21 F.(2d) 39

between Mr. Carpenter and Mr. Galinsky in your presence?" and his answer was, "No, sir; that is a lie."

Carpenter was placed upon the stand in rebuttal, and testified over objection that Galinsky in Miller's presence had said: "Do you think that we are going to let this young fellow (referring to Herman Miller) go to the penitentiary with all the money we have got" This was an attempted impeachment on an immaterial matter, as the majority opinion states, as well as on an incompetent matter. It seems to me the effect of this tes

timony would tend to prevent a jury from a calm and dispassionate consideration of the case. In the minds of some jurors it would arouse prejudice against defendant because of the insinuation that the wealth of his family would be used in some way to prevent his punishment. Other jurors with this evidence before them might hesitate in the light of such statement from a relative of the defendant to vote for acquittal for fear of suspicion attaching to them that they might have been wrongfully influenced. The paralyzing effect of such evidence upon a fair trial, it seems to me, is quite evident. Its admission was a grave, substantial and prejudicial error. Section 269 of the Judicial Code admonishes appellate courts to give judgment after an examination of the entire record before the court without regard to technical errors which do no affect the substantial rights of the parties. This was not a technical error. In my judgment it clearly affected the substantial rights of defendant. The case was carefully tried by the learned District Court, and I find myself in entire agreement with the opinion of the majority, except as to this one question. The conceded error, it seems to me, is so serious and prejudicial as to require a reversal of this case.

the application, but applicant understood it to call for a policy on a different plan, and before tender could be made applicant died, there was no meeting of minds and no contract resulted.

In Error to the District Court of the United States for the Eastern District of Oklahoma; Robert L. Williams, Judge.

Action at law by Bernice Drake against the Missouri State Life Insurance Company. Judgment for defendant, and plaintiff brings

error. Affirmed.

Melton & Melton and Reford Bond, all of Chickasha, Okl., for plaintiff in error.

Frank Wells, of Oklahoma City, Okl. (D. I. Johnston, of Oklahoma City, Okl., and Morton Jourdan, F. L. English, and Allen May, all of St. Louis, Mo., on the brief), for defendant in error.

Before KENYON, Circuit Judge, and MOLYNEAUX and JOHN B. SANBORN, District Judges.

rate."

JOHN B. SANBORN, District Judge. Bernice Drake is the widow of J. F. Drake, deceased. On August 8, 1923, he signed an application for life insurance in the defendant company for $50,000 "on the term N. P. S. C. plan, A, B, C, or D. "N. P. S. C." meant nonprofit sharing convertible. Mr. H. J. Brown, one of the company's agents in Oklahoma, took the application, and forwarded it to the company. Mr. Drake told Mr. Brown that he wanted the cheapest policy the company wrote. This was the nonparticipating, convertible 5-year term policy, plan "A." The plan was not stated in the application as made out by Mr. Brown, and was not discussed. Mr. Brown calculated the premium to be $516.50, and Mr. Drake paid him that amount, and the application so showed. The premium should have been $515.50. The application was forwarded to the home office of the company in St. Louis, Mo., and reached the office August 13, 1923. It was returned to the com

DRAKE v. MISSOURI STATE LIFE INS. pany's general agents in Oklahoma to have

CO.

stated the length of term, which had been omitted in the application, and the full name of the beneficiary. It should be stated that, at the same time that Mr. Drake made application for this policy, he also made application for a similar policy for $100,000, the beneficiary in which was to be his partner. Because of the amount of the insurance called for, a second medical examination was required by the company, was made on August 20th, and the report received August 22d. Some further physical tests were re

21 F.(2d) 39

contained in the said application, copy of which agreements are printed on the back and made a part hereof.

"Walters, Oklahoma, Aug. 8, 1923.

