45 Ind. 43 | Ind. | 1873
Hicks King, the appellant, owned an interest in the steamboat Empire, valued, by agreement with the appellee, at the sum of seven thousand five hundred dollars.
On January 24th, 1868, the appellee by her policy, number 623, insured the said interest in the Empire to the amount of five thousand six hundred and twenty-five dollars, at the rate of twelve per cent., against perils of the seas, rivers, etc., from January 24th, 1868, to January 24th, 1869,, “ with permission to navigate the Ohio river and tributaries, except the Wabash, and the Mississippi river between Cairo, 111., and Memphis, Tenn.”
Afterward, on April 16th, 1868, the appellee issued andi delivered to King the following extra or additional privilege;
“ Enterprise Insurance Company, Capital $1,000,000.
“Cincinnati, April 16th, 1868.
End’s’t: Hull Policy No. 623.
Steamer Empire.
“ In consideration of six per cent, additional premium, privilege is hereby granted the steamer Empire to navigate the Arkansas river and the Mississippi river, below Cairo, Illinois.
“ Said policy covering the interest of Hicks King in said steamer.
“ Sum insured 5,625 dollars at 6 per cent. - $337.50 [seal.] “ H. Byron Carter, Ass’t. Sec’y.”
On December 24th, 1868, the Empire left New Orleans with a cargo of general merchandise, for Cincinnati, Ohio. She proceeded in safety until the night of December 26th, 1868, when she reached a point in the Mississippi about thirteen miles below Natchez, Here a heavy fog came on, so enveloping her that further navigation was extremely dangerous.
She immediately “tied up” to the Louisiana shore, to await the lifting of the fog.
A protest was properly made out as near as possible to the scene of the disaster, and a true and properly certified ■copy of it was tendered to the appellee.
Its officers refused to receive it, although no objection was •made to its form.' ' ' '
At the time .of the loss, King owned three-eighths of the Empire, and his loss exceeded the sum insured.
The appellant’s amended complaint is in the usual arid proper form of complaints upon policies. It recites clearly and fully the main facts, ás above briefly described, and the policy, privilege, and protest are attached to it by copy as exhibits.
The appellee answered in four paragraphs. The first was the general denial. The third was stricken out on motion.
The second averred in substance, that the original policy only gave permission “ to King to navigate the Ohio fiver and tributaries, except the Wabash, and to navigate the Mississippi river between Cairo, Illinois, and Memphis, Tennessee,” at the rate of twelve per cent., per annum; that the Empire was accustomed to run in the Louisville and Memphis trade; that on April 15th, 1868, for an extra premium of six percent., amounting to three hundred and .thirty-seven dollars and fifty cents, the privilege was granted to King “ to navigate the Arkansas river, and the Mississippi river below Cairo, Illinois.” This extra privilege was granted on a separate slip furnished to King by the appellee; that on Jüly 13th, 1868, ■said extra privilege was cancelled; that a note for the three hundred and thirty-seven dollars and fifty cents had been given by King to the appellee, and on it a credit was allowed by
The fourth paragraph was as follows:
The defendant amends her answer herein, and- for further and fourth plea, says the steamboat Empire was a stern wheel boat and usually ran in the Louisville and Memphis trade. The original policy gave plaintiff permission to navigate the Ohio river and tributaries, except the Wabash, and to navigate the Mississippi river between Cairo, Illinois, and Memphis, Tennessee, as -will more fully appear from the policy filed with plaintiff's complaint, and which is hereby referred to and made part hereof. Long after the issuing of said policy, the plaintiff through M. A. Huston, of Louisville, Kentucky, .who acted as an insurance broker in the transaction, applied to defendant for the privilege to navigate Arkansas river with- the privilege of cancelling it at any time. This was done by a letter of said* M. A. Huston, dated 10th of April, 1868, and addressed to W. B. Cassily, Vice President of the Enterprise Insurance Company, which letter is already on file in this case as part of W. B. Cassily’s deposition marked “ B,” and is hereby referred to and is made part hereof) and a copy thereof, marked B—is herewith filed and made part hereof, which reads as follows:
“B-i. W. B.C.”
Copy of letter. “M. A. Pluston to W. B. Cassily, Kentucky, Marine and Fire Insurance Company.
“Louisville, April 10th, 1868.
“ W. B. Cassily, Vice President:
“ Dear Sir, Captain Plicks King, whose • interest in steamer Empire is insured in the Enterprise desires the annual privilege for the boat to navigate Arkansas river; privilege of cancellation at any time. Please send me per*48 mit. The interest of H. J. Reamef is insured in other companies of your city. He has not yet instructed me to obtain same privilege.
