On Rehearing.
[122 Pac. 38.]
For appellant there was a brief over the names of Messrs. John H. & A. M. Smith and Edward & A. R. Mendenhall, with an oral argument by Mr. John H. Smith.
*237For respondent there was a brief over the names of Messrs. Charles W. & George C. Fulton, with an oral argument by Mr. George C. Fulton.
Mr. Justice Burnettdelivered the opinion of the court.
This case was originally submitted on briefs without oral argument, and a decision was rendered reversing the judgment of the circuit court and remanding the cause for further proceedings. (117 Pac. 973). On motion of the plaintiff a rehearing was granted, and counsel have been heard orally.
In pursuance of some oral stipulations made in the circuit court between counsel, but of which no memorandum appears in the record before us, counsel for defendant at the argument on rehearing waived the question of whether the plaintiff is entitled to recover in his own name on an instrument providing for payment of money to his wife and not to him in any event. The principal contention presented by plaintiff on rehearing was that the circular letter dated Chicago, February 22, 1908, addressed generally “To the Comrades of the Order of Washington,” with the peroration “Come with us, live with us, die with us, you will never regret either. Faithfully yours, George M. Moulton, President” — quoted in our former opinion, is itself sufficient proof of the allegations of the complaint to take the case to the jury as against defendant’s motion for a nonsuit.
10. Such a motion being in effect a demurrer to the evidence of the plaintiff, it is the duty of the court to consider all the testimony and to construe the writings, and all of them, introduced by plaintiff in support of his case. Adverting to the allegations of the complaint which are quoted in the former opinion, we find that, according to plaintiff’s contention, the defendant bound itself absolutely at all events to the performance of all the things to be done by the Order of Washington. The circular letter in that respect merely proposes on receipt *238of a certain payment to issue a formal agreement or guaranty binding the company to fulfill the obligations of the order “until such time as a policy for an equivalent amount can be issued on our forms and at our premium rates in accordance with the provisions of the reinsurance contract entered into between the Order of Washington and this company.” This conditional offer is not proof of the absolute liability alleged in the complaint. The sum and substance of this circular letter is that the membership of the Order of Washington is informed that measures have been inaugurated looking to a novation, whereby the order is to be released from its obligation to its members, who are to accept the company, instead of the order, and the company is to assume the obligations in question in consideration of specified payments to it by the individual members of the order. It invites the comrades of the order to participate in the proposed novation, all the time referring to the reinsurance contract between the company and the order as the standard by which the liability of the company is to be ultimately measured. The circular is nothing more than negotiation on the part of the company and does not amount to a contract.
11. Even construing it as an offer, it points out as part of the offer that the contract on the part of the company must be in the form of a writing to be attached to the membership certificate, embodying particular conditions. Under such circumstances there is no contract until the offer is accepted and the writing executed and delivered. Stanton v. Dennis (Wash.), 116 Pac. 650; Ferre Canal Co. v. Burgin, 106 La. 309 (30 South. 863) ; Donnelly v. Currie Hdw. Co., 66 N. J. Law, 388 (49 Atl. 428). The plaintiff cannot accept the part of his offer, if it be one, which is favorable to his contention, and reject the remainder, if he expects to bind the defendant.
12. But we are not left in the dark about how the plaintiff construed the circular letter or what he did in *239pursuance thereof. By his own testimony, in speaking of the certificate of March 21, 1908, quoted in the former opinion, he says he received it, attached it to his policy, and kept it. Under his own statement he must be held to have accepted it. This certificate, in plain words, states that the company assumes the obligations of the order to the plaintiff “to the extent and in the manner as are set forth in a certain contract of reinsurance made and entered into by and between the Order of Washington of Portland, Oregon, and the Western Life Indemnity Company of Chicago, Illinois, on the 15th day of February, A. D. 1908.” This agreement between the order and the company thus became a governing part of the contract by novation between the plaintiff and the defendant. Donnelly v. Adams, 115 Cal. 129 (46 Pac. 916). Whether the defendant contracted with the plaintiff in the absolute terms averred in the complaint depends upon the provisions of the contract between the order and the company, and the case of plaintiff in the testimony is not made out without it.
13. The plaintiff was not bound to accept the offer of the defendant in lieu of the promises of a moribund insurance order; but, having accepted, he cannot adopt the part favorable to him and reject the remainder.
14. The plaintiff has declared upon an alleged contract. His evidence must correspond to his allegations, if he would prevail on the general issue. Furthermore, if he would establish a liability against the defendant, he cannot stop short of disclosing to the court all the conditions upon which the liability was assumed and by which it was to be measured.
It is unnecessary to notice the numerous other assignments of error. The motion for nonsuit should have been allowed. We adhere to the former opinion.
Reversed.
Former opinion adhered to.
Mr. Justice McBride did not sit in this case.