WALTER H. SANBORN, Circuit Judge.
On February 4,1916, the New York Life Insurance Company, by its policy of that date, insured the life of Charles A. Rees for the benefit of his wife, Ellen M. Rees, in the sum of $4,000. Mr. Rees died on October 31, 1922. About March 4,1917, Mr. Rees was indebted to the Guaranty State'Bank of Muskogee, Okl., to the amount of about $3,150, evidenced by his promissory notes, with Natt T. Wagner as surety thereon. At that time Mr. and Mrs. Rees made an absolute written assignment of the poliey “and all dividend, benefit and advantage to be had or derived there: from, subject to the conditions of the said poliey and the rules and regulations of the company” to the bank, and delivered that assignment and poliey to it. The policy provided that its owner was entitled on application to receive from the insurance company its cash surrender value. About January 12, 1922, that value was $769.76. The bank applied to the insurance company for this surrender value, presented and delivered to the company the poliey and the written assignment of it by Mr. and Mrs. Rees to the bank, and the company paid to the bank that $769.-76 and took the policy and the assignment.
After the death of Mr. Rees) Mrs. Rees, the plaintiff, brought this action against the insurance company for the $4,000 specified in the policy. The company answered that it was not liable because the plaintiff and her husband had assigned the policy to the bank, the bank had applied for and received the surrender value of the poliey and had delivered up to it the assignment and the policy pursuant to its terms. Mrs. Rees replied, first, that the bank had no corporate authority to buy or sell the insurance poliey and, second, that, although the written assignment of the poliey to the bank was by its terms absolute, the real transaction between Mr. and Mrs. Rees and the bank, made at the time of the assignment, was a mere pledge of the policy by them to the bank to secure the indebtedness of Mr. Rees to it for about $3,150, and that the lien of the pledge had never been foreclosed by demand of payment, public notice, or proposed sale, public or private, as required by sections 4123, 8200, 8201, 8204, 8205, and 8210, of Bunn’s Compiled Statutes of Oklahoma, so that the bank had never become the owner of the poliey but remained a mere pledgee, without right to sell or surrender it. Upon these pleadings the ease was tried to a jury, which returned a verdict for Mrs. Rees.
The court submitted to the jury the question whether the assignment from Mr. and Mrs. Rees to the bank was an absolute assignment of the poliey to it or a pledge of the pol-iey to secure the payment of the debt of Mr. Rees to the bank and charged them that, if it was an absolute assignment to the bank, then it carried with it every right the assured had in or under the poliey, including the right to surrender it and to take the surrender value therefor, and that their verdict should be for the defendant; but that, if they believed and found that the bank held it merely as security for the payment of the debt due to the bank by Mr. Rees, then the defendant, the insurance company, took no better title than the bank, and they ought to find a verdict for the plaintiff. - As under "this charge the jury found for the plaintiff, they must have found that the transaction between Mr. and Mrs. Rees and the bank was not an absolute assignment or sale of the poliey, but was a mere pledge thereof to secure the debt of Mr. Rees.
The first complaint of the insurance company of the trial in this ease is that the court charged the jury that, if the transaction was a pledge and Mr. Rees did not tell the owner of the pledge or its agent to take the surrender value of the policy, the duty was imposed upon it (the owner) to make demand of Mr. Rees of the payment of the debt secured and to give notice to him, if he could be found, of a proposed sale of the property pledged in accordance with the provisions of the statutes of Oklahoma, and that, in the absence of such demand and notice and compliance with the statutes, the bank never acquired the ownership of the pledged property or the right to surrender the policy. Counsel cite many authorities in support of the general rule that a pledgee of an insurance policy may under various circumstances and laws rightfully take the surrender value of and surrender the pledged policy. The court below, however, was of the opinion that, notwithstanding the law and the rules governing under other circumstances and under various statutes the rights of pledgor and pledgee, the rights of the parties in this case must be governed and enforced in accordance with the statutes of the state of Oklahoma.. Those statutes provided :
“The sale by a pledgee of property pledged must be made by public auction.” Section 8204.
“A pledgee cannot sell any evidence of debt pledged-to him, except the obligations of governments, states or corporations.” Section 8205.
“A pledgee must give actual notice to the pledgor of the time and place at which the property pledged will be sold, at such reasonable time before tbe sale as will enable the pledgor to attend.” Section 8201.
And section 4123 provided that: “No bank shall employ its moneys, directly or indirectly, in trade or commerce, by buying or selling goods, chattels, wares or merchandise: * * * Provided, that it may sell any personal property which may come into its possession as collateral security for any debt or obligation due it, upon posting a notice in five public places in the county wherein the property is to be sold, at least ten days before the time therein specified for such sale, and which said notice shall contain the name of the bank and the name of the pledgor, the date of the pledge, the’ nature of the default and the amount claimed to be due thereon at the date of the notice; a description of the pledged property to be sold and the time and place of sale.”
