Alta Friendly Society v. Brown

Opinion by

Reeder, J.,

This suit is by Daniel Brown, as administrator, of Sarah Brown, deceased, to recover from the defendant, an incorporated beneficial association, $150, which the defendant agreed to pay to her legal representative or to any person who.might be designated by her after her death.

At the time she became a member of this, association, she signed an application in conformity with the by-laws, which application contained a warranty as to the facts stated in it. In this application she stated that her age was fifty-nine years. Upon the trial, proof was adduced showing that she was seventy years of age at the time that she represented herself in her application but fifty-nine. In charging the jury at the conclusion of the trial, the trial judge said that this was not a warranty as to her age, and in order to defeat her right to recover it would have to be shown to be a fraudulent statement made for the special prarpose to deceive this association. This is practically the only assignment of error that it is necessary for us to consider. At the time the application was filed, it was stated therein that the applicant warranted both statement and answer “ to be full and true, . . . and if any statement was found to be untrue the contract shall be ipso facto null and void, and all moneys paid shall be forfeited to the society.”

This is a clear warranty as to all the facts contained in the application for membership in the association. And if in the application she represented herself as being fifty-nine years of age, when in point of fact she was seventy years of age, it was a complete bar to her right to recover.

The learned judge, therefore, erred in his instructions to the jury and the assignment of error must be sustained and the judgment reversed, and a venire facias de novo awarded.