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that the block contained a surplus of land exceeding retain,' a court of chancery will interfere, and correct
the area specified in the plat, and that the proper pro- that mistake, whether it arose from a misapprehen-
portiou of this, justly pertaining to the lots described,sion of the facts or of thelegal operation of the deed."
had not beou conveyed by the deed. The plaintiff, In Cooke v. Husbands, 11 Md. 492, a deed was exe-
"relying upon said representations, and believing the cuted, wbich by mistake of the draughtsman as to its
same to be true," made, executed and delivered to his legal effect conveyed a greater interest than was in-
former grantee a deed of release and quit-claim, tended by the parties. Relief was granted.
wbereby the plaintiff, for the acknowledged considera- Clayton v. Freet, 10 Obio St. 544, was for the correc-
tion of $5, granted, released and quit-claimed to his tion of a deed. The parties were shown to have iu-
former grantee tbe premises described in the mort- tended the conveyance to be of lands to a wife for
gage, which deed was recorded. It is alleged that this life, with remainder to her children. By ignorance
was without any consideration, and that the plaintiff and mistake the deed was made conveying the prem-
verer intended thereby to release or discharge the ises to the wife and to her heirs, the parties supposing
mortgage. After this the plaintiff's grantee, who is such a deed to have the desired effect. Relief was
alleged to be insolvent, conveyed the premises to this granted, although the mistake was one of law.
defendant, who took the same with full notice and A similar case was presented in Evants v. Adminis-
knowledge of these facts, and the defendant now trator of Strode, 11 Ohio, 480, aud the same principle
claims to own the premises discharged of the lien of declared. See also to the same effeot, McNaughton v.
the mortgage.

Partridge, 11 Ohio, 223.
The legal effect of the release and quit-claim to the The same principle was involved in Remington v.Hig-
mortgagor was to discharge the mortgage. Gille v. gins, 54 Cal. 620, which supports the proposition that a
Hunt, 29 N. W. Rep. 2. The question is whether re- mistake of law as well as of fact may afford ground of
lief can be had in equity upon the ground of the mis. relief in equity. So in McMillan v. New York Water-

Proof Paper Co., 29 N. J. Eq. 610, a mortgage by misIt is argued that even if the complaint be construed take drawn to certain individuals, and their as sbowing that it was not the intention of either the sors," instead of their heirs, was corrected, See furgrantor or grantee that the mortgage should be dis- ther, Brown v. Lamphear, 35 Vt. 252; Larkins v. Bidcharged, but that the mutual intention was only to dle, 21 Ala. 252; Champlin v. Laytin, 1 Edw. Ch. 466; conrey land not conveyed by the former deed, yet Green v. Morris & E. R. Co., 12 N. J. Eq. 165; Stover equity will afford no relief because the mistake of the v. Poole, 67 Me, 217, 223; Worley v. Tuggle, 4 Bush, parties as to the legal effect of the instrument was a 168; Walden v. Skinner, 101 V. S. 577; Snell v. Insurmistake of law, and for this there is no relief. It is a ance Co., 98 id. 85; Pitcher v. Hennessey, 48 N. Y. general rule, recognized in equity as well as at law, 415-424; Baker v. Massey, 50 Iowa, 399; Underwood v. that mere mis:akes of law, unattended by other cir- Brockman, 4 Dana, 309; Willan v. Willar, 16 Ves. 72; cumstances affecting the case, do not afford ground Pol. Cont. 393, 395, 450; Leake Cout. 345, 346; 2 Pom. for relief; but it is not a rule of universal application Eq. Jur. 842-847. that equity will not hear parties to allege a mistake as

A careful consideration of the authorities has led us to the law, or afford relief for its consequences.

