Gillespie v. Hester

• Decision Date: 19 May 1909
• Citation: 160 Ala. 444,49 So. 580
• Parties: GILLESPIE v. HESTER.
• Court: Alabama Supreme Court

49 So. 580

160 Ala. 444

GILLESPIE v. HESTER.

Supreme Court of Alabama

May 19, 1909

Appeal from Circuit Court, Franklin County; Joseph H. Nathan, Judge.

Action by W. H. Gillespie against W. H. Hester. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

The note was given for the first premium on an insurance policy of $5,000. Plea 1 is as follows: "That on or about the 30th day of June the plaintiff, who was acting and holding himself out as the agent of the New York Life Insurance Company, persuaded and induced defendant to execute the note to plaintiff sued on in this case, in consideration whereof the defendant was to receive a policy of insurance on his life from said company for the sum of $5,000, and that he did receive the policy of insurance from said company after signing said note; that plaintiff, in order to induce him to sign said note, stated to him that after the policy of insurance was received by defendant, if he did not want to take the policy, he (the plaintiff) would take it back, and defendant would owe nothing; that defendant, when he received the policy, decided not to take it, and returned it within a reasonable time, wherefore he says he does not owe said note." The second plea was "non est factum." Plea 4 was as follows: "Defendant says that at the time of execution of the note sued on plaintiff was a life insurance agent, and was engaged in writing policies of insurance, and defendant alleges that at said time, in order to induce defendant to take a policy of insurance and to execute the note sued on, plaintiff represented to the defendant that unless the policy for which he was applying should be written by the company, it would guarantee by its terms, and on its face, the payment to defendant by the company at the end of 20 years, if defendant were living at that time, the sum of $5,961, and defendant alleges that said representation was false, and was material, that he relied thereon and was induced thereby to take said policy, and defendant alleges that said policy by its terms does not guarantee the payment of the sum reported by plaintiff, but a greatly less sum, and a policy and a policy must be valuable the, the one for which it applies, and for the delivery of said policy he repudiated the contract for the said insurance policy, and returned the same to the company which issued it within a reasonable time." Plea 6: "That at the time of the execution of the note sued on in this case plaintiff represented to defendant that he was signing an application for an insurance policy, which representation was false and fraudulent, and by means of said false representation the defendant was deceived and induced to execute the note."

The demurrers to plea 1 were, first, that it contained a blank second, that it is indefinite and uncertain; third, that it is no defense to the action, because it does not allege a state of facts from which fraud could be presumed, and is an attempt to contradict a written agreement by contemporaneous and previous parol statement; and other grounds not necessary to be set out. To plea 4, because it does not allege such a state of facts as authorized the defendant to rescind the contract; because it does not state facts that constitute such fraud and misrepresentations as would authorize the defendant to avoid the payment of the note sued on, and because it does not allege wherein or in what respect the policy was less valuable than it was represented. To plea 6 because it does not allege that defendant could not read and write, and that he did not have an opportunity to read the instrument, and did not ask that it be read to him.

The following charges were refused to the plaintiff: 9 "I charge you, gentlemen, that if you find from all the evidence in this case that W. H. Hester swore that he did not sign the note, and you further find that he did sign the same, you are justified in disregarding and disbelieving every word he testified to." (11) "I charge...