Page:North Dakota Reports (vol. 48).pdf/678

, J. (dissenting). In this case neither the complaint as amended, nor the evidence, states facts sufficient to constitute a cause of action. There is no showing of a contractual obligation to pay the plaintiff $5,000, or any sum whatever.

On November 17, 1917, the insurance company made to Henry Boerger a $5,000 life insurance policy, naming as the beneficiary his adult nephew of 35 years. The policy is in evidence, and is made a part of the complaint. The annual premium was $296.80, payable each year for 20 years, and it was agreed, as is usual in such cases, that, in case of failure to pay the premium of each year within 31 days after it became due, the policy should lapse and become void. Boerger was a man of 55 years, a small German farmer on a half section 20 miles south from Beach, on section 20—137—105. Not having money to make the first payment, he gave his promissory note for $296.80, but never paid it. He permitted his policy to lapse by failing to pay the premium of the second year within 31 days after it became due. Then, in February, {919, he made to the company a written application to reinstate his insurance, and offered his note for $296.80 and interest. He mailed the same to the company through Mr. Haigh, its local agent at Beach, and by letter of March 13, 1919, the company returned the note and denied the application. As the note was sent to the company by Mr. Haigh, it was returned to him, and it was kept by him in his office for several weeks with the expectation doubtless that Boerger would call there, as he had given the note at the office. Boerger did not call. He died without receiving the note into his own hands and without paying, or offering to pay, a dollar on the insurance policy, though the company had several times requested payment. Now the claim is made that the company is estopped from disputing payment, or that it has waived payment by reason of the fact that Haigh did not go and deliver the note to the maker. But Haigh was a mere go-between. He had no interest in the note. He could not eat it or use it any manner. In his hands the note was a mere scrap of waste paper of no use to him or to any living person. Then it is urged that McGowan, a general agent of the company, induced the deceased to make the note with an application for reinstatement or the assurance that it would be accepted. But to speak of McGowan as the general agent of the company is a great mistake, and it is not fair nor honest. His authority is in writing. It is special, narrow, and limited. He was merely authorized in six counties of North Dakota to re-