In Error to the Circuit Court of the United States for the District of Oregon.

The action was brought by Lysander S. Logan, the' defendant in error, as executor of the last will and testament of Thomas J. Logan, deceased, to recover 810,000 and interest, alleged to be due upon a certain policy of insurance claimed ta have been issued by plaintiff In error, the Mutual Life Insurance Company oí New York, upon the life of Thomas J. Logan. The case was tried in the court below before a jury, which rendered a verdict for the plaintiff. the defendant in error here, in the sum of 810,000, with interest at 0 percent. per annum from September 28, 1894. Judgment was entered December 28, 1898, to reverse which the defendant sued out this writ of error.

The policy in question was for the sum of §10,000, was numbered 581,388, and was issued by the company on August 28, 1893. The defense interposed in the court below was that the contract of insurance was never consummated by Thomas J. Logan. That was the only issue in the ease. Thomas J. Logan resided near Prineville, Crook county, Or., and on the 26th day of August, 1893, signed an application for insurance, and at the same time and place executed a promissory note payable to his own order for the sum of $1,185, due on November 1st thereafter, payable at the First National Bank of Prineville. The sum of $1,185 was the amount of the premium. The note was indorsed in blank by the maker, and delivered at the time of the signing of the application to one William Johnson, who appears to have been a solicitor of insurance. The application was accompanied with a medical examiner’s report, also signed by Thomas J. Logan, and made by H. P. Belknap, medical examiner, of the same date, and was forwarded to one F. L. Stinson, an agent of the defendant company at Seattle, Wash., and was by him in turn forwarded to A. B. Forbes & Son, at San Francisco, the general agents of the plaintiff in error for the Pacific Coast, and by them in turn forwarded to the home office of the company, in New York. Thereafter a policy in the form called for by the application was issued, and forwarded to Stinson, at Seattle.

On October 18, 1893, Stinson wrote Logan, from Seattle, the following letter:

“The Mutual Life Insurance Company of New York. Richard A. McCurdy,

President. F. L. Stinson, General Agent for Washington and Oregon.

“Seattle, Washington, Oct. 18th, 189-.

“Thos. J. Logan, Esq., Prineville, Or — Dear Sir: I take pleasure in informing you that the company have accepted your risk for $10,000, and have issued policy No. 581.368, and I have forwarded same this day, together with your note for $1,185, to the First National Bank of Prineville, where the latter is payable. If you wish to take the note up at once, I will allow you a discount of 1 per cent, from the face value. * * *

“Yours, very truly, F. L. Stinson, General Agent.”

Stinson also wrote and sent the following letter to the,First National Bank of Prineville:

“The Mutual Life Insurance Company of New York. Richard A. McCurdy, President. F. L. Stinson, General Agent-, Washington, Oregon.

“Seattle, Washington, Oct. 18th, 1893.

“First National Bank, Prineville, Or. — Dear Sirs: Inclosed please find policy No. 581,368, T. J. Logan, amount, $10,000, together with his note due Nov. 1st, in amount $1,185, which please collect and remit, less your charges, cost of exchange,' etc. Kindly deliver the policy to Mr. Logan upon payment of note. If he wished to pay same at once, 1 per cent, from the face of note will be deducted.

“Yours, very truly, F. L. Stinson, General Agent.” •

To this communication the bank made the following reply:

“First National Bank, Prineville, Or.

“Prineville, Oregon, 11 — 1, 1893.

.“F. L. Stinson, Esq., Geni. Agent, Seattle — Dear Sir: * * * Policy of T. J. Logan received. Mr. Logan says he is unable to pay, and desires that the policy be surrendered, and note returned to him. Please advise. * * *

“Yours, respectfully; T. M. Baldwin, Cashier.”

