Glassner v. Johnston

Dodge, J. The only possible right of the defendants to the $400 of money and the $4,244.68 note deposited with the bank on March 20, 1906, arose from the agreement made on that day. That agreement, as found by the court, was for delivery of a ten-year endowment policy for $50,000 without qualification or mental reservation, namely, a policy which should provide for the payment of that amount of money at the end of ten years or upon plaintiff’s death. ' Such finding is not only without antagonism by any clear preponderance of evidence, but supported by such proof as to leave it almost without doubt. That defendants have refused to deliver such policy and have insisted and do insist upon the delivery of a different one is undisputed. That upon the delivery of such other policy they induced plaintiff to deliver over the $400 and consent to the issue of a binding receipt by the bank declaring the note to be held absolutely for Johnston, by means of misrepresentation that the papers delivered complied with the terms of the contract made on March 20th, accompanied by such circumstances of urgency and haste and of misleading written or printed indorsements upon and prominent headlines in the policy as to absolve plaintiff from negligence in crediting and relying upon said representations, is also found by the court, and, as we conclude from the examination of the record, upon abundant evidence. Erom such facts the conclusion of law that the plaintiff is entitled to relief from the injury thus caused him and to the re-establishment of the status quo disturbed by such fraud is elementary. Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 89 N. W. 538, 92 N. W. 246; Urwan v. N. W. Nat. L. Ins. Co. 125 Wis. 349, 103 N. W. 1102; Johnson v. Swanke, 128 Wis. 68, 107 N. W. 481; 2 Pom. Eq. Jur. (3d ed.) § 872. While that portion of the relief consisting in the mere recovery back of the $400 might be accomplished by a court of law, that would not re-establish the status quo without the cancellation of the note and immediate preven [491] tion óf tbe use thereof, for which thé functions of a court of equity alone are adequate. Johnson v. Swctnke, supra. To avert this conclusion it is urged that plaintiff was guilty of negligence and laches in not sooner discovering that the papers he had received were not the policy to which he was entitled and promptly rejecting the same and seeking rescission,'under authority of such cases in this court as Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 89 N. W. 538, 92 N. W. 246. We are not fully informed as to appellants’ idea of diligence, but, it having been established that the papers passed into plaintiff’s possession as the policy to which he was entitled without negligence on his part, we can discover no unreasonable lack of diligence when we remember that within an hour or two thereafter he procured a translation of the quite involved and complicated phraseology of the policy and notified .the defendant’s agent of his objections thereto, tendered back the policy, and demanded return of that which he had given therefor. No case has been cited to us in any wise suggesting that such conduct could support inference of negligence, laches, or ratification, and the finding of the' court that none was established must be sustained. True, it is argued that he did not commence suit for rescission until twelve days later, to wit, April 28, 1906; but there is no showing that in this very brief interval the defendants have suffered any change of position. They had been fully notified of the election of the plaintiff to rescind the transaction and to insist upon a return of that which they had received from him unless they were willing to deliver such policy as required by the agreement under which they had so acquired his property. Further than this, it must be borne in mind that a considerable part of this twelve days was covered by at least tentative promises on the part of Johnston to attempt to arrange the matter to plaintiff’s satisfaction, and by at least one letter from the company’s general agent inviting delay. [492] Strenuous insistence is made by appellants that plaintiff could not repudiate his written application made on Sunday, March 18th, and is bound to receive and pay for a policy in accordance with the terms thereof. Without passing upon the finding of the trial court that such application was induced by fraud and therefore of no binding force, we can see no relevancy of the contention thus made to the situation here presented. Whether or not plaintiff might be bound to accept and pay for a policy in accordance with the application, the defendants acquired no rights to the property deposited with the bank except upon compliance with the terms of the agreement accompanying such deposit, and the judgment canceling the note so deposited and decreeing a return of the money could not be affected by the consideration that the defendants might have an independent cause of action against the plaintiff for some amount promised to be paid by that application. Possibly that written application, made two days before, might have had some evidentiary relevancy as to the disputed terms of the deposit agreement made March 20th, but for the purpose of this case all such considerations are unimportant, because there is no proof of the contents of that written application. Defendants did not see fit to offer it in evidence, and the trial court expressly declares that it has in no wise been considered by him, although there seems to have been present upon the trial what purported to be a copy of it. Counsel somewhat ingeniously contend that it is at least established that the application called for a policy of the kind delivered by a letter written to plaintiff by the general agent of the company declaring that the policy did so comply. This letter was offered for no such purpose, and, if it had been, would of course have been wholly inadmissible and, even if admitted, incompetent as evidence, for it was a mere self-serving declaration made by the defendants out of court. Further, it was promptly met by plaintiff’s denial of such assertion through his attorney. Further contention is made that plaintiff can have no [493] standing in a court of equity even to demand back that of which he has been defrauded, because he must have known that a policy such as he contracted for could not be sold to. him at the price agreed upon without rebate or discrimination . in his favor. We cannot discover any evidence sufficiently cogent'to override the finding negativing any knowledge or understanding on his part that either rebate or discrimination would exist. Plaintiff was a retail dry goods merchant, of foreign birth, imperfectly. familiar with the English language, and with no English school education. While it may perhaps appear that in the opinion of actuaries, skilled in the peculiar statistics and computations of life insurance, the rates charged would not have enabled a contract by the company to pay $50,000 at the end of ten years or upon the earlier death of the assured, we cannot hold as a presumption of law that the ordinary citizen is chargeable either -with knowledge of such statistics or capacity to make such computations. He does not know the rates of interest obtainable by insurance companies. He may read in his daily papers of fabulous rates paid upon the money markets in Hew York, accompanied by suggestions that the vast accumulations of cash by the life insurance companies have been used to obtain such rates or to gain large profits from underwriting stock or bond issues. Indeed, the defendants themselves offered evidence that in the experience of many years a policy such as that delivered, for which the rates were confessedly regular and sufficient, would, and therefore this policy might be expected to, yield a sum of $50,000 in money at the end of ten years. We are not prepared to say that the ordinary member of the community, unfamiliar with the finance and internal management of life insurance companies, must be charged with the duty of knowing the fairness and the reasonableness of the rates which he pays, when he merely asks and obtains prices from an ostensible expert for the insurance policy which he desires to buy. Some contention is made that the company is not bound [494] by the promises or representations made by Johnsion because not within bis authority. We need not consider the general scope of the authority of such an agent, for in the present case all claims of the company and all its rights adversely affected by the judgment are the results of Johnstons acts. The company cannot claim the fruits of an agent’s acts and repudiate his authority to perform them. Morse v. Ryan, 26 Wis. 356; Fraser v. Ætna L. Ins. Co. 114 Wis. 510, 517, 90 N. W. 476. We find no other contentions on the part of appellants which do not either carry their refutation on their face or have been inferentially met and considered in what has preceded, to justify further discussion. We axe persuaded that to the extent of the relief granted the judgment is fully warranted by findings which have'sufficient support in the evidence.- By the Court. — Judgment affirmed.