[10] We fear that counsel for defendant has misinterpreted our opinion. We adopted and quoted the trial court's resume of the evidence only as a convenient method of stating the facts. If inconsistent with the *Page 361 record in any material respect, certainly it should be changed. Counsel for defendant correctly points out that the evidence shows that defendant held the proceeds of the insured's check until January 11, 1928, and not until December 21, 1927, as stated by the trial court, but this merely adds twenty-one days to the time that defendant kept the money. Defendant's counsel offered to show that defendant kept this money in its "suspense account," but the trial court properly refused to admit such evidence without proof that the insured was apprised of the fact that it was so held.
The trial court attributed a statement to defendant's counsel that defendant learned of the illness of the insured on December 21, 1927, but this remark of the trial court must have been an inadvertence, as we do not find from our examination of the record either that counsel so stated or that the evidence so shows. We are glad to make the corrections as suggested, although they are not sufficiently material to change the result. The jury had all the facts before it, and were, of course, uninfluenced by the subsequent written opinion of the trial court on motion for new trial. The cause was ably and conscientiously presented by the respective attorneys and there should be no regrets beyond the inevitable consequence of any trial on conflicting evidence, that at least one party is bound to disappointment.
Petition for rehearing denied. *Page 362