Stinson thereupon advised the bank as follows, under date of November 6, 1893:

“First National Bank, Prineville, Oregon — Dear Sirs: I have your favor of the 1st inst. * * * Regarding T. J. Logan, I note what you say. Please hold the policy subject to his call;' that is, when he pays the note, deliver same to' him. If the note is not paid within four days from receipt of this letter, kindly return same to me, and I will proceed to collect same. Will you kindly advise me if Mr. Logan is good for the amount of his note? If he will pay one-half of the face of the note, kindly accept and indorse same, and have promised him time to pay the balance. Thanking you in anticipation of an early reply,

“Yours, very truly, F. L. Stinson, General Agent.” .

He also, on tlie same day, wrote to Thomas .T. Logan the following letter:

“The Mutual Life Insurance Company of New York. Richard A. McCurdy, President. F. L. Stinson, General Agent., Washington, Oregon.

“Seattle, Washington, Nov. 6th, 1893.

“T. J. Logan, Esq., Prineville, Or. — Dear Sir: I am advised by the First National Bank, under date of the 1st inst, that you state that you are unable to meet your note of $1,185, which I had sent to tlie above bank for collection, same being due on Nov. 1st. I had hoped that you would have met this note promptly, and trust that upon receipt of this you will take the same up immediately. If unable to pay the full amount, if you will pay half of the note I will give you time on the balance. I must insist, however, upon the payment of at least half immediately. Kindly let me hear from you by return mall, and oblige,

“Yours, very truly, F. L. Stinson, General Agent.”

The. bank, on the 14th of November, 1893, sent tlie following communication to Stinson:

“First National Bank of Prineville.

“Prineville, Or., Nov. 14th, 1893.

“F. L. Stinson, Esq., General Agent, Seattle, Wash. — Dear Sir: I return herewith your note on T. J. Logan for $1,185.00. Payment refused. Mr. Logan refuses to accept policy.

“Yours, very truly, T. M. Baldwin, Cashier.”

To this letter Stinson sent the following letter to the bank:

“The Mutual Life Insurance Company of New York. Richard A. McCurdy,

President. F. L. Stinson, State General Agent, Washington, Oregon.

“Seattle, Washington, Nov. 20th, 1893.

“First National Bank, Prineville, Or. — Dear Sirs: I have your favor of the 14th Inst., returning note of T. J. Logan, in amount $1,185. Please hold the policy subject to Mr. Logan’s call. Kindly advise me the amount of expenses for your trouble in this matter, and I will remit.

“Yours, very truly, F. L. Stinson, General Agent.”

Thereafter the policy appears to have continued in the possession of Baldwin until March 29, 1894, when he returned tlie same to W. S. Pond, at that time the cashier of the plaintiff in error, at Seattle, Washington, upon a request as contained in the following letter:

“The Mutual Life Insurance Company of New York. Richard A. McCurdy,

President. F. L. Stinson, State General Agent, Washington, Oregon.

“Seattle, Washington, March 24, 1894.

“First National Bank, Prineville, Or. — Dear Sirs: Kindly send the Logan policy here, No. 5S1,368, as per inclosed order from Mr. F. L. Stinson, and oblige,

“Yours, very truly, Wm. S. Pond, Cashier.”

It was subsequently sent on to the company’s home office for cancellation. The note was returned to Stinson, as per his request, on or about November 20, 1893. It was by him given to the National Bank of Commerce, at Seattle, Wash., to secure the payment of advances made to him by tlie bank prior to November 25, 1893, and for further advances to be thereafter made. On November 25, 1893, tlie note was mailed by the bank to one J. Park Henderson, an attorney at law, at Portland, Or., to endeavor to collect for the bank. Suit was thereupon brought on the note on November 29, 1893, by Henderson. A demurrer, answer, and reply were successively filed, and it appears that on May 7, 1894, following, the suit was dismissed without prejudice by order of court, on motion of counsel for defendant, Thomas 3. Logan. Nothing appears 1o have been done in regard to collection of the note, beyond its being held by the National Bank of Commerce as colhrteral for moneys theretofore and thereafter advanced to Stinson, until August 31, 189-1, when it was sent by the National Bank of Commerce to the First National Bank of Prineville, Or., in a letter dated July 81, 1894. It was returned to the National Bank of Commerce by a letter dated August 29, 1894, which reads as follows:

“First National Bank of Prineville.