“ Respectfully yours,
“ M. A. Huston.”
Upon this application the defendant issued, on said 16th day of April, 1868, to the said plaintiff the extra privilege which is spoken of as a written obligation in the complaint, and which is copied in the complaint, and which copy is-hereby referred to and is made part hereof. Said extra privilege was in substance, that in consideration of six per cent.. additional premium, privilege was thereby granted by the defendant to the steamer Empire to navigate the Arkansas river and the Mississippi river below Cairo, Illinois, the original policy covering the interest of Hicks King in said steamer Empire; sum insured five thousand six hundred and twenty-five dollars; premium, three hundred and thirty-seven dollars and fifty cents. For which premium of three hundred and thirty-seven dollars and fifty cents, the said plaintiff executed on the same day his note to the defendant, payable in six months from date, and the said extra privilege was granted on a separate slip of paper and was delivered to and accepted by the plaintiff. The privilege as asked for was called the-Arkansas privilege, but the privilege as issued contained the-permission to navigate the Mississippi also, as well as the Arkansas, in order that the plaintiff might enjoy the full benefit of the privilege he asked, as the boat could not enter the Arkansas river without navigating the Mississippi below Memphis, which latter place was as far south as she was authorized to go by the original policy. And afterward, on the 13th of July, 1868, the plaintiff through the said M. A. Huston, applied to Atwood & Nicholas, who were the local agents of the Enterprise Insurance Company in Louisville, Ky., to have said extra privilege cancelled. And Atwood & Nicholas thereupon addressed a letter on said day to W.. B. Cassily, Vice President of said company, in which, amongst other things, they said: “ The Enterprise has note
“ C-2. W. B. C.
"Copy of letter of Atwood & Nicholas to W. B. Cassily.
“Fire, Marine, and Life Insurance Agency of Atwood- & Nicholas, Main street, between Third and Fourth.
"Louisville, Ky., July 13th, 1868.
“W. B. Cassily, Esq.:
"Dear Sir, Woolfolk promises to pay balance of note steamer Richmond to Merchants and Manufacturers’ Insurance Company this week. The Enterprise has note for Arkansas river of Hicks King on steamer Empire. He wishes to pay. up and have risk cancelled for Arkansas. Please send note to us. Belle Lee people at a stand-still; will pay half or cancel to-morrow.
“ Yours truly,
“Atwood & Nicholas.”
"July 17th, 1868. R.”
“Arkansas note sent.
The note referred to in said letter was the note of said plaintiff to the company above mentioned, of three hundred and thirty-seven dollars and fifty cents, which was given for the extra privilege of navigating the Arkansas and the Mississippi rivers as aforesaid; and although said letter spoke of the Arkansas river risk as the one which was desired to be ' cancelled, yet it was merely so called, and what was understood and meant by both parties was, that the privilege as granted should be 'cancelled, which, although called the Arkansas privilege, was really the privilege to navigate both the Mississippi and the Arkansas. The defendant on the 17th of July, 1868, through its secretary, W. M. Richardson.,,
“F-3. W. B.C.
“Copy of letter of W. M. Richardson to Atwood & Nicholas.
“Enterprise Insurance Company.
“Capital - - . - - $1,000,000
“Cincinnati, July 17th, 1868.
“ Messrs. Atwood & Nicholas, Louisville, Ky.:
“ Gents, As per your favor of the 13th, we enclose you Hicks King for steamer Empire for cancellation and collection :
Amount earned - $135.00
Amount returned - - 202.50
Amount of Note - 337*50
“ Please collect amount earned and cancel policy and remit.
“ I am truly,
(Signed.) “ W. M. Richardson.
“ ‘ F.’ W. M. Richardson.”
This note was handed by Atwood & Nicholas to the said M. A. Huston. It was agreed between the parties, that the said extra privilege as granted should be cancelled as of the date of the 13th of July, 1868, and that the plaintiff should pay defendant one hundred and thirty-five dollars in cash for the time he had used said extra privilege, according to the short rate principle as fixed by the policy, and that he should have a credit on his note for two hundred and two
A. The substance of the original policy was entered upon the books of the company at the time it was issued, and when said extra privilege was granted to navigate the Arkansas and Mississippi rivers, on the 16th of April, 1868, the substance of said extra privilege was entered upon the books of the company, and when said extra privilege was cancelled, the substance of the cancellation was likewise entered on the books of the company, at the bottom of the privilege, thus:
“Cancelled July 13th, 1868; earned (premium) $135.00; return (premium) 202.50.”
