1. Suit upon a fire insurance policy; complaint in Code form. The second and third assignments of error, — the first assignment not being insisted on, — may be considered together as raising substantially the same objections to the introduction of evidence, viz., (1) that the evidence offered of the contents of the policy was secondary; (2) that only a part of the contract of insurance was offered; and (3) that Murphree, who issued the policy, had not been shown to be the agent of the company. As to the last objection, it is sufficient to say, that if there was error in the ruling of the court as to Murphree’s agency, it was cured, in that it was afterwards shown, that he was a member of the firm of Glenn &' Murphree, and that they were agents of the defendant company at the time of the issuance of the policy.
If the first objection was good, it included the second. It is a familiar rule, that secondary evidence of the contents of a written private contract is not admissible until a sufficient excuse is shown for a failure to produce the contract itself. — Home Protection of North Ala. v. Whidden, 103 Ala. 203; Lewis v. Hudmon, 56 Ala. 186. The proof showed, that the policy was in the possession of Murphree, and though issued, it had not been delivered to plaintiff. There had been no notice to Murphree to produce the policy. He did testify that he did not know where the policy was, and that he could not find it. This was not a sufficient showing for the introduction of secondary evidence of the contents of the paper. The witness did not show where he looked for the policy, nor what the character of the search he made was, — whether *664diligent or otherwise. He ought to have shown that he made a bona fide and diligent but unsuccessful search for it in the place where it was most likely to be found. The court erred in admitting and not excluding the evidence. — Bogan v. McCutchen, 48 Ala. 493; Tanner v. Hall, 89 Ala. 628; 1 Gr. Ev. 558.
2. Whether or not the policy was delivered after its issuance depended not upon its manual possession by the assured, after its issuance, but rather upon the intention of the parties as manifested by their acts or agreements; for, as has been well said, “whatever the parties have agreed to as a delivery, or wdiatever their conduct shows to have been considered as a delivery by them, controls.” — 11 Am. & Eng. Encyc. of Law, 285, and authorities there cited; Home Ins. Co. v. Adler, 71 Ala. 516, 526. The evidence tended, without conflict, to show that the contract of insurance was completed and put in writing, and the assured was notified by the agent that this had been done, and that the policy was in his possession for the plaintiff.
3. The defendant claimed that the policy had been cancelled under and according to a provision contained in it for the purpose, before the fire occurred. There was a plea, setting up a cancellation as a defense, and the proof elicited by defendant from plaintiff’s witness showed a condition in the policy which gave the company the right to cancel it, unless the premium was paid within five days after notice. The evidence was in conflict as to whether the premium was paid, and as to whether there was any notice for cancellation. The burden of showing the cancellation, when the undisputed evidence showed there was a completed contract, was on the defendant, and the evidence being in dispute, the question was properly submitted to the jury. The general charge for defendant was rightly refused.
Charge 2 requested by defendant was properly refused. Jones v. State, 115 Ala. 67; 3 Brick. Dig. 828, §§ 98-100; 29 Am. & Eng. Encyc. of Law, 812.
Beversed and remanded.