to the conclusion that the power of courts of equity to In Cunedy v. Marcy, 13 Gray, 373, an oral contract afford relief from the consequences of the mutual mishad been made by the plaintiffs, who had inherited takes of parties to written instruments is not strictly certain real estate subject to a widow's dower, to sell limited to cases of mistake of fact, but extends also two-thirds of the premises, it not being intended to

to mistakes of law; and while if nothing more than include the reversionary interest of the heirs in the

the bare mistake be shown as a reason for relief, it one-third which might be set off to the widow as

will rarely, if ever, be granted, yet equity will interdower. By mistake deeds were drawn in such terms fere where it further appears that the defendant, as to convey also this reversionary interest of the availing himself of the opportunities afforded by the plaintiffs. The terms of the deed were such as were mistake, will enforce an unconscionable advantage, intended to be employed, but both the scrivener who without consideration; the defevdant being in no podrew them and the grantors, and as it seems, the

sition entitling him to equitable protection, and the grantee as well, were mistaken as to the legal effect plaintiff not being blamable. But this jurisdiction of those terms, supposing that they were only effect

will be exercised with caution, and only very clear ual to convey two-thirds of the premises. The grantee and convincing proofs will be sufficient to overcome did not claim any greater estate; but he having re- the presumption tbat the written instruments which conveyed to the defendant, the latter asserted title to parties have executed for the purpose of evidencing the whole estate. Equitable relief being sought in and carrying into effect their agreements are in legal this action, it was allowed ; Shaw, C. J., saying: “We effect or in terms contrary to their intention. are of opinion that courts of equity in such cases are

The case of McKusick v. County Com’rs Washington not limited to affording relief only in case of mistake Co., 16 Minn. 157. did not involve any material misof fact, and that a mistake in the legal effect of a de- take. The plaintiff, relying upon representations that scription in a decd, or in the use of technical lan

the land would be permanently devoted to a specified guage, may be relieved against upon proper proof." purpose, conveyed the fee by an absoluto deed, un

Stedwell v. Anderson, 21 Conn. 139, was a case where qualified in terms, the legal effect of which the plainseveral sisters, owning land jointly, attempted, with

tiff kuew. At least nothing was alleged to the contheir respect!ve husbands, to make partition by deed. trary. One of the husbands, who drew the deeds, by mistake Neither did First National Bank of St. Paul v. Na and ignorance as to the proper form, made the hus

tional Marine Bank, 20 Minn. 63, present any such bands grantees with their wives, thus conveying a fee question as that involved in this case.

The question to the husbands contrary to the intention of the par- there was whether a written contract of indorsement ties. In this action, many years afterward, relief was could be affected by a contemporaneous oral agreeafforded, the court saying: " When property has been ment that it should not have the effect which the law conveyed through mistake, by deed, which the parties puts upon it. There was no mistake as to the legal never intended should be conveyed, which the grantor effect of the written contract, but the very common was under no legal or moral obligation to convey, and case was presented of an attempt to vary the written whioh the grantee iu good conscience has no right to agreement by parol. The court says: "Neither fraud,

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mistake nor surprise in making the contract is al- in their minds, nor a subject concerning which they leged."

were dealing, or to which this quit-claim deed was The rule ordinarily applicable in such cases is differ- supposed to relate; that this deed was given wholly ent when the question arises in a court of equity in a without consideration; and that to now allow it tu suit to avoid or to reform a written instrument for have effect as a release of the mortgage, contrary to mistake, surprise or fraud.