Copies of all of which entries from the books of said company are already on file in this case, as part of W. B. Carter’s deposition, marked exhibit “ D,” and which are hereby referred to and made part hereof, and copies of which are herewith filed, marked “ D-4,” and are made part hereof.
“W. B. C.
“Copy exhibit D-4 of entries on Hull register or Hull book of Enterprise Insurance Company:
“Copy. Steamboat Empire.
“No. 623, prop’n. (New form policy.) The Enterprise*52 Insurance Companyof Cincinnati by these presents do cause to be insured Hicks King on his interest. Coal oil clause waived.
“$5,625 ( To navigate the Ohio river
.12 < and tributaries (except the Wabash,;
675.00 ( and the Mississippi river between Cairo, Ill.; and Memphis, Tenn.
“ Valuation of boat, $20,000.
“ Limit of boat - 15,000.
“ Privilege of Arkansas and Mississippi below Cairo, for six per cent, April 16th, 1868. See page 72, Agency Louisville. Atwood & Nicholas, Applicant. Date January 24th, 1868. Time, one year.; expires January 24th, 1869. Privilege copy r.
“ Privilege copy. $5,625 at six per cent, $337.50. Privilege No. 72.
“No. 623, Prop’n. Steamboat Empire.
“The Enterprise Insurance Company of Cincinnati, by these presents, does cause to be Insured Hicks King on his interest; privilege granted to navigate the Arkansas river, and the Mississippi river, below Cairo, 111. Extra premium six per cent.
“Cancelled July 13th, 1868. Earned, $135.00
Returned, 202.50
$337-5°
“ Louisville Agency. Huston applicant. Date, April r6th, 1868; time expires January 24th, 1869.”
All of which entries were in accordance with the agreement of the parties.
B. The cancellation of said extra privilege having been made long before the destruction of the boat, left only the original policy in force, whereby the plaintiff was insured on the steamboat Empire, while she was navigating the Mississippi river, between Cairo, Illinois, and Memphis, Tennessee.
The said steamboat Empire was lost on the 27th of December, 1868, some thirteen miles below the city of Natchez, Mississippi, which was far below Memphis, Tennessee, as
Davis & Atwood, Att’ys for Defendant.
The appellant moved the court to require the appellee to make the second paragraph of the answer more specific, by stating whether the cancellation of the special privilege was m writing-or by parol. The motion was overruled, and appellant excepted, and has reserved the question by a bill ofj •exceptions.
The appellant moved to strikeout of the fourth paragraph of the answer all the matters embraced between the capital letters A and B as they appear in this opinion, but the motion was overruled, and appellant excepted and reserves the question by a bill of exceptions.
The appellant demurred separately to the second and fourth paragraphs of the answer, for the want of sufficient facts. The demurrers were overruled, and an exception takeru
The appellant replied in denial of the second and fourth paragraphs of the answer.
The cause was, by the agreement of the parties, submitted to the court for trial, and resulted in a finding for the defendant.
The appellant moved the court for a new trial, but the motion was overruled, to which an exception was taken. Final judgment was rendered on the finding.
The appellant has assigned the following errors. ,
1. The court erred in overruling motion to require appellee to make the second paragraph of the answer more specific.
2. The court erred in overruling the motion to strike out a part of the fourth paragraph of the answer.
3. The court erred in overruling the separate demurrers to the second and fourth paragraphs of the answer.
4. The court erred in overruling the motion for a new trial. Did .he court err in overruling the motion to require the
If a pleading is based upon an instrument which is-required to be in writing, it will be subject to demurrer, unless the original or a copy is filed with such pleading. If a pleading alleges a contract to be in writing, it will be bad. on demurrer, unless' the original or a copy is filed and made-a part of such pleading.-
But under our code, if a contract is not alleged to be in> writing, and no copy is filed with the complaint or answer, the presumption arises that the contract declared on is not a. written one, and if the contract is such as is required by the statute of frauds to be in writing, the objection may be taken, by demurrer. Harper v. Miller, 27 Ind. 277.
In the present case the cancellation of the Arkansas policy was not required to be in writing. The answer did not allege that it was in writing. No copy was filed with, the answer. The presumption was, that it was not in writing. It was not alleged in the motion that it was in writing, nor was the motion supported by affidavits showing that it was in writing. Under these circumstances, we think the court: committed no error in overruling the motion.
