 117 Pac. (Col.) 899; New York Life Ins. Co. v. Greenlee, 84 N. E. 1101, (Ind.); Thompson v. Mich. Mutual Life Ins. Co. 105 N. E. (Ind.) 789; Francois v. Mutual Life Ins. Co. of New York (Ore.) 106 Pac. 323.

“When a company received an application for insurance, acts on it, signs and seals a policy complete in form, and forwards it to its agent for delivery to insured, the policy is deemed to have been issued from the date of its deposit in the mails." Rose v. Mutual Life Ins. Co. of New York, 88 N. E. (Ill.) 204; Stilp v. New York Life Ins. Co. (Wis.) 169 N. W. 606.

The company having knowledge that the policy was not physically delivered, by putting the plaintiff to expense in furnishing proof of loss, is now estopped to set up want of physical delivery as a defense to paying loss. Beauchamp v. Retail Merchants Ass’n (N. D.) 38 N. D. 483; Tero Detroff & Co. v. Equity Fire Ins. Co. (Iowa) 167 N. W. 660; Veenstra v. Farmers’ Mutual Fire Ins. Co. of Ottawa and Allegan