Janusa v. Scovotto

WESTERFIELD, J. This' is a' Suit on a promissory note given by the defendant to a life insurance agent for the sum of $205.- [664] 60, the first year’s premium on a policy of life insurance. The defense is want of consideration. The plaintiff, Janusa, solicited and obtained an application from Scovotto, defendant, for a policy of the face value of $5,000, which stipulated for certain features relative to double indemnity. Plaintiff transmitted the application to his principal, the New York Life Insurance Company, which declined to issue the policy upon the ground that the applicant was overweight. However, another 'policy was inclosed and issued in the name of defendant, which was said by the company to ‘‘meet as nearly as possible the applicant’s desire for insurance.” Defendant thought the policy tendered him far from desirable and refused to accept it or to pay the premium. However, plaintiff insisted that he should retain it until his “hard head became soft,” when its merit would be apparent to him, promising that if Scovotto should at any time reduce his weight, a policy nearer to his heart’s desire would be substituted. But Scovotto’s head did not soften, nor his determination weaken, and he could not see the advantage of the policy tendered him. He refused to accept it time and again, whereupon, it was left with his wife and plaintiff would not accept its return. Whatever may be said of the commendable zeal of plaintiff in the prosecution of his chosen vocation, or of the desirability of defendant’s life being insured upon terms acceptable to the New York Life Insurance Company, it must be conceded that defendant should be consulted and his decision final, whatever may portend for weal or for woe. It is clear that the note sued on is without consideration. The.judgment appealed from is affirmed. JANVIER, J., takes no part.