The opinion
Simmons, C. J.
1. Where a policy of life insurance which was duly delivered to an applicant differed in any material respect from the kind of policy for which he had contracted, it was his duty, if he did not desire to retain and accept the policy received by him, to return or offer to return the same within a reasonable time to the company, or an agent thereof authorized to receive it, and upon failing to do either, the applicant could not avoid paying a promissory note which he had given for the first premium due upon the policy.
2. If such applicant, without returning or offering to return the policy as above stated, delivered it to one who was not an agent of the company nor in any way connected with its affairs, and after the lapse of some months an agent of the company casually found it among the papers of the person last referred to, who had died, he being the agent’s father, the plaintiff was not discharged from .liability upon the note in question.
3. Under the evidence in the present case the verdict for the plaintiff was right, and irrespective of the assignments of error made in the motion for a new trial, ought to have been set aside.
Judgment affiTmed.