(after stating the facts). 1. If all the testimony on the part of the defendant was true, the policy was void, and the court should have so instructed the jury. But the record does not contain all of the evidence, and, in view of the statement that there was testimony in rebuttal of that of the defendant; we cannot hold that the jury should have been so instructed. The court instructed the jury as follows:
“It is further claimed by the defendant that this policy was issued on condition that the deceased should not attend bar in his saloon. It appears from the evidence that the occupation of the deceased was grocery and saloon keeper. It also appears from a part of the application for insurance that the deceased stated that he did not attend bar, but that his business was in the grocery, and that the bar was attended exclusively by his clerk. That is a material condition, gentlemen of the jury. It was competent for the defendant to make that a condition, and having made it such, and the deceased having subscribed to it as a part of the application, it becomes binding upon the plaintiff. Now, .gentlemen of the jury, if you find from the evidence that John Malicki was in the habit of attending bar, — that is, if that was his business; that he attended bar habitually, instead of attending to the grocery, — in other words, if his business was to attend bar in that saloon, then your verdict must be for the defendant. But you are instructed, if he occasionally attended bar, if he went behind the bar occasionally, and dealt out liquors to customers, it should not avoid the policy; but if that was his business, if he was in the practice and in the habit of doing so, it would avoid the policy, but an occasional sale by the deceased to the customers would not.”
There is no doubt about' the terms of this contract. Mr. Malicki, in order to obtain this insurance, represented that he did not attend the bar, but that his bar was exclusively attended to by his clerk. Relying upon this representation, this policy was issued. The vice of the instruction lies in the fact that under it the jury might have found that nothing short of an habitual tending of the bar, and making that his business, would avoid the policy, and that anything short of that would be an occasional act. *155Clearly, if Mr. Malicki daily tended the bar while the regular bartender was absent at his meals, or on other occasions, this would be contrary to the terms of the policy. If he wanted a policy upon that basis, he should have stated the facts. Whether a single act or a few acts of tending the bar would avoid, the policy, we need not determine. The jury evidently received no instruction as to what occasional acts would or would not have that effect.
It is urged that the policy, being dated the day before this part of the application was made, was not issued in reliance upon this representation. The only proof on this point is that this paper, with the other two, constituted the application. The date of the policy does not control. The delivery is essential. It was not issued till delivered.
2. The court instructed the jury that if Mr. Malicki, at the time of effecting the insurance,—
“Was in the habit of drinking intoxicating liquors to excess, that would end the case, and your verdict should be for the defendant. If you find that he was not an intemperate user of alcoholic liquors, it would not avoid the policy. It is a simple question whether he was an excessive drinker. If he was an habitual excessive drinker, it would avoid the policy.”
Here, again, plaintiff is confronted with the terms of the policy. Mr. Malicki distinctly stated in his application that he only drank two or three glasses of beer daily. This was in reply to the question: “Do you drink beer, ale, wine, or spirits, and, if so, state what, how often, and how much.” The representation was clear and explicit that he did not drink spirituous liquors. Defendant asked this, and was entitled to know it. If he was in the habit of using spirituous liquors as a beverage, he should have so stated. The instruction was erroneous. ' The court should have instructed the jury that the habit of using spirituous liquors before the issue of the policy was contrary to the representation, and, if proven, avoided it. Cases like that of Knickerbocker Life Ins. Co. v. Foley, *156105 U. S. 350, have no application. In that case the representations were that the applicant had always been of temperate habits. The very answer implied the use of intoxicating liquors, and it was very properly held that the occasional use, and an exceptional case of excess, did not justify the conclusion that he was a man of intemperate habits.
3. We think the court committed no error in instructing the jury that the burden of proof was upon the defendant to show that the deceased died from delirium tremens. A ■distinction is made between the principal contract as found in the body of the instrument, and conditions or stipulations indorsed thereon, “which are intended to avoid the defendant’s promise by way of defeasance or excuse.” The party relying upon the breach of such conditions to defeat his liability assumes the onus probandi. Coburn v. Insurance Co., 145 Mass. 226. The contract of insurance in that case was substantially identical with this. See, also, Piedmont, etc., Ins. Co. v. Swing, 92 U. S. 377; Redman v. Insurance Co., 49 Wis. 431.
Judgment reversed, and new trial ordered.
The other Justices concurred.