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controversy. He cannot plead an express and 1909 was under the terms of an express contract and be allowed to recover on proof contract which provided for the payment of of an implied contract. Taking defendant in commissions in addition to the agreed salary, its own evidentiary position, there can be and, since the agreement to pay a salary no question that the employment of plaintiff and a commission upon a stated contingency was under an express contract for the def-were divisible and in the nature of indeinite term of the years 1906 and 1907 with pendent covenants (Marks v. Davis, 72 Mo. plaintiff's compensation fixed at a salary of App. 557), the voluntary increase of the $1,320 per year and commissions on the busi- salary by defendant in the year 1908 was ness done in the second year in excess of without effect upon the agreement respecting $60,000.

the commissions. If plaintiff had asked it, [3] The effect of the continuation of the he would have been entitled to a peremptory employment after the termination of the instruction to the jury to allow commissions definite period, without any new agreement, for the years 1908 and 1909. As to the rewas to raise the presumption of a renewal maining years of 1910 and 1911, the proof of of the contract for the following year. It is defendant tends to show that, as a result of said in Bell v. Warehouse Co., 205 Mo. loc. the dispute in 1909 between the parties over cit. 489, 103 S. W. 1017:

the question of defendant's liability for com“While an employé's salary is fixed by con- missions, plaintiff acquiesced in the contentract at a certain sum per year or month, and he tion of his adversary that commissions would continues to render services after the expiration not be allowed. Such conduct did not affect of such period, without any new agreement, the law presumes, there being no evidence to the his right to claim such compensation for the contrary, that the continued services were ren- current year of 1909, but, if it occurred, did dered upon the same terms. Ewing v. Janson, have the effect of altering the terms of the 57 Ark. 240 [21 S. W. 430]; Standard Oil Co. v. Gilbert, si Ga. 717 [11's. E. 491, 8 L. R. contract for the succeeding two years to exA. 4101; Crane Bros. Mfg. Co. v. Adams, 142 clude commissions. Ill. 125 [30 N. E. 1030]; Ingalls v. Allen, 132

The only issue of fact which should have Ill. 170 (23 N. E. 1026] ; Tatterson y. Suffolk been submitted to the jury was whether Mfg. Co., 106 Mass. 56; Adams v. Fitzpatrick, 125 N. Y. 124 [26 N. É. 143]; Ranck v. Al-defendant, in 1909, suffered the employment bright, 36 Pa. 367; Wood on Master and Serv- to continue with knowledge that plaintiff ant, & 96; Home Fire Ins. Co. v. Barber, 67 was standing on the agreement for commisNeb. 644 (93 N. W. 1024, 60 L. R. A. 927, 108 Am. St. Rep. 716]; Rose v. Carbonating Co., 60 sions, or whether plaintiff continued in deMo. App. 28.”

fendant's service after the expiration of that The rule thus is stated in Kellogg v. In- year in the face of defendant's positive surance Co., 94 Wis. loc. cit. 557, 69 N. W. declaration that he would not allow commis362:

sions. For the reasons stated, defendant's “When one serves another under a contract second instruction should not have been for a year's service, and holds over, continuing given. in the service after the expiration of the year, [5] The third, also, was erroneous. The there is a presumption, analogous to the pre-check was tendered and accepted in full sumption in the case of a yearly lease, that the parties consent to the continuance through an- satisfaction of "all salary to date," and not other year of the contract of service.”

as “full compensation for all services renderSee, also, 1 Labatt or Master and Servant, ed by plaintiff to defendant." Its acceptance pp. 230, 231; 26 Cyc. 976; 20 Am. & Eng. had no effect upon plaintiff's right to commisEncyc. of Law, 16.

sions derived from an independent covenant [4] The presumption, called by Labatt "a in the contract. presumption of fact," does not alter, but con- The judgment is reversed, and the cause

, tinues, the terms of the original contract, and remanded. All concur. therefore does not have the effect of converting an express into an implied contract. It

PARKER-GORDON CIGAR CO. v. CHImerely raises an inference as one of fact

CAGO, R. I. & P. RY. CO. (No. 11272.) that the parties agreed to extend the operation of the old contract for another year.

