the purposes of the action, be taken as true; but the allegation of new matter in the reply shal! be deemed controverted by the adverse party, as upon a direct denial or avoidance." Section 1380, R. S. 1919, reads: "An issue arises upon the pleadings when a fact or conclusion of law is maintained by the one party and controverted by the other. They are of two kinds: First, of law; and second, of fact." | Smith Middlings Purifier Co. v. Rambaugh, 21 Mo. App. 390. Nor was it incumbent upon plaintiff to prove value or consideration. Section 2160, R. S. 1919. The note, as alleged, was promissory and negotiable, and was deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value. Section 811, R. S. 1919. Where the execution of the note is not denied, and where the plaintiff is in possession of it, these facts carry with it the presumption that the note was deliver"An issue of law arises: First, upon a de-ed; that it was negotiable, and that its exmurrer to the petition, answer or reply, or to some part thereof; or, second, upon an allegation of fact in a pleading by the one party, the truth of which is not controverted by the other." Section 1381, R. S. Mo. 1919, reads: Section 1382, R. S. Mo. 1919, reads: "An issue of fact arises: First, upon a material allegation in the petition controverted by the answer; or, second, upon new matter in the answer controverted by the reply; or, third, upon new matter in the reply, except an issue of law is joined thereon." What is now section 1256, R. S. Mo. 1919, was interpreted in Bruner Granitoid Co. v. Cement Co., 169 Mo. App. loc. cit. 302, 152 S. W. 603, as follows: "This being true, the averment in the petition concerning the agreement under which the switch was laid is admitted, for the statute provides that every material allegation of the petition not controverted by the answer shall, for the purposes of the case, be taken as true. See section 1830, R. S. 1909. The averments of the petition touching this matter were material, and, as they were not denied, are to be treated identically as though they were established by the evidence. It was unnecessary to introduce proof touching these matters which were admitted on the record, and it would have been superfluous to do so. See Marshall v. Thames, etc., Ins. Co.. 43 Mo. 586; State ex rel. v. Henderson, 86 Mo. App. 482, 488." ecution and delivery imported that it was There are numerous cases in this state which hold that, where an issue is raised as to the genuineness of the indorsement by a general denial thereof, it is necessary for plaintiff to prove the indorsement, among them, Bank v. Johnson (Mo. App.) 261 S. W. 705. But in the cases in which the above ruling is applied, a sufficient denial was filed to raise the issue. The cases heretofore cited point out that defendants' answer was not a sufficient pleading, and therefore could not raise the issues defendants urge. follows that, inasmuch as the material issues in the petition were not denied, they will be taken as confessed. It contend [11-13] II. Defendants further that the burden was on plaintiff to prove value received. This is not the law, because a promissory note imports a consideration. Sections 811 and 2160, R. S. 1919; Silverthorne v. Lumber Co., supra; Dawson v. Wombles, supra. Defendants contend that the petition alleged that the note was given for value received. To that we do not agree, for the petition does not plead such, but merely pleads that the note contained the words "value received." We do not think the petition is subject to the construction placed upon it by defendants, and we therefore hold that the note, as pleaded in the petition, prima facie imports a valuable consideration, and that it was not incumbent upon plaintiff to prove same. defendants' answer was insufficient, we think the case stood as though defendants filed no pleading at all, and that the position taken by defendants amounted to a confession of the material allegations of the petition. It follows that the court properly sustained the motion for judgment on the pleadings. Inasmuch as [4-10] It is evident defendants treated the denial of indebtedness as a general denial. Their denial, however, was not a general denial, and cannot be held such. They seemingly assume that the petition alleges an indebtedness, but it is evident that plaintiff relied upon the defendants' contract and promise to pay as provided in the note, and, as we have before pointed out, the promise to pay in the note and an indebtedness are not equivalent things. A denial of indebtedness is not a denial of the execution of the note. Even if defendants' answer could be construed as a general denial, it was not made under oath as provided by statute, and, consequently, does not act as a denial of the execution of the note. Section 1415, R. S. 1919. Neither payment, want or failure of consid- PER CURIAM. The foregoing opinion of eration, or any other affirmative defense could | DAVIS, C., is adopted as the opinion of the The Commissioner recommends that the judgment be affirmed. (273 S.W.) The judgment of the circuit court is accordingly affirmed. Leahy, Saunders & Walther, of St. Louis, for appellant. Arthur F. C. Blase, and Robert J. Kratky, DAUES, P. J., and BECKER and NIP- both of St. Louis, for respondent. PER, JJ., concur. MANNION V. JOHN HANCOCK MUT. LIFE (St. Louis Court of Appeals. Missouri. 