180 N.W. 56 | N.D. | 1920
This is an action upon a policy of crop insurance. The defendant, an insurance company, has appealed from a judgment in favor of the plaintiff and from an order denying judgment non obstante, or, in the alternative, for a new trial. The complaint alleges the issuance of a policy of insurance against the failure of crops from hail or any other causes except fire, flood, and winter kill, for the season of 1917, in the sum of $1,001 upon farm lands of the plaintiff, in Morton county; the partial destruction of the crops during the season through hail, dry weather, or hot winds; the adjustment of the plaintiff’s loss in the sum of $481.50. Further, that the defendant fraudulently represented that it was in hard financial straits, unable to pay the plaintiff more than the amount of the premium, namely $100.10,;
There is evidence in the record by the plaintiff and by the party who was the agent of the defendant at the time the insurance was written and the adjustment made, to the following effect:
In June, 1917, an application was solicited and received by this agent from the plaintiff for such crop insurance upon 143 acres of plaintiff’s land. The policy of insurance was issued on June 28, 1917. At the time when the application was made and the-policy was issued, the land was in good shape, it was well seeded and the crop prospects were good. Later, in July, dry weather and hot winds occasioned a
Decision.
Plaintiff’s cause of action is based upon the contract of insurance.
It is undisputed that the defendant was not bankrupt nor insolvent at the time of the alleged settlement. The defendant, in its answer, admits that all the policy holders did not settle with the defendant upon the basis of the return of the premium. There is evidence in the record that some of the policy holders received more than the return of their premium notes. At least one had an agreement to receive 100 per cent thereof. Accordingly, it appears that the defendant had not executed its part of the accord. The obligation of the defendant, therefore, was unextinguished. The plaintiff was entitled to maintain and has maintained his action thereupon. Comp. Laws 1913, § 5826; Strobeck v. Blackmore, 38 N. D. 593, 165 N. W. 980; 1 C. J. 534. Under such circumstances the principles concerning rescission of a contract and the restoration of the consideration received do not apply. The cause of action and the judgment rendered are sustained by the evidence. The judgment and order are affirmed.