Page:North Dakota Reports (vol. 48).pdf/543

 Counties (Mich.) 161 N. W. 824; Springfield Fire & Marine Ins. Co. v. E. B. Cockrell Holding Co. (Okla.) 169 Pac. 1660.

An insurance company cannot take the applicant’s money, keep it and get the benefit of it, and lead the applicant into believing he has a valid policy, and then at the same time take the position that there is no insurance. Horswill v. Mutual Fire Ins. Co. (N. D.) 178 N. W. 798; Yusko v. Middlewest Fire Ins. Co. (N. D.) 166 N. W. 539; Life Ins. Clearing Co. v. Altshuler, (Neb.) 75 N. W. 862; Watts v. Equitable Mut. Life Ass’n of Waterloo (Iowa) 82 N. W. 441; Commercial Union Assur. Co. v. Schumaker (Ind.) 119 N. E. 532; American Bankers’ Ins. Co. v. Thomas, (Okla.) 154 Pac. 44; Rhodes v. Kansas City Life Ins. Co. 156 Mo. App. 281; 137 S. W. 907; Prudential Ins. Co. v. Shively, 1 Ohio App. 238.

, J. This is an action upon a policy of life insurance. The defense is that no contract of insurance was ever completed, the policy was not delivered and no premium ever paid. The jury returned a special verdict. From judgment entered, pursuant thereto, in plaintiff’s favor, and from an order denying a new trial, the defendant has appealed. ‘The record discloses some evidence as follows, or to the following effect: The insured, the husband of the plaintiff beneficiary, was a farmer 24 years old at the time of his death. On Oct. 21st, 1918, at the farm place of the insured, about 7 miles from Haynes or Hettinger, the soliciting agent of the defendant received the application of the insured for a life “insurance policy of $2,000.00. Then, he issued to the insured a receipt acknowledging the payment of $62.62, to apply as payment for the first year on the proposed insurance. The receipt contained the following statement: “Insurance if issued, to be from date of Company’s approval, but above amount will be returned if the applicant is examined and the policy is not issued.”

In the application there is the following agreement, “That the insurance hereby applied for shall not take effect unless the first premium is paid and the policy delivered to and received by me while in good health, and that the policy shall be issued as of the date of the company’s approval.”

On Oct. 22nd, 1918, the insured was examined by the Medical Exami-