We next inquire whether the court erred in overruling the motion to strike out a part of the fourth paragraph of the-answer. We entertain no doubt that the motion should have-been sustáined. The real defence attempted to be set up in that paragraph was, that the policy on which the action was. based had been cancelled, and the company released from, liability. If the cancellation had been in writing, the defencewould have been founded on it, and it or a copy should have been filed with the answer. The defence was not based upon the entries in the books of the company, nor upon the other-exhibits contained in such paragraph. If the motion had. embraced the policy of insurance and the various letters, copied into the answer, it should have been sustained. The only substantial averment in the paragraph in question was,, that the policy sued on had been cancelled before the
We are of opinion that the court committed no error in overruling the demurrers to the second and fourth paragraphs of the answer. They were substantially good. The action was based upon the policy which insured the boat against accidents on the Arkansas river and the Mississippi river between Memphis, Tennessee, and New Orleans, in the State of Louisiana. It was alleged in the complaint that the boat was sunk on the Mississippi river, below Memphis. Thd defence set up in the second' and fourth paragraphs was, that such policy had been cancelled before the destruction of the boat, and that, consequently, the company was released from liability. This was a defence to the action.
It is insisted by counsel for appellant that these paragraphs were bad, because it was not averred that such cancellation took place with the knowledge and consent of the appellant. There could have been no rescission or cancellation without his knowledge and consent, and we think such knowledge and consent are implied in the word “cancelled.” The manner of the rescission and cancellation was matter of proof on trial.
The fourth paragraph contained many redundant averments, unnecessary exhibits, and much useless verbiage, but such defects could not be reached by a demurrer. They should have been stricken out on motion orbythe court of its ■own motion. Hynds v. Hays, 25 Ind. 31.
We are next required to determine whether the court erred in overruling the motion for a new trial. .
The appellant moved to suppress certain questions and answers in depositions of William B. Cassily and W. Byron Carter, but the motion was overruled, and an exception taken. Afterward the appellant objected, on the trial of the cause, to the reading.as evidence such questions and answers.
“Inter. 8. According to the custom and usage of insurance companies, was there or not any difference in the rate of premium charged for the permission to navigate the Mississippi river between Cairo, Illinois, and Memphis, Tennessee, and the Ohio river and its tributaries, except the Wabash, and that charged for the additional privilege of navigating the Arkansas river and the Mississippi river below Memphis, Tenn.? If yea, what was the additional rate ? Give it by months or years and the reasons for such extra charge.
“Answer. According to the custom and usage of insurance companies, there is a difference between the rates charged for Ohio river and tributaries and for Mississippi river between Cairo and Memphis, which is from one to two per cent., according to classification of boat; also, an increased risk for the Mississippi river below Memphis, and still greater risk in the Arkansas river, for which from six to ten per cent, additional is charged, according to the classification of boats and views of different underwriters.”
The question was objected to as leading, and the evidence sought to be elicited also objected to as immaterial and irrelevant.
We do not consider the question as leading, but we l'egard the evidence elicited by the answer as being immaterial and incompetent. If there was no difference in rates, then the appellee charged and received extra pay for an additional privilege, for which there should have been no extra charge.
If there was a difference in rates, the appellant agreed to and paid such difference. In either event, no light was thrown upon the question in issue. There was no question as to whether the appellee had charged unreasonable rates. The appellant made no objection to the rates, but paid the rates charged. Besides, the evidence as to the custom or
“ Inter, g. Was the extra privilege referred to and the cancellation entered upon your record on the authority of those two letters B. and C.?
“Answer. Yes, sir. The privilege was asked to cover the Arkansas river. The assistant secretary, in writing the privilege mentioned the Mississippi river below Memphis, In order to give him the privilege of reaching the Arkansas. The cancellation by Atwood and Nicholas was intended to cancel the same privilege, and the return premium was made to cover the whole privilege.”
The ninth question was directly leading. All of the answer except the words “Yes, sir” was not responsive to the question propounded. Besides, the balance of the answer was illegal and incompetent, as it tended to vary and contradict the express terms of the policy. The language of the policy is: “ In consideration of six per cent, additional premium, privilege is hereby granted the steamer Empire to navigate the Arkansas river and the Mississippi river below Cairo, Illinois.”
