
    4455.
    White v. Claxton.
    Decided January 22, 1913.
    Complaint; from city court of McRae—Judge Eschol Graham. April 12, 1912.
    
      O. P. Thompson, W. B. Kent, for plaintiff in error.
    
      W. S, Mann, contra.
   Hill, C. J.

1. This was a suit on a note given for the first premium on a life-insuranee policy. The defense relied upon was that the consideration of the note had failed, in that the plaintiff had not delivered to the defendant the kind of policy contract requested by his written application, the policy actually delivered being entirely different from the one desired by the defendant and described in his application. In support of this plea the defendant offered to testify orally as to the kind of policy he had made written application for, and the kind of policy he had received. He did not offer the written application or the policy, or account for their absence. Held, that there was no error in excluding the oral testimony. Civil Code (1910), § 5752.

2. The verdict for the plaintiff was demanded by the evidence, except as to attorney’s fees, and this part was written off.

3. The writ of error is so manifestly without merit that the judgment is affirmed, and the motion to add to the judgment ten per cent., as damages for frivolous appeal, is allowed.

Judgment affirmed, with damages.  