Birdzell, I.
This is an appeal from a judgment in favor of the plaintiff and from an order denying the defendant’s motion for judgment non obstante or for a new trial. The action is brought by the administrator of the estate of Reinhold Renke to recover upon an insurance policy issued to him during his lifetime. The beneficiary is Karolina Renke, wife of the insured. She died November 5, 1918, and the insured two days later. The defense is that the policy had lapsed before the death of the insured.
It seems that in May, 1917, Reinhold Renke applied, through one Wilhelm, a soliciting agent, for insurance in the defendant company. The policy was issued on May 17, 1917, and the premiums are due annually after that date, with the usual provision for thirty days’ grace without interest. At the time the policy was issued, Renke gave to Wilhelm his note for $78.30, the amount of the first premium, due on [629]*629November 1, 1917. This note did not become the property of the insurance company, but was used by Wilhelm as collateral for a loan secured by him from the Williams agency, of Mitchell, South Dakota. The Williams agency was the general agent of the defendant company, with authority to transact its insurance business as an agent in North and South Dakota and Minnesota. The net amount of the first premium, exclusive of commission, was remitted to the defendant company through this agency. About September 19, 1918, Wilhelm, Welch, who was then employed by the Williams agency, and one Lind-' sey, called on Kenke for the purpose, as they say, of collecting this premium note. At that time the second premium was also long past due and the policy had lapsed for nonpayment according to its own provisions. After some talk with Wilhelm and Welch, Renke gave a postdated check for $84.74. This check is dated October 5, 1918, and the amount of it exactly corresponds with the amount that was due on the first premium note at the date of the check.
In the original complaint drafted by the plaintiff’s attorney the giving of this first premium note was alleged, as well as its payment on or about the 25th day of September, 1918. It was further pleaded that at the time of the payment of this note Welch and Wilhelm extended the time of payment of the second premium to May 17, 1919, the alleged consideration for the extension being the payment of the note for the first premium. Waiver of a doctor’s certificate as a condition of reinstatement is also pleaded. An amended complaint, however, was later filed, in which it was alleged that the first premium was paid. All statements respecting the giving of the note for the first premium were omitted, and it was alleged that the payment made in September, 1918, by the postdated check was payment of the second premium. Waiver of reinstatement conditions is alleged substantially the same as before.
The contentions of the parties upon these facts are: The appellant contends that the policy had lapsed; that the payment made hy the insured was only the payment of the first premium with interest; .that there had been no payment of the second premium; that no reinstater ment had been effected; and that there had been no waiver on the part [630]*630of the insurance company of the provisions of the policy regarding reinstatement. The contentions of the .respondent, on the other hand, are that there is sufficient evidence in the record to warrant the jury in finding that the second premium was paid by the postdated check, and that at the time of its payment the insured was reinstated, the agents waiving the conditions of the policy respecting the doctor’s certificate.
The defendant’s witnesses, particularly Wilhelm and Welch, identify the note which was the occasion for the call upon Henke in September, 1918, as being the note given for the first premium, and some of .the testimony concerning the conversation with Henke regarding the payment of the note went in without objection. On the other hand, a careful reading of the record fails to disclose any evidence to support the allegations in the amended complaint that the postdated check was given for the second premium. It does not correspond in amount with the second premium; but, as previously stated, it does exactly correspond with the amount due on the first premium note at the date of the check. Respondent’s counsel likewise has been apparently unable to point out any evidence in support of the allegations in the amended complaint regarding the payment of the second premium.
In addition to the depositions given by the officers of the company to the effect that the second premium had not been paid, the following testimony shows how conclusively the check given by Henke was identified as having been given in payment of the first premium note: (It will be noted, too, in this connection that in so far as the testimony related to a transaction with the deceased the ruling of the trial court was favorable to the plaintiff. But the testimony went in without objection.)
Welch testified, without objection on this ground, that he was superintendent of agents for the J. E. Williams agency; that in September, 1918, J. E. Williams, of the Williams agency, turned over to him a number of notes for collections; that among them was the note which Henke had given to Wilhelm and which Wilhelm had put up as col[631]*631lateral with the Williams agency. The testimony of which relating directly to the vital transaction is:
Q. What date was it, Mr. Welch, that you called on Mr. Reinhold Renke in company with Mr. Wilhelm and Mr. Lindsey with reference to his note ?
A. September 19th or 20th.
Q. Did you see Mr. Renke on that date?
A. Yes, sir.
Q. Did you have any talk with him?
Mr. Murray: The plaintiff objects on the ground that it appears that the witness is an agent of the defendant company, and the question calls for a conversation with Reinhold Renke, who is now deceased, and the testimony is therefore inadmissible under subdivision 2, § 7871, Oomp. Laws 1913. *
The Court: Objection sustained.