"[Signed] H. J. Brown, Agent." On the back of the receipt was printed clauses (a), (b), and (c) referred to above. The evidence showed that the company could have issued an "A" plan policy, and afterwards have adjusted the reinsurance. A Mr. Newton, in charge of the policy division, determined that a "B" plan policy should be issued upon this application. The policy was written up on October 24, 1923, on the "B" plan. On that day the company received news of Mr. Drake's death, and nothing more was done, except to make this note on the rating sheet: "10/24/23. Reconsidered and declined"-and to tender back the premium, which was refused. No notice was given to the assured that the application had been accepted, and the rating sheet was merely a record of the company for its own use. Except for Mr. Drake's death, the "B" plan policy would have been sent to the agency accounting department of the company, and from there have gone to the general agents in Oklahoma City, with a statement and let ter of transmittal, and would have been delivered to Mr. Drake.

Mrs. Drake, who was named as the beneficiary in the application, brought suit in the state court of Oklahoma against the company, on the theory that the application of her husband had been accepted and that a contract of insurance was in existence. The company removed the case to the United States District Court, where it was tried and a verdict directed for the defendant, and judgment entered thereon. It was brought here for review on a writ of error.

The single question involved is whether there was in effect at the time of the death of Mr. Drake a contract of insurance between him and the defendant growing out of his application. The plaintiff claims that the company accepted unconditionally the application, and that therefore there was a contract, and that the actual issuance and delivery of the policy would have added nothing. There is grave doubt whether a contract of insurance could have become effective until actual delivery to Mr. Drakeassuming unconditional acceptance of the application-but we think it is unnecessary to discuss or decide that question.

It is elementary, of course, that there can be no contract unless the minds of the contracting parties meet. Mutual L. Insurance Co. v. Young's Administrator, 23 Wall. 85,

23 L. Ed. 152; Mohrstadt v. Mutual Life Ins. (C. C. A.) 115 F. 81; Piedmont & A. Life Ins. Co. v. Ewing, 92 U. S. 377, 23 L. Ed. 610; La Compania Bilbaina v. Spanish Am., etc., Co., 146 U. S. 483, 13 S. Ct. 143, 36 L. Ed. 1054; MacKelvie v. Mutual Ben. Life Ins. Co. (C. C. A.)' 287 F. 660; Travis v. Nederland Life Ins. Co. (C. C. A.) 104 F. 486.

The application of Mr. Drake was ambiguous. It did not specify the plan upon which the policy was to be written, nor could the company tell from the amount of premium collected by the agent what form of contract was called for. Mr. Drake had in mind a policy upon the "A" plan, which called for a premium of $515.50. The company construed the application as calling for insurance on the "C" plan, or part, upon the "C" and part upon the "D." Finally, it was determined to issue and tender to Mr. Drake a "B" plan policy, calling for a premium of $518. The fact that the company would have issued an "A" plan policy, if it had known what Mr. Drake wanted, has no bearing on the case. It is what was done, and not what might have been done, or what would have been done, which is controlling, and we can make no contract for the parties. Mutual L. Insurance Co. v. Young's Adm'r, supra.

The thing which is fatal to the claim of the plaintiff is that the consent of the company to be bound by the contract which Mr. Drake proposed to make is entirely absent. The approval of the application did not amount to a consent, because those approving it had one thing in mind, while Mr. Drake had another. The fact is that Mr. Drake was entitled to refuse the policy the company was preparing to tender him, and recover his premium, and the company could not have successfully defended against a suit to recover it. It had not earned one dollar of the premium paid by Mr. Drake at the time of his death. It cannot be said that Drake was insured prior to his death upon the "A" plan, because the evidence shows that the company never had in mind that his application was for that kind of insurance, nor was he insured on the "B" plan, because he had made no offer to become so insured. The knowledge of the agent cannot help matters, because the acceptance of the application was, by its terms, for the company at its home office, and it did not accept the application for the policy Mr. Drake intended and agreed to pay for.

In St. Paul Fire & Marine Ins. Co. v. Ruddy, 299 F. 189, 193, this court said: "As to the general legal phases applicable to the

prior to any notification of Drake's death. We are unable to see how a verdict of a jury, in effect finding that the company understood the application to call for a policy of insurance on the "A" plan and had accepted it upon that basis, could stand in the face of this testimony.

