22 Ill. App. 19 | Ill. App. Ct. | 1886
If there is any defense to these four notes we are unable to discover it. By the verdict and judgment appellant carried this insurance witnessed by the four policies for over a year for nothing. Even granting everything that is claimed, i. e., that he was over-persuaded by the agents of appellant to take this insurance, and that such agents misrepresented certain facts, which was the inducement to him to take the policies, i. e., that they wore giving him lower rates than he could get anywhere else ; that if dissatisfied he could leave the company at the end of the year by paying the proportioned rate; that he could have deductions made for stock sold, and that they had insured other parties in that vicinity and particularly the stallion of Charles Sanders, the rule is well settled that the expression of an opinion as to the value, quality or desirableness of an article, or urging or importuning a party to engage or invest in any matter, is regarded as mere inducement, and forms no ground upon which to base fraud. The statements alleged to have been made are clearly within the rule. Tuck v. Downing, 76 Ill. 71.
Kerr on Fraud and Mistake, states the rule that “ the law requires men in their dealings with each other to exercise proper vigilance and to apply their attention to those particulars which may be supposed to be within reach of their observation and judgment and not close their eyes to the means of information which are accessible to them.” Appellee had large business experiences, having been for the last twenty-five years engaged in the sale of agricultural implements, doing a business of some'§20,000 a year and as he says, dealing with all kinds of men, with some sharp ones and otherwise. There were local insurance agents within twenty or thirty rods of his residence and place of business to whom he could and (as stated in the authority, supra,) it was his duty to have applied and ascertained the truth of the representations of the agents of appellant as to the rate of insurance. He can not even, if it was represented a§ he stated, now be allowed to interpose the untruthfulness of such representations as a defense to this suit. Appellee admits that appellant offered to cancel the stock sold. There was no misrepresentation in that particular, the policy itself providing for it. It is insisted by counsel for appellee that policy Ho. 183827, on the sheep barn, was worthless, the building being a combination building, used as an agricultural house and warehouse, etc. This objection if well taken, which we do not concede, could only apply to the note given in payment for that policy. It would not furnish a shadow of reason for repudiating the notes given in payment for the other three policies. We hold that if the agent of the appellant, having examined the building and having written the application for appellee, describing the building, knew as well as the appellee did that it was also used for purposes other than a private barn, appellant would have been liable in case of loss. Rockford Ins. Co. v. Nelson, 65 Ill. 415; Andes Ins. Co. v. Fish, 71 Ill. 620. That being the case there was no valid defense to the note given in payment for that policy.
The first and second instructions given for appellee were erroneous. They left the jury to judge of both the law and the evidence and were calculated to and didmislead. The jury were virtually told that if the agents of appellant made any false statements, whether material or not, they should find for the defendant. Every statement made by a party as an inducement for another to make a contract, although untrue, gives no right of action. And it was the duty of the court to tell the jury what misrepresentations, if any, the appellant’s agents made which would justify the appellee in repudiating his contract and not leave it to the jury to determine which, if any, of the alleged misrepresentations of the agents amounted to a fraud. Howard Fire Ins. Co. v. Cormick, 24 Ill. 455; Mitchell v. Town of Fond du Lac, 61 Ill. 174; White v. Murtland, 71 Ill. 250.
It was error to permit Merrill to testify that no reputable company would knowingly insure a combination building as a barn. It was also error to permit him to testify to the conversation between him and appellee. He vyas not the agent of appellant to make the statements he did. It was also error to allow the appellee to testify as to the conversation.
For the errors herein indicated this judgment is reversed, cause remanded, and venire de now awarded.
Judgment reversed and ccmse remanded.