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least, as between these parties.-until the transaction has been completed. While the note and mortgage were signed, and the mortgage filed for record, they were not delivered in exchange for money; and until that time there was no liability against Parks and wife, nor any lien against their property. The note is said to be an evidence of debt, and the mortgage given in security an incident of the same; but there was no debt until the money was obtained, and no ,

Error from district court, Reno county; L. Houk, Judge.

Action by I. P. Weyerhaeuser and others, under the firm name of F. McCullam & Co., against Archie Fraim and others, to establish a mechanic's lien for labor and materials furnished. From a judgment against defendants for the amount of the claim, but denying the lien, plaintiffs bring error. Modified.

I. P. Weyerhaeuser and others, under the firm name of F. McCullam & Co., brought suit in

between mortsagers and the mortgagee, un- Archie Fraim, George A. Woodard et al., al

was

til it had been delivered as security for leging in their petition that the defendant Armoney actually loaned by the mortgagee. chie Fraim entered into a contract with deThe lapse of a few hours or a few days be- fendant George A. Woodard to furnish certain tween the execution of the note and mort- materials and perform certain labor in the gage is immaterial, providing that their exe- erection of a three-story building on certain cution was with reference to each other, lots in Hutchinson belonging to said Woodand as a part of a single negotiation or ard, and that the plaintiffs under a subcontransaction. If within a few minutes after tract with said Fraim furnished lumber and the note and mortgage were executed, but other materials for said building, and claimbefore the loan was completed, it had been ing a lien for the balance due. The Halstead ascertained that a word used in the note was Lumber Company, which was made a party incorrectly spelled, and the note was there- defendant, answered, also claiming a lien on fore torn up, and another substituted, which, the same property for building material furexcept for the correction, was identical in every 'nished by them for the same building under particular with the first, would it be contended a subcontract with said Fraim. The case was that because of the substitution another tried by the court, and the following special mortgage must be executed? It cannot be findings of fact were made: said that the lien was extinguished by the (1) That on the day of August, 1887, destruction of the first note, or revived by

the defendant George A. Woodard, who was the execution of the second. The mortgage,

then, and still is, the owner of lots Nos. 1, 3, as we have seen, did not amount to a lien and 5, on First avenue east in the city of until the loan was completed by the pay

Hutchinson, in the county of Reno, in the ment of the money and the delivery of both state of Kansas, entered into a written connote and mortgage. The mortgage

tract with the defendant Archie Fraim, given to secure a loan of $1,000. It was whereby it was agreed that said Fraim should the same loan which was in the minds of do all tlie carpenter work, and furnish all the all the parties throughout the negotiations.

lumber and materials for the same, for the The substitution of one note for another did

erection of a three-story brick building on the not change the character of the proposed above-described premises, and said Woodard loan, nor affect the relations of the parties.

was to pay said Fraim for said work and maIn the second note that was negotiated,

terials the sum of $8,211.30. (2) That on the there was an express declaration that it 10th day of September, 1887, the plaintiff was secured by the mortgage, duly recorded,

made a verbal contract to furnish the lumber so that there was no misapprehension. Nor

and materials required by said Fraim to comwas there any prejudice by reason of the

ply with his said contract with said Woodard delay of 20 days in completing the loan and

as aforesaid, and under said contract did furin closing the transaction. The judgment

nish the materials set forth in plaintiffs' petiof the district court will be affirmed. All tion, and said materials were incorporated in. the justices concurring.

to said building on said premises, and that there remains due and unpaid to plaintiffs a balance for said materials in the sum of $2.

174.89 debt, and interest $271.86,-in the total (51 Kan. 615)

sum of $2.446.75,-from the said Archie Fraim WEYERHAEUSER et al. v. FRAIM et al.

to plaintiffs herein. (3) That the said Archie (Supreme Court of Kansas. Feb. 9, 1895.) Fraim completed his said contract on the 20th MECHANIC'S Liex-FILING STATEMENT OF SUB- day of April, 1888. (4) That the last work CONTRACTOR.

was done on said building on the 25th day of A subcontractor, who furnished materi

June, 1888, which was a job of painting, and als under contract with an original contractor, that said building was not entirely completed who contracted with the owner of city lots for until said 25th day of June, 1888. (5) That the partial completion of a building thereon, had 60 days after the completion of the building in

on the 23d day of August, 1888, the plaintiffs which to file his statement for a lien under chap

filed their lien statement, duly verified, in the ter 141 of the Laws of 1872.

