and discovered the true location and condition and value of the land, and the falseness of said statements and representations of defendant, and prior to the commencement of this action, she rescinded said transaction, and every part thereof, and so notified defendant, and tendered and offered to return to him his bond for the deed, and demanded the repayment to her of the said sum of $550, and interest from May 6, 1893, at the rate of 8 per cent. per annum, but defendant refused to receive said bond for a deed, or to repay plaintiff said sum of $550, with interest, or any part thereof; that, by reason of the premises, defendant is justly indebted to plaintiff in the sum of $550, and interest thereon from said last-mentioned date at the rate of 8 per cent. per annum. A general demurrer to this complaint having been overruled, the defendant answered, denying all the allegations of the complaint and affirmatively alleging that he was the owner in fee of the land described in the complaint, and that it was of the value of over $1,600; that the husband of plaintiff was her agent, and as such purchased the land of him for $1,500, after he had examined the same and fully informed himself as to its location, condition, and value; that, by the terms of the contract, $550 of the purchase price was to be paid in cash, and the balance on or before two years from date; that the land is situated about 91⁄2 miles from Portland, on what is known as the "Cornell Road," and is well improved, cleared, and ready for use; that the certificate of deposit referred to in the complaint was delivered to him as part payment on the purchase price of said land; and that plaintiff purchased the land well knowing all the facts and circumstances concerning it, and it was sold to her at her earnest solicitation and request. The allegations of the answer were denied by the reply, and, upon the issues thus made, the cause was tried by a jury, which returned a general verdict in favor of plaintiff for the amount claimed, and, under the direction of the court, a special verdict, finding (1) that defendant employed duress towards the plaintiff, consisting of persistence and undue persuasion, but no threats; (2) that defendant made false representations to plaintiff concerning the distance from Portland to the property in question, that it was free from incumbrances, and concerning the value of buildings and improvements, and that he knew these representations to be false, and made them with an intent to deceive the plaintiff, and that she, relying thereon in a measure, although not competent to thoroughly understand or comprehend, was induced to make the purchase. A motion for a new trial, and for a judgment notwithstanding the general verdict, being overruled. judgment was entered for plaintiff, and defendant appeals.

A. F. Sears, Jr., for appellant. James F. Watson, for respondent.

BEAN, C. J. (after stating the facts). 1. It is contended by the defendant that the complaint is insufficient to charge fraud because it does not aver in direct terms that the alleged fraudulent representations were made by defendant with an intent to deceive the plaintiff. To support this contention, reliance is had upon the case of Rolfes v. Russel, 5 Or. 400. This was an action for deceit to recover damages for false representations as to the character, quality, and boundaries of a certain tract of land sold by the defendant to the plaintiff. The complaint did not allege that defendant knew the representations alleged to have been made by him to be false, and for this reason the court very properly held that a cause of action was not stated, and that the complaint was insufficient to support the verdict. In the course of the opinion, however, it was said that, "the gist of this class of actions being fraud, in order to maintain them it is necessary to aver and prove (1) that the representations made were false; (2) that defendants knew them to be false; (3) that they were made with an intent to defraud; and (4) that plaintiff, relying upon the representations, was induced to enter into the contract." It is upon this portion of the opinion that the defendant relies for a reversal of the case at bar. When the language quoted is considered in connection with the remainder of the opinion and the question actually before the court for determination, it is apparent that it was not the intention to hold that in all cases a complaint in an action for deceit would be insufficient to sustain a verdict unless it contained an affirmative allegation of an intent to deceive. Indeed, there is a very strong implication to the contrary; for, after stating that the only allegation on the subject of false representations in the complaint before the court was that they "are and were wholly false," and that plaintiff, relying thereon, was induced to make the purchase, Mr. Justice Prim says: "Thus, it will be seen that no 'scienter' is alleged in the complaint, nor is there any other fact alleged which is equivalent to such an allegation"; thus implying that the complaint might be sufficient without a positive allegation of the scienter. An intent to deceive is of course a necessary ingredient of fraud, and a false representation does not at law amount to a fraud unless it is made with a fraudulent intent; but, as stated by Mr. Kerr, "there is a fraudulent intent if a man, either with the view of benefiting himself or misleading another into a course of action which may be injurious to him, makes a representation which he knows to be false, or which he does not believe to be true." Kerr, Fraud & M. 55. Now, in this case it appears from the complaint that defendant made representations concerning a material matter, which he knew to be false, for the purpose of inducing the plaintiff, and which

did induce her, to enter into a contract which proved injurious to her; and hence it must necessarily be implied, after a verdict at least, that such representations were made with an intent to deceive. In fact, it is difficult to understand how an allegation that defendant made the false representations with intent to deceive the plaintiff could have made his intention any more apparent than now appears from the complaint.

2. The correctness of the instructions given by the court as to what would be sufficient duress and coercion to entitle plaintiff to recover is also questioned. A reference to the testimony is necessary to a proper understanding of this question. The plaintiff was a witness in her own behalf, and, after testifying that she arrived at Portland exhausted from her journey, and ill as a result of an accident at Seattle the second night prior to her arrival, which almost resulted in her asphyxiation, gives the following account of what occurred between her and the defendant in reference to the sale and purchase of the land in question: "My husband [who had been in Oregon and Washington about a year before plaintiff arrived] was on the depot in Portland, and he brought us to Mr. Rometsch's. I never seen him before. My husband told him it was his family, and he showed us a room where we got rested a little while, until we got breakfast. I told him, at the time, I was sick, and pretty near died last night, and I told Mr. Rometsch after breakfast. After we got back into the bedroom, then my husband told me Mr. Rometsch had a place to sell, of ten acres, and I asked him how much he wanted, and he said $1,500, and I thought he might get the place cheaper. I said, 'I don't want it now.' My husband didn't have any money himself. The money what I had was mine. I had a place there of my own. My husband had forty acres there in Michigan, and sold his place before he came, and took his money along; and, after his money was gone, I had twenty acres, and I sold mine, and brought my money along,-$700. I told my husband I couldn't buy this place; I didn't have money enough. Then my husband came back in the room, and comes in together with him a man, I found out his name was Dietz,and he caused me trouble because I didn't want this place. My husband said his name was Dietz, and he abused me over it. At night Rometsch called me into the room, and then he talked at night about the place, and he said he was going to take me out to-morrow morning to see the place. I said I didn't want to see the place; I hadn't money enough. And then I go back into the bedroom,-I went again into my bedroom,and then he comes back there at night, the same night, and I said I didn't want to see him; I didn't want to buy. And in the morning I was early up, and he comes up, and said they are ready to take me out to see the place. My husband goes back on me, so I was just

