(dissenting). There was a dispute of fact in the instant case as to the origin of the policy of insurance outstanding upon the property at the time of the fire. Appellant company claims that such policy originated in routine renewals of insurance issued to La Croix on the property at a time previous to the sale to respondent. Respondent on the other hand contends that the policy had its origin' in an oral agreement for the issuance thereof, made between himself and appellant’s agent, *425Pool, after respondent acquired his interest in the property, which oral agreement of the agent Pool respondent claims was fully performed by appellant company excepting only the portions thereof whereby Pool agreed that the policy when issued would be in such form as to protect the interests of both respondent and La Croix in the property in question. This fact question was submitted1 to the jury under proper instructions, and by their verdict they have decided all these controverted facts in favor of respondent, and there is no possible question but that the testimony of respondent himself, if believed by the jury, was ample to support the verdict.
Whether the provision is wise or not, it is of course elementary under our law that in cases such as the one at bar the credibility of witnesses and disputed questions of fact are for the jury, and this court has no right to substitute its views with reference thereto for the verdict of the jury except where it can properly be said that there is no substantial evidence in support of the verdict.
Notwithstanding this clear rule of law, the majority opinion in this case might easily and fairly be compressed into a single sentence reading about as follows: “We disagree with the verdict of the jury on the disputed facts, and the case is therefore reversed.”
The absolute impropriety of thus invading the province of the jury is so apparent that the learned writer of the majority opinion hasi erected quite an elaborate structure, in a labored effort at camouflage, to the end that his view of the facts might be substituted for that of the jury without the appearance of so doing. Toward the closing of the opinion, however, the real ratio decidendi has inadvertently been permitted to appear by the use of this language:
“* * * The conduct of the plaintiff strongly indicates to us that he never made1 any effort to insure jointly with La Croix, or that he ever believed he was so insured.”
—followed by a dissertation in . support of a view of the facts contrary to the verdict of the jury.
The testimony of respondent in this case if believed by the jury being admittedly sufficient to justify the verdict, the agree*426ment or disagreement of members of this court with such verdict should be entirely disregarded. It is our duty to accept the facts as found by the verdict, and there remains for the court only the application of the law to the facts so determined, without regard to personal opinion or prejudice.
The majority opinion goes at some length into the question of whether or not appellant’s agent Pool had authority to make the entire contract or agreement which respondent claims he made, and I think the majority opinion reaches the correct result on that .point, but the decision of that question is not even remotely involved in this case excepting by absolutely disregarding the verdict of the jury. The jury by its verdict has necessarily determined1 that the agent Pool did make the agreement which' respondent testifies was made, and, further, that thereafter and pursuant to said agreement, and not otherwise, the appellant company did and performed everything which Pool agreed they would do excepting only, that by the willfulness or neglect of appellant company, or of its agent Pool, the policy which they issued and delivered pursuant to Pool’s agreement failed to name respondent as a beneficiary party in addition to La Croix; that respondent fully performed the entire agreement on his part and did not know until after the fire that appellant company had omitted the performance of a portion of the agreement on its part. The appellant company having in fact executed Pool’s agreement that it would issue and. deliver a policy, the authority of the agent Pool to bind the company in that regard, and the question of whether or not company when advised of Pool’s agreement in its behalf might have refused to- perform the same had it so seen fit, are entirely immaterial. Certainly the appellant company cannot perform, a part of the agreement made in its behalf by its agent Pool, accept respondent’s money on the basis of full performance, and then when a loss arises blithely disclaim- any responsibility for an unperformed portion of Pool’s agreement vital to1 respondent. Assuming that appellant company was under no duty to recognize the agreement made in its behalf by its agent Pool, nevertheless the appellant companr^ must take or leave such agreement in its entirety, It cannot execute part of the agreement and disregard the remainder, meanwhile receiving and retaining respondent’s money on a basis of complete performance.
*427This is not an action upon a written contract of insurance, but is an action for damages for failure to perform an oral agreement to make and issue a contract upon certain terms and conditions. The agent P'ool testified that it was part of his duty as soliciting agent to ascertain in whose name a policy should be issued and1 how it should be issued; the evidence also shows that appellant company knew of respondent’s purchase and interest in and possession of the property, and was fully acquainted with all the circumstances, and was willing to and did insure the risk in the -.'mount of $3,000, and they have received and still retain the full ¿mount of premium on insurance in that sum. Having undertaken to perform P'ool’s agreement and received the consideration therefor, they must perform it all. They cannot take advantage of the default or negligence of their agent Pool, and by failing to name respondent in the policy save one-third of the amount which ¿jpellant with full knowledge of all the circumstances agreed to pay in the event of destruction of the property. See Pfiester v. Missouri, etc., Insurance Co., 85 Kan. 97, 116 P. 245.
There is no reversible error in the record, and the judgment and order appealed from should be affirmed.
GATES', P. J., concurs in the foregoing dissent.