Kenyon v. Knights Templar & M. Mut. Aid Ass'n

• Decision Date: 07 October 1890
• Citation: 25 N.E. 299,122 N.Y. 247
• Parties: KENYON et al. v. KNIGHTS TEMPLAR & M. MUT. AID ASS'N.
• Court: New York Court of Appeals Court of Appeals

122 N.Y. 247

25 N.E. 299

KENYON et al.

v.KNIGHTS TEMPLAR & M. MUT. AID ASS'N.

Court of Appeals of New York,

Second Division.

Oct. 7, 1890.

Appeal from judgment of the general term of the supreme court in the fourth judicial department, affirming judgment entered on a verdict in favor of the plaintiffs.

On May 22, 1882, the defendant, in consideration of $16 paid by Alexander M. Kenyon, and of the representations made by his application for membership, and subject to the provisions of the by-laws indorsed upon it, delivered to him its insurance certificate, whereby it promised to pay to his heirs $5,000, or such portion thereof as is provided for in such by-laws. The certificate also provided that the application should form part of the agreement, and the statements therein be a warranty of their truth; and that, if any statement made therein should be untrue, or if any deception be used by him in obtaining the certificate, it should be null and void. The application was by him subscribed, and the portions of it requiring any consideration were the following questions and answers: ‘Profession or occupation. State precise nature of business? Importer and wholesale dealer in wines and liquors. Are the habits of said party at the present time, and have they always been, sober and temperate? Yes. Does the party use intoxicating drinks habitually as a beverage No. Is the person engaged in any way in the retailing of alcoholic liquors? No; keep no bar and sell only at wholesale; have government license and town license.’ In the application was added: ‘And I do hereby agree that the statements and representations contained in the foregoing application and declaration shall be the basis of the contract between me and the said association, the truthfulness of which statements and representations I do hereby warrant; and that if the same, or any of them, are in any material respect untrue, or if there shall be any omission or neglect to pay any of the assessments on or before the days on which said assessments shall fall due, except as provided for in the days of grace by the by-laws of this association, that then, and in either event, the certificate of membership which may be issued hereon shall be void; * * * and, inasmuch as only the officers at the home office of the association in the city of Cincinnati have authority to determine whether or not a certificate of membership shall issue on any application, and as they act on the written statements and representations referred to, it is expressly understood and agreed that no statements, representations, or information, made or given by or to the person soliciting or taking this application for a certificate of membership, or to any other person, shall be binding on the association, or in any manner affect its rights, unless such statements, representations, or information be reduced to writing, and presented to the officers of the association at the home office, in the above application.’ The insured died on the night of April 15, 1885. The defendant refused to pay.

John Lansing, for appellant.

Levi H. Brown, for respondents.

BRADLEY, J.

The defense is founded upon the charge that Kenyon, in his application for membership of the defendant, untruly answered some of the questions put to him; and that he ceased before his death to be a member by his failure to pay as assessment, as required by the contract of insurance. He undertook that the statements he was called upon to make, and which were contained in his application, should be substantially true. This was part of the contract, and, if they or any of them were untrue, there was a breach of the warranty, which rendered the certificate void. The defendant alleged that his statements that his habits were, and had always been, sober and temperate, and that he did not habitually use intoxicating drinks as a beverage, were untrue. The evidence was not such as to require the conclusion that this charge was supported,and the jury were authorized to find, as it must be assumed they did, that those statements made by the applicant were substantially true. In the application was also the question: ‘Is the person engaged in any way in the retailing of alcoholic liquors?’ to which was written the answer' ‘No; keep no bar, and sell only at wholesale; have government license and town license.’ Kenyon's place of residence and business was the city of Watertown, N. Y. He kept a liquor store, and sold alcoholic liquor by the barrel and in various quantities less than five gallons by measure, but he kept no bar, and it was not his business to sell by the drink, or to be drank on the premises. He had a license from the United States government; also one from the board of excise of the city. The latter is commonly known as a ‘store license.’ The defendant's counsel requested the court to charge the jury that the assured, at the time the application was made, was engaged in retailing alcoholic liquors; that his answer to the question in that respect was not truthful, and for that reason the plaintiffs could not recover. The court declined to so charge, and exception was taken, and the court left to the jury the question whether or not such answer of the assured was untrue, to which the defendant's counsel also excepted.

