This case has been before the court on two former occasions, and the opinions are reported in 99 Mich. 401, and in 105 Mich. 329. Practically the,only question is whether, on the last trial, the circuit judge followed the opinion of Mr. Justice Grant in 105-Mich. 329. The circuit judge left it to the jury to say whether the new arrangement, by which the new policy was to take the place of the old, was perfected and complete, and whether it was waived by the company afterwards. We think these questions were properly submitted to the jury. It was said by Mr. Justice Grant in the former opinion that—

“The collection of the note cannot be held to have operated as a waiver of the new agreement, if there was one, and to have conclusively established the restoration of the first policy. It became, therefore, a question of fact for the jury to determine, whether, under all the evidence, such an agreement was made, and whether it was in force.”

The jury might well have found that the parties did not intend that the agreement for the new policy should take effect until the note was delivered up; and the collection of the note, while not a conclusive evidence of waiver, under the circumstances, was some evidence of it, unless the court be bound to accept the explanation given by defendant’s witnesses. But we think, when the acts of the parties are in any way inconsistent with their present testimony, and particularly when one of the parties to the transaction is dead, it is proper to allow the jury to determine whether such inferences are overcome by the testimony given.

The judgment will be affirmed.