Ross v. . Ins. Co. , 124 N.C. 395 ( 1899 )

Plaintiff's intestate, on 27 September, 1895, made application for life insurance with defendant's agent, and gave his note for the first payment. The application and note, which was accepted as cash, were forwarded to the home office. The application contained this statement: "That the company shall incur no liability under this application until it has been received, approved, the policy issued thereon by the company at the home office, and the premium has been actually paid to and accepted by the company or (396) its authorized agent during my lifetime and good health." Plaintiff's intestate became sick with fever in November and died on 15 December, 1895. The application was not accepted, no policy issued, nor was the first payment made. On next January the defendant tendered the note to plaintiff, who refused to receive it, and after its maturity demanded the payment of the policy. When plaintiff rested, his Honor, on motion, held that plaintiff could not recover, and ordered a nonsuit. There was no error, as the facts did not show a contract, and as the facts were undisputed, there was nothing for the jury. The minds of the intestate and defendant never met. Ormond v. Ins. Co., 96 N.C. 158; Whitley v. Ins. Co., 71 N.C. 480. Even long delay by the defendant could not presume an acceptance. The natural and legal inference is to the contrary. Moore v. Ins. Co.,130 N.Y., 537. The student may read on this question Jacobs v. Ins. Co., 71 Miss., 656-8; Paine v. Ins. Co., 51 Fed., 591; Elason v. Hinshaw, 4 Wheat., 227; Carr v. Duval, 14 Peters, 81; Steinle v. Ins. Co., 81 Fed., 489, and McCully v. Ins. Co., 18 W. Va. 782.

AFFIRMED. (397)