Mathias v. State Farmers' Mutual Hail Insurance

168 N.W. 664, 40 N.D. 240, 1918 N.D. LEXIS 79

• Court: North Dakota Supreme Court
• Decided: February 7, 1918
• Status: Published

Opinions

Robinson, J.

In this case defendant appeals from a judgment for $92 and costs. The complaint is that in 1914 plaintiff made to defendant his promissory note for $85.94, and in consideration of the same it agreed to insure him against loss by hail to the amount of over $500; that in July, 1914, the crops insured were destroyed by hail and the loss amounted to $500; that afterwards the loss was adjusted at $335, to be paid in cash and in return of the promissory note, and that no payment has been made excepting $164 and the return of the note.

The answer is that the loss was adjusted at the sum of $250, and not $335, and that the contract of adjustment was reduced to writing and signed by the plaintiff. To the answer there was no reply. It did not state a counterclaim and hence there was no necessity for a reply.

On the trial the plaintiff gave testimony showing the insurance, the loss, and an oral contract of adjustment as alleged in the complaint. The defendant showed a contract of adjustment signed by the plaintiff as alleged in the answer. The testimony of the plaintiff was that he could not read English, and that, after the making of the oral contract for adjustment, he signed the papers, believing that it ivas in accord with the oral agreement.

The verdict for $92 is well sustained by the evidence. The jury had' a right to believe the plaintiff and to find in his favor. Under the testimony the plaintiff contracted to adjust his loss at $335, including his promissory note, and by trick and smoothness the adjuster obtained the signature to a paper which was not the contract. Then, when oral testimony was offered to prove the facts and to show that the alleged written contract is not and- never was a contract, it was claimed that such proof was not admissible.

The claim is that by any trick or device a party may obtain the signature of an ignorant, illiterate person to a document in the form of a contract, and then it may not be impeached by proof that it is not a contract. And in such cases by specious and deceptive arguments the judges are too often imposed upon and misled. They forget that the signing of a paper does not make a contract. Under the plain words of the statute there can be no contract where the consent of the parties to the terms of the same is not free and mutual, and consent is not free when it is obtained by fraud, undue influence, or mistake.

In this case the jury found, and had a right to find, that the document claimed to be a written contract was not a contract, and that in truth the contract was as stated in the complaint.

The verdict is just and right, and the judgment is affirmed.