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Gerhauser v. North British and Mercantile Insurance Company.

swered by the insured, the court must instruct that the answer is material. The reasoning by which this result is reached, is thus stated in one of the opinions : “ An inquiry made by the insurer, shows that he deems the matter inquired about material—an answer by the insured admits the materiality. It is an agreement that the matter inquired about is material, and therefore the materiality of such answers cannot be submitted to the jury.” It may be questioned, whether the fact that an inquiry is made and answered is anything more than evidence tending to prove materiality, and it can hardly be deemed equivalent to a conclusive agreement that the answer shall be considered material. But, waiving this, the court can declare that the parties understood and intended that, upon the substantial truth of the representation, regardless of its materiality, the validity of the policy should depend, only when such understanding and intention can be deduced from the written evidence: if the contract is not wholly in writing, and such intention is to be collected from the acts and expressions of the parties, the jury must find it. Smith’s L. C. 265. And so, it is said, (98 Mass. 402) that, where the materiality of a representation depends upon circumstances, and not upon the construction of any writing, it is a question of fact for the jury; but where the representation is in writing, its interpretation belongs to the court. It was further held, that even where, by the form of the policy and the contemporaneous written application, the parties conclusively agree to consider the representation material, it is still a question of fact for the jury to decide, whether the variance between the representation and the existing facts was material --- the very question which, by this instruction as offered, it was proposed to take away from the jury. In Peterson v. Ellicott, 9 Md. 60, the court say: “There is no

. principle better settled than that which denies to the court the right of assuming any fact, when the onus of proving such fact rests upon the party asking the instruction, no matter how strong and convincing his proof on the subject may be.

The instruction should contain, within itself, a correct legal principle—whenever it undertakes to set forth facts as the basis of a legal proposition, the facts referred to must be sufficient to warrant the instruction asked

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Gerhauser v. North British and Mercantile Insurance Company.

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for, without any extraneous aid." The concealment of the change in the south wall, and the other facts set forth in this instruction, did not, in and of themselves, authorize a direction to find for the defendant; and the contention of counsel is, in effect, that the court below should have not only decided, as matter of law, that the parties had made the state of repair material, but should have assumed that the plaintiff had represented the bụilding to be in good repair, and that it was not in good repair, because the parties meant by “putting the house in good repair,” “ replacing the woodwork with brick” - that this had not been done; and that such variance was material. That is, that it not only increased the risk, but so increased it that, if known, it would have enhanced the premium, or prevented the insurance. 20 N. H. 551; 8 B. Mon. 642; 30 Mo. 67.

The point now presented is not whether, if these questions had been submitted to the jury, a finding contrary to the assumption requested would have been against the evidence, or the weight of evidence. Nor is it necessary for us now to go so far as to say, that none of these facts — for instance, the representation of good repair, a conceded fact in the case - could have been assumed in aid of the prayer. But it was not error to refuse to assume other of these facts. Harvey had insured the property for the same amount in 1867, when the jury may have found) he had every reason to believe it was in substantially the same condition, so far as concerned the risk; and though the rates were reduced in 1868, the jury may have attributed that to the competition then existing, as testified to by plaintiff. That counsel have correctly interpreted the meaning attached by the parties to the words “ good repair,” is not self-evident nor undisputed. This was for the jury to ascertain, in the first instance, not simply in view of the conversation in which the expression was used, but from that conversation as explained by the previous correspondence and conduct of the parties.

The judgment and order should be affirmed, and it is so ordered.

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After the rendition of the foregoing decision, a petition for rehearing was filed by defendant. In answer thereto, the following response was filed at the January term, 1872.

Gerhanser v. North British and Mercantile Insurance Company.

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By the Court, GARBER, J.:

Four points are made in the petition for a re-hearing in this case. We have carefully considered the argument of counsel in their support, and the result is a conviction that the petition should be denied.

I. In regard to the testimony of Mrs. Reed, it is admitted that there is a decided conflict of authority on the point suggested. In view of this conflict, we are at liberty to adopt the rule which seems to us supported by the better reason. So far as there has been direct adjudication of the point, it is about equally balanced ; and as now presented for the first time, in this state, it is practically of the first impression—as much so as it was when presented to the judges who decided the cases of Magill v. Kauffman and Wilbur v. Selden. Then going back to the law as it stood when Magill v. Kauffman was decided, we are informed, by the opinion of Chief Justice Tilghman, that there were three recognized exceptions to the general rule, viz: the death of the witness, that he could not be found after diligent search, and that he was kept away by the influence of the adverse party. By analogy to the case of a subscribing witness, he admitted a fourth exception—the absence of the witness from the state. We agree with the conclusion arrived at in Wilbur v. Selden, that the analogy was too imperfect to justify the engrafting of the last-named exception upon the law. Where the witness can be found and his deposition taken, neither expediency nor necessity requires the admission of hearsay as to his previous testimony; 4 S. & R. 204; 1 Nott & McCord, 409; he is not then “in the same circumstances as to the party that is to use him, as if he were dead”; 3 Bac. Abr. 561 ; and though the deposition falls short of an examination viva voce, it is superior to what a witness said at a former trial. Ib.

