It was a question of fact for the jury whether there was a contract between the parties and a completed delivery of the note and policy under it. The rule excluding paroi evidence to contradict a written instrument is not infringed by the admission of such evidence, to show that the instrument never had any binding force for want of due delivery, or, if not under seal, for want of consideration; because the evidence is offered not to
In the case at bar the note in suit had no binding force until delivered as evidence of a subsisting debt, and none if made without consideration. The consideration necessary to its validity depended on whether the contract of insurance was so completed between both parties that the policy attached and the company became liable under it temporarily or permanently. There was-conflicting evidence on these points, and the judge rightly ruled that, if the minds of the parties met, there was a contract, and a good consideration for the note, but not otherwise. The jury found that there was no completed contract of insurance, and therefore no consideration for the note. The fact that the policy was left at the defendant’s house and retained by him would be evidence bearing on the question of its delivery and acceptance, but not conclusive, and all the circumstances are to be considered by the jury. Blanchard v. Blackstone, 102 Mass. 343.
The testimony of the defendant that he took the policy to Fall River, and endeavored to find the plaintiff, tended to rebut the presumption of acceptance which might be drawn from his inaction, and was rightly admitted. Bornstein v. Lans, 104 Mass. 214.
It was not contended at the argument that there was any evidence of fraud which ought to have been submitted to the jury.
Exceptions overruled.