Several assignments of error which are discussed at considerable length in the briefs of counsel do not need attention because of the conclusions we have reached on the main question in the case, that is, whether the note was taken in payment of the first premium upon the policy. We shall discuss that question, assuming for the purpose of it that the policy was delivered to McDonald to be retained by him.

It is conceded that Harris was a general agent of the society, not a mere local agent, and as such had authority, at the time of the delivery of the policy, to bind his principal by an agreement waiving the provision of the policy calling for actual payment of the first premium thereon as a condi*217tion precedent to its going into effect; so we need not take time to discuss -any question in that regard. The authorities are in substantial harmony in respect to the subject. Joyce, Ins. § 77, and notes. It is also conceded that the condition of the policy, as to its not going into effect in advance of actual payment of the first premium, is fatal to plaintiff’s right to recover unless it was waived by the assurer through its agent, Harris, and that whether there was such a waiver depends on whether McDonald and Harris expressly agreed that the former’s note, given with his application for the insurance, should operate as such payment. The trial court rightly so held, though several dependent questions were submitted to the jury for decision in addition to one covering the vital point in the case. The jury found in plaintiff’s favor on such point, also that down payment of the first premium was waived. That is, they said the note was taken by the society as a down payment of the first premium, and that such payment was vs;aived. The literal sense of the language used in the two findings is conflicting; but it is reasonable to suppose that the jury intended to say that payment of the first premium in money was waived and that the note was taken in lieu thereof. We so interpret the verdict.

It follows that a negative answer to this simple question requires a reversal of the judgment appealed from: Was there any credible evidence tending to show that it was expressly agreed between McDonald and Harris that the former’s note should be considered as an actual payment of the first premium upon the policy ? It has sometimes been said in legal actions that where there is any evidence to establish the existence of a fact and there is also evidence to the contrary, a question is presented for solution by a jury, and that their determination, affirmed by the trial court by a refusal to set aside the verdict and grant a new trial, cannot be disturbed on appeal. That is misleading as the language is *218often understood. Evidence does not tend to establish a fact in a legal sense unless it reasonably points to the probable existence thereof, and so as to produce conviction, to a reasonable certainty, in the mind of a person of common sense, that it does exist. Facts can properly be determined by a jury only by applying human reason and common sense to evidence. Every such determination should be based on reasonable probabilities established by evidence, not on mere possibilities or conjectures. O’Brien v. C., St. P., M. & O. R. Co. 102 Wis. 628.

In considering this case there must be kept prominently in mind the settled rule that the taking of a note for the debt of the maker, whether such debt be created at the time of such taking or prior thereto,grima facie makes the note only evidence of the indebtedness, and that such rule must prevail in the absence of evidence establishing an express contract malting the note a payment of the debt. Aultman & Co. v. Jett, 42 Wis. 488. There must also be kept prominently in mind the rule that an express contract is one where the parties to it state in writing or verbally the terms thereof. 1 Parsons, Contracts (8th ed.), 7, note 1. Such a contract can only be established by evidence sufficient to produce conviction, to a reasonable certainty, that the terms of it were stated between the parties and agreed upon,— not conviction in the mind of a reviewing court, but in the mind of any person exercising common sense to discover the truth from the evidence.

Applying the rules indicated, we have been unable to discover in the record any evidence to support the finding of the jury that an express contract as to the taking of the note in payment of the first premium upon the policy was made. There was not a word of evidence from the mouth of any witness to that effect, nor any circumstance that is not just as consistent with the view that the note was taken as mere evidence of indebtedness, as with the view that it *219was taken as payment of the premium. The burden of proof to establish the claim that the note was received as a payment of the premium was on plaintiff, and, while an express-contract may be established in whole or in part by circumstantial evidence (Leitgabel v. Belt, ante, p. 107), mere circumstances that point one way as reasonably and significantly as the other are insufficient for that purpose. In such a situation the controversy should not be submitted to the jury. It involves a question calling for the exercise of the judicial function to declare the right as a matter of law. But if the-question is submitted to a jury and they be permitted to-guess or conjecture as to where the truth lies, if the result is contrary to the legal conclusion which the court should declare, it ought not to be allowed to stand as a correct determination of the rights of the parties. Hyer v. Janesville, 101 Wis. 371; Cawley v. La Crosse City R. Co. 101 Wis. 145. It is often said, and is the settled law, that where there is but one reasonable inference it is the duty of the court to draw it as a matter of law; but where the evidence will admit of conflicting reasonable inferences the proper inference is to-be drawn by the jury. It is just as true that, where there-are conflicting reasonable inferences and the situation will not reasonably admit of a decision that those pointing one-way preponderate over those pointing the other, as a matter of law the case, from the standpoint of the party on whom the burden of proof rests, fails, and the question presented for decision is one of law for the court.

Counsel for respondent point with confidence to the memorandum on the note to the effect that it was to be returned if not accepted, and the evidence that the note was taken “ to-tie McDonald up.” Neither such circumstance nor such evidence shows or tends to show that the parties expressly agreed that the obligation to pay should be deemed an actual payment. Such evidence, direct and circumstantial, at most indicates an agreement that McDonald would pay the first *220premium at the due date of the note,— not that the note should be equivalent to such payment. That such was the actual understanding is evidenced by the fact that the customary receipt for the first premium, given to policy holders upon making payment thereof, was retained by Harris with the note to be delivered to McDonald upon his paying the same. The evidence shows that the extension of the time for payment of the note to November 15, 1898, was made as an extension of time for payment of the first premium upon the policy. The bank that held the note for collection was informed by Harris that the time for the payment ■of the first premium was extended to November 15th, and at the same time the receipt referred to was delivered to the bank with directions to turn it over to McDonald upon his paying the note. The provision in the policy, postponing its effect as an insurance contract till payment of the first premium, contemplated a delivery of the policy to McDonald subject to such provision, so that in case of payment of the first premium not being made till a later day the liability of the society would be postponed accordingly. ■So the delivery of the policy in advance of payment of the first premium does not point to the probability of a waiver •of the provision that the liability under such policy should not antedate actual receipt by the society of such premium in money, nor does any other evidence that we can find in the record.

Further discussion of the case seems to be unnecessary. As we view the evidence there was an entire failure of proof to show that Harris and McDonald agreed that the note should be considered as a cash payment of the first premium or in lieu of such cash payment, hence that the motion of appellant for the direction of a verdict should have been granted.

By the Gourt.— The judgment appealed from is reversed, and the cause remanded for a new trial.