(Kansas City Court of Appeals. Missouri. This view is consistent with the distinction

Nov. 1, 1915.) observed by Nortoni, J., between express and CARRIERS 83-DELIVERY OF Goods-SUFFI

CIENCY-CONSIDERATION BY TEAMSTER. implied contracts in Weinsberg v. Cordage

Where it was the practice of a railroad Co., 135 Mo. App. 553, 116 S. W. 461; Stone company to deliver goods only to those teamv. Trust Co., 150 Mo. App. 331, 130 S. w. sters of a transfer company who had a freight 825; and Wagner v. Illuminating Co., 141 sheet signed by certain officers of the transfer

company, whose signatures were kept by the No. App. 51, 121 S. W. 329.

railroad company for comparison, the railroad Since defendant concedes that the subject company was not liable for goods delivered to a of the terms of the employment was not men- teamster who converted them, where he was in

fact authorized to receive them, though his tioned until it arose in the dispute in the freight sheet was not properly signed. summer of 1909 over the commissions claim

[Ed. Note. For other cases, see Carriers, ed by plaintiff for 1908, it follows from what Cent. Dig. SS 308–315; Dec. Dig. Om83.] we have said that the employment for 1908 Johnson, J., dissenting.

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
179 S.W.

tiff *

*

Appeal from Circuit Court, Buchanan, called it a card, some a freight card, some County; William H. Haynes, Judge.

a sheet and others an identification sheet, or Action by the Parker-Gordon Cigar Com card. A copy of one is in the record, and we pany against the Chicago, Rock Island & find that it is really a blank receipt, to be Pacific Railway Company. From a judgment signed by the consignee. It is gotten up for plaintiff, defendant appeals. Reversed. by the transfer company and carried by its

Spencer & Landis, of St. Joseph, for ap- teamsters; each sheet having a blank space pellant. J. E. Dolman and O. E. Shultz, both for the teamster's name, following the word of St. Joseph, for respondent.

"Teamster" at the top. Then came the words,

"Received from the Kansas City Transfer ELLISON, P. J. This is an action to re- Company the following articles in good cover the value of goods received at Chicago order and condition.” Then followed blank by defendant, a common carrier, for trans- columns for name of railroad, consignee, portation to Kansas City and for delivery articles of freight, weight, and charges. there to plaintiff, the consignee and owner. This sheet, or card, was carried by the teamThe petition states:

ster to the railroad office where, if not al"There was delivered to defendant for plain-ready done, it would be filled out with items

* four cases of cigars, containing of freight, the freight loaded by the team22,500 cigars, which said cigars the defendant ster and taken to the consignee, who would agreed, in consideration of certain freight charges paid it, well and safely to carry from Chica- verify, sign, and hand back to the teamster, go, Ill., to Kansas City, Mo., and at the latter who would return it to the transfer company. Llace to deliver the same to plaintiff, or its Now it was this sheet receipt that one of agent, but * * * defendant, in violation of its said agreement and in total disregard of its the officers above named would indorse with duty as a common carrier for hire failed and his name, generally in one corner, before it neglected to deliver said cigars * to was handed to a teamster by the dock foreplaintiff, or to any one for plaintiff, and that the man, or his assistant when directing him to same have been wholly lost to plaintiff." The prayer is for judgment for $1,575, the ficial had the signatures of these officers in

go after freight. The railroad delivery ofalleged value of the goods. The answer ad- his desk for comparison if he thought it necmits that defendant received the cigars for

essary. transportation and delivery to plaintiff at Kansas City, and alleges delivery to an au

On the day when the freight in controverthorized agent of plaintiff.

sy was delivered by defendant, the transfer The sole issue in the case is whether there company's assistant dock foreman handed was a delivery of the goods to plaintiff, their one of these sheets to one of the transfer consignee and owner. The trial of that issue company's teamsters, with the latter's name in the circuit court resulted in a verdict and written in at the proper place, but, seejudgment for plaintiff. Defendant appealed. ing that it had not the indorsement of either It is conceded defendant delivered the goods of these officers, he, as he had sometimes at its depot in Kansas City to a negro done before, mistakenly thinking he had auteamster employed by the Kansas City |thority, wrote the name of the transfer comTransfer Company, which had general au- pany's cashier on the sheet. The teamster thority from plaintiff, a wholesale grocer, to took it to defendant's freight office, and there receive all shipments of goods arriving at the proper railroad officer, without attemptKansas City for plaintiff. The teamster ing to verify the transfer officer's signature, loaded the goods in the wagon of his employ-ordered plaintiff's goods delivered to the er of which he was the driver, but, instead teamster, who, as we have said, sold them of delivering them to plaintiff, he sold them and never delivered to plaintiff. for $100, returned the team and wagon to

