This is an action on a note executed by W. A. Griffin to R. M. Carter, or order, for the sum of $78.96, on the second day of September, 1903, and due on the first day of December, 1903, and transferred by Carter to RI. L. Remmel. The action was brought by Remmel against Griffin.
The defendant, answering, admitted the execution of the note, but alleged that it was given in payment of the-first year’s premium on a policy of insurance, and that the policy delivered was not such as that for which he contracted.
*270In the trial before a jury the defendant testified as follows: “About the first of September, 1903, R. M. Carter, an agent of the insurance company, sold me a policy of insurance. It was to be a ten-pay policy for $2,000. I executed the note sued on, * * * gave this note in payment of the first premium on the policy I was to receive. Relying upon the agent to give me the policy promised, I signed the application without reading it to see what kind of a policy it called for, further than to see that it was a ten-payment polic3r. I did not examine the policy when it came to see if it was the kind promised, but signed the receipt attached to the deposition of Mr. Rewis without reading or examining the policy. I did not examine the policy until a month or so after I received it, and then for the first time noticed that it was not a ten-pay policy, as I had expected, but instead it was a twenty-pay twenty-year distribution policy. I returned the policy in a few days, but Mr. Carter returned it to me, advising me that it could not now be canceled, as it was in force for one year, and that the note, which was then due, would have to be paid. I am 40 3rears old, a tie contractor by occupation, and can both read and write with ease.”
The court, instructed the jury over the objection of the plain-, tiff as follows:
“Gentlemen of the Jury: This is an action on a note given by the defendant for the first year’s premium on a policy of insurance. There is no controversy as to the execution of the note, but it is contended by the defendant that the policy that was delivered to him was not such a policy as he contracted for, and which the agent promised him. If you believe from the evidence that the policy delivered to the defendant was not the class of policy promised him by the agent, and that he returned the policy to the agent within a reasonable time after he discovered that it was not the kind promised him, then you will find for the defendant. Upon the other hand, if you find' by a preponderance of the evidence that the defendant did not return' the policy within a reasonable time after he discovered that the policy delivered was not what he contracted for, then in that event you will find for the plaintiff the amount of the note sued on with interest as stipulated therein.”
*271The jury returned a verdict in favor of the defendant; and the plaintiff appealed.
About the first day of September, 1903, appellee contracted with “The Mutual Life Insurance Company of New York” for a policy of insurance. He executed his note to Carter, the agent of the insurance company, for the first year’s premium on the policy, due on the first day of December following. On the 31st day of October, 1903, he received from the insurance company a- policy. It was his duty to examine the policy in a reasonable time after he received it, that is in such a time as he could have done so, and if he rejected it to so inform the insurance company or its agent; and, failing to do so, he is deemed to have accepted it and is liable upon his note. After such acceptance he can not avoid the payment of his note on the ground that he did not read the policy, unless he was induced by the insurance company, or its agent, not to do so. New York Life Ins. Co. v. McMaster, 87 Fed. Reporter, 63. The instruction of the court was erroneous and prejudicial.
Reverse and remand for a new trial.