(209 P.) weighed him, as I remember, and made as careful a physical examination as I could," and found nothing wrong with him except the symptoms he was complaining of. He diagnosed the trouble as gastric neurosis, which he said might be designated as a sour stomach, but that he did not consider it a disease of the stomach. He also said that he was and had been for several years an examiner for several life insurance companies, including the appellant in this case, and that from what he knew of the physical condition of the insured at any time prior to May, 1916, when the insured obtained his policy, he would have passed him as a fit subject for life insurance; that in his opinion the insured was not suffering from any organic disease nor from anything that "would shorten his expectancy of life." Among the findings made by the court were the following: "(6) That the said Ervin L. Russell was in good health when he received the insurance policy referred to in plaintiff's complaint; that he was not under treatment of any physician. "(7) That the said Ervin L. Russell did not make false and untrue statements to the defendant in order to secure the policy of insurance above referred to. That he was not suffering from any disease or ailment; that he was not under the care or treatment of any physician; and all questions answered by the said Ervin L. Russell were done in good faith." No finding was made touching the materiality of question No. 9 and the answer thereto, but appellant is not complaining of such default. We think the evidence sufficient to sustain the findings of the court as to the matters referred to in question No. 8. These ailments or diseases seem to come within the rule laid down in Penn Mutual Life Insurance Co. v. Mechanics' Savings Bank & Trust Co., 72 Fed. 413, at page 432, 19 C. C. A. 286, at page 305 (38 L. R. A. 33, 70) as follows: rison, who has been since 1891 a medical examiner for the New York Life Insurance Company and a member of its medical board. He testified in part as follows: "Q. Do you know a person in the medical department of the defendant named K. A. Gallagher? A. Yes. "Q. How long have you known said Gallagher? A. Ever since he entered the defendant's employ some 12 or 15 years ago. "Q. What, if you know, were the duties of said Gallagher as an employee of the defendant during the year 1916? A. To examine applications for insurance and the medical examiner's report, which is always on the reverse side of the applicant's answers to the medical examiner, and to examine the answers to the medical examiner, which is a part of the application, as well as the whole application, and if such examination discloses that every answer of the applicant in the application and the answers to the medical examiner and the medical examiner's report is favorable to him, then it was the duty during said year of the employee Gallagher to pass upon such favorable application and to accept it, but if there was any statement or answer in any of said papers that was not clearly favorable to the insurability of the applicant, then it was the duty. of said Gallagher not to accept the application, but to refer it to me or to some other member of the medical board of the defendant for the action of such member of the medical board pursuant to the rules and practice of the defendant. "Q. Suppose in the answers made by Mr. Russell to the defendant's medical examiner, as shown by the photographic copy which you have attached to your deposition, identified as Harrison's Exhibit A, the applicant had disclosed in substance and effect that within 5 years before the date of his application he had consulted or been treated by a physician; what would have been the duty of said K. A. Galin such case? A. It would have been his duty lagher under the defendant's rules and practice not to approve or accept the application, but to refer it to me or some other member of the "It is well settled that mere temporary ail- defendant's medical board for our action, unments or affections, not of a serious or dan-der the defendant's rules and practice applying gerous character, which pass away, and are to such cases. likely to be forgotten, because they leave no trace in the constitution, are not to be regarded as diseases, within the meaning of a life insurance policy." [2] The most serious question involved in this case is the effect of the answer to the question whether the insured had consulted or been treated by a physician within 5 years. According to the undisputed testimony the answer to this question is not true. The gist of the defense relied on is that the company was misled by this and the other answers mentioned, and so was induced to make a contract of insurance that it would not have made but for such untrue answers. We think the record fails to sustain this contention. In support of its defense appellant introduced the deposition of Dr. Calvin L. Har "Q. What