The case of Van Arsdale-Osborne Brokerage Co. v. Cooper, 28 Okl. 598, 115 P. 779, relied on by the plaintiff, is beside the point. It is authority for the proposition that it is not essential to the validity of a contract of insurance actually agreed upon that a policy be executed unless that is a condition of the contract. It does not apply to this case, because there was here no contract of insurance actually agreed upon.

situation, it may be observed that there is no contract unless the minds of the parties meet; that an insurance contract is no different than any other contract in that respect; that the contract is a personal one between the insurer and the insured; that, if there is no obligation as to one of the parties, there is none as to the other; that, if anything of importance remained to be done by either party, the contract would not be complete. Stephenson v. Germania Fire Ins. Co., 100 Neb. 456, 160 N. W. 962, L. R. A. 1917B [D] 307; Lett v. Guardian Fire Ins. Co., 125 N. Y. 82, 25 N. E. 1088; Davis v. Bremer County Fire Ins. Ass'n, 154 Iowa, 326, 134 N. W. 860; [Mutual L.] Insurance Co. v. Young's Administrator, 90 U. S. (23 Wall.) 85, 106, 23 L. Ed. 152; New England Loan & Trust Co. v. Kenneally, 38 Neb. 895, 57 N. W. 759; Atlas Reduction Co. et al. v. New Zealand Ins. Co. of New Zealand, 138 F. 497, 71 C. C. A. 21, 9 L. R. A. (N. S.) FARMERS' UNION GRAIN CO. v. HALLET 433; Phoenix Life Ins. Co. v. Raddin, 120 U. S. 183, 7 S. Ct. 500, 30 L. Ed. 644."

Quoting from another decision of this court in Etna Indemnity Co. v. J. R. Crowe Coal & Mining Co., 154 F. 545, 556: "It is well settled that an application for insurance is a proposition to the insurance company which must be accepted as made, if at all. If a policy is executed and offered to the applicant different in any material respects from the application, it is in effect a rejection of the application, and a new proposition by the company, which the applicant may accept or reject at his pleasure" (citing cases).

Again, in Rushing v. Manhattan Life Ins. Co. (C. C. A.) 224 F. 74, 78, it was said: "The material modification of the terms of a proposal of a contract by the party to whom it is offered is a rejection of the proposal and the tender of a new offer, which cannot become a contract until it has become known to and has been accepted by the first proposer." See, also, McNicol v. New York Life Ins. Co. (C. C. A.) 149 F. 141.

It is contended, however, that the question as to whether the company accepted Drake's application for an "A" plan policy was, under the facts shown, a question for the jury. The evidence of the company that the application was construed to be on the "C" plan is uncontradicted. The reinsur ance was procured by the company on the "B" plan; the application bears the notation of the company of a correction of the application to call for a "B" plan policy, and the policy was actually written upon the "B" plan; and all these things were done

The judgment is affirmed.

& CAREY CO.*

Circuit Court of Appeals, Eighth Circuit.
July 28, 1927.

No. 7772.

1. Exceptions, bill of 38-Bill must be allowed during term, or within time extended.

allowed during the term when the case is tried Bill of exceptions must be presented and and judgment entered, or during such extension of the term as may be provided by order or standing rule of court.

2. Exceptions, bill of

41(1)—Bill of exceptions held not signed nor presented during time extension.

Bill of exceptions held not signed or presented during the term as extended for the purpose by special order of court.

In Error to the District Court of the United States for the District of South Dakota; James D. Elliott, Judge.

Action at law by the Farmers' Union Grain Company against the Hallet & Carey Company. Judgment for defendant, and plaintiff brings error. Affirmed.

B. Harkin and Ezra L. Baker, both of AberJohn Junell, of Minneapolis, Minn. (E. deen, S. D., and J. H. Colman and Lancaster, Simpson, Junell & Dorsey, all of Minneapolis, Minn., on the brief), for plaintiff in error.

F. H. Stinchfield, of Minneapolis, Minn. (A. K. Gardner, of Huron, S. D., and T. P. Helmey and Jamison, Stinchfield & Mackall, all of Minneapolis, Minn., on the brief), for defendant in error.

Before KENYON, Circuit Judge, and MOLYNEAUX and JOHN B. SANBORN, District Judges.

*Rehearing denied November 28, 1927.

