EARL, J.
The application for membership taken by the defendant's agent from O'Brien was signed by his mark. He did not read, and was not able to read it, and it was not read to him; and there was evidence upon the trial that he gave correct answers to all the questions contained in the application, but that his answers were incorrectly written therein by the agent, without his knowledge or consent. There was also evidence given on the part of the defendant that the answers of O'Brien to the questions put to him were correctly written just as he gave them, and the trial judge submitted to the jury this evidence on both sides. He charged them that if O'Brien did not truly answer the questions the plaintiff could not recover; but that if he answered them truly and the agent of the defendant did not write them in the application as they were given, the defendant was responsible for the mistake or fraud of its agent, and that in that event the untrue answers would furnish no defense to the action. The jury having found a verdict for the plaintiff we must assume that upon sufficient evidence they found that O'Brien gave true and honest answers to the questions put to him, and that the untrue answers contained in the application were therein inserted by the agent of the defendant by fraud or mistake. That upon such facts the defendant has failed to sustain its defense of breach of warranty, and fraud is abundantly established by the authorities in this state. ( Grattan v. Met. Life Ins. Co. of New York, 80 N.Y. 281; 92 id. 274; Miller v. Phœnix Mutual Life Ins. Co., 107 id. 292; Bennett v. Agricultural Ins. Co. of Watertown, 106 id. 243.) These authorities hold that where the insured gives true answers to the questions put to him as the basis of insurance, and an authorized agent of the insurance company inserts in the application false answers, the company and not the insured is responsible for their falsity, and that their falsity is no defense to an action upon the policy.
There is no doubt that the complaint in this action sets forth an action at law to recover a money demand. The defendant contends that if the plaintiff is entitled to maintain any action, it is only an action in equity to compel it to make and collect an assessment for the payment of plaintiff's claim, and that, therefore, the complaint should have been dismissed. By its certificate and the conditions annexed thereto, and under its by-laws, the defendant agreed to do something, and that was to make an assessment upon its members for a death claim and to pay the proceeds not exceeding the stipulated amount. It is undoubtedly true that a suit in equity could have been maintained upon the facts of this case to compel the defendant to make and collect an assessment and to pay to the plaintiff the proceeds thereof. Such a suit, however, would have required complicated and tedious proceedings, and the plaintiff was not obliged to resort to it. When the defendant refused to make an assessment it violated its contract, and became liable to the plaintiff for the damages caused by such violation; and such damages like all damages for breaches of contracts can be recovered by an action at law. So it has been held in many analogous cases. ( Peck v. Eq. Accident Assn., 52 Hun, 255; Freeman v. Nat. Benefit Soc., 42 id. 252; Cumming v. Mayor, etc., 11 Paige, 596, 602; Fulmer v. U.M. Assn. 12 N YS.R. 347; Fitzgerald v. E.R.F.L. Assn., 24 id. 493; Lueder v. H.L., etc., Ins. Co., 12 Fed. Rep. 465; Earnshaw v. S.M. Aid Soc., 68 Md. 465; Jackson v. Northwestern, etc., Assn., 73 Wis. 507; Burland v. N.M.B. Assn., 47 Mich. 424; Taylor v. N.T.R. Union, 94 Mo. 35; K.P. Union v. Whitt, 36 Kan. 760; Life Assn. v. Lemke, 40 id. 142; M.A. Assn. v. Riddle, 91 Ind. 84.)
Our attention is called by the learned counsel for the defendant to certain cases which uphold his contention. But those cited above, we think, stand upon the best reason.
While upon the trial it was claimed, on behalf of the defendant, that this was an action at law, and that such an action could not be maintained against it, no claim was then made that the facts stated in the complaint were not sufficient for the maintenance of an action at law if such an action was maintainable. The complaint is open to some criticism; but its alleged defects worked no harm to the defendant, and its objections to it come too late here.
The plaintiff was, therefore, entitled to recover something, and what was the measure of his damages? Just what he lost by the defendant's breach of its contract. He was entitled to have an assessment made and collected, and the proceeds thereof paid to him. What was the contract worth to him, and what would the assessment have produced for him? It was incumbent upon the plaintiff to give evidence which would enable the jury to answer these questions.
As the assessment was not made, it was impossible for the plaintiff to show accurately or precisely what such an assessment would have produced. He was bound to give such evidence as the nature of the case permitted bearing upon the matter of damages, and legitimately tending to prove their amount. We have carefully read the evidence, and we think there was sufficient to justify the verdict of the jury.
These views dispose of the most material exceptions bearing upon the general merits of the case taken at the trial. There were, however, many exceptions taken on behalf of the defendant, both to the reception and exclusion of evidence having relation to the question of damages, which are also complained of. We have carefully scrutinized these exceptions, and we do not believe that they point out any material error to the prejudice of the defendant.
Our conclusion, therefore, is that the judgment should be affirmed, with costs.
All concur.
Judgment affirmed.
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