As used in the law relating to fraud, requiring that false representations, in order to be actionable must relate to "material facts," means a fact or facts necessarily hav

of the negotiation. Champion Funding & Foundry Co. v. Heskett, 102 S. W. 1050, 1054, 125 Mo. App. 516.

89 Ark. 9.

MATERIAL FACT

A fact is "material" to the risk assumed by an underwriter when it would have caused him to have refused the risk if known or would have been a reason for his demanding a higher premium. Where an affidavit of defense, in an action on a policy of insurance issued by a company which insured married women, alleged that the fact that insured was pregnant was material but did not allege in what way it was material nor that the insurer would have refused the risk or increased the premium if that fact had been known, the affidavit was insufficient. McCaffrey v. Knights & Ladies of Columbia, 63 Atl. 189, 213 Pa. 609.

The law of England, as of other countries, requires an applicant for marine insurance to make a full disclosure of all the material facts known to him at the time af fecting the risk which the insurer is to assume, but he is not required to disclose facts unknown to him at the time, nor immaterial facts, nor matters of common and general knowledge among those engaged in the insurance business at the place of the contract. "Material facts" are only such as are likely to influence the mind of a reasonable underwriter in deciding whether to accept the risk and in fixing the rate of premium to be charged, and the question of materiality is one of fact to be decided upon consideration of all the circumstances and conditions affecting the transaction. Northwestern S. S. Co. v. Maritime Ins. Co., 161 Fed. 166, 178.

The existence of an unfiled chattel mortgage on a stock of goods as security for a guaranty of a debt of the mortgagor is a fact material to the risk in a contract to insure goods, though the instrument contains a clause that it shall not be valid until filed. Where an unfiled chattel mortgage on the stock of goods exists, and the applicant for insurance, when asked whether the property is mortgaged or incumbered, answers in the negative, it is a concealment of a material fact, within a policy providing that it shall be void if insured had concealed or misrepresented any material fact concerning the insurance, and avoids the contract. Madsen v.

Under the rule that the jury may reject the whole or any part of a witness' testimony if they believe such witness has sworn falsely as to any material fact, by the term "material fact" is meant any fact which tends to prove or disprove the defendant's guilt or innocence. State v. McCarver, 92 S. W. 684, 687, 194 Mo. 717.

During a trial to a jury the legal sufficiency of the "material facts"-i. e., the facts constituting a part of plaintiff's case as he presents it-put in issue by allegations of the complaint and denials of the answer, cannot be questioned. Elie v. C. Cowles & Co., 73 Atl. 258, 259, 82 Conn. 236.

Where a person conducting a business requiring a license, but who is not alleged to be the owner of one, pays money to a person not shown to have any official relation to the bureau of licenses of New York, or to any person employed in such bureau, such fact is not "material" within Pen. Code N. Y. § 96, relating to perjury on an investigation under Greater New York Charter, § 119 (Laws 1901, p. 46, c. 466), by the commissioner of accounts, into the methods of the office of said bureau. People v. Tillman, 118 N. Y. Supp. 442, 63 Misc. Rep. 461.

MATERIAL FRAUD

The term "material," in the phrase "that fraud to be actionable must be material," means that without the fraud the transaction would not have been made, and means a statement of an alleged existing fact or facts, and not merely of some future or contingent event, or an expression of opinion, and the person to whom the statement is made must rely on its truth and must have the right as a person of ordinary business prudence to rely on it. Boulden v. Stilwell, 60 Atl. 609, 610, 100 Md. 543, 1 L. R. A. (N. S.) 258.

MATERIAL MATTER

Only contradictory statements as to "material matters" can be used for the purpose of impeachment, and by "material matters" are meant matters competent to prove one side or the other of the issue, and admissible for that purpose. Luke v. Cannon, 62 S. E. 110, 112, 4 Ga. App. 538.

False testimony by defendant, in a civil suit in support of a set-off for money loaned, that no negotiable note was given or accepted

A statement that insured had never had cancer is a statement material to the risk, and its falsity a good defense to the policy. Brisou v. Metropolitan Life Ins. Co. (Ky.) 115 S. W. 785, 786.

"Representations" of the seller of a cash register that the same will save the expense of a bookkeeper, and that books can be kept thereupon in half the time that the books could otherwise be kept, and that the machine can be operated by any one of ordinary intelligence, are not "representations as to material facts," and, though false, are not ground for a rescission by the buyer of the contract of sale. National Cash Register Co. v. Townsend Grocery Store, 50 S. E. 306, 307, 137 N. C. 652, 50 S. E. 306, 70 L. R. A. 349.

