From a judgment on a verdict in favor of the plaintiff the defendant appeals.

REVERSED AND REMANDED.

OPINION SUSTAINED ON REHEARING.

For appellant there was a brief over the name of Messrs. Veazie, McCourt & Veazie, with an oral argument by Mr. John McCourt.

For respondent there was a brief over the name of Messrs. Giltner & Sewall, with an oral argument by Mr. R. R. Giltner.

MR. JUSTICE BURNETT delivered the opinion of the court.

1-4. It is unnecessary to consider any of the affirmative defenses. It is enough to give our attention to the sufficiency of the complaint upon which the action was tried. The original was supplanted by the new pleading of the plaintiff and cannot be considered in aid of his case: Wells v. Applegate, 12 Or. 208 (6 Pac. 770); Slemmons v. Thompson, 23 Or. 215, 220 (31 Pac. 514); Hume v. Woodruff, 26 Or. 373 (38 Pac. 191); Condon Nat. Bank v. Rogers, 60 Or. 189 (18 Pac. 846, Ann. Cas. 1914A, 101). The adequacy of the plaintiff's statement of his cause of action may be questioned for the first time in the supreme court: Howard v. Horticultural Fire Relief, 77 Or. 349 (150 Pac. 270, 151 Pac. 476). If he would prevail in this form of action he must not only disclose the terms of the oral contract for insurance, but also, in cases where a policy has been actually issued, set forth the terms of that instrument so that the court may be able to judge whether or not it is a fulfillment of the alleged oral contract. It is true that the defendant appends to its

answer as an exhibit a copy of what it alleges was a policy delivered to and accepted by the plaintiff as the contract between the parties and which differs in some respects from the oral contract stated by the plaintiff. This averment of the answer, however, is denied by the reply and hence is of no effect by way of aider to the defects in the complaint. It suffices not to aver, as in the amended complaint, that the policy tendered "did not conform to the oral contract between the parties and was not a complete performance of said oral contract." This is a mere conclusion of law and

states no fact.

5. Again, it does not avail plaintiff to state his belief about the legal effect of the policy that was issued. Ignorance of the law will not excuse anyone. The principle is fully discussed in an opinion by Mr. Justice WOLVERTON in Scott v. Ford, 45 Or. 531 (78 Pac. 742, 80 Pac. 899, 68 L. R. A. 469). In Utermehle v. Norment, 197 U. S. 40 (49 L. Ed. 655, 25 Sup. Ct. Rep. 291, 3 Ann. Cas. 520, 524), it is said:

"It has been held from the earliest days, in both the federal and state courts, that a mistake of law, pure and simple, without the addition of any circumstances of fraud or misrepresentation, constitutes no basis for relief at law or in equity, and forms no excuse in favor of the party asserting that he made such mistake. Hunt v. Rhodes, 1 Pet. (U. S.) 1, 15 (7 L. Ed. 27); United States Bank v. Daniel, 12 Pet. (U. S.) 32, 55 (9 L. Ed. 989, 998); United States v. Hodson, 10 Wall. (U. S.) 395, 409 (19 L. Ed. 937, 940); Lamborn v. Dickinson County Commrs., 97 U. S. 181, 185 (24 L. Ed. 926); Snell v. Atlantic F. & M. Ins. Co., 98 U. S. 85, 90, 92 (25 L. Ed. 52); Allen v. Galloway, 30 Fed. 466, where HAMMOND, J., in reviewing the decisions of this court, says: 'Whatever rule may prevail elsewhere, there can be, in the equity courts of the United States, no relief from a mistake of law.' Drake v.

Wild, 70 Vt. 52, 59 (39 Atl. 248). In that case the court said (p. 59): "That ignorance of the law does not excuse a wrong done or a right withheld; that relief from liabilities under the law, arising from a known state of facts, will be denied. But to these general rules there are exceptions, as where there is a mistake of law caused by fraud, imposition, or misrepresentation. We think it will be found that in most of the cases cited in these notes, and in Pomeroy, the party seeking relief was led into error by the action of the other party to a transaction, as in contracts and releases.' Light v. Light, 21 Pa. St. 407, 412; Storrs v. Barker, 6 Johns. Ch. (N. Y.) 166 (10 Am. Dec. 316); Whitwell v. Winslow, 134 Mass. 343, 345; Alabama, etc. Ry. Co. v. Jones, 73 Miss. 110 (55 Am. St. Rep. 488, note, 19 South. 105)."