the intention of the parties to it, would be a surprise In Catlin v. Fletcher, 9 Minn. 85, the plaintiff, a resulting in a most unconscionable advantage-are widow, sought to secure the cancellation of a mort- enough to take the case out of the operation of the gage given by herself aud husband to the defendant, general rule that for mere inistakes of law, unaccomand to enjoin a foreclosure by the defendant. It ap- panied by other circumstances appearing to the equilpears from the complaint demurred to that the plain- able discretion of the court, relief will not be aftiff's husband owed to the defendant the debt secured, forded. and that Swift's liability was that of an indorser for We have considered the complaint as showing a Catlin's accommodation. The grounds upon which mutual mistake by the parties to the deed, the re. the plaintiff sought relief were that she had beeu in- spondent (the plaintiff) claiming that it so appears, duced by the defendant to execute tbe mortgage by and it seeming probable that it was intended 80 bis stating to her that Swift would not indorse the to allege the fact, and that in the further progress of new note unless a mortgage were given; that if she the cause the case may so appear to be. It is not would execute the mortgage, he (the mortgagee) wo however so alleged, nor is it necessarily in ferable from mot enforce it, but would collect the debt from Swift, what is alleged, and we have to consider whether, the tbe indorser; and further, that Swift could not touch plaintiff alove being mistaken as to the effect of the tbe mortgaged property. The court, after stating deed, he may have relief in equity. The complaint that the complaint did not show that this last repre- does not allege fraud. sentation was uutrue, adds: “But assunzing that the In general the mistake of only one of the parties to statement was not true, it was not a misrepresenta- an instrument does not justify a reformation of it so tion of a material fact, but one in regard to the legal as to impose upon the other party thereby obligations effect of the conveyance; and such misrepresenta- which he never intended to assume, or to bind him to tions will not avoid the instrument.” Such language, do or to receive what he never contracted for or conwhen read in view of the case tben under considera- templated. But while the instrument will not be retion, is uot necessarily opposed to our present con- formed so as to effect such consequences, it may be reclusion. The mistake, if there was one, was not at- scinded or cancelled for the mistake of one only of tended by such circumstances as would justify a court the parties. Diman v. Providence, W. & B. R. Co., 5 of equity to interfere in her favor. To have granted R. I. 130; Duluny v. Rogers, 50 Md. 524; Hearne v. relief in that case because of the plaintiff's mistake as Marine Ins. Co., 20 Wall. 488, 491; Harris v. Pepperell, to Swift's power to avail himself of the mortgage, L. R., 5 Eq. 1; Broun v. Lamphear, 35 Vt. 252, 259. Of would have been to sanction conduct on the part of course this should not be done unless the parties can the plaintiff which was calculated to defraud Swift, be replaced in their former position. This plaintiff wbose indorsement she had kuowingly assisted to appears to be entitled to Fuch relief as shall in effect procure by executing the mortgage which she after- Jimit the operation of this deed to the conveyance of ward sought to avoid. We do not understand that the premises intended. There having been no considthe court meant that equity would never relieve from eration for the release of the mortgage, no such rea mistake of law.

lease having been intended by the grantor, and the Assuming then that relief may be afforded, although grantee baving no equitable right to retain such an the consequences sought to be averted bave resulted advantage, the complaint shows good cause for relief from mistake of law, the case here presented is a This defendant, with full notice aud kuowledge of tbe proper one for the exercise of such jurisdiction. We plaintiff's equities, is in no better position to oppose are still assuming that the mistake was mutual, and the granting of a remedy tban was bis grantor. that the complaint shows this to have been the case. The order overruling the deinurrer is affirmed. It falls within the somewhat common class of cases, where in attempting to carry into effect a prior agreement, as in Canedy v. Marcy, supra, the instrument

INSURANCE-WARRANTY - REPRESENTA. executed, by reason of mistake of the parties as to its

TION. legal effect, fails to express their real intention. It is apparent, as we think, from the complaint, that this SUPREME COURT OF ALABAMA, MAY 4, 1887. deed of release and quit claim was intended to complete the conveyance of the lands previously sold, and

ALABAMA GOLD LIFE INs. Co. y. JOHNSON. which were supposed not to have been effectually con- An application for life insurance containing inconsistent exveyed by the former deed. But we think that the ex- pressions-one part tending to show an intention to make istence of a prior agreement is not absolutely neces.

the answers warranties, and another treating them as repsary as a condition to justify equitable relief. If

resentations-the court holds (1) that the answers are not without any agreemeut having been made prior to the

absolute warranties, but in the nature of representations, time of the execution of this instrument, the inten

or if warranties, only of an honest belief of their truth; tion of the parties was, by the execution and delivery