MATERIAL RIGHT

The right of a defendant to challenge peremptorily is a "material right." Betts v. United States, 132 Fed. 228, 229, 235, 65

C. C. A. 452.

MATERIAL VARIANCE

A variance is not "material" unless it is so misleading as to prejudice the party in maintaining his action or defense on the merits. Ostrom v. Woodbury, 122 Pac. 825, 827.

A complaint by an injured brakeman alleged that the engineer negligently, and without any warning, applied the steam, and violently jerked the slack out of the train, causing plaintiff to miss his footing, whereby he was thrown between the cars, etc., and that when the engineer started the train he was working on top in the act of stepping from one car to another, and that as the train was started and the cars were jerked apart he fell between them and was injured. Held, that there was no variance between the complaint and evidence that the enginer started the train at a high rate of speed, and that if there was it was immaterial, in view of Revisal 1905, § 515, providing no variance shall be deemed material unless the adverse

party is actually misled to his prejudice in suing on the merits. Coore v. Seaboard Air Line Ry. Co., 68 S. E. 210, 152 N. C. 702.

The variance between an indictment charging the forgery of a deed of trust set out according to its tenor, and the deed of trust offered in evidence, consisting of clerical inaccuracies, such as describing the land in one instrument as "eighty (80) acres" and in the other as "80 acres," the use of the words "party of the first part" in one instrument and the words "first party" in the other, and the word "fails" in one instrument and the word "failed" in the other, is immaterial within Rev. St. 1909, § 5114, providing that variance between the indictment and the evidence in specified cases shall not be ground for an acquittal unless the court shall 3 WDS.& P.2D SER.-21

The variance between an information alleging a sale to "F. H. Leslie" and the evidence of a sale to "Frank W. Leslie" is not material or prejudicial, within Comp. St. variance, unless found by the court to be "ma1910, § 6166, forbidding an acquittal for a terial" to the merits or "prejudicial" to defendant. Eggart v. State, 116 Pac. 454, 455, 19 Wyo. 285.

Plaintiff alleged that while she was a passenger in defendant's cab defendant negligently so managed its team and cab that the team took fright and ran with the cab, and, on account thereof, she was thrown down in the cab, and was injured in her ankle, back, etc.

The answer was a general denial, with the piea of contributory negli gence. Plaintiff introduced evidence without objection showing that, after she entered the cab, the team became frightened and started to run with the cab, but the testimony did not show whether the injury was caused by being thrown from her seat to the floor of the cab or while trying to get out of the cab while the team was running away, her testimony showing that she made an attempt to get out of the cab while the team was running, and that her injury might have been caused thereby. Rev. St 1899, § 656 (Ann. St. 1906, p. 674), provides that, when the variance between pleading and the proof is not material, the court may direct the facts to be found according to the evidence, or may order

an immediate amendment without costs.

Held, that the variance between the allegation that she was injured by being thrown down in the cab and the evidence that she was injured while attempting to get out of the cab was immaterial, and that defendant by failing to object to the testimony waived his objection to it, so that a charge forbidding recovery if plaintiff was injured while attempting to get out of the cab while the team was running away was error. Daley v. Redburn, 127 S. W. 924, 925, 143 Mo. App. 653.

In an action against a carrier to recover for the death of one alleged to have been a passenger, there can be no recovery on the ground of ordinary negligence of defendant in injuring a person not a passenger. Where a complaint alleged that plaintiff's decedent at the time of his negligent killing by defendant carrier was in the discharge of his duties as a railway mail clerk, a recovery may be had, though the evidence establishes that decedent at the time of the fatal accident was not in the discharge of his duties as a mail clerk, but was a gratuitous passenger, as a carrier owes the same degree of care in the transportation of a gratuitous passenger as in the case of a passenger for hire; and hence the variance was not ma. terial within the meaning of Comp. Laws 1907, §§ 3001-3003, providing that no vari

ance between the allegations and the proof is to be deemed material unless it has actually misled the adverse party to his prejudice. Schuyler v. Southern Pac. Co., 109 Pac. 458, 465, 37 Utah, 581.

