Brom the overruling of a demurrer to the complaint defendant appeals. The complaint, in substance, alleges that defendant is a life insurance company; that plaintiff, in August, 1908, executed a promissory note for $93.80 for the first premium on a life insurance policy thereafter to be issued by the defendant on the life of plaintiff; that >at the time of the making of said note the same was delivered and left in escrow with one *302Edgerton, with the understanding and agreement between plaintiff and one Davis, the agent of defendant, that said note should not be delivered until plaintiff had passed a satisfactory medical examination to be made by said Edgerton; that thereafter the said note was wrongfully and fraudulently procured from said Edgerton by said Davis, who assigned and transferred the same to Walker & Walpole, general state agents of defendants; that the defendant never made, issued, or delivered, or attempted to make, issue or deliver, any policy of insurance upon the life of plaintiff; that no risk or 'liability on the insurance of the life of plaintiff was ever incurred by defendant, and that no- risk or liability of any kind against defendant in favor of plaintiff, or any one on his behhalf, on insurance on the -life of plaintiff ever attached or existed; that said note was wholly without consideration, and was never delivered; that notwithstanding' said facts the plaintiff was obliged to and did pay to said Walker & Walpole in December, 1912, the sumr of $i'5o.5o, on a judgment on said note obtained in the circuit court of Faulk county by said Walker & Walpole, and execution issued thereon. To this complaint, defendant demurred, on the ground that the same did not state facts sufficient to constitute a cause of action.
It is the contention of appellant that all the matters and things alleged in said complaint, which constitutes -plaintiff’s cause of action, were, or might have been, litigated in the action of Walker & Walpole, mentioned in the complaint, and that the same is res judicata, and that plaintiff is now estopped'and concluded by said judgment from again litigating the same issues.
[1] Respondent bases his right to recover upon the provisions of sections 1862 and 1863, Civil Code, which, in substance, provides that the insured is entitled to a return of the premium paid where the insurer has never incurred any risk or lialbility^ under the policy for which the premium was paid. These sections of our Civil Code appear to be in consonance with the common-law rule. 25 Cyc. 758; 16 Am. & Eng. Ency. 954; 2 Cooley’s Briefs on Insurance, 1037; May on Ins. p. 4; Summers v. Mutual Life Ins. Co., 12 Wyo. 369, 75 Pac. 937, 66 L. R. A. 812, 109 Am. St. Rep. 992.
[2] We are of the view that there would have to be a payment of premium before an action could be maintained to *303recover a.-return of premium paid under this provision of the law. It would be immaterial how the original payment was accomplished, whether by voluntary payment, or by compulsory payment as the result of a suit; but payment of the premium is a necessary pre-requisite to the maintenance of a suit for a return of the premium p'aid. A return of the premium paid could not have been litigated or pleaded in the former action, A payment of the premium and the incurrence of no risk by the insurer is the gist of this action. There were many superfluous matters pleaded in the complaint, many of which could only have been litigated in the former suit; but there still remains a sufficient- statement of facts pertinent to the gist of this action which was not pertinent to the former action, and which was not and could not have been an issue in that action. We hold that the demurrer was properly overruled.
The order appealed from is -affirmed.