office of the clerk of the district court of said (Syllabus by the Court.)

county of Reno, and on said day delivered a copy thereof to the defendant George A. subcontractor's lien for materials furnished Woodard.

was filed with the clerk of the district court (2) That on the 8th day of February, 1888, within sixty days after the contractor had the defendant Halstead Lumber Co., a corpo- completed the building, but not within sixty ration, entered into a contract with said Ar- days after the subcontractor had fulfilled his chie Fraim, whereby it was contracted and contract with the contractor, held, that the agreed that said Halstead Lumber Co. should statement was filed in time." In the opinfurnish certain material to be used in the con- ion in that case it was said, after citing the struction of said building; that said materi- | provision of the statute: “Now, the stateals set forth in said defendants' cross petition | ment in the present case was certainly filed were used and incorporated into said build within sixty days after the completion ing; and that there is due and owing from of the building, and this, we think, was suffithe said Archie Fraim to said Halstead Lum- cient." The statute, by its terms, plainly ber Co. for said materials the sum of $169 gives 60 days after the completion of the debt, and $20.25 interest, making the total building in which to file the statement. No sum of $189.25.

reason is apparent for attempting by con(3) That on the 5th day of July, 1888, the struction to vary the literal terms of the defendant Halstead Lumber Co. filed its lien law. The case will be remanded, with distatement in due form, duly verified, in the rection to enter judgment sustaining the office of the district court of said county of liens of the plaintiffs in error on the prem. Reno, and on said day delivered a copy there- ises described in the findings for the amount of to the defendant George A. Woodard. of their respective judgments, and for a

As conclusions of law the court found that foreclosure and sale of said property in satthe plaintiffs were entitled to a judgment isfaction of the same. All the justices conagainst Fraim for $2,446.75 and costs, and curring. that the Halstead Lumber Company should recover judgment against Fraim for $189.25 and costs, but denied them a lien on the prop

(54 Kan. 663) erty.

NORTHWESTERN MUT. LIFE INS. CO. v.

WOODS. William Carey, for plaintiffs in error. F.

(Supreme Court of Kansas. Feb. 9, 1895.) L. Jartin, for defendants in error.

LIFE INSURANCE POLICY — STATEMENTS IN APPLI

CATION-WHEN COXSTRUED AS WARRANTIESALLEN, J. (after stating the facts). The

RELEASE AND DISCHARGE-FRAUD. sole question presented by the record iħ this 1. The statements contained in an applicase is whether the plaintiffs in error, who cation for a policy of life insurance will not be

construed as warranties, which, if untrue in any were subcontractors under Archie Fraim,

particular, would avoid the policy, unless the who had a contract to perform the carpenter

provisions of the application and policy, taken work and furnish lumber and materials for together, leave no room for any other constructhe erection of a three-story brick building

tion.

2. While in the application for the policy, on lots belonging to the defendant Woodard,

in this case, it is declared that all the statehaving furnished lumber and materials un- ments written on the application are warranted der such subcontract, were required, in or- to be true, inasmuch as the policy refers to the der to preserve a lien on the premises, to

auswers to the questions contained in the appli

cation as statements, and not as warranties, the file the statement required by law within

court will construe them merely as statements; 60 days after the completion of Fraim's con- and therefore holds that the insured was bound tract, or had 60 days after the completion of

only to the exercise of good faith, and to anthe building in which to file it. No brief

swer truthfully as to all matters within his

knowledge, and an omission to state a fact has been filed on behalf of the defendants

which he honestly deemed immaterial will not in error, but it is said in the brief of plain- vitiate the policy. tiffs in error that the trial court understood

3. The answer in this case sets up that th

insured, in answer to the questions, “How long the opinion in Crawford v. Blackman, 30

since you consulted any physician? For what Kan. 527, 1 Pac. 136, as holding that the disease? Give name and residence of such phystatement must be filed within 60 days after

sician,”-stated, "Three years ago. Typhoid That fever.

Good recovery. the completion of Fraim's contract.

