dissented on the following grounds: First. Incompetent declarations of the agent were admitted against the defendant’s objection. They were not harmless, because they were regarded by the court and jury as material and important, as appears by the charge, and because the ruling upon them established a rule of evidence for the case, and subsequent evidence of such declarations was given, to which it must be assumed the defendant omitted to object on that ground in deference to the ruling that such declarations were competent.
2d. The fact that the policies were canceled in October was competent as tending to corroborate the testimony of the agent that no extension was made. It was an act in the due course of business.
3d. There was no evidence in the case to establish the alleged waiver except incompetent proof of Morton’s declarations. The motion for nonsuit raised the question of absence of lawful proof of waiver. The overruling of the motion was error.
4th. The verdict was against evidence and a new trial should have been granted on that ground. The claim is of the. most .suspicious character and the evidence to uphold it I think was illegal and insufficient. I think a new trial should be granted.
The judgment of the court, in accordance with the opinion of Brady and Daniels, J J., was as follows : Judgment and order reversed and new trial granted, with costs to abide the event, unless plaintiff, within twenty days after entry of the order herein, stipulates to deduct 82,997.60 as of the date of the verdict, in which case judgment and order affirmed, without costs to either party.
Ordered accordingly.