| Pa. | Oct 5, 1882
delivered the opinion of the court October 5th 1882.
The evidence referred to in the first assignment of error was offered for the purpose of showing that the representations made by Mr. Price in the preceding January were made by and with the authority of the plaintiff' company, and assented to by it as correct. We think the learned judge was right in admitting it. There was abundant evidence to show that the company was a fraud from its inception, and there was ample evidence to submit to the jury that it deceived its agents as to its financial condition, in order that they in turn might deceive innocent parties who desired to insure their property. In this connection it is proper to say that it matters little what were the powers of the agent who made the fraudulent representations by means of which the defendant was induced to take his policy, nor whether the agent himself believed them to be true. The company having accepted the policy, is affected with any fraud on the part of the person in obtaining it. In other words, it cannot repudiate the fraud and yet retain the benefit of the contract. It takes it cum onere. This is familiar law. See Jones v. The National Building Association, 13 Norris 215, and authorities there cited.
The remaining questions in the case need not be discussed at length. The court could not properly say to the jury, as requested by the plaintiff’s second point, that Garner’s statement that the company had a paid-up capital of $200,000 could not have deceived or injured the defendant. This was not a question of law, but a question of fact, and was properly submitted to the jury. The reason given by the company in support of its position is so remarkable that I insert it here without comment. It is: “ Because the act of 1870, creating a capital stock for this company, provided it should be exclusively invested in real estate, and that the stockholders should have the first lien upon the same ; and hence this real estate was not applicable to the payment of fire losses.”
No errors are perceived either in the answers to points, or in the general charge, and the questions of the cancellation of the policy, and the legality of the assessments, were submitted to the jury under proper instructions.
Judgment affirmed.