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the purposes of the action, be taken as true; but | Smith Middlings Purifier Co. v. Rambaugh, the allegation of new matter in the reply shall 21 Mo. App. 390. Nor was it incumbent upon be deemed controverted by the adverse party, as plaintiff to prove value or consideration. upon a direct denial or avoidance."

Section 2160, R. S. 1919. The note, as alSection 1380, R. S. 1919, reads:

leged, was promissory and negotiable, and

was deemed prima facie to have been issued “An issue arises upon the pleadings when a for a valuable consideration, and every perfact or conclusion of law is maintained by the one party and controverted by the other. They become a party thereto for value. Section

son whose signature appears thereon to have are of two kinds: First, of law; and second, 911, R. S. 1919. Where the execution of the of fact."

note is not denied, and where the plaintiff Section 1381, R. S. Mo. 1919, reads:

is in possession of it, these facts carry with “An issue of law arises: First, upon a de- it the presumption that the note was delivermurrer to the petition, answer or reply, or to ed; that it was negotiable, and that its ex. some part thereof; or, second, upon an al-ecution and delivery imported that it was legation of fact in a pleading by the one party, given for a valuable consideration. Silverthe truth of which is not controverted by the thorne v. Lumber Co., 190 Mo. App. 716, 176 other.”

S. W. 441; Dawson v. Wombles, 123 Mo.

App. 340, 100 S. W. 547. Section 1382, R. S. Mo. 1919, reads:

There are numerous cases in this state "An issue of fact arises: First, upon a ma

which hold that, where an issue is raised as terial allegation in the petition controverted to the genuineness of the indorsement by a by the answer; or, second, upon new matter general denial thereof, it is necessary for in the answer controverted by the reply; or, plaintiff to prove the indorsement, among third, upon new matter in the reply, except an them, Bank v. Johnson (Mo. App.) 261 S. W. issue of law is joined thereon."

705. But in the cases in which the above

ruling is applied, a sufficient denial was filWhat is now section 1256, R. S. Mo. 1919, ed to raise the issue. The cases heretofore was interpreted in Bruner Granitoid Co. v. cited point out that defendants' answer was Cement Co., 169 Mo. App. loc. cit. 302, 152 not a sufficient pleading, and therefore could S. W. 603, as follows:

not raise the issues defendants urge. It “This being true, the averment in the peti- follows that, inasmuch as the material istion concerning the agreement under which the sues in the petition were not denied, they will switch was laid is admitted, for the statute pro- be taken as confessed. vides that every material allegation of the pe [11-13] II. Defendants further tition not controverted by the answer shall

, that the burden was on plaintiff to prove

contend for the purposes of the case, be taken as true. See section 1830, R. S. 1909. The averments value received. This is not the law, because of the petition touching this matter were ma

a promissory note imports a consideration. terial nd, as they were not denied, are to be Sections 811 and 2160, R. S. 1919; Silvertreated identically as though they were estab- thorne v. Lumber Co., supra; Dawson v. lished by the evidence. It was unnecessary to Wombles, supra. Defendants contend that introduce proof touching these matters which the petition alleged that the note was given were admitted on the record, and it would have for value received. To that we do not agree, been superfluous to do so. See Marshall v. Thames, etc., Ins. Co., 43 Mo. 586; State ex

for the petition does not plead such, but rel. v. Henderson, 86 Mo. App. 482, 488."

merely pleads that the note contained the

words "value received." We do not think [4-10] It is evident defendants treated the the petition is subject to the construction denial of indebtedness as a general denial. placed upon it by defendants, and we thereTheir denial, however, was not a general de- fore hold that the note, as pleaded in the penial, and cannot be held such. They seem-tition, prima facie imports a valuable coningly assume that the petition alleges an in- sideration, and that it was not incumbent debtedness, but it is evident that plaintiff re- upon plaintiff to prove same, Inasmuch as lied upon the defendants' contract and prom

defendants'

insufficient, ise to pay as provided in the note, and, as

think the case stood as though defendants we have before pointed out, the promise to filed no pleading at all, and that the posipay in the note and an indebtedness are not tion taken by defendants amounted to a conequivalent things. A denial of indebtedness fession of the material allegations of the peis not a denial of the execution of the note. tition. It follows that the court properly Even if defendants' answer could be con

sustained the motion for judgment on the strued as a general denial, it was not made pleadings. under oath as provided by statute, and, con

The Commissioner recommends that the sequently, does not act as a denial of the er- judgment be affirmed. ecution 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 be legally proven under a general denial. court.

answer

was

we

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(273 S.W.) The judgment of the circuit court is ac Leahy, Saunders & Walther, of St. Louis, cordingly affirmed.

