It is also true, however, that, in cases where there is any point made as to whether the books tendered constitute all of the books, or as to whether they contain complete records of the business, or are substantially incomplete, the matter is for the jury. American Casualty Co. v. Cohen, 40 Ga. App. 593, 151 S.E. 56; Ætna Ins. Co. v. Fitze, 34 Tex. Civ. App. 214, 78 S.W. 370; Ætna Life Ins. Co. v. Johnson, 127 Ga. 491, 56 S.E. 643; German Ins. Co. v. Pearlstone, 18 Tex. Civ. App. 706, 45 S.W. 832; Liverpool London Globe Ins. Co. v. Ellington, 94 Ga. 785, 21 S.E. 1006. In view of the charges of fraud and procurement in regard to the fire, in view of the loose-leaf character of the documents relied on, in view of the testimony of after prepared books, we think it was for the jury to say whether they believed the evidence of the plaintiffs that the memoranda offered constituted all of their documents and memoranda, and whether they presented, in substantially complete form, evidence from which the state of plaintiffs' business could be fairly determined.

The provision in the application and policy, to the effect that the policy should not become effective until the first premium should be paid during the good health of the insured, was valid and binding as a condition precedent. Person v. Ætna Life Ins. Co. (C.C.A.) 32 F.2d 459, 466; Ætna Life Ins. Co. v. Johnson (C.C.A.) 13 F.2d 824; Mutual Reserve Fund Life Ass'n v. Farmer, 65 Ark. 581, 47 S.W. 850. This court, in Person v. Aetna Life Ins. Co., supra, says: "From this review of the Arkansas decisions we think it is clear that in that state the validity of a condition precedent clause in an insurance policy such as we have discussed is fully recognized.

This provision was also written in the policy. Appellant concedes that it is a valid and binding provision, MacKelvie v. Mutual Benefit Life Insurance Co. (C.C.A.) 287 F. 660; Ætna Life Insurance Co. v. Johnson (C.C.A.) 13 F.2d 824; but contends that it cannot defeat a recovery in this case, because there was a waiver of the payment for which it provided. She further contends that, upon the delivery of the policy to the local agent, the company charged him with the premium, and this was equivalent to payment within the meaning of the provision.

There was substantial compliance by plaintiff, which was sufficient. 14 R. C. L. 1141; 3 Joyce on Ins. (1917) 3490; 9 Ann. Cas. 467 note; 28 C. J. 254; Malin v. Martinstown Ins. Co., 105 Mo. App. 625, 80 S.W. 56; Ætna Ins. Co. v. Johnson, 127 Ga. 491, 56 S.E. 643, 9 L.R.A. (N.S.) 667, 9 Ann. Cas. 461; Standard F. Ins. Co. v. Willock (Tex.Civ.App.) 29 S.W. 218; Brown v. Palatine Ins. Co., 89 Tex. 590, 35 S.W. 1060; German Ins. Co. v. Pearlstone, 18 Tex. Civ. App. 706, 45 S.W. 832; McNutt v. Virginia F. M. Ins. Co. (Tenn.Ch.App.) 45 S.W. 61; J. B. Clark Sons v. Franklin Ins. Co., 130 La. 584, 58 So. 345; Penix v. Am. Cent. Ins. Co., 106 Miss. 145, 63 So. 346. GARDNER, J.

Although Dallas is correct that an insurer can waive a payment condition, see Bearup, 172 S.W.2d at 946;accord Person v. Aetna Life Ins. Co., 32 F.2d 459, 461 (8th Cir.1929) (“ ‘It is a rule generally adopted in the United States courts that, if a policy of life insurance provides that it is not to take effect until the first premium is paid, recovery cannot be had upon the policy, when it appears that the premium was unpaid at the date of the death of the insured, unless it appears that payment was waived by action of the insuring company.’ ” (quoting Aetna Life Ins. Co. v. Johnson, 13 F.2d 824, 825 (8th Cir.1926))), or issue a policy on credit, see Chailland v. M.F.A. Mut. Ins. Co., 375 S.W.2d 78, 81 (Mo.1964) (en banc), Dallas has failed to adduce sufficient evidence to enable a reasonable jury to find American General waived the payment provision or issued Dallas's policy on credit. Dallas's policy stated the initial premium was due June 28, 2010, with no grace period.

One who deals with an agent must look to his authority; and one who deals with a mere soliciting agent of an insurance company may not rely upon his authority to waive conditions of a policy, especially where the policy itself gives notice of the limitation of his authority. See Pennsylvania Casualty Co. v. Bacon, 2 Cir., 133 F. 907; Aetna Life Ins. Co. v. Johnson, 8 Cir., 13 F.2d 824; Aetna Life Ins. Co. v. Roewe, 7 Cir., 38 F.2d 393; Inter-Southern Life Ins. Co. v. McElroy, 8 Cir., 38 F.2d 557; Newsom v. New York Life Ins. Co., 6 Cir., 60 F.2d 241. For the reasons stated, we think that verdict should have been directed for defendant; and the judgment appealed from will accordingly be reversed.

