| Mich. | Jun 13, 1876
We think the court erred in excluding the application for insurance upon which the policy issued, and the evidence offered by the defense to show that the representations contained therein regarding the health of the applicant were untrue and fraudulent. The ruling appears to have been based upon a supposed defect in the notice of defense. But we think this notice, though informal, was sufficient to let in this defense of fraud. It expressly alleged fraud in the representations made to the insurance company regarding the health of the applicant, and avers that the policy was procured thereby. It is true that the notice does not assert in express terms that the representations were contained in the application, but the application is referred to, and the plaintiff could not have been misled when it was offered in evidence as containing the fraudulent representations.
We do not find any other error in the record. When the Furthman letter was offered and received in evidence, there was some showing of his agency for the insurance company which would justify its reception. The cross-examination of the witness who had given it showed that he really had no knowledge of the subject; but the plaintiff in error made no motion to strike out the evidence of the letter, and consequently is not in position to complain now.
For the error in excluding the defense of fraud, the judgement must be reversed, with costs, and a new trial ordered.