Dr. Batinff, Ashta

bula, Ohio"; that in fact the insured was, at case merely holds that, where there was an

the time of making such application, diseased independent contract for the stonework of with catarrh and consumption, of which he afta building, the subcontractor, for the pur

erwards died, and did not allege that he was

or had been a flicted with any other disease. pose of filing his statement, might regard

Hdd that, under the pleadings, it was immaterithe building as completed when the portion al whether he had any other disease or not, esof the work contracted for was finished. pecially in view of the fact that all the testiThe question was not presented as to wheth

mony shows that he had fully recovered from

such previous complaints, if any. er he must do so. This case is controlled by 4. Where a widow in whose favor a policy the mechanic's lien law of 1872. In the case of life insurance was issued by the defendant of Cunningham v. Barr, 45 Kan. 158, 25 Pac. company was induced by the agent of the com583, it was held: "Where, under the me

pany, shortly after the death of her husband, to

accept a return of $71.17 in satisfaction of a chanic's lien law of 1872, a statement for a policy for $1,000, but promptly, and almost

means of false statements. The plaintiff brought into court, and tendered a return of, the check which had been given to her at the time of the alleged settlement. The jury rendered a general verdict in favor of the plaintiff for the amount of the policy.

J. B. Johnson and Keeler & Welch, for plaintiff in error. Houk & Whitelaw, for defendant in error.

In sup

immediately thereafter, disavowed such settlement, and offered to return the sum received, a court of equity ought to relieve her from the consequences of such settlement, if she has been unduly influenced or overreached. Proof of legal duress or actual fraud need not be required. The jury in this case having found in favor of the plaintiff, their action will not be disturbed.

(Syllabus by the Court.)

Error from district court, Pawnee county; S. W. Vandivert, Judge.

Action by Mary M. Woods against the Northwestern Mutual Life Insurance Company. From a judgment for plaintiff, de. fendant brings error. Affirmed.

This action was brought by Mary J. Woods on a policy of insurance issued by the defendant on the life of Charles H. Woods, her husband, who died at Hutchinson on March 15, 1888. The execution of the policy and the fact of the death of the assured were admitted, but the answer of the defendant alleges that the policy was based on an application made by the deceased, in which certain untruthful statements were made by him, as follows: “Ques. 19. How long since you consulted any physician? For what disease? Give name and residence of such physician. Ans. Three years ago. Typhoid fever. Good recovery. Dr. Batinff, Ashtabula, Ohio.” “Ques. 25. Is there anything, or has there ever been anything, in your physical condition, family, or personal bistory, or habits, tending to shorten your life, which is not distinctly set forth above? Ans. No." The policy contained the following provisions: “Third. If any statement made in the application for this policy shall be found incorrect, this policy shall be void: provided, tha if the age has been given correctly, and death shall occur later than three years from the date hereof, and if this policy shall not have been declared void by the company prior to such death, the liability of the company shall not, after such death, be disputed on account of such statement, except in case of fraud." The application and policy bear date August 17, 1886. The answer alleges that the said Charles H. Woods had on January 1, 1886, contracted a severe cold, which settled on his lungs; that he gradually grew worse from said date un. til his death, March 15, 1888, which resulted from consumption caused by said cold. It is also alleged that at the time of the execution of said policy said Charles H. Woods was sick with catarrh and consumption, and continued so until his death. As a further defense, the answer states that on the 15th day of May, 1888, the defendant settled said loss with the plaintiff, and paid her the sum of $71 7; that in consideration thereof she surrendered and canceled the policy. The plaintiff replied, alleging that the policy and the receipt indorsed thereon were obtained from her by the agent of the insurance company through fraud and imposition, and by

ALLEN, J. (after stating the facts). It is urged on behalf of the insurance company that the statements contained in the application are warranties, and that, in case such statements were not strictly and literally true, the policy may be avoided. port of this contention, the cases of Linz v. Insurance Co., 8 Mo. App. 363, and Association v. Parks (Me.) 16 Atl. 339, are cited. The first case named cites no authorities on this question, and gave it apparently but slight consideration, as the decision turned on a question of evidence. The other case, decided by the supreme court of Maine, was an action brought to annul a policy before the death of the assured. This case can hardly be said to support the contention of the plaintiff in error. On the other hand, we have the decision of the supreme court of the United States in the case of Moulor v. Insurance Co., 111 U. S. 335, 4 Sup. Ct. 406, which was an action on a policy of insurance which contained the following provision: “It is hereby declared and warranted that the above are fair and true answers to the foregoing questions, and it is acknowl. edged and agreed by the undersigned that this application shall form part of the contract of insurance, and that if there be in any of the answers herein made any untrue or evasive statements, or any misrepresentation concealment of facts, then any policy granted upon this application shall be null and void." In the application on which the policy was issued, the seventh question asked was whether the assured had ever been afflicted with any of the diseases therein named, among which were included scrofula, asthma, and consumption. There was evidence tending to show that at or prior to the date of the application the insured was afflicted with said diseases, or some of them. The court held that the statements in the application were not warranties, and that "it was an erroneous construction of the contract to hold, as the court below did, that the company was relieved from liability if it appeared that the insured was in fact afflicted with the diseases, or any of them, mentioned in the charge of the court. The jury should have been instructed, so far as the matters here under examination are concerned, that the plaintiff was not precluded from recovery on the policy unless it appeared from all the circumstances, including the nature of

