ON REHEARING.
FLYNN, District Judge.A rehearing having been granted, this ease was submitted on briefs.
We concur in the conclusion reached by the court in its original opinion, that the policy in question never took effect, ■because it was not delivered to and received by the applicant while he was in good health. The policy provides that “the policy and the application therefor constitutes the entire contract between the parties ’ ’; and under the terms of the application, it was made a condition precedent to the policy’s taking effect that the insured should be in good health when the policy was delivered and received. (14 R. C. L. 900, sec. 78.)
We are not in accord, however, with the intimation that the first premium was not paid, though we are probably precluded from holding otherwise, because of the fact that the trial court found that the giving and acceptance of a note for the balance of the first year’s premium, after paying five dollars cash thereon, was a personal matter between the applicant for insurance and the agent, and that defendant had no rights thereunder or interest therein. The evidence not being before this court, it will be presumed that it supports this finding. (McCornick v. Brown, 22 Ida. 52, 125 Pac. 197.)
The former judgment of this court is therefore reaffirmed.
Budge, C. J., and Rice, J., concur.