21 F.(2d) 42

JOHN B. SANBORN, District Judge. The plaintiff in error sued the defendant in error for $41,683.98, the proceeds of sales of grain which the plaintiff claimed to have owned, and which it alleged was sold by the defendant for its account. The case was tried by the court without a jury, upon stipulation, and the defendant had judgment. The plaintiff, by writ of error, brings the case here for review.

At the outset we are confronted by a motion to dismiss the bill of exceptions on the ground that it was not allowed during the term in which the case was tried and judgment entered. The facts with reference to the bill of exceptions are these: The trial was had May 8, 1926, at Aberdeen, S. D. By the act of Congress fixing the terms of court for the district of South Dakota (36 Stat. 1123, § 106 [28 U. S. C. A. § 187; Comp. St. § 1093]) terms are held for the Northern division, at Aberdeen, on the first Tuesday in May and the second Tuesday in November. In 1926 the term commenced Tuesday, May 4th, and ended with the commencement of the November term, on November 9th, unless sooner terminated by order of court. Denver Live Stock Commission Co. v. Lee & Shay (C. C. A.) 18 F.(2d) 11. Attached to the moving papers is a certificate of the clerk of the court to the effect that on May 8, 1926, the court was adjourned sine die. It is urged that this certificate is not a part of the record and cannot be considered. However that may be, it appears that this case was not argued and submitted until August 13th. The court filed its findings and order for judgment August 17th, and judgment was entered on that day. Notice of its entry was served on the plaintiff on September 11, 1926.

We think it is not necessary to determine whether the order adjourning the court sine die affected the right of the plaintiff to perfect a bill of exceptions, or whether that question is before us. For the purpose of this motion, we assume that the term did not end until the next term for the Northern division commenced, on November 9th. On September 27, 1926, an order was filed staying all proceedings, except entry of judgment and taxation of costs. On October 4th, pursuant to stipulation, the court extended the time for filing a bill of exceptions until November 12th. On November 6th, the assignment of errors was filed and the writ of error allow ed and filed. On November 9th, the court extended the time to file a bill of exceptions until December 12th, and enlarged the time for docketing the cause and filing a bill of exceptions in this court to February 9, 1927. A

proposed bill of exceptions was served upon counsel for the defendant on December 4th, and was filed December 9th.

Rule 49 of the District Court of the United States for the District of South Dakota provides:

"When a party desires to have exceptions taken at a trial settled in a bill of exceptions, he may within thirty days after the entry of judgment, if the actions were tried to a jury, or after receiving notice of the entry of judgment, if the action were tried without a jury, or such further time as the court in which the action is pending, or a judge thereof, may allow, prepare the draft of a bill and serve the same, or a copy thereof, upon the adverse party. Such draft must contain all the exceptions taken, upon which the party relies. Within twenty days after such service the adverse party may propose amendments thereto and serve the same, or a copy thereof, upon the other party. The proposed bill and amendments must, within ten days thereafter, be presented by the party seeking the settlement of the bill to the judge who tried or heard the case, upon five days' notice to the adverse party. If no amendments are served, or if served are allowed, the proposed bill may be presented with the amendments, if any, to the judge for settlement without notice to the adverse party."

The defendant, on December 28th, served its proposed amendments to the bill. On January 8, 1927, a notice was served on the defendant that on January 14th the plaintiff would move for the allowance of the bill. It appears that on January 7th, the plaintiff presented the proposed bill of exceptions to the court for allowance and advised the court that it consented to the allowance of the proposed amendments and their incorporation in the bill, but that the court required that the matter be heard upon notice on January 14th. On January 14th, the plaintiff presented its bill of exceptions for allowance, the defendant filed objections on the ground that the court had lost jurisdiction, the objections were overruled, and the court settled and allowed the bill.

[1] There can be no question that a bill of exceptions must be presented and allowed during the term when a case is tried and judgment entered, or during such extension of the term as may be provided by order or standing rule of court. In Michigan Ins. Bank v. Eldred, 143 U. S. 293, 298, 12 S. Ct. 450, 452 (36 L. Ed. 162), the court said:

"By the uniform course of decision, no exceptions to rulings at trial can be considered by this court, unless they were taken at