Page:North Dakota Reports (vol. 48).pdf/546

 that the company does not bind itself in any way as to the payment of the claim. On Feb. 9th, 1919, the banker further advised the defendant that it had taken them until that day to get in touch with the doctor who attended the deceased and that doctor had advised him that physician’s statement had been mailed direct. On the last day of February, 1919, the defendant by letter advised the banker that it had not received the physician’s certificate. On Mar. 14th, 1919, the banker by letter sent to the defendant papers concerning proofs of death.

The special verdict submitted to, and returned by, the jury is as follows:

“Question: Did Edmund Fleckenstein, the insured, at the time he made out the application for life insurance, inform the soliciting agent, Mr. Johnson, that C. B. Bigham, at Haynes, was his banker? A. Yes.

“Question: Did Edmund Fleckenstein, at the time he made his application for life insurance to the defendant company, request that the policy be sent to C. B. Bigham, his banker at Haynes, North Dakota? A. Yes.

“Question: Did the ‘soliciting agent of the defendant company, Mr. Johnson, promise and represent to Edmund Fleckenstein, the insured, that if he did not receive a return of his premium within one week, that he would be sure that his application for insurance was accepted? A. Yes.

“Question: Was Mr. C. B. Bigham, the banker of Edmund Fleckenstein, the insured at the time that said Fleckenstein made his application for insurance with defendant company, and at the time that the policy was received by said Bigham? A. Yes.

“Question: Was Edmund Fleckenstein, the insured, in good health at the time the insurance policy involved in this action was received by the said C. B. Bigham? A. Yes.

“Question: Did the defendant company’s officers, at the time that it sent out to the plaintiff the first blank proofs of death, have knowledge that the policy had not been physically delivered to the insured? A. Yes.

The defendant contends that the record discloses no delivery of the policy and, neither waiver nor estoppel affecting the company.

Does the evidence warrant the findings of the jury that the policy was delivered while the insured was in good health? In this regard the de-