he had no authority to attach such paper to the policy. The plaintiff paid his premiums for the full period of 20 years, and then elected to take the cash surplus of $2,210.05, the amount given in the green slip. The defendant offered him $907.90, which it claimed was the surplus dividend apportioned to his policy at the completion of the tontine period, in accordance with the agreement in the policy and the application. The plaintiff refused to accept this sum, and this suit was commenced. The trial court directed a verdict for the plaintiff for $2,210.05 and interest, and a judgment for the plaintiff was entered. The defendant has brought the case here upon writ of error, and under appropriate assignments of error it urges two grounds for reversal: First. That the trial court erred in admitting in evidence the illustration blank or green slip (Exhibit II), as forming any part of the contract of insurance in the case, or as operating in any way to alter, modify, vary, or explain the terms of the contract between the parties as expressed in the policy and the application, which, taken together, constitute by their terms the entire contract between the parties. Second. Assuming the illustration blank (Exhibit II) to have been properly received in evidence, and to have been properly considered a part of the contract of insurance, its construction was for the court; and the trial court's construction of the exhibit was erroneous as a matter of law. 1. Upon the first ground it is urged by plaintiff that it clearly appears that Mr. Halsey was duly authorized to solicit this insurance, that it is conceded that he had authority to fill in the green slip with the figures taken from the book furnished by the defendant to its agents, that this green slip was furnished by the defendant over the signature of its assistant actuary, J. G. Van Cise, and that the application, the policy, and the green slip made up and constituted the contract of insurance. There is added force in this position from the fact that this paper is expressive of promises and agreements: For example, note the language contained on the back of Exhibit II. Is it clear that the words "this policy" restrict the contract to Exhibit I? Upon this subject see the language of the Supreme Court of Wisconsin in Timlin v. Assurance Society, 141 Wis. 276 (124 N. W. 253). We do not find it necessary to pass upon this question; for, if we were to hold that Exhibit II constituted a part of the contract, that holding would not be decisive of the case, for the reason that it did not constitute an agreement on the part of the defendant to pay a definite or agreed amount of surplus upon this policy. 2. If it were conceded that Exhibit II was properly received in evidence, we are of opinion that the trial court, in determining that it constituted an agreement on the part of the defendant to pay a definite or guaranteed amount of surplus upon this policy, incorrectly construed its language. We have here set out in full both exhibits I and II, that they may the more readily be construed together. A careful consideration of these instruments leads us to the conclusion that a reasonable construction of them shows that the amount of surplus is not fixed or definite, and could not be determined until the end of the tontine period, at which time it would be apportioned by the defendant, and that, if the experience of the defendant during the said tontine period should prove to be the same as its experience had been in the preceding 20 years, the surplus would amount to the estimate given, but otherwise not, and that the future alone could decide what the amount of the surplus would be, but that there would be some surplus was guaranteed. Speaking of Exhibits I and II in its charge to the jury, the trial court said: "I think these papers must be construed together, and it must be determined that under these papers, constituting the contract, the surplus was fixed at not less than $2,210.05. With that view of the testimony and the pa pers, I think the court would be in duty bound to direct a verdict here for that amount, plus the interest." We cannot agree with the trial court in this construction. That the plaintiff was bound to know the contents of Exhibit II is very clear. Cleaver v. Insurance Co., 65 Mich. 527 (32 N. W. 660, 8 Am. St. Rep. 908); Cook v. Insurance Co., 84 Mich. 12 (47 N. W. 568); Avery v. Assurance Society, 117 N. Y. 451 (23 N. W. 3). The construction of Exhibit II by the trial judge overrides the following express statements: "The surplus (popularly known as 'profits' or 'dividends'), which is a varying quantity, depending on future experience. * * * The surplus is guaranteed also, but its amount cannot be determined in advance. Calculations, however, based on the experience of the past, show approximately