Miles v. Sledge

• Decision Date: 12 November 1908
• Parties: MILES v. SLEDGE.
• Court: Alabama Supreme Court

47 So. 595

157 Ala. 528

MILES v. SLEDGE.

Supreme Court of Alabama

November 12, 1908

Appeal from Circuit Court, Marengo County; W. W. Quarles, Special Judge.

Assumpsit by G. G. Miles against A. M. Sledge. There was judgment for defendant, and plaintiff appeals. Reversed and remanded.

The action was upon a note given for an insurance policy, and the pleas were the general issue, want of consideration, fraud and misrepresentation in procuring the note, and failure of consideration. The following replications were filed:

(1) "That said defendant is estopped from pleading any oral statements, promises, information, or representation made or given by the person soliciting defendant's application for said policy of insurance in the Ph nix Mutual Life Insurance Company of Hartford, Conn., or any promises or statements or agreements made by the plaintiff or any other person in the plaintiff's presence or with plaintiff's assent, or by any agent of said insurance company, which said statements, promises, information, or representations were not contained in the written application signed by said defendant on the 22d day of July 1904, the day said note sued on was made, for that on said date said defendant signed and executed an instrument in writing, to wit, a written application for said policy of life insurance to be issued by said insurance company, in which he warranted and agreed as follows: 'I hereby warrant and agree: (1) That the foregoing statements and answers as written and those contained in part 2, made or to be made to the medical examiner, are full, complete, and true; that no statement has been made to or by any agent or representative of the company, contrary to or modifying any of them as written; and that parts 1 and 2 of this application are offered to the company as a consideration for any policy hereby applied for.' "

(2) "That said defendant cannot set up as a defense to this action any oral promises, statements, agreements, or representations as to the policy to be issued as a consideration for the execution of the said note sued on [and here follows the same matter set out in replication 1]."

(3) Same as 1 down to and including the words "22d day of July, 1904," with the following addition: "In which he warranted and agreed that no statements had been made by any agents or representatives of said company, contrary to or modifying the terms of said written application."

(4) Practically the same as 1.

(5) "That defendant is estopped from pleading or showing, as defenses to this action, fraud, false representations failure of consideration, rescission of the contract, and want of consideration, or either of them, for that the notes sued on and which is the foundation of this suit was made by the defendant on the 22d day of July, 1904, and the consideration of said note was for the payment of the first premium on the policy of life insurance upon the life of the defendant to be issued by the Ph nix Mutual Life Insurance Company of Hartford, Conn., upon a written application therefor made and signed by the defendant on said date, the date of the execution and signing of said note sued on (which said written application is now referred to, is attached hereto as Exhibit A, and is made a part of the replication) and the plaintiff was the agent of the said insurance company, and the...