(2) that any untrue statement or suppression of fact maof this deed, to merely couvey certain land, and if by

terial to the risk will vitiate the policy, and thus bar a remutual mistake or ignorance of the law, terms were

covery, whether intentional or within the knowledge of employed which had the legal effect, not merely to

the party or not; (3) that such statement of a material convey such laud, but also to accomplish something

fact, though untrue, will not avoid the policy, unless the entirely different, and relating to a different subject,

party knew it was false, or was negligently ignorant of to which their minds had not been directed, relief

it; and (4) that the inquiries as to the symptoms of dismay be afforded.

ease were not intended to be absolutely material, unless The facts that the parties to this deed intended only

they had existed in such appreciable form as would affect to convey and to take certain land not included in the

soundness of health, or have a tendency to shorten life. former deed; that the release of the mortgage upon HE opinion sufficiently states the case. the land which had been previously conveyed was not


Overall & Bestor, for appellants.

swers, so that the answers of the assured, so often William T. Johnson and J. L. & J. T. Smith, contra.

merely categorical, will be construed not to be a war

ranty of immaterial facts stated in such answers, but SOMERVILLE, J. The question of most importance rather a warranty of the assured's honest belief in which is raised by the rulings of the court in this case their truth; or in other words, that they were stated is whether tbe answers made by the assured to the in good faith. The strong inclination of the courts is questions contained in the application for insurance thus to make these statements or answers binding are to be construed as absolute warranties, or in the only so far as they are material to the risk, where this nature of mere representations. The distinction be- can be done without doing violence to tbe clear intentween a warranty and a representation in insurance is tion of the parties expressed in unequivocal and unfrequently a question of difficulty, especially in the qualified language to the contrary. In support of light of more recent decisions, which recognize the these deductions we need not do more than refer to subject as one of growing importance in its relations, the following authorities: Moulor v. American Life particularly to life insurance. As a general rule, it Ins. Co., 111 U. $. 335; National Bank v. Insurance has been laid down that a warranty must be a part Co., 95 id. 673; Price v. Phonix Mut. Life Ins. Co., 10 and parcel of lbe contract of insurance, so as to ap- Am. Rep. 166, supra; Southern Life Ins. Co. v. Booker, pear, as it were, upon the face of the policy itself, and 9 Heisk. 606; 24 Am. Rep. 344; Fitch v. American, etc., is in the nature of a condition precedent. It may Ins. Co., 59 N. Y. 557; 17 Am. Rep. 372; Bliss Ins., be affirmative of some fact, or only promissory. It | $ 34; Campbell v. New Englund Mul. Life Ins. Co., 98 must be strictly complied with, or literally fulfilled, Mass. 381; Fowler v. Ætna Fire In8. Co., 16 Am. Dec. before the assured is entitled to recover on the policy. note, 463-466; Piedmont, etc., Ing. Co. v. l'oung, 58 It need not be material to the risk, for whether ma- Ala. 470; Pars. Cont. *465, et seq.; Glendale Woolen terial or not, its falsity or untruth will bar the assured Co. v. Protection Ins Co., 54 Am. Dec. 309, 320; Wilof any recovery on the contract, because the warranty kinson v. Connecticut Mut. Life Ins. Co., 30 Iowa, 119; itself is an implied stipulation that the thing war- 6 Am. Rep. 657; 1 Phil. Ins., $ 638; Ang. Ing., $$ 147, ranted is material. It further differs from a represen- 147a. tation, in creating on the part of the assured an abso- Many early adjudications may by found, and uot a lute liability, whether made in good faith or not. A few recent ones also, in which contracts of insurance representation is not, strictly speaking, a part of the and especially of life insurance, have been construed contract of insurance, or of the essence of it, but in such a manner as to operate with great harshuess rather something collateral or preliminary, and in the and injustice to policy-holders, who acting with all nature of an inducement to it. A false representa- proper prudence, as remarked by Lord St. Leouards tion, unlike a false warranty, will not operate to in the case of Anderson v. Filzgerald, 4 H. L. Cas. 487; vitiate the contract or avoid the policy, unless it re- 24 Eng. Law & Eq. 1, had been “led to suppose that lates to a fact actually material, or clearly intended to they had made a provision for their families by an be made material by the agreement of the parties. It insurance on their lives, when in point of fact the polis sufficient if representations be substantially true. icy was not worth the paper on which it is written.” They need not be strictly or literally so. A misrepre- | The rapid growth of the business of life insurance in sentation renders the policy roid on the ground of the past quarter of a century, with the tendency of fraud, while a non-compliance with a warranty oper- insurers to exact increasingly rigid and technical conates as an express breach of the contract. The mere ditions, and the evils resulting from an abuse of the fact that a statement is referred to, or even inserted whole system, justify, if they do not necessitate, a de. in the policy itself, so as to appear on its face, is not parture from the rigidity of our earlier jurisprudence alone now considered as conclusive of its nature as a on this subject of warranties. And such, as we have warranty, although it was formerly considered other said, is the tendency of the more modern authoriwise. Whether such statement sball be construed as ties. a warranty or a representation depends rather upon There are, it is true, in this case, some expressions the forin of expression used, the apparent purpose of in both the policy and the application (wbich, taken the insertion, and its connection or relation to other together, constitute the contract of insurance) that inparts of the application and policy, construed together dicate an intention to make all statements by the asas a whole, where legally these papers constitute one sured absolute warranties. The application, consistertire contract, as they most frequently do. Blissing of a “proposal" and a “declaration," is declared Ins., $ 43, et seq.; Price v. Phænix Mut. Ins. Co., 17 to “ form the basis of the contract" of insurance, and Minn. 497 ; 10 Am. Rep. 166, 172.