“Prineville, Or., Aug. 29th, 1894.

“The National Bank of Commerce, Seattle, Wash. — Bear Sirs: We return herewith your collection, No. 8,553, T. J. Logan, for $1,185. and interest. T. J. Logan, the maker, is now dead, and his son, L. S. Logan, is the executor of his will. He informs me that the note will have to take the regular course of such matters in this state. A copy of the note, duly sworn to, must he filed with the executor, and paid by order of the probate judge.

“Yours, very truly, [Signed] T. M. Baldwin, Cashier.”

It further appears that the note was thereafter filed and proved up against the estate of Thomas J. Logan, deceased, by the National Bank of Commerce. The latter died at Prineville, Or., July 10, 1894.

The deposition of Baldwin, the cashier of the First National Bank of Prineville, was introduced in evidence, from which it appears that he testified as follows in regard to his possession of the policy and his conversations with Logan in regard to it: That he knew Thomas J. Logan; that he (the witness) was cashier of the First National Barde at Prineville, Or., and had been such for nine years past continuously; that he was cashier in November, 1893, and remembered receiving a promissory note signed by Thomas J. Logan, dated at or near Prineville, Or., August 26, 1893, whereby said Logan promised to pay to the order of himself, on November 1, 1893, the sum of $1,185, with interest; that he received the letter of October 18, 1893, from F. L. Stinson, containing policy of insurance No. 581,368, with the note above referred to. The deposition showed that the witness was asked the following question, among others, upon examination in chief: “Q. What did you do with the policy after receiving this letter?” After objection and exception, he replied: “I filed it in Mr. Logan’s name in the bank.” That the policy was placed in a ease kept for that purpose, alphabetically arranged, under Mr. Logan’s initials; that the case was kept for the purpose of holding the papers of customers of the bank; the bank habitually had papers there belonging to Mr. Logan, but could not say that any were there at that particular time; the papers were kept for safekeeping; that it was customary for the bank to receive and safely keep papers for its customers and patrons; that Mr. Logan was a patron of the hank, and that there was a definite understanding between the bank and Mr. Logan that the hank should keep his papers for safe-keeping, they being left there and received by the bank as an accommodation to him; that the custom alluded to had existed ever since the bank was organized, which was about six years prior to the date last referred to; that upon the receipt of the letter from Stinson of October 18, 1893, he gave the policy and note to Logan; that he thinks Logan took the policy in his hands, and then handed it hack; that Logan did not refuse absolutely to accept the policy; that Logan did not instruct him to return the policy, but that he did not remember that Logan instructed him to keep the policy for him; that Logan told him that, if he could not raise the money, he would like to return the policy; that he received no instructions or directions with relation to this policy from Logan after November 14, 1893; that he did not remember having any communication with him or any one acting for him after that time; that he might not remember, as it was a good .while ago; that he did not remember that Logan instructed him to keep the policy for him; that he (Logan) did not instruct him to return the policy; that subsequent to November 20th, when Stinson wrote to the First National Bank telling them to “hold the policy subject to Mr. Logan’s call,” he held the policy subject to Mr. Logan’s call; that, had Logan called for the policy while it was in the bank subsequent to that date (November 20, 1893), he would have delivered it to him; that Logan made no objection to receiving the policy subsequent to the date witness received instructions from Stinson to hold the policy subject to his call; that, when he said that Logan desired to have the policy returned and his note delivered to him, he (witness) was referring to a time prior to November 20, 1893; -that he thought he must have informed Logan that the policy was in his box after November 20, 1893, but that he had no disih:et recollection as to the time, and thought so because it would have been their custom to do so. He further deposed as follows: “Q. Have you any distinct recollection that you are willing to say certainly that you notified him that you liad placed the policy with his papers? A. I don’t remember distinctly of notifying him at that time. Q. You can’t say whether you did or not? A. Only it being in the line of my duty to do so. Q. It was your custom to do so? A. Yes. sir. Q. But you knew there had been a refusal on Mr. Logan’s part to accept this policy before that because he could not pay this note? A. That was the only reason he ever gave. Q. You knew the fact that lie refused to lake the policy, didn’t yon? A. I knew that he could not take it under the circumstances. Q. Well, you knew that he had declined to accept the policy, and wanted you to return It? A. On the ground 1 have stated. Q. You knew that. Now, knowing' that fact, did ho ever change his mind or instructions to you in reference to that policy to your knowledge? A. No.” The witness further testified, substantially as follows: That before writing the letter of November 1, 1803, he conferred with Logan in reference to the payment of the note and the delivery of the policy, and that said letter was written from what Logan told him; that before writing the letter of November 14, 1893, he also con Corred with Logan in reference to the note and policy, and that said letter was also written from what Logan told him; lhat he had only one conversation with Logan up to that time; that the letter of November 1, 1893, was written shortly after said conversation, and that of November 14, 1893, was also based on said conversation; that no person was present at the conversation; that he thought that after receiving the letter of date November O. 1893, he must have communicated to Logan the offer of Stinson that, if he could pay half of the face of the note, he might have time on the balance; that Logan did nothing in relation thereto; that he does not remember what Logan said in reference thereto; that Logan did not show him a letter he had received from Stinson bearing' the same date, with reference to this' matter; that he (witness) never saw" such letter. The witness further testified that about March 29, 1894, lie received a letter of date March 24, 1894, from W. S. Pond, inclosing an order from IT. L. Stinson, dated March 14, 1894, both addressed to the First National Bank of Prineville, Or., and that lie acted upon the said order and letter, by returning, on .March 29, 1894, the policy to AY. S. Pond, Seattle, Wash.; that he did not remember notifying Logan that the policy was to be returned; Logan never told him to return the policy; was an intimate friend and intimate business acquaintance of Logan for many years; does not remember that lie notified Logan that the parties had requested a letnrn of the policy; Logan had not called for the policy, ami he (witness) wanted to see him get his note back; that he took the liberty to return the policy; that lie felt authorized to return the policy from what lie knew' of Logan’s wishes in 1he matter; that he does not remember that he communicated with Logan after returning the policy as to his having done so: dees not remember having told him that he returned it. He further testified That ho. did not notify Stinson that he had placed ¡he policy among or with Logan’s papers, and that Stinson did not know the fact, nor did Logan; that he pat the policy in the note ease for the first time after he received the letter advising him to hold it subject to Logan’s call.

