McKindly v. Drew

• Decision Date: 01 October 1898
• Citation: 41 A. 1039,71 Vt. 138
• Parties: McKINDLY v. DREW.
• Court: Vermont Supreme Court

41 A. 1039

71 Vt. 138

McKINDLY

v. DREW.

Supreme Court of Vermont. Caledonia.

Oct. 1, 1898.

Exceptions from Caledonia county court; Thompson, Judge.

Action by John McKindly against John Drew. There was a judgment for plaintiff, and defendant excepted. Affirmed.

This was a second trial of the case reported in 69 Vt. 210, 37 Atl. 285, and the tendency of the plaintiffs evidence was the same as at the first trial. It did not appear that the plaintiff ever expressly refused to pay further premiums, or offered to return the policy. The defendant's requests were as follows: "(1) The plaintiff having failed to prove a rescission of the contract, the case affords no basis for a computation of damages beyond a nominal amount. (2) But, if the court hold that the plaintiff is entitled to actual damages, then the plaintiff is entitled to recover the difference in value between the policy that he in fact received and the policy that was represented to him by the defendant, for the period of two years,—two years being the term of the policy under the election of the plaintiff, he having elected to forfeit it at the end of that term. (3) That the sale was not complete as between these parties until the delivery and acceptance of the policy by McKindly, and if the jury find the defendant read over the policy to the plaintiff, as his evidence tends to show, the plaintiff cannot recover." Upon the subject of the third request, the court charged that the contract was not completed until the policy was delivered to the plaintiff; and that if, at the time of delivery, the defendant read it, and made its meaning clear to the plaintiff, he would not be liable, even if he had previously deceived the plaintiff; but that if, in spite of such reading and explanation, the defendant saw that the plaintiff was still laboring under a false impression, which the defendant had previously and fraudulently made upon his mind, such reading and explanation would not purge the fraud. The question of damages was submitted in accordance with the rule laid down by the supreme court. 69 Vt. 210, 37 Atl. 285.

W. P. Stafford, for plaintiff.

Dunnett & Slack, for defendant.

MUNSON, J. The plaintiff was permitted to testify that after paying the second premium, and before the third became due, he read his policy through for the first time, because of something he had heard, and that, not being able to understand it, he consulted counsel, and learned that it did not contain the guaranty nor permit the withdrawal which the defendant represented it did. The defendant claims that it was error to permit the plaintiff to state what he learned from his counsel. In view of the plaintiff's payment of the second premium, it was permissible for him to show when he first learned of the deceit; and, while this might have been done without repeating the statement of the counsel, there was nothing prejudicial in the repetition, for it covered no more than was apparent from the policy, upon a construction conceded by the defendant.

One John H. Nelson was proclaimed by the plaintiff, and testified that, having just made application at his own house for a policy like the one in question, he went with the defendant, at his request, to the plaintiff's house, and was present at the opening of the Interview between the parties. He afterwards testified, on cross-examination,...