George, J.
The ruling announced in the 5th headnote alone requires elaboration. The policy upon which this action was based contained the following provision: “This policy contains the entire agreement between the company and' the insured, and the holder and owner hereof. Its terms can not be changed or its conditions varied, except by a written agreement, signed by the president or secretary of the company. Therefore, agents (which term includes superintendents, deputy superintendents, and assistant superintendents) are not authorized and have no power to make, alter, or discharge contracts, waive forfeitures, or receive’ premiums on policies in arrears more than four weeks,” etc. The payment of the first weekly premium was made a condition precedent to any liability of the company under the contract. The evidence for the plaint!ffi disclosed that the local agent of the company approached her husband and asked him to take the policy of insurance, but he declined to do so, upon the ground that he did not have the money with which to pay the first premium. The agent agreed to advance the first premium for him, and to hold the policy *709until a time certain. It further appeared that the local agent, in submitting the application of the plaintiffs husband, stated to the company that the first weekly premium had been paid. It was not contended that the premium had in fact been paid, but the contention of the plaintiff was that her husband made an arrangement with the local agent by which the agent was to advance the first premium. It was not contended, but on the contrary was admitted, that no money had been paid directly by the applicant. The local agent, sworn as a witness for the defendant, denied the making of the agreement with the plaintiff’s husband, and testified that he was to obtain the policy for the applicant, who was to pay the first premium at the time of the delivery of the policy to him. This agent-further testified (and his evidence was undisputed) that the company usually and generally, and in this case, sent forward the policy with specific instructions not to deliver the policy until the agent had seen the applicant and had received the first premium in cash. It was not objected that the witness was incompetent to testify. Under the circumstances, the charge of the court, quoted in the 5th headnote, was clearly erroneous. The agent had no authority to alter a term of the contract. Payment of the first premium was a condition precedent to any liability of the company under the contract. The mere statement of the agent, made to his company, in writing or otherwise, was ineffectual to vary, change, or alter the terms of the contract. It would have been otherwise had the company accepted the obligation of the agent for the first premium. The company, under the evidence in the record, had no notice or knowledge of any such agreement, if any was in fact made by the agent with the applicant. The company, therefore, had the right to stand upon its contract, no term of which had been changed or waived by its authority. To allow a recovery, under the circumstances detailed in the charge of the court, would put it within the power of the local agents of every insurance company to defraud and ■ bankrupt the company, it matters not how careful the company may have been to protect itself by the express provisions of its contract. Under-the rule in this State, no .contractual relation with regard to the payment of the premium existed between the agent and the company; and until the company accepted the agent’s obligation for the first premium upon the policy, or until actual payment of *710the premium, no liability existed on the part of the company. Upon the sufficiency of the evidence we express no opinion. The whole effect of our ruling is that the charge of the court quoted in the 5th headnote required a reversal of the judgment. The judge therefore erred in overruling the motion for a new trial.
Judgment reversed.
Wade, O. J., concurs; Lulce, J., dissents.
Luke, J.,
dissenting. I do not agree to the ruling announced in the 5th headnote in this case. The charge of the court held to be error is as follows: “If, as contended by the plaintiff in this case, the application was made by the insured, and he arranged with the insurance agent that the insurance agent was to pay the first premium, and he was to return it personally to the insurance agent, and he sent in his application in that way, and you should find that the insurance agent reported to his company that it was paid—the first premium, and that thereupon his company issued the policy and forwarded it to the agent to be delivered to the insured, then that would be a binding insurance contract between that company and the assured.” The written statement of the agent who procured the application shows that the first weekly premium in cash had been collected by him and held by him for the company. The agent having in writing so instructed the company, and the company having issued and delivered the policy of insurance, the agent was bound to the company for the premium, and the evidence authorized the jury to find that the company accepted the obligation of the agent for the first week’s premium.
It is the opinion of the writer that the charge of the court was not error, and that the judgment of the trial court should not be reversed, but should be affirmed.