Opinion
8 Div. 529.
November 23, 1933.
Appeal from Circuit Court, Lauderdale County; J. Fred Johnson, Jr., Judge.
A. A. Williams and Almon Almon, all of Florence, for appellant.
A party who has been induced to enter into a contract by material misrepresentations of the other party may, if he acts with reasonable promptness upon the discovery of the fraud, rescind the contract in toto and recover whatever consideration he has parted with. Lowery v. Mut. Loan Soc., 202 Ala. 51, 79 So. 389; Edmundson v. Mullen, 215 Ala. 297, 110 So. 391; Southern L. T. Co. v. Gissendaner, 4 Ala. App. 523, 58 So. 737. Evidence of fraud is not inadmissible on the ground that it alters or varies the terms of a written contract. People's Auto Co. v. Staples, 225 Ala. 372, 143 So. 553. Appellant had a right to rely on the statements and information given him by the agent of defendant at the time of securing the application. American Ins. Co. v. Inzer, 216 Ala. 553, 114 So. 187; 14 R. C. L. 90; Kleis v. Niagara F. I. Co., 117 Mich. 469, 76 N.W. 155; Lierheimer v. Minnesota L. I. Co., 122 Mo. App. 374, 99 S.W. 525. A written application for life insurance not made a part of the policy of insurance is no part of the contract. Code 1923, § 8371; Independent L. I. Co. v. Butler, 221 Ala. 501, 129 So. 466.
Howze Brown, of Birmingham, and Andrews, Peach Almon, of Sheffield, for appellee.
Appellant was estopped from pleading any oral statement, promise or representations alleged to have been made to him by appellee's soliciting agent not contained in the written application signed by appellant. Blanks v. Moore, 139 Ala. 624, 36 So. 783; Miles v. Sledge, 157 Ala. 528, 47 So. 595. From aught appearing from the replications, Abramson was merely a soliciting agent, and had no authority to bind the company so as to estop it from relying upon the terms of the written contract. First Nat. L. I. Co. v. Ford, 25 Ala. App. 122, 141 So. 719. Each of the replications was defective from a standpoint of pleading. H. A. Co. v. South, 112 Ala. 642, 20 So. 1003; Irwin v. Cotney, 214 Ala. 415, 108 So. 235; Southern R. Co. v. Adams Co., 165 Ala. 436, 51 So. 779.
In so far as the special replications, to which demurrers were sustained, denied that the plaintiff made the written application for the policy as theretofore drawn and forwarded to the agent, paid the premium on and for that policy, and the same thereupon became of force and continued until it expired by its terms, all such matters were within the issue joined on the pleas.
The gravamen of these pleas was that the insurance policy, naming the wife as beneficiary, was accepted and paid for at the time the belated written application was signed, stipulating for a policy so written as to the beneficiary; and that the plaintiff has received the consideration for the money paid, namely, insurance in force.
The special replications deny these allegations. They could not be sustained except by evidence which would overcome the pleas.
Sustaining demurrers to the replications was therefore without injury to plaintiff as to these controlling facts.
The further allegations in the replications designed to overcome the effect of the written application cannot be classed as misrepresentations inducing the plaintiff to enter into the transaction.
Misrepresentations inducing a contract may be of two classes: First, false statements touching the subject-matter; second, false statements as to the contents of the document which one is induced to sign without reading.
The alleged misrepresentations here set up are neither.
It is not claimed the application was signed without knowledge of the beneficiary clause which the policy was to contain.
To the contrary, such knowledge is admitted, but it is alleged that at the time, and in the same transaction, a verbal agreement was had with the agent for another and different beneficiary clause.
It is an ordinary case of seeking to contradict and vary the terms of a valid written instrument by parol evidence. We need not repeat what has often been emphasized touching the salutary effect of this rule of law.
To permit parol evidence of matters here alleged would be to break down the safeguards of the law and render the written memorials of transactions of little avail.
We need not rest our decision on the clause in the signed application expressly negativing any other or different agreement, made the basis of decision in Blanks v. Moore, 139 Ala. 624, 36 So. 783, and Miles v. Sledge, 157 Ala. 528, 47 So. 595.
We may add that, if the special pleas had been proven, the policy being put in force, the right to change the beneficiary was reserved to the insured by the same application, and would be governed by the terms of the policy issued in keeping therewith.
Affirmed.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.