Larson v. Seguin

• Decision Date: 26 October 1914
• Docket Number: No. 3607.,3607.
• Citation: 149 N.W. 174,34 S.D. 453
• Parties: LARSON v. SEGUIN.
• Court: South Dakota Supreme Court

34 S.D. 453

149 N.W. 174

LARSON

v.SEGUIN.

No. 3607.^†

Supreme Court of South Dakota.

Oct. 26, 1914.

Appeal from Municipal Court of Aberdeen; Geo. W. Crane, Judge.

Action by Fred Larson against W. P. Seguin. From a judgment for plaintiff, defendant appeals. Affirmed.Amos N. Goodman, of Aberdeen, for appellant.

L. T. Van Slyke, of Aberdeen, for respondent.

McCOY, J.

Plaintiff by his complaint alleged that in December, 1911, the defendant was the agent for the First National Life & Accident Insurance Company and authorized to write insurance and receive premiums; that defendant represented to plaintiff that he would and could take plaintiff's application for insurance, and hold such application in abeyance at his office in Aberdeen until such time as plaintiff decided whether or not he would accept or reject such insurance; and that such application would remain in the office of defendant, and would not be sent to said insurance company until by plaintiff directed to be so done; that plaintiff thereupon, on the 26th day of December, 1911, made, executed, and delivered a promissory note for $117.90, and placed the same in the hands of the defendant with an application for insurance, under the agreement that the same should be held by the defendant, and not delivered until such time as defendant was advised to do so by plaintiff; that thereafter plaintiff immediately wrote defendant informing him that plaintiff would not accept such insurance, and would not permit the application to be forwarded to said company, and that he would not receive the policy of insurance, and demanded that the defendant cancel said application and return said note to plaintiff; that defendant failed and refused to return said note, but took the same to a bank and sold said note to an innocent purchaser, and by reason thereof plaintiff was required to, and did, pay said note; that the said representations made by defendant were false and untrue, and made for the purpose of defrauding plaintiff; that plaintiff relied thereon, and believed the same to be true, in executing said note and leaving the same with defendant; that no consideration for said note existed, and plaintiff was defrauded out of said sum by reason of the fraudulent transfer of the said note, and by reason of the said fraudulent acts and statements of defendant; that plaintiff has demanded of defendant the proceeds of said note and he has failed and refused to pay the same, etc. Defendant made answer, admitting the execution and delivery of the note, and generally denied all the other allegations of the complaint, except such as are specifically admitted. Further answering, defendant alleged that on about December 26, 1911, plaintiff, knowing that defendant was authorized to accept application for insurance for said company, executed and delivered an application for insurance, and thereby directed said company to issue an insurance policy; that plaintiff took the medical examination, and that it was agreed between plaintiff and defendant that settlement for the policy need not be made at that time; that plaintiff should have one week in which to make settlement; that plaintiff, after the delivery of the application and taking of said medical examination, made full and complete settlement for one year's premium by the execution and delivery of said note; that a policy of...