133 Wis. 485 | Wis. | 1907
The only possible right of the defendants to the $400 of money and the $4,244.68 note deposited with the bank on March 20, 1906, arose from the agreement made on that day. That agreement, as found by the court, was for delivery of a ten-year endowment policy for $50,000 without qualification or mental reservation, namely, a policy which should provide for the payment of that amount of money at the end of ten years or upon plaintiff’s death. ' Such finding is not only without antagonism by any clear preponderance of evidence, but supported by such proof as to leave it almost without doubt. That defendants have refused to deliver such policy and have insisted and do insist upon the delivery of a different one is undisputed. That upon the delivery of such other policy they induced plaintiff to deliver over the $400 and consent to the issue of a binding receipt by the bank declaring the note to be held absolutely for Johnston, by means of misrepresentation that the papers delivered complied with the terms of the contract made on March 20th, accompanied by such circumstances of urgency and haste and of misleading written or printed indorsements upon and prominent headlines in the policy as to absolve plaintiff from negligence in crediting and relying upon said representations, is also found by the court, and, as we conclude from the examination of the record, upon abundant evidence. Erom such facts the conclusion of law that the plaintiff is entitled to relief from the injury thus caused him and to the re-establishment of the status quo disturbed by such fraud is elementary. Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 89 N. W. 538, 92 N. W. 246; Urwan v. N. W. Nat. L. Ins. Co. 125 Wis. 349, 103 N. W. 1102; Johnson v. Swanke, 128 Wis. 68, 107 N. W. 481; 2 Pom. Eq. Jur. (3d ed.) § 872. While that portion of the relief consisting in the mere recovery back of the $400 might be accomplished by a court of law, that would not re-establish the status quo without the cancellation of the note and immediate preven
To avert this conclusion it is urged that plaintiff was guilty of negligence and laches in not sooner discovering that the papers he had received were not the policy to which he was entitled and promptly rejecting the same and seeking rescission,'under authority of such cases in this court as Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 89 N. W. 538, 92 N. W. 246. We are not fully informed as to appellants’ idea of diligence, but, it having been established that the papers passed into plaintiff’s possession as the policy to which he was entitled without negligence on his part, we can discover no unreasonable lack of diligence when we remember that within an hour or two thereafter he procured a translation of the quite involved and complicated phraseology of the policy and notified .the defendant’s agent of his objections thereto, tendered back the policy, and demanded return of that which he had given therefor. No case has been cited to us in any wise suggesting that such conduct could support inference of negligence, laches, or ratification, and the finding of the' court that none was established must be sustained. True, it is argued that he did not commence suit for rescission until twelve days later, to wit, April 28, 1906; but there is no showing that in this very brief interval the defendants have suffered any change of position. They had been fully notified of the election of the plaintiff to rescind the transaction and to insist upon a return of that which they had received from him unless they were willing to deliver such policy as required by the agreement under which they had so acquired his property. Further than this, it must be borne in mind that a considerable part of this twelve days was covered by at least tentative promises on the part of Johnston to attempt to arrange the matter to plaintiff’s satisfaction, and by at least one letter from the company’s general agent inviting delay.
Further contention is made that plaintiff can have no
Some contention is made that the company is not bound
We find no other contentions on the part of appellants which do not either carry their refutation on their face or have been inferentially met and considered in what has preceded, to justify further discussion. We axe persuaded that to the extent of the relief granted the judgment is fully warranted by findings which have'sufficient support in the evidence.-
By the Court. — Judgment affirmed.