The privilege granted was to navigate the Arkansas river its entire length, and the Mississippi river below Cairo, Illinois. The witness says : “ The privilege was asked to cover the Arkansas river. The assistant secretary, in writing the privilege, mentioned the Mississippi river below Memphis, in order to give him the privilege of reaching the Arkansas.”
When a contract is reduced to writing, the legal presumption is, that the entire contract, as finally settled, is embraced therein, and all oral negotiations or stipulations between the parties which preceded or accompanied the execution thereof are to be regarded as merged in it, and it is to be treated as the exclusive medium of ascertaining the contract by which
Parol testimony can' not be received to contradict or vary the terms of a written agreement. Oiler v. Gard, 23 Ind. 212.
In La Farge v. Rickert, 5 Wend. 187, it. was said that “where the legal construction and effect of an instrument are well settled, it is varyingthe instrument to show that the parties intended something else, as much as it would be to prove that the terms used were not in accordance with the previous agreement.”-
The Court of Appeals of New York, by Selden, Judge, in the case of Ruse v. The Mutual Benefit Life Insurance Company, 23 N. Y. 516, states the whole matter clearly and succinctly:
“Nothing is better settled than that, where two parties, have entered into a written contract, all previous negotiations and propositions in relation to such contract, whether parol or written, are to be regarded as merged in the final agreement. Such preliminary matter may sometimes be admissible under the rule which admits evidence of the surrounding circumstances for the purpose of explaining aa ambiguous expression; but never where the terms of the contract are clear and explicit. The legal inference, in all such cases, if the contract varies from what has been previously said or written, is, that the parties, upon further consideration,, have changed their views.
“Policies of insurance areno exception to this rule.”
. If the appellant did not apply for, and if the appellee did? mot intend to grant to him the privilege of navigating the Mississippi river below Memphis, but only intended to grant the appellant the privilege of navigating the Mississippi river from Memphis to the -mouth of the Arkansas river, as a means of reaching the latter river, and as an incident to such privilege, then the appellee ' should have alleged such facts in his answer, shown how the mistake was made, and prayed for a reformation of such instrument, and when sc»
“ Inter. 10. After the extra privilege above named was. cancelled, was it or not ever re-granted by the company?
“Answer. It was never re-granted.”
The objection urged to this question was, that it was leading. We think the above question was necessarily leading; and not objectionable on that ground.
The thirteenth question to Cassily and the answer were-as follows:
“Inter. 13. Am I to understand that the copy submitted . will be an exact copy of the policy issued to Hicks King, if the privilege of April 16th, 1868, and cancellation of July 13th,. 1868, are omitted ?
“Answer. Yes, sir.”
The above question could not have been well asked in any other form, and we see no objection to it.
The motion to strike out parts of the deposition of W.. Byron Carter was directed against the fifth, seventh, eighth,, and ninth questions and answers, which were as follows:
“Inter. 5. Attach and make part of this deposition,, marked D and your-initials, true copies of the entries on the-books of the company of the original insurance, privilege,, and cancellation aforesaid.
“Answer. I have done so, and marked as desired, and make-them a part of my deposition.”
The entries referred to, marked D., embrace memoranda of the policy, of the extra privilege, and of a cancellation of’ the extra privilege.
We know of no rule of evidence or statute of this State, under which these copies of entries on the appellee’s books were admissible in evidence on appellee’s behalf. It:
Section 284 is as follows:
“Sec. 284. The acts and proceedings of corporations may be proved by a sworn copy of the record of such acts and proceedings; the oath shall be made by the person- having the legal custody of such records and shall state that such transcript is a true and full copy of the original, and that :such original has remained unaltered from its date, to the best of deponent’s knowledge and belief. Such sworn copies shall be received as evidence in all cases in which the ■original would be evidence.”
By the above section it is provided, that such sworn copies .shall be received as evidence in all cases in which the original would be evidence.” It was not intended to exclude the ■original, but the section was adopted as a matter of convenience. It has been so held by this court. The Madison, etc, R.
It was held in Smith v. The Indiana, etc., R. W. Co., 12 Ind. 61, that a copy of the acts and proceedings of a corporation must be authenticated as required by section 284 of the code. . Conceding, without deciding, that the record of a corporation might be authenticated and made a part of a deposition, the proof would have to conform to the requirements of section 284, supra, which was not done in the present case. It is not every entry which may be made in the books, of a corporation that becomes evidence when offered by the corporation. If the entry noting the rescission of the contract and the cancellation of the extra privilege was made without the knowledge or consent of the appellant, the entry would not 'be binding upon him, and would not be admissible as evidence of the facts recited, but such facts might be proved otherwise. Ex parte entries could not become evidence for the corporation, though they might be evidence against it.
