122 Mo. App. 374 | Mo. Ct. App. | 1907
(after stating the facts.) —1. Plaintiff was evidently denied a recovery upon the ground that he did not act with sufficient promptness in notifying defendant that he repudiated the contract of insur
In Lewis v. Land Company, 124 Mo. 1. c. 687-8, 28 S. W. 324, speaking of the rescission of contracts by fraud, the court said: “The rule in such cases is that upon discovery of the fraud, promptly the party must repudiate the fraud and rescind or offer to rescind all the instruments and obligations which bind him to the obnoxious transaction,” citing Estes v. Reynolds, 75 Mo. 563; Hart v. Handlin, 43 Mo. 171; and Taylor v. Short, supra. The latter case is approvingly cited in Robinson v. Siple, 129 Mo. 1. c. 222, 31 S. W. 788, and in Johnson-Brinkham Com. Co. v. Railway, 52 Mo. App. 407; and Chas. R. Kirk. & Co. v. Sceley, 63 Mo. App. 262.
2. Conceding that plaintiff had the right to rescind the contract for fraud, did he exercise the right , with sufficient promptness after he discovered the fraud, and was this question one of fact for the jury, or a law question?
In Manufacturing Co. v. Troll, 69 Mo. App. 1. c. 480, this court said: “What constitutes reasonable time Avithin Avhich to declare a rescission is ordinarily a ques
In American Insurance Co. v. Neiberger, 74 Mo. 167, Neiberger Avas sued on a note given for the premium on a fire insurance policy. He defended on the ground that the policy was procured by fraud and that he had repudiated the contract,of insurance and gave notice of his election to rescind. At page 173, the court said: “The policy in this case was issued on the twenty-fifth day of January, 1875, and it was not rejected by the defendant until May 10,1875. If the policy was received by the defendant soon after the date on which it purports to have been issued, Ave thinlc he waited too long to elect Avhether he Avould receive the policy without the stipulation in regard to cancellation, or refuse to accept it because it did not contain such stipulation. After such delay, he will be deemed to have accepted the policy as issued.”
In McKeen v. Rank, 74 Mo. App. 281, the plaintiff’s pass-book was balanced and it and his cancelled checks returned to .him on April fifteenth. He made no examination of the book and cancelled checks until the twenty-second day of the following month, when he discovered a forged check for four hundred and eighty dollars among the cancelled ones. The defendant had a rule requiring its depositors to notify it of errors,' etc., within ten days after their pass-books were balanced and returned to them. The suit was to recover the four hundred and eighty dollars represented by the forged check. We held: “The retention of the account beyond a reasonable time by the customer without objection, where there is no dispute as to the time of the rendition of the
In Wiggins v. Burkham, 77 IT. S. 129, it was held:
“An account rendered, and not objected to within a reasonable time, is to he regarded as admitted by the party charged, to be prima facie correct.
“If certain items in an account under such circumstances are objected to within a reasonable time, and others not, the latter are to be regarded as covered by such an admission.
“What is to be regarded as a reasonable time is, when the facts are clear, a matter of law. Where the proofs are conflicting, it is a mixed one of law and fact; and in such cases the court should instruct the jury upon the several hypotheses of fact insisted on by the parties.”
In State Life Ins. Co. v. Schwarzkopf, 84 S. W. 353, Ave held: “Where plaintiff required defendant, its general agent, to make an ‘immediate’ report on policies he was holding beyond the period authorized by his contract, Avhich provided that it should terminate immediately on defendant’s failure to fulfill its conditions, defendant, though entitled to a reasonable time to comply Avith the demand, Avas not entitled to tAventy-four hours therefor, it appearing that the report could be made in much less time.”
In Jones v. Gilbert, 93 Ga. 604, cited and relied on by plaintiff, the court, at page 606, said: “There was no real contest in this case upon the question as to Avhether or not Gilbert had, by the mere lapse of time,
In Rider v. Wright & Marshall, 10 La. Ann. 127, also cited by plaintiff, a “slave was sold on the thirteenth of December, 1851, and died on the twenty-first of September, 1852. Plaintiff sued to recover the purchase money, and alleged that a few days after the purchase, he discovered that the slave was afflicted with serious redhibitory vices, etc. Held: Plaintiff should not have kept the slave for months without making at least an effort to procure an amicable rescission of the sale.”