From the foregoing it will be seen that dethe barn of the Transfer Company, and then fendant delivered the goods to the transfer absconded.

company's teamster whom that company had The mode of doing business between the sent after them. The only irregularity, if

, railroad companies, including defendant, and it may be called such, was in delivering to the transfer company as agent for a large a teamster who was not identified. But we number of merchants receiving shipments think plaintiff has received a service out of was this: To protect the railroad companies this to which it was not entitled. Of course from imposition by persons pretending to be it was the duty of this defendant, as a carsent after freight by the transfer company, rier, to safety deliver at destination to the it was agreed between them that none of the consignee (Bartlett v. Steamboat, 32 Mo. 256; railroad companies would deliver freight to Buddy v. Railroad, 20 Mo. App. 220; Express a teamster unless there was found signed or Co. v. Milk, 73 Ill. 224; Powell v. Myers, indorsed on his "freight sheet" the name of 26 Wend. [N. Y.] 591), but the object of the either of four named officers of the transfer railway company, as applied to this case, was company, viz., the president, the bookkeeper, to protect itself against an impostor getting the superintendent, or the dock foreman. the goods and thereby rendering it liable This sheet was perhaps 18 inches long, so as for delivering to the wrong party. The railto accommodate items of freight, and it is way's position may be likened, by way of variously designated by the witnesses-some

.

check. The bank must pay, at its peril, to ly the act of the company as would have the proper person. Prudence suggests that it been the act of the president. Plaintiff's do not pay until it has required the party whole case is based upon a failure to identify presenting the check to identify himself. But a man as being the transfer company's teamthough the bank is imprudent enough not to ster, when in fact it is admitted he was such require identification, yet if the party is the teamster. right person, no harm has resulted to the We think the judgment should be reversed. bank from its incautious act. In National Bank v. Schley, 58 Ga. 370, it is said that: TRIMBLE, J., concurs. JOHNSON, J.,

"If a person withdraw from a bank a special dissents. deposit, in pursuance of authority conferred upon him by the depositor, the bank is discharged, though the authority be unknown, at the time, to the corporation or to the officer rep

PAUL V. METROPOLITAN ST. RY. CO. resenting it in the transaction."

et al. (No. 11601.) And in Dobie on Bailments and Carriers,

(Kansas City Court of Appeals. Missouri.

June 14, 1915. On Motion for Re§ 19, it is stated that:

hearing, Oct. 4, 1915.) “Of course the bailee is not liable when he 1. CARRIERS Ow321–INJURY TO PASSENGERdelivers goods to the right person, though the INSTRUCTIONS-CONFORMITY TO ISSUES. delivery is made on insufficient, or even false

In an action for personal injuries by a evidence.”

passenger, received through the alleged negliHere the face of the record shows, as we gence of a street car company in starting its have stated, that the negro was the transfer stopping place where the car had stopped to

car while plaintiff was alighting at a regular company's teamster who was directed to go to take on and let off passengers, the defense bedefendant's freight office for the goods. In ing that plaintiff fell because some one stepped obedience to that direction he went. As he on her dress, and that the car did not start until

the conductor had picked her up, an instrucwas the right man, he did not need identification was not objectionable for ignoring the eletion. Identification would not have prevent- ment of whether defendant's servants knew, or ed him from stealing the goods just as he did in the exercise of ordinary care could have steal them. Plaintiff is making use of this known, that plaintiff was alighting when the

car was started, since the conductor's knowledge identification card just as it would had some was not in issue in the case. impostor gone to defendant and falsely repre- [Ed. Note.-For other cases, see Carriers, sented that he was the transfer company's Cent. Dig. $$ 1247, 1326–1336, 1343; Dec. Dig. teamster sent after the goods. The matter of

On 321.] identification was for the protection of the

On Motion for Rehearing. railroad companies. The transfer company's 2. CARRIERS 303-ALIGHTING PASSENGERS president testified that:

-CARE REQUIRED-STREET RAILROADS. "The railroad companies, for their own pro- running through the country, has stopped a rea