was the rule and practice of the defendant where the answers to the medical examiner made such disclosure? A. The rules and practice were not to accept the application, but to suspend action thereon until the defendant could fully investigate and find out all about the consultation or treatment referred to in the answers to the medical examiner, this investigation to involve, among other things, an inquiry of the physician or physicians who consulted or treated him, and if it was deemed necessary, another medical examination and the like, and after finding out the facts then to take such action as the facts so disclosed, together with those contained in the application and medical examiner's report would warrant. "Q. Suppose such investigation had disclosed that the applicant at or within some months before the time of making the application was suffering from symptoms of stomach and intestinal trouble, what under the defendant's rules 276 209 PACIFIC REPORTER and practice would have been the duty of the member of the medical board before whom such disclosure came in acting upon the application? A. It would have been the duty either to decline the application or to investigate further as to the cause of the trouble with special reference to malignant disease or ulcer of stomach or intestines. "Q. What would be the rule and practice of life insurance companies generally where an applicant for insurance made such disclosure? A. The same as I have stated in answer to the previous question. "Q. Suppose that the investigation suggested by the original of Harrison's Exhibit A had disclosed that on or about the 22d day of June, 1916, the applicant had quit work on account of illness; what would have been the duty of the employee of the defendant passing upon an application making such disclosure under the rules and practice of the defendant? A. To require our examiner to investigate the nature of the illness and to take measures to obtain, if possible, through the applicant a statement from his physician regarding the nature of the illness or else to decline the application." [3] It will be observed that Dr. Harrison nowhere states that an affirmative answer to any one or all of these questions would have caused the rejection of the application He goes no further than to of the insured. say that if the examination showed that the applicant was suffering from symptoms of stomach and intestinal trouble the company would either have declined the application or made further investigation, with special reference to malignant disease or ulcer of stomach or intestines, and that if the applicant had disclosed that within 5 years before his application was made he had consulted or been treated by a physician, it would have been the duty of Mr. Gallagher not to accept the application, but to refer it to some member of the medical board. He also said that in such case action on the application would be suspended until an investigation, including an inquiry of the physician who had treated the applicant or with whom the applicant had consulted, could be carried on, and that after finding out the facts appropriate action would be taken., Even if we had not this testimony, common sense and reason tell us that from the nature of these questions an affirmative answer would not have closed the case against the applicant, but that the company would have investigated before finally denying the applicant the protection he was seeking. Let us suppose that true answers had been That this questioned. We have Dr. Braddock's testi- "A fact is material to an insurance risk when Question No. 9 clearly is a preliminary question, the answer to which in no event could afford ground for final action upon the application. If it were answered truly, there is a possibility of its developing matter that would be very material to the risk, but, as has been pointed out already, if the answer had been true in this case, nothing would have developed that would have been material to the risk according to the test above stated. There are many cases reported in which a false answer as to treatment by and consultation of a physician are shown to be material, but they are cases in which the inquiry that would have resulted from a true answer would have disclosed facts that would have led certainly to a rejection of the application. In such cases a false answer would undoubtedly mislead the insurer to its injury, and would therefore be material to the risk. The judgment in this case is affirmed, with costs to respondent. MCCARTHY and LEE, JJ., concur. (209 P.) O. A. OLIN CO. v. LAMBACH. (No. 3525.) 2. Sales 24-"Option" contract defined. An "option" contract is one whereby the prospective purchaser obtains, for a consideration, the right of election to purchase the property for a given time. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Option.] 