Hoar, J.

This case is very simple, It is an action on a policy of life insurance. The plaintiff has no such policy. She undertook to show that the defendants agreed to issue such a policy, and that the terms on which it was to be issued were fully complied with; that the policy was written and executed, and thereby became a valid contract; and therefore, though the paper was not delivered, and remained in the hands of the defendants or their agents, that it is her property, and will support her action.

*280To meet this case, the defendants proved by paroi that it was agreed between the parties that the policy should issue, not in addition to, but as a substitute for, a policy previously made, which was to be surrendered; that the earlier policy was not surrendered, but has been enforced and paid. This is a perfect defence to the action. The plaintiff contends that the application and policy together constitute the contract; and that it is not competent to show by paroi any variance from the terms of the contract contained in the writing. But this doctrine has no application to the case. The writing remained under the control of the defendants. There was no delivery of it, as a complete and perfected agreement. And if it were true that, without delivery, a complete execution of all the terms agreed on to constitute the contract would be sufficient to make it binding, it is first to be determined whether all these terms were complied with. This may be shown by paroi testimony, because the evidence is not to vary the contract, but to prove whether any contract was made. No written contract passed from one party to the other; and the point in controversy is, whether the parties agreed that a certain paper, without more, should be the contract. This must, of course, be proved by paroi. The defendants voted to issue the policy; but they did so upon the agreement that the former policy was to be surrendered. This condition was not embraced in their vote, but it was understood and agreed to by both parties, and the policy retained until the condition should be performed. No vote or assent of the defendants to the contract was communicated to the other party, except with this condition.

The plaintiff has not a delivered instrument, the evidence ol a complete agreement, not to be qualified or varied in its legal effect by paroi testimony; and it does not appear that the parties have ever agreed that the written paper should become a contract, except upon a condition which has not been performed.

Exceptions overruled.

*281Memorandum.

On the tenth day of March 1869, the Honorable Ebenezeh Rockwood Hoar, having been appointed attorney general oí the Ünited States, resigned the office of justice of this court, which he had held since the twelfth day of April 1859.