• On the 8th day of March, 1904, the defendant issued a policy of insurance, dated May 20, 1904, for the sum of $1,000 upon the life of one Albert Hanson for the benefit of the plaintiffs in this action, who are his parents. At the date of the issuance of the policy, the company, in consideration of a cash payment of $1.94, executed to the insured a written stipulation to the effect that such payment should put the policy in force and continue it so, until its date, to wit, May 20, 1904, and, if on such date, and at the end of every three months thereafter, the insured should make cash payments of premiums of $21 each, the policy should continue in force, but that in case of default of any such payment it should lapse and deter*419mine. At the time of the delivery of the policy Hanson gave his note, payable April 15, 1904, for the amount of the first premium maturing May 20. On November 21, 1904, the insured died, delinquent of the premium due on the 20th of that month, about which fact there is no dispute, but in ignorance of it the defendant, through its local agent at Lincoln, Nebraska, sent through the mails to the late address of the insured a written notice designed to call his attention to the delinquency, and saying, in substance, that, if he should make the payment due November 20 on or before December 20, then instant, the policy would be continued in force, according to a custom of the company, otherwise not. This notice came into the hands of the plaintiffs, and on the 5th day of the month one of them called at the office of the agent and paid the premium, and obtained a receipt therefor. At the same time the premium note above mentioned was delivered to them upon the presumption and belief that it had been paid. Afterwards the company ascertained that, according to the records and recollection of the company and its agents having to do with such matters, neither the note nor the first or second premiums accruing under said policy had been paid, and there is no direct evidence that either of them had been. So soon as the local agent discovered his mistake, he tendered repayment of the money and demanded a return of his receipt. This is an action upon the policy, and the defense is that it lapsed and determined on the 20th day of May for default of payment of the first premium stipulated therein, and has never been revived or renewed or the default waived.
The evidence in behalf of the defendant in support of its defense is complete and conclusive and without contradiction, except the payment above mentioned, and except that one of the plaintiff’s witnesses, a brother of the deceased, testified on cross-examination that he had heard the deceased tell his father that the premiums had been paid; and one Noots, a witness for the plaintiffs, was permitted to testify, over the objection of the defendant, *420that on or about August 15 or 20 he had loaned to the deceased $9.50; but an attempt to prove by this witness that deceased had told him that he borrowed this money 1o pay insurance premiums was defeated by the court, and a statement by the witness to that effect was stricken out.
It does not appear that either party requested instructions, but the court submitted the case to the jury under a series of instructions of its own, among which was the following, tó which the defendant excepted: “As to whether the premiums were paid, the jury are instructed that the receipt issued by the defendant’s agent for the payment of the third premium, due under the terms of the policy November 20, 1904, would be prima facie evidence that' all of the prior payments had been made to the defendant. On the other hand, said receipt only raises a presumption that the recitals contained therein are true and that the payment receipted for was actually made, and it is for you to say from all the evidence, including the circumstances surrounding said payment and the conversation which you find from the evidence took place at that time, also the circumstances of the giving of the note payable to the solicitor of the insurance for the first premium, and all other facts and circumstances shown in evidence bearing on that point, whether such prior premiums were paid.” We think this instruction was erroneous. At the time this third premium was paid the plaintiffs knew that their son was dead, and knew that at least that premium was delinquent and that the policy contract was for that reason, if no other, at an end, and they knew also, or must have been presumed to have known, that the local agent had no authority to bind his principal by a contract with the dead, or to modify or affect the rights of the parties that had become fixed by the termination of the contract as well by the death of the insured as by his default. In other words, they knew that with respect to that policy the agent had ceased to be competent to bind his principal either by the *421acceptance of money or by recitals in his receipt. The evidence is clear and undisputed that the agent received the money under a mistake of facts of which the plaintiffs were not ignorant, and nothing that he said or did while laboring under the mistake, and in excess of the scope of his powers, can be treated as an admission by his principal or as raising any presumption against the latter. The rule of law is elementary that a principal is bound by only such conduct and representations of his agent as occur in the course of his business by the latter, and are within his real or ostensible authority, or which the opposite party believejs, and has reason to believe, to be so. Any other doctrine would render the employment of agents so dangerous an expedient as to be practically impossible. If the money had been paid by the insured and received and retained by the agent in the lifetime of the former, an'entirely different issue would have been raised, but one upon which it is not now incumbent upon the court to decide.
1. Insurance: Action: Evidence. In an action on a life insurance policy, a -witness on'behalf of the plaintiff testified, on cross-examination to having heard the insured state, shortly before his death, that the premiums on the policy had all been paid. This testimony was permitted, without objection, to remain in the record. Held, To be some evidence of payment. 2. New Trial: Newly Discovered Evidence. In an action on a life insurance policy issued by what is commonly called an old line life insurance company, it is not error to overrule a motion for a new trial on the ground of newly discovered evidence, where the claim of newly discovered evidence is grounded on statements alleged to have been made by the insured that he had not paid the premiums on the policy upon which the action was founded.*421The verdict and judgment were for the’plaintiffs. We recommend that they be reversed and a new trial granted.
Oldham and Epperson, CO., concur.By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is reversed and the cause remanded for a new trial.
Reversed.