The following opinion was filed at the June term, 1868.
Paine, J.The sole question reserved for the jury to pass upon by the former decisions in this case, was, whether the renewal of the policy was conditional or not. And it was held that, in determining this question, the jury might consider all the surrounding circumstances : the relations between the parties, their previous and subsequent conduct, and everything tending to throw any light upon their real intentions in the negotiations that took place between them. On the last trial this question was submitted to them; and it is evident from their verdict that they must have found that the renewal was unconditional.
The counsel for the appellant contended with great force, that this verdict could not be sustained upon the evidence. He commented on the surrounding circumstances in detail, claiming that they tended to show that the renewal was conditional, and to remove all doubt that might otherwise have existed. Certainly they tended in that direction. And if I had to pass upon the question of fact, upon the whole evidence, I am not certain that I could avoid the conclusion of the appellant’s counsel. But that is not the question for us. On the contrary, we have only to determine whether there was such an absence of evidence tending to sustain the conclusion of the jury, that the court can say, as a matter of law, that the verdict ought not to stand. I do not think this can be said. And the strongest evidence in support of their conclusion is to be found, after all, in the original letter of the secretary of the company, acknowl*378edging the receipt of the money for the premium. It is true, that letter called the attention of Mr. Rockwell to the fact that the rules required a certificate of health, and requested him to send his own. But it did not state that this would be required as a condition to the renewal, and on the contrary there was that in it which indicated the contrary.
The secretary stated as a reason for not then sending the receipt, that he did not have Rockwell’s address, and was uncertain whether his letter would reach him. Had not the jury the right to say that, upon this statement in the letter, Rockwell might well suppose that his money was received unconditionally, and that he would have received his receipt for it in that letter, if the secretary had only been certain of his address 1 And it is not probable that if the receipt had been then forwarded, it would have contained the condition which the secretary states he indorsed upon it before filing it away. He would then naturally have expected that Rockwell would comply with his request, and send the certificate of health. And he could not have intended to obtain this certificate and yet deliver a conditional receipt. If he had complied with all they required, they could not have expected him to accept a receipt which carried on its face a suspicion of fraud or falsehood in such compliance. And whatever considerations of caution may have induced the secretary to indorse the condition he did upon the receipt before filing it, the jury might well have inferred from the inherent improbability of the opposite conclusion, that if the receipt had then been sent, it would have been unconditional. .At all events, as the letter, contained no intimation to Rockwell that any condition was, or was to be, attached to it, and intimated an entire willingness to have delivered it before any compliance with the request for a certificate of health, I cannot say, if the jury saw fit to find from this evidence that Rockwell had a right to. *379understand that his money was received unconditionally, that their verdict should be disturbed by this court, after the court below has refused to disturb it.
It is evident from the last two opinions of this court in the case, that they considered that the jury might well have drawn this inference .from the letter, although it was not so certain that evidence of the surrounding circumstances might not have availed to rebut it, and give greater significance to the request it contained for the certificate of health. That evidence was introduced; and although it tends to show that the renewal was understood to be conditional, yet I do not think it so conclusive in its character as to require the court to set aside a verdict based upon the strong implication in the letter that the money was received unconditionally.
It remains .to determine whether the judgment should be reversed upon any of the other exceptions. The evidence of Mrs. Rockwell as to the conversation between Rockwell and Small, in which the former directed the latter to take back '• the conditional receipt, and request a “ clean receipt ” or the money, was objected to. The ground of the objection seems to be that the conversation occurred in the absence of the officers of the company, and that it was never in fact communicated to the company. But it is a sufficient answer to say that Small himself was at that time the local agent of the company, and had himself brought the receipt from the company.
But even if this were not so, such evidence would seem to be admissible as part of the res gestee. The company relied on the acceptance and keeping of the conditional receipt. Was not the plaintiff entitled to explain this by showing the actual facts — that the character of the receipt was for a time concealed from Rockwell in consequence of his critical condition, and that, as soon as it was in fact communicated to him, he refused to accept it, and directed it to be *380sent back, even though this direction was not executed until after his death? I think this evidence would have been admissible for that purpose, even though the conversation had not occurred with the agent of the company.