1. Insurance 668(1)—Plaintiff held to have made prima facie case. In action on life insurance policy, plaintiff held to have made prima facie case for jury, by evidence of issuance of policy, its introduction in evidence, payment of premiums, death of insured, signing of death certificate, and defendant's refusal to pay. 2. Justices of the peace 174 (22)—Written answer not required on appeal from justice court. On appeal from justice court to circuit court, written answer is not required. 3. Attorney and client 86-Plaintiff estop. ped from denying facts stated by defendant's counsel in open court, where plaintiff stood mute. In action on life insurance policy, where defendant's counsel stated in open court "it is admitted by plaintiff *** that defendant made tender," and plaintiff stood mute, plaintiff is estopped to deny facts stated therein. 4. Insurance 615-Tender held not a "deposit in court," which statute requires of insurer before defense of misrepresentations can be set up. Mere tender made by insurer does not constitute a "deposit in court," within Rev. St. 1919, § 6145, providing that, before insurer can defend on ground of misrepresentations, it shall deposit in court premiums received. [Ed. Note.-For other definitions, see Words and Phrases, Deposit in Court.] 5. Insurance 665(1)—Evidence held not to warrant award for vexatious refusal to pay. Evidence held to show that insurer, before trial, acting as reasonable and prudent person, had reasonable cause and grounds to refuse to pay, and hence award of damages for vexatious refusal to pay was not warranted. DAVIS, C. This is an action by the wife of the insured and the beneficiary of an insurance policy issued on his life to recover thereon upon his death. Having originated in the justice court, the cause was duly appealed to the circuit court of the city.of St. Louis, where the jury returned a verdict in favor of plaintiff for the amount of the policy in the sum of $250, together with interest for $39.36, damage for vexatious delay for $25, and an attorney's fee for $250; the court entering an aggregate judgment for $564.36, from which defendant appealed. Plaintiff's evidence tends to show: That defendant, on September 8, 1920, issued policy 12940661 on the life of Mathew Mannion, with Bridget Mannion, his wife, named therein as beneficiary, for $250, the full policy amount. The policy provided as follows: "This policy shall not take effect unless upon its date the insured shall be alive and in good health and the premium duly paid. * This contract of insurance is based upon the declarations in the application, of which the following is a copy: (3) I am now in good health except as here stated. I have stated all exceptions. (4) I have no bodily or mental defect or infirmity except as here stated. I have stated all exceptions. (5) I have not had, within five years, any sickness, ailment, disease (bodily or mental), or any injury or surgical operation, except as here stated. I have stated all exceptions, and every case when I have consulted or received treatment from a doctor at his office or elsewhere. (6) I have never received nor applied for treatment at or in any hospital, dispensary, sanitarium, cure, or other institution, except as here stated. I have stated all exceptions, with times and places of such treatment or applications.'" That Mathew Mannion died on May 21, 1921. That defendant knew that insured died, because plaintiff went to its office on Grand avenue, from which place defendant collected the premiums. That she was given a paper, which she signed. That she went down one hot day, and at last a man came out and had some money and a paper, and he said: "Lady, your husband was sick before we issued this policy.. Here is the Appeal from St. Louis Circuit Court; money back you paid, and sign this paper." Charles B. Davis, Judge. "Not to be officially published." She said: "No; I sign no paper." That she refused to take the money, and walked out of the office. That a doctor examined her husAction by Bridget Mannion against the band in her own sitting room before the polJohn Hancock Mutual Life Insurance Com-icy was issued, after which the policy was pany of Boston, Mass. From a judgment of the circuit court in favor of plaintiff on appeal from the justice court, defendant appeals. Reversed and remanded for new trial, unless plaintiff enter remittitur. issued. On cross-examination she stated: That she went to the office of the company; was interrogated by some one who wrote down her answers, and she signed that. That she did For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes not have another paper executed by the attending physician, and