This case arises out of an attempt by defendants as vendors to cancel a contract for deed to sell certain real estate to plaintiffs as vendees. It has been here on two prior occasions. Craigmile v. Sorenson,
Briefly, the facts are that on April 16, 1951, defendants, husband and wife, as vendors, contracted to sell a tract of farmland in Kitt-son County, in this state, to plaintiffs as joint tenants. Thereafter a dispute arose as to the validity of the contract. On May 29, 1953, our opinion in the first case was filed upholding the validity of the contract (
It is the contention of defendants that (1) plaintiffs, as vendees, were in default under the contract for deed for the reason that they failed to name defendant Euby C. Sorenson in the policies of insurance covering the buildings on the premises as a person entitled to receive the proceeds of the insurance in case of loss; (2) they are in default in failing to name Mary Joan Craigmile as joint owner of the property in such insurance policies; (3) the court lacked jurisdiction to adjudge that the insurance policies be amended to make them comply with the contract; and (4) the stipulation of facts is conclusive and that the court was bound thereby and could not go beyond the stipulation of facts.
*289 The contract for deed contains the following provision, among others:
“Said parties of the second part further covenant and agree as follows: * * * at their own expense, to keep the buildings on said premises at all times insured in some reliable insurance company or companies, to be approved by the parties of the first part, against loss by fire for at least the sum of insurable value and against loss by windstorm for at least the sum of insurable value payable to said parties of the first part, their heirs or assigns, and, in case of loss, should there be any surplus over and above the amount then owing said parties of the first part, their heirs, or assigns, the balance shall be paid over to the said parties of the second part as their interest shall appear, and to deposit with the parties of the first part policies of said insurance.”
In the execution of the contract for deed defendants are designated as husband and wife. The record fails to disclose who was the record owner or whether one of the vendors signed only as the spouse of the record owner. There is no indication, nor does the contract so state, that they were joint owners. Plaintiffs’ attempt to comply with this contract with respect to the insurance requirement discloses a determined attempt on the part of defendants, as vendors, to do all that they could to prevent performance. As part of the tender made after service of the notice of cancellation of the contract, plaintiffs included fire insurance written by Hallock Farmers Mutual Fire Insurance Company and windstorm insurance written by Minnesota Farmers Mutual Insurance Company. 1 These were the same companies with which defendants had carried insurance on the buildings on this very farm prior to the execution of this contract, and the same companies with which they carried insurance on their own property. In spite of this, they refused to approve the insurance policies without giving any specific reason therefor.
In a hearing before the trial court, defendants were directed to disclose what insurance company would be acceptable to them, as well as the amount which they claimed to be due on the contract, in *290 order to afford plaintiffs an opportunity to comply with their demands. Adolf Sorenson wrote the court a letter on August 7, 1953, in which he stated the amount which he claimed to be due and also stated:
“* * * I want this farm covered by one of the following company.
“Boston Insurance Co.
Boston Massachusetts c/o Yiblen Insurance Agency,
Hallock, Minnesota.
“That company will be acceptable for both fire and tornado, the Ins. value is $14,000.”
Ruby Sorenson, as of the same date, wrote the court stating the amount which she claimed to be due but said nothing at all about insurance.
Plaintiffs thereupon procured insurance from the company and agency named in Adolf Sorenson’s letter. They then attempted in various ways to make a tender upon defendants of these policies and the money which was claimed to be due. On August 8, 1953, Milton D. Craigmile, his attorney, and two other individuals went to Sorenson’s home and had with them cash money in the amount stated in the Sorenson letters and the insurance policies written by the Boston Insurance Company for the purpose of making a tender thereof. The Sorensons were not at home. Craigmile and the others were informed that they were in North Dakota and would not return until the following week. On the same day, plaintiffs obtained an ex parte order from the trial court authorizing them to deposit the money and insurance policies with the clerk of the district court if they were unable to make a tender on the Sorensons within the time limited by the notice of cancellation. 2 On August 10, after three visits to the Sorenson home, they deposited the money and insurance policies with the clerk of the district court pursuant to the court’s order. Defendants and their attorney were notified promptly of such deposit by the clerk by mail. The statutory *291 period for reinstatement of the contract for deed expired. Defendants at no time during that period, as far as appears from the record, stated the reason for their refusal to accept this tender. They now claim that there was a default for failure to include the name of Ruby Sorenson in the loss payable clause.
For the most part defendants rely upon Hebert v. Turgeon,
Where, as here, the vendors refuse to approve the policies of insurance tendered by the vendees and thereafter fail or refuse to comply with a reasonable request that they state what insurance they will approve, they cannot claim a default for the purpose of effecting a cancellation of the contract until they have given the *292 vendees a reasonable opportunity to comply with the contract.