In Norton v. Gleason, 61 Vt. 474, cited by plaintiff, “the defendant gave his note for the premiums on certain life insurance policies June 8th. June 20th he rescinded the contract, alleging misrepresentation on the part of the agent. Held, not permissible to show that June 11th he was examined by a physician for other insurance, as tending to prove that he wished to avoid these policies not for any misrepresentation, but that he might try some other company.
“Defendant claimed to rescind this contract because certain estimates, which were represented to be those of the company, were not in fact. He learned of the fraud June 11th, wrote a letter of inquiry to the company June 12th, and, not receiving any reply to that letter, rescinded the contract June 20th. Held, that it was a question for the jury, under proper instructions, whether the rescission was seasonable.”
And in McCarty v. Life Ins. Co., 77 N. W. (Minn.) 426, relied on by plaintiff, the facts were as follows:
“One Wood was the agent of the defendant to solicit and take applications for life insurance, and, if accepted by the defendant, to deliver the policies therefor and collect the premiums. Wood solicited the plaintiff to take a policy, stating to him the character and terms of the policy which he was ‘selling.’ Plaintiff agreed to take a policy of $5,000, of the kind and terms described by*385 Wood. Thereupon Wood filled out an ‘application,’ and presented it to plaintiff for his signature; falsely representing to' him that it was an application for a policy of the character and terms which he had described. Plaintiff signed the application, without reading it, in reliance upon these representations of Wood. When the policy arrived, Wood delivered it to plaintiff, falsely representing to him that it was of the character and terms previously described and agreed upon. In reliance upon these representations, plaintiff accepted and receipted for the policy without reading it, and gave his negotiable promissory note for the premium. If he had read the application and policy, he would have discovered the character and terms of the policy and the falsity of Wood’s representation. He laid the policy away, and did not examine or read it until some six weeks afterwards, when, upon reading it, he discovered that its terms and conditions were materially different from what they had been represented to be by Wood. He thereupon promptly returned the policy to the defendant, with the request that it be cancelled and his note returned; assigning as the reason for his request the false representations made by Wood. The defendant refused to cancel the policy or return, the note, but shortly after sold and transferred the note to a third party, who brought suit on it, in which he established that he was an innocent indorsee for value before maturity, and consequently recovered judgment for the amount which plaintiff was compelled to pay. Plaintiff thereupon brought this action to recover the amount of the note.
“Counsel’s second contention is that, even if plaintiff had originally a right to rescind, he had lost it by his subsequent conduct in retaining the policy an unreasonable length of time before discovering the difference between the policy as it Avas and as it had been repre*386 sented to be by Wood. It is not claimed that there was any unreasonable delay after plaintiff actually discovered the fraud, but the claim is that, if he had exercised reasonable diligence in examining his policy, he would have discovered it much sooner. The rule, as generally laid down in the hooks is, that the right of rescission accrues only after discovery of the fraud, and that delay is not imputable against the party defrauded, until he makes that 'discovery. But we have no doubt that there may he cases where the party is so grossly negligent in failing to use means of knowledge within his possession, which he was bound to avail himself of, that delay would be imputable to him, even before he actually discovered the fraud. Hence, perhaps, a more accurate statement of the rule is that delay is not imputable to the party defrauded until he has sufficient knowledge of the fraud to make the delay material, or such means of knowledge as he was bound to' avail himself of. [Leake, Cont., 394; Brown v. McClintock, L. R. 6 H. L. 456.] As in the. case of alleged negligence, the evidence may he so conclusive as to render the question one of law, as to whether the party attempted to rescind within a reasonable time after he discovered the fraud, or after he was bound to discover i.t; but ordinarily this would be a question of fact for the jury.”
The rule is thus stated in 16 Am. and Eng. Ency. of Law (2 Ed.), p. 877: “When a person has been induced to take out a policy of insurance by the false representations of the agent of the insurer, in respect to matters affecting the interest of the assured under the policy, the assured may, upon discovering the fraud, repudiate the contract and recover back the premiums paid, or set up the facts as a defense to an action on a note given therefor. The right to repudiate the contract, however, must be exercised within a reasonable time. What is a reasonable time is of course a question of fact for the jury.” In support of the statement