Appellee, beneficiary in an accident insurance policy issued to her husband by appellant on October 8,1928, recovered judgment in the Circuit Court of the Territory of Hawaii for the faee of the policy for the death of the assured on-April 30,1929, whieh judgment was affirmed by the Supreme Court of the Territory and appeal to this court prosecuted.

At the close of the evidence appellant moved for an instructed verdict in its favor, which motion was denied. After submission, the jury returned a verdict in favor of appellee. Thereafter appellant moved for judgment notwithstanding the verdict, whieh was denied. No challenged instruction of the court is before us for review. Section 2524, Rev. Laws Hawaii 1925. The sole question is: Under the evidence was the appellant entitled to a verdict or judgment as a matter of law?

In the application for insurance appears the following:

“I hereby apply to the United States Fidelity and Guaranty Company for a Policy to be based upon the following representation of facts: I understand and agree that the right to recovery under any policy whieh may be issued upon the basis of this application shall be barred in the event of any one of the following statements, material either to the acceptance of the risk or to the hazard assumed by the Company is false, or in the event that any one of the following statements is false and made with intent to deceive. I agree that this application shall not be binding upon the Company until accepted either by the Secretary at the Home Office or by an agent duly authorized to issue' policies. * * *

“10. No application ever made by me for'Accident, Health, or Life Insurance has been declined, or notice, of action withheld, nor has any such policy of insurance been cancelled or renewal refused,.except as herein stated: No exceptions.”

Did the insured make a false statement with relation to interrogatory 10, in that he made application for lfe insurance and was declined? In its, answer to the complaint, defendant made specific issue of the making and falsity of the statement, alleging that the policy was issued on the following express conditions and agreements: “That the .statements and declarations made in the application for the policy and on the faith of whieh it was issued were in all respects true, and without suppression of any fact relating thereto affecting the interests of the defendant, and upon the further condition that in ease of violation of the aforesaid condition, among others, the policy should become null and void; that the said Harry Apau Dye did violate the condition, in this, that the statements and declarations made by him in his application for the said policy were not in all respects true, but were false in the following respect, to wit: that in the application for the policy and on the faith of whieh it was issued, the statement was made and signed by the said Harry Apau Dye, ‘No application ever made •by me for Accident, Health or Life Insurance has been declined, or notice of action withheld, nor has any such policy of insurance been cancelled or renewal refused/ whereas in fact he had prior thereto applied for insurance upon his life- and been refused on the ground that he was an undesirable risk but shortly before his said application to the defendant, and that if the defendant had known of said refusal it would have declined to write said policy contract of insurance.”

And further alleged that on November 25, 1929, it delivered to the attorneys for plaintiff a letter denying liability; that on said date it tendered in legal coin to the attorneys for plaintiff the sum of $36, the entire premiums paid on said policy, and denied liability on the ground that said policy was null and void because of fraud practiced on the defendant; and further denied that the death of the assured was accidental, but that it was the result of suicide. Plaintiff replied asserting that the defense of false representation should not be permitted, because defendant had retained the premium for more than seven months after the discovery of the alleged fraud, and alleged that the tender was-insufficient because (1) made too late, (2) no offer of interest on the amount retained by the defendant for more than a year was made, and (3) improperly made to plaintiff’s attorneys instead of to the personal representative of the deceased; and further that the defendant failed to perform any act seeking to cancel the policy sued on until after the term for which it was issued had expired.

The agent who negotiated the policy of insurance with the deceased was called as a witness, shown the back of a poliey, and asked: “Is that a copy of the application he made?” Objection was made, the court later permitted the question, and the witness answered: “Yes, this is a copy of the application made.” -

*569 “Was that made out in your office? A. Yes.

“Q. And who made it out, Harry Dye or you ? A. I don’t remember whether I copied the application or asked him questions, or whether he copied it or not. I don’t know.

“Q. Did he sign it? A. Yes.” (This was answered over appellee’s objection, and exception noted.)

On cross-examination the witness stated:

“A. This was 'just a copy of the usual form of application.

“Q. And the only reason you say it is a copy of the one that Dye signed is because his name appears there, Henry Apau Dye, is that correct? A. It is a copy of that form of application I would use for—

“Q. But there is nothing to indicate that Dye signed the original of that? A. Nothing here, no.

“Q. You said you did not recall whether you filled this application out or whether Mr. Dye did? A. I don’t remember whether he did or I did fill that out or the original.

“Q. As a rule, however, is it not a fact that the agent usually filled them out? A. There is no set rule, sometimes the applicant likes to fill it out, sometimes I fill it out, there is no particular form (rule) that one follows.

“Q. Isn’t it a fact, Mr. Woolaway, that often in filling out these applications, after you get the man’s name, residence, where he was born, and his age and height and weight, where he lives, where he works, the rest of it is filled out by the agent often without asking him any further questions ? A. That is often done.

“Q. It might have been done in this case, as far as you recollect ? A. It might have.”

On redirect examination the witness was asked:

“Q. Do you remember whether you filled out any of these questions without asking him any questions? A. No; there was a question there on life insurance that appears in the application. I remember talking to him on that point.

