The plaintiff brings this action upon a life insurance policy issued by the defendant insurance company on the 21st day of June, 1929, and effective as of September 27th, 1926, upon the lives of the plaintiff and his wife, Lydia, payable to the survivor for $5,850, conditioned on the payment of an annual premium of $275.01, in advance, on the 27th day of September each year. The policy contains certain guaranteed nonforfeiture values and benefits, including extended insurance.
It appears that this policy was issued as a reinstatement of one half of a former policy of $11,700 dated September 27th, 1926. The reduction had been made at the request of the plaintiff and because of his inability to keep up the payments of premiums on the larger policy. The plaintiff's wife, Lydia Rott, died November 8th, 1931. The plaintiff claims to have made payment of premiums sufficient to keep the policy in force under the extended insurance provision. This the defendant denies and claims that the policy lapsed long before.
This case is before this court for the third time. Each time the verdict has been for the plaintiff. The first time judgment was reversed because of the erroneous admission in evidence of a memorandum of payments made by the plaintiff from the claimed oral admission *Page 761 of an officer of the defendant as to what was contained in its books. Rott v. Provident L. Ins. Co. 67 N.D. 529, 274 N.W. 849. On the second appeal the judgment was reversed on account of the uncertainty in the instructions concerning the payment of premium when effected by a note, which remained unpaid. Rott v. Provident L. Ins. Co. 69 N.D. 335, 286 N.W. 393.
Now error is alleged in the admission of testimony relating to payments of premium prior to the date of this policy, June 21st, 1929, and in instructions covering such evidence. It is claimed by the defendant that the new policy, receipt, and note issued on that date constituted a complete novation and that, therefore, no evidence of prior negotiations or payments leading up to that contract is admissible.
One of the provisions of the new policy, however, is that it should become effective as of September 27th, 1926, and that an annual premium of $275.01 must be paid in advance on the 27th day of September each year thereafter. In effect it is the same policy as originally issued, even to bearing the same number, except the amount is reduced one half. The defendant in its letter of June 21st, 1929, refers to it as follows: "We are in receipt of your policy No. 17232, which has been reduced to $5,850 insurance and which we return together with receipt for cash and note which takes care of premiums to October 27, 1929, which is the date of the maturity of the note."
This new policy is in reality a continuation of the original policy, containing the same proportional values, and bearing the same premium rate per $1,000 of insurance. In this case there was and is no dispute as to the amount that the insured was required to pay to keep the new policy in force. The original policy became lapsed, and there was an application for reinstatement of the policy, but for a reduced amount. This is a common practice among life insurance companies. Some of the companies evidence the reduction by appropriate indorsement on the original policy; others issue a new policy for the reduced amount, making the effective date the same as the former policy, as the defendant company did in this case. The result in either case is the same.
The receipt and the note executed at the time of the issuance of the new policy are not a part of the contract, Kroksather v. Western U.L. *Page 762 Ins. Co. 49 N.D. 619, 193 N.W. 48, but merely evidence of payments under the terms of the contract and of a collateral agreement regarding the payment of that specific premium. That such was the understanding of defendant is indicated in the above quotation from its letter. The oral evidence offered by the plaintiff on the matter of payment does not alter the terms of the written contract, which is the new policy itself. The promissory note was executed and delivered as a part of an agreement outside the policy, whereby the insurer granted to the insured an extension of time to make cash payment of the premium. It did not change the provisions in the policy as to payment of premiums, the period of grace in making payments, or the consequences of nonpayment, they remained precisely as they were. The stipulations in the note as to the effect of nonpayment are no different than they would have been if the extension of payment had been granted and the note made in connection with premium payments accruing long after the policy had been executed and delivered. Every promissory note is evidence of an indebtedness and constitutes a contract on the part of the maker to pay the same according to the terms thereof. But the parol evidence rule does not preclude the maker from showing that there was in fact no consideration, that the consideration failed or was inadequate, or other similar facts which have the effect of establishing that the maker does not owe, and is under no legal obligation to pay, the amount stipulated in the note.
The insurance contract did not stipulate what had been paid by the insured; it stipulated what must be paid to keep the insurance in force. The note was a separate agreement. It was an acknowledgment of indebtedness by the plaintiff to the defendant and a promise to pay the same. But the plaintiff was not precluded by the parol evidence rule from showing that he had actually paid the debt for which the note was given. If instead of giving a note, plaintiff had given a check for a like amount, and subsequently had recollected that he had paid the premium in cash, it would hardly be contended that the check, taken either by itself or together with the insurance policy, would preclude plaintiff from showing that he had paid the premium and did not owe the amount for which the check was given.
The plaintiff does not seek to avoid his agreement with the defendant relating to insurance. He and the defendant are in full accord as *Page 763 to the terms of that agreement. He did not seek to contradict or vary that agreement; he sought to show that he had in fact paid the premiums stipulated in the insurance contract to the defendant, and that it had retained the same, and that as a result the policy was in force when the loss occurred. There was no prejudicial error in the admission of testimony or in the instructions.
On all three appeals the defendant has claimed that the evidence was insufficient to sustain the verdict. It has always claimed that the plaintiff's evidence of payments in excess of what it admits is unbelievable. Plaintiff claims he paid to the defendant $278.01, for which he has received no credit. Defendant denies that such payments were made.
The record shows a clear dispute as to whether such payments were made. On the one hand there seems to be no reason to doubt that the defendant believes that no such payments were made, and that if it had been satisfied such payments had been made it would have paid the loss. On the other hand the plaintiff evidences a conviction that he made the payments, which he claims to have made. It is argued by defendant's counsel with much force that there are strong circumstances tending to support defendant's version of the position that such payments were not made. However, the positive testimony of the plaintiff is to the contrary. The weight of the evidence was for the jury. Where there is a conflict in evidence, the judges may not substitute their judgment on the weight of evidence for that of the jury. The testimony of the plaintiff was not unbelievable as a matter of law (Jacobson v. Mutual Ben. Health Acci. Asso. ante, 566,296 N.W. 545), and it was for the jury to determine whether the plaintiff or the defendant was correct in their respective contentions.
On both former appeals it was contended by the defendant that the evidence was insufficient to sustain a verdict for the plaintiff, and that the defendant was entitled to a dismissal as a matter of law. This court did not sustain this contention, but remanded the case for retrial because of errors of law in the admission of evidence and in the instructions. This time there was no error in the admission of evidence or in the instructions, and the disputed questions of fact were fairly tried. The jury determined these questions in favor of the plaintiff; i.e., they believed the story of the plaintiff and rejected the contrary *Page 764 one presented by the defendant. This is further emphasized by the special questions submitted by the court to the jury. These questions were directly on the payments in dispute and in each case were answered in favor of the plaintiff.
On the first appeal, we said: "If the amounts shown . . . were actually paid, they were sufficient to keep the policy in force long enough so that continued insurance provided for in the policy would have kept it in effect up to the date of the death of Lydia Rott." 67 N.D. 532, 274 N.W. 850.
This has never been seriously disputed, and has become the law of the case. The payments here shown, and which the jury specifically found were made by the plaintiff, are the identical payments referred to in the first decision.
It must be borne in mind that three juries and three different judges who presided at the trials have found in favor of the plaintiff on the sufficiency of the evidence. The verdict has substantial support in the evidence and is therefore binding on this court.
Affirmed.
MORRIS and CHRISTIANSON, JJ., concur.