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.

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 MANNION V. JOHN HANCOCK MUT. LIFE in the justice court, the cause was duly apINS. CO. OF BOSTON, MASS.

pealed to the circuit court of the city.of St. (No. 18895.)

Louis, where the jury returned a verdict in (St. Louis Court of Appeals. Missouri. favor of plaintiff for the amount of the policy June 2, 1925.)

in the sum of $250, together with interest for 1. Insurance am 668(1)-Plaintiff held to have $39.36, damage for vexatious delay for $25, made prima facie case.

and an attorney's fee for $250; the court In action on life insurance policy, plaintiff entering an aggregate judgment for $564.36, held to have made prima facie case for jury, by from which defendant appealed. evidence of issuance of policy, its introduction

Plaintiff's evidence tends to show: in evidence, payment of premiums, death of That defendant, on September 8, 1920, isinsured. signing of death certificate, and de- sued policy 12940661 on the life of Mathew fendant's refusal to pay.

Mannion, with Bridget Mannion, his wife, 2. Justices of the peace Om 174 (22)-Written named therein as beneficiary, for $250, the

answer not required on appeal from justice full policy amount. The policy provided as court.

follows: On appeal from justice court to circuit

“This policy shall not take effect unless upon court, written answer is not required.

its date the insured shall be alive and in good

health and the premium duly paid. * 3. Attorney and client 86—Plaintiff estop. This contract of insurance is based upon the

ped from denying facts stated by defendant's declarations in the application, of which the counsel in open court, where plaintiff stood following is a copy: (3) I am now in good mute.

health except as here stated. I have stated all In action on life insurance policy, where exceptions. (4) I have no bodily or mental defendant's counsel stated in open court “it is defect or infirmity except as here stated. I admitted by plaintiff

that defendant have stated all exceptions. (5) I have not had, made tender," and plaintiff stood mute, plaintiff within five years, any sickness, ailment, disis estopped to deny facts stated therein.

ease (bodily or mental), or any injury or surgi

cal operation, except as here stated. I have 4. Insurance Cm615-Tender held not a “de- stated all exceptions, and every case when I

posit in court,” which statute requires of in- have consulted or received treatment from a surer before defense of misrepresentations doctor at his office or elsewhere. (6) I have can be set up.

never received nor applied for treatment at or Mere tender made by insurer does not con- in any hospital, dispensary, sanitarium, cure, stitute a "deposit in court," within Rev. St. or other institution, except as here stated. I 1919, $ 6145, providing that, before insurer can have stated all exceptions, with times and places defend on ground of misrepresentations, it shall of such treatment or applications.'" deposit in court premiums received.

That Mathew Mannion died on May 21, [Ed. Note. For other definitions, see Words

1921. That defendant knew that insured and Phrases, Deposit in Court.]

died, because plaintiff went to its office on 5. Insurance Em 665(1)-Evidence held not to Grand avenue, from which place defendant warrant award for vexatious refusal to pay. collected the premiums. That she was given

Evidence held to show that insurer, before a paper, which she signed. That she went trial, acting as reasonable and prudent person, down one hot day, and at last a man came had reasonable cause and grounds to refuse to

out and had some money and a paper, and pay, and hence award of damages for vexatious he said: “Lady, your husband was sick berefusal to pay was not warranted.

fore we issued this policy.. Here is the Appeal from St. Louis Circuit Court; i money back you paid, and sign this paper.” Charles B. Davis, Judge.

She said: "No; I sign no paper.” That she

refused to take the money, and walked out of "Not to be officially published.”