3. Sales 199-Title to identified article sold passes when contract made, and nothing remains but delivery and payment. Title to an article sold passes when the contract is made, if the article is identified and nothing remains to be done other than the delivery of the goods and the payment of the price. 4. Sales 22(3)-Accepted offer to sell definite quantity at stated price makes valid contract. Where a written agreement contains an offer on the part of the seller to sell a definite quantity of a certain article for a definite price and the word "accepted" signed by the buyer, this constitutes a definite offer and a definite acceptance resulting in a valid contract of sale. 5. Sales 384(2)-Measure of damages for refusal to perform sales contract stated. The correct measure of damages for refusal of a purchaser to accept and pay for goods under a contract of sale is the difference between the market value and the contract price, except where the article is specially ordered and prepared, is not readily salable on the market, and where a market price cannot readily be fixed. 6. Damages 12-Nominal damages recoverable for breach of contract where no proof of actual damage. Nominal damages are recoverable for a breach of contract where there is no proof of actual damage. 7. Contracts 337 (3)-Complaint setting out breach of valid contract states cause of action for nominal damages even though no allegation of compensatory damages. A complaint setting out a breach of a valid contract is a statement of a cause of action for nominal damages, even though there is no allegation of compensatory damages. Appeal from District Court, Shoshone County; Wm. W. Woods, Judge. Action by the O. A. Olin Company against H. C. Lambach. From a judgment of dismissal, plaintiff appeals. Reversed. Walter H. Hanson and Jas. A. Wayne, both of Wallace, for appellant. C. W. Beale, of Wallace, for respondent. MCCARTHY, J. The amended complaint alleges that appellant sold respondent, and respondent purchased from appellant, 96,667 shares of the capital stock of the Old Hickory Mining Company, an Idaho corporation, in accordance with a written contract as follows, to wit: "Copy of Note Agreement to H. C. Lambach, March 6th, 1919. "We have this date sold to Mr. H. C. Lambach 96,667 shares of Old Hickory Mining Co. stock, under the following terms and conditions: "That the price of the aforesaid stock shall be ten cents per share, and shall be paid for as follows: Twenty-five per cent. of the purchase price on or before April 6th, 1919, twenty-five per cent. on or before May 6th, 1919, and the balance, fifty per cent., on or before June 6th, 1919. "It is understood and agreed the stock sold herewith is pooled stock and that deliveries will be made in the form of pool certificates in the respective amounts desired as paid for not to exceed the total amount of stock above mentioned. The O. A. Olin Company, "By H. H. Rosse, Secretary. "Accepted this 6th day of March, 1919. "H. C. Lambach." It further alleges that appellant tendered the stock and demanded payments as provided in the contract, and that respondent refused to make the payments or accept the stock. Appellant tenders to respondent a certificate or certificates in such amounts as the latter may desire, and demands judgment for $9,666.70, being the contract price, with interest. A general demurrer having been sustained, and appellant refusing to plead further, judgment was entered dismissing the action. From it this appeal is taken. The principal assignments of error are that the court erred in sustaining the demurrer and dismissing the action. Respondent contends that the writing sued on is not a valid contract, for lack of mutuality. He cites many authorities holding that where the seller agrees to sell a definite quantity of a certain article at a fixed price, and the buyer does not agree to purchase any definite quantity, but only so much as he may desire from time to time, there is no contract, because of lack of mutuality in the promises. This is in accord with an elementary principle of the law of contracts. Is it applicable to the written agreement in question? [2] Respondent contends that the writing is a mere option. In an "option" contract the prospective purchaser obtains, for a consideration, the right of election to purchase the property, for a given time. James on Option Contracts, § 105. This writing is not For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests ar Indexes an option contract. The only consideration of the proposed contract. At the bottom of the contract are the following words: "Accepted this 6th day of March, 1919," signed by respondent. This constitutes a definite acceptance of the definite offer of appellant to sell 96,667 shares on the terms mentioned. There is mutuality in the promises, and the offer and acceptance constitute a valid contract of sale. [1, 3] Appellant contends that the writing constitutes a completed sale. The Uniform Sales Act (Sess. Laws 