Jurgens

The appeal is from a judgment of non-suit and from an order denying a new trial. The action was brought to recover fourteen hundred and sixty two dollars, paid as the first annual premium upon a policy of life insurance for twenty-five thousand dollars, plaintiff claiming that the contract of insurance had been rescinded by him. He claims to have rescinded because he was induced to receive the policy, and pay the first premium, by the false and fraudulent representations of defendant’s agent, one Eaton. The policy issued to him was precisely such a policy as he had applied for in writing, but the written application was made out by Eaton, and Eaton had assured him, and induced him to believe, that the policy would be an endowment policy for twenty-five thousand dollars, which would be paid him at the end of ten years, or, in case of his death, within that period to his wife Katherine, whereas the policy delivered to him only entitled him to an endowment of three-tenths of the sum of twenty-five thousand dollars, or seven thousand five *163 hundred dollars. There was a similar misrepresentation in regard to the surrender value of the policy.

In the written application of plaintiff…

I dissent from some of the conclusions of the court in this case, and therefore, from the order denying a rehearing before the court in Bank.

It will be observed that the decision does not go upon the ground that the plaintiff was not in fact defrauded. On the contrary, it assumes that he was defrauded, but holds that he could not rescind by his own act without tendering a release by his wife of her interest in the policy. I think this is probably a sound construction of the statute. (Civ. Code, sec. 1689.) But if plaintiff could not effect a rescission by his own act without putting the defendant in statu quo, it does not follow that he could not compel a rescission by an action instituted for that purpose. The present action, it is true, is not in form an action „to rescind, and that is not the relief prayed. The complaint proceeds upon the theory that a rescission was effected by the act of the plaintiff, and merely prays judgment for the amount of premium paid. But, assuming, as the opinion does, that the plaintiff was really defrauded, his complaint states facts sufficient to warrant' a judgment of rescission—facts, in other words, sufficient to constitute a cause of action—…