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 issued. the circuit court in favor of plaintiff on ap On cross-examination she stated: That she peal from the justice court, defendant ap- went to the office of the company; was interpeals. Reversed and remanded for new rogated by some one who wrote down her trial, unless plaintiff enter remittitur.

answers, and she signed that. That she did

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

not have another paper executed by the at-, wrote down whatever answers plaintiff gave tending physician, and did not return one. him, having her sign her name, and witnessThat she never brought it back. That they ing her signature and taking her affidavit. did it. They simply asked what doctor waited | That with respect to the pink paper, which on insured. That she was asked if insured was the certificate of the attending physician was treated at Barnes Hospital, and replied: at death, witness told plaintiff that some “The first time to my knowledge I can't give proof of assured's death was necessary, and the day nor date, but I can strongly think it he gave her the paper with a notation to have would have been perhaps in June." That it sworn to, and several days later plaintiff she went to Barnes Hospital with him, and returned it to him. That the paper was not he was treated by Dr. Eyerman, but did not in plaintiff's handwriting. That the claimknow the cause of the treatment. That she ant's certificate, signed and sworn to by was asked if she was furnished a pink plaintiff, tends to show that assured died paper at the office of the company to have it May 21, 1921, 11:30 a. m., at St. Louis, Mo. executed, and if she did not have it executed That his occupation was clerk for St. Louis and furnished it to the company, and she Transfer Company. That he quit work in Ocanswered that "she never went to get this tober, 1920. That, in answer to the question, paper ; that they must have got it.” That “When did deceased first complain of ill she did not know where Dr. Eyerman lived. health, and what was the nature of the That plaintiff was asked if she remembered trouble complained of?” the answer was, this question and answer: "Has deceased “Stroke of paralysis ;" and to the question, ever been an inmate of any hospital or other | “What was the duration of illness?" the aninstitution, or received treatment from any swer was, “Sudden death." That in answer dispensary?” The answer to the question to the question, “Has deceased ever been an was: “Barnes Hospital, 1921, to April, 1921." inmate of any hospital or other institution, Plaintiff replied: "That is when he went to or received treatment from any dispensary?" come out.” That plaintiff, upon being asked the answer was: “Barnes Hospital, March, if she had not stated a while ago, on cross 1921, to April, 1921.” That the claimant's examination, that it was in 1920, replied: certificate shows it was dated and sworn to "Well, I stated in 1920, which I don't know— May 25, 1921. probably, yes, but afterwards they took him The certificate of attending physician at in there in March of '21. That he wasn't death, Dr. Eyerman, tends to show: That there but one time at the dispensary, that is the immediate cause of assured's death and all, and he never went back.” That a man the primary cause was angina pectoris. offered her money, which must have been an That the date of his first visit or prescripoffer of the return of the premium, telling tion in last illness was 5-14-20, and the date her they heard he was sick for many months; of last visit was 5–19-21. That, in answer plaintiff stating that she objected to that, to the question, "When, in your opinion, was and it wasn't so. That she was asked at that health first impaired ?"' the answer time if the reason the company refused to / “Patient states 3 months prior to first visit." make payment was because the insured suf- That, in answer to the question, "Was defered from angina pectoris prior to the is. ceased ever an inmate of, or received treatsuance of the policy, and that he died from ment in, any hospital dispensary or public that, plaintiff answering: “I never heard | institution ?” the answer was, “At Washingsuch a remark as that.” That there was not ton University Dispensary and Barnes Hosanything he was suffering with except a pital.” short time before his death.

The testimony of defendant's witness Dr. On redirect examination, plaintiff testified Eyerman tends to show: That he first saw that assured was working at the time the assured almost exclusively in Washington policy was issued, and he worked until about University Dispensary 5-14–20. That he was November 28th, and for 40 years before that, seen rather frequently in the dispensary, never losing any time in sickness.

and he had at least one, maybe more than Plaintiff's evidence further tended to show one, admittance to Barnes Hospital. That that a reasonable attorney's fee for the sery the note states here that he was discharged ices performed for plaintiff in this case was from Barnes Hospital 5–14-21. That accord$250.

ing to the figures assured was discharged Defendant's evidence tends to show that from the hospital seven days before his defendant's attorney stated as follows: “It death. That he was attended by the staff of is admitted by the plaintiff in this case that the hospital, and that personally the witin the justice court the defendant made a ness had no care of him. That he did not tender of $18.80."

treat him personally in Barnes Hospital. Defendant's evidence further tends to That cases in the wards of Barnes Hospital show: That witness Kissler was employed are taken care of by the staff or visiting man between December 19, 1920, and February who was on duty at that time. That he had 19, 1923, in defendant's office on Grand ave an abstract of his case in the dispensary

That he called off the questions and record. That he had nothing to do with his

was,

pue.

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(273 S.W.) actual care in the hospital, except to advise, the plaintiff in this case that in the justice and counsel with the visiting physician on court the defendant made a tender of $18.80." the ward.

