Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1890-05-16
SUPREME COURT DECISIONS,
The Opinions in Ten Cases Handed Down During
the May Term by the Su-
preme Court.
Three by Judge Wallin, One by Judge Bartholo-
new and Six by Chief JUS
tice Corliss.
The Validity Of Section 80 of the Revenue Law
Sustained and the Lower
Court Reversed.

E. Conrad Moe. plaintiff and Appellant, vs.. z, B.
Job, defendant and respondent. Appeal from
district curt of Cass county.
Instruction Of court that there was no
evidence contradicting testimony of de-
PENDANT as to a certain fact: Held proper.
Defendant having been sued for damages
caused by fire alleged to have been set out
by his servants or agents: Held proper to
not to set any fires.
Opinion by Corliss, CD.
Wallin, j., having been of counsel, did
ting by request.
W.. E. johnson. Plaintiff and Respondent. VS.. Da
kote Fire and Marine Insurance Company, De.
PENDENT and Appellant. Appeal from District
Court of Grand Forks County
A stipulation in an insurance policy is
sued in Dakota Territory upon property
therein, which limits the time within which
an action may be brought upon the policy
to the period OF six months from the date
of loss, IS void. Such stipulation would be
upheld at common law, but is void under
Where a written application signed by
the insured declared that 1.-THE statements
made Ey me and answers to questions
above given are true and a warranty on my
part, and are the basis upon which [ ask
hail insurance by the Dakota Fire and Ma
rine insurance company on the crops
herein described" and where the policy re.
fers to such language as follows: AS
sured's application of even number and
date herewith on file III the Office OF the
company in Chamberlain, Dakota, is here
by referred to as a part hereof, and is a war
ranty on the part of the assured and the
basis on which this insurance is written"
and where the policy further declares:
"rhat any Misrepresentation or false state
ment or cOncealment of facts in the appli-
calion, or If the property is or becomes in
combered, shall operate to render the pol
Held: That such statements if not in.
trinsically material have been made so by
the express agreement of the parties, and
such agreement must prevail under COM
piled laws, section 4163, which provides:
"a policy may declare that a violation of
specified provisions thereof, shall avoid it,;
otherwise the breach of an immateriai
provision does not avoid the policy
Where the agent who solicits insurance,
either by his direction or act, makes out an
application for insurance incorrectly, not
Withstanding all the facts are stated to
him truthfully by the applicant, the error
or fraud will not defeat the policy, and is
sured. Held, further: That parol evi.
dence is admissible to show that the ap-
plication was filed up by the agent, and
that the answers OF the applicant were
falsified by the agent, without the appli-
cants knowledge.
of the application endorsed thereon, was
sent by the company to the insured and
was in the possession of the latter for
several months before the loss occurred.
! Held: That the insured was .chargeable
in law with knowledge of the contents of
both the policy and the application; and
the circumstance that the assured did not
actually read or know the contents of the
application or know that a copy of the ap-
plicatiOn was endorsed on the, policy would
make no difference. The paper being his
W contract and in his actual custody he
will be presumed to know all of its con-
tents, even where the o on the back
was not referred to in the body as being
endorsed on the back.
Under such circumstances, where q fraud
Is practiced bY the agent upOn both the in
sured and the insurer and where such
fraud would be readily detected by the in
sured upon reading the copy of the appli-
will be %estopped from denying knowledge
of the fraud. 1t was the duty of the in
sured upon receiving the policy to proceed
at once to have the same corrected or re-
scinded. He did not do so.
Held: That by such silence, when he
oLOulO ldSc SpOhCu, Cuc luSuItu COuSCTuC-
lively became a participant in the original
fraud of the agent and thereby forfeited
his rights under the policy. Such policy
was defeated in its very inception and it
never attached to the risk which it covered.
See compiled laws, section 4164.
At the time OF the service OF defendants
answer to the plaintiffs complaint in this
action the defendant had full knowledge
Of all the facts constituting the grounds Of
forfeiture OF said policy, by the plaintiff;
and with such knowledge, and by way of
counterclaim in its answer, defendant
ISshS Il the am aeeGxer of the flem premi ths
note given by said plaintiff as a con-
sideration for the issuance of said policy.
Held: That pleading such counterclaim
operated as a waiver of the forfeiture of
the policy: The policy was not void, but
was vOidable at the option of the insurer.
After knowledge of the forfeiture defen-
premium. This vas equivalent to an indie
pendent action for the premium and
waived the forfeiture. If the answer had
not, among other %defenses, pleaded a for
fixture which went to the inception of the
policy and which would, if established, de-
feat the premium note, the case would
have been otherwise.
Where the plaintiff vas bound by the
terms of his policy, in the event, of q loss,
to furnish the insurer certain profits of loss,
but wholly failed to furnish the prescribed
proofs, or any proofs of loss, either within
the time limited by the policy, or within a
reasonable time thereafter, or at all.
Held: That by reason of such default
and omission the plaintiff forfeited his
right to recover under the policy.
Evidence to establish a waiver of such
forfeiture examined, and held sufficient to
constitute a waiver.
Opinion by Wallin, j.
Corliss, G. j., having been of counsel,
did not sit; Judge Rose of the Fifth dis
trict sitting by request. The opinion in
this case covers "a pages of typewriter.
Thomas ). Devore. Plaintiff and Respondent, vs..
Thomas 8. Woodruff, Defendant and Appel
liant. Appeal from the district court Of Cass
county. t"
A separate agreement was executed be-
tween grantor and grantee in a deed by
which latter agreed to recovery to former,
on payment of a specified sum.
Held: That such separate agreement
! did not show conclusiyely that such deed