The complaint under consideration does not state facts sufficient to constitute a cause of action.

Whether by commencing action upon the policy and afterwards abandoning the same the plaintiff has failed to avail himself of the right of prompt rescission within the doctrine of Scott v. Walton, 32 Or. 460 (52 Pac. 180), or whether he has sufficiently pleaded a mistake in the contract within the doctrine of Hughey v. Smith, 65 Or. 323 (133 Pac. 68), or whether he has stated a case of fraud against the plaintiff within the rule of pleading laid down in Anderson v. Adams, 43 Or. 621, 627 (74 Pac. 215), are questions which do not require consideration at this time. The judgment of the Circuit Court is reversed and the cause remanded for further proceedings. REVERSED AND REMANDED. OPINION SUSTAINED ON REHEARING.

MR. CHIEF JUSTICE MOORE and MR. JUSTICE BENSON

concur.

MR. JUSTICE BEAN withhold his assent.

Former opinion sustained March 20, 1917.

ON REHEARING.

(163 Pac. 820.)

On rehearing, former opinion is adhered to.

Mr. R. R. Giltner, of the firm of Giltner & Sewall, for respondent.

Mr. John McCourt, of the firm of Veazie, McCourt & Veazie, for appellant.

In Banc. MR. JUSTICE BURNETT delivered the opinion of the court.

6. The judgment of the Circuit Court in this case was reversed in an opinion reported in ante, p. 662 (160 Pac. 536), because the complaint did not state facts sufficient to constitute a cause of action. A rehearing having been granted it is now urged by the plaintiff that there is presented a case in which that pleading states defectively a good cause of action and must be held valid after verdict. Counsel summarizes thus: That the defendant orally agreed to furnish a policy with certain privileges endorsed thereon in favor of the plaintiff, but failed to do so to the latter's damage in a sum mentioned, and that all this appearing in substance in the declaration we must overlook informalities occurring by way of recital and the like. The situation of the plaintiff is not affected so much by what is omitted from his complaint as by what he has put into it showing that as a matter of law he cannot recover in this action. It is not merely a case of defective statement. He himself in his own pleading has stated that which

defeats any cause of action he ever had for breach of a former oral contract for insurance. He shows that in performance of his alleged verbal agreement with the defendant the latter tendered to him a policy which he accepted, acted upon and retained. Under these circumstances the previous convention, if any, became functus officio on acceptance of the actual written policy mentioned in the complaint. That pleading shows in legal effect that the former stipulation has been performed on the part of the defendant. If the policy tendered did not comply with the provisions of the oral agreement plaintiff ought to have rejected it and so notified the defendant; but having accepted and acted upon it, as he states, the conclusion is inevitable that in this action at law it supersedes all previous negotiations and constitutes the sole standard by which the relations of the parties are to be determined: See Section 713, L. O. L. Acceptance of the policy consummates the contract of insurance: New York Life Ins. Co. v. Babcock, 104 Ga. 67 (30 S. E. 273, 69 Am. St. Rep. 134, 42 L. R. A. 88); Newark Machine Co. v. Kenton Ins. Co., 50 Ohio St. 549 (35 N. E. 1060, 22 L. R. A. 768); El Dia Ins. Co. v. Sinclair, 228 Fed. 833 (143 C. C. A. 231).

Neither is it a question of election between a remedy upon the alleged oral agreement and the policy in question. In legal effect the complaint makes it plain that there exists but one contract between the parties and that is the one evidenced by the written policy accepted by the plaintiff and still retained by him. In brief, in point of law it is disclosed by the plaintiff's pleading that there are not two contracts between the enforcement of which the plaintiff may elect. Kleis v. Niagara Fire Ins. Co., 117 Mich. 469