At the time the pledge was made, and at the time the contract of surrender of the poliey was made, Mr. and Mrs. Rees were citizens and residents of Oklahoma, the Guaranty State Bank was a corporation of the state of Oklahoma, and the defendant, the insurance company, was a corporation of the state of New York. The contract or pledge was an Oklahoma contract; it was made in Oklahoma, and all the parties to it were citizens of Oklahoma. The contract of surrender was also an Oklahoma contract; it was made by a written request in January, 1922, by the Guaranty Bank for the surrender value of the poliey which was granted by the insurance company; and the contract was closed in Oklahoma by the delivery of the insurance company’s check for the surrender value of the poliey by its agent in Oklahoma to the Guaranty Bank and the latter’s acceptance thereof and its delivery of the policy to that agent in the state of Oklahoma. The test of the place of a contract is the place at which the last act was done essential to the meeting of the minds of the parties. Clark v. Belt, 223 F. 573, 577, 138 C. C. A. 1; Northwestern Mut. Life Ins. Co. v. McCue, 223 U. S. 234, 247, 32 S. Ct. 220, 56 L. Ed. 419, 38 L. R. A. (N. S.) 57. The last act in this case was done in the state of Oklahoma.
As these contracts were made in the state of Oklahoma, the statutes of Oklahoma relating to such pledges were as much parts of these two agreements as if they had been written into them (Armour Packing Co. v. United States, 153 F. 1,19, 82 C. C. A. 135,14 L. R. A. [N. S.] 400); and there was no error in the charge of the court that the failure of the owners of the pledge to comply with the statutes of Oklahoma as to demand, notice, and sale, left the right of the bank that of a mere pledgee without ownership or right to convey or surrender the poliey without first demanding payment of the debt and making sale of the property at public auction after the notices provided by the statutes.
The next contention of counsel for the insurance company is that the plaintiff as against it is estopped by the absolute assignment of the poliey, which she and her husband signed and delivered to the bank and in reliance upon which it paid the surrender value of the policy, from claiming or defending on the ground that the assignment was a mere pledge and that the court erred in its charge that the insurance company had no better title than the bank. The general rule of law that the owner of property who clothes another with the apparent title or power of disposition of it whereby a third party is induced to purchase or deal with it to his injury is es-topped as against the latter from denying that the apparent was not the true title is familiar and indisputable. Indispensable elements of such an estoppel are (1) intentional or careless misrepresentation of known and material facts inconsistent with the subsequent claim of the party who invokes the misrepresentation; (2) ignorance of the truth and absence of equal means of knowledge of the party who claims the estoppel; (3) action by the latter, induced by the misrepresentation; and (4) injury to the latter if the truth be permitted to be proved.
It may be that, if the defendant had pleaded as a defense to this action (1) that the plaintiff and her husband intentionally or carelessly by their assignment of the policy misrepresented the pledge they made to secure Mr. Rees’ debt to be an absolute assignment of the poliey; (2) that the insurance company was ignorant of that fact and of the truth and without equal means of knowledge of it, (3) that it acted in reliance upon the misrepresentation; and (4) thereby was induced to pay out the $769.76, the surrender value of the poliey, to its injury in that or any other substantial amount; and if it had proved the facts thus pleaded, it would have been error for the court to have instructed the jury that, if the transaction between Mr. and Mrs. Rees and the bank was a pledge, the insurance company had no better title to or equity in the policy than the bank.
Such an estoppel, however, is an affirmative defense; it ought to be pleaded; an opportunity ought to be given to the plaintiff to deny the allegations of its existence and to produce evidence in support of its denial if such an estoppel is relied upon. No such defense was pleaded in this ease. The plaintiff alleged the existence of the policy, the death of Mr. Rees, that the plaintiff was the beneficiary, and that the company had failed to pay the insurance. The defendant answered that Mr. and Mrs. Rees had made the written assignment of the policy to the bank, attached a copy of it to its answer, that the bank had surrendered the policy to the insurance company, and it had paid $769.76, the surrender value thereof therefor. It answered nothing more; it pleaded nothing more, nothing else. The plaintiff replied, among other things, that the policy was never in reality sold or assigned to the bank, but was merely pledged to it to secure a debt of Mr. Rees, and that the pledge had never been redeemed or foreclosed. The defendant made no motion to amend its answer or to plead an estoppel, and the case was tried on the issues which these' pleadings presented. When the trial ended, the evidence was substantial and preponderant that the actual transaction between Mr. and Mis. Rees and the bank was a pledge and not a sale or an absolute assignment of the policy.
