*187On Motion for Rehearing or to Transfer to Court en Banc.
PER CURIAM.Appellant does not question the statement ■of facts in the opinion, nor suggest that the evidence was not entirely sufficient to sustain a finding that Cochran and Lowry were held out as the general agents of defendant (see the original application on which the first policies were issued), nor contend that, as such, the agents did not have the apparent authority to waive the sound health provision of the policies in dealing with one who had no knowledge of any restrictions on their apparent authority.
Appellant first contends the opinion is erroneous in holding that, on November 26, when the original policies were delivered to Sheffrey (Midwest’s Secretary), “he had not yet received actual notice of limitations on Cochran’s authority.” Appellant contends that the record shows that Sheffrey had knowledge of said limitations before the delivery of the first policies. In support of this contention appellant quotes certain excerpts from Sheffrey’s testimony and then construes Sheffrey’s testimony as conclusively admitting that Cochran read the “non-waiver provision” or “home office endorsement provision” of the application to him (Sheffrey) before the original policies were delivered. However, in determining whether a fact issue was presented for the jury in order to rule the defendant’s motion for a directed verdict, we must consider the evidence in a light most favorable to plaintiff. Sheffrey repeatedly stated that any discussion of any part of the application form was after the first policies were delivered. Only by inference can a conclusion be drawn that the non-waiver provision, paragraph (2), was discussed at any time. The sound health paragraph was paragraph (4). Sheffrey was cross-examined “about the clause preceding the applicant’s signature.” This was not paragraph (2), the non-waiver or limitations of authority paragraph. Sheffrey’s testimony must be considered as a whole and when so considered, we think a question of fact was presented as to whether Sheffrey had actual notice of the non-waiver provision of the policies and whether a similar non-waiver provision was read to him prior to the time he accepted delivery of the original policies on behalf of Midwest. We cannot determine the issue in appellant’s favor as a matter of law by accepting an unfavorable view of Sheffrey’s testimony, nor by ruling the issue on the weight of the evidence as appellant apparently would have us determine the matter. State ex rel. Kansas City Public Service Co. v. Bland, 353 Mo. 1234, 187 S.W.2d 211, 214(5, 6).
Appellant next contends that the opinion entirely overlooks the fact that, even if Sheffrey had not received actual notice of the limitations on Cochran’s authority at the time of the delivery of the original policies, Rose, as President of Midwest, had received actual notice of the limitations upon Cochran’s power to waive the sound health provision when he, Rose, signed the application for the original policies on October 29. We do not find this issue to have been presented in the original brief, that is, that Rose was President of and representing Midwest at the time he signed the original application for the policies on October 29, 1957. This contention is not supported by the record. The record does not show when Rose became President of Midwest. It does appear from the Collateral Trust Agreement, dated November 1, 1957 (to which agreement Midwest was not a party), that Rose and wife agreed with Mrs. Bowersock that Rose would “promptly cause Midwest to obtain new life insurance upon the life of Oscar Rose * * * ” (more fully stated in the opinion). It also appears that Rose and wife had, on October 28, 1957, contracted to purchase from Mrs. Bowersock certain shares of stock in the Midwest Corporation, but Midwest was not a party to either of these contracts. Nor does the record show when the stock was assigned to Rose, but the stock purchase contract contained a provision for closing *188on October 31, 1957. Midwest was not mentioned or referred to in the original application for insurance signed by Rose on October 29. Accordingly, it appears that Rose was not even a stockholder in Midwest when the original application for insurance was signed. On this record, an inference cannot be drawn that Rose was President of Midwest on October 29, 1957, from the proven fact that he was President of Midwest on November 27, 1957. The evidence will not support an inference that such fact existed on a prior date as the inference will not run backward. State v. Smith, Mo.Sup., 300 S.W. 1081, 1082(1). Further, there is no evidence in the record that Midwest (to whom the new policies were delivered on November 27, 1957) had authorized Rose to make the original application, dated October 29, since Rose was not then a stockholder, an official or the President of Midwest at that time. So far as the record shows, Midwest’s first dealings with defendant came about through Sheffrey’s arrangement with Cochran and defendant’s home office for the exchange or substitution of new policies on November 26, 1957. While Rose in his personal capacity had acquired constructive notice of the limitations on Cochran’s authority, as set forth in the application which he signed on October 29, the policies were never delivered to Rose, nor did he pay the premiums. The arrangement of November 26 was between Cochran, Sheffrey and defendant’s home office for the issuance of new policies, which were delivered to Midwest after the original policies had been delivered to Sheffrey, Secretary of Midwest, on November 26. We must, therefore, reject appellant’s conclusion that, under the law of agency Midwest, through Mr. Rose, had knowledge of the limitations upon Cochran’s authority on October 29, 1957, and could not be ignorant of the same on November 26. Midwest was not concluded on the mentioned issue by Rose’s application made in his personal capacity on October 29. No issue as to ratification or adoption was presented by the pleadings or submitted to the jury.