After a brief cross-examination the court sustained the objection to the testimony relating to transactions with the deceased. The testimony continues:
Mr. Murray: I will withdraw the objection.
Q. I will ask you, Mr. Renke (meaning Mr. Welch) what your mission was at the time you called on Mr. Renke ?
A. I called on him for the purpose of collecting a note I had of Mr. Renke.
Q. Do you remember the facts of the note as to its date and amount ?
A. The note, as I recall it, was dated the forepart of May, 1917, was due, I think, November 1, 1917, and the amount was $78.30.
Mr. Murray: We object to that as not the best evidence.
Q. State what you said to Mr. Renke and what Mr. Renke said to you?
A. I told him that I had the note for collection.
Q. I will ask you to state what Mr. Renke said to you after you told him what you were there for ?
A. He said that he was unable to pay the note at that time; that he [632]
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Birdzell, I.
This is an appeal from a judgment in favor of the plaintiff and from an order denying the defendant’s motion for judgment non obstante or for a new trial. The action is brought by the administrator of the estate of Reinhold Renke to recover upon an insurance policy issued to him during his lifetime. The beneficiary is Karolina Renke, wife of the insured. She died November 5, 1918, and the insured two days later. The defense is that the policy had lapsed before the death of the insured.
It seems that in May, 1917, Reinhold Renke applied, through one Wilhelm, a soliciting agent, for insurance in the defendant company. The policy was issued on May 17, 1917, and the premiums are due annually after that date, with the usual provision for thirty days’ grace without interest. At the time the policy was issued, Renke gave to Wilhelm his note for $78.30, the amount of the first premium, due on [629]*629November 1, 1917. This note did not become the property of the insurance company, but was used by Wilhelm as collateral for a loan secured by him from the Williams agency, of Mitchell, South Dakota. The Williams agency was the general agent of the defendant company, with authority to transact its insurance business as an agent in North and South Dakota and Minnesota. The net amount of the first premium, exclusive of commission, was remitted to the defendant company through this agency. About September 19, 1918, Wilhelm, Welch, who was then employed by the Williams agency, and one Lind-' sey, called on Kenke for the purpose, as they say, of collecting this premium note. At that time the second premium was also long past due and the policy had lapsed for nonpayment according to its own provisions. After some talk with Wilhelm and Welch, Renke gave a postdated check for $84.74. This check is dated October 5, 1918, and the amount of it exactly corresponds with the amount that was due on the first premium note at the date of the check.
In the original complaint drafted by the plaintiff’s attorney the giving of this first premium note was alleged, as well as its payment on or about the 25th day of September, 1918. It was further pleaded that at the time of the payment of this note Welch and Wilhelm extended the time of payment of the second premium to May 17, 1919, the alleged consideration for the extension being the payment of the note for the first premium. Waiver of a doctor’s certificate as a condition of reinstatement is also pleaded. An amended complaint, however, was later filed, in which it was alleged that the first premium was paid. All statements respecting the giving of the note for the first premium were omitted, and it was alleged that the payment made in September, 1918, by the postdated check was payment of the second premium. Waiver of reinstatement conditions is alleged substantially the same as before.
The contentions of the parties upon these facts are: The appellant contends that the policy had lapsed; that the payment made hy the insured was only the payment of the first premium with interest; .that there had been no payment of the second premium; that no reinstater ment had been effected; and that there had been no waiver on the part [630]*630of the insurance company of the provisions of the policy regarding reinstatement. The contentions of the .respondent, on the other hand, are that there is sufficient evidence in the record to warrant the jury in finding that the second premium was paid by the postdated check, and that at the time of its payment the insured was reinstated, the agents waiving the conditions of the policy respecting the doctor’s certificate.
The defendant’s witnesses, particularly Wilhelm and Welch, identify the note which was the occasion for the call upon Henke in September, 1918, as being the note given for the first premium, and some of .the testimony concerning the conversation with Henke regarding the payment of the note went in without objection. On the other hand, a careful reading of the record fails to disclose any evidence to support the allegations in the amended complaint that the postdated check was given for the second premium. It does not correspond in amount with the second premium; but, as previously stated, it does exactly correspond with the amount due on the first premium note at the date of the check. Respondent’s counsel likewise has been apparently unable to point out any evidence in support of the allegations in the amended complaint regarding the payment of the second premium.
In addition to the depositions given by the officers of the company to the effect that the second premium had not been paid, the following testimony shows how conclusively the check given by Henke was identified as having been given in payment of the first premium note: (It will be noted, too, in this connection that in so far as the testimony related to a transaction with the deceased the ruling of the trial court was favorable to the plaintiff. But the testimony went in without objection.)
