3 Mo. App. 554 | Mo. Ct. App. | 1877
delivered the opinion of the court.
This is an action on a policy of life insurance, to recover the sum of $5,000 which the plaintiff alleges defendant agreed to pay, according to the terms of the policy, upon the death of the former husband of the plaintiff. The substance of the defense was that, though there were negotiations for a policy, the defendant had not delivered any policy of insurance to the deceased, or made any contract of insurance with him. The defendant contended that as in the application which was signed by Kelly, the alleged insured, there was a clause to the effect that the policy applied for should not be binding till the first premium had been received by the company, or some authorized agent, during the life-time and good health of the assured, and a similar clause in the policy requiring a payment in cash, and as Kelly had not paid the premium, the risk never attached.
The evidence tended to show that while Kelly, who was a citizen of Texas, was at Abilene, Kansas, with a drove of cattle, one Wing, who was an agent of the respondent, under J. M. Street, a general State agent of the so-called department, solicited Kelly in many conversations, of which Wing seemed unwilling to give any definite account, to' become insured in the respondent company. In order to secure an application from Kelly, Wing proposed to take his note for
Independently of the question of delivery, there was testimony tending to show a binding contract of insurance. The note was apparently accepted, and there was evidence
The judgment of the court below is reversed and the cause remanded.