Appellant next contends that the opinion overlooks the fact that if Sheffrey did not have actual notice of the limitations upon Cochran’s authority at the time the original policies were delivered, nevertheless the delivery of the application for the new policies to Sheffrey and to Rose and the delivery of the second (substitute) policies, which were issued to Midwest were all a pari of one transaction at which Shef-frey did gain actual notice of the limitations of Cochran’s authority.
This assignment represents a change from appellant’s position when the cause was submitted on appeal in this Court. We find no suggestion in the original brief that both deliveries were all a part of one transaction. This assignment was inspired no doubt by our holding that the insurance on the life of Oscar Rose became effective on November 26, 1957, and remained in effect regardless of the exchanges or substitutions on November 27, by which the policies were made to conform to what Sheffrey said had been intended by this company as to ownership and name of beneficiary. Appellant now argues that Midwest, through Sheffrey, must be deemed to have accepted them (the original policies) as written, and that by accepting them Midwest at that time acquired constructive notice of and must be deemed to have agreed to all of the terms and conditions thereof, including those which stated that Mr. Rose must be in sound health for the policies to take effect and that an agent such as Cochran could not waive that prerequisite to liability or bind defendant by his contrary knowledge. This new theory approaches ratification which was not pleaded or submitted. Appellant further says: “Our point is that the contract documents Shef-frey accepted expressly negatived that authority, and plaintiff should certainly not be heard to say that he and his assignor were not bound thereby.” No authorities are cited in support of this new position with reference to the original policies, which were taken up and cancelled when the new policies sued on were delivered. *189We have seen that a favorable view of the evidence shows that Sheffrey had no knowledge of the mentioned restrictions on Cochran’s apparent authority when he accepted the policies.
Appellant next contends that, “the opinion on file overlooks the fact that plaintiff abandoned any claim of estoppel (or waiver by estoppel) in the trial court, no facts supporting the same and no instructions on that theory having been submitted to the jury.” Appellant argues that “while plaintiff did use the word ‘estoppel’ in his petition, the case was tried and submitted to the jury on the usual theory of implied waiver”; that plaintiff abandoned any claim of waiver by estoppel; that not one of the elements of estoppel was submitted to or passed on by the jury; that whether there was any evidentiary basis upon which to base an estoppel was not a pertinent inquiry ; and that the court should reconsider the question of whether or not estoppel, or waiver by estoppel, has any place in the opinion.
The facts reviewed in the opinion appear in the record. Only waiver was submitted, but it was waiver in the nature of estoppel. When the policies were delivered and the check of Midwest accepted for the premiums, defendant knew that the policies were to be assigned to plaintiff as security for the indebtedness due from Midwest to Mrs. Bowersock. The facts as to the delivery of the policies and the issuance of a receipt for the premiums were shown by both oral and documentary evidence. These facts were not in dispute and could be assumed by the court in giving Instruction No. 4. As stated, the waiver here submitted was in law based upon estoppel. There was no submission here of an intention to voluntarily waive a known right, but only waiver on the facts submitted, waiver by estoppel. Defendant’s Instructions 10, 11 and 12, submitting the respective defenses of unsound health, false representations and wilful concealment and directing a finding for defendant, each included a required finding that there was no waiver of the defense, or right to rely, etc. before directing a finding for defendant.
Appellant next reargues its assignment of error with reference to the refusal of Instruction No. 27, which assignment was ruled on the basis that “unsound health was a fact issue”; and that unsound health on November 26 and 27 was not an admitted or conceded fact during the trial of the cause. Appellant says the opinion overlooks evidence and admissions from which the conclusion should have been drawn, as a matter of law, that Rose’s unsound health was an admitted fact. Appellant reviews the evidence tending to show unsound health, but not the evidence of its own witnesses on cross-examination from which the jury might have drawn a contrary conclusion. The issue was not concluded by the pleadings or by any stipulation. Appellant relies primarily on statements in the closing argument of plaintiff’s counsel and upon the admissions in respondent’s brief filed in this Court to establish error of the trial court in the refusal of Instruction No. 27. We have ruled the issue of error on the way the matter stood in the trial court (as shown by the transcript presented), when Instruction No. 27 was refused. This Court is not concluded by respondent’s argument in this court that it could not have been error to fail to tell the jury that Rose was in unsound health on November 26 and 27 because the matter was “never in dispute.” However, if appellant is correct in its contention that it was clearly admitted by the plaintiff in his opening statement and in his closing argument to the jury that Rose was of unsound health when the policies were delivered, it is difficult to understand how defendant could have been prejudiced by the court’s failure to give Instruction 27.
