The Saint Paul globe., 1905-02-25
Sustains Lower Court

insurance covered by the premium de-
fauted.
Judgment reversed. Lewis, ].
Sustains Lower Court
This case originated in the st. Louis
county courts, as did another insur-
| ance case upon which an opinion was
rendered yesterday, written by Judge
Jaggard. This other case was that of
| Ida Rupert VS.. Supreme Court of the
| United Order of Foresters, who recov-
cred in the st. Louis county courts on
an insurance policy made in her favor,
| the payment of which was contested
upon the grounds that truthful an
swers had not been returned to the
questions propounded when the policy
| was issued. The supreme court sus-
tanned the decision of the lower court
and the syllabus follows:
Ida Rupert, respondent, VS.. Supreme
Court Of the United Order of FoTesters,
appellant
Where the answers 10 questions in an
application for insurance and in state
ments of medical history are warranties,
there can be no recovery on the policy
II these answers are made by the insurer
to afflrmatiVely appear to be false
Parties to an insurance contract may
by apt words make fact material which
would otherwise be iminaterial, or make
immaterial fact which would otherwise
be material.
Complicated and ambiguous conditions
and qualifications OF such contract may
involve the construction of the terms
actually employed, so as TO effectuate
their purpose to protect both the insurer
and the insured from fraud.
The words used therein having a mar
rover meaning appropriate to The pur-
pose, VIII not be given their broadest i'm
port having no reasonable reference TO
good faith or hazard and leading to folly
and demanding an impoSsibiity.
When the questions propounded to an
applicant are In such terms as TO include
trivial ailments and injuries unconnected
with any specific disease, they should be
interpreted as referring only to such all
ments and injuries as affect the risk to
be assumed unless by express terms they
preclude such Interpretation
Answers which are purely expressions
of opinion are warranties of the bona fide
belief and judgment of the applicant;
questions concerning the physical condi-
tions of the applicant or anything that
tends to shorten his life do not inVaria-
bly, require absolute truth in answering.
An answer to question concerning pre-
Vious consultations of physicians. which
admits one examination and omits others
clearly proved, but does not purport to be
a full and complete reply to all ques-
uonS In that connection and is accepted in
its obviously incomplete form, is not af-
firmatively shown to have been false so
as TO prevent recovery on the policy.
Judgment affirmed. -Jaggard, J.
Following are the syllabi in other
cases decided:
fTeueTlck L. OllD6fI ana EDWARD L. BuX-
ton, respondents, VS.. Daniel d. Nc
Donald and Marcus F. Bates, copartners
as Mcdonald & Bates, appellants.
l. The assignee of soldiers addi-
tional homestead certificate, upon filing
an application for specific tract of land
at the proper government land office, ac-
quires an equitable title therein, which
ripens into a legal title, relating back to
the date of application, upon issuance of
the government patent.
2. Such equitable interest may be con-
-xxPl@J <l4s..
patent issues the legal title will inure to
the benefit of the grantee.
3. After patent issues such grantee
may maintain an action for damages for
the date of application and before con-
firmation thereof:
Order affirmed. Lewis, ].
Herman J. Fritz. appellant. VS.. Herman
Fritz ct al, defendants; Fred Hodgdon
ct al, respondents.
Before court of equity will interfere
TO reform written instrument. il must
appear, substantially as alleged in the
pleading, that there was in fact a valid
agreement sufficiently expressing in terms
The real intention of the parties; that
there was in fact a written contract which
failed to express such true intention; and
that this failure was due to mutual mis-
take or to mistake of one side and fraud
or inequitable conduct of the other
These facts must be established by COM
petent evidence. which is consistent and
ilOl cIear and not eQu1NOcal.
convincing and not doubtful Mere pre-
ponderance of testimony is not sufficient
such relief will be extended to those
only who have not by their conduct Gas
laches negligence or otherwise) put
themselves in such a position as to rem
der 1t unjust 10 change the situation. es-
pecially when such change might inju-
riously affect the rights or status of in
nocent third parties.
In this case, a court of equity will not
reform contract and deeds running to a
complainant (unable to read or write the
English language) and also to another
person. so as TO make the former sole
grantee as TO a part of the land de-
scribed therein. because the pleadings and
evidence show failure to comply with any
lief
Order affirmed. --Jaggard, ].
First National Bank of st. Cloud. re-
spondent, VS. George Lang and c. E
Clark, defendants; George Lang. appel
When a complaint alleges the execution
of promissory note by defendant and the
answer contains general denial and new
matter not constituting defense in law,
that answer should be stricken out on
motion as sham and frivolous if II be
made to clearly and indubitably appear as
by defendants own admitted letters, that
he did execute and promise to paw the
note.
That a note was made solely for the ac-
commodation of a third person for no
valld consideration passing to the maker
thereof, with notice of these facts at the
time of delivery who has, in the regular
course of business and for value taken
1t before its maturity
A benefit according to the person ac-
commodated is a sufficient consideration
10 sustain the liability of the accommoda-
tfon maker or indorser.
Purely discretionary orders are re-
No nf