Guarantee Fund Life Ass'n v. Barclay , 11 S.W.2d 231 ( 1928 )

On Motion for Rehearing.

The evidence in this ease established that as soon as appellant learned that appel-lee objected to the policy issued on the rated-up basis and refused to accept same, it notified appellee by wire that it could not issue to him a policy on the standard basis as applied for; and appellee was so notified in ample time to have continued in good standing his similar $10,000 policy with the ¿Etna Ufe Insurance Company, if he so desired. In fact, the jury found that after appellee learned that appellant refused to issue him a policy at a standard rate, he did not use reasonable diligence to keep his policy with the ¿Etna Life Insurance Company in force. So if appellee sustained any damages by reason of the card being sent out by mistake, it was because he elected to rely .upon what he claimed was an acceptance of his application, after he had been notified that it had not and could not be accepted as written and that said card was sent by mistake, rather than protect himself by keeping the ¿Etna policy in force. We do not think he is entitled to any relief upon the ground of estoppel. ‘ '