This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Wherever misrepresentation is operative, misrepresentation as to a material fact invalidates the contract. In insurance contracts a misrepresentation, even in good faith, of a material fact,1 such as the interest of the
11 Irwin v. Wilson, 45 O. S. 426, 15 N. E. 209; Cabaness v. Holland, 19 Tez. Civ. App. 383, 47 S. W. 379.
1 Patton v. Glatz, 87 Fed. 283; Wright v. Phipps. 00 Fed. 550; United States Fidelity & Guaranty Co. v. First National Bank, 233 111. 475, 84 N. E. 670; Vaughn v. Wells, 180 Ky. 485, 203 S. W. 191.
2 Newton v. Life Association, 116 la. 311, 00 N. W. 73.
3 North British Mercantile Ins. Co. v. Union Stockyards Co., 120 Ky. 465, 87 8. W. 285.
4 Mackinnon v. Fidelity & Casualty Co., 72 N. J. L. 29, 00 Atl. 180.
5 Mutual Reserve Life Ins. Co. v. Dob-ler, 137 Fed. 550, 70 C. C. A. 134.
7 Vaughn v. Wells, 180 Ky. 485, 203 S. W. 191.
1 Alabama. Capital Ins. Co. v. Aut-rey, 105 Ala. 269, 53 Am. St. Rep. 121, 17 So. 320.
Kentucky. Provident Savings Life Assurance Co. v. Dees, 120 Ky. 285,86 S. W. 522; United States Health & Acciinsured in the property covered by the policy;2 or as use the use which is made of the building which is insured;3 or that the accounts of the employe for whose conduct a guaranty company is giving bond, have been examined;4 or in life insurance, the age, if understated;5 or the employment, if more hazardous than stated;6 or the habits of the insured as to the use of intoxicating liquors;7 a false statement that the insured had never had a certain serious disease, although he did not have it when he applied for such insurance;8 or as to the time at which an insured consulted a physician,9 avoids a policy of insurance. So a statement in an application for insurance against losses for sales to certain classes of debtors which greatly understates the amount of losses from bad debts during the years before, is material.10 A representation in insurance is material only if it affects the risk.11 Under a statute which provides that misrepresentation is not material if it does not affect the risk, it is said that a misrepresentation as to encumbrances does not avoid a contract of fire insurance.12 Under such dent Ins. Co. v. Jolly (Ky.), 118 S. W. 281.
Maryland. Hartford Fire Ins. Co. v. Keating, 86 Md. 130, 63 Am. St. Rep. 490, 38 Atl. 29; Mutual Life Assurance Co. v. Mullan, 107 Md. 457, 69 Atl. 385.
Massachusetts. Goddard v. Ins. Co., 108 Mass. 56, 11 Am. Rep. 307.
Minnesota. Perine v. Grand Lodge, 51 Minn. 224, 53 N. W. 367.
Nebraska. Aetna Ins. Co. v. Simmons, 49 Neb. 811, 69 N. W. 125.
New Jersey. Garrison v. Ins. Co., 56 N. J. L. 235, 28 Atl. 8.
Pennsylvania. March v. Ins. Co., 186 Pa. St. 629, 65 Am. St. Rep. 887, 40 Atl. 1100.
2 Capital City Ins. Co. v. Autrey, 105 Ala. 269, 53 Am. St. Rep. 121, 17 So. 326; Planters', etc., Ins. Co. v. Loyd, 67 Ark. 584, 77 Am. St. Rep. 136, 56 S. W. 44; Hartford Fire Ins. Co. v. Keating. 86 Md. 130, 63 Am. St. Rep. 499, 38 Atl. 29.
Contra, that an innocent mistake as to title does not avoid. Perry v. Ins. Co., 67 N. H. 291, 68 Am. St. Rep. 668, 33 Atl. 731.
3 Moss v. Home Ins. Co. (Ky.), 99 S. W. 308; Bowditch v. Norwich Union Fire Ins. Co., 193 Mass. 565, 79 N. E. 788.
4 Glidden v. United States Fidelity & Guaranty Co., 198 Mass. 109, 84 N. E. 143.
5 Dolan v. Life Association, 173 Mass. 197, 53 N. E. 398.
6 Triple Link, etc., Association v. Williams, 121 Ala. 138, 77 Am. St. Rep. 34, 26 So. 19.
7 Provident Savings Life Assurance Co. v. Dees, 120 Ky. 285, 86 S. W. 522; Brignac v. Pacific Mut. Life Ins. Co., 112 La. 574, 66 L. R. A. 322, 36 So. 595; Malicki v. Life Society, 119 Mich. 151, 77 N. W. 690.
8 Metropolitan Life Ins. Co. v. Mora-vec, 214 III. 186, 73 N. E. 415.
9 Dwyer v. Mutual Life Ins. Co., 72 N. H. 572, 58 Atl. 502.
10Carrollton Furniture Mfg. Co. v. Indemnity Co., 115 Fed. 77, 52 C. C. A. 671.
11 Rupert v. Supreme Court, 94 Minn. 293, 102 N. W. 715.
12 Continental Fire Ins. Co. v. Whit-aker, 112 Tenn. 151, 79 S. W. 11.9.
585 Misrepresentation in the Inducement Sec. 366 statutes a statement which is not in itself material can not be made so by contract13 Under some statutes a representation is not material and does not avoid the policy unless the fact which is stated actually contributes to causing the event upon the happening of which the policy becomes payable.14 Such statute does not apply to contracts made before it was enacted.15
In a contract for the sale of realty, a representation by the vendor that the area of the tract is substantially greater than it really is,16 as that a tract contains twenty-one acres, when in fact it contains only twenty acres;17 as to the title to land which is conveyed;18 as to the ownership of property which is sold or exchanged;19 or that a certain building is on the lot which is conveyed, when in fact it is partly in the street;20 or as to value,21 are each material. A misrepresentation by A, a vendor of land, to B, the vendee, to the effect that there is no mortgage thereon and that: he will take possession of a note and mortgage which are in the hands of his agent, X, when in fact X has negotiated such mortgage and converted the proceeds to his own use, is ground for rescission, even if A immediately offers to B to pay off such mortgage.22 A representation that a house which is sold or exchanged has been rented at a certain rate, when in fact the tenants were there at will or on sufferance, is material.23 A statement as to the amount of work to be done, by which a contractor is induced to agree to do such work for a certain price, is material.24