Firpo v. Pacific Mutual Life Insurance

NOURSE, J.

Plaintiff sued for $943.76 on a common count for money had and received. The cause was tried before the court sitting with a jury and a verdict for the plaintiff in the sum prayed was returned. From the judgment following the verdict the defendant has appealed on a typewritten record under section 953a of the Code of Civil Procedure.

Plaintiff based his action upon the claim that his assignors had paid the sum in suit to the defendant as premiums upon a policy of life insurance in the principal sum of $15,000; that his assignors were induced to make the payments through the misrepresentations of defendants’s agent that the premiums were payable monthly instead of annually, as claimed by defendant; that the moneys were actually paid monthly for a period of more than one year into a savings bank, which transmitted them to the defendant; that no policy of insurance was delivered to the as

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signors until some fourteen months after the date of the transaction, when the defendant mailed to them a policy dated as of the date of the transaction and notified the assignors of plaintiff that the policy was canceled because of their failure to pay the annual premium for the second year.

The appellant apparently does not controvert any of these facts, as it has not printed any of the evidence in its opening brief and has printed the complaint and nothing more in the appendix. In view of the rule that where an appeal is taken under section 953a of the Code of Civil Procedure the appellant must print the portion of the record upon which he relies, we may assume that the facts cited by the respondent in support of the verdict were proved by competent evidence.

So far as we are able to understand appellant’s position from the briefs filed, it seems to be that the complaint, being in the form of a common count for money had and received, was insufficient in law to raise the issue of fraud or misrepresentation, and that the trial judge improperly instructed the jury on that issue. The position of the respondent is that no policy of insurance was ever delivered to his assignors and that there was therefore no consideration for the monthly payments of premium; and that, because of the agent’s misrepresentations as to the time of payment of the premiums, the minds of the parties did not meet and that the moneys were therefore paid under a mistake of fact. In reply the appellant insists that the policy was delivered to the bank for the benefit of the insured, but it does not controvert the evidence that the misrepresentations were made, as claimed, and does not claim that any knowledge or information was conveyed to the insured of the fact that the policy stated on its face that the premiums were payable annually.