The variance between a complaint setting forth a cause of action on an open, current, and mutual account, and the proof of a stated account, was immaterial within Code Civ. Proc. § 469, providing that no variance between the pleading and the proof shall be deemed material unless it has actually mis led the adverse party, where defendant was not misled as disclosed by his answer in denying the existence of the account made a part of the complaint, but merely tendering an issue on the question whether the account was mutual, open, and current between him self and plaintiff's assignor. Culver v. New. hart, 123 Pac. 975, 978, 18 Cal. App. 614.

MATERIALITY

The test of "materiality" is whether the statement made could have influenced the tribunal upon the question at issue before it. Any statements made in a judicial proceeding for the purpose of affecting the decision, and upon which the judge acts, are material. McLaren v. State, 62 S. E. 138, 139, 4 Ga. App. 643 (citing 6 Words and Phrases, pp. 5309, 5310).

MATERIALLY

"Materially" is defined in Black's Law Dictionary as "immediately; more or less necessary; having influence or effect; going to the merits; having to do with matter as distinguished from form.” An instruction that one may recover for injury, the proximate result of the negligence of another, providing he himself did not contribute thereto materially by negligence, is not erroneous because of the use of the word "materially." Indianapolis & M. Rapid Transit Co. v. Edwards, 74 N. E. 533, 534, 36 Ind. App. 202.

A court may at any time correct a judgment as to immaterial matters occasioned by inadvertence; but this right does not exist where such amendment materially affects the rights of litigants objecting thereto, using the word "materially" to mean affecting the rights of objecting litigants. Calkins v. Monroe, 119 Pac. 680, 17 Cal. App. 324.

In instructing upon a city's liability for damage to property by the overflow of a stream by changing the grade of a street, it is usual to instruct that the volume of water must have been "materially and unduly" increased; "unduly" meaning disproportionately, and not being synonymous with "materially." Walters v. City of Marshalltown, 120 N. W. 1046, 1048, 145 Iowa, 457, 26 L. R. A. (N. S.) 199.

The error, if any, in the admission of a deposition, on the ground that the party offering it had failed to show the non residence of

the witness, was harmless, where his testimony only tended to prove a fact otherwise established by competent and uncontroverted evidence, and the error did not "materially" affect the merits of the action, and the court could not, under Rev. St. 1899, § 865, reverse the judgment on that ground. O'Keefe v. United Rys. Co. of St. Louis, 101 S. W. 1144, 1147, 124 Mo. App. 613.

MATERIALLY FALSE STATEMENT

A bankrupt, who obtained credit for additional goods on a materially false statement of his financial condition, and who subsequently to the purchase of the additional goods on credit made payments on earlier purchases, so that the amount owed by him at the time he went into bankruptcy was less than the amount of his indebtedness at the time of the making of the false statement, was guilty of making a materially false statement, defeating his right to a discharge in bankruptcy, under Bankruptcy Act July 1, 1898, c. 541, § 14b, as amended by Act Feb. 5, 1903, c. 487, § 4. In re Arenson, 195 Fed. 609, 610.

A "materially false statement," within the meaning of Bankr. Act 1898, § 14b (3) (Act July 1, 1898, c. 541, 30 Stat. 550, as amended by Act Feb. 5, 1903, c. 487, § 4, 32 Stat. 797), which makes it a ground for denying a discharge to a bankrupt that he has obtained property on credit from any person on a materially false statement in writing made to such person for the purpose of obtaining such property on credit, must have been made with knowledge that it was untrue and with fraudulent intent; and a statement made by one partner from facts stated to him by his copartner, who was to furnish the entire capital for the business, although in fact untrue, will not defeat the right of the partner making it to a discharge, where the untruthfulness of the material statements so made was not known to him. W. S. Peck Co. v. Lowenbein, 178 Fed. 178, 180, 101 C. C. A. 498.

The term "materially false statements in writing," as used in Bankr. Act July 1, 1898, C. 541, § 14b, subd. 3, as amended by Act Feb. 5, 1903, c. 487, § 4, which bars a discharge where the bankrupt obtained property on credit from any person on "a materially false statement in writing" made for the purpose of obtaining such property on credit, implies a statement knowingly false or made recklessly without an honest belief in its truth, and with a purpose to mislead or deceive and thereby obtain property upon credit from the person to whom it is made. Drafts drawn by the assistant cashier of a bankrupt, operating a private bank, after he was insolvent and without his knowledge, and which were not paid in accord with the bankrupt's custom to exchange drafts with another bank on daily settlements, do not constitute a "materially" false statement in writing witb