In its petition for rehearing the defendant insists that the opinion of the district court of appeal holds that, under the terms of the policy of insurance to Nevada Irwin, the company became bound to pay to Irwin the amount of the judgment recovered against her by the injured party as soon as it became final, and without previous payment thereof by Irwin to the injured party, and that the decision is based on that proposition.
The opinion is not based solely on that proposition. It also proceeds upon the theory that the payment by Irwin of the judgment against her in favor of the injured party is a condition precedent to the existence of a cause of action in favor of Irwin against the company, as indeed the policy expressly declares; but that such previous payment need not be made in money, but may be made in property of any kind, including the promissory note of Irwin if such note is accepted expressly as payment; a theory in which we concur. *Page 76
This leaves as the main point of the case the question whether or not the note was accepted as payment and was made in good faith. This, as the district court says, is primarily a question of fact which the jury, on the evidence, resolved against the company.
The petition for rehearing is denied.