the bargain is closed beyond recall. Thus, in a New Jersey case,' the insurers made out a policy and mailed it to their agent to be delivered to the plaintiff. Before the policy was received by him, and before the plaintiff knew of the acceptance of the risk, the insurer telegraphed notice of the withdrawal of its acceptance of the risk, and directed the agent to return the policy, because the premises had preriously been burned. The plaintiff called upon the agent, tendered the premium, and demanded the policy. The agent accepted the money, but refused to deliver the policy. The court held that the insurer was liable for the loss. The question was ably discussed by VREDENBURGH, J., and the portion of his opinion pertinent to this point is given in the subjoined note."

ditions and limitations, as are usual in such cases, or have been used before between the parties. This is the sense and reason of the thing, and any contrary requirement should be expressly notified to the party to be affected by it."

1Hallock v. The Com. Ins. Co., 26 N. Y. 268; 4 Bennett's F. I. C. 195. "He said: "The case shows that the plaintiff, when he made his application, offered Breck the premium, who said he would consider it as paid, but would leave it with the plaintiff, who was his banker, till the policy arrived, when he would call and get it. Would it have made the payment more real if the plaintiff had handed Breck the money, and Breck had deposited it with his banker? The money was, in legal effect, paid to Breck, and by him placed on deposit. It was, in contemplation of law, an actual payment to the company, as much so as if Breck had transmitted the money, as well as the application, to the company. But if not an actual payment, the defendants are estopped from saying that it is not. They must be considered as doing what Breck did, viz., saying to the plaintiff, on the 2d of March, when he tendered them the money, we will consider it as paid. N. Y. Central Ins. Co. v. National Protection Ins. Co., 20 Barb. (N. Y.) 474; 1 Ben. F. I. C. 96. Secondly. The defendants insist that the application, having been made on the 2d of March, and no action having been taken by the defendants until the 13th, we cannot consider the plaintiff as still continuing his offer to the defendants; that we are bound to consider it as withdrawn. But why so? There is no pretense of any express withdrawal. The question and the answer can never, in any case, be simultaneous; the question must always remain for some length of time with the one to whom it is put, and abide the answer. In every negotiation, whether by telegraph, by letter, or by word of mouth, the application and the answer can never be at the same precise instant. The application must wait upon the answer. If the application is considered to be withdrawn as soon as made, no two minds ever could meet upon any proposition. The aggregatio mentium never could take place. In all cases, the application is construed tɔ stand until the contrary appears; until it is either withdrawn or answered. Pothier Traite du Contrat du Vente, p. 1, § 2, art. 3, No. 32; Mactier v. Frith, 6 Wend. (N. Y.) 103. But here the plaintiff avers the application to be still standing. The defendants treat it as still before them on the 13th of March, by accepting it, and making out the policy. We must therefore treat it as the parties treat it, as still at noon on the 13th of March a standing and valid offer by the plaintiff to the defendants. Thirdly. The defendants contend that the policy never was delivered, so as to make it a living contract. But it appears, by the case, that the contract to insure was complete before they mailed the policy to Breck. Their telegraphic dispatch, dated on the 15th of March, says, Risk not taken when burnt; return policy when received.' This necessarily implies that the risk was taken, but after the fire. Breck had no authority to insure. After the proposals were accepted by the company, they made out the policies, and sent them to Breck to deliver; so that it appears, by the case, that before they mailed the policy to Breck, they must have received the premium and accepted the risk.

Whenever the insurer has done an act, amounting to an actual agreement to undertake the risk, liability attaches, and he cannot recede

