
    Fulton v. Metropolitan Life Ins. Co.
    (New York Common Pleas
    General Term,
    June, 1893.)
    Where a contract of life insurance has been rescinded, by the parties by its mutual abandonment, assumpsit for money had and received, lies to recover the premiums paid thereon.
    Such an action cannot be defeated by the company’s subsequent assumption of the validity of the policy.
    Appeal from a judgment of the General Term of the City Court of New York which affirmed a judgment for plaintiff at trial term entered upon a verdict in her favor.
    Action to recover in implied assumpsit for moneys had and received by defendant to plaintiff’s use, the moneys being paid defendant by plaintiff as premiums upon a policy of life insurance which was afterwards mutually abandoned and' rescinded by the parties.
    
      Alb&rt I. Sire, for plaintiff (respondent).
    
      Wm. JEC. Arnoux, for defendant (appellant).
   Bisohoff, J.

The facts in evidence and conceded by defendant conclusively show that defendant’s policy of insurance which was issued to plaintiff upon the life of her father was rescinded by the parties by its mutual abandonment; and the trial judge might well, therefore, have directed a verdict in plaintiff’s favor.

It appeared that plaintiff had applied to defendant for a policy upon the life of her father, Jacob 0. Stoner; that it was a condition precedent of defendant’s contract to insure , that the consent of the person whose life was proposed for insurance must have been personally subscribed by him on the application; and that this condition had not been complied with in the instance of plaintiff’s policy. Plaintiff testified that some time after the policy was issued to her, she called at the office of the defendant company and there met its secretary, to whom she stated that she understood the policy to be of no effect, and desired the premiums paid to be returned to her; and that the secretary replied that the policy was void, but that if the plaintiff would secure her father’s consent to the policy- or a certificate from his physician respecting the state of her father’s health, the company might on consideration of the matter waive its objection to the validity of the policy. Mr. Gaston, defendant’s secretary and only witness on the trial, effectually corroborated plaintiff’s testimony.

Plaintiff was not bound to secure either the consent or the certificate required by defendant’s secretary. Nor did she do so, but instead brought this action for the return of the premiums paid by her. Thus both contracting parties treated the policy as void and no longer subsisting between them, and neither could thereafter revive it without the assent of the other. Much less can defendant defeat plaintiff’s action by its subsequent assumption of the validity of the policy. That being so, neither of defendant’s counsel’s requests to charge was relevant, and the exceptions taken to such as were refused do not for that reason present error. Priebe v. Kellogg Bridge Co., 77 N. Y. 597.

It is well settled in principle and by authority that where there has been a total failure of consideration, or where a contract has been abandoned, or has-been rescinded, an action will lie for money had and received to recover back any money paid by either of the contracting parties to the other in furtherance of the contract. 2 Whart. Cont. § 742; Raymond v. Bearnard, 12 Johns. 274; Chesapeake & Ohio Canal Co. v. Knapp, 9 Pet. 541, 566; 9 Lawy. ed. 222, 231; Lindsley v. Ferguson, 49 N. Y. 625 ; 3 Am. & Eng. Ency. of Law, 889. So, also, it is settled by abundant authority and no longer open to debate that the use of the common count in assumpsit is a sufficient compliance with the requirement of the Code of Civil Procedure that the complaint must state the facts which constitute the cause of action. Allen v. Patterson, 7 N. Y. 476; Farron v. Sherwood, 17 id. 227, 229; Hosley v. Black, 28 id. 438; Hurst v. Litchfield, 39 id. 377; Am. National Bank v. Wheelock, 13 J. & S. 205; Evans v. Harris, 19 Barb. 416; Cudlipp v. Whipple, 4 Duer, 610; Bates v. Cobb, 5 Bosw. 29; Adams v. Holley, 12 How. Pr. 326; Betts v. Bache, 14 Abb. Pr. 279; Sloman v. Schmidt, 8 id. 5; Goelth v. White, 35 Barb. 76; Raymond v. Hanford, 6 N. Y. Super. Ct. 312; Fells v. Vestvali, 2 Keyes, 152; Pom. Rem. & Rem. Rights, § 542; 4 Wait’s Act, & Def. § 246 ; 7 Lawson’s Rights, Rem. & Pr. 5438, 5439, n. 1; 1 Boone’s Code PI. § 171; Rumsey’s Pr. 246.

If the allegations of the complaint were inadequate to apprise defendant of the facts upon which recovery was sought, relief could have been had by a motion for a bill of particulars, or to make the complaint more definite and certain.

Any omission of facts essential to plaintiff’s recovery in the opening statement of counsel, as well as any defect in the proof which existed when the introduction of plaintiff’s direct evidence was closed, was cured by evidence subsequently adduced by either party. Schenectady & Saratoga Plank Road Co. v. Thatcher, 11 N. Y. 102, 112; Tiffany v. St. John, 65 id. 314, 317; Painton v. North. Central R. Co., 83 id. 7.

Exceptions taken to rulings respecting the admission and exclusion of evidence are not urged on the brief of counsel for appellant. Nevertheless they have been examined and found without merit.

The judgment of the General and trial terms of the court below should be affirmed, with costs.'

Petos, J., concurs.

Judgments affirmed.  