National Life & Trust Co. v. Omans

• Decision Date: 27 July 1904
• Parties: NATIONAL LIFE & TRUST CO. v. OMANS.
• Court: Michigan Supreme Court

100 N.W. 595

137 Mich. 365

NATIONAL LIFE & TRUST CO. v. OMANS.

Supreme Court of Michigan

July 27, 1904

Error to Circuit Court, Kent County; Alfred Wolcott, Judge.

Action by the National Life & Trust Company against Martha J. Omans. Judgment for plaintiff. Defendant brings error. Affirmed.

James E. O'Keefe, for appellant.

Don E Minor, for appellee.

MONTGOMERY J.

This action was brought to recover the amount appearing due on a promissory note signed by defendant, payable to the order of Jennie E. Heyser, an agent of the plaintiff, and now owned by the plaintiff. The defendant set up the defense that she never intentionally signed the note in question, and that, if the signature thereto was hers, it was obtained by a fraud practiced by Miss Heyser, the payee. This defense was supported by defendant's testimony, to some extent corroborated by other witnesses, but the claim was denied by Miss Heyser, who gave testimony tending to show that the note was given in payment of the first premium on a bond or policy issued by plaintiff, and was signed at the date of making such application. The bond was promptly furnished and received by defendant. There was also testimony that in June following, when the first installment was due upon this note, the defendant received notice from a bank that it was due, and took no notice of the same. She testifies: 'I thought like this--if Miss Heyser had given my note, she could pay it. I didn't know any other way it could be done.' She, however, retained the bond, and did nothing to repudiate either that contract or the note. True she testifies that she did not know she had received the bond until September, when she had a talk with Miss Heyser and went home, made a search for the bond, and found it among some other papers. How it came to be among these papers is not explained. After this the bond was retained for two years, until suit brought.

The circuit judge charged the jury as follows: 'There is another element in this case. It appears that the defendant received a policy of insurance, or a bond, as it is called from the plaintiff, in response to this application which she had signed, and in payment of the premium for which the note in question is claimed to have been given. It was the duty of the defendant on receiving this policy, if she believed it was obtained by fraud, to have either returned the policy to the company, notifying the company or its agent that she would not accept the policy, and to do this within a reasonable time after receiving it, or within a reasonable time after learning of the fraud she claimed was practiced upon her. This question is, in a sense, independent of whether or not the defendant was induced to sign the note by misrepresentation on the part of the agent. That is to say if you should find that the defendant signed the note by reason of some fraud practiced upon her in the manner she claims, still, it appearing that this application was sent in to the company, and the policy sent to the defendant, which she retained, if,...