the policy is asserted to have been issued “on the Iu construing contracts of insurance, there are some faith" of the application. It is further provided that settled rules of construction bearing on this subject, if the declaration, or any part of it, made by the aswhich we may briefly formulate as follows: (1) The sured, shall be found “in any respect untrue," or courts, being strongly inclined against forfeitures, “any untrue or fraudulent answers, are made to the will construe all the couditions of the contract, and questions propounded, or facts suppressed, the policy the obligations imposed, liberally iu favor of the as- shall be vitiated, and all payments of premiums made sured, and strictly against the insurer. (2) It requires thereon shall be forfeited. So if there were nothing ip the clearest and most unequivocal language to create the contract to rebut the implication, it might be held a warranty, and every statement or engagement of the that the parties had made each auswer of the assured assured will be construed to be a representation, and material to the risk by the mere fact of propounding not a warranty, if it be at all doubtful in meaning, or the questions to which such answers were made, and the contract contains contradictory provisions'relating that this precluded all inquiry into the question of to the subject, or be otherwise reasonably susceptible materiality. Price v. Phænix Mut. Life. Ins. Co., 10 of sucb construction. The court, in other words, will Am. Rep. 166, supra. lean against the construction of the contract which On tbe contrary, the policy purports to be issued will impose upon the assured the burdens of a war- “in consideration of the representations" made in ranty, and will neither create nor extend a warranty the application, and of the annual premiums. The by construction. (3) Even though a warranty in name answers are nowhere expressly declared to be warranor form be created by the terms of the contract, its ties; por is the application, in so many words, made a effect may be modified by other parts of the policy, or part of the contract so as to clearly import the an. of the application, including the questions and an- swers into the terms and conditions of the polioy.

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Among numerous other questions, the assured was sibility have affected the contract. It is true the par-
asked whether he had been affected since childhood ties have a right," the court adds, “to make their
with any one of an enumerated list of complaints or own contract, and by its terms we must be goverued;
diseases, including "fits or convulsions, and whether but before a court could hold a policy void, and all
he had “ever been seriously ill,” or had been effected premiums paid thereon forfeited, because statements
with “any serious disease," To each of tbese ques- of this character in the application turned out to be
tions he answered, "No." The concluding question untrue, they should be fully satisfied that such terms
is as follows: “(32) Is the party aware that any untrue were fully and distinctly agreed to by the parties.”
or fraudulent answers to the above queries, or any These views, in our judgment, announce the
suppression of the facts in regard to the party's sounder and more just doctrine, and tbey meet with
health, will vitiate the policy, and forfeit all payments our approval, being supported by reason as well as by
made thereon?To this was given the answer, the more recent decisions in this country on the sub-
“Yes," It is significant, as observed in a recent case ject of life insurance. 3 Add. Cont. (Morgan's ed.),
before the New York Court of Appeals, that the as- $ 1223; Price v. Phænix Ins. Co., 10 Am. Rep. 166, 174,
Bured “is not asked whether he is aware that any supra; Fitch v. American, etc., Ins. Co., 17 Am. Rep.
nnintentional mistake in answering any of the host of

