The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1913-01-20

State OF North Dakota, in supreme
court Oct, 1912, term.
j. Fl. Mulroy, respondent, vs.. George
j. Jacobson, appellant.
/. An oral contract was entered
into between these parties in April.
1909, whereby defendant promised and
agreed to procure for plaintiff a policy
of life insurance in the Mutual Life In
surance Co. OF New York. in exchange
for the notes described in the COM
plant, which notes were owned by
plaintiff and executed n delivered to
him by the respective makers thereof.
ton addressed to the insurance com
|pany was prepared by defendant, who
was the local agent of such company
and plaintiff signed the same. There
after it was transmitted to such com
pany and accepted by 1t. and a life pol
icy in the sum of $4,000, being the
kind and amount of policy mentioned
in the application, was signed and for
warded to the defendant. After enter
ing into the contract plaintiff moved to
New Mexico, leaving the notes and
mortgages securing the same in the
bank at WaIum for safe keeping, of
which bank defendant was cashier.
Upon receiving. notice of h issuance
of the policy defendant transmitted to
plaintiff by mail the notes for endorse
ment, and also assignments of the
MORTGAGES for execution with a letter
requesting plaintiff to indorse such
notes and execute the assignments and
return same Immediately, which re-
quest was complied with by plaintiff.
Upon receipt OF the notes n assign
ments defendant forwarded the policy
aforesaid to plaintiff. who efused to
accept same and Immediately returned
"a -t..s L.. 49, Flp So In1nnp
that 1t was not the policy agreed upon,
his contention being that he was to re-
ceive a one premium, or fully paid up,
policy for such an amount as the
agreed value OF the notes would pur-
chase. Defendants contention on the
contrary, was and Is that an $4,000
straight life policy was agreed upon
and that the first premium thereon
was to be paid by defendant, in on
sideration for which the notes and
mortgages in question were to be en-
dorsed and assigned to him. After
some correspondence in which the de-
PENDANT refused to recognize the cor
rectness of plaintiffs contention as to
the contract. the latter notified the
former in effect that he rescinded the
contract and demanded the notes back.
This was refused, whereupon this ac-
ton was commenced for the alleged
conversion OF such notes and mort
cages.
Held, that If plaintiffs version Of the
transaction is correct he had a right,
at his election, TO rescind the contract
and recover the notes or their value,
and conversion will lie upon proving
such resission and demand and refusal
by defendant to comply Herewith.
Q. Under the complaint which con-
tains the usual allegations in . con-
version action,
Held, that proof Of any facts tend
ing to show a conversion of the notes.
and mortgages was admissible.
8. Plaintiff contends that h writ
ten application for insurance which he
signed was in blank as to the amount
Of the policy applied for and that such
blank was later filled by defendant by
the insertion of the figures $4,000,
without his knowledge or consent.
Held, that such application does not
constitute the contract between these
parties, but that such contract rests in
parol: hence the rules that paroI evil
dence is inadmissfble to contradict or
vary the terms Of Ia written contract
and that all prior or contemporaneous
oral negotiations are merged In such
written contract, have nc application,
and that ii was not error to admit
parol evidence to show what the terms
of the contract In fact were.
opinion, that the proof ais to the value
of the notes at the date OF the alleged
conversion was sufficient.
5. The crucial fact In controversy
being whether the contract called for
an $85, 600 straight life policy, as con-
tended by defendant, or a Yie~prernium
policy as plaintiff contends.