Opinion by
W. D. Porter, J.,The defendant company had, in May, 1897, issued a policy to the firm of H. M. Hatfield & Company, covering the real and personal property of the firm for a-period of three years. The partnership trading under the style of H. M. Hatfield & Company was composed of H. M. Hatfield and John J. Bulford. The firm was dissolved in October, 1897. Haifield took the personal property and contracts of the firm and conveyed the real estate to John J. Bulford. Hatfield went to the agents of the insurance company on November 8,1897, and notified them of the dissolution of the firm and that Bulford had died on the fourth day of the same month. He canceled the policy which had been issued to the firm and directed the agents to insure the personal property in his own name and to issue a new policy in the name of J. J. Bulford, covering the store building which had become the property of the latter. He told the agent of the insurance company that the policy on the building ■should be dated back to November 1, so as to bear date prior to the-death of Bulford, and when the policy was so made out to send it to C. D. Foster, Esq., who was the agent and attorney for the heirs of the decedent. He directed the cancelation value of the old policy to be credited on the new premiums. The evidence produced by the plaintiff established the agency of Foster and his authority to act for those who had become the owners of the building upon the death of Bulford. A new ■policy was .made out, dated November 1, 1897, insuring the property in the sum of $1,000 and in the name of J. J. Bulford; this policy was sent to Mr. Foster who declined to accept it and returned it to the company. The agent of the com*243pany, without making any changes in the policy, sent' it a second time to Mr. Foster, who again declined to receive it and returned it by a messenger, who by direction stated his objections to its form and that Mr. Foster would himself call in a day or two. Mr. Foster never did call to close the contract until after the fire, which occurred two months subsequently.
When the partnership was dissolved, the interest of Bulford in the personal property ceased, and Hatfield did not have after October 15,1897, any insurable or other interest in the real estate. When the original policy was canceled the contract of the insurance company which covered the personal property of Hatfield became entirely distinct from any contract of indemnity into which it was proposed that they should enter with the .heirs of Bulford. Whether the insurance company had paid Hatfield for the loss upon the personal property was not material to the determination of the question of their liability to the heirs of Bulford for the destruction of the building. The plaintiff in his statement declared upon the alleged contract which was dated November 1, and which the only agent authorized to represent the owners of the building had declined to accept, and the statement contained no reference to the earlier policy which Hatfield had caused to be canceled. The testimony of Hatfield and Foster leaves no doubt that the part of the premium upon the first policy which was to be returned upon the cancelation thereof was the property of Hatfield, and the heirs of Bulford would have become liable to him for the premium upon their new policy when, and not until, they accepted the contract. The liability of the company to Hatfield was a matter totally distinct from the relation in which they stood to the heirs of Bulford, and the first and second assignments of error are without merit.
A policy of insurance is a contract, and until the negotiations of the parties have brought them to such a stage where it may fairly be said that they have agreed upon something no contract exists. The question presented in this case was not whether there must be some evidence of an acceptance of the policy by the assured, but whether the evidence did not clearly make out a case of a refusal to accept the policy as tendered. It is conceded that Mr. Foster was authorized to act for the owners of the building, when he declined to accept the policy *244the last time that it was sent him by the company he returned it by E. K. Little, who testified that by direction of Foster he took the policy to the agent of the company and told him that “ Mr. Foster did not want it that way, made out to J. J. Bulford, he being dead at the time it was issued.” This was a refusal to join in the contract upon which the plaintiff now relies. The plaintiff failed to prove a contract and there was no error in the refusal of the learned court below to take off the judgment of nonsuit.
The judgment is affirmed.