We are not prepared to say from the facts disclosed by the record, whether such entry was made under such circumstances as to make it evidence if properly authenticated.
“ Inter. 7. After the said extra privilege was cancelled, was it ever or not re-granted?
“Answer. Not to my knowledge.’ .
Our ruling is the same as on the tenth question in deposition of Cassily.
The eighth interrogatory and the answer of Carter, which are precisely like > the eighth propounded to Cassily, were objected to for similar reasons, and we need not repeat what we then said.
“ Inter. 9. Where a boat is already insured with privilege to navigate the Mississippi river from Cairo to Memphis, is it or not usual to make an extra charge for permission to. navigate, the Mississippi river below Memphis, and if so, at what rate ?
“ Answer. It would be customary to make an extra charge,.*62 as the original rate charged upon limited navigation would be predicated upon that limited navigation. The additional rate would depend upon the class of boat. If a stern wheeler probably about two per cent, additional.”
The above question is in substance the same as the eighth question asked of Cassily, and for the reasons then stated, we think it should have been suppressed. The question, however, is subject to another objection. It was left to the witness to determine whether the usualness of making an extra charge refers to insurance companies generally or to the appellee in particular. Neither the question nor the answer discloses which was meant.
The court, over the objection of appellant, permitted the appellee to read in evidence what was said to be a true copy of the original policy. The appellant filed with his complaint a copy of the first policy. . Upon the trial he read in evidence the original policy. There was no pretence that it was not the true and genuine policy as signed by the appellee and delivered to the appellant. We are unable to see the necessity or propriety of again reading the policy in evidence, if the one read by the appellee had been an exact copy of the original. But the one read was not a copy. It was not signed, or countersigned, or sealed by the officers of the Insurance company, or by any other person. It had no more legal effect than so much blank paper. Besides, there was inserted in the body of it the following words:
“ April 16th, 1868, privilege granted to navigate the Arkansas river and the Mississippi river below Cairo, Ill. Extra rate, six per cent. Additional premium, #337.50.
“July 13th, 1868. Above privilege cancelled. Return premium, #202.50. Earned, #135.”
The original policy was issued, properly signed, countersigned, and sealed, and delivered to the appellant on the 24th day of January, 1868. It was, therefore, impossible that the entries made in April and July following, could have been in the original policy. . Besides, the mode adopted of proving the cancellation of the extra privilege is unknown to the law.
The witness Mac. Huston on the trial was shown the additional privilege and then was asked by the appellee to state what the paper was called. The appellant objected to the question, because the same was immaterial, and irrelevant, and further, because the paper itself showed what it was.
But the court overruled the objection, over appellants exception, and the witness answered thus:
“ The Arkansas river privilege. The additional privilege to navigate the Arkansas river.”
We are not aware of any principle of law or rule of practice which will justify the admission of such evidence. It was wholly immaterial what the paper or privilege was called. The question was, what privilege was granted ? And this was best determined by an inspection and construction of the policy itself. There was no ambiguity, either patent or latent. The language was plain and express, and needed no interpretation. If the language employed to express the contract had been put into' the policy through mistake or accident, the remedy was by a reformation of the contract. The force and effect of a written instrument can not be explained away -or destroyed by evidence as to what it was called.
There was no controversy in the court below as to the granting of the extra privilege or the destruction of the boat. The real question was, whether there had been a rescission of the contract. If the insurance company surrendered to the appellant his premium note, upon an agreement that the entire privilege was to be surrendered, then the liability of the com
“ But when illegal evidence is, in fact, received, and the return states, in terms, that the finding of the court below is upon consideration of all the evidence given upon the subject, we are not at liberty to disregard the error. In such case it not only appears that the improper testimony may have influenced the court in its finding upon the facts, but that it did so.” When illegal evidence has gone to a jury, it may be withdrawn by the court and the jury directed to disregard such evidence. There is nothing in the record showing that the court disregarded any of the evidence which had been admitted. In such case, we are bound to presume that the court took into consideration all the evidence which had a bearing upon the issue, but such presumption would not be indulged where wholly immaterial and irrelevant evidence had been admitted. There is a direct conflict in the evidence of Mr. Huston and the appellant upon two material points that had an important bearing upon the determination of the cause. The improper evidence may have influenced the decision of the court.
The judgment is reversed, with costs; and the cause is remanded, for a new trial in accordance with this opinion.