American Central Insurance v. Antrim

Whitfield, C. J\, delivered the opinion of the court. The erroneous instruction on account of which this case was formerly reversed (86 Miss., 224; 38 South. Rep., 626) was left out of the record on' the second trial. The leading and fundamental error of learned counsel for appellant on this trial consists in the assumption that Antram vas only to receive $1,232 in cash for his services in connection with the school building, whereas he over and over testified that he was to receive that sum in cash and the material in the old building. Antram testified that the material in the old building was worth $1,650. If this sum be added to the $1,232 in cash, it is obvious that the value of the interest he had would be about $3,000, and appellant’s whole contention, in the last analysis, comes simply to this: That Antram had represented that he was working on a building which, when completed, would be worth about $3,000. Antram shows that it was worth from $3,100 to $3,200 when it burned. Now Eggleston, the insurance agent, himself testifies that if the value of the building had been $3,000, he would have issued the policy for $1,800. Indeed, he shows that he would have issued it for more. It is impossible, on this state of the evidence, to say that there was any material misrepresentation. At all events, it was left to the jury to say whether there was any fraudulent misrepresentation, and their verdict is conclusive on this proposition against appellant. Appellant insists that there was error in modifying his first instruction by adding the words, “but purposely withheld this information in order to mislead the defendant.” We do not think this was an erroneous modification; but if it were, it was manifestly cured by the giving of the second instruction for the appellant. Appellant’s most strenuous contention is, however, that the [524] fourth instruction was improperly refused. That instruction is as follows “The jury are instructed for the defendant in this suit that, if they believe from the evidence in this case that Antram, the plaintiff, made contract with the trustees of the school to make additions to and repairs on an old schoolhouse for the sum of $1,232, and that it was not stipulated in the written contract between Antram and the trustees that Antram was to insure the building for the benefit of the trustees, or that he was to rebuild the old house in case of destruction by fire, and that Antram applied for and obtained from defendant the policy for $1,800, stating that he had a builder’s risk at Flora which ivould be worth about $3,000 when completed, and failed to explain that he was adding to and repairing an old building at a price much less than $1,800, and by such failure to explain- and by such misrepresentations the agent of the company was induced to issue said policy for $1,800, relying upon the statement and misrepresentation of Antram as to the value of said building, they must find for the defendant.” This instruction was properly refused for two reasons: First, it assumes that Antram solicited the insurance, whereas Eggleston testifies himself that he solicited the insurance; second, it assumes as a fact that the $1,232 was the whole consideration to be received by Antram, when, as stated, the testimony over and over shows the contrary. The judgment is affirmed.