Where the vendors in a contract for deed reserve the right to approve insurance placed on buildings on the premises, they must exercise the right to approve in good faith in such a manner as to permit the vendees to comply with the contract. Where they act in such a manner as to prevent performance, they cannot claim a default until they have afforded the vendees a reasonable opportunity to perform. In 3 Williston, Contracts (Rev. ed.) § 677, we find the following statement:
“It is a principle of fundamental justice that if a promisor is himself the cause of the failure of performance, either of an obligation due him or of a condition upon which his own liability depends, he cannot take advantage of the failure.”
Defendants next contend that there has been a default because the insurance policy was issued to Milton D. Craigmile as owner alone rather than to Milton and his wife, Mary Joan Craig-mile, as joint tenants. To be tenable, this contention must be based on the premise that, in the event of a loss, the insurer would be absolved of liability. Reliance is placed on the cases of Parsons, Rich & Co. v. Lane,
“* * * This entire policy * * * shall be void * * * if the interest of the insured be other than unconditional and sole ownership or if the subject of insurance be a building on ground not owned by the insured in fee simple.”
*293
In holding that a violation of this provision would void the policy, we relied upon our earlier decision in Collins v. St. Paul F. & M. Ins. Co.
“* * * The policy expressly excluded from its operation any interest other than the absolute and sole ownership.”
The policy involved in the case now before us contains no such provision. Instead, it provides:
“The policy shall be void if any material fact or circumstance stated in writing has not been fairly represented by the insured * * *.”
This language is taken from our standard fire insurance policy set forth in M. S. A. 65.01, which contains the permissible form of fire insurance policies and the provision limiting liability which they may contain. The above provision must be read with § 60.85, which reads as follows:
“No oral or written misrepresentation made by the assured, or in his behalf, in the negotiation of insurance, shall be deemed material, or defeat or avoid the policy, or prevent its attaching, unless made with intent to deceive and defraud, or unless the matter misrepresented increases the risk of loss.”
This statute has been frequently construed. In Johnson v. National Life Ins. Co.
“Our statutes, and statutes like them, were intended to put warranties upon substantially the basis of representations and to do away with defenses made by incorporating conditions and terms in policies, making them by agreement material representations or warranties, and controlling on the right of recovery. As we construe the statute a material misrepresentation, made with intent to deceive and defraud, avoids the policy. A material misrepresentation, not made with intent to deceive or defraud, does not avoid the *294 policy, unless by the misrepresentation the risk of loss is increased. If a material misrepresentation increases the risk of loss the policy is avoided, regardless of the intent with which it was made. An immaterial representation, though made with intent to deceive and defraud, does not avoid the policy.”
That construction has since been frequently followed. 3
In McLevis v. St. Paul F. & M. Ins. Co.
“The policy provided that it should be void ‘if any material fact or circumstances stated in writing has not been fairly represented by the insured.’ That provision is controlled by the statute already discussed. The policy did not contain any provision avoiding it ‘if the interest of the insured in the property is not one of absolute and sole ownership.’ So cases involving policy clauses of that kind are clearly distinguishable, e. g. Collins v. St. P. F. & M. Ins. Co.44 Minn. 440 ,46 N. W. 906 . They have to do with absolute conditions of liability, the failure of which is fatal to the insurance. There was no such condition here. There was only a misrepresentation, the effect of which on the policy is controlled by the statute.”
That decision is controlling here. Consequently, the questions for our determination are: (1) Were any oral or written misrepresentations by the assured, or in his behalf, in the negotiation of the insurance, made with intent to deceive or defraud the insurer? *295 (2) If not, did any such misrepresentations increase the risk of loss?
The burden of proving that a misrepresenation was made with intent to deceive or defraud the insurer rests on the one who asserts it. 4 It is a question of fact to be determined by the jury, or the trial is without a jury, unless the evidence is conclusive one way or the other. 5 The same is true as to whether the misrepresentation, if made with no intent to deceive or defraud, increased the risk of loss. 6
Here there was no written application. Certainly there was no misrepresentation in writing. The record is silent as to who gave the agent for the insurer the information on which it was written. The insurance company and the agent were selected by defendant Adolf Sorenson. The trial court was of the opinion that “the conclusion is at least as logical that the defendants called at the insurance agency and gave the necessary information” as that plaintiffs gave it to him. On the basis of the record before us, we are inclined to agree. At least there is absolutely no evidence of any misrepresentation, oral or written, made by the assured, or in their behalf, in the negotiation of the insurance that could by any stretch of the imagination be said to have been made with intent to deceive or defraud anyone. As soon as the court directed them to do so, plaintiffs promptly procured a rider including the names of both coowners.
