Page:North Dakota Reports (vol. 48).pdf/681

 11th and half on May 11th in each year. The insured died on January 5, 1872. The defense was a forfeiture of the policy by failure to pay the last installment of premiums which fell due November 11, 1871. The insured did not know the agent to whom payments should be made, because the company had been changing its agents, and so he had telegraphed the company for instructions, and he made a legal tender of payment in December, 1871. He had paid over $1,000, and had made a - legal tender of the last installment. Surely that does not apply to a case where a party never paid nor offered to pay accent. Justice Birdzell gives a reference to several state decisions which are probably no stronger than those of the United States Supreme Court. The general language of a decision means little or nothing until we know the facts on which the general language is based. We challenge any one to cite a decision sustaining a judgment against an insurance company in a case of this kind, a case in which there is no equity, no payment, no attempt to make payment, and no excuse for the default; a case in which the note offered for premium was refused and returned to the party from whom it was received. Surely the case presents no equity, no waiver, no estoppel. There is not a particle of evidence to sustain the verdict. Judgment should be reversed.

D. A. DINNIE, Appellant, v. LAKOTA HOTEL CO, Respondent

Contracts—substantial compliance with building contract may occur through the action of both the contractor and the owner who has completed construction under the contract.

1. Where a building contract provides that the owner may take possession and proceed to complete the contract, and where the owner did take possession of the construction and furnish labor and material] pursuant to the contract, substantial compliance with the contract may occur through the action of both the contractor and the owner.

'''Contracts—in contractor’s action against owner, verdict held not to show, as matter of law. a failure to substantially perform.'''