if. L. Htinson testified that he was the state general agent of the Mutual Life Tu-uraneo Company of New York for Washington and Oregon; that Ids head office was at Seattle; that the company knew of this designation; that his letter heads sent to Mm by the company indica tod that he was general agent for the states of Washington and Oregon; that his duties were to solicit ap.pliealions for insurance, to collect premiums, and to deliver policies, remitting Lie premiums to the company; that, as such agent, it had been his custom to receive notes in payment of policies in lieu of money; that he had upon one or two different occasions told a Mr. Forbes, the general agent of the company for the Pacific Coast, that he had taken a. great many notes in payment ot premiums; that Mr. Forbes advised him not to take too many notes: that he should be careful in taking notes; that it liad been his cus loin to deliver policies prior to the payment of the notes in many cases. The witness further stated that he remembered receiving an application for a'policy in this company from Logan, and that he received the same from William Johnson, the agent; that he received at the same time the promissory note; that, after receiving the application and the note, he tools a copy of the application, and sent the original to A. B. Forbes & Son; that the application was accepted by the company; that he received from the company a policy in accordance with the requirements of the application; that he sent the policy and note to the First National at Prineviile, Or.; that the National Bank of Commerce of Seattle got the note from him, he having sold it to that bank for certain indebtedness due by him to the bank; that the note was taken as collateral security; that he had told Mr. Forbes, upon one occasion, of the fact that he had 'sold this note to the National Bank of Commerce; that, when he took the note from Logan, he took it as payment for the premium; that he never advised Mr. Logan or consented to return to Mr. Logan his note in accordance with the wishes purported to have been expressed by the latter as contained in the letter óf Mr. Baldwin of November 1, 1898; that he told Mr. Forbes, upon the occasion of the latter’s visit to Seattle about the last of November, 1893, that he had sold the note to the National Bank of Commerce; that Mr. Forbes asked him regarding the payment on the Logan policy, and that he told about the note, and where it was, and that he told him, further, that he (the witness) could not get the note without paying for it; that it was in the bank, and he (witness) could not get it without paying at least one-half of the note; that Mr. Forbes said he would look into the matter, and see what could be done; that he (witness) thought this conversation occurred in November, 1893, but he would not be positive; that, before writing the letter to the Prineviile Bank wherein he told Mr. Baldwin to hold the policy subject to Mr. Logan’s call, he had investigated the personal responsibility of Thomas1 J. Logan, the maker of the note, and had found it good; that, at the time he took the note, it was received by him in payment of the premium; that the policy had not then been received; that the note was to mature November, 1893, and he intended that the policy should be tendered at the time the note matured; that he did not intend that the policy should be delivered to Mr. Logan before the payment of the note; that he could not say that he did not intend at any time to deliver the policy until after he had collected the money that was due upon the note; that he does not remember ever having seen the rules and regulations issued by the company;' that he did not think he received a printed copy of the rules and- regulations, edition of March, 1893, from Mr. Forbes, governing him in his business, and did not have any printed instructions at all; that he did not know that, as an agent, he was expressly prohibited from receiving notes as payment fo1 premiums.

