79 N.J.L. 398 | N.J. | 1910
The opinion of the court was delivered by
The defendant, on May 18th, 1907, issued to John Drews a life insurance policy under which $500 became
In Wright v. M. B. L. Association, 118 N. Y. 231, 243, where a similar contract was under consideration, it was held: “It is not a stipulation absolute to waive all defences and to condone fraud. On the contrary, it recognizes fraud and all other defences, but it provides ample time and opportunity within which they may be. but beyond which they may not be, established. It is in the nature of, and serves a similar purpose as, statutes of limitations and repose, the wisdom of which is apparent to all reasonable minds. It is exemplified in the statute giving a certain period after the discovery of a fraud in which to apply for redress on account of it. * * * The parties to a contract may provide for a shorter limitation thereon than that fixed by law, and such an agree
A contract in the precise words of the one now being considered was dealt with by the Supreme Court of Rhode Island (Murray v. State Mutual Life Insurance Co., 22 R. I. 524), where it was held that the clause was plain and unambiguous, and clearly meant that no defence whatever could be interposed after two years from the date of the contract if the premiums had been paid according to its terms.
Counsel for appellee cites Holland v. Chosen Friends, 25 Vroom 490, in support of its claim that a clause of this character included in an agreement procured by fraud should not receive legal countenance, but the opinion in that case shows that this question was not considered. Mr. Justice Depue, who spoke for the court, said: “Without considering the question whether an agreement having the effect to constrain a party to abide by a contract procured from him bj fraud and deception will receive any legal countenance where such an agreement is a part of the very contract which is tainted with fraud, I think it is clear that an agreement which shall be conceded that effect must be expressed in terms that are clear and unambiguous.” In that case the application alone contained an agreement that any false statement by the applicant, or expulsion or suspension from the beneficial order, whether voluntary or involuntary, should forfeit his rights therein, and that in case of death during such suspension his
The appellee further insists that if all the objections which it urges be resolved against it, yet the insured waived the benefit of the disputed clause. This claim is rested upon the fact that his application declared that the matters stated therein were true and should form the basis of the contract, if made, and if not true, then the policy should be null and void. The difficulty with this proposition is that notwithstanding this representation the insurer entered into the contract not to contest after two years, even if it should turn out that some of the representations were not true. If within the two years it had been discovered that some of the statements were not correct or wholly true, their falsity would have been a good ground for rescinding the contract during that time, but the statements do not amount to a waiver of the benefit of a covenant not then in existence, and which was made for the benefit of the assured upon conditions which it was agreed should not destroy the contract after a specified period.
The evidence upon which the direction for the defendant rests was improperly admitted, and without it the direction has no legal foundation. The judgment is therefore reversed, and a new trial ordered.