II. The point upon which we sustained the overruling of the objection to the question propounded to the witness Ritter, was distinctly made in the brief of respondent. In the reply, appellant impliedly admitted the correctness of the assumption of fact upon which the point was made, and contended that there was no rule of law requiring the answer to be preserved in the bill of exceptions. The statement, however, shows that the whole value of the cornices

Gerbaneer v. North British and Mercantile Insurance Company.

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testified to could not have exceeded the sum of fifty-eight dollars. Even if there was technical error in admitting the testimony, it would not warrant a reversal of the entire judgment; but in support of the judgment, we feel justified in interpreting the statement as showing that, in point of fact, Ritter testified with direct reference to the cornices he had seen in the house of the plaintiff.

III. The third suggestion is answered by the case cited in our opinion, which shows that the instruction did not submit to the jury the question of the knowledge of either the plaintiff or the defendant.

IV. It is now contended that the modification of instruction “M," was error, because of the failure of the court to inform the jury that the concluding sentence was stricken out for the reason that it had already been given. Criminal cases decided in this state and California are cited to sustain this position. 1 Nev. 35. What was said on this subject in People v. Bonds, was wholly unnecessary to the decision. But admitting that such is the law in criminal cases, we think a different practice has always prevailed and should prevail in the trial of civil causes. 36 Ill. 212; 36 Mo. 162; 14 Iowa, 370; 41 Penn. 242 ; 15 Texas, 400; 42 Maine, 564; 30 Miss. 120 ; 11 Md. 451 ; 8 Blackf. 98; 3 Dana, (Ky.) 36 ; 1 Black. (U. S.) 537.

In criminal cases, no specific exceptions to the charge are required. In civil cases, the point of the exception must be particularly stated ; and where the whole charge correctly states the law as requested, a party cannot assign for error any mere ambiguity in the instructions, or that they were calculated to mislead—no erroneous proposition of law being asserted—unless he ask an explanation of them to the jury at the time they are given. 35 Ala. 653; 23 Ill. 380; 23 How. (U. S.) 189; 20 Texas, 226 ; 28 Ala. 641; 10 Ind. 90 ; 9 Ala. 63 ; 19 N. H. 377; 5 Met. (Mass.) 151 ; 19 Pick. 311.

Counsel ask“ how could we object to a particular mode of modification of which we were wholly ignorant "? It seems to us that nothing could be easier than to have made the specific objection in this case. They knew that the concluding sentence was not given as part of this particular instruction. They knew that this sen

Saunders v. Stewart.

tence had been given in another instruction. They therefore knew that there was a good reason for striking it out, and they knew that this reason was not stated to the jury. They had no reason to suppose that the judge had taken it upon himself to erase the sentence refused, and thus to deprive them of the means of presenting to this court or to the court below, on motion for a new trial, the written evidence of what their request was.

It was not to be presumed that the judge in the hurry of the trial would undertake to re-write the instructions. If, then, there was reason to fear that the jury would be misled—if, by reason of the failure to state the reason of the modification, the charge was ambiguous, and by reason of such ambiguity the jury were liable to infer that in the opinion of the court the portion of the instruction refused was not law, why not request the desired explanation, and in case of refusal, state then and there the particular point of exception? It seems to us that every reason of the rule requiring such particularity fully applies, and that'upon an exception which goes to the extent of denying the propriety of any modification whatever, it cannot be urged on appeal that a modification confessedly proper was not accompanied with an explanation which was never requested. The petition must be denied, and it is so ordered.

WILTSHIRE SAUNDERS, RESPONDENT, v. WILLIAM R.

STEWART, APPELLANT.

ABSOLUTE CONVEYANCE MAY BE Shows MORTGAGE BY Parol. The principle

that a conveyance absolute upon its face, whether of real or personal property, can in equity be shown by parol proof to be a mortgage, or to have been given only as security, or to have been obtained by fraud, mistake or undue

influence, is too well settled throughout the United States to be disturbed. PAROL PROOF TO Show EQUITY SUPERIOR TO DEED. The doctrine

upon

which parol proof is received to show a conveyance absolute in form to be a mortgage or security for a loan, is that such evidence is received not to contradict the instrument, but to prove an equity superior to it.

APPEAL from the District Court of the Second Judicial District, Washoe County.

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