The Federal Agency Investment Company v. Holm
| Decision Date | 12 March 1927 |
| Docket Number | 27,181 |
| Citation | 254 P. 391,123 Kan. 82 |
| Parties | THE FEDERAL AGENCY INVESTMENT COMPANY, Appellee, v. GLEN HOLM, Appellant |
| Court | Kansas Supreme Court |
Decided January, 1927.
Appeal from Wyandotte district court, division No. 3; WILLIAM H MCCAMISH, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. BILLS AND NOTES--Defenses--False Representation as to Insurance Policy--Judgment on Opening Statement. In an action to recover on a promissory note given in payment of the premium for a life insurance policy, where the defense was that the note had been procured through false and fraudulent representations, the proceedings considered and held not error to render judgment for plaintiff on defendant's opening statement.
2. FRAUD--False Representations--Statements as to Matter in Future. Rule followed that fraudulent representations to constitute fraud must relate to some material, past or existing fact.
A. J. Herrod, of Kansas City, for the appellant.
Thomas E. Joyce, of Kansas City, for the appellee.
The action was one to recover on a promissory note given in payment of a policy of insurance in the Federal Reserve Life Insurance Company. The defense was that the note was procured through false and fraudulent representations. Judgment was for plaintiff on defendant's opening statement and defendant appeals.
The plaintiff alleged substantially that it was engaged in the business of soliciting life insurance on the lives of individuals as the general agent for the Federal Reserve Life Insurance Company; that about December 7, 1923, it solicited and sold certain policies of insurance to defendant on the lives of defendant, his wife and children, for which the defendant agreed to pay the first annual premium by execution of his certain "myself" promissory note, bearing interest at 8 per cent per annum; that plaintiff was the owner and holder of the note and had made demand for payment, which was refused. It prayed judgment for the amount due. A copy of the note was attached to the petition. Defendant alleged substantially that at the time the note was signed the life insurance company and the plaintiff solicited the defendant to make application for life insurance upon his life on the ordinary life plan; also on the graded benefit plan, and on the life of his wife, and at said time induced the defendant and his wife to enter into a stock purchase contract between D. H. Holt, as trustee, and defendant and his wife, by the terms of which the defendant and his wife were to be sold ten shares of the capital stock of the Federal Reserve Life Insurance Company at and for the price of $ 35 per share, the par value of which was $ 10 per share; that defendant and his wife relying upon the representations and statements that if he and his wife made application for said life insurance in the Federal Reserve Life Insurance Company, they would receive ten shares of the capital stock of the life insurance company, and the same would be paid for within five years by dividends arising from the $ 10,000 of insurance so applied for, and that the shares of stock were of the value of $ 200 per share; and that within one year after the date of said application and said purchase contract, if plaintiff was not satisfied, he could go to a bank in Kansas City, Kan., which would pay him $ 200 per share for such stock, and also informed defendant and his wife that the policies of insurance so issued would provide for the payment of $ 5,000 each if death occurred at any time after the issuance thereof; that defendant and his wife, relying on said representations, signed the application for said life insurance in the sum of $ 10,000 and executed the note sued on; that the representations and inducements were false, fraudulent and untrue, and known by all of said parties except defendant and his wife to be false, fraudulent and untrue, and were made willfully and knowingly for the purpose of inducing and enticing defendant and his wife to make the applications and to sign the purchase contracts and note; that prior to the commencement of this action and within a short time after the signing of the note, application and purchase contract, and as soon as he learned that the statements were false, fraudulent and untrue, he notified the plaintiff and the Federal Reserve Life Insurance Company to cancel the purchase contract and applications for life insurance; that the policies were never delivered to him or his wife, and defendant now offers to have said policies and purchase contract canceled, and demands the return of said note, or that the same be ordered canceled by the court. The plaintiff replied that defendant is estopped to assert fraud and misrepresentation by this plaintiff or any of its agents, if any existed, for the reason that the defendants signed policy receipts for the policies of insurance, copies of which were attached to the reply, certifying among other things that the defendant had examined the policies of insurance and found them to be as represented, and that the policies were satisfactory and were accepted and that the note given in settlement of the premium would be paid at maturity, and also by retaining the policies of insurance mentioned and obtaining the benefits thereunder and by not notifying this plaintiff within a reasonable time of the existence of fraud and misrepresentation, if any existed. Plaintiff states that it acted and relied on the statements and facts set out in the application referred to and on the policy receipts and notes, and on the fact that the defendant did not notify this plaintiff of any fraud and misrepresentation if any existed. The attached receipts read:
Witness: WM. SIMPSON.
Witness: WM. SIMPSON.
Witness: WM. SIMPSON.
On the trial a stipulation was entered into that:
Defendant's opening statement was similar to his answer above quoted, also that the evidence would show further that plaintiff represented...
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