and thus completed the contract to insure. If the case had gone no further, and no policy had ever been made out, it is well settled that the plaintiff could have sued them upon this contract at law or forced from them a policy in equity. Perkins v. Washington Ins. Co., 4 Cow. 660; 1 Ben. F. I. C., 148; Hamilton v. Lycoming Ins. Co., 5 Penn. St. 339; 2 Ben. F. I. C. 542; Angell on Fire Ins. §§ 34, 47; Union Mut. v. Commercial Mut., Law Reporter, March, 1856, p. 610. Under these circumstances, a policy drawn up and signed by the proper officers wants no further delivery. It is a vital policy as soon as signed, becomes instantly the property of the insured, and is held by the insurer for his use. Ang. on Fire Ins. §§ 31, 33; Pim v. Reid, 6 Man. & Grang. 1; 2 Ben. F. I. C. 542; Kohne v. Ins. Co., 1 Wash. C. C. R. 93. But here were further acts of delivery of the policy. It was, on the 13th of March, mailed and sent to Breck, to deliver to the plaintiff. This was sending it to the plaintiff by Breck. Breck and the mail were only the vehicles to carry it to him. It was the same thing as if mailed or sent directly to the plaintiff. The defendants suggest, in answer, that Breck was their agent, and that, by sending it to him, they did not part with the possession of the policy, and that they only gave authority to Breck to deliver, which they could and did revoke before actual delivery. But when they mailed the policy to Breck to deliver, they did not constitute him their agent to receive or keep it for them, nor to retain it as their agent. He was, in that regard, no agent of theirs; he had nothing further to do for them. By sending him the policy to deliver, they made Breck trustee for the plaintiff; they made it a deposit with Breck to the credit of the plaintiff. It was a delivery to Breck to deliver to the plaintiff, which was a good delivery to the plaintiff. Shep. Touch. 58. This is not a question of the authority or acts of an agent; but whether the defendants by sending the policy to Breck to deliver, did an overt act intended to signify that the policy should have a present vitality. This certainly was such an act. Without any further interference on their part, it would have resulted in actual delivery to the plaintiff. It was intended to signify to the plaintiff not only that the policy was a present contract, but to effect an actual delivery of it to him. Kentucky Mut. Ins. Co. v. Jenks, 5 Porter R. (Ind.) 96; 5 Penn. St. 339; 9 How. (U. S.) 390. Suppose the defend-. ants had retained the policy, and had merely told Breck to tell the plaintiff that they held the policy subject to the plaintiff's order, would they not have been deemed as holding the policy for the plaintiff? The defendants next suggest that the plaintiff was ignorant of their acceptance of the risk, of their making out and mailing the policy to Breck until after they had countermanded its delivery, and that the aggregatio mentium could not take place until after the acceptance of the proposition by the defendants came to the plaintiff's knowledge, and that before that the defendants had changed their own minds, so that in fact it never did take place, and that consequently there was no legal delivery of this policy. This involves the more general question, does a contract arise when an overt act is done intended to signify the acceptance of a specific proposition, or not until that overt act comes to the knowledge of the proposer? This question may arise upon every mode of negotiating a contract, whether the parties be in each other's presence or not. First comes the mental resolve to accept the proposition; but the law can only recognize an overt act. Whether that act be a word spoken, a telegraphic sign, or a letter mailed, some interval of time, more or less appreciable, must intervene between the doing of the act and its coming to the knowledge of the party to whom it is addressed. In the meantime, what is the condition of affairs? is it a contract or no contract? If the bidder does not see the auciioneer's hammer fall; if the article written for and sent never arrives; if the verbal answer, when the parties are in each other's presence, is in a foreign tongue, or by sudden noise or distraction is not heard; if the telegraphic circuit is broken; if the mail miscarries; if the word spoken or the letter sent is overtaken, and countermanded by the electric current, is there no contract? In the progress of the negotiation, at what precise point of time does mind meet mind, does the contract spring into life? Upon this subject, with respect to negotiations conducted by written communications, there has been some variety of decision; but it appears to me that the weight of authority, as well as reason and necessity, admit of but one solution.

therefrom so as to exempt himself from liability for a loss that has occurred pending his deliberation;' and a loss may be recovered under a policy, even though both parties, at the time of its execution, knew

