
    [No. 21100.
    Department Two.
    July 2, 1928.]
    Bernard J. O’Reilly, Respondent, v. Julia Hess Miller, Appellant.
      
    
    
       Appeal (418) — Review—Findings. Findings on conflicting evidence will not be disturbed on appeal unless against tbe preponderance of the evidence.
    
       Money Paid (4) — Defenses—Deductions From Premium Paid by Insurance Agent. Where insured agreed to repay the insurance agent the amount of a premium advanced for him, his liability to the agent is not affected by the fact that the agent paid the premium less his commission, due him from the company for writing the insurance.'
    Appeal from a judgment of the superior court for Kang county, Griffiths, J., entered November 23, 1927, upon findings in favor of the plaintiff, in an action on contract, tried to the court.
    Affirmed.
    
      Howard O. Durk, for appellant.
    
      George F. Hannan, for respondent.
    
      
       Reported in 268 Pac. 869.
    
   Askren, J.

The facts in this ease are substantially as follows: Respondent in 1924, as agent of the New World Life Insurance Company, wrote a policy on the life of appellant in the sum of $5,000, the yearly premium, being $321.80. Appellant did not pay the premium and returned the policy to respondent about ninety days thereafter, whereupon he went to see appellant and explained that he would not accept its return. After some conversation, in which it developed that appellant was not financially able at the time to pay the premium, it was agreed that respondent should pay the same to the insurance company and appellant keep the policy and later pay respondent. Respondent paid the insurance premium to the company, the policy was in force for a year, and he then brought suit to recover, with a favorable result.

Upon appeal, two errors are assigned: First, it is urged that the evidence did not warrant a recovery, inasmuch as there was not a sufficient showing that the premium was paid at appellant’s request. The record, upon examination, discloses that the evidence is conflicting, and under our repeated holdings we cannot reverse the judgment unless it preponderates against the findings of the trial court. This it does not do.

Secondly, it is urged that respondent did not pay the full premium to the insurance company. It appeared from the testimony that respondent was entitled to a commission from the insurance company for writing the policy issued to appellant, and that, when respondent made payment to the company, he paid the amount of the premium, less his commission. Therefore it is urged that the only amount recoverable from appellant is the actual amount paid in cash to the company.

Appellant, however, is not interested in the question of whether respondent actually paid any cash at the time to the company or not. His dealings might have been such that the company owed him, rather than he owdng the company. A cancellation of mutual obligations would be sufficient to discharge the premium debt.

The fact remains that appellant owed the company $321.80; that respondent agreed to, and did, pay and discharge the same. It follows that appellant is liable.

Judgment affirmed.

Fullerton, C. J., Holcomb, Beals, and Parker, JJ., concur.  