82 Neb. 622 | Neb. | 1908
The plaintiff on the 31st day of March, 1904, issued to defendant a policy upon what was denominated in the application for the same the “20 payment life commuted premium dated back deferred divided plan.” The policy provided for 20 annual payments of $498.01 each from its date of March 31, 1897. To enable the defendant to pay the commuted premium which was demanded for dating back the policy, the company was to loan the assured $2,140 upon the maturity of the policy, upon which loan he was to pay interest at the rate of 5 per cent, per annum in advance. In this transaction no actual funds passed between the parties, but the plan was effected by the execution of a policy loan agreement, which recited that the plaintiff had loaned the defendant the above sum, and pledged the policy for its payment. The defendant executed his note due ten months after date in payment of the first premium and advance interest upon said loan, which note he afterwards paid. When
The answer charged that the note sued upon and the policy, the premium upon which it was’ executed to pay, were obtained by false and fraudulent representations made by one Crane, an agent for the plaintiff. There was no pleading of any fact showing what representations, if any, were made to secure the execution of the note, and no evidence whatever to support the legal conclusion contained in the answer that the note sued upon was obtained by means of any representations, false or otherwise, made by Crane or any other person on behalf of the company. The only evidence as to the conditions is that of the defendant, who, being asked under what circumstances he executed the note, answered: “I executed the note for the reason that I had-1 did not want to lose a $10,000 policy, if everything was all right, but I suspicioned I had been defrauded, and I wanted to gain time to investigate to be sure whether I should continue payments or
The evidence wholly fails to support the first charge. It clearly shows that the rate was made known to the defendant in dollars and cents; but whether it was a. rate properly chargeable to him at his age or to a person seven years younger does not anywhere appear.
Whether the second representation, that the contract of insurance was an especially advantageous one is a statement of fact or is in the nature of an expression of opinion, and therefore not a subject of false representation, need not be considered. There is absolutely no proof as to whether these representations were true or false.
In reference to the third charge, the plaintiff testifies that the agent said he was to have a loan of $2,140, which was to be secured by the policy and paid at the maturity thereof, and that the proceeds of the loan were to be applied upon future premiums. He states that he executed the note for the $2,140, and that he understood that
There being no evidence sufficient to have sustained a verdict for the defendant, it was proper for. the district court to direct the jury to find for the plaintiff. We therefore recommend that the judgment of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.