Page:North Dakota Reports (vol. 48).pdf/679

 ceive applications for life insurance, and to send the same to the company for rejection or approval. Exhibit H. Now it should be toc? [sic] clear for argument: (1) That plaintiff has no equity, as neither he nor his uncle have paid a dollar or a cent on the insurance policy. (2) There is no waiver. (3) There is no estoppel. There is no showing that the deceased was ever in any way deceived or misled to his prejudice. Ne showing that he was ever ready or willing to pay a dollar on the insurance or on any insurance, no showing that he was under any obligation to his adult nephew or that he was desirous of scrimping and of burdening himself that the nephew might perchance receive a good lump-sum. Boerger complained of poor crops and high insurance rates, and it was with reluctance he offered the note and application to reinstate his policy. The plaintiff testifies that at a certain time McGowan and Haigh called at the house of the deceased; he testified as follows:

“Q. Did not your uncle say to McGowan and Haigh that he did not want to reinstate the policy? A. He talked that way. He said he was hard up, and did not feel that he could pay the premium. He said the poor crops made it hard to pay them big premiums.”

In the face of such testimony it cannot be urged that if the note had been put into the hands of the deceased in due time and during his life he would have made any attempt to secure insurance from any other company, or that he would have done anything to reinstate his insurance. The law of the case is as clear as to the facts. The plaintiff is in no position to claim a waiver or an estoppel, because he has no equity, and because neither he nor his uncle ever paid, or offered to pay, any- thing on the policy. It is a pure nudum pactum. A party is not estopped when there is no equity, no deception, no injury. To invoke the doctrine of estoppel it must appear: (1) That the party invoking it was misled by the acts or conduct of the other party. (2) That he changed his position, relying thereon, and was justified in so doing. (3) That he was prejudiced thereby, and that the other party was benefited. 21 Corpus Juris, 1205. Here there is no showing of a prejudice to the deceased; no showing of a benefit to the company; no showing that the deceased was deceived, or that he changed his position to his loss.

''The doctrine of waiver differs little from estoppel. A party cannot''