Dissenting Opinion.
Rabb, J.I do not concur in the view that in order to avoid the contract of insurance sued upon it was essential that the insurance company tender to the beneficiary the premium received by it from the assured, as the consideration for its contract.
*550Where the right to rescind a contract requires the party seeking such rescission to place the other contracting party in stalu, quo, the tender must be made to the party with whom the contract was made, or to his representative. This rule is elementary and universal, and applies to a contract of insurance equally with all other contracts.
All the rights of a beneficiary in an insurance contract grow out of the contract, and depend upon its existence and validity. None can or do arise out of its rescission. The rescission of the contract is its destruction. It leaves the parties as though the contract had never been made.
If this policy vested — as some life insurance policies do • — a present interest in the beneficiary could not be destroyed or affected by any subsequent agreement between the company and the insured, and if the assured were living, it would scarcely be contended that a tender of the premium paid, made to the beneficiary, under such circumstances, would put the company in a position to claim a rescission of the contract, on the grounds set forth in appellant’s answer in this case, and, in my view, the death of the assured in nowise altered the duties and the rights of the company in this respect.