Remmel v. Witherington

• Decision Date: 22 July 1905
• Citation: 88 S.W. 967,76 Ark. 373
• Parties: REMMEL v. WITHERINGTON
• Court: Arkansas Supreme Court

88 S.W. 967

76 Ark. 373

REMMEL v. WITHERINGTON

Supreme Court of Arkansas

July 22, 1905

Appeal from Calhoun Circuit Court, CHARLES W. SMITH, Judge.

Affirmed.

STATEMENT OF FACTS BY THE COURT.

This is an action brought by appellant, Remmel, against appellee. Witherington, to recover the amount of a negotiable promissory note for the sum of $ 414.60, executed by appellee to one Ward, and by the latter assigned before maturity to appellant. Appellant was the general agent for a life insurance company, and Ward was a sub-agent, or, as he is designated in the proof, a special agent working under appellant. The note in question was executed to cover the first annual premium for a policy of $ 10,000 in said insurance company. Appellee, Witherington, was illiterate and unable to write his name, but signed the note by mark and the note and signature were written and witnessed by Ward. Ward also wrote the signature of appellee to the application for insurance.

The policy for $ 10,000 was issued by the company, and mailed to appellee, who declined to accept it, and refused to pay the note, for the alleged reason that he intended only to apply for insurance in the sum of $ 2,000 and to execute a note for premium on a policy for that amount, and that Ward had taken advantage of his illiteracy, and fraudulently imposed upon him by writing his signature to an application for a $ 10,000 policy and a note for premium thereon, instead of for $ 2,000, as agreed upon. He pleaded this as a defense to the action, and the jury returned a verdict in his favor.

Judgment affirmed.

Thornton & Thornton, for appellant.

A principal may intrust his interest to an agent, who has an interest that may be adverse to the principal's. Mech Ag. § 713. Every person is presumed to know the contents of a writing signed by himself or by another at his request. Brad. Ev. 601; 141 N.Y. 559; 142 U.S. 56.

Smead & Powell, for appellee.

OPINION

MCCULLOCH, J.

The testimony was conflicting on the issue as to the alleged fraud on the part of Ward in writing the application for a policy of $ 10,000 and the note for the premium on that amount, intstead of $ 2,000; but the jury found, upon instructions to which there was no objection, in favor of appellee, and we must treat that issue as settled. The testimony is sufficient to have sustained a verdict either way on that issue.

Appellant asked an instruction, which the court refused, telling the jury that "if the defendant requested the witness Ward to sign his name to a note sued on, he became the agent of defendant in signing the note; and if he did not follow defendant's instructions, then the plaintiff, if he took the note before maturity and for a valuable consideration, is not responsible for the act of...