Welch testified, without objection on this ground, that he was superintendent of agents for the J. E. Williams agency; that in September, 1918, J. E. Williams, of the Williams agency, turned over to him a number of notes for collections; that among them was the note which Henke had given to Wilhelm and which Wilhelm had put up as col[631]*631lateral with the Williams agency. The testimony of which relating directly to the vital transaction is:
Q. What date was it, Mr. Welch, that you called on Mr. Reinhold Renke in company with Mr. Wilhelm and Mr. Lindsey with reference to his note ?
A. September 19th or 20th.
Q. Did you see Mr. Renke on that date?
A. Yes, sir.
Q. Did you have any talk with him?
Mr. Murray: The plaintiff objects on the ground that it appears that the witness is an agent of the defendant company, and the question calls for a conversation with Reinhold Renke, who is now deceased, and the testimony is therefore inadmissible under subdivision 2, § 7871, Oomp. Laws 1913. *
The Court: Objection sustained.
After a brief cross-examination the court sustained the objection to the testimony relating to transactions with the deceased. The testimony continues:
Mr. Murray: I will withdraw the objection.
Q. I will ask you, Mr. Renke (meaning Mr. Welch) what your mission was at the time you called on Mr. Renke ?
A. I called on him for the purpose of collecting a note I had of Mr. Renke.
Q. Do you remember the facts of the note as to its date and amount ?
A. The note, as I recall it, was dated the forepart of May, 1917, was due, I think, November 1, 1917, and the amount was $78.30.
Mr. Murray: We object to that as not the best evidence.
Q. State what you said to Mr. Renke and what Mr. Renke said to you?
A. I told him that I had the note for collection.
Q. I will ask you to state what Mr. Renke said to you after you told him what you were there for ?
A. He said that he was unable to pay the note at that time; that he [632]*632was threshing and as soon as he marketed his crop he would he in shape to pay the note.
Q. What did you say?
A. I suggested that he give me a postdated check for the amount of the note to save me making the trip back, as I had a good many notes to collect. He agreed to it.
Q. Pursuant to that conversation did Mr. Eenke give you a check?
A. Tes, sir.
Q. I show you exhibit, marked for identification “plaintiff’s exhibit B;” I will ask you to state whether 'or not that is the check that Mr. Eenke gave you in payment of the note ?
A. (Witness examines paper) It is, yes, sir.
Q. What did you do with the cheek ?
A. I took the check to the Farmers State Bank of Bentley, with two or three other checks I had, and they cashed the checks and gave me a draft.
Q. What did you do with the note ?
A. I turned it over to Mr. Eenke.
Q. Who was present at the time this conversation took place?
A. Mr. Lindsey and Mr. Wilhelm.
Q. In that conversation did Mr. Eenke tell you what the note you had in your possession and were trying to collect was given for ?
A. I do not recall that he did.
Q. Do you know what the note was given for?
Mr. Murray: Objected to as calling for a conclusion; no foundation laid. No showing that this witness solicited the insurance. On the further ground that it is hearsay.
The Court: Objection overruled.
A. This note was given in payment of the first premium on his policy. In collecting it I told him that I was collecting the note for the first premium.
Q. To whom was the note payable?
A. Constantine Wilhelm.
Q. What interest did it bear ?
A. Six per cent from date.
[633]*633Q. Why did you date the check October 15th, when you were there on the 15th of September, 1918 ?
Mr. Murray: Objected to.
The Court: Objection overrudel.
A. I asked Mr. Eenke when he thought he would have the money; that is, the date he figured he would have it, so I dated the check accordingly.
The respondent, however, relies upon certain testimony as establishing a waiver of the usual reinstatement requirements. The witness-Adam Kelseh, testifying concerning statements made by Wilhelm to-one Krouse, stated that Wilhelm asked Krouse to take out a policy and told him that “Eenke had -just fixed up so that if he died to-morrow he would get $2,000.” Krouse corroborated this statement. Aside from any question as to the binding force of this admission upon the defendant company, we are of the opinion that the evidence is insufficient to establish either the payment of the second premium, a waiver, or a reinstatement. We think it clearly established by this record that the only premium ever paid by the insured was the first annual premium, and that this was paid after the policy had lapsed; also that the evidence is insufficient to support any finding to the contrary. He had, of course, received consideration in the insurance had for the year plus the period of grace that the policy was in full force. It is not shown that the agents had any authority to extend the payment of the second premium for a year or for any other period, and this is contrary to the express provisions of the policy.
There being no evidence of the payment of- the second premium, of a reinstatement effected in the manner called for by the policy, or of a waiver of compliance with the reinstatement conditions, the trial court should have granted the defendant’s motion for an instructed verdict. The judgment appealed from is reversed and the case dismissed.
Christianson, Oh. J., and Eobinson, J., concur.