I do not think defendant pleads a rescission of contract.
It is a breach of warranty only that is pleaded.
*582Defendant sets forth that prior to the time the second premium fell due, acceptance of which would have made the policy in contes tibie,. it learned that plaintiff, contrary to his warranty, had ' applied for other insurance and been rejected, whereupon it notified the plaintiff it would have no further dealings on the contract with him. There are no express allegations of fraud nor any prayer for rescission, and nothing from which these can .be implied except that the warranty alleged chances to be one which was broken the moment the policy was issued. If the policy had been issued on a warranty that the insured would not travel■ outside the .United States a plea of cancellation because the insured had gone beyond , its borders would be perfectly good and there could not well be any suggestion of rescission. So, too, if the insured liad died and an action .had been brought by the beneficiaries under the policy, the present answer would have been perfectly good without any plea of tender back of the premium paid.
- It is true the plaintiff has brought the defendant into equity, but that does not prevent defendant from pleading a breach of warranty or setting up any legál defense it may have. It can stand on its legal rights if it has any. Termination of a continuing contract for breach of warranty which makes it void, is quite different from coming into court and asking to be relieved from a contract because fraud induced its execution. The defendant does not ask to be relieved. It simply alleges it terminated the policy because of. its discovery of a.breach of warranty which made it void and stands on its legal right so to do, and I see no- reason for saying it must plead tender of the premium which the plaintiff paid.
I think the demurrer was improperly sustained and vote to reverse the interlocutory judgment.
Judgment, affirmed, with costs, with leave to defendant to amend on payment with cost.