Page:North Dakota Reports (vol. 48).pdf/553

 The special verdict answers six questions to this effect:

1. That when the deceased made his application for insurance he informed Johnson, the soliciting agent of the company, that Bigham was his banker.

2. That he requested the policy to be sent to Bigham.

3. That Johnson, the agent, promised the deceased that his policy would be accepted or his note returned within a week.

4. That Bigham was the banker of the deceased at the time he made application for insurance, and at the time the policy was received by him.

5. “Q. Was the deceased in good health at the time the insurance policy was received by Bigham? A. Yes.

6. “Q. When the Company sent blank proofs of death, did it know that the policy had not been delivered? A. Yes.”

Those findings are wholly unsupported by the evidence; and what if the deceased requested the policy to be sent to his banker or to any other person. His request did not make a contract. There was no delivery of the policy to Bigham nor any obligation to deliver it to him. It was merely sent to Bigham with special instructions showing that it was not to be delivered to a dead person or to a person on his death bed. There was no evidence that Johnson promised or had authority to promise the deceased that his application would be accepted within a week or any time, and that in case of failure his note would be returned. Johnson had no authority to bind the company by any promises or representations. The written application to the company for insurance is signed by the deceased. It reads thus:

“I agree as follows: That the insurance hereby applied for is not to take effect unless the first premium is paid and the policy delivered’ to and received by me while in good health; that the agent taking this application has no authority to make, modify or discharge contracts or to waive any of the company’s regulations or requirements.”

The testimony is short. It shows conclusively that Bigham received the policy on November 8th, when the deceased was on his death bed. Bigham testifies that he saw the deceased on November 6th and that he was then a mighty sick man. That he showed it by the general pallor: of his face and in general appeared to be sick.

“Q. You never delivered the policy? A. No, sir.

It is true that Johnson received the application for insurance and gave a pencil receipt for $62.62, agreeing that it should be returned if the