#### JOHN DAVENPORT and MILLARD DAVENPORT v. PENNSYLVANIA FIRE INSURANCE COMPANY.

(Filed 21 November, 1934.)

Appeal by plaintiffs from Frizzelle, J., at February Term, 1934, of LeNOIe.

Affirmed.

This action was brought by plaintiffs against defendant to recover $1,Y50, with interest from 14 April, 1931. The action was founded on an alleged parol contract for insurance, made by an alleged agent of defendant’s company, for the destruction by fire of a building on 14 April, 1931, on which plaintiffs allege they had the parol contract for insurance.

*862 Rouse & Rouse for plaintiffs.

Smith, Wharton & Hudgins and R. A. Whitaleer for defendant.

Per Curiam.

At tbe close of plaintiffs’ evidence and at tbe close of all tbe evidence, tbe defendant made motions for judgment as in case of nonsuit. C. S., 567. Tbe court below overruled tbe motion of defendant, at tbe close of plaintiffs’ evidence, and sustained tbe motion at tbe close of all tbe evidence. We tbink, on tbe entire record, tbat tbe court below was correct.

In Lea v. Insurance Co., 168 N. C., 478 (482), quoting many authorities, it is said: “Is a parol contract of insurance or a memorandum of tbe contract, called a binder, valid, altbougb a standard form of policy bas been adopted by statute?

“In tbe absence of a statutory prohibition, tbe great weight of authority is in favor of tbe validity of a parol contract of insurance.”

In Manufacturing Co. v. Assurance Co., 161 N. C., 88 (96), it is said: “It can make no difference in tbe result what was intended by either party, nor can tbe contract be changed or modified by what one of tbe parties may now say be intended. It all depends upon what was said and done at tbe time. If no contract was made then, it cannot be made now post facto. ‘A contract, express or implied, executed or executory, results from tbe concurrence of minds of two or more persons, and its legal consequences are not dependent upon tbe impressions or understandings of one alone of tbe parties to it. It is not what either thinks, but what both agree.’ Prince v. McRae, 84 N. C., 674, citing Brunhild v. Freeman, 77 N. C., 128, and Pendleton v. Jones, 82 N. C., 249.”

Tbe foregoing is well-settled law in bis jurisdiction. We have beard tbe arguments of counsel and read carefully tbe record and briefs of tbe parties to tbe controversy, but on tbe whole record we do not tbink a binding contract was made between tbe litigants to this controversy.

Tbe judgment of tbe court below is

Affirmed.