or

the diseases with which the insured was al- | contracted a severe cold at a revival held at leged to have been afllicted, that he knew, Burton. The only testimony in the case or had reason to believe, at the time of his tending to show that he had any ailment beapplication, that he was or had been so af- tween the 1st of January and the 17th of flicted." It will be observed in this case August, 1886, is that of Dr. J. G. Malcom. that in the third condition of the policy, He testified that he had called on the decopied in the statement of the case, the an- ceased professionally several times during swers of the deceased in the application are that period; that on July 17th the deceased referred to as statements, and we think the

called on him for treatment for a catarrhal policy under consideration in this case no affection of the throat and nasal passages, stronger in its provisions than that under and that he treated him for the same on July consideration in the case last above cited.

20th, 220, 26th, August 12th, and 21st; that See, also, National Bank v. Insurance Co.,

he made an examination of his lung some 95 U. S. 673; Insurance Co. v. Rundell (Ind.

time in July, 1886; that he found no eviApp.) 34 N. E. 588. Mamie Woods, a daugh-dence of any physical change of the lungs, ter of the deceased, testified that she was

but could not say there was no such change; present when her father made the applica

that he did not think there was any relation tion on which the policy was based; that

between catarrh and consumption, nor that "the agent told papa any slight cold or lit- catarrh of the throat would produce contle pain, he did not expect him to tell of; he

sumption, unless a person has tubercles of did not expect him to recite every slight

the throat or larnyx. On cross-examination pain, and everything in that line."

the witness stated that his first treatment of Complaint is made of the instructions of

Mr. Woods for catarrh was on July 17, 1886, the court, because, in their general scope,

and that he recovered from the disease with they do not treat the statements in the ap

which he was afflicted, calling for visits from plication as warranties, but directed the jury,

January 25, 1886, to July 17, 1886. As the in substance, that the applicant was only

jury were told that if the deceased was beheld to good faith in his answers, and that the

ing treated for a disease of which he afterpolicy could only be avoided if he died from

wards died, and knowingly gave false ana continuance of the identical disease or dis

swers in his application concerning the same, eases for which he had been treated before

that they should find for the defendant, we his death. We need not trouble ourselves

think the defendant was give at the trial with the question which was before the su

the full benefit of the testimony of the doctor. preme court of Maine in the case of Association v. Park, supra, whether a misrepre

It appears from all the evidence that Mr.

Woods was never a robust man. sentation as to whether the assured was af

Conceding

that he was afflicted with catarrh at the time flicted with a disease named, when death resulted from another and different disease,

of his application, it does not necessarily fol

low, nor indeed would it generally be reis a material misrepresentation, which will

garded as probable, that an ordinary case of avoid the policy, because the pleadings in this case charge only that he had the dis

catarrh would develop into consumption. We ease of which he afterwards died, and no

think most people are inclined to regard ormention is made of any other or different

dinary colds and ordinary cases of catarrh disease. It is alleged in the answer that

as ailments furnishing no serious cause for he was afflicted with catarrh and consump

alarm, and that under the testimony in this tion, and it is claimed by counsel that the

case the jury was abundantly warranted in consumption of which he died was superin

finding that the statements of the deceased duced by the cold and catarrh contracted

were made in good faith; and especially so prior to the issuance of the policy. The

when he was told by the agent of the comproofs of death furnished in this case state

pany that he need not tell of any slight cold that the remote cause of death was contract

or pain. Insurance Co. v. Pearce, 39 Kan. ing a severe cold at a revival meeting about

396, 18 Pac. 291; Insurance Co. v. Barnes, 41 January 1, 1886, with gradual loss of flesh

Kan. 161, 21 Pac. 165; Protective Union y. and strength until he died. The proof signed

