.' REPORTER, vol.

42.

-could :have the errors corrected; and acquire perfect titles, bycofupelling

froIn the patenteesi It is, therefore, necessary that all .controversy under should be ftnally terminated, 1U1dthatthe fact of such termination be evidenced by matter of record, or acknowledged by the party by a surrender of the certificate Of pur'chase:and a relinquishment of the land; before a party can place himself in a position to maintain an action for the purchase money. The petition may be cured of its imperfection in this regard by an amendment j if the facts are such as to warrant it; and this is my reason for calling attention to a defect not referred to in the argument. An order to' amend the sustaining the demurrer will be ente'l'ed; and, be asked,a judgment will be given for the defendant. ' , " . .

et al. v. EQ:urrABLE ACCIDENT INs, CO.

OF

CINCINNATI.

(Oircuit 'Oourt, Ji). D. Wisconsin. Maroh 25, 1890.)
LIn, ImraRANCB-APPLICATtON.....ANSWER Bi AGEN'll.

was not asked as to l;tis inooml'l, but after he had signed. his applioation, thEl'statl'lments in whioh wl'lrl'l warranted, thl'l agl'lnt, withOut .his knowledge, inserted ,a stateml'lnt that it was not less than '100 a week. This statl'lml'lnt was in a ill!· fl'lrl'lnt handwriting from thl'l rl'lst of ,thl'l aplllication, and thl'l policy was issued by thl'l home oflicl'l. HeW, that thl'l company was liable, though insured was practio!lo1J.y insolvent, and his income was much Il'llls than'loo.

AtLe.w. On motions for judgmeriton verdict and for· new trial. Action by Edgar P. Sawyer and John N. Kiel, executors of the will of Julius H. Kiel, against the Equitable Accident Insurance Company of Cincinnati" upon a policy of insurance. Wei8brod, Thompson Harshaw, for plaintiffs· .Gary Forward, for defendant. JEN1tINS, J. The action is upon an accident policy of insurance issued by the defendant upon the life of Julius H. Kiel, the plaintiffs' testator, for the sum of $10,000. One of the defenses to the action, and the oblyone necessary to consider at this time, isthat,in the application upollwhichthepolicy was based, the assured stated as a fact whicb he warranted to be true, but which was in fact false, that his weekly income not less than $100. . At the trial the jury returned a general verdict for the plaintiffs, and, in answer to two SPecial questions submitted, found that at· the time of the application, and for a year prior thereto'. the weekly income of Julius H. Kiel did not exceed $50; but thlttlJbestatement in the application respecting his weekly income was not contained in the application when signed, nor inserted therein at any time with the knowledge or consent of the assured. Upon this ver· diet, both parties now move the court for judgmentj the defendant coupling therewith a motion for a new trial.

eAWYER V. EQUlTABLljl ACCID:I!:NT INS.

CINCINNATI.

31

:,The facts established by the vllrdict,so far as they areessentiaLto. the proper determination of the question .involved; may be thus summarized The assured, a residentofOsbkosh, on the 18th of April,1888, at Milwaukee, applied toW. H. CrMt, the Wisconsin state agent of the defendant, for accident insurance to the amount of 810,000. He was a stranger to Craft, who references. He informed Craft that he was president and treasurer of the Ingalls, White Rapids & Northern Railroad, a logging railroad in the northern woods, and referred Craft to the office of" the' Wisconsin Central Railroad. Craft said to him. that the agency could not write a poUcy in excess of $5,000, but he would take his ap.plication, and, if the. references .proved satisfactory, would forward the application to company with a recommendation that the policy ig.. sue. Thereupon Craft's son,in his presence and in the presence of the allsured, propounded the' qUllStions and wrote the answers in the blank application, so far as the blanks were filled at. the time. The application "faa ,theJ},signed by Kiel, who left with Craft his check for $50, the reqllired with the understandiug that the policy when issued slwulq .forwarded to bim at Oshkosh, Of, if the application should' be rejected, the .check was to.be returned. At no time was Kiel interrogate<Las to his income, nor did he make any stJ1tement respecting it. Craft,upon inquiry, satisfied himself respecting the desirability of the risk, and, in the absence of Kiel, and without his knowledge or tbe of theapplicatioll, added to ,the occupllition stated by J{je1 the "capitalist," and in the space in the prescribed blank, wbic4 had not been filled,. erased the printed word" wages," and inserted i9 writing ",income not less than $100.00," so that the statement would retld, "roy weekly income not less than $100.00," and thereupon forwarded the application to the defendant with a letter strongly recommending ,the acceptance of the risk. The policy was issued and sent to Graft, who in turn forwarded it to Mr. Kiel by mail, and used the check left with ,him for the premium. The application was. a printed blank furnished,bythe defendant company to its agents, and contained the uf;ualwarra,nty that thesl:atement of facts therein contained, and upon which the ,policy was to be based,.was ,true. The .company was not informe"q,'9f the action of Crllft in respect to his alteration of the signed until the last tr.ial of the action, when it timely tendered and paid: ,into court, to the use of the plaintiffs, the amount of pre,. mium, with accrued interest-to the date of such tender and payment. The alterations were manifestly in the! bandwriting of Craft, the agent, with .which the company be assum.edto have been familiar, and eJl:hibit a marked contrast to the hll-ndwl'iting of the son who filled the blank, with the exceptions stated. The printed instructions to agents required them, in case of, application for insurance in excess of $5,000, tlHlPply.to the home unawers to each question in the application, and stating the salary or weekly wages of applicant. Mr. Graft, at the trial, insisted that,: in insuring 'professional men, merchants, the custom to ignore that.que&.;