1919, chap. 149), not having been adopted in Idaho until after the [5] In the amended complaint appellant contract was executed, does not apply in this does not allege the market value of the stock case. The rule adopted by the majority of at the time respondent refused to accept demodern authorities, and supported by reason, livery and make payment. It prays to reis identical with that embodied in the Sales cover the purchase price. In England and Act, viz., that the title to an article sold is in many of the United States the courts represumed to pass when the contract is made, fuse to permit recovery of the purchase price if the article is identified, and nothing re- unless the title has passed, holding that the mains to be done other than the delivery of measure of damages for the breach of a the goods and the payment of the price. Bill contract of sale by the purchaser, in refusv. Fuller, 146 Cal. 50, 79 Pac. 592; Crug v. ing to accept the property and pay the conGorham, 74 Conn. 541, 51 Atl. 519; Warner tract price, is the difference between the conv. Warner, 30 Ind. App. 578, 66 N. E. 760; tract price and the market value. In other Wing v. Clark, 24 Me. 366; Parsons v. Dick-states, the courts permit the seller to recover inson, 11 Pick. (Mass.) 352; Julius Kessler & Co. v. Veio, 142 Mich. 471, 106 N. W. 73; Smith Bros. v. Wheeler, 7 Or. 49, 33 Am. Rep. 698; Ballentine v. Robinson, 46 Pa. 177; Williston on Sales, § 264, p. 359, and other cases there cited. In this case something remained to be done other than the delivery of the goods and the payment of the price, viz., the designation by the purchaser of the amounts or denominations of the pool certifi-market price cannot readily be fixed. Id., § cates. Therefore title or property did not pass at the time of the agreement and it did not constitute an executed sale. The use of the word "sold" is not conclusive. It is frequently used in agreements which are executory contracts rather than completed sales. Frazier v. Simmons, 139 Mass. 531, 2 N. E. 112; Mebius & Drescher Co. v. Mills, 150 Cal. 229, 88 Pac. 917. the contract price even though title has not passed, where the purchaser violates his contract by refusing to accept the article and pay for it. 3 Williston on Contracts, §§ 1364. 1365. Some states adopt the second rule above mentioned in a restricted form, limiting it to cases where the goods contracted for are of a particular kind, not readily salable on the market, and for which therefore a 1367. See, also, note in 51. L. R. A. (N. S.) pp. 735 to 760. This principle is adopted in the Uniform Sales Act, § 63. Many of the decisions holding to the first rule do so upon the ground that in no case can the seller recover the purchase price where the contract remains executory, but only where it is executed. We think this distinction is arbitrary and unjust. Any rule of damages The question remains: Does the agree-adopted should permit the recovery of such ment constitute a contract of sale? The first part is an offer on appellant's part to sell respondent 96,667 shares of the stock, for 10 cents per share, payable 25 per cent. on or before April 6, 1919, 25 per cent. on or before May 6, 1919, and the balance on or before June 1, 1919. Then follows this paragraph: "It is understood and agreed the stock sold herewith is pooled stock and that deliveries will be made in the form of pool certificates in the respective amounts desired as paid for not to exceed the total amount of stock above mentioned." damages as may be just. The established rule in actions for breach of contract is that only such damages will be allowed as fairly compensate the injured party for his loss. Applying this rule, we conclude that the just measure of damages for refusal of the purchaser to accept and pay for goods under a contract of sale is the difference between the market value and the contract price, except where the article is specially ordered and prepared, is not readily salable on the market, and where a market price cannot readily be fixed. Shares of mining stock, the subject-matter of the contract in this case, fall within the general rule rather than within the exception. [6, 7] The amended complaint does not state the market value of the stock at the [4] Respondent contends that this paragraph means that he shall take only such amount of the 96,667 shares as he desires. The language is not reasonably subject to this construction. It clearly means that re-time of the breach of contract. This is not spondent shall designate the denominations fatal to the complaint as a statement of a of the pool certificates which represent the cause of action for breach of contract. Nomstock. It does not qualify or modify the defi- inal damages are recoverable for a breach of nite quantity of 96.667 shares which is desig- contract where there is no proof of actual nated at the beginning as the subject-matter damage. Coffin v. State, 144 