#### RORY BARNES, Adm’r. v. THE PEIDMONT & ARLINGTON LIFE INSURANCE COMPANY.

The intestate of the plaintiff contracted with the agent of the defendant for the insurance of his life. The agent agreed to insure his life-for a period of six months, in the sum of five thousand dollars, in. consideration of the payment of the sum of fifty dollars. The intestate paid to the agent forty-five dollars. No written application for a policy was ever made, and no policy was ever issued. The balance of the fifty dollars was never paid, and no reason was assigned for the failure to pay the same. Upon a demurrer to the complaints *It was held,*that the plaintiff was not entitled to recover.

Civil actioN, tried upon demurrer, before Buxton, Jat. 'Spring Term, 1875, of Haskett Superior Court.

The complaint alleged: That J. B. Barnes is dead and the plaintiff has been duly appointed, and qualified as his administrator.

That on or about the 25th day of June, 1873, the intestate-of the plaintiff, and the defendant through its authorized agent agreed, that if the intestate would pay the defendant the sum of fifty dollars, the defendant would insure the life of the intestate for a period of six months, and in case the intestate should die within said period, the defendant would pay to the personal representative of the intestate, the sum of five thousand dollars.

That shortly after this agreement, the intestate paid to the defendant, through its agent, about forty-five dollars, all that, he agreed to pay, except $5.67, which was received on^said agreement by the defendant, and no part thereof has ever oeen returned, either to the intestate during his lifetime, or the. plaintiff since his death.

That before the expiration of said six months, the intestate-died, and the defendant was notified of his death, and demand duly made upon the plaintiff to pay the five thousand dollars,, or a ratable part thereof, which the defendant refuses to do.

*23That no policy of insurance was ever issued by tbe defendant to tbe intestate, and if any written application was ever made by tbe intestate to tbe defendant, tbe plaintiff bas no copy of it, and bas never seen tbe same.

To tbis complaint tbe defendant demurred, upon tbe ground that it did not state facts sufficient to constitute a cause of action:

1. In tliat it does not set forth in said complaint tbe application made by said J. B. Barnes, wliicb is a material and necessary part of tbe contract, if any, made between the parties, and tbe basis of said complaint, 4,nd tbe plaintiff should allege and prove the truth thereof.

2. That said complaint does not allege that tbe first premium was paid by tbe plaintiff’s intestate, or a proper receipt from any authorized agent of tbe company given therefor.

3. That said complaint dees not allege that any policy was ever delivered to tbe plaintiff’s intestate, or that be was le" gaily entitled thereto, and such allegation is a material and necessary part of said complaint, to show that any contract was in fact or in effect consummated or entered^into by tbe said parties.

Upon tbe bearing, his Ilonor in the court below, sustained tbe demurrer, and gave judgment in favor of tbe defendant; thereupon the plaintiff appealed.

*Merrimon. Fuller <& Axhe,*for tbe appellant.

No counsel in tbis court, *eon ira.*

Settle, J.

Tbe demurrer must be sustained. The plaintiff does not allege that bis intestate complied with bis contract, or that be offered to do so.

By tbe contract the intestate agreed to pay tbe defendant “ fifty dollars,” as a consideration for a policy of insurance on bis life for six months. He paid only for1y-five dollars, and gives no excuse for bis failure to pay tbe full amount.

*24The complaint states that no policy of insurance "was ever issued by the defendant to the intestate; and that if any written application for insurance was. ever made by the intes* tate to the defendant, the plaintiff has no copy, and has never seen the same. As the intestate failed to comply with his part of the contract, his representative cannot call upon the defendant to perform his part.

The judgment of the Superior Court is affirmed.

Per Curiam. Judgment affirmed.