
    Azilda Pelletier vs Phenix Mutual Life Insurance Co.
    • No. 70514
    May 12, 1927
   RESCRIPT

TANNER, P. J.

This is an action brought by a beneficiary under an insurance policy.

The second plea of the defendant sets up a release upon sufficient consideration of the policy named in the declaration.

The plaintiff’s replication to this second plea states that the plaintiff did not understand the English language and the nature of the business transacted by her when said release was procured; that at the time of signing the release she was in- the hospital and was in no condition to transact business; that the defendant’s agent, well knowing her condition, represented that the policy was void because of material misrepresentations made by the insured in securing said policy; and the plaintiff avers that said representations were made for the fraudulent purpose of depriving the plaintiff of the proceeds of the policy and that the representations were false and known to be so at the time by the defendant’s agent; that by reason of her mental condition and said false representations and undue influence she signed said release for ¡¡>500 to a policy of the value of $1500.

To this replication the defendant demurs for various reasons, the most important of which is that plaintiff has not returned or offered to return the $500 which she received on signing said release.

The plaintiff cites a number of authorities, most of which are to the effect that where there is a release upon an undisputed claim a tender is not necessary, but upon the allegations of the plea the claim is not undisputed, and the weight of authorities is to the effect that where a person seeks to avoid a release given upon a disputed claim it is necessary to return or tender tlie consideration received upon the execution of said release even though it is alleged to he procured by fraud.

•For Plaintiff: Joseph T. Witherow.

For Defendant: Edwards & Angelí.

Demurrer is therefore sustained.  