This is an action by respondent as beneficiary of a life insurance policy, alleged to have been issued by appellant, upon the life of her son Alden W. Swetland, The application signed by him provided that the policy “shall not take effect unless this application shall have been approved by the company and the first annual premium shall have been paid by me, during my continuance in good health.” The policy, upon which the action is founded, contains a like provision.
It is conceded that the policy was never delivered, and that the first premium was not paid. In the complaint it is alleged that the consideration for the issuance of the policy *113was the promise of Alden W. Swetland to pay to appellant the sum of $75.80, as follows: Twenty-five dollars by means of a written order drawn by Alden W. Swetland upon the Stanfield Sheep Company, the balance of $50.80 to be paid by Alden W. Swetland at his convenience within six months after the date of the application; that the order was drawn and accepted as a payment of $25; that the promise of Alden W. Swetland to pay the remaining amount due was accepted by appellant in lieu of the cash payment thereof. These allegations were denied by the answer.
Under the conceded facts it is plain that no contract of insurance was effected upon the life of Alden W. Swetland, unless the payment of the first premium was waived. According to the evidence contained in the record, it is clear that Kernohan, general agent of the company, had authority to waive the payment of the first premium in cash. But a careful examination of the record discloses that there was no substantial evidence tending to prove waiver of the payment of the first premium, either by appellant or its general agent, Kernohan.
At the close of the testimony, appellant renewed its motion for nonsuit upon the same ground as set forth when the motion was originally made at the close of respondent’s case. The ground upon which the motion was based, in substance, was that appellant had failed to prove a sufficient case for the jury. A judgment for nonsuit upon that ground is not res judicata. If appellant had asked for a peremptory instruction in its favor, it should have been granted.
Upon the record in this case, the judgment will be reversed, with costs to appellant.
Budge and McCarthy, JJ., concur.