A. B. Forbes, whose deposition .was taken on behalf of the plaintiff in error, testified that he was the general agent of the company for the states of Caliifornia, Nevada, Oregon, Washington, and other Pacific states and territories; that F. L. Stinson was his subagent, with limited powers; that he does not know why the policy to Logan was never delivered, if it was not delivered, except from correspondence about the policy after it was sent to Stinson; that in the latter part of 1893 he visited Seattle, and was then told by Mr. Stinson that delivery had not been made because Mr. Logan had not paid the premium; that he then told Stinson that a re-examination must be had, and the premium paid, before the delivery of the policy, and that he must give it immediate attention; that nothing was then said by Stinson to witness about any note made by Mr. Logan being hypothecated in any bank, nor did the witness know of the fact; that he did not recollect any conversation with Stinson about the particular note of Thomas J. Logan for $1,185, payable to his own order. The witness further testified, and produced and made a part of his deposition a pamphlet book, entitled, “Suggestions for the Guidance and Instruction of Local Agents and Solicitors, Edition of March, 1893, Published for the Mutual Life Insurance Company of New York”; that Stinson had a copy of such pamphlet book of rules; that among such rules was the following: “Agents are expressly prohibited from receiving notes as payment for premiums.” The witness further testified that he had no knowledge of the taking of promissory notes for the payment of premiums by soliciting agents of F. L. Stinson or by F. L. Stinson, and that, after 60 days from the date of the policy, a re-examination of the applicant was required, and the premium was required to be paid before the policy was delivered; that Stinson was not a general agent; that he was a sub-agent, lie (witness) being the general agent for tlie company on the Coast; that ►Stinson held himself out as general agent, with the knowledge of witness; that he was in the employ of witness; that he had no doubt that Stinson represented himself as general agent of the company.

The plaintiff, Lysander S. Logan, son of the deceased, Thomas .T. Logan, and defendant In 'error here, testified, over the objection of plaintiff in error, that he had a conversal ion with Jiis father about the 1st of December,- — the early part of December, — regarding the note and policy; that his father told him he had given his note for the premium on the policy, and that it was in tlie hands of attorneys, and he wanted to know if he (witness) could raise the money for him to lift the note; and that he (witness) told him that lie could not at that time; and that his father then said, “ T believe I will go to the bank and get the policy, and see if 1 can mortgage it for the money to pay the note., mortgage it to parties there, to see if he coaid get the money to lift his note with.”

It is unnecessary to refer further to evidence in tlie case, as that already stated presents, for tlie most part, the only question at issue, viz;, whether the contract of insurance was consummated on November 20, 1803.