If this were an action on the policy, it could not be maintained on the evidence appearing in the exceptions. McCoy v. Metropolitan Ins. Co. 133 Mass. 82.
*391If the plaintiff, in collusion with Bannigan, the defendant’s agent, intended to cheat the company or practise a fraud upon it, then the money she has paid the company was paid in pursuance of this fraudulent intention, and she cannot recover it back; but if she was innocent of any fraudulent intent, and was deceived by Bannigan and induced by his fraudulent representations to make the application, then she could rescind the contract of insurance when she discovered the fraud, and recover back the amount of the premiums which she had paid. Heddev. Griffin, 136 Mass. 229. The position of the defendant is, that it could avoid the policy, but that the plaintiff could not, and that, as the plaintiff after she found out that she could not enforce the policy paid no more premiums, but demanded back the amount of the premiums she had paid, the policy has become void by reason of the non-payment of the premium, and that therefore no action can be maintained to recover back the money paid. Under the rules of the company to which the policy was subject, the policy was void or voidable from the beginning, because the husband of the plaintiff did not sign the examination form on the back of the application, or know of or consent to the insurance. The evidence to prove this was properly admitted. The difficulty is in dealing with the instructions requested, and with the charge of the presiding justice. The first four instructions ought to have been given, if they be taken to mean that the plaintiff could not recover if she intended to defraud the company or knowingly participated in the fraudulent acts of Bannigan. The court declined to give these instructions, to which the defendant excepted, and also excepted to a portion of the charge to the jury. This portion of the charge relates to the effect of the misrepresentations of the agent, and to the plaintiff’s right to rescind the contract, if the plaintiff was induced to make it by these misrepresentations. The instructions given upon the effect of the fact that she concealed what she had done from her husband are correct, if she was innocent of any intention to evade the rules of the company, and thus to obtain a policy from it which she knew it would not issue if it had known that her husband had not signed his name on the back of the application, and had not consented to the insurance. But it does not appear by the exceptions that any instructions *392were given upon the effect of her participation in Bannigan’s fraud, if she did participate in it. There are some indications in the part of the charge contained in the exceptions that the presiding justice regarded it as plain that, if she knowingly-participated in Bannigan’s fraud, she could not recover, and that the instructions set out in the exceptions were predicated upon the assumption that the jury should find that she was innocent of any fraudulent intent against the company, and was deceived and misled by the misrepresentations, of its agent. It was, we think, competent for the jury, on the evidence, to find either that she was or was not innocent of any attempt to evade the rules of the company, and to procure from it a contract which she knew it would not have made if it had known that her husband had not signed the examination form on the back of the application, and had not consented to the insurance. Upon the whole, as it does not appear that the presiding justice gave any instructions upon the subject of the first four requests of the defendant, and as these were absolutely denied, we think that the exceptions should be sustained. So ordered.