The construction of a provision in an insurance contract, not prescribed by statute but the result of independent agreement between the parties thereto, is a question of general commercial law on which the federal courts may and should exercise an independent judgment. Black White Taxicab Transfer Co. v. B. Y. Taxicab Transfer Co., 276 U.S. 518, 530, 48 S. Ct. 404, 72 L.Ed. 681, 57 A.L.R. 426; Washburn Moen Mfg. Co. v. Reliance M. Ins. Co., 179 U.S. 1, 15, 21 S.Ct. 1, 45 L.Ed. 49; Carpenter v. Insurance Company, 16 Pet. 495, 511, 10 L.Ed. 1044; Odegard v. General Casualty Surety Co. (C.C.A.8) 44 F.2d 31, 38; Aetna Life Ins. Co. v. Johnson (C.C.A.8) 13 F.2d 824, 825; Maryland Casualty Co. v. Nellis (C.C.A.6) 75 F.2d 23, 25; Pendleton v. Pan American Life Ins. Co. (C.C.A.6) 56 F.2d 935, 937; Davis v. Jefferson Standard Life Ins. Co. (C.C.A. 5) 73 F.2d 330, 333, 96 A.L.R. 599; Metropolitan Life Ins. Co. v. Foster (C.C.A.5) 67 F.2d 264, 266; Pilot Life Ins. Co. v. Owen (C.C.A.4) 31 F.2d 862, 864; Long v. Monarch Accident Ins. Co. (C.C.A.4) 30 F.2d 929, 930. The decision in Bukata v. Insurance Company, supra, is in conflict with Landress v. Insurance Company, supra, and Sentinel Life Insurance Company v. Blackmer, supra, and many authorities therein cited.

"These adjudications are not controlling in the present case, because the powers of subagents of the general agents of insurance companies are not commensurate with those of the general agents, and because it appears here that it was the practice of the company not to charge its agents with premiums until they were actually remitted." In discussing the principle to be applied, the court, in the case of Aetna Life Ins. Co. v. Johnson (C.C.A. 8) 13 F.2d 824, on pages 826 and 827 said: "A further claim is made on behalf of defendant in error that the insurer waived the payment in money of the first premium by its method of doing business with its agents, Blewett Severn. It is claimed that the insurer held the agents responsible for the premiums, and charged the amount of this particular premium to their account, and that this practice authorized the agents to deliver the policy. In support of this proposition are cited the cases of Miller v. Life Insurance Co., 12 Wall. 285, 20 L.Ed. 398, Smith v. Provident Sav. Life Assur. Soc., 65 F. 765, 13 C.C.A. 284, and Fidelity Casualty Co. v. Willey, 80 F. 497, 25 C.C.A. 593.

However, it is our duty to differ with the state court when clearly convinced its determination on a matter of general commercial law (which includes insurance contracts) is mistaken. Black White Taxicab Transfer Co. v. B. Y. Taxicab Transfer Co., 276 U.S. 518, 529-531, 48 S. Ct. 404, 72 L. Ed. 681, 57 A.L.R. 426; Ætna Life Ins. Co. v. Moore, 231 U.S. 543, 559, 34 S. Ct. 186, 58 L. Ed. 356; Carpenter v. Providence Washington Ins. Co., 16 Pet. 495, 511, 10 L. Ed. 1044; Pilot Life Ins. Co. v. Owen, 31 F.2d 862, 864 (C.C.A. 4); Long v. Monarch Accid. Ins. Co., 30 F.2d 929, 930 (C.C.A. 4); Ætna Life Ins. Co. v. Johnson, 13 F.2d 824, 825 (C.C.A. 8); Hartford Fire Ins. Co. v. Nance, 12 F.2d 575, 576 (C.C.A. 6); Security Nat. Bank of Sioux City, Iowa v. Old Nat. Bank of Battle Creek, Mich., 241 F. 1, 7, 8 (C.C.A. 8). This matter is purely the construction of a contract. Federal courts construe contracts of this character uncontrolled by state decisions.

New York Life Ins. Co. v. Fletcher, 117 U.S. 519, 6 S. Ct. 837, 29 L. Ed. 934; Ætna Life Ins. Co. v. Moore, 231 U.S. 543, 34 S. Ct. 186, 58 L. Ed. 356; Lumber Underwriters v. Rife, 237 U.S. 605, 35 S. Ct. 717, 59 L. Ed. 1140; Mutual Life Ins. Co. v. Hilton-Green, 241 U.S. 613, 36 S. Ct. 676, 60 L. Ed. 1202. In the following cases similar conclusions were reached by the court upon facts similar to those appearing in the present case to wit: Ætna Life Ins. Co. v. Johnson (C.C.A.) 13 F.2d 824; Person v. Ætna Life Ins. Co. (C.C.A.) 32 F.2d 459; Dodd v. Ætna Life Ins. Co. (C.C.A.) 35 F.2d 673; Inter-Southern Life Ins. Co. v. McElroy (C.C.A.) 38 F.2d 557; Jensen v. New York Life Ins. Co. (C.C.A.) 59 F.2d 957; Subar v. New York Life Ins. Co. (C.C.A.) 60 F.2d 239; New York Life Ins. Co. v. McCreary (C.C.A.) 60 F.2d 355; Bostick v. New York Life Ins. Co., supra; MacKelvie v. Mutual Life Ins. Co., supra. See, also, Bergholm v. Peoria Life Ins. Co., 284 U.S. 489, 52 S. Ct. 230, 76 L. Ed. 416; Williams v. Union Central Life Ins. Co., 291 U.S. 170, 171, 54 S. Ct. 348, 78 L. Ed. 711, 92 A.L.R. 693. Consistently with these authorities we hold that the judgment of the lower court should be and it hereby is affirmed with costs.