(after stating the facts.) A majority of the iudges of this court are of the oninion that there is error in me judgment oi me circuit court m rernsmg to grant a new trial upon the ground and for the reason set forth in the fourth ground of the motion, for which .error the judgment should be reversed, and this cause remanded for a new trial.
The motion and affidavits appended speak for themselves, and eertainly seem to show that the motion should have been granted, in order that the cause might be tried and determined upon all the facts of the case, and that there might not be a probable miscarriage of justice for the lack of important legitimate evidence, of the existence of which the appellant did not know, and which he could not have been reasonably required to make any effort to ascertain before the trial nor until the trial was over.
The court announced that if it was in his discretion, under the decisions of the supreme court of this state, to grant a new trial he would be inclined to do so, if it were not for the fact that the affidavit of J. H. Weaver, in support of the motion for new trial, shows that he demanded the payment of the note given in part payment of the first premium and payable December 1st, as well as the full amount of the delivery note, before delivering the policy. It seems, from inspection of the affidavit of J. H. Weaver referred to, that it does not contain this statement. It was not until after the tender is alleged to have been made that Weaver received instructions not to deliver the policy till both notes were paid. If the affidavit of Weaver is true, justice will be defeated, unless a new trial be granted.
When a party is surprised upon a trial by testimony he knows to be false, and he wishes to rebut it, it is his duty to ask a postponement or suspension of the trial till he can procure his evidence. He cannot take his chances, without doing this, and, if he loses, then ask for a rehearing for newly discovered evidence. Nickens v. State, 55 Ark. 567; Overton v. State, 57 Ark. 60. But if he does not know whether the testimony is false or true, nor whether he can rebut it, how can he make the affidavit necessary to entitle him to an adjournment? He can ask a new trial only after he has ascertained the facts, unless he would swear to facts about which he knew nothing to get a postponement, which would be perjury. To get a continuance, one must-swear to facts.
As the case must be remanded for a new trial, we state the court's views of the law applicable to the case.
Whether a contract for insurance has been completed “depends upon the question whether the respective parties have come to an understanding upon all the elements of the contract,—the parties thereto; the subject-matter of insurance; the amount for which it is to be insured; the limits of the risk, including its duration in point of time and extent in point of hazards assumed; the rate of premium; and, generally, upon all the circumstances which are peculiar to the contract and distinguish it from every other, so that nothing remains to be done but to fill up the policy and deliver it on the one hand, and pay the premium on the other. If, upon all these points, an agreement has been arrived at, and no stipulation is made that the delivery of the policy shall be the test of the consummation of the contract, and no law makes such delivery a condition precedent to its validity from that time, unless another time is fixed, the contract is complete, and binds the parties. The policy, as we have seen, is not essential to its validity. It is but the form and embodiment, the expression and evidence, of what has already been agreed upon, adding nothing thereto and detracting nothing therefrom. And whether issued immediately upon the arrival at a mutual understanding, or subsequently, before the loss or after the loss, with or without knowledge, or not issued at all, the obligations of the parties are not affected.” 1 May, Insurance (3 Ed.), § 43, and cases cited; id. § 43A, and cases cited. “If an application sent on approval is actually aecepted by the company at its home’office, though no notice of the acceptance is given to the insured, and afterwards rejected only because the premises burned before a policy was made out, the company is bound, and this question of fact is for the jury.” Id. § 54C; Welsh v. Continental Ins. Co., 47 Hun, 598. “A policy may be binding, although never delivered between the parties. Loring v. Proctor, 26 Maine, 18, 29. Everything depends on the intention of the parties. Id. § 55A.
“If there has been no payment of the premium, and no . delivery in fact of the policy,- the contract is, prima facie, incomplete, and he who claims under it must show that it was the intention of the parties that it should be operative, notwithstanding these facts. The presumption of law is that the delivery of the policy and the payment of the premium are dependent upon each other. But this presumption may be rebutted by showing a waiver of the payment or such other facts as go to show the intention and understanding of both parties that the policy shall be valid as if delivered, notwithstanding the non-payment of the premium.” The mere manual possession of the policy by either party makes a prima facie case for that party, subject to be rebutted by proof aliunde that the contract of insurance was complete and valid, or that delivery was essential to completion or not without delivery. 1 Bac. Ben. Soc. § 273, and eases cited.
Unless provided otherwise in the contract, the acceptance of the proposal to insure for the premium offered is the completion of the negotiation, and, after the policy or certificate has been forwarded to the agent of the company for delivery, the contract cannot be rescinded without the consent of the party insured. It is, of course, different if any act remains to be done by the insured, or if it be stipulated that it shall not be binding until delivered by the agent, or shall not be operative till the first premium is paid. Northampton, etc., Ins. Co. v. Tuttle, 40 N. J. L. 103; 1 Bacon, Ben. Soc. § 272, p. 538.
Without discussion of the various instructions given and refused by the court, we have given at some length the court’s views of the law that seems applicable to the case under consideration.
For the error of the circuit court in overruling the fourth ground of the motion for new trial, the judgment is reversed, and the cause is remanded for a new trial.
Wood and Biddick, JJ., concur in judgment, but not in the opinion rendered.