The opinion
on appellant’s motion for rehearing.
The motion brings into question several of the propositions held in this opinion heretofore delivered; but it appears to us there is but one subject that requires additional discussion. This is whether or not something more was not essential to the contract of insurance than a constructive delivery of the policy to Weaver for Hocker, in view of the agreement affecting the delivery of the note left in escrow, which was: “This note is hereby placed in the Ward County Bank in escrow, and is to be delivered to J. W. Johnson when a satisfactory policy for $10,000 is turned over to A. S. Hocker by said bank.” We held in the chief opinion that it was a matter inferable from the testimony, and the eir *336 eumstances connected therewith, that the policy had been sent to Weaver and received, by him for unconditional delivery to Hocker before the latter’s death. The evidence of this, we admit, was slender, but, we think, sufficient to require the issue to be passed on by the jury.
But was such delivery, if any, enough? The note was, by said agreement, withheld by Hocker until a policy that was satisfactory to him was turned over to him. Until this event occurred there ivas no contract, because until then Hocker was not bound. Until then the note was withheld, and Hocker not obligated thereby for the premium. The testimony relied on as showing that the policy was satisfactory to him consists in the fact that Hocker knew the policy had arrived and was held for him, and that he authorized Judge Gage, in the afternoon of the day he was killed, to transfer the policy from the Ward County Bank to another bank, and on the same day he asked J. A. Stewart to-go to the Ward County Bank and get his policy. The next morning both of these gentlemen went to the bank for it, and Mr. Weaver, who was cashier, refused to surrender it. For this testimony it is claimed that it is sufficient, in view of Hooker’s inability to testify, to warrant finding that he had seen the policy and was satisfied with it. It seems to .us that Hooker’s inability to testify would not aid in establishing a fact that required testimony to substantiate it. The above testimony will support a finding that he knew the policy was at the bank and held for him subject to his order. Instead of showing that he had seen it, it rather tends to show the contrary; for, if he had gone to the bank himself, the probability is he would not have had occasion to send someone else for it. There is not a particle of proof in the above testimony that anyone for him had examined the policy. Conjecture is not proof.
It would, in this connection, be insisted that the testimony served to show that, whatever the policy was, he was satisfied with it. It can not, we take it, be denied that, had he taken the policy, or someone for him, he would have been entitled under the agreement to a reasonable time to examine it, and, if dissatisfied with it, to have rejected it. Of course, he could not have pursued this course if the policy had been examined when-taken. There was some reasonable ground for his dissatisfaction with the policy. As it was drawn there existed a question of its having been drawn in the terms of the application which he had signed. That question was of sufficient apparent importance, from the face of the papers, to suggest to the company the advisability of requiring Hocker to sign a correction slip, and of sufficient importance to be made an issue in this case. Certainly when he, or someone for him, came to read the policy, at the time of taking it from the bank, or in a reasonable time thereafter, he had the right to express dissatisfaction with* it for the above reason. As long as he had this right—and it is clear that he had it when he was killed—he u'as not' bound. Under these circumstances we are unable to escape the conclusion that the company was not bound; and there was no completed contract so far as the evidence in this record shows. (Summers v. Mutual Life Ins. Co., Wyo., 75 Pac. Rep., 937 , 66 L. R. A., 812.)
This conclusion renders the other questions in the case of no importance. It is apparent that the case, on the facts relating to the question herein discussed, has -been fully developed. Therefore, we grant this *337 motion for rehearing, and judgment will be here rendered in favor of appellant, instead of remanding the cause for another trial. Reversed and rendered.
Reversed and rendered.
Writ of error refused.