did not return one. That she never brought it back. That they did it. They simply asked what doctor waited on insured. That she was asked if insured was treated at Barnes Hospital, and replied: "The first time to my knowledge I can't give the day nor date, but I can strongly think it would have been perhaps in June." That she went to Barnes Hospital with him, and he was treated by Dr. Eyerman, but did not know the cause of the treatment. That she was asked if she was furnished a pink paper at the office of the company to have it executed, and if she did not have it executed and furnished it to the company, and she answered that "she never went to get this paper; that they must have got it." That she did not know where Dr. Eyerman lived. That plaintiff was asked if she remembered this question and answer: "Has deceased ever been an inmate of any hospital or other institution, or received treatment from any dispensary?" The answer to the question was: "Barnes Hospital, 1921, to April, 1921." Plaintiff replied: "That is when he went to come out." That plaintiff, upon being asked if she had not stated a while ago, on crossexamination, that it was in 1920, replied: "Well, I stated in 1920, which I don't knowprobably, yes, but afterwards they took him in there in March of '21. That he wasn't there but one time at the dispensary, that is all, and he never went back." That a man offered her money, which must have been an offer of the return of the premium, telling her they heard he was sick for many months; plaintiff stating that she objected to that, and it wasn't so. That she was asked at that time if the reason the company refused to make payment was because the insured suffered from angina pectoris prior to the issuance of the policy, and that he died from that, plaintiff answering: "I never heard such a remark as that." That there was not anything he was suffering with except a short time before his death. On redirect examination, plaintiff testified that assured was working at the time the policy was issued, and he worked until about November 28th, and for 40 years before that, never losing any time in sickness. Plaintiff's evidence further tended to show that a reasonable attorney's fee for the services performed for plaintiff in this case was $250. Defendant's evidence tends to show that defendant's attorney stated as follows: "It is admitted by the plaintiff in this case that in the justice court the defendant made a tender of $18.80." Defendant's evidence further tends to show: That witness Kissler was employed between December 19, 1920, and February 19, 1923, in defendant's office on Grand ave wrote down whatever answers plaintiff gave him, having her sign her name, and witnessing her signature and taking her affidavit. That with respect to the pink paper, which was the certificate of the attending physician at death, witness told plaintiff that some proof of assured's death was necessary, and he gave her the paper with a notation to have it sworn to, and several days later plaintiff returned it to him. That the paper was not in plaintiff's handwriting. That the claimant's certificate, signed and sworn to by plaintiff, tends to show that assured died May 21, 1921, 11:30 a. m., at St. Louis, Mo. That his occupation was clerk for St. Louis Transfer Company. That he quit work in October, 1920. That, in answer to the question, "When did deceased first complain of ill health, and what was the nature of the trouble complained of?" the answer was, "Stroke of paralysis;" and to the question, "What was the duration of illness?" the answer was, "Sudden death." That in answer to the question, "Has deceased ever been an inmate of any hospital or other institution, or received treatment from any dispensary?" the answer was: "Barnes Hospital, March, 1921, to April, 1921." That the claimant's certificate shows it was dated and sworn to May 25, 1921. The certificate of attending physician at death, Dr. Eyerman, tends to show: That the immediate cause of assured's death and the primary cause was angina pectoris. That the date of his first visit or prescription in last illness was 5-14-20, and the date of last visit was 5-19-21. That, in answer to the question, "When, in your opinion, was health first impaired?" the answer was, "Patient states 3 months prior to first visit." That, in answer to the question, "Was deceased ever an inmate of, or received treatment in, any hospital dispensary or public institution?" the answer was, "At Washington University Dispensary and Barnes Hospital." The testimony of defendant's witness Dr. Eyerman tends to show: That he first saw assured almost exclusively in Washington University Dispensary 5-14-20. That he was seen rather frequently in the dispensary, and he had at least one, maybe more than one, admittance to Barnes Hospital. That the note states here that he was discharged from Barnes Hospital 5-14-21. That according to the figures assured was discharged from the hospital seven days before his death. That he was attended by the