123 Kan. 82 | Kan. | 1927
The opinion of the court was delivered by
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
“Jan. 21, 1924.
“Received of The Federal Reserve Life Insurance Company policy No. 5398 issued on the Whole Life Return Premium Plan (graded death benefit; maximum amount, 85,000), which I have carefully examined and find to be as represented; said policy is satisfactory and is accepted, and my note given in settlement of premium will be paid at maturity. Belle E. Holm,
Witness: Wm. Simpson. By, Glenn H. Holm.”
“Jan. 21, 1924.
“Received of The Federal Reserve Life Insurance Company policy No. 5375, issued on the Whole Life Return Premium Plan (graded death benefit; maximum amount 85,000), which I have carefully examined and find to be as represented; said policy is satisfactory and is accepted, and my note given in settlement of premium will be paid at maturity. Glenn H. Holm.”
Witness: Wm. Simpson.
“Jan. 21, 1924.
“Received The Federal Reserve life Insurance Company policy No. 5373, issued on the Whole Life Return Premium plan (graded death benefit; maximum amount 85,000), which I have carefully examined and find to be as represented; said policy is satisfactory and is accepted, and my note given in settlement of premium will be paid at maturity. Irene Holm.”
Witness: Wm. Simpson.
On the trial a stipulation was entered into that:
“The plaintiff and defendant both here agree that all evidence produced so far may be withdrawn and the plaintiff here moves for judgment on the pleadings and opening statements. Both parties here agree that in the event that the court sustain said motion the defendant will pay the amount sued for after a final determination. In event the court overrules the motion, the plaintiff will dismiss the ease with prejudice.”
The defendant contends that the representation that the policy would provide for his beneficiary receiving $5,000 in the event of his death during the first policy year, if false, was sufficient to avoid the note. His answer, however, contained this allegation:
"And at said time and date, induced the defendant to sign an application by which he was to agree to have issued upon his life . . . insurance upon the graded benefit plan in the sum of $5,000 and upon the life of his wife in the sum of $5,000.”
The graded death benefit plan provides that the full amount of insurance is not to be paid if death occurs during the first year. The policy receipts signed by the defendant show that the death benefit was to be graded and that the defendant had carefully examined and found them to be as represented. Since he signed such receipts at the time the policies were delivered in January, 1924,
The defendant contends that the representation that the shares of stock would be paid for within five years from dividends accruing from the policies was a representation which, if false, constituted fraud. We are of the opinion that such representation was not one of past or existing facts. False representations, in order to be fraudulent, must relate to a present or past state of facts. No action will lie to recover damages as for deceit in the failure to perform a promise looking to the future. (Kiser v. Richardson, 91 Kan. 812, 139 Pac. 373; 12 R. C. L. 252.)
“To constitute a representation, as that term is understood in the law relating to fraud, there must be a statement or representation as to a fact, and it must also be as to a past or existing fact.” (14 A. and E. Encyc. of L., 33.)
“Statements . . . made for the purpose of inducing another to buy, or to invest money, may be and generally are merely expressions of opinion, and if so intended and understood, they will not constitute fraud, in the absence of misrepresentation of material extrinsic facts, or concealment of facts.” (14 A. and E. Encyc. of L., 41.)
“It is a general rule that false representations, to constitute fraud, must relate to some material past or existing fact. It has frequently been held, therefore, that a charge of fraud cannot be predicated upon a mere promise, nor upon the mere statement of intention not amounting to a general promise either for the purpose of maintaining an action of deceit or for the purpose of avoiding a contract.” (14 A. and E. Encyc. of L., 47.) .
The defendant contends that the representation that the stock was of the value of $200 per share, if false, was misrepresentation constituting fraud. The note on which the action was founded was given for the first annual premium on the policies of insurance issued upon the lives of defendant and his family. The stock in the insurance company was to be paid for by dividends arising from such policies. Defendant, under the contract, was not to be the owner of
“A statement by the promoter of a corporation that stockholders would receive from ten to twenty-five per cent on their money paid for stock, is an expression of an opinion, and the fact that the corporation became insolvent and ceased to do business six months later, does not invalidate a note given in payment for stock.” (Swan v. Mathre, 103 Ia. 261.)
“The representations of a soliciting agent with regard to the ultimate value of railroad stock, is mere matter' of opinion, upon which the subscriber has no right to rely.” (Vawter v. The Ohio and Miss. Ry. Co., 14 Ind. 174.)
“The representation, to be material, must be in respect to ascertainable facts as distinguished from mere matters of opinion or speculation. A representation which merely amounts to a statement of opinion, judgment, probability, or expectation, or is vague and indefinite in its nature and terms, or is merely a loose conjectural or exaggerated statement, goes for naught, though it may not be true; for a party is not justified in placing reliance on such statement or representation. Such an indefinite or speculative representation should put the person to whom it is made upon inquiry; and if he chooses to put faith in such a statement and abstains from inquiry, he can have no ground of complaint. A representation that the stock of a corporation would pay twenty per cent dividends, furnishes no ground for an action for misrepresentation and deceit.” (Robertson v. Parks et al., 76 Md. 118.) (See, also, Lake v. Security Loan Association, 72 Ala. 207; Columbia Electric Co. v. Dixon, 46 Minn. 463; Warner v. Benjamin, 89 Wis. 290.)
Defendant’s contention relative to the stock cannot be regarded as serious because it appears that the stock was not part of the consideration for the note sued upon.
The defendant relies on Pierce v. Liberty Life Ins. Co., 120 Kan. 86, 89, 242 Pac. 133, and other similar cases.- The instant case is to be distinguished from the Pierce case because there the policy was returned to the insurance company a few days after its issuance. Here defendant alleged the policies had never been delivered, but admitted on the trial more than two years thereafter that he still retained them.
Various other contentions have been considered, but none in our opinion are sufficient to warrant a reversal.
The judgment is affirmed.