The plaintiff stood mute, and is estopped to (1) I. We think the record demonstrates | deny the facts stated therein. that plaintiff made a prima facie case, for [4] III. Does the tender made as heretoher evidence tends to show the issuance of fore shown meet the situation presented by the policy, its introduction in evidence, the the statute? We think not, for a tender is payment of the premiums, the death of the not equivalent to a deposit in court which insured, the signing of the claimant's certifi- includes a tender and goes beyond. Mendell cate after death and the refusal to pay. v. Howard, 200 Mo. App. 427, 208 S. W. This evidence was sufficient, in view of these 497. The deposit in court broadens the facts, to make a prima facie case for the rights of plaintiff', for it provides in effect a jury.

trust fund in the hands of the custodian II. Error is assigned on the part of the for the benefit of plaintiff. It may be that trial court in refusing to direct a verdict a defendant, which we do not decide, after for defendant at the close of plaintiff's evi- making a deposit in court, and before the dence and at the close of the whole evidence, acceptance thereof by the plaintiff, may, upon these grounds: (A) The evidence showed on formal request to and with the consent of that, at the time assured made application the court legally and properly withdraw the for the insurance, he was suffering from an- deposit; but, if this course is pursued, both gina pectoris, the disease which later caused the court and plaintiff are informed of the his death, (B) The evidence in the case fact, the defense of misrepresentation falls, showed conclusively that the assured, at the and the case stands as though no deposit had time of the delivery of the policy, was not been made. A deposit constitutes a continin a state of insurability shown in the appli- uous offer, until withdrawn, if that may be cation. (C) Proofs of death are admissible done. A tender, on the other hand, does not in evidence against the beneficiary as admis- purport to be continuous. If, however, a tensions, and, when not contradicted or explain- der could be said to be a continuous offer uned, will be conclusive against the beneficiary. til withdrawn, it follows that neither the

[2] Inasmuch as the case originated in the court nor the plaintiff is informed with cerjustice court, a written answer was neither tainty that the tender is withdrawn as in necessary nor filed. However, defendant's the case of a deposit, since defendant may trial theory was misrepresentation, and the mentally determine not to hold the offer only instruction offered or given by the court open, and fail to communicate its intention. at defendant's instance proceeded on the the. We think an interpretation of the statute ory that assured was suffering from angina distinguishes a tender and a deposit in court. pectoris on September 8, 1920, the date of The statute is mandatory, and, before a dethe delivery of the policy, and that angina | fendant may make a defense of misrepresenpectoris later caused his death.

tation, it must deposit the premiums in court [3] Plaintiff contends that defendant can and hold them there. Lavin v. Ins. Co., 101 not avail itself of the defense of misrepre- Mo. App. 435, 74 S. W. 366; Thassler v. Life sentation, for, before the defense can be in-| Ass'n, 67 Mo. App. 505; Jenkins v. Ins. Co., terposed, defendant must, at or before the 79 Mo. App. 55; Herzberg v. Modern Brothtrial, deposit in court, for the benefit of erhood of America, 110 Mo. App. 328, 85 S. plaintiff the premiums received on such pol. W. 986; Welsh v. Ins. Co., 165 Mo. App. 233, icy. This contention is based on section 147 S. W. 147. 6145, R. S. of Missouri, 1919, reading:

{5} IV. Error is assigned because the trial "In suits brought upon life policies, hereto- court submitted to the jury the question of fore or hereafter issued, no defense based upon vexatious refusal to pay, defendant urging misrepresentation in obtaining or securing the that an adverse verdict does not import a same shall be valid, unless the defendant shall, vexatious refusal, and, as it has been terseat or before the trial, deposit in court for the ly stated, “the penalty should not be inflictbenefit of the plaintiffs, the premiums received ed unless the evidence and circumstances on such policies."

show that such refusal was willful and withPlaintiff contends that the provision of the sout reasonable cause as the facts ajipeared statute is a condition precedent to the de- to a reasonable and prudent man before the fense of misrepresentation, and that, as com

trial." We agree that the position taken pliance therewith does not appear by af- correctly states the rule of law. firmative proof, the defense is not available. Applying the above rule to the facts found On the other hand, defendant contends that in the record, we think there is no evidence the record affirmatively shows that the con of a vexatious refusal to pay. That defendditions of the statute have been complied ant inadvertently or through misapprehenwith, as shown by the statement of defend-sion failed to deposit the required sum of ant's counsel in support of the issues on its money in court does not alter the situation. behalf, as follows: “If your honor please, The question obtained, Did defendant, before and gentlemen of the jury, it is admitted by the trial, acting as a reasonable and pru

