McNICOL v. NEW YORK LIFE INS. CO., 149 F. 141

ADAMS, Circuit Judge, after stating the facts as above, delivered the opinion of the court. The only question in this case is whether the facts as found support the judgment as rendered. The application made for the insurance was a proposition requiring acceptance as made before it became a contract. Travis v. Insurance Co., 43 C. C. A. 653, 104 Fed. 486. This McNicol, not only presumptively, but actually, knew.

The receipt taken by him from the local agent when he paid the first year’s premium informed him in effect that the payment was only provisionally received, that his application might not be accepted by the company, and, if it should not be accepted, that the agent would return the amount of the payment to him. The facts conclusively show that the application was not accepted.

An amended application was prepared by the company, embodying several material modifications or additions to the one made by McNicoI, and the same was forwarded to its local agent for submission to the applicant for his consideration and signature if satisfactory. This amounted to a rejection óf the proposition as made by McNicoI and a counter proposition by the company to him, which could not become a contract until it was accepted by him. Mutual Life Ins. Co. v. Young, 23 Wall. 85, 23 L. Ed. 152; Minneapolis, &c., Ry. Co. v. Mill, 119 U. S. 149, 7 Sup. Ct. 168, 30 L. Ed. 376. This McNicoI never did.

He unfortunately died before the counter proposition reached him. The minds of the parties never met and no contract was ever concluded between them. Plaintiff’s counsel contend that, as the policy was actually made out as called for in the original application and delivered to the local agent of the company for the applicant, it thereby became a binding contract. If such were the only facts of the case, their contention might be right; but, as already seen, the record contains much more.

The proposition as made in the original application was rejected by the company, and a counter proposition made for the consideration of the applicant. The physical making out and sending of the policy to the local agent in themselves constituted no contract. By special direction of the company they were not to be treated as a delivery of the policy. It was not to be delivered until McNicoI complied with the terms and conditions specified in the counter proposition. It is next urged thát, as defendant’s agent received the first year’s premium from the applicant, the company thereby insured him.

This contention overlooks important facts of the case, and particularly the qualification attending the act of receiving the money. It was distinctly understood at the time that the receipt of the premium was conditional on the acceptance by the company of the applicant’s proposition for insurance as .made in his application. If the proposition should not be accepted, the money was to be returned; and that was the agreed limit and measure of the company’s liability resulting from the receipt o'f the first year’s premium, in case the policy was not issued.

It was argued orally, but not presented in brief of plaintiff’s counsel, that the letter of the local agent, written to McNicol after he had received the policy with special instructions not to deliver it until Mc-Nicol paid a further premium and signed a new application, estopped the defendant from denying the consummation of the contract.

The company or any of its general officers did not write the letter, and the local agent, as the facts of the case show and as McNicol well knew, had no.authority to make a contract of insurance without the approval of the company, and a fortiori had no authority to conclude such a contract in express violation of his specific instructions from the company. Moreover, the letter, whether authorized or not, was not written with the. intention that McNicol should regard it as an acceptance of his original proposition for insurance.

It would have been gross bad faith on the part of the agent, in the light of his instructions, to attempt to convey any such intention. Not only so, but the language of the letter did not justify .reliance upon it by Mc-Nicol as an acceptance of his original proposition. It informed him that the agent hoped to place the policy in his hands Sunday. Whether he would do so or not depended as a matter of fact upon whether McNicol wo.uld comply with the terms and conditions upon which alone he might deliver the policy or place it in his hands.

The expression that the agent hoped to deliver it Sunday is suggestive of a doubt as to his ability to do so; and McNicol had no right to rely on the letter without recognizing the suggested doubt." Moreover, there is no showing that McNicol either refrained from acting or took any affirmative action upon the supposition that the letter concluded his contract with the company. It thus appears that several elements which necessarily.enter .into estoppel by conduct (Bigelow on Estoppel [5th Ed.] p. 26) are wanting in this case, and their absence effectaally refutes the contention of counsel.

The case, freed from the obscurities suggested by ingenious counsel is, in our opinion, clearly without merit. The fundamental requisite to the consummation of a contract, the aggregatio mentium, never existed. Before 'it could have been reached, according to the method of negotiation resorted to by the parties, one of them died, and this unfortunate fact put a stop to further negotiations which might or might not have resulted in a contract. , The judgment of the trial court was .clearly for the right party, and is accordingly affirmed. ,.