The first instruction asked by the defendant was not applicable to the evidence, and was jiroperly refused for that reason.
The second instruction asked seems to be based entirely on the assumption that the renewal was conditional, and was improper for that reason, as that was the very point to be determined.
The third instructed the jury that the condition was as valid as would have been a similar provision in the original policy. This ignored the main question, whether the condition was any part of the contract of renewal at all, and was properly refused.
The fourth was also properly refused, because it ignored entirely the question whether there had been an unconditional renewal originally, and made the whole question turn on the delivery and acceptance of the conditional receipt.
The fifth was abstract. It was not claimed that the withholding of the premium note and cash created a liability. It was only claimed that their acceptance unconditionally created it. The only bearing their retaining them had, was upon the question whether there had been any condition in their acceptance. And as that question was fairly submitted, the judgment could not be reversed for refhsing an abstract instruction, even though correct, as to their withholding the note and cash being insufficient to create a liability.
The sixth instruction was objectionable in telling the jury that, as Rockwell retained the renewal receipt until his death, the plaintiff was absolutely bound by it. It disposed absolutely of all the evidence explanatory of that fact, and ignored the ques*381tion whether there had previously been an unconditional renewal.
The seventh instruction I have had more doubt about. Its main idea is correct. But it seems liable to some criticism on account of a little confusion and perhaps repugnance between its parts. It starts with the theory that “ the letter of the secretary is to be taken as the evidence of the contract,” and then proceeds to submit not only that letter but others, and the renewal receipt and “ all the facts proven in the case,” as evidence of the contract. It also states at the outset, that upon that theory the real question was, whether the money was received upon condition that Rockwell was in good health at the time it was received. At the end, it states the question to be, whether it was received on that condition, or on the condition that he should furnish a certificate of health. These matters are not of very serious importance, and do not materially obscure the main idea of the instruction. This was that the real question was, whether the renewal was conditional or not, and that if upon the whole evidence they were satisfied that it was intended as conditional by the company, and was so understood or ought to have been so understood by Rockwell, then it was conditional, and the plaintiff could not recover. But this instruction the court fully and explicitly gave in its general charge. And as this was so, I am of the opinion that the judgment ought not to be reversed for its refusal to give it in the somewhat confused manner in which it was presented in the defendant’s request.
The eighth instruction was properly refused, because it ignored entirely the question of an unconditional renewal. If the policy was renewed unconditionally, it was immaterial whether Mr. Rockwell was sick or well at the time.
The ninth is of the same character. The question presented by it was material only in case it was first *382found that the renewal was conditional; and the instructions given by the court saved the defendant the necessity of any such instruction, by telling the jury absolutely, that if they found that the renewal was conditional, they must find for the defendant. Certainly it could not ask for anything more than that, so far as that branch of the case was concerned.
I can see no valid ground for exception to the general charge. It was criticised as directing the attention of the jury too exclusively to the question as to Rockwell’s understanding of the letter of the secretary. It was said that “ it takes two to make a bargain,” and that the understanding of both parties should have been ascertained. This is true. But I cannot think the jury could have been misled by anything in the charge. It informed them distinctly that they were to consider all the evidence “ to arrive at the intent and understanding of the parties.” True, it then directed their attention more especially to the understanding of Rockwell, and told them that if they should find that he understood that his money was received unconditionally, they should find for the plaintiff. But it is obvious that the meaning was, that they must be satisfied that he had a right to so understand it. The court was only following the course indicated in the last opinion of this court (21 Wis. 554), where special attention was directed to the understanding of Rockwell; but of course this meant such understanding as the jury should be satisfied he had a right to arrive at. And this was strictly and naturally the proper inquiry. The company had written to him a letter. No matter what its secret intentions might have been, it is presumed absolutely to have meant by that letter just what Rockwell, from its contents, considered by him in the light of surrounding circumstances, had a right to understand it to mean. So that the real question was, how Rockwell had a right to understand the letter. And that *383this was what was meant by the court below is entirely evident; for it told the jury expressly, that if, “ on the other hand,” they “ came to the conclusion that he understood, or ought to have understood, that his money and note were received conditionally,” they should find for the defendant.
The judgment should he affirmed.
By the Court. — Judgment affirmed.