The rule that after a steam railroad train, tection, had the transfer companies to meet with sonable time at stations for passengers to board the local freight agents and made an agreement and alight, the conductor may start the train by which they could be protected, and not make upon the 'assumption that all passengers are wrong deliveries."

safe, does not apply to the operation of street And that agreement was that no deliveries cars in cities. would be made without the signature of some Cent. Dig. $$ 1216, 1218, 1224, 1226–1232,

[Ed. Note.-For other cases, see Carriers, official on the “teamster's sheet.”. But it 1234-1240, 1243; Dec. Dig. 363.] would make no difference if we concede that 3. CARRIERS Om303-ALIGHTING PASSENGERS the agreement had also for its object the pro- -CARE REQUIRED. tection of the transfer company, for the rea

Under his duty to use the highest degree son that it might have had some teamsters in of care for the safety of his passengers, a street its employ whom it did not wish to trust with that no passenger is alighting or is otherwise

car conductor before starting the car must know hauling freight to consignees, and that on in a position of danger, and his failure to perthat account, it wanted freight delivered only form such duty is negligence. to such teamsters as carried a freight sheet Cent. Dig. s$ 1216, 1218, 1224, 1226–1232,

[Ed. Note. For other cases, see Carriers, indorsed by one of its officers. For here the 1234-1240, 1243; Dec. Dig. Om 303.]

$$ teamster was a freight teamster, employed to haul and deliver freight to consignees, and

Appeal from Circuit Court, Jackson Counwho, in this instance, was sent by the trans- ty; 0. A. Lucas, Judge.

“Not to be officially reported.” fer company after the freight in controversy. No other conclusion can be reached than that

Action by Laura E. Paul against the Methe was sent by the dock foreman and his as- ropolitan Street Railway Company and othsistant, and that was the act of the company. ers for personal injuries. From a judgment Suppose the president of the transfer com- for plaintiff, defendants appeal. Affirmed. pany had given the teamster this sheet, even John H. Lucas and Bruce Barnett, both of without a pretense of being indorsed, and Kansas City, for appellants. Claude T. Go sent him for plaintiff's goods, it would seem ble, of Kansas City, for respondent. folly to suggest that he should have been identified by defendant's freight agent. The JOHNSON, J. In alighting from a street act of the dock foreman was just as complete-car operated by defendants on the Brooklyn line in Kansas City, plaintiff was thrown to material to the cause of action and it was not the pavement and injured. She sued to re- essential that the jury should consider it.” cover her damages on the ground that her We see no reason for changing the views injury was caused by negligence of defend- thus expressed, which we find sufficiently anants in prematurely starting the car while she swers all of defendants' criticisms of the inwas in the act of alighting from it at a regu- struction. There is no error in the case, and lar stopping place where it had stopped to re- the judgment is affirmed. All concur. ceive and discharge passengers. The answer

On Motion for Rehearing. is a general denial. Verdict and judgment were for plaintiff in the circuit court, and de

[2] Counsel for defendants argue in their fendants appealed.

motion for a rehearing that the rule, stated The evidence of plaintiff tends to show in the opinion, which holds a conductor of a that the car on which she was a passenger street car negligent in giving a signal to stopped at Tenth street and Forest avenue start while a passenger is in the act of alightto take on and let off passengers; that plain- ing at a place where the car has stopped to tiff proceeded as expeditiously as possible to take on and discharge passengers, is in conthe rear vestibule, and was in the act of flict with the decision of the Supreme Court stepping to the street from the last step, in Clotworthy v. Railroad, 80 Mo. 220. That when the car was suddenly started, in obe- case announces the well-known and generally dience to a signal from the conductor, and recognized rule applicable to the operation of plaintiff was thrown to the pavement and trains on steam railroads running through injured.

the country that where such train stops long The evidence of defendants is to the effect enough at a station for a passenger conventhat some one in the vestibule accidently iently to alight and without fault of the comstepped on plaintiff's skirt when she was pany's servants he fails to do so, and the constepping from the platform of the vestibule ductor, not knowing and having no reason and caused her to fall, and that the car did to suspect that he is in the act of alighting, not start until the conductor had helped her causes the train to start while he is so alightto her feet and she proceeded on her way ing, the company will not be held liable. home.