372, supra.
questions thrust at him, whether material to the risk So the declaration embodied in the application
or not, will be a breach of warranty, and vitiate his would seem to indicate that it is the inadvertent sup-
policy." Fitch v. American, etc., Ins. Co., 59 N. Y. pression or statement only of material circumstances
557 ; 17 Am. Rep. 372, supra. Then follows a declara- or information with which the company should in
tion that “the assured is now in good health, and does good faith be made acquaivted that will vitiate the
ordinarily enjoy good health,'' and that in the propo- policy and cause a forfeiture. It cannot be supposed
sal of insurance he “had not withheld any material tbat oue, who for the purpose of procuring insurance,
circumstance or information touching the past or alleges himself to be in good health, shall be under-
present state of health or babits of life" of the as- stood as warranting himself to be in perfect and ab-
sured, with which the company “should be made ac- solute health; for this is seldom, if ever, the fortune

of any human being; and “we are all born," as sa d One part of the contract tbus tends to show an in- by Lord Mansfield in Willie v. Poole, Park Ins. 555, tention to constitute the answers warranties, wbile “ with the seeds of mortality in us." These inquiries the other describes and treats them as representa- as to symptoms of diseases, as made by Mr. Parsons, tions. There is thus left ample room for construc- therefore must mean whether they “bave ever aption. What is to be understood by “untrue" an- peared in such a way, or under such circumstances, swers, or “any suppression of facts ?' Can they have as to indicate a disease which would have a tendency reference to any disease with which the assured was to shorten life;" and he adds: “It is with this nieanalleged to have been afficted, of wbich he knew noth- ing the question is left to the jury." 2 Par3. Cont. ing, and could not possibly hare informed himself by *468, *471; 3 Add. Cont. (Morgan's ed.), $ 1223. It has the exercise of proper diligence? Are they intended accordingly been held in an English case, cited and as absolute warranties of the fact that he had never, approved by Mr. Parsons and Mr. Addison, that even since childhood, or during life, been afficted with dis- a warranty that the party whose life is insured "has eases of which neither be nor the most skillful physi- not been afflicted with, nor is subject to, vertigo, fits, ciau could have had any knowledge whatever? The etc.,” would uot be falsified by having had one fit. case of Moulor v. American Life Ins. Co., 111 U. S. 335, To forfeit the policy on this ground he must have is a direct and strong authority for the position that been habitually or constitutionally afflicted with fils. the word “untrue" in the above connection, in its Even then, adds Mr. Parsons, “ we apprehend the milbroader sense, means knowingly or designedly untrue, teriality of the fact would be taken into consideraor else recklessly so; that it is the opposite of sincere, tion; that is, for example, the policy would not be honest, mot fraudulent. As said in that case, it is rea- defeated by proof that the life insured, long years besonably clear that “wbat the company required of fore, and when a teething child, had a fit.” 2 Pars. the applicant as a condition precedent to any binding Cont. *471, *472; Insurance Co. v. Wilkinson, 13 Wall. contract was that he would observe the utmost good faith toward it, and make full, direct and honest an- There is nothing decided in Alabuma Gold Life Ins. swers to all questions, without evasion or fraud, and Co. v. Garner, 77 Ala. 210, or ju Alabama Gold Life without suppression, misrepresentation or conceal- Ins. Co. v. Thomas, 74 id. 578, which conflicts with the ment of facts with which the company ought to be foregoing views. The cases of Jeffries v. Life Ins. Co., made acquainted, and that by doing so, and only by 22 Wall. 47, and Ætna Life Ins. Co. v. France Ins. Co., doing so, would he be deemed to have made fair and 91 U. 8. 510, are distinguished, if not modified, in the true answers."

later case of Moulor v. American Life Ins. Co., 111 id. The case of Southern Life Ins. Co. v. Booker, 9 Heisk.