Ind. 578, 43 N. (209 P.) 3. Assault and battery 24 (2)-Plea of selfdefense not subject to general demurrer for insufficiency. In an action for assault and battery, a plea, alleging that defendant's acts and conduct were fully justified by the attending circumstances, that defendant was set upon and beaten and assaulted by plaintiff, and his life threatened by plaintiff, who called to her assistance her husband and several of her children and other members of her family, and that defendants, and each of them, in their conduct, were acting solely and purely in self-defense, was good as against general demurrer for insufficiency. E. 654, 55 Am. St. Rep. 188; Baldwin v. | offered to sustain it, the rulings of the court Munn, 2 Wend. (N. Y.) 399, 20 Am. Dec. on evidence and its instructions respecting such 627; Roberts v. Minn. Threshing Mach. Co., defense must be sustained if the plea itself is 8 S. D. 579, 67 N. W. 607, 59 Am. St. Rep. good. 777; 1 Sutherland on Damages (4th Ed.) § 10. Where no evidence is offered as to the difference between the contract price and the market value, the seller is entitled to nominal damages. Tufts v. Bennett, 163 Mass. 398, 40 N. E. 172; Backes v. Schlick, 82 Neb. 289, 117 N. W. 707. If the seller is entitled to recover nominal damages where he fails to prove compensatory damages, by the same reasoning a complaint setting out a breach of a valid contract is a statement of a cause of action for nominal damages, even though there is no allegation of compensatory damages. It has been held that an appellate court will not reverse a judgment of the trial court for mere failure to allow nominal damages where the issue is merely one of damages, but only where the bringing of the action was necessary in order to protect some continuing right of the plaintiff, which would otherwise be jeopardized. Roberts v. Minn. Threshing Mach. Co., supra, and other cases there cited. This rule is not applicable to a case like the present where the case has not been tried and the pleadings are being settled. In view of this opinion, it may be that plaintiff will change its theory and desire to amend its complaint. We conclude that the complaint states a valid cause of action for breach of contract which, if established, would entitle the appellant to at least nominal damages, and that the court erred in sustaining the demurrer. Department 3. Error to District Court, Adams County; Samuel W. Johnson, Judge. Action by Maria Pedotto against August Yantorno and others. Judgment for defendants, and plaintiff brings error. Affirmed. Charles E. Friend, of Denver, for plaintiff in error. Harry S. Class, of Denver, for defendants in error. CAMPBELL, J. This is an action for damages for assault and battery of the plaintiff by the defendants. Mrs. Pedotto, the plaintiff, is the mother of the defendant Yantorno's wife. For some The judgment is reversed, with costs to ap- The plaintiff opposed the marriage of her time the family relations were strained. pellant. RICE, C. J., and DUNN, J., concur. PEDOTTO v. YANTORNO et al. (No. 10177.) (Supreme Court of Colorado. Sept. 11, 1922.) 1. Assault and battery 24 (2)—Plea of selfdefense not defective for failure to admit assault where it is not denied. A plea of self-defense in an action for assault and battery is not defective for failure to admit the assault and battery set up in the complaint, as the Code rule applies, and, the assault and battery not being denied, is admitted. 2. Pleading 409(4)—When plea not objected to until trial, rulings on evidence and inructions sustained if the plea is good, though subject to special demurrer. Though a plea of self-defense in an action for assault and battery might have been subject to attack by motion or special demurrer, where no objection was made until evidence was daughter to Yantorno. Some of plaintiff's younger children had trifling difficulties with the children of defendant Center. As sometimes happens in such family controversies, bad feeling was engendered. On the morning of the alleged assault the defendants had set out from their homes on a rabbit hunt, and on the way they stopped at the home of plaintiff, and defendant Yantorno, the son-in-law, went into plaintiff's house and asked her to have her children cease their objectionable conduct towards the children of the defendant Center. These are about all the undisputed facts. From this point on the evidence is in hopeless conflict, and it would serve no useful purpose to summarize or comment upon it. If the trial court committed no error in rulings upon the testimony and in its instructions, its judgment should be affirmed. Both plaintiff and defendant Yantorno snffered injuries by the assault committed by each upon the other. The answer contained two defenses: First, a general denial, and the second what purports to be a plea of self-defense, or sor assault demesne. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |