In the argument supporting the application for rehearing, the only matter presented for reconsideration brings into question the declination of this court to affirm reversible error of the trial court's action, in sustaining demurrers to rejoinders 4 and 5. These rejoinders were addressed to special replications averring refusal, without qualification, to accept seasonable tender of the July, 1913, premium. In material aspects, these rejoinders sought to interpret, as qualified or conditional, the refusal of tender averred in the replications to have been declined without qualification or condition. The defendant (appellant) joined issue on the allegations of the replications, asserting the unqualified refusal to accept seasonable tender, thereby rendering relevant and admissible evidence designed to sustain defendant's (appellant's) theory that the refusal of tender was qualified or conditional; whereupon this court concluded, without passing upon the sufficiency of rejoinders 4 and 5, that no prejudice to appellant resulted from sustaining demurrers to rejoinders 4 and 5. This construction of the rejoinders was justified by the terms employed by the pleader in the first sentences thereof. In each it is averred, but interpretatively in a material aspect that "the alleged refusal of the defendant * * *consisted in this, * * *" and that "the matters and facts set up in said replication [e. g., an unqualified refusal of tender] consist in this. * * *" (Italics supplied.) In the printed brief for appellant, these rejoinders (4 and 5) are treated as asserting a refusal of a character in contradiction of the unqualified, unconditional refusal averred in the replications.
On reconsideration, the court remains convinced that the conclusion pronounced with respect to rejoinders 4 and 5 is correct. Application for rehearing is hence overruled.