341, supra. 606; 24 A.m. Rep. 344, sustains the same view. There Our conclusion is that the following is a just and the policy, as here, was conditioned to be avoided by fair construction of the contract of insurance under

'any untrue or fraudulent answer to the questions consideration : (1) Tbat the answers of the assured in the application. The answers were not strictly true were not absolute warranties, but in the nature of as to the birthplace, residence and occupation of the representations; or if warranties, they are so modi. assured. It was held that none of these being mate- fied by other parts of the contract as to be warranties rial to the risk, they would be construed as represen- only of an honest belief of their truth. (2) Tbat any tations, although expressly declared to be “the basis untrue statement or suppression of fact material to of the contract" of insurance. The court said: “It the risk assured will vitiato the policy, and thus bar a would seem to be gross injustice to allow this (mean- recovery, whether intentional or within the knowl. ing the avoidance of the policy, and the forfeiture of edge of the assured or not. (3) If immaterial, such all payments made under it] in a case where the in- statement, to avoid the policy, must have been ansured bas acted in the utmost good faith, and hon- true witbin the knowledge of the assured; that is, he estly disclosed every fact material to be known, be- must either have known it, or bave been negligently cause merely by inadvertence or oversight, an error of ignorant of it. (4) The terms of the contract rebut fact has been inserted in his application-an error the implication that all symptoms of diseases inthat is clearly immaterial, and that could not by pos- quired about were inteuded to be made absolutely ma


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terial, unless they had once existed in such apprecia- nothing for the lumber, but on the contrary, would ble form as would affect soundness of bealth, or have merely have a further claim for breach of the contract. a teudency to shorteu life, and thus affect the risk. At the date of the contract, the added fact must be

It is very obvious that the rulings of the Circuit noted that the real claim of the defendant was unCourt conformed to these principles, and for this rea- known and unliquidated, and could not be finally asson we are of opinion that they are free from error. certained until the proceeds of the shooks were deThe evidence was sufficiently conflicting in its ten- termined by a sale. The debt was only liquidated in dencies to justify the refusal to give the general charge part. It was subject to reduction by the property requested by the defendant.

already received from Hall & Co., but the proceeds of The judgment is therefore affirmed.

which were unknown. The right of offset therefore did not and could not arise at the date of the con

tract, and sprang up, if at all, at the date of delivery. NEW YORK COURT OF APPEALS ABSTRACT. But before that, notice of another ownership inter

vened. When the lumber came, and the vendee saw ABATEMENT

SUBSTITUTION that the vendor, on a contract made with him as OF ADMINISTRATRIX - CERTIORARI.- Iu certioruri to owner, was seeking to perform as agent, and instead of the fire commissioners of the city of Brooklyn for fulfilling his own obligation was substituting performthe improper dismissal of an employee of the depart

ance by another, such vendee could refuse the subment, the relator having a claim for salary in the event stituted performance in any case where his rights or of his dismissal being set aside, and having become interest would be injuriously affected by the change. liable for costs in the Special and General Terms of Brett & Co., had been long dealing with Hall & Co., as the Supreme Court, wherein the commissioners' action owners, and in the process mutual accounts had been was affirmed, pending appeal from wbich relator died, steadily debited and credited, and applied one upon held, that relator's widow and administratrix was the other. When the purchase was made, the balance, entitled to be substituted as relator in the New York

80 far as ascertained, was largely against the vendor, Court of Appeals. May 10, 1887. People, ex rel. Fuir- and may have been made either as to quantity or child, v. Commissioners of Department of Fire & Build- price for that very reason. In such a case the vendees ings of City of Brooklyn. Per Curiam.