“Q. With Dye? A. Yes.

“Q. What did he say? A. The question of life insurance—

“Q. What was the conversation? A. Harry Dye told me that he just secured a policy from John Hancock Co., that was all.

“Q. Did he tell you anything else? A. Nothing that I remember. I remember the subject came up on the subject'd life insurance. * * *

“Q. In connection with your asking as to the question of whether he had, that he had made application for life insurance^ and whether or not you remember asking him about applications in general of life insurance or accident insurance? A. My question with him on life insurance was not in connection with application, it was what he carried, and I .remember him telling me that he had received a John Hancock policy from the International Trust Co. agents, but I don’t remember any reference to applications.

“Q. Do you remember asking him this ’question— A. I don’t remember asking that question. I know that is a part of the application that he filled out. I don’t remember whether I asked him that specifically.

“Q. Did he fill this application out or did you? A. As I say, I don’t remember. I think he filled it out himself.”

There was evidence that the deceased had made application for life insurance to the Prudential Life Insurance Company and was rejected, but there is no proof of notice of rejection to the applicant. The witness stated that ho was notified “by letter.” There is, however, no evidence of delivery by messenger, nor proof that it was deposited in the post office, postage prepaid, addressed to a given address, the usual place of residence of the deceased. Proof of notice that the deceased know he had been rejected for life insurance was the essence of the issue of fraud and deceit (Wharton v. Aetna Life Ins. Co. (C. C. A.) 48 F. (2d) 37), and the burden of proof was on defendant. This court must determine the issue upon the record as made, especially since the dead cannot speak. And no inference may be drawn in favor of defendant because on cross examination plaintiff could have shown manner of delivery, and omission was a tacit admission. The plaintiff was not required to speak. Fraud is never presumed, nor may the court presume tacit admissions in a link to establish fraud, in the absence of proof.

But this is not the only instance where the proof stopped short of a material issue. The doctor called as a witness by the defendant was asked:

“Q. At some time in 1928, I ask you whether or not you examined Harry Dye for insurance? A. I did.

“Q. What company ? A. Prudential.

*570 “Q. What was the date of that examination? A. June 8,1928, according to my records. That is all.”

If the assured was physically and organically unfit for life insurance, this doctor, the only living witness produced to whom the fact was known, was not asked what he found, or what notice, if any, he gave to the applicant as to his noninsurability. The testimony stopped short óf the vital fact. It is not enough to say that he could have been cross examined. The defendant no doubt knew what the further answer would be. The insured was dead. The beneficiary had a right to require strict proof and that the defendant 'establish the falsity with intent to deceive and defraud. The application was obviously written by the agent of the defendant, and there is no evidence of evasion or falsity by the assured, but all questions asked were truthfully answered; so stated by defendant’s agent. He was not asked the dis-_ puted question, and there is no competent evidence before the court that the assured signed the application with intent to deceive and defraud, or at all. If he did, he was misled into so doing, not having been asked question 10 and not knowing that the denial was written there by the agent for the defendant. The original application would show beyond question who filled in the application and whether it was signed or not. Defendant’s failure to produce the original at the trial appears conclusive that it would not sustain its contention. And the failure to show by defendant’s doctor notice to the assured of noninsurability, or his noninsurable condition, and the absence of proof of notice of rejection, leaves a condition upon which reasonable minds would differ as to the signing of the application by the assured and the making of the statement attributed with intent to deceive and defraud.

The evidence is inconclusive, and the conclusions of the trial court thereon are binding on this court on appeal. Standard Brewery v. Lacanski, 60 Ind. App. 499 , 111 N. E. 80 . There was no credible evidence upon whieh the motion for directed verdict could be predicated. “Issues that depend on the credibility of witnesses, and the effect or weight of evidence, are to be decided by the jury.” Gunning v. Cooley, 281 U. S. 90, 94 , 50 S. Ct. 231, 233 , 74 L. Ed. 720 . The only evidence as to the signing of the application was given by the agent of the defendant, an interested witness, and it was for the jury to weigh his statement with the statement as to his conversation on life insurance with the assured and the defendant’s failure to produce the original application at the trial. “Where the evidence upon any issue is all on one side or so overwhelmingly on one side as to leave no room to doubt what the fact is, the court should give a peremptory instruction to the jury.” Gunning v. Cooley, supra.

The motion for directed verdict was properly overruled. In Wharton v. Aetna Life Insurance Co. (C. C. A.) 48 F.(2d) 37, 39 , the court said: “Where the evidence is of such a character as reasonable men may reach different conclusions, the case should be submitted to the jury.” It is evident that upon the record uncertainty exists with relation to the established issue, and since fair< minded men would honestly draw different conclusions, the question was not one of law, but of fact for the jury. See, also, Mansfield Hardwood Lumber Co. v. Horton (C. C. A.) 32 F.(2d) 851 ; Public Utilities Corporation v. McNaughton (C. C. A.) 39 F.(2d) 7 .

