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.
To be operative a misrepresentation must be made by the party against whom relief is sought, or by some one acting on his behalf or to whom he made such representations for the purpose of having them communicated to the party misled. Thus in insurance contracts if the misrepresentation is made by the agent of the insurance company, to the company, intentionally1 or unintentionally,2 it is not misrepresentation by the insured, and does not avoid the policy. Thus no misrepresentation as to age is made where insured states the facts as far as known to the agent of the company and the officers of the company subsequently fill in the blanks.3
14 Delaware. Tatman v. Philadelphia, Baltimore & Washington R. R. Co., 10 Del. Ch. 105, 85 Atl. 716.
Iowa. Haigh v. White Way Laundry Co., 164 la. 143, 50 L. R. A. (N.S.) 1091, 145 N. W. 473.
Minnesota. Jacobson v. Chicago, Milwaukee & St. Paul Ry., 132 Minn. 181, L. R. A. 1916D, 144, 156 N. W. 251; Smith v. Great Northern Ry. Co., 139 Minn. 343, 166 N. W. 350; Althoff v. Torrison, 140 Minn. 8, 167 N. W. 119.
North Dakota. Clark v. Northern Pacific Ry. Co., 36 N. D. 503, L. R. A. 1917E, 399, 162 N. W. 406.
Oklahoma. Chicago, Rock Island & Pacific Ry. Co. v. Rogers, - Okla. - , 159 Ac. 1132.
Washington. Pattison v. Seattle, Renton & Southern Ry. Co., 55 Wash. 625, 104 Ac. 825.
Wisconsin. Bussian v. Milwaukee, Lake Shore & Western Ry. Co., 56 Wis. 325, 14 N. W. 452.
15 See Sec. 363.
16 Haigh v. White Way Laundry Co., 164 la. 143, 50 L. R. A. (N.S.) 1091, 145 N. W. 473.
1 United States. New Jersey, etc., Ins. Co. v. Baker, 94 U. S. 610, 24 L. ed. 268; McElroy v. Assurance Co., 94 Fed. 990, 36 C. C. A. 615.
Illinois. Home Ins. Co. v. Menden-hall, 164 111. 458, 36 L. R. A. 374, 45 N. E. 1078.
Kansas. Continental Ins. Co. v. Pearce, 39 Kan. 396, 7 Am. St. Rep. 537, 18 Ac. 291; German Ins. Co. v. Gray, 43 Kan. 497, 19 Am. St. Rep. 150, 8 L. R. A. 70, 23 Ac. 637.
Ohio. Farmers' Ins. Co. v. Williams, 39 O. S. 584, 48 Am. Rep. 474.
Pennsylvania. Kister v. Ins. Co., 128 Pa. St. 553, 15 Am. St. Rep. 696, 5 L. R. A. 646, 18 Atl. 447.
2Siltz v. Ins. Co., 71 la. 710, 29 N. W. 606; Key v. Ins. Co., 77 la. 174, 41 N. W. 614; Carey v. Ins. Co., 97 la. 619, 66 N. W. 920.
A misrepresentation by the agent of a party or by one acting on his behalf renders the contract voidable as against his principal.4 If the representation is made by one acting on behalf of the insured, the insured is as liable therefor as if he had made it himself.5 An erroneous estimate prepared by the engineer of a municipal corporation is in legal effect a misrepresentation made by such corporation for which a contract may be avoided.6 If the party making the false representation is not the adversary party to the contract, the case is controlled by the doctrines of mistake and not by those of misrepresentation or fraud. Thus where the principal obligee on a bond misrepresented its contents to the sureties, telling them it was merely a recommendation, they can not avoid their liability as against the obligee if they had an opportunity to read the contract and he did not know of the misrepresentation.7