undoubtedly bad a right to refuse to come under

obligations to the new creditor, and did not break A GENCY - SET-OFF - SALE BY AGENT

their contract with Hall & Co., if tbey stand upon EXECUTORY CONTRACT. – A vendee who has purchased such relusal. But being at liberty to refuse, and to goods from a vendor, with whom he has dealt as

demand performance by Hall & Co., under the existing owner, and who is indebted to bim on account of pre- circumstances and relations in strict accord with their vious similar transactions, in part settlement of which

contract, they were also at liberty to accept the lumindebtedness the goods are sold, cannot, if he is in-ber, with the necessary consequence that the whole fornied before delivery and acceptance of the goods purchase price should become due to the real and disthat they are in fact the property of a person for whom

closed owuer, and none of it to Hall & Co., except as the vendor is acting as agent, offset the amount due

agents for that owner. And so it follows that the from the agent in an action by the real owner to re

authorities stand upon just principles when they ascover the value of the goods. The reasoning of the

sert that the set-off is lost if the principal is disclosed learned counsel for the appellants is founded substan

before the goods are delivered or the payment made. tially upon the validity and binding force of the execu. The vendee is not then acting in the dark, and has his tors contract of purchnse and sale at its date. He liberty of action remaining at least, where his interanswers the authorities, which deny the right of off

ests may be affected by the change of creditors, and so set when notice of an agency and different ownership

can have no equity to use the goods of one man to pay is given, " before the contract is completed,” Moore the debt of another. If he refuses, as he


his conv. Clementson, 2 Camp. N. P. 22; “ before they are de

tract relation with his vendor remains, and all his livered or paid for." Barb. Set-off, 135, 136; before the rights and remedies under it. But if he accepts he factor "delivers goods in bis own name,' " Rabone v.

cannot complain that his rights are cbanged and Williams, 7 T. R. 360; “ by something which transpired harmed, since the acceptance is his free and volunbefore the contract was completed,” Hogan v. Shorb, tary act, made with full knowledge, and without being 24 Wend. 463; by insisting that they relate to cases in

misled. April 19, 1887. McLachlin v. Brett. Opinion which the sale and delivery are concurrent acts, and

by Finch, J. there is no contract without the delivery; and he claims that in the present case the rights of the parties APPEAL-OBJECTION NOT RAISED BELOW-FOREIGN were fixed when the contract itself was made; that JUDGMENT - EVIDENCE-CONFLICT OF LAWS-INTERthe right of set-off at once aecrued; and when tbe EST.-(1) Objections that the copy of a judgment roll of principal sued, and took the benefit of his agent's con- the court of a sister State was not properly exemplitract, he was liable also for its burdons. We think the fied, which might have been obviated if they had been error in this reasoning lies in the assumption that the made in the trial court,cannot prevail when taken for defendant obtained a right of set-off at the moment the first time in the appellate court. (2) A copy of the the contract was made. We are unable to admit that records of the courts of a sister State is admissible proposition. The contraot was executory. While it in the courts of New York, if prored in accordance remained such, it created no debt due to Hall & Co., with the laws of that State. (3) A judgment giren in against which there could be a set-off. Out of that Utah, in 1877, provided for interest at the rate of ten contract a debt due from the defendant might or per cent, which was the lawful rate there. A suit was might not arise, and until it did there was nothing upon brought upon it in New York, where by statute inwhich a counter-demand could be applied. The de- terest on judgments had been seven per cent prior to fendant was not at once liable for the purchase price 1879, when it was changed to six per cent. Hell, that of the lumber. Until its delivery or tender in accord- as by the decisions of New York, interest on judgance with the contract terms, the vendee was not ments was considered in the nature of damages, the bound to pay or give bis note; and until those con- lex fori must govorn, and that the plaintiff should have ditions performed created a debt, there was wone so seven per cent up to 1879, and after that six per cent. existing as even to raise the question of off-set. If the In Taylor v. Wing, 84 N. Y.471, the mortgage in terms vendors did not perform, the vendees would owe them | called for interest "at beveu per cent until paid,” and

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