The averment of the plaintiff that the claim of fraud was not timely made will be passed without discussion. Before a policy can be avoided by answer in civil suit, tender must be made of the full premium, together-with the legal rate- of interest from the date of the receipt of the premium to the date of the tender. The following, while not fraud eases, are applicable to contractual ‘obligations: Lilienthal v. McCormick (C. C. A.) 117 F. 89 ; Pacific Mail S. S. Co. v. Western Pac. R. R. Co. (C. C. A.) 251 F. 218 ; Rolfe v. Patrons’ Androscoggin Mut. Fire Ins. Co., 106 Me. 345 , 76 A. 879 ; Smith v. Pilcher, 130 Ga. 350 , 60 S. E. 1000 ; Bolton v. G. C. Gifford & Co., 45 Tex. Civ. App. 140 , 100 S. W. 210 ; Stieglitz v. Cohen, 69 Misc. Rep. 634 , 126 N. Y. S. 145; Briede v. Babst, 131 La. 159 , 59 So. 106 ; Bell v. Riggs, 34 Okl. 834 , 127 P. 427 , 41 L. R. A. (N. S.) 1111; Francis v. Brown, 22 Wyo. 528 , 145 P. 750 . It is not enough for the defendant to 'say on this appeal that it is willing to pay any interest, in addition to the tender, that the court may require. To be a sufficient tender, the principal, together with the legal rate of interest for the time the premium was held, must be tendered.

Nor can this court say that the beneficiary is estopped from denying the claimed representations and statements of fraud because of the delivery of the policy and the retention thereof by the assured with the disputed question and answer indorsed thereon. This is a claim that would have sup *571 ported an equitable action to rescind the contract, hut if relied upon in defense of an action on the policy it must he pleaded, and it cannot be raised for the first time in this court. It was not pleaded and was not raised in the motion for a directed verdict, nor by requested instruction to the jury, or in tile motion for judgment notwithstanding the verdict, nor is it included in the record to this court. Making the false statement with intent to deceive and defraud was the sole issue. Defendant had a right to elect as to whether it would (1) rely upon the express statement made, as alleged in its answer, or (2) rely upon the matter of estoppel by reason of the receipt of the policy with the indorsement thereon and the adoption of the statement as a matter of law, thereby creating an estoppel to deny the truth thereof when claim was made thereunder; or it might have claimed both defenses in separate counts in one answer.

In Robinson & Co. v. Belt, 187 U. S. 41 , 23 S. Ct. 16, 19 , 47 L. Ed. 65 , the court said: “While it is the duty of this court to review the action of subordinate courts, justice to those courts requires that their alleged errors should be called directly to their attention, and that their action should not be reversed upon questions Which the astuteness of counsel in this court has evolved from the record. It is not the province of this court to retry these eases de novo.”

This question is not presented in the briefs, but it is a matter which the court must consider upon this issue first being raised. Rarely has this question been before the Supreme Court. However, in Gilmer v. Poindexter, 51 U. S. (10 How.) 257, 268 , 13 L. Ed. 411 , the court said: “ • * * It must he pleaded if there be an opportunity; otherwise, the party omitting to plead it waives the estoppel. See 2 Smith’s Leading Cases, 457, and the authorities there cited.”

See, also, Standard Brewery v. Lacanski, 60 Ind. App. 499 , 111 N. E. 80 ; Hall v. Henderson, 126 Ala. 449 , 28 So. 531 , 61 L. R. A. 621, 85 Am. St. Rep. 53 ; Cloud v. Malvin, 108 Iowa, 52 , 75 N. W. 645 , 78 N. W. 791 , 45 L. R. A. 209; Jacobs v. First Natl. Bk., 15 Wash. 358 , 46 P. 396 ; Interstate Savings, etc., Ass’n v. Knapp, 20 Wash. 225 , 55 P. 48, 931 .

This issue was known to the parties, and there was ample opportunity to plead it. On failure to do so, it was waived; and justly so. To permit the raising of this issue for the first time in this court would deprive the beneficiary of an opportunity to refute the claimed estoppel, a matter upon which the beneficiary should have an opportunity to bo heard. Other elements enter into the question of estoppel than those disclosed by the record. Beneficiary was entitled to her day in court upon that issue.

There is nothing in the record to show that the case was not fully and fairly submitted by the court to the jury upon every issue raised; and it was manifestly the court’s duty so to do. The jury having determined against the defendant, every reasonable intendment in favor of the verdict and judgment should be indulged in by this court. There is no contention that premium and interest thereon was tendered; nor was interest tendered when insufficiency of tender for lack of interest was charged by the reply. Lack of tender alone is sufficient to defeat rescission. And estoppel was not an issue from any viewpoint of approach. The purported answer to the interrogatory 10 never reached the dignity of an established or conceded fact. It was clearly an open issue upon which fair and reasonable minds might differ, and the court so concluded in denying the motion for a directed verdict. The materiality of the statement in the application never reached the point where it could be attributed probative value. While the materiality was discussed by the Supreme Court of the territory, it is of no importance, since the judgment of the nisi prius court was affirmed.

The judgment is affirmed.