staff of the hospital, and that personally the witness had no care of him. That he did not treat him personally in Barnes Hospital. That cases in the wards of Barnes Hospital are taken care of by the staff or visiting man who was on duty at that time. That he had an abstract of his case in the dispensary (273 S.W.) actual care in the hospital, except to advise and counsel with the visiting physician on the ward. [1] I. We think the record demonstrates that plaintiff made a prima facie case, for her evidence tends to show the issuance of the policy, its introduction in evidence, the payment of the premiums, the death of the insured, the signing of the claimant's certificate after death and the refusal to pay. This evidence was sufficient, in view of these facts, to make a prima facie case for the jury. II. Error is assigned on the part of the trial court in refusing to direct a verdict for defendant at the close of plaintiff's evidence and at the close of the whole evidence, on these grounds: (A) The evidence showed that, at the time assured made application for the insurance, he was suffering from angina pectoris, the disease which later caused his death. (B) The evidence in the case showed conclusively that the assured, at the time of the delivery of the policy, was not in a state of insurability shown in the application. (C) Proofs of death are admissible in evidence against the beneficiary as admissions, and, when not contradicted or explained, will be conclusive against the beneficiary. [2] Inasmuch as the case originated in the justice court, a written answer was neither necessary nor filed. However, defendant's trial theory was misrepresentation, and the only instruction offered or given by the court at defendant's instance proceeded on the theory that assured was suffering from angina pectoris on September 8, 1920, the date of the delivery of the policy, and that angina pectoris later caused his death. [3] Plaintiff contends that defendant cannot avail itself of the defense of misrepre- | sentation, for, before the defense can be interposed, defendant must, at or before the trial, deposit in court, for the benefit of plaintiff the premiums received on such policy. This contention is based on section 6145, R. S. of Missouri, 1919, reading: "In suits brought upon life policies, heretofore or hereafter issued, no defense based upon misrepresentation in obtaining or securing the same shall be valid, unless the defendant shall, at or before the trial, deposit in court for the benefit of the plaintiffs, the premiums received on such policies." Plaintiff contends that the provision of the statute is a condition precedent to the defense of misrepresentation, and that, as compliance therewith does not appear by affirmative proof, the defense is not available. On the other hand, defendant contends that the record affirmatively shows that the conditions of the statute have been complied with, as shown by the statement of defendant's counsel in support of the issues on its behalf, as follows: "If your honor please, and gentlemen of the jury, it is admitted by the plaintiff in this case that in the justice court the defendant made a tender of $18.80." The plaintiff stood mute, and is estopped to deny the facts stated therein. [4] III. Does the tender made as heretofore shown meet the situation presented by the statute? We think not, for a tender is not equivalent to a deposit in court which includes a tender and goes beyond. Mendell v. Howard, 200 Mo. App. 427, 208 S. W. 497. The deposit in court broadens the rights of plaintiff, for it provides in effect a trust fund in the hands of the custodian for the benefit of plaintiff. It may be that a defendant, which we do not decide, after making a deposit in court, and before the acceptance thereof by the plaintiff, may, upon formal request to and with the consent of the court legally and properly withdraw the deposit; but, if this course is pursued, both the court and plaintiff are informed of the fact, the defense of misrepresentation falls, and the case stands as though no deposit had been made. A deposit constitutes a continuous offer, until withdrawn, if that may be done. A tender, on the other hand, does not purport to be continuous. If, however, a tender could be said to be a continuous offer until withdrawn, it follows that neither the court nor the plaintiff is informed with certainty that the tender is withdrawn as in the case of a deposit, since defendant may mentally determine not to hold the offer open, and fail to communicate its intention. We think an interpretation of the statute distinguishes a tender and a deposit in court. The statute is mandatory, and, before a defendant may make a defense of misrepresentation, it must deposit the premiums in court and hold them there. Lavin v. Ins. Co., 101 Mo. App. 435, 74 S. W. 366; Thassler v. Life Ass'n, 67 Mo. App. 505; Jenkins v. Ins. Co., 79 Mo. App. 55; Herzberg v. Modern Brotherhood of America, 110 Mo. App. 328, 85 S. W. 986; Welsh v. Ins. Co., 165 Mo. App. 