A statement of this case will be found in 76 Ark. 140, where a former judgment in favor of H. L. Remmel was reversed with directions to the trial court to admit evidence which had been rejected and to submit the issues of fact to a jury.
The second trial resulted in a verdict in favor of Remmel upon the first count of the complaint, and Graham Brothers have again appealed.
We discover no reversible error in the instructions given or in refusing requests for others.
The verdict sustains the contention of Remmel that the first contract executed by Graham Brothers to him was binding upon them. But it is contended that this contract was abrogated by a cancellation of the ten-year policy issued in accordance therewith. This was done upon the request of Graham Brothers that they be permitted to exchange the ten-year policy for a policy to be issued upon what is known as the five-year distribution plan, and upon the understanding that such policy would be accepted in lieu of the .ten-year policy and paid for by Graham Brothers when delivered. The verdict of the jury establishes the fact, and it is admitted in argument by counsel, that there was a misunderstanding between the parties as to the nature of this five-year policy, that the minds of the parties never met as to it, and hence that the negotiations relating to the same never culminated in an effectual and binding contract. This left the contract as to the first policy in full force, and the company at the request of Remmel had the right to reissue that policy, which it did by issuing and tendering through Remmel another just like the first. Utley v. Donaldson, 94 U. S. 47.
It is again contended that Remmel was acting merely as the agent of .the company, .and had no right of action upon the contract. The contract was made in his name, and the proof shows that he had settled with the company for any interest it had in the contract, and the company had no further interest in it. The suit was properly brought by him and in his name. Kirby’s Digest, § § 5999 and • 6002.
Affirmed.