It is apparent from the evidence in this case that the defendant had repeatedly accepted payments of installments of premiums from the insured after the same were overdue, and, in some instances, after the grace period had expired, and continued to retain them. We pass the question whether the defendant company could be bound by a custom of the local camp with regard to the acceptance and retention of these premiums or with regard to the manner in which they were transmitted to the defendant. The point pressed by plaintiff, in so far as we can see it, is whether or not the defendant itself, through its authorized agent or through its own receipt of premiums and retention of the same, had not adopted a course of dealing between itself and the insured upon which the plaintiff might have the right to rely.
It is to be noted here that apparently all the insured person had to do to restore himself fully to all the privileges of the local Camp, as well as the protection of the insurance, was to pay, while in good health, the installment for want of which he had been suspended. There seems to be no contention here by the defendant that insured was not in good health at the time he paid the last premium.
According to the evidence, this premium was overdue from 1 November to 8 December. The insured died nine days thereafter. It seems highly probable that except for the information of the death of the insured, contained in the proof of death, the defendant would have retained the payment in token of waiver of its nonpayment at the time when it was due, and in token of the automatic restoration of the insured to all the rights of the Order and the protection of the insurance.
Nothing in plaintiff’s evidence would justify taking the case from the jury on the theory that insured met his death while in violation of law.
Ordinarily exceptions to the exclusion of evidence are not tenable here unless a record is kept of what the witness would have sworn, so that *568the Court may judge of its materiality. Whether that rule is invariable we do not have to consider, since under a retrial a different mode of developing plaintiff’s case may be adopted.
Considered in its most favorable light to the plaintiff, we think the evidence should have been submitted to the jury.
The judgment of nonsuit is, therefore,
Reversed.