On Rehearing.
Appellee’s motion for rehearing makes clear that this court should not have rendered judgment for the appellant further than to order a reversal and remand of the case. Our action was based upon a misunderstanding of the ag'reement of counsel which constituted the basis of the trial court’s judgment. Our original action was based upon the understanding that the agreement concluded the issue of whether the insured had had cancer prior to the issuance of the policy and left only for decision the question of whether a particular provision of the policy contravened the statutes and especially R.S. 1925, Art. 4733. A reading of the agreement in the light of appellee’s motion for rehearing convinces us that such issue was not to be taken as concluded.
We adhere to our former decision, and for the reason stated in our opinion that the cause should be reversed and remanded. -Accordingly our former judgment will be set aside and re-entered, providing that the judgment of the court below be reversed and the cause remanded for further proceedings.