Page:North Dakota Reports (vol. 48).pdf/547

 fendant maintains that neither the company nor its agent had any notice of any instructions by the insured that the policy be sent to his banker at Haynes, and, further, that, even so conceding, the delivery would be and was invalid because the evidence conclusively shows that on Nov. 8th, 1918, the health of the insured was impaired and he was then suffering from a mortal disease. There is evidence, however, in the record to warrant the finding that the defendant had notice of the instructions of the insured to send the policy to Bigham, his banker. On the back of the application the directions appear. In the memorandum of the home office concerning this application, there is inserted by some one, “to C. E. Bigham, Haynes, N. D.” “See back of app.” This is an apparent recognition of the directions on the back of the application. Neither the directions nor the memorandum state “agent” after the word Bigham. There is nothing in the record to show that either the soliciting agent or the insured knew that Bigham was the agent of the defendant. Possibly, the insured would have made the application to his banker, Bigham, if he had so known. The defendant accepted and approved the application. It issued the policy on Oct. 3oth, 1918. It sent the policy pursuant to the instructions given. The insured was not advised concerning any secret instructions to Bigham or that Bigham was its agent. The insured did not contract for conditional delivery of the policy to Bigham, pursuant to Bigham’s agency and dependent upon Bigham’s investigation, opinion or judgment upon the insured’s condition of health. The insured contracted for the issuance of a policy upon the defendant's approval, and for its delivery to Bigham, his banker, conditional only upon the payment of the first premium and his condition of good health when so delivered.

Upon the record the jury was warranted in finding that the policy was so delivered or entitled to be delivered to Bigham pursuant to the contract as made. This follows further from the fact that the record does not disclose that Bigham, as agent, acted upon the instructions or pretended to follow them. Although he testified that on Nov. 6th, 1918, he saw the insured and then the insured, in his opinion, was a very sick man, nevertheless, the record fails to disclose that he so advised the defendant, or returned the policy. Further, it was over two months thereafter, in accordance with the secretary’s testimony, before the defendant knew that the policy had not been physically delivered to the insured. Furthermore, the parties did not contract that