We then come to the question: Has the failure to include the name of Mary Joan Craigmile as one of the insured increased the risk of loss ? The court made no specific finding on this issue but did state in a memorandum, expressly made part of its findings, that “The failure to include the name of the plaintiff, Mary Joan Craigmile, as an owner, did not increase the risk of loss.”
No motion for amended findings or findings contrary to the above has been made. Here, again, the burden rested on defendants to *296 prove that which they assert. The record is barren of any evidence to establish the fact that the risk of loss was increased on account of the omission of the name of Mary Joan Craigmile. It is difficult to see how it could be so under the facts of this case. It follows that the court’s determination on both issues is amply sustained by the record. Having failed to establish the invalidity of the policy tendered, defendants are in no position to claim a default on that ground.
Defendants then contend that the court lacked jurisdiction to adjudge that the vendees be permitted to amend the policy by including the omitted names of Ruby C. Sorenson and Mary Joan Craigmile. This contention is based on the premise that cancellation of a contract for deed is a proceeding in pais and that the court has no power to interfere with it. We have already discussed the equitable powers of the court in connection with this proceeding in our former opinion. Craigmile v. Sorenson,
The situation in Johnson v. Northern Minnesota Land & Investment Co.
“* * * Without passing upon the ultimate validity of the policy, it is enough to say that the record discloses a good-faith attempt upon the part of Fry as the purchaser of the mortgaged premises to comply with the requirements of the mortgage in the matter of insurance and that none of the objections which are now urged as a ground for declaring the mortgage due were made at any time before the commencement of suit. It is only elementary justice to hold that when a mortgagor actually procures insurance in some form in a good-faith attempt to comply with the requirements of the mortgage, a mortgagee cannot arbitrarily declare a default without giving to the mortgagor notice of his objection and a reasonable opportunity to meet it. Such was the holding in Provident Sav. L. Assur. Soc. v. Georgia Ind. Co.,52 S. E. 289 (Ga.).
*****
“We hold, therefore, that inasmuch as Fry procured his insurance in good faith, he was entitled to some notice of the mortgagee’s objection thereto and a reasonable opportunity to meet such objections before the mortgagee could declare the mortgage due for such alleged default.” 7
In this case it is apparent that failure on the part of Ruby Sorenson to state what insurance company she would be satisfied with and failure to state at any time the objection to the insurance which was furnished is the basis for defendants’ belated claim of a default. If defendants had acted in good faith and had made known their objection to the policy, the omission, without any question, would have been corrected prior to the expiration of the time for canceling this contract. Failure of defendants to do so obviously was an attempt to create a default by preventing a performance of the contract rather than cooperating with plaintiffs in an attempt to seek its performance. To permit defendants to take advantage of such action on their own part would permit a party to take advantage of his own wrongful conduct. We see no reason why the court could *298 not permit plaintiffs to comply with the contract as part of its declaration of the rights of the parties when it was finally determined what the objection to the insurance was.
Defendants next contend that the court lacked jurisdiction to grant the relief for correction of the defects in the insurance for the reason that no such relief was demanded in the pleadings. In their prayer for relief, in addition to asking that the rights of the parties be determined, plaintiffs asked for such other and further relief as the plaintiffs might be entitled to in the premises. The court could determine all the rights of the parties under this prayer for relief.
The final contention of defendants is that the court could not make its finding No. 2, which in effect finds that the vendors did not disclose their objection to the policy at the time they rejected the tender thereof, for the reason that there was no stipulation to that effect in the stipulation of facts. The stipulation for an order settling the case, signed by the attorneys for all the parties, shows that the parties theretofore had stipulated that the “case ‘may be submitted’ for decision * * * up on the files, records and proceedings herein and upon the facts therein stipulated at pages 2 to 17 thereof, inclusive. The said facts were stipulated to be the evidence in the case.” Under this stipulation, the court was not bound by the stipulation of facts alone. There is ample support in the record for the finding mentioned, and, as a matter of fact, it is implicit in the stipulation of facts as well. We see no merit to this contention.
Affirmed.
Notes
See, Craigmile v. Sorenson,
See, Craigmile v. Sorenson,
See, First Nat. Bank v. National Liberty Ins. Co.
See, Nielsen v. Mutual Service Cas. Ins. Co.
See, Nielsen v. Mutual Service Cas. Ins. Co. supra.
See, Nielsen v. Mutual Service Cas. Ins. Co. supra.
See, also, Fraser v. Kay (Tex. Civ. App.) 251 S. W. (2d) 754.