De Wolf v. Washington ( 1903 )

Dodge, T.

The trial court has found as fact that defendant ordered and received the policies in question and promised to pay plaintiff the premiums. To this must be added the assumption that defendant knew and understood that the policies must be obtained from some insurance companies and that plaintiff must pay the premiums to such companies. From the facts thus found there obviously results prima facie a liability of defendant to plaintiff in the amount of the premiums. What is there to avert such result ? Respondent answers, the fact that the policies were void. But does such fact relieve from liability? Certainly not, unless by reason of that fact the consideration for defendant’s promise failed. Either injury to the promisee or benefit to' the promisor is good consideration to support a promise. That plaintiff suffers injury by parting with his money to the companies is certain. That defendant gained some benefit is also clear, for, if the policies were entirely void as insurance contracts, they constituted binding agreements on the part of the companies to pay to the defendant the amount of the premiums, on proper demand. Sec. 1941 — 52, Stats. 1898. -We must conclude therefore that consideration did not entirely fail, and that, but for some other defense, the plaintiff was entitled to recover on defendant’s promise. The only other defense possible is breach of warranty. If the policies were not such as contracted for, defendant had several courses open to him. He might have refused to' receive the policies; he might have returned them as not satisfying the contract, unless his conduct had been such as to constitute an acceptance of them; or he might retain them for what they were worth, and set off or recoup damages. He did neither tbe first nor tlie second, for bis return of tbe policies was not on tbe ground tbat they did not satisfy tbe contract, but upon tbe claim tbat no contract was made, now found to be false. Tbe third course, wbicb was bis only alternative, be must be deemed to bave elected. Tbat, however, could constitute defense, either in whole or in part, only by pleading a breach of warranty affirmatively by way of setoff or counterclaim, of which nothing appears in tbe record. Upon tbe pleadings and tbe facts found, therefore, tbe plaintiff was entitled to judgment.

This conclusion renders unnecessary tbe consideration of tbe question discussed by counsel whether tbe two policies, delivered at tbe same time, with full knowledge in tbe agent and therefore in tbe companies (sec. 1941—62, Stats. 1898), could be repudiated by those companies on tbat ground; whether, in other words, tbe companies did not, by issuing tbe policies and accepting tbe premiums, with such knowledge, estop themselves from denying tbe validity of their acts.-

By the Court. — Judgment reversed, and cause remanded with directions to enter judgment in favor of plaintiff for $16.80, with interest from December 11, 1902.