The meeting of two minds, the aggregatio mentium necessary to the constitution of every contract, must take place eo instanti with the doing of any overt act intended to signify to the other party the acceptance of the proposition, without regard to when that act comes to the knowledge of the other party; everything else must be question of proof, or of the binding force of the contract by matters subsequent. The overt act may be as various as the form and nature of contracts. It may be by the fall of the hammer, by words spoken, by letter, by telegraph, by remitting the article sent for, by mutual signing or by delivery of the paper, and the delivery may be an act intended to signify that the instrument shall have a present vitality. Whatever the form, the act done is the irrevocable evidence of the aggregatio mentium: at that instant the bargain is struck. The acceptor can no more overtake and countermand by telegraph his letter mailed, than he can his words of acceptance after they have issued from his lips on their way to the hearer. If the two minds do not meet eo instanti with the act signifying acceptance, when can they, in the nature of things, ever approach each other more closely? The defendants say, when the act of acceptance comes to the knowledge of the other party. Bu this knowledge would be a fact without any force, unless we suppose in the proposer a power still of electing not to accept the acceptance. But if we do this, it is apparent that the negotiation is yet precisely in the same stage of development it was in when the first proposition was waiting upon the first answer. The notion that there is no contract until the acceptance comes to the knowledge of the other party, proceeds upon the ground, in the first place, that the proposal has been withdrawn or lost its force, which is against the intent of the parties and the necessities of the case; and in the second place, upon the ground that the answer is conditional, whereas we suppose it to be absolute. We suppose the acceptor to say not simply I agree, but to say I agree if you do, which requires an answer from the proposer; so that the minds do not meet till he answers. But in the meantime the acceptor may have changed his mind, and for the same reason as before, there is no bargain until this last answer comes to the knowledge of the other party; and so, upon this theory, it must go on ad infinitum without the possibility of the aggregatio mentium ever taking place. There is in fact no difference between the acceptance of a proposition by word of mouth, and a letter stating an acceptance. In the one case it is articulate sounds carried by the air; in the other, written signs, carried by the mail or by telegraph. The vital question is, was the intention manifested by any overt act, not by what kind of messenger it was sent. The bargain, if ever struck at all, must be eo instantia with such overt act. Mailing a letter containing an acceptance, or the instrument itself intended for the other party, is certainly such an act. Adams v. Lindsell, 1 Barn. & Ald. 681; Dunlop v. Higgins, 1 House of Lords Cases, 381; Duncan v. Topham, 8 C. B. 225; Potter v. Saunders, 6 Hare, 1; Tayloe v. Merchants' Ins. Co., 9 How. 390; Hamilton v. Lycoming Ins. Co., 5 Barr, 339; Vasser v. Camp, 14 Barb. 341; Mactier v. Frith, 6 Wend. 103; Kentucky Mut. Ins. Co. v. Jenks, 5 Porter's R. (Ind.) 96. This last case, in all its essential features, is identical with the one before us. The only English case sustaining the defendants in their view, that I have seen, is that of Cooke v. Oxley, 3 Term R. 653, which, it will be perceived by the above references, has been effectually overruled in their courts. In the State of New York, the case of Mactier v. Frith, 1 Paige, 434, was reversed in their court of errors by a very large vote (6 Wend. 111), and the doctrine sustained as contended for by the plaintiff. The only other American case on this side of the question is that of McCulloch v. The Eagle Ins. Co., 1 Pick. 278. This last is against the whole current of authorities both in England and in this country, and appears to me requires for the creation of a contract a fact without significance, or a condition that would render its creation impossible."

Xenos v. Wickham, ante; Mead v. Davidson, 3 Ad. & El. 303; Parry v. The Great Ship Co., 10 Jur. (U. S.) 295; Motteaux v. The London Assurance,1 Atk. 544 ; The Earl of March v. Pigot, 5 Burr. 2802.

that it had occurred, if the agreement had been entered into before the loss;' and so for a loss occurring before application was made, if it was not known to either party.'

When policy is conditionally delivered.

SEC. 22. Retention of the policy by the assured is evidence of his acceptance thereof, even though it is sent to him with other papers, as a survey, which he is requested to sign and return, which he does not do, but retains both. If, however, the policy is delivered upon the express condition that the paper sent for his signature shall be signed and returned to the company, the policy will not be binding unless the condition is complied with."

When conditions precedent are imposed on assured, contract takes effect, when.

4

SEC. 23. If the terms are agreed upon, but the assured is required to do some act before it takes effect, it becomes effectual immediately upon his giving notice to the insurer of his compliance with the conditions. Thus, in a Pennsylvania case, the plaintiff applied for insurance on an academy, and paid the required proportion of the premium, and executed his note for the residue, and had a survey made. The secretary of the company wrote the agent to require the plaintiff to substitute earthenware collars instead of sheet iron, and to require him to have the trustees, who held the title, assent to the insurance, and, when these were done, he would send a policy. The plaintiff performed and complied with all these conditions, and the plaintiff requested the defendant's agent to call for the trustees' consent, which he promised to do but neglected, and the building was burned before he got it. The court held that the contract was complete the moment the plaintiff gave notice that he had complied with the conditions, and that the defendants were liable for the loss."

When company substitutes policies in other companies obtained before, but not delivered until after loss, liability for loss remains.

