(dissenting.) As the majority opinion is made up to turn upon failure of testimony regarding the untruthfulness of the representations made by the assured with reference to his annual income, I am impelled to dissent from the conclusion reached. I am inclined to agree with the holding that the statement was not a warranty, but a statement or representation made by the assured, material to the issuance of Ihe policy, and that, if made by the assured with knowledge of its falsity, and with intent to deceive, it avoids the policy.
Upon the question as to materiality of the statements, I do not wish to be foreclosed, and I do not understand that the majority make any pronouncement upon that point. It may be that defendant has not sufficiently shown the materiality of the statement, in that it failed to do more than prove its statements and instructions to its agents. I have not had time to sufficiently investigate that point; and, as the majority do not decide it, but place the decision squarely upon the proposition of failure of proof, — that is, that the statement was untrue when made, or was known by the assured to be untrue when he made it, — I go directly to that question.
It was manifestly impossible for the defendant to prove *227by direct and positive testimony the amount of the assured’s income, unless, perchance, he had made some admission during his lifetime; but that, itself, could not be said to be conclusive, for it would be nothing more than an admission subject to explanation. Defendant did the next best thing. It produced all th„e testimony available (the assured being deceased) as to the amount of his annual income. It called all who had any knowledge on the subject, and they testified to facts which, it seems to me, were sufficient to take the case to the jury upon the question of the amount of the assured’s annual income.
' If it be found that this was misrepresented, then the next question is the knowledge of the assured as to the falsity of the statement. The statement was not only as if it were of his own knowledge, but it was of a fact 'of which he, of all others, knew, to wit: Ms annual income. Having made a direct statement of a fact as of his own knowledge, a statement regarding a matter of which he was personally cognizant, — a jury might find from the fact that it was untrue; that the assured had knowledge of its falsity. This rule is everywhere affirmed. See Gate City Land Co. v. Heilman, 80 Iowa. 477; Goring v. Fitzgerald, 105 Iowa 507; Cox Shoe Co. v. Adams, 105 Iowa 402; Hubbard v. Weare, 79 Iowa 678.
These two elements being shown, the intent to deceive may be inferred. See Boddy v. Henry, 126 Iowa 31; Endsley v. Johns, (Ill.) 12 N. E. 247; Cole v. Cassidy, 138 Mass. 437; Arnold v. Teel, (Mass.) 64 N. E. 413; Haven v. Neal, (Minn.) 45 N. W. 612.
It is agreed, as I understand it, that there is sufficient to show that defendant acted upon the statement, and was induced thereby to issue its policy.
I may say, in conclusion, that, under the holding of Nelson v. Nederland Life Ins. Co., 110 Iowa 600, the parties to this insurance contract made the statements of the *228assured material to the issuance of the policy. I am clearly of opinion that the majority are in error in holding that there is no testimony sufficient to take the case to a jury on the question of false and fraudulent representations made by the assured. This is the reason for my dissent.