was up and around. That on Nov. 8th he was up and around during the . day time; during the night he started to get fever. That on Nov. 10th, he had pretty high fever and was in bed although he got up and walked around the room. On Nov. loth, at 2:30 p. m., he died. The soliciting agent of the defendant testified in response to the question whether her husband had asked him to send the policy to Mr. Bigham, his banker, that he did not ask him to send it to the banker. That he did not represent to the husband that if the application was not accepted he would have his money back in a week. Upon the application, produced by the defendant and offered in evidence by the plaintiff, there appears on the back, upper margin thereof, the following: “Send policy to Chas. Bigham, Haynes.” This is followed on the lower margin by the soliciting agent’s certificate. Both are apparently in the same handwriting and made by the same lead pencil. On the face of this application is the declaration signed by the insured that he has paid to the soliciting agent $62.62. That he holds his receipt therefor and assents to the terms thereof. Mr. Bigham testified that he was the cashier of the bank at Haynes, and the agent of the defendant company. That he received the insurance policy involved together with the instructions on Nov. 8th, 1918. That about Nov. 6th, 1918, the insured called at the bank. That then he paid two notes there. That in his opinion at that time the insured was a mighty sick man. That the general pallor of his face showed it and in general he appeared to be sick. That he had this observation in mnid when he received the instructions with the policy. That he never delivered the policy. He did not testify that he returned the policy or advised the defendant concerning his observation. On Dec. 8th, a banker at Richardton advised the defendant of the death of the insured, by letter, stating therein correctly the number of the policy, and requesting the necessary blanks to be sent for proofs of death. On Dec. 19th, 1918, the defendant replied: “We are handing you herewith necessary proofs for completion and upon their return we will give the matter of the claim under the policy our prompt attention.”
The secretary of the company testified that the company was first advised that the policy had not been delivered on or about Jan. 17th, 1919. On Feb. 8th, 1919, the banker at Richardton through letter re- quested another physician’s certificate to be sent by reason of the former blank sent, having been mislaid or lost. On Feb. 11th, 1919, the defendant inclosed another physician’s statement to be used with the understanding