the surplus profits which would be payable with such a policy, if it had been issued by the society 10, 15, or 20 years ago, and ended its tontine period today. While the results of the future must necessarily depend on the experience of the future, figures based on past experience furnish the best attainable data upon which to judge of the management of the society, and the value of policies now offered." We think that the clear weight of authority is against the construction of the trial judge. We have examined the following cases cited by counsel for defendant, and they support the position claimed for them: Avery v. Assurance Society, supra; Grieb v. Assurance Society (C. C.), 189 Fed. 498, affirmed in 194 Fed. 1021, 114 C. C. A. 658; Langdon v. Insurance Co., 199 N. Y. 188 (92 N. E. 440); Untermyer v. Insurance Co., 128 App. Div. (N. Y.) 615 (113 N. Y. Supp. 221). We have not the space to quote from these authorities, as we might do with profit. The plaintiff relies upon and cites the cases of Timlin v. Assurance Society, supra, and Equitable Society v. Meuth, 145 Ky. 160 (140 S. W. 157). In Timlin v. Assurance Society, supra, a life policy in the usual form contained a printed provision that, on the completion of the tontine dividend period, insured might continue the policy for the original amount and apply the tontine dividend to the purchase of an annuity. Plaintiff brought action to enforce his claim, alleging that it had been stipulated in the agreement that the annuity, beginning at $53.47 and increasing annually, should be for life, and that he was entitled to its value, namely $750. It is clearly pointed out in the opinion that the option selected by the plaintiff contained a promise of a life annuity, beginning with $53.47 and increasing annually. That case can be distinguished from the instant case in several important particulars: There the paper corresponding to Exhibit II here read as follows: The Nonforfeitable and Incontestable Semi-Tontine Policy. [These estimates are the authorized figure of the Society.] Policy $1,000.00. Age 34. Annual premium, $33.26. Total cost in 20 years, $665.20. Kind of policy, life in 20 payments: tontine 20 years. If policy holder is alive and policy is in force at the end of tontine period, you are then entitled to either of the following options: 53.47 (3) Take a life annuity, increasing annually, begin ning with --- And besides have your original policy carried till death, free of cost, for $1,000.00 This pays you per cent., simple interest, or 4.40 per cent., compound interest; besides you have been insured 20 years for $1,000.00 without cost. Along the side of this smaller sheet was the following: "Tontine is a premium on living, not on dying. The best insurance ever devised for successful men. No technicalities-if we insure you, we will pay your claim." It will be noted that, while the word "estimates" occurs in the heading of this paper, the only item in it which is specially stated to be estimated is the "guaranteed surplus." That suit was not for surplus, but for the annuity mentioned. The language was: 66 (3) Take a life annuity, increasing annually, beginning with $53.47." There was no reference to a basis upon which the estimates were calculated; no warning that the amount of surplus "cannot be determined in advance," or that "the results of the future must necessarily depend on the experience of the future;" no declaration in any of the papers that "no dividend will be declared on this policy" until the end of the tontine period. We do not think that case controlling here. In the case of Equitable, etc., Society v. Meuth, supra, it appeared that the figures stated in the contract were not estimates at all, but were absolute statements of amounts, fixed and definite, as follows: "A choice of six methods of settlement upon the completion of the tontine period on the 23d of October, 1910, namely: (1) The surrender of the policy for its full value, consisting of the entire reserve, amounting to $456, together with the surplus then apportioned by the society, $544, either in (1) cash, $1,000; (2) paid-up assurance, $2,000; (3) a life annuity; or (II) the continuance of the policy and the withdrawal of the accumulated surplus, either in (1) cash, $544; (2) paid-up assurance, $1,000; (3) an annuity." The cash surplus of $544 was sued for. In the list of privileges indorsed on the back of the policy the figures "$544," "$2,000," "$544," and "$1,000," were written in pencil. Meuth testified that when he received the policy by mail it contained those figures. The defendant did not plead any attempted spoliation of the policy. It did not deny the issuance of the policy, and the court held that its answer put nothing in issue, except the effect of the contract, and the plaintiff recovered, and the judg |