after stating the facts as above, delivered the opinion of the court.

With one exception, all of the alleged errors which are assigned upon the record and discussed in the briefs were abandoned by counsel representing the defendant company during the progress of the oral argument, for which reason it only becomes necessary to consider a single exception to the charge which was taken at the trial, and is still relied upon as a ground for reversal. That portion of the charge to which the exception was addressed is as follows:

“If tbe insured paid to tbe defendant tbe amount of tbe call or assessments made November 1, 1894, within tbe general range of time within wbicb for some years be bad paid them', then tbe defendant bad no right to complain of tbe same, and is-estopped from asserting any forfeiture of said poli*63cíes becavise of such delay in payments; and, if you find the facts aforesaid, then the defendant had no right 1o impose any additional burden or conditions upon the insured by reason of such delayed payments; and in such event the conditions as to health found on the back of receipts sent by the defendant to the insured for money paid for the November calls or assessments were without consideration and void.”

Before giving the instruction last quoted, the trial court had charged the jury, in substance, as follows: That the issues raised by tne pleadings in the case were whether the defendant company-had waived the provision of its policies or certificates requiring mortuary assessments to be paid within 30 days after the date of the notice of assessments, and whether the health of the insured had become impaired, in the manner alleged, prior to December 19, Í894, when he paid mortuary call No. 129, which was levied on November 1, 1894; and that if the jury believed that the defendant company for a period of three years or more prior to November 1, 1894, had been in the habit of receiving payments of assessments from members more than 30 days after the date of the notice of assessment, and by such mode of dealing had induced the deceased to believe, and had given him sufficient reason to believe, that it did not insist upon the payment of assessments within the 30 days limited in its certificates, then the jury were at liberty to find that prior to November 1, 1894, the defendant company had waived or abandoned the provision of its contracts requiring assessments to be paid within 30 days after the notice thereof bore date. No exception was taken to this part of the charge, and with respect thereto no error is assigned.

In this state of the record, it is manifest, we think, that the exception to the charge which is now relied upon is of no avail, and should be ignored. The jury evidently found under that portion of the charge to which no objection was made, and upon abundant evidence, that the forfeiture clause of the certificates which was pleaded and relied upon by the defendant company liad been waived prior to November 1, 1894, and was not thereafter a binding provision of either of the two certificates. This left the contracts between the insured and the insurer without any forfeiture clause for the nonpayment of assessments, unless from the conduct of the parties a new or modified agreement might be implied, to the effect that the certificates should become null and void if the assessments levied thereon were not paid within 45 days, instead of 30 days, after the date of the notice of assessment. We need not stop, however, on the present occasion, to inquire whether such a change in the terms of the original contracts between the insured and the insurer might have been fairly implied from the conduct and dealings of the parties as developed by the testimony, for no such modification of the terms of the contracts was pleaded. In its answer to the complaint, the defendant company based its defense solely on the ground heretofore stated that the two certificates in question became null and void on November 30, 1894, by reason of the nonpayment of assessment No. 129 on or prior to that day, and it did not suggest in its answer, in any form, that that clause of the contracts requiring payments to be *64made within 30 days had become a dead letter prior to November 1, 1894, and that, in lien thereof, the parties had substituted a new forfeiture clause, although such was the position which the defendant company attempted to assume during the progress of the trial. As it was in duty bound to do, the trial court confined the defendant to the issues which it had raised by its plea; and the excerpt from the ■ charge above quoted, to which an exception was saved, when read in connection with what preceded it and considered in the light of the pleadings, clearly did the defendant no harm, and is not subject to just criticism. The judgment of the circuit court is therefore affirmed.