#### ROMULUS R. ROSS, Administrator of J. M. Pickett, v. NEW YORK LIFE INSURANCE COMPANY.

(Decided April 11, 1899).

Where the application for life insurance contained the statement: That the company shall incur no liability under this application until it has been received, approved, the policy issued- thereon by the company at the home office, and the premium has been actually paid to and accepted by the company or its authorized agent during my lifetime and good health- — the application was' not accepted, no policy issued, and the first payment was not made: Held, that the contract of insurance was not complete — as the minds of the parties never met.

Civil ActiON upon a money demand, tried before Allen,, J., at July Term, 1898, of RaNdolph Superior Court. Tbe facts are undisputed and appear in tbe opinion. On motion of defendant, tbe plaintiff was nonsuited and appealed.

No counsel for appellant.

Messrs. Jones & Tillett, for defendant.

Faiecloth, C. J.

Plaintiff’s intestate on September 27, 1895, made application for life insurance witb defendant’s agent and gave bis note for tbe first payment. Tbe application and note, wbicb was accepted as cash, were forwarded to tbe borne office. Tbe application contained tbis statement : “That tbe company shall incur no liability under tbis application until it has been received, approved, tbe policy issued thereon by tbe company at the borne office, and tbe premium has been actually paid to” and accepted by tbe com-*396pairy or its authorized agent during my life time and good health.” Plaintiff’s intestate became sick with fever in November and died on December 15, 1895. The application was not accepted, no policy issued, nor was the first payment made. Onnext «T anuary the defendant tendered the note to plaintiff, who refused to receive it, and after its maturity demanded the payment of the policy. When plaintiff rested, his Honor on motion held that plaintiff could not recover and ordered a nonsuit. There was no error as the facts did not show a contract and as the facts were undisputed there was nothing for the jury. The minds of the intestate and defendant never met. Ormond v. Ins. Co., 96 N. C., 158; Whitley v. Ins. Co., 71 N. C., 480. Even long delay by the defendant could not presume an acceptance. The natural and legal inference is to the contrary. Moore v. Ins. Co., 130 N. Y., 531. The student may read on this question Jacobs v. Ins. Co., 71 Miss., 656-8; Paine v. Ins. Co., 51 Fed Rep., 591; Eliason v. Hinshaw, 4 Wheat., 227; Carr v. Duval, 14 Peters, 81; Steinle v. Ins. Co., 81 Fed. Rep., 489, and McCully’s Admr. v. Ins. Co., 18 W. Va., 782.

Affirmed.