Gardner, 41 Kan. 397, 21 Pac. 233. by the plaintiff gives the duration of his Complaint is made of certain rulings of the last illness about two months, and that he court concerning the admission of testimony. gradually grew worse every day until he died. We have examined all of the matters referIf the statements contained in the proofs had

red to in the brief, and find no error in the been correct, of course, the insurance com- rulings of the court, nor anything worthy of pany would have had a good defense; but particular mention here. it was very clearly shown at the trial that With reference to the third defense, it apthe date given was a mistake, and that Jan- pears that on the 15th of May, 1888, E. W. uary 1, 1887, was intended instead of Janu- Poindexter, the company's agent for the state ary 1, 1886. There was abundant evidence of Kansas, called on the plaintiff with a letto show that Mr. Woods was in usual health, ter from the president of the insurance comand was very actively employed as a Bap- pany to him, which he read to the plaintiff. tist preacher, up till January, 1887, when he In this letter question 19 and the answer

seen

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thereto were quoted, and attention was called knew them. The facts in this case do not to the statements in the proof of death that show anything like duress, but legal duress is the disease was caused by consumption caus- not always necessary to entitle a party to reed by taking a cold at a revival meeting Jan- lief in equity. In Pomeroy's Equity Jurisuary 1, 1886. The letter further stated that prudence (section 930), it is said, “Courts of the case had been fully considered by the equity undoubtedly grant relief in many committee on insurance, who had decided classes of instances where there is no legal against the claim, and directed that the pre- duress, and where the wronged party would miums paid on the policy with interest, be perhaps be remediless at the common law, refunded, and directing the agent to make a but these cases properly belong to the head of tender of this sum. The plaintiff testified ‘undue influence.'In Story's Equity Juristhat she then told him that there must prudence (section 239), the author says: be a mistake with reference to the dates, “Cases of an analogous nature may easily be and she asked him to see Dr. Malcom; that put, where the party is subjected to undue inin the afternoon he returned, said he had fluence, although in other respects of compe

Dr. Malcom, and that Dr. Malcom tent understanding. * Circumstances thought there was no other way,—that she also of extreme necessity and distress of the had better accept the proposition; that party, although not accompanied by any diPoindexter also offered to make a liberal rect restraint of duress, may, in like manner, donation out of his own pocket; that he so entirely overcome his free agency as to jusseemed to want to help her, and gave her $73 tify the court in setting aside a contract made only, in a check, which was the amount of the by him, on account of some oppression or premium and interest. The plaintiff further fraudulent advantage or imposition attendant testified that she signed the receipt on the upon it." We do not think that in this case policy, relying on Poindexter's statement that it was necessary for the plaintiff, in order to she could not recover, and that Dr. Malcom avoid this settlement, to prove either strict had advised her to take it. Very soon after legal duress, or actual fraud. The facts of this transaction, Poindexter was arrested, the case were that she had a claim against and the policy was left at the Bank of Hutch- the insurance company for a thousand dolinson under an agreement, so that the plain- lars. A mistake of a year had been made, in tiff might have access to it, to make copies, if stating in the proofs of death the date when she desired to sue on it. Poindexter was then her husband contracted the disease which redischarged, and the check was tendered back sulted in his death. The letter of the presito him. The jury were instructed that if dent of the defendant company charged her they found that the plaintiff accepted $71.17 deceased husband with falsehood and misrepin full satisfaction of her claim against the resentation in the application for insurance. insurance company, and that her acceptance This charge, coming so recently after his was upon a full and complete and fair knowl- death, when backed up by Poindexter's stateedge of her rights of recovery, then the jury ment that he had learned from Dr. Malcom should find for the defendant, but unless they that the statements in the proofs of death should find that the plaintiff was fully ap- were correct, were well calculated to intiuprised of all her rights with reference to re- ence the plaintiff's action. Expressions of covery, and that the plaintiff was in no man- friendly interest by the company's agent, and ner overreached or deceived by the defend- the promise of a donation from his own pockant, or induced to engage in any settlement et, may have had some influence on her, and that she would not have engaged in had she she was induced to accept the small sum of been fully apprised of her rights, then the about seventy dollars in discharge of a thoujury should find that there was no settlement sand. In such a case this court would be made. This instruction is subject to criti- very loth to set aside the findings of a jury, cism for using the word "rights,” rather than where there were any circumstances at all the words, "facts affecting her rights." It is fairly tending to show that she was overargued that the plaintiff had as good an op- reached by artifice, or subjected to any undue portunity to be, and was in fact, as fully in- influence, in obtaining the settlement. We formed with reference to all the facts as the find no error in the record warranting a redefendant, and that she is presumed to know versal of the judgment, and it is therefore her legal rights as well as the defendant affirmed. All the justices coucurring.

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