Thereupon, the insurance company made a motion that the court instruct the jury to return a verdict in its favor, which the court denied. It then presented several requests for instructions to the jury, which were denied. The first of these instructions presented in the record was that the assignment was unlimited in its terms, that its legal effect was to transfer to the bank every right and benefit either Mr. or Mrs. Rees had under the terms of the policy, including the right to surrender the policy, and that, as the bank had acted under this assignment in surrendering the policy, the jury should return a verdict for the defendant. This request was properly denied, because the evidence was so persuasive and preponderant at that time that the transaction when the written assignment was made was a pledge and not an absolute assignment that the court could not take that question from the jury in that way. But the request for the instruction demonstrates the fact that at that time the insurance company still adhered to the defense which it had pleaded in its answer that the assignment was absolute and effective, and neither in that request nor in any other request for instructions, found in the record before the court delivered its charge, did the defendant present the defense of an estoppel of the plaintiff from enforcing its claim for the reasons now urged.
After the court -had delivered its charge to the jury and after counsel for the defendant had taken four exceptions thereto and made a request for another instruction to the jury, which was denied, this colloquy was had:
Mr. Sullivan, counsel for the defendant: “In connection with that we ask your honor to charge the jury that the defendant would not be- bound, in view of the terms of this assignment, by the state of affairs between Rees and the bank, with respect to the bank’s right to surrender the policy, in the absence of some showing of notice to us that the bank held the policy as collateral security.”
This was as near as the defendant came at this trial to presenting effectually by pleading and proof the defense of a personal estop-pel of the plaintiff from presenting and enforcing her claim under its policy, and it came so late and was so obscure and so inconsistent with the defense pleaded and tried that there was no error in the refusal of the court to submit it to the jury. Choctaw O. & G. R. Co. v. Jackson, 192 F. 792, 801, 114 C. C. A. 12; Louisville & N. R. Co. v. Womack, 173 F. 752, 759, 97 C. C. A. 559.
There were other complaints of this trial. Natt T. Wagner, a witness for the plaintiff, who was surety on the debt of Rees to the bank which the policy was pledged to secure, testified that in 1921 he had a conversation with Edmondson, the vice president of the bank, in which the latter agreed to hold the policy as security for him as surety so that, if he paid the debt of Rees, he might have the benefit of that security. The only objection to this testimony at the time of its admission was that it was a conclusion, and that objection was baseless.
Wagner also testified on his direct examination- that, “wanting to know what the loan value of the policy was at that time, I discussed the matter with Mr. Gaddy, the agent of the New York Life Company, asking him what the loan value of the policy would be, anticipating I would have the notes all paid up within reasonable length of time. Mr. Gaddy informed me approximately what the loan value of the policy would be. As I stated before, there was hardly ever two or three months elapsed when I passed — ” At this point counsel for the defendant said: “I object to that, you were not asked that.” And the court said to the witness: “No; do not tell that.” Counsel for the defendant in his cross-examination drew out of the witness Wagner his testimony that Gaddy was the special agent and the general agent of the defendant in its Oklahoma City office in Eastern Oklahoma, that he solicited insurance for it and settled claims and attended to all business in Eastern Oklahoma and. handled alt claims necessary to be settled out of the Oklahoma City office, and that the defendant sent the check for the surrender value of the insurance policy to Gaddy to deliver to the bank. At the close of this cross-examination, counsel for the defendant made a motion to strike out the testimony of Wagner in his direct examination which had been received without objection to the effect that he asked Gaddy what the loan value of the policy was, discussed the matter with him, and Gaddy told him about what it was, and the court denied the motion, and the defendant excepted. Counsel have exhaustively argued that this was a fatal error. But after the receipt of this evidence on direct examination without objection, and after extended cross-examination upon it, the grant or the denial of the motion to strike it out rested in the sound discretion of the court, and it does not seem to us that it committed any abuse of that discretion in its denial of the motion. Again, if it had been error to deny the motion, it would not have been a fatal or prejudicial error, but a harmless one. As we have shown the only issue of fact under the pleadings, the course of the trial, and the evidence which this evidence could have affected was the issue of sale or pledge of the policy, and there was no evidence of a sale of the policy but the written agreement, while all the witnesses, those for the plaintiff and those for the defendant, who knew and testified to the facts decisive of that issue, testified that it was a pledge and not a sale, and there is no doubt in our minds that, if this conversation between Wagner and Gaddy had been stricken out, the verdict of the jury would have been the same that it was with it in.
There were other alleged errors in the rulings on the admission and exclusion of evidence, but a studious examination of each of them has convinced that none of them if erroneous could have been so prejudicial to the defendant as to have affected in any way the verdict against it in this case, and our conclusion is that the judgment must be affirmed.