In any event, it could not be reversible error for the trial court to refuse an instruction to the effect that “all the credible evidence of both plaintiff and defendant shows that at the time of the premium *190payment on November 26, 1957, and at the time of the delivery of the policies in suit on November 27, 1957, the proposed insured, Oscar Rose, was not in sound health but was suffering from a mental condition known as anxiety state with depression * * *.” There was evidence before the jury from which a contrary conclusion could be drawn. One witness quoted appellant’s examining physician as stating on November 26, that Rose was in good health and that he was in the hospital for a rest. Defendant’s examining physician (if one is to pick and choose statements) testified that he felt that Rose “being tense had nothing to do with his physical condition.” “It was an emotional upset.” “When I examined him his physical condition was excellent.” Defendant showed that Dr. Shifrin told Lowry that Rose had nervous exhaustion, but was in perfect physical condition and only needed a rest. Mrs. Rose testified that Dr. Shifrin said “he felt about all Rose needed was some rest. He felt he could build Rose up and restore him to his normal health again.” On the record the trial court could not be convicted of error in not disposing of the issue as a matter of law.
Appellant next argues that, even if the insurance was in effect on the life of Rose by reason of the delivery of the policies on November 26, 1957, at a time when Sheffrey had no notice of the non-waiver provision of the policies and if the sound health provision had been waived, nevertheless, when Sheffrey, as Secretary of Midwest, and Rose signed the amended applications on November 27, for the substitute policies, Rose and Midwest then obtained knowledge that Cochran and Low-ry had no authority to waive the sound health provision of the policies.
But, if the sound health provision had been waived the day before, when Midwest had no knowledge of the non-waiver or limitations of authority provision and the insurance went into effect, the waiver of unsound health remained in full force and effect. As stated in the opinion, the insured was not re-examined and no additional premium was to be collected. The insurance was to remain in full force and effect with only a change in ownership of the policies and a new beneficiary designated. Such was the intention of the parties as shown by the evidence. No question of successive waivers is involved. Instruction No. 4 specifically submitted waiver on November 26, 1957, and no error on appeal is assigned to the giving of that instruction. Appellant, in effect, recognizes the fact that, if there was no actual or constructive knowledge of the non-waiver provision and if there was waiver of unsound health on November 26, 1957, the defendant is concluded by delivery of the policies, since appellant now argues that Midwest and plaintiff (by mere acceptance of the policies) are bound by the non-waiver provision of the original application, which was not signed by any then stockholder, officer or agent of Midwest. If there had been waiver of the sound health provision, such provision could not be reinstated after the waiver had been consummated, the policies delivered and the insurance put into effect.
In the final portion of its motion for rehearing, and on the basis of the foregoing contentions, appellant insists that the opinion overrules the established law as to “the right of an insurance company to limit the authority of its agents by written contract with the insured.” We do not so construe the opinion. Respondent further construes the opinion as holding “that retention of a premium check for less than a month, while the company is investigating a serious question of liability, creates an estoppel to deny liability as a matter of law.” No such holding appears in the opinion. Appellant’s offered Instruction No. 27 recognized payment of premiums on November 26, 1957. The opinion discloses that plaintiff’s instructions submitted the issue of waiver by defendant as having occurred on November 26, 1957, which is the day the original policies were delivered *191and the receipt signed acknowledging payment in full of the first year premium on the above policies. On a favorable view of the evidence, as reviewed in the opinion, the holding is that plaintiff made a case for the jury. We do not find the opinion to be in conflict with any controlling authorities.
Appellant in conclusion insists that misunderstanding and confusion will result because of conflict between this decision and the decision in Summers v. Prudential Ins. Co., Mo.App., 337 S.W.2d 562; Zielinski v. General American Life Ins. Co., Mo.App., 96 S.W.2d 1059; and Voss v. American Mutual Liability Ins. Co., Mo.App., 341 S.W.2d 270, 271. However, no policy of insurance was issued or delivered in either of those cases. The facts upon which those cases were decided are not similar to the facts in evidence in this case. The issues presented and considered are not similar. The cases have no application here.
The motion for rehearing or to transfer to Court en Banc is overruled.