Plaintiff declared on notes for insurance premium, and defendant answered with no consideration, non est factum, fraud in procurement of notes, and set-off; issue was joined on these pleas.
Plaintiff's agent testified that defendant signed the notes in his presence, gave check for first installment; that the policy was not delivered by him to defendant; that such policy was issued and witness saw it several days later in the office of the agent of the company in Montgomery, and did not know of his own knowledge whether defendant received the policy. The amount of reasonable attorney's fee was fixed, the notes and the application for insurance offered in evidence, and plaintiff rested.
Defendant testified in his own behalf that he was in the garage business; that he had a transaction in his place with Hicks, who requested him to come and sign an application for insurance; that he had been frequently importuned by Hicks to take out insurance; that he finally agreed to take insurance for one year; that he was busy when Hicks requested that he sign the application, he did so without consideration of the contents of the paper, and gave him a check for $32.16 as premium; that he had never received any policy of insurance; that his first information of the notes was when asked for payment; and that he could read and write; that all the papers signed were without reading and signed at one time.
A witness, Gresham, said he heard the defendant say he only wanted one year's insurance; that the agent of the insurance company replied he would not insure "for but one year," and called the defendant "to the desk to sign an application or whatever it was."
The signature of the notes was identified as that of the defendant by witness Weldon. Hicks being recalled, stated that he informed the defendant he was writing five years' insurance, and the Montgomery agent of plaintiff testified that the policy issued was duly mailed to defendant in a properly stamped envelope with his return address and the same was not returned by postal authorities as undelivered.
There was no error in overruling demurrers to pleas B and C. The facts tending to show the fraudulent misrepresentations and failure of consideration complained of were sufficiently stated. McAfee v. Glen Mary Coal Coke Co., 97 Ala. 709,11 So. 881; Carmelich v. Mims, 88 Ala. 335, 6 So. 913; Phoenix Ins. Co. v. Moog, 78 Ala. 284, 56 Am. Rep. 31; Allen v. Standard Ins. Co., 198 Ala. 522, 73 So. 897. Plea C sufficiently declared in set-off, and affirmative instruction was given defendant as to matters set up in that plea.
We have examined the several rulings on evidence, and they are free from error. It was competent for the witness to answer, "What did Hicks say to that?" meaning by the context that the insurance would not be for a short period, say for one year.
There was no error in the court's stating the defendant's theory of defense to be found in the evidence, that he denied the execution and intentional delivery of the notes as the moneyed obligations declared upon. This is the obvious meaning of the court in context in which appears the portions of the charge to which exception was taken.
If the evidence affords an adverse reasonable inference, unfavorable to him who requires affirmative instruction, the same should be refused. McMillan v. Aiken, 205 Ala. 35, 40,88 So. 135. The circumstances of the signature to the application for in surance were sufficient to submit to the jury the issues of fact set up in plea B as to misrepresentation extending to the notes declared upon. There is a charge in that pleading of false statement or fraudulent misrepresentation as to the extent of the signature he was called upon to affix to the application. Rose v. Lewis, 157 Ala. 521, 48 So. 105.
We have indicated that the court charged for the defendant under the plea of set-off, or plea C. Charge 4, instructing that on postulated facts the jury will find for the plaintiff, was properly refused. It failed to hypothesize the issue of fact as to the insurance *Page 113 for a time longer than one year, and which the evidence for defendant tends to show he did not purchase.
We find no reversible error, and the judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and BROWN, JJ., concur.
On Rehearing.