SEC. 24. When an agent of an insurer sends an application to him for insurance, and the insurer to whom application is made, and whose binding receipt the applicant holds, sends policies in another company or in other companies therefor, in place of its own policy, it is not thereby discharged from liability to the assured, for a loss occurring

Mead v. Davidson, ante; Arkansas Ins. Co. v. Bostick, 27 Ark. 539.
The Earl of March v. Pigot, ante.

Le Roy v. Park Ins. Co., 39 N. Y. 56.

Hamilton v. Lycoming Ins. Co., 5 Penn. St. 339.

'See also, E. Carver Co. v. Manufacturers' Ins. Co., 6 Gray (Mass.) 214.

after such policies are made, but before their delivery to him, even though he, after the loss, relying upon it that they afforded indemnity to the amount insured therein, accepts such policies and surrenders the binding receipt issued to him by the company, to whom application was made, and in which insurance was expected to be obtained.'

'In Dayton Ins. Co. v. Kelly, 24 Ohio St. 345; 19 Am. Rep. 612, it appeared that "J. R. Young, the secretary of the defendant below (an incorporated insurance company), was authorized by the company to negotiate contracts for insurance, to sign and issue certificates like the one sued upon, to appoint agents to solicit risks, and to receive applications for policies, and to authorize such agents to deliver to applicants for policies, the above-named certificates, and to collect premiums for insurance. Charles F. Gunckel was appointed such agent by the secretary, and was supplied with certificates duly signed by the secretary, with authority to countersign, fill blanks, and to deliver the same to applicants upon the receipt of premiums. Gunckel was also agent for several other insurance companies, among which were the Etna, the Home of New York, and the Hamilton. About the 30th of November, 1867, Gunckel, being such agent, solicited a risk from the plaintiff, and agreed with him to postpone the payment of the premium for ninety days from the date of insurance; and at the same time prepared an application for a policy, which contained the usual interrogations, respecting the proposed risk. The ninth interrogatory was as follows: Insurance-what amount is now insured on the property? In what offices (state particularly), and on whose account?' To this interrogatory there was no answer given. The fact was, however, that the plaintiff had previously obtained a policy from the Enterprise Insurance Company, for $2,000, on the same property. This application was signed by the plaintiff, and delivered to Gunckel with the understanding, that upon call by the plaintiff for insurance, Gunckel should address and forward the application to such company as he might select. On the 5th of December following, the plaintiff, by letter to Gunckel, requested insurance to the amount of $5,000. Same day, upon receipt of plaintiff's letter, Gunckel remitted to plaintiff a certificate signed by Secretary Young, a copy of which is set out in the petition, having first, however, erased the words, or should the risk be not accepted, and the above sum of money refunded to applicant, then this receipt is void, and of no effect;' and at same time forwarded the plaintiff's application to the home office of the defendant, with information that a certificate for insurance had been issued to the plaintiff. The erasure by Gunckel was without authority from defendant. The plaintiff, however, received the certificate in good faith, and without any knowledge of the circumstances of the erasure. Upon the receipt of the plaintiff's application at the home office of the defendant, the officers in charge procured from the German Insurance Company a policy in favor of the plaintiff for $2,000, from the Cooper Ins. Company a like policy for $2,000, and from the Central Company one for $1,000; and forwarded the same to Gunckel to be delivered to the plaintiff in lieu of their own policy for $5,000. Each of these policies contained a condition, that if the assured shall have or shall hereafter make any other insurance on the property hereby insured, without the consent of this company written hereon,' then this policy shall be void. At the time the German, Cooper and Central Companies delivered the policies to the defendant, they respectively charged the defendant with the amount of the premium thereon, and the defendant charged Gunckel with the amount of premium on the plaintiff's risk. The printed policies of the defendant, referred to in the instrument upon which the suit was brought, contained the following conditions: Provided, further, that in case the assured shall have already any other insurance against loss by fire, on the property hereby insured, not notified to this company, and mentioned in or indorsed upon this policy, or if the said assured, or his assigns, shall hereafter effect any insurance on the same property, and shall not, with all reasonable diligence, and before any loss by tire occurs, give notice thereof to this company, and have same indorsed on this policy, or otherwise acknowledged by them in writing, this policy shall cease and be of no effect.' And also a further condition, that no insurance shall be considered as binding until the actual payment of the pre