233, 147 S. W. 147. [5] IV. Error is assigned because the trial court submitted to the jury the question of vexatious refusal to pay, defendant urging that an adverse verdict does not import a vexatious refusal, and, as it has been tersely stated, "the penalty should not be inflicted unless the evidence and circumstances show that such refusal was willful and without reasonable cause as the facts appeared to a reasonable and prudent man before the trial." We agree that the position taken correctly states the rule of law. Applying the above rule to the facts found in the record, we think there is no evidence of a vexatious refusal to pay. That defendant inadvertently or through misapprehension failed to deposit the required sum of money in court does not alter the situation. The question obtained, Did defendant, before the trial, acting as a reasonable and pru dent person, have reasonable cause and where minds of parties did not meet, and final grounds to refuse to pay? The evidence tends to show that insured declared without any exceptions, that he had stated every case when he consulted or received treatment from a doctor at his office or elsewhere, that he had never applied for treatment at any hospital or dispensary, and that he was now in good health. Defendant's evidence tended to show that insured consulted Dr. Eyerman on May 14, 1920, four months before his declaration, in terms were not agreed upon until a long-distance telephone conversation and correspondence prior thereto, showed nothing more than negotiations and unaccepted offers or conditions of sale. 3. Sales 271-What constitutes "sale by sample," from which a warranty arises, stated. To constitute a "sale by sample," from which a warranty arises, it must appear that parties contracted with reference to the sam Washington University Dispensary. Defend-ple, with understanding that sample represent ant received this information before the trial, and, as it was credible and could be relied on, we think reasonable cause to defend appeared, such as a reasonable and prudent person would act upon. Therefore the Commissioner recommends that, if plaintiff will remit the amount of said damages, to wit, $275, the judgment will be reversed, and the cause remanded, furnished on a request fails to make it a sale ed quality of the bulk, and that a sample was by sample so as to imply a warranty. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Sale by Sample.] 4. Sales 445(1)-Whether sale of second hand bags was made by sample held for jury. In action on contract for breach of war ranty in sale of secondhand bags, whether sale was made by sample held for jury. with directions to enter a new judgment in favor of plaintiff and against defendant for the sum of $289.36, with interest at the rate | 5. Sales 445 (4)—Whether warranty in sale of 6 per cent. per annum from the 7th day of secondhand bags was breached held for of January, 1924, otherwise the judgment jury. will be reversed, and the cause remanded for a new trial. PER CURIAM. The foregoing opinion of DAVIS, C., is adopted as the opinion of the court. In action on contract for breach of warranty in sale of secondhand bags, whether warranty as to quality of bags was breached held for jury. 6. Sales 288 (2)-That plaintiff elected to accept bags on defendant's refusal to accept rescission of contract of sale held not to preclude plaintiff from recovering damages for breach of warranty. In action on contract for breach of war Therefore, if plaintiff will remit the amount of said damages, to wit, $275, the judgment will be reversed and the cause remanded, with directions to enter a new judg ment in favor of plaintiff and against de-ranty in sale of secondhand bags, that plainfendant for the sum of $289.36, with interest at the rate of 6 per cent. per annum from the 7th day of January, 1924, otherwise the judgment will be reversed, and the cause remanded for a new trial. tiff, after notice of rejection, changed his mind about rescinding contract, and elected to accept bags on defendant's refusal to accept rescission, held not to preclude plaintiff from recovering damages for breach of warranty. 7. Damages 9-Demurrer to evidence overruled, where breach of contract entitling plaintiff to nominal damages is shown. Where evidence tends to show a breach of contract, nominal damages are recoverable, necessitating overruling of a demurrer to the evidence. 8. Sales 434-Petition in action on contract for breach of warranty in sale of secondhand bags held grounded on a breach of warranty. In action on contract for breach of warranty in sale of secondhand bags, petition held grounded on a breach of warranty as to quality of bags. 9. Sales 442 (2)-Measure of damages for breach of warranty in sale of secondhand bags stated. Measure of damages for breach of warranty in sale of secondhand bags was difference between value of bags actually furnished to buyer at place of delivery and value they would have had at place of delivery if they had possessed warranted qualities. |