That rule does not apply to the operation of [1] Defendants do not contend that plain- street cars in cities for reasons given in retiff's evidence is insufficient to sustain the cent opinions of this court and the St. Louis pleaded cause of action, and the only points Court of Appeals. Nelson v. Railway, 113 they present for our determination are di- Mo. App. loc. cit. 709, 88 S. W. 1119; Green rected against the first instruction, given at v. Railway, 122 Mo. App. 647, 99 S. W. 28; the request of plaintiff. The principal objec- Hurley v. Railway, 120 Mo. App. 262, 96 s. tion to the instruction is that:

W. 714; Zeiler v. Railway, 153 Mo. App. 613, "It ignores the element as to whether defend- 134 S. W. 1067; Jerome v. United Railways ants servants knew, or by the exercise of prop- Co., 155 Mo. App. 202, 134 S. W. 107; Elliott er care could have known, that plaintiff was v. Railway, 157 Mo. App. 517, 138 S. W. 663. alighting from the car at the time the car start

[3] In the exercise of the highest degree ed forward."

of care towards his passengers, the conWe said of this precise objection to a sim- ductor of a street car, in any event, should ilar instruction which was urged in Alten v. see and know that no passenger is in the act Railway, 133 Mo. App. loc. cit. 430, 113 S. W. of alighting or otherwise is in a position 691:

which would be rendered perilous by the mo"It would sufficiently answer the objection to tion of the car when it is again put in mosay that, since all of the evidence of defendant tion, and a failure to perform that duty is is to the effect that the conductor did observe held by the great weight of authority to be plaintiff while she was in the act of alighting, the question omitted from the instruction was negligence. Booth on Street Railways, $ 319; not a debatable issue, and there is neither rule Nellis on Street Railroad Accident Law, 92; nor reason for requiring the submission to the Railway v. Smith, 90 Ala. 60, 8 South. 86, 24 jury of admitted facts, however material they Am. St. Rep. 761; Anderson v. Railway, 12 may be. But defendant's conclusion is unsound for another reason. The witnesses for both Ind. App. 194, 38 N. E. 1109; Patterson v. parties agree that the car had stopped at the Railway, 90 Iowa, 247, 57 N. W. 880. See, regular stopping place and passengers were get- also, note 11 L. R. A. (N. S.) 140 et seq. ting on and off. In such situation, it was the duty of the conductor, before giving the signal

The rule criticized in the motion is not in to start, to know whether or not a passenger conflict with that applied in the Clotworthy was alighting. If plaintiff was in the act of Case and is so just and well sustained by stepping from the platform, it would be no ex: reason and authority that it should not be cuse for the conductor to say that he did not know that fact. In the exercise of reasonable discarded from the negligence law of this care, he was bound to know it. Green v. Rail- state pertaining to the relation of carrier and way, 122 Mo. App. 647 [99 S. W. 28]; Nelson

passenger. v. Railway, 113 Mo. App. 702 [88 S. W. 1119]; Hurley v. Railway, 120 Mo. App. 262 [96 S. W.

The motion for rehearing is overruled. All 6. PLEADING O236-AMENDMENT - ALLOWJENNINGS et al. v. NATIONAL AMER- ANCE. ICAN. (No. 11603.)

Where, in an action on a policy of life in

surance, after both sides had rested and the in(Kansas City Court of Appeals. Missouri. structions been passed upon by the judge, the July 2, 1915. Rehearing Denied day after the closing of evidence, when arguOct. 4, 1915.)

ments were to be made and the case submitted

to the jury, the insurer asked leave to amend 1. INSURANCE 310-LIFE INSURANCE-FOR- the answer to set up a provision of its by-laws FEITURE OF POLICY-LIABLE TO FORFEI- that a reduction could be made from the amount TURE"-"LIABILITY."

specified in the policy of any premiums due for Where a policy of insurance, providing that the first ten years remaining unearned between it was issued subject to the statements in the that time and the prior death of the insured, application, that said statements were warrant and also asked leave to introduce evidence to ed to be true and made a part of the insurance show the amount of the unearned premiums contract, together with the by-laws of the com- which it could have collected between the death pany, and that the policy should be "liable to of the deceased and the expiration of ten years forfeiture" if such statements were not true, from the date of the policy, had decedent lived under the company's by-laws, the making. of so long, which, under the by-law, could be defalse statements being an offense upon which, ducted from the face of the policy'in suit therebefore any effect was produced upon the insur-on, the action of the court in refusing the reance, a proceeding must be had by the com- quested leave, resulting in plaintiff's recovery pany "under such rules as may from time to of the face of the policy, was not an abuse of time be formulated by the board of directors," discretion. in the absence of proceeding to declare a for

