
    Fry v. The Franklin Insurance Company.
    Error to the Superior Court of Cincinnati.
    Lincoln, Stephens S? Slattery, for plaintiff in error.
    
      Ramsey <f* Matthews, for defendant in error.
   By the Court.

F. sued the F. I. Co. upon a policy. ' The answer alleged that the loss occurred after the policy had become void because the premium note was not paid when due. The reply charged that the company sent the note after the default to T. for collection; that T. directed the defendant to continue said insurance and guaranteed the payment of said premium, to which the defendant assented. On trial of this issue F. gave in evidence T.’s letter to defendant reading: “ Continue the policy in force and we will guarantee the payment of the note.” Also evidence showing the course of dealing and correspondence between T. and the defendant. This shows that the defendant made no reply to said letter, but wrote him several letters on other matters during the interval prior to the loss. F. having rested, the court, on motion of the defendant, toot this issue from the jury.

Held: This was error. T.’s letter did not in terms, or by necessary implication under all the circumstances, call for a reply if the defendant assented thereto. The court should have submitted (under suitable instructions) to the jury the question: “ Did the defendant assent to T.’s proposal?”

Judgments of the superior court at general and special terms reversed and cause remanded.  