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cause

dent person, have reasonable

and , where minds of parties did not meet, and final grounds to refuse to pay?

terms were not agreed upon until a long-disThe evidence tends to show that insured tance telephone conversation and corresponddeclared without any exceptions, that he had

ence prior thereto, showed nothing more than stated every case when he consulted or re

negotiations and unaccepted offers or condi

tions of sale. ceived treatment from a doctor at his office or elsewhere, that he had never applied for 3. Sales Fim 271-What constitutes “sale by treatment at any hospital or dispensary, sample," from which a warranty arises, and that he was now in good health. De stated. fendant's evidence tended to show that in To constitute a “sale by sample," from sured consulted Dr. Eyerman on May 14, which a warranty arises, it must appear that 1920, four months before his declaration, in parties contracted with reference to the samWashington University Dispensary. Defend- ple, with understanding that sample representant received this information before the ed quality of the bulk, and that a sample was trial, and, as it was credible and could be by sample so as to imply a warranty,

furnished on a request fails to make it a sale relied on, we think reasonable cause to de

[Ed. Note.-For other definitions, see Words fend appeared, such as a reasonable and and Phrases, First and Second Series, Sale by prudent person would act upon.

Sample.] Therefore the Commissioner recommends that, if plaintiff will remit the amount of 4. Sales Ow445(1)-Whether sale of' secondsaid damages, to wit, $275, the judgment

hand bags was made by sample held for jury. will be reversed, and the cause remanded,

In action on contract for breach of warwith directions to enter a new judgment in ranty in sale of secondhand bags, whether sale

was made by sample held for jury. favor of plaintiff and against defendant for the sum of $289.36, with interest at the rate 5. Sales Cw445(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 In action on contract for breach of wara new trial.

ranty in sale of secondhand bags, whether war. ranty as to quality of ba was breached held

for jury. PER CURIAM. The foregoing opinion of DAVIS, C., is adopted as the opinion of the 6. Sales Cw288(2)—That plaintiff elected to court.

accept bags on defendant's refusal to accept Therefore, if plaintiff will remit the

rescission of contract of sale held not to amount of said damages, to wit, $275, the

preclude plaintiff from recovering damages

for breach of warranty. judgment will be reversed and the cause remanded, with directions to enter a new judg

In action on contract for breach of warment in favor of plaintiff and against de- ranty in sale of secondhand bags, that plainfendant for the sum of $289.36, with interest tiff, after notice of rejection, changed his mind

about rescinding contract, and elected to ac. at the rate of 6 per cent. per annum from the cept bags on defendant's refusal to accept re7th day of January, 1924, otherwise the scission, held not to preclude plaintiff from judgment will be reversed, and the cause recovering damages for breach of warranty. remanded for a new trial.

7. Damages On 9-Demurrer to evidence over.

ruled, where breach of contract entitling DAUES, P. J., and BECKER and NIP plaintiff to nominal damages is shown. PER, JJ., concur.

Where evidence tends to show a breach of contract, nominal damages are recoverable, necessitating overruling of a demurrer to the

evidence. LEVINE V. HOCHMAN. (No. 18778.)

8. Sales Omw 434-Petition in action on contract

for breach of warranty in sale of secondhand (St. Louis Court of Anneals. Missouri. bags held grounded on a breach of warranty. June 2, 1925.)

In action on contract for breach of war

ranty in sale of secondhand bags, petition held 1. Evidence Com 397(3) Formal instrument grounded on a breach of warranty as to quality not necessary to make agreement written,

of bags. As respects application of parol evidence rule, a formal instrument is not necessary to 9. Sales ww442(2)—Measure of damages for make an agreement written, and correspond breach of warranty in sale of secondhand bags ence may constitute such agreement.

stated. 2. Evidence ~400(3)—Agreement for sale of in sale of secondhand bags was difference be

Measure of damages for breach of warranty secondhand bags rested partly in writing and

tween value of bags actually furnished to buy. partly in parol.

er at place of delivery and value they would Agreement for sale of secondhand bags, have had at place of delivery if they had posrested partly in writing and partly in parol, sessed warranted qualities.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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