Suit on an industrial life insurance policy brought by the beneficiary after the death of the insured. Plaintiff had verdict and judgment for $147.18, being the amount payable under the policy, eighty-six dollars, and interest, and fifty dollars as damages and attorney’s fee for vexatious delay in paying, and the defendant has appealed, assigning as error the trial court’s action in peremptorily instructing the jury at the closé of all the evidence that their verdict must be for the plaintiff for the amount payable under the policy, with interest, and in submitting to the jury the question of whether the defendant was guilty of vexatious delay in paying; also the action of the court in excluding certain evidence offered by the defendant.

At the trial the plaintiff made a showing sufficient to establish prima facie her right to recover, and we are satisfied from reading the record that such showing was not controverted, but was expressly or tacitly conceded by defendant to be true. The trial court was right, then, in giving the peremptory instruction for plaintiff, unless there was evidence tending to prove a valid affirmative defense. There was no pleading filed on behalf of the defendant, the case having originated before a justice of the peace, but the policy provided that the insurer assumed no liability unless the insured was “in sound health” on the date there*237of, and we gather from the colloquy between the court and counsel that the sole theory of defense, as defendant’s counsel presented it and the court understood it, was that said provision was a condition precedent, necessary to be complied with before the policy became operative, and that our statute (Sec. 6937, R. S. 1909), declaring what misrepresentations made in securing a policy are immaterial, was not applicable. This theory was unsound and the trial court very properly rejected the defense sought to be based upon it. [Salts v. Prudential Ins. Co., 140 Mo. App. 142, 120 S. W. 714; Frazier v. Metropolitan Life Ins. Co., 161 Mo. App. 709, 141 S. W. 936.] But if it be conceded that the defendant sought to base its defense upon the theory that the provision in the policy was a material misrepresentation within the meaning of the statute, still that defense was not valid and the court properly rejected it, because the defendant did not deposit in court, for the benefit of the plaintiff, the premiums received on the policy. [R. S. 1909, Sec. 6940.] It is clear, then, that as plaintiff’s prima facie case was in effect conceded to be true and no sound or available defense was presented, the trial court did not err in giving the peremptory instruction to find for plaintiff for the amount payable under the policy, with interest to be ascertained by the jury. And, of course, it did not err in excluding the evidence offered in support of such unsound theory or invalid defense.

We are also satisfied that, under the facts and circumstances of this case, the question of vexatious delay on the part of the defendant in paying this death claim was one of fact to be determined by the jury, and was properly submitted to them. [R. S. 1909, Sec. 7068; Keller v. Home Life Ins. Co., 198 Mo. 440, 95 S. W. 903.]

The judgment is affirmed.