Opinion. mium on the Reliance policy. The circumstances under which the policy was sent to Gulley, and the facts attending his return thereof to Rawlings, and the subsequent acts and dealings of the parties, should have been submitted to the jury, and they should have been allowed to decide whether there had been such a delivery and acceptance of the policy as bound the company. The testimony of Rawlings, a witness on behalf of the company, had a very important bearing on the liability of the company, and should have been submitted to the jury. His credibility was a question for the jury. [3] The latter part of the instruction is also objectionable. Outside of the fact that Gulley put the policy in his desk, there is no evidence of any act on his part from which an acceptance of the policy could have been inferred, nor could the insurance company be adversely affected by any uncommunicated "declarations" on the part of Gulley. This part of the instruction was misleading. [4] Instruction B was as follows: "The court instructs the jury that if they believe from the evidence in this case that the policy or policies in controversy were found after the death of Charles H. Gulley in his possession and among his effects, then the law presumes that said policy or policies were delivered to him by the defendant company as valid and subsisting contracts, without any condition of any sort attached to them." [5] This instruction would have been a correct statement of the law if it had said that "the law presumes, in the absence of evidence to the contrary, that," etc. But it ignores all of the defendant's evidence tending to show that the policies were not to be effectual unless and until Gulley paid the premium or gave Rawlings his note for the amount thereof. If Rawlings was to be credited, the policies were delivered on condition that Gulley was Opinion. to give his note to Rawlings for the amount of the premium, which he never did. The policy itself expressly provides that the contract of insurance "shall not take effect until the first premium shall have been actually paid while I am in good health," and further, "Agents are not authorized to modify this policy or extend the time for paying a premium." Under these terms there could be no recovery on the policies unless the premium was prepaid, or compliance with the provision thereof was waived. The instruction correctly stated the law where there had been an absolute and unconditional delivery of the policy, or simply proof of delivery without more; but the insurance company offered the testimony of Rawlings, the letters written by him to Gulley, and the unsigned note for $27.41, which Rawlings testified were found in the envelope with the policies after the death of Gulley, to rebut the presumption, and to show that the policies were not delivered to Gulley under such circumstances as would justify the inference that credit was to be given for the premium. Life Ins. Co. v. Hairston, 108 Va. 832, 848, 62 S. E. 1057, 128 Am. St. Rep. 989, quoting Vance on Ins. p. 178. The instruction should have been framed as above indicated, so as to have permitted the jury to consider this evidence in determining whether or not the policies were delivered "as valid and subsisting contracts, without any condition of any sort attached to them." According to the testimony of Rawlings they never were so delivered. Whether or not the jury would have believed the statements of Rawlings is not a question for our consideration. [6] Instruction C, given for the defendant, is subject to similar criticism to that made of Instruction B. Instruction C was as follows: "The court instructs the jury that inasmuch as the Opinion. policy or policies in controversy in this case acknowledge receipt of the premium and recite that they were issued in consideration of that premium, the law presumes that, as between the company and the deceased, the premium was considered as fully paid. The court further tells the jury that when the said policies were delivered without requiring payment of the premium the presumption is that a credit was intended and this was a waiver of the condition of prepayment set out in the application for said policy or policies. The instruction is a correct statement of the law where there has been an unconditional delivery of the policy, but not where the delivery of the policy and the payment of the premium, or giving a note therefor, are to be coincident. The assured cannot take the policy and claim the benefit thereof without complying with his part of the contract. The instruction cut the defendant off from the benefit of the testimony of Rawlings and the written evidence on that subject. It should have stated that "the law presumes, in the absence of evidence to the contrary," etc., and left it to the jury to say whether or not they would credit the evidence offered to the contrary. The presumption was not a conclusive one, but was open to explanation; and this explanation the insurance company offered to make. [7-9] It is earnestly insisted by counsel for the assured that the insurance company is estopped from denying that the first premium had been paid because Gulley had possession of the policy at the time of his death, and the policy acknowledged the receipt of the first premium. A number of authorities are cited to sustain the proposition, and, for the purposes of this case, it may be conceded that such is the law in case of an unconditional delivery of the policy, or in the absence of any evidence on the subject of a condition. But in the case at bar, Opinion. the defendant's contention is that the policies were delivered on approval only, and that the delivery was on condition that Gulley should give his note to Rawlings for $27.41. In support of this contention the defendant offered the testimony of Rawlings, and his letter to Gulley accompanying the policies, which were sent by mail. If the jury believed the statements of Rawlings as to the circumstances of delivery of the policy, then there was no estoppel, and if they further believed that the premium had never been paid and no note had been given by Gulley to Rawlings for the amount of the premium, then there was no liability upon the policies. In other words, it was competent for the defendant to show by parol that the policies were delivered upon a condition which had not been fulfilled. If an unsealed paper, whether negotiable or not, is perfect on its face but is delivered to the payee, or any person, on condition that the instrument is not to take effect except in a given event, or under given conditions, or is only to be used for a given purpose, the condition is binding between the original parties, and in a suit between them parol evidence is admissible to show the conditions. Solenberger v. Gilbert, 86 Va. 778, 11 S. E. 789; Burke v. Dulaney, 153 U. S. 228, 14 Sup. Ct. 816, 38 L. Ed. 698; Catt v. Olivier, 98 Va. 580, 36 S. E. 980; Kelly v. Oliver, 113 N. C. 442, 18 S. E. 698; McCormick v. Faulkner, 7 S. D. 363, 64 N. W. 163, 58 Am. St. Rep. 839; Ware v. Allen, 128 U. S. 590, 9 Sup. Ct. 174, 32 L. Ed. 563. The same rule applies in this State where the instrument is sealed, as was pointed out in Whitaker v. Lane, 128 Va. 317, 104 S. E. 252, 11 A. L. R. 1157. It was not simply whether the company was estopped by the acknowledgment in the policies that the first premium had been paid, but had the policies been delivered to Gulley under such circumstances as would entitle him to rely upon Opinion. the estoppel, if there was one. The company undertook to show that there had been no such delivery. The trial court admitted the evidence on the subject, but in effect cut the jury off from its consideration by the instructions given for the plaintiff, and this we think was In concluding a discussion of waiver of agreement for prepayment, it is said in Vance on Insurance, p. 178: error. "It would seem, on principle, that in all cases where policies are put into the hands of applicants for the purpose of examination, or subject to rejection, such delivery should be considered conditional and not as constituting a waiver of condition of prepayment." Citing numerous authorities. In Mutual Life Ins. Co. v. Oliver, 95 Va. 445, 451, 28 S. E. 594, 597, it is said: "The policy not having been delivered and the blank in the application for the insurance not having been filled, there is no unequivocal acknowledgment of receipt of the premium, or any such acknowledgment of its receipt, as would estop the defendant company from proving that it had not been paid or waived. Consequently, evidence was admissible to that end, and the question propounded to the witness was one proper to be asked and answered." (Italics supplied.) [10] There is no reason why a policy of insurance should stand on a different footing from any other contract. Like other contracts, it may be delivered upon condition, and until the condition is performed the delivery is not effectual to complete the contract. Although the contract of insurance is in writing, it may be shown by parol that the delivery was upon condition, and whether or not the delivery was upon condition is a question to be determined by the jury upon the evidence submitted, including, of course, the parol testi |