Vette & Hoffman v. Evans
| Citation | 86 S.W. 504,111 Mo.App. 588 |
| Parties | VETTE & HOFFMAN, Appellant, v. ELMER E. EVANS, Respondent |
| Decision Date | 03 April 1905 |
| Court | Court of Appeals of Kansas |
Appeal from Saline Circuit Court.--Hon. Samuel Davis, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Dan. V Herider for appellants.
(1) Failure of consideration, because of failure to live up to the terms of contract can not be set up as a bar to an action on notes given for the premium on a policy of insurance unless the insured offers to rescind the contract by returning the policy and demanding his notes. Life Ass'n v. Cravens, 60 Mo. 388.
(2) Defendant having received the policy or contract and there being no allegation or evidence of an offer to rescind or return the contract or policy and no evidence that said policy was wholly worthless, the plea of failure of consideration can avail him, if at all, only to the extent of the difference between the value of the contract as represented and its value as really shown to be. Brown v Weldon, 99 Mo. 568.
(3) Defendant having entered into this contract April 21st, 1903, and having received and retained the policy, is, under any view of this case, liable for the premium from April 21st, 1903, to August 22nd, 1903, the date of the alleged merger or transfer.
R. B. Ruff for respondent.
(1) The court properly gave a premptory instruction to the jury at the close of the plaintiff's evidence to find for the defendant for the following reasons, among others, to-wit:
(2) The policy did not contain the terms agreed upon by appellants and respondent and immediately upon the arrival of the policy at Slater respondent refused same. Ins. Co. v. Neiberger, 74 Mo. 167; McHoney v. Ins. Co., 52 Mo.App. 94.
(3) In the most recent case in this State it is expressly held that a denial "denies each and every allegation in said petition not hereinafter specifically admitted amounts to nothing, it is neither the special or general denial called for by the statute." Dezell v. Casualty Co., 176 Mo. 253; Young v. Schofield, 132 Mo. 650, l. c. 671; Holsworth v. Shannon, 113 Mo. 508; Ins. Co. v. Smith, 117 Mo. 261, l. c. 293; Halsa v. Halsa, 8 Mo. 303; Snyder v. Free, 114 Mo. 360, l. c. 367; 2 Pomeroy Eq. Jur. (2 Ed.), sec. 762.
(4) When companies legally authorized to amalgamate, the holders of the policies in the amalgamated company are not bound to accept in lieu of the liability of that company the responsibility of the amalgamating company. An acceptance by a policy holder of the substituted responsibility to be binding upon him must be with a full knowledge of the facts. No acceptance is pleaded or proven. Eng. & Am. Enc. of Law (2 Ed.), page 882-3-4; In re Society Arbitration Act and Wellington; Reversionary Annuity and Life Assn., sec. 1, ch. D. 334; 1 Joyce on Insurance, sec. 117, pp. 175-6 and authorities cited; Herckenrath v. Ins. Co., 3 Barb. Ch. (N. Y.) 63.
(5) No proof was offered by appellants as to the value of the policy of appellants at the time. Eng. and Am. Encyc. of Law (2 Ed.), page 192-193; Tiedeman on Commercial Paper, sec. 201, p. 332.
(6) The appellants were privy to the contract, made same, had full knowledge of every illegality, misrepresentation and of every element of fraud that entered into the transaction.
The plaintiffs instituted this suit upon the following writing:
The first payment became due June 16th, 1903. Defendant having failed and refused to pay said first payment, plaintiff began his suit. Defendant answered denying the execution of the note. He also generally denies all the allegations of the petition and further sets out other defences, among which it is alleged: that plaintiffs at the time of the execution of said note were the agents, with W. E. Apt and Crawford Wheeler, for the Northwestern Life and Savings company of DesMoines, Iowa, at which time the said agents conceived the fraudulent design of inducing defendant to make a certain contract with said insurance company. It is alleged in the answer that the consideration for the note in part was an agreement made between himself and the plaintiffs and certain other agents of the Northwestern Life and Savings company of DesMoines, Iowa, for a contract for an investment and life policy to be issued to him by said company. The answer then consists of a plea of non est factum to the note in the first place; secondly it sets out at great length, but somewhat indefinitely, that the plaintiffs and W. E. Apt and one Wheeler, another agent of the company, fraudulently represented that he would be furnished with a certain kind of contract of insurance upon the payment of $ 120 annual premiums in quarterly installments on the 16th days of June, September, December and March; and that the policy to be issued would contain stipulations that defendant would be entitled to the fixed sum of $ 1800, as an investment, and $ 1200, as a life policy on the termination of the contract. The answer does not state in what respects the policy issued differed from said representations, but that the policy furnished defendant provided for different terms and conditions from those represented--and alleges that thereby there was a total failure of consideration for the note. Another and separate defense is, that on the 22nd day of August, 1903, the said company sold, transferred and assigned all of its assets and business to the Northwestern National Life Insurance Company of Minneapolis, Minnessota, and that thereby defendant's policy became null and void. That such sale and transfer was not by the consent of the defendant, nor since ratified by him; and thereby the consideration of the note has wholly failed.
To the answer plaintiffs for reply "deny each and every allegation of new matter in said answer contained not herein specifically admitted to be true." And for further reply, "admit that during the month of April, 1903, defendant was a resident of Slater, Missouri, and W. E. Apt and Crawford Wheeler were engaged at that time as agents of the Northwestern Life and Savings company, of DesMoines, Iowa, and that defendant was solicited by said Apt and Wheeler to make investments" with said company.
The application and policy of insurance were not offered in evidence. The defendant introduced no witness, and all the evidence to sustain his answer was drawn out during his cross-examination of plaintiffs and their witnesses. There was some verbal evidence of what the contract contained in part, to which no objection was made. W. E. Apt, the party referred to in the proceedings as agent of said company stated that the plaintiffs represented to defendant that the company would issue to him a contract for an investment policy and an incidental life policy, the premiums to be one hundred and twenty dollars, payable quarterly on the 16th day of June, September and October of each year...
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