McMahon

Appeal from an order granting plaintiff a new trial. The action was on a promissory note, and was tried with a jury. Defendants pleaded fraud in the procurement of the instrument, setting up that one Burns, as agent of the Mutual Life Insurance. Company of New York, represented to them that his company would upon application issue to John Thomas a policy of life insurance, under which, by making annual premium payments of $366 for fifteen years, he would then be entitled to $5,000, “death or no death,” and that should he pay such premiums for three or any greater number of years, and then decide to abandon his insurance, he would receive on demand the amounts paid, with interest at the rate of four per cent per annum. Upon these representations, he signed an application for a “15 Pay Ins. Life W. R. O. R. 15, whole Prem.” policy. He did not understand these figures and abbreviations, and did not ask their meaning, but was informed by Burns that his signature to the application would bring the specified policy. Burns further informed him that, to bind the company at that time and day, it would be necessary for him to execute the promissory note, but that, if the policy was not as…