*668Former opinion sustained March 20, 1917.
On Rehearing.
(163 Pac. 820.)
On rehearing, former opinion is adhered to.
Mr. B. B. Giltner, of the firm of Griltner & Sewall, for respondent.
Mr. John McCourt, of the firm of Yeazie, McCourt & Yeazie, for appellant.
In Banc.
Mr. Justice Burnettdelivered the opinion of the court.
6. The judgment of the Circuit Court in this case was reversed in an opinion reported in ante, p. 662 (160 Pac. 536), because the complaint did not state facts sufficient to constitute a cause of action. A rehearing having been granted it is now urged by the plaintiff that there is presented a case in which that pleading states defectively a good cause of action and must be held valid after verdict. Counsel summarizes thus: That the defendant orally agreed to furnish a policy with certain privileges endorsed thereon in favor of the plaintiff, but failed to do so to the latter’s damage in a sum mentioned, and that all this appearing in substance in the declaration we must overlook informalities occurring by way of recital and the like. The situation of the plaintiff is not affected so much by what is omitted from his, complaint as by what he has put into it showing that as a matter of law he cannot recover in this action. It is not merely a case of defective statement. He himself in his own pleading has stated that which *669defeats any canse of action he ever had for breach of a former oral contract for insurance. He shows that in performance of his alleged verbal agreement with the defendant the'latter tendered to him a policy which he accepted, acted upon and retained. Under these circumstances the previous convention, if any, became functus officio on acceptance of the actual written policy mentioned in the complaint. That pleading shows in legal effect that the former stipulation has been performed on the part of the defendant. If the policy tendered did not comply with the provisions of the oral agreement plaintiff ought to have rejected it and so notified the defendant; but having accepted and acted upon it, as he states, the conclusion is inevitable that in this action at law it supersedes all previous negotiations and constitutes the sole standard by which the relations of the parties are to be determined: See Section 713, L. O. L. Acceptance of the policy consummates the contract of insurance: New York Life Ins. Co. v. Babcock, 104 Ga. 67 (30 S. E. 273, 69 Am. St. Rep. 134, 42 L. R. A. 88); Newark Machine Co. v. Kenton Ins. Co., 50 Ohio St. 549 (35 N. E. 1060, 22 L. R. A. 768); El Dia Ins. Co. v. Sinclair, 228 Fed. 833 (143 C. C. A. 231).
Neither is it a question of election between a remedy upon the alleged oral agreement and the policy in question. In legal effect the complaint makes it plain that there exists but one contract between the parties and that is the one evidenced by the written policy accepted by the plaintiff and still retained by him. In brief, in point of law it is disclosed by the plaintiff’s pleading that there are not two contracts between the enforcement of which the plaintiff may elect. Kleis v. Niagara Fire Ins. Co., 117 Mich. 469 *670(76 N. W. 155), is a parallel case. It is there held according to the syllabus, that:
“One who accepts a policy of insurance issued to him upon his written application cannot ignore the writings, and sue upon a preliminary parol agreement to issue a policy of different form; his remedy, in case of fraud or mistake, being the reformation of the contract in equity. ’ ’
In Agricultural Ins. Co. v. Fritz, 61 N. J. Law, 211 (39 Atl. 910), the complaint was to the effect that a wife acting as agent for her husband orally agreed with the insurance company that it should insure certain property in his name and execute and deliver a policy to that effect. She even paid the premium which was accepted by the company. The officer with whom she dealt stated to her that they were not then ready to issue the policy, but would send the paper through the mail. Subsequently a policy of insurance, written upon the blank used by the insurance company, made in her name as insured, came by mail to the wife who accepted and retained it with her valuables until after the property insured was destroyed by fire. It was there held that:
“The contract made by the company was that which was stated in the policy and was not a parol contract for insurance with the husband.”
The case is much like New York Life Ins. Co. v. McMaster, 87 Fed. 63 (30 C. C. A. 532), in which it is stated: *671pen in the future,” — citing Equitable Life Assur. Soc. v. McElroy, 49 U. S. App. 548 (28 C. C. A. 365, 83 Fed. 631); Paine v. Pacific Mut. Life Ins. Co., 10 U. S. App. 256 (2 C. C. A. 459, 51 Fed. 689); Heiman v. Phoenix Mut. Life Ins. Co., 17 Minn. 153 (10 Am. Rep. 154); Markey v. Mutual Ben. Life Ins. Co., 103 Mass. 78; Hoyt v. Mutual Ben. Life Ins. Co., 98 Mass. 539; Markey v. Mutual Ben. Life Ins. Co., 118 Mass. 178.
*670“There were, as is customary in life insurance cases, negotiations, but no contract, and no intention to contract, otherwise than by policies made and delivered upon the simultaneous payment of the premiums; and the agreement upon which the appellee counts was nothing more than a representation or promise, without consideration, as to what would hap-
*671It is apparent that at no time prior to the delivery of the policy could the company have sued the plaintiff here to recover the premium. He was at liberty at any time to refuse the policy especially if it did not comply with the alleged oral agreement.
7. Further, the plaintiff avers in his complaint:
“That the said policy so issued should contain the usual and customary conditions contained in such policies of insurance and the conditions prescribed by‘Chapter 175 of the Laws of 1911.”
In other words, by operation of law the insurance statute is read into the contract and made a part thereof with the result that the plaintiff is bound thereby and, if he would recover for a breach of the resulting executory agreement he must aver that he himself has complied with all its terms so far as he was permitted to conform to them. He must show this before he can bring an action for a breach of it by the other party. The complaint utterly omits to state anything of that kind. It is unthinkable that the plaintiff will be in a better situation in attempting to enforce a claim for damages based on a breach of the contract than he would be if it had been made as he alleges it was intended.
One stipulation enjoined by the statute referred to is that:
“No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law *672or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire. ’ ’
It is without dispute that this action was not instituted until more than fifteen months after the fire and not until the plaintiff himself had abandoned his litigation upon the policy actually issued. Moreover, as stated, the complaint utterly fails to aver any compliance by the insured with the provisions of the statute to be read into and made a part of the policy. Having himself pleaded that which would defeat aiiy possible cause of action on any oral agreement, because it was superseded by a written policy which he accepted, retained and acted upon, the plaintiff is not entitled to relief in this action. The former opinion is adhered to.
Former Opinion Sustained,
Mr. Justice Benson absent.