46 Ind. App. 137 | Ind. Ct. App. | 1910
This is a suit to rescind a contract, for fraud.
Appellee James B. Nelson purchased a policy of insurance in the State Life Insurance Company, and certain stock in the State Agency Company, for which he paid $190.46. Material misrepresentations of fact relative to the stock are averred, together with other facts necessary to rescission. The trial resulted in á finding and judgment for plaintiff James B. Nelson.
The errors relied upon are raised by the overruling of the demurrer to the complaint and of the motion for a new trial.
The agency company was evidently a device intended to increase the business of the insurance company, and that it did not prove as efficient as was anticipated does not change the fact. It is not necessary to review the evidence on this subject. The trial judge correctly estimated it.
Said appellee testified that he told them that he did not want any more insurance, yet under the terms mentioned was willing to take insurance to the amount of $5,000 “if he [the agent] would give me four shares of stock in place of the two, as they said they would do. He threw up his hands and said: ‘We cannot do that. * * * We would be robbing the company.’ * * * He said if he should do anything like that, he would lose his position. * * * I said: * * * ‘My mind is made up, and unless you can see your way clear to give me four shares of stock with this policy, I do not want it.’ * * * Next morning Buis and Kendall came to my office. Kendall said: ‘Mr. Nelson, we have been trying to figure out a plan whereby we can meet ypur terms, and while it would be impossible to give you four shares of stock, there is nothing to prevent us from making a contract with you to assist Mr. Buis in writing insurance here, and I think we can make an agreement of that kind. ’ L said: ‘ That depends on what you mean. If you mean that I am to go out on the street and solicit insurance, I won’t do it.’ He said he did not mean that. If Mr. Buis brought in a man to me, I was to recommend and advise him to buy a policy. I said that would be all right, that I would do that. I would tell him 1 had investigated the matter, having bought one myself, and for him to use his own judgment. He said that was satisfactory. I told him it was all right with me, and they drew up their contract and gave me a receipt for $190.45 and for $80. ’ ’
This summary of appellee James B. Nelson’s own evidence is not controverted. An application for two shares of stock was prepared by the solicitors and signed by said appellee, in which the consideration was stated as ‘ ‘ services to be rendered.” Subsequently, when the State Agency Company was in the hands of a receiver, said appellee filed a claim
This consideration disposes of the case, and other questions are, therefore, not considered.
Judgment reversed and cause remanded, with instructions 'to sustain the motion for a new trial.