Grisham v. National Life Insurance

BLAND, P. J. (after stating the facts). — 1. The first error assigned is that the court erred in admitting as evidence the application for insurance and the certificate set out in the answer. * This- error was not called to the attention of the court in the motion for new trial. It is a well settled rule of appellate practice in this State, that to authorize a review of any‘error alleged to have been committed by the trial court in the progress of the trial, it is indispensable that such error was called to the attention of that court in the motion for new trial. [State v. Kyle, 177 Mo. 659, 76 S. W. 1014; [64] Needles v. Ford, 167 Mo. 495, 67 S. W. 240; Redman v. Adams, 165 Mo. 60, 65 S. W. 300; Fender v. Haseltine, 106 Mo. App. 28, 79 S. W. 1018.] We therefore decline to notice this assignment of error. 2. Plaintiff’s written application for insurance expressly provides that the applicant shall pay annual premiums at the rate of $62 per annum for the whole period of twenty years, and expressly stipulates that said “application shall be a consideration for and a basis of the contract under any policy issued under said application.” Plaintiff alleged in his petition, and testified, that McNeamey represented to him that he would only be required to pay an annual premium of $62 for three years and for the remaining seventeen years an annual premium of only five dollars, and that on the faith of these representations he signed and delivered to McNeamey his note for $62. The question for decision, therefore, is whether plaintiff is bound by his written contract or whether the contract in writing can be contradicted by the verbal agreement made by plaintiff with McNeamey as agent of the defendant company. The written contract is in evidence, unob-jected to, and there is no allegation or proof that plaintiff was induced to sign it through fraud or deception, or that McNeamey induced him to sign it without reading it, or that he practiced any artifice to conceal its contents from plaintiff. The written contract is therefore unassailed and unimpeached for fraud, mistake or deception. The law is well settled that a written contract is conclusively presumed to fnerge all prior negotiations and to express the final agreement of the parties, and that a party to such a contract will not be allowed to destroy the value of his written contract by testifying that though he signed it he did not read it or know its contents. As was said by Ellison, J., in Johnson v. Insurance Co., 93 Mo. App. 1. c. 591, “If a party is induced to sign a contract by fraud, [65] be can ayoid it for that reason. But it is clear that merely falsely representing to a man in possession of Ms faculties and able to read, that a writing embodies their verbal understanding is not the fraud the law means. If it was, then no written contract could stand against the ^assault of either party. He would only need to say that it did not contain the agreement; and not containing the agreement, it is fraudulent; and being fraudulent, it can not be enforced. Thus a writing would be mere waste material and all stability of contract be at an end.” Under the evidence, defendant was clearly entitled to the peremptory instruction given by the court and the judgment is affirmed. All concur.