The question therefore arises whether or not it was for the court to determine the interpretation to be given to the statement so written in the application, and to hold, as matter of law, that it was untrue, and constituted a breach of warranty. It may preliminarily be observed that, as a general rule, the construction of a written instrument is a question of law for the court to determine; but when the language employed is not free from ambiguity, or when it is equivocal, and its interpretation depends upon the sense in which the words were used, in view of the subject to which they relate, the relation of the parties, and the surrounding circumstances properly applicable to it, the intent of the parties becomes a matter of inquiry, and the interpretation of the language used by them is a mixed question of law and fact. White v. Hoyt, 73 N. Y. 505;Dwight v. Insurance Co., 103 N. Y. 341, 8 N. E. Rep. 654. The interrogatorywhich the assured was called upon to answer was, in its terms and apparent purpose, definite. If the parties understood alike the meaning of the term ‘retailing of alcoholic liquors,’ there was no difficulty in giving the definite answer of ‘yes' or ‘no.’ But for some reason the answer proceeded further, and added to ‘no’ that he kept no bar, by which he may have intended to be understood that he did not sell by the drink, and therefore did not sell at retail, and sold only at wholesale, and that to enable him to do so he had both a government license and a town license. The former one referred to was permission he had from the authority of the United States, pursuant to act of congress providing for internal revenue, to sell at wholesale, or, as for the purposes of such act there defined, in quantities not less than five gallons; while the other may be understood to have been a store-keeper's license from the local board of excise, permitting him to sell in quantities less than five gallons, not, however, to be drank on the premises. The question is whether the words of the answer, as so written in the application, did, in view of the subject to which it was directed, furnish any rational doubt or uncertainty as to the manner the assured was conducting his liquor trade business, or as to what was intended to be represented in that respect by such answer. Among the objects of the defendant in framing interrogatories to be answered by applicants for membership was that to ascertain the character of the business in which they were engaged; and one of them called upon Kenyon to ‘state precise nature, of business' which constituted his profession or occupation, to which he answered: ‘Importer and wholesale dealer in wines and liquors;’ and in the certificate issued to him he is described as a wholesale liquor dealer. This was true. He was engaged in that business. But the later inqury in the same application drew upon him, for the further information, whether his business in that traffic was confined to the wholesale trade. To ascertain the import of the answer, it is to be considered as a whole. The insertion in it of the statement that he kept no bar, and that he had not only a government or wholesale license, but a store license, which enabled him to sell in small quantities, may have been intended as explanatory of the other portions of the answer, and to indicate the import, as he understood it, of the terms ‘wholesale’ and ‘retail.’ What, then, was the interpretation of which this combination of words was susceptible? and what was the meaning, so far as appears by them, which it may be said the assured intended the answer should have? He evidently intended to be understood that he was not engaged in dealing out liquors by the drink, or to be drank at his store; and, assuming that the answer was made in good faith, the reference to the fact that he had a license which enabled him to sell in quantities less than five gallons, not to be drank there, may have been intended by him to characterize, to that extent, the manner in which he was carrying on his business of selling liquors. No other purpose of it is apparent, and in that view there is within the import of the words the intention of the assured to be understood that his sales were at wholesale, and not at retail, because he was not selling by the drink, although he was selling in small quantities by measure.

Whatever view the defendant may have entertained of the meaning of the words ‘wholesale’ and ‘retail,’ as applied to the sale of alcoholic liquors, if the applicant had stated that he was selling in the former manner only, and added that he was selling in small quantities, such as by the quart and pint, by measure, not...