Palmer v. Continental Insurance

31 Mo. App. 467 | Mo. Ct. App. | 1888

Hall, J.

Under the view entertained by us of this case it is only necessary to consider the action of the court in giving the two instructions set out in the statement of facts.

I. We shall first consider the instruction given as to the effect of the plaintiff ’ s execution of the premium note. Ordinarily the premium note would have to be deemed a part of the contract between plaintiff and defendant, the contract consisting of the policy and the note. This is clearly established by the authorities cited by defendant’s counsel.

If the plaintiff was induced by fraud or imposition to sign the premium note, it, of course, would form no part of the contract. But not only was there no evidence of either such fraud or imposition, but the instruction itself was based on neither such fraud nor deception. The instruction was based solely on the mistake of the plaintiff as to the character of the instrument he was signing. The question is, was such mistake on the part of the plaintiff sufficient to relieve him from the obligation imposed by the premium note as a part of the contract of insurance % The note showed on its face that it Avas not merely an obligation to pay so much money; the stipulations referring to the policy of insurance were printed in the body of the note in a way not to escape observation, and were plain and unambiguous ; and it being signed by the plaintiff in the transaction of the business to which it related, “it was his duty to. read it, and in the absence of proof of fraud, deceit, or imposition, the law presumes he had knowledge of its contents.” Snider v. Exp. Co., 63 Mo. 383; O’Bryan v. Kinney, 70 Mo. 127; Brown v. Railroad, 18 Mo. App. 574; Moore v. Henry, 18 Mo. App. 35; Railroad v. Cleary, 77 Mo. 637; Rothschild v. Frensdorf, 21 Mo. App. 323; Taylor v. Fox, 16 Mo. App, 527. And the plaintiff is as much bound by what he signed as if he had read it. Robinson v. Jarvis, 25 Mo. App. 425.

In Biggs v. Ewart, 51 Mo. 249, it is said: “It may be assumed as an axiom that no one can be made a party to a contract without his own consent. Although his signature may be put to the writing, and may have been written by himself ; yet, if he did not know what he was signing, but acted honestly under the belief that he was signing some other paper, and not the one he really signed, he ought not to be bound by such signature.” This has been affirmed, as far as it relates tp the parties themselves, in Wright v. McPike, 70 Mo. 175, and Cole Bros. v. Wiedmarr, 19 Mo. App. 14. But this principle has no application to the facts of this case. Here the writing signed was that which the party intended to sign, and here there was no agreement that the writing should he other than it was. In other words, the policy and the note weré signed by the parties as intended, and there was no agreement outside of them; they, therefore, constituted the contract between the parties.

II. The stipulation contained in the note making the whole amount unpaid on the policy earned, due and payable in case of nonpayment of any instalment when due, except in the event of settlement by the assured “for time expired as per terms on short rates ”, was a part of the contract of insurance. Such stipulation was valid and binding. Amer. Ins. Co. v. Klink, 65 Mo. 78. Since all the unpaid instalments became due and payable on the default made on December ,1, 1885, the collection by the defendant of all the unpaid instalments after the loss, which occurred during the default, with knowledge thereof, did not waive the provision of the policy exempting it from liability for a loss occurring during such default. The collection was the collection of what was due and payable, and could not constitute a waiver of any of the defendant’s rights. Williams v. Ins. Co., 19 Mich. 451.

The court should not have given the sixth instruction given for plaintiff, but should have given the instruction asked by defendant asserting the contrary principle.

For the reasons given the judgment is reversed and the cause remanded.

All concur.