ON REHEARING.
Beck, J.A rehearing was granted in this case upon the petition of defendant, and the cause has again been submitted for our consideration.
' The defendant, in the petition for rehearing, bases an objection to our former opinion upon the ground that, as counsel claim, it is mistakenly stated therein the premium was paid by plaintiff upon signing the application for insurance, and when the policy was received by plaintiff the company held the premium. It is true that the money had not been paid by plaintiff, but the company received from him when the application was made a promissory note for the amount of the premium. The policy, by express words, recognizes this note as the consideration of the contract. We cannot think plaintiff’s rights, in view of this fact, were any other or different than they would have been had the money been paid, instead of a note executed for the premium. The policy provides that in case the note is not paid at maturity the policy, from that time, *261shall not be binding on defendant. But as it does not appear plaintiff made default upon this note, it cannot be claimed that the policy was not just as binding on both parties as though the money had been paid.
It is said that the plaintiff' could have refused to accept the policy, and the note could not, in that case, have been collected. That may be so; but it cannot be doubted that defendant actually insured plaintiff’s property from the 24th day of December until the policy was received, about a week afterward, and would have been entitled to the premiums earned during that time, if the policy had not been accepted by plaintiff. This would have been true if plaintiff had refused to accept the policy. The acceptance of this consideration by the company upon an agreement to insure the property from the 24th day of December and to issue a policy, would render defendant liable. Such an agreement is sufficiently shown by plaintiff’s application and the acceptance of the consideration for such insurance to commence on the 24th day of December. Surely defendant, after accepting the consideration and issuing a policy purporting to insure plaintiff from that date, could not deny such contract.
We conclude that the statement of the foregoing opinion as to the payment of the premium is not such an error of fact as to affect the result, and that the position assumed therein, to the effect that there was a contract of insurance upon _and before the receipt of the policy by plaintiff, is correct. We are satisfied with the conclusion of our- first opinion, and adhere to it.
Aerirhed.