[Ed. Note. For other cases, see Pleading, feiture, the policy was not avoided by misstate- Cent. Dig. $S 601, 605; Dec. Dig. Own 236.] ments of the insured in the application, since "liable to forfeiture" means exposed or subject 7. APPEAL AND ERROR Om959-REVIEW-ALto forfeiture, contingently subject to forfeiture, LOWANCE OF AMENDMENTS-DISCRETION OF "liability" being something that must be enforc- COURT. ed, while, if a contract provides that a forfeiture The allowance of amendments to pleadings may be declared in a certain contingency, then is a matter not entirely within the discretion of such forfeiture cannot come into existence until the trial court; its action being reviewable in it has been declared.

case of manifest abuse. [Ed. Note. For other cases, see Insurance, [Ed. Note. For other cases, see Appeal and Cent. Dig. $$ 703, 761, 780, 826, 840, 904; Dec. Error, Cent. Dig. $$ 3825–3831; Dec. Dig. Om Dig. Omn 310.

959.] For other definitions, see Words and Phrases,

Appeal from Circuit Court, Jackson CounFirst and Second Series, Liability.]

ty; O. A. Lucas, Judge. 2. INSURANCE em 645—ACTION ON POLICYPLEADING AND PROOF.

“Not to be officially published." In an action on a policy of life insurance, Action by Allie Jennings and Albert P. where the defense of forfeiture was not properly Jennings against the National American. pleaded, the exclusion of evidence to substanti- Judgment for plaintiffs, and defendant apate it was proper. [Ed. Note. For other cases, see Insurance,

peals. Affirmed. Cent. Dig. $$ 1554, 1632-1644; Dec. Dig. Om D. C. Finley, of Kansas City, for appel645.]

lant. G. W. Duvall and Fyke & Snider, all 3. INSURANCE 645–LIFE INSURANCE-AC- of Kansas City, for respondents. TION-EVIDENCE.

In an action on a policy of life insurance providing that the application should be taken TRIMBLE, J. This is a suit upon a polas part of the contract, the plaintiff was not icy of insurance issued upon the life of w. required to introduce the application in evidence R. Jennings. The beneficiaries recovered in together with the policy.

the trial court, and the company appealed. [Ed. Note.–For other cases, see Insurance, Cent. Dig. $$ 1554, 1632-1644; Dec. Dig.

The answer admitted that the policy was 645.]

issued, that plaintiffs are the beneficiaries, 4. INSURANCE 687 — LIFE INSURANCE

and that the insured died. Unless, thereCHARACTER OF COMPANY.

fore, the answer contained allegations leWhether an insurance company did an old- gally sufficient to constitute a defense, plainline or fraternal insurance business was deter

tiffs were entitled to recover. mined, not by what it called itself or its business, but by the character of the policy, in suit

No doubt, the answer sought to set up and the manner in which the defendant conduct the defense of forfeiture because of certain ed its business.

alleged misstatements in the application. If, [Ed. Note. For other cases, see. Insurance, however, the answer failed to plead a forCent. Dig. § 1824; Dec. Dig. Om 687.]

feiture so as to enable the alleged misstate5. INSURANCE Om 645 LIFE INSURANCE

ments to relieve defendant of liability, there BREACH OF WARRANTY-STATUTE.

Under Rev. St. 1909, $ 7024, providing that was no error committed by the trial court in the warranty of any fact in an application for refusing to hold that the insurance was forinsurance shall, if not material to the risk in- feited, nor in excluding evidence of facts sured against, be deemed a representation only, where, in an action on a life policy, there was sought to be introduced by defendant to neither pleading nor evidence that alleged mis- prove that forfeiture. statements in the application were material to [1] The policy provides that it is issued the risk, evidence tending to show such falsity subject to the statements made in the apcould not defeat plaintiff's recovery.

[Ed. Note. -For other cases, see Insurance, plication, and that said statements are warCent. Dig. 88 1554, 1632-1644; Dec. Dig. ranted to be true, and are made a part of

On 645.]

the insurance contract, together with the

C

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