Page:North Dakota Reports (vol. 48).pdf/677

 authorities to the facts in the instant case, we are of the opinion that the company could waive the conditions of the policy regarding the lapsing for nonpayment and the reinstatement, and that under the evidence there was ample room for the jury to infer that it had in fact waived these conditions through its failure to properly act upon the application for reinstatement.

To the contention that the lapsed contract could not be revived with- out entering into a new contract completed by an offer and an acceptance, it need only be stated that there is no principle of law peculiarly applicable to insurance contracts which necessitates an actual communication of an acceptance in every instance. There is a well-defined rule of law, applicable to insurance contracts as well as contracts in general, that where the relations between parties have been such as to justify the offerer in expecting a reply, or where the offeree has come under some duty to communicate either a rejection or acceptance, his failure to communicate his rejection or to perform this duty may result in a legal assent to the terms of the offer. See Williston on Contracts, § git. Within this principle we think there was a duty to return the note and communicate the rejection in the instant case at the peril of being held to the consequences of an assent to the reinstatement.

In the brief of the appellant some attention is given to the instructions of the court to the jury. As we read these instructions in the light of principles of law which we deem to be determinative of the case and in the light of the evidence, the appellant is not prejudiced by them.

The judgment appealed from is affirmed.

, J., concurs.

, C. J. (concurring). The principles of law announced in this case in the opinion of Mr. Justice Birdzell are largely similar and to the same effect as those formerly announced by this court in the case of Carroll v. New York Life Insurance Co., 180 N. W. 523.

, J., dissents.