left with the children to keep off Rometsch; and, when he goes away from the room, we go to breakfast, and it was then about nine o'clock. This money check I have in my breast here, and then I gave the check away to my boy, and told him to keep the check for me, and he keeps it for an hour, and Rometsch keeps on, and I told him to let me alone. Then Rometsch goes and make the paper out to sell me the place for $1,450. I told him I couldn't buy it, but he goes and makes the paper, and says he give me a good deal. Then he went away. Then I got so very nervous, and I sent my two little children after him to tell Rometsch I didn't want no paper. The children found him,

and told him on the street: 'Mother wants no paper, no writing, to-day. She gets crazy';

and Rometsch goes and makes the paper, and comes back with the paper, and I don't know when I sign the check off. The children told me I sign the check off, and he brought down ink into the bedroom. I don't remember just what the children said, but I couldn't say no, I was so nervous. Don't remember signing the check. I don't know only what the children just told me,-he make me sign the check off. That was the next morning after I got there. He said to the children he would bring a German man to explain to me, but he didn't. He said, now, I and the children get ready, and then he just talked so fast as he could, and nobody told me,-just that the team was ready, a long time; and when I get out in the fresh air, and I feel better, was the first time I noticed my money was gone. I got to Portland Friday morning, 7 o'clock, and he commenced this thing just as soon as we got there, the same morning. He came into my room Saturday morning about 6 o'clock,-it was early, and talked the matter over. It was about 10 o'clock that he got the money and gave us breakfast. He then started us right out. I got about half way, took sick, and had to stop. I was sick there Sunday morning, and my two little children stayed there, and they couldn't find out the reason of the matter; and the children told the people there that he took my money away, and 'She don't want him to'; and the people ask me over, and he read this paper he gave me, and said, 'You have no deed, but a bond for a deed, and you have to pay for this place.' He didn't tell me there was any mortgage on the place. Went on out to the place Sunday afternoon; the people taken me along to this place. Soon after, I got a little better, and then I send my son back to tell Rometsch, if he don't give my money back, I will sue him; it was a swindle; and then I say I do this, but Rometsch don't come. My eldest daughter I sent in there, and the first time he say he will bring me or pay me,-he will pay $50 more, so he don't lose no money, and I lose no money on the place. and then I sue him; you don't have to do

And he don't do it, and he told me, 'No; nothing on the place;

you don't have to work on the place."" On cross-examination the witness testified that the defendant gave the bond for a deed to her son, and not to her, and that the first she knew of having indorsed and delivered her check to the defendant was when the children told her on the road out to the place. There was other evidence on the trial, corroborating the plaintiff in important particulars.

With this evidence before it, the court instructed the jury that "it makes no difference what means were employed by defendant, provided they were calculated to, and did, have the effect upon the plaintiff, in her then condition and surroundings, known to defendant, to constrain or coerce her, against her will, to formally make said averred agreement of purchase and part payment. Said averred agreement of purchase and part payment, if so procured by defendant, would be void, and not binding on the plaintiff; and, if you believe this, nothing but a subsequent voluntary ratification of said averred purchase and part payment would prevent her recovering in this action." And, upon the request of defendant's counsel to define "duress," the court lid so, as follows: "Duress consists in restraint or imprisonment or intimidation, or any of those. In this case it is claimed that the defendant practiced or used duress, coercion, and intimidation. The word 'duress,' standing alone, means any intimidation or restraint or imprisonment; any restraint in her action; anything tending to restrain her free and voluntary act,-to restrain her from acting freely and voluntarily in the matter." Under the testimony, the instructions, as given, were clearly correct. If the defendant, taking advantage of the impaired mental and physical condition of the plaintiff, did induce her to make a pretended contract and part with her money against her will, under the circumstances indicated by her testimony, she could, it seems to us, repudiate the contract, and recover the money back, even if the evidence did fall short of the technical definition of "duress." Upon this branch of the case the only question before the trial court was whether the plaintiff voluntarily made the contract in question, or whether the defendant, taking advantage of her helpless condition, induced her to make a pretended contract with him, which she would not have made had she been left to act according to her own free will. To this question the evidence and instructions of the court were directed, and, although the court's definition of "duress" is not technically in accordance with the definition to be found in the books, there was no material error in such instructions. Parmentier v. Pater, 13 Or. 121, 9 Pac. 59.

3. It is also claimed that the court erred in instructing the jury to find an express appointment by the plaintiff of her husband as her agent, and that he actually examined

the land. But we do not understand that the court so instructed. So far as we can ascertain, the court did not anywhere in its charge instruct the jury as to what would constitute or be evidence sufficient to show an appointment by the plaintiff of her husband as her agent to purchase the land in question from the defendant. It did charge that it was not claimed that defendant made any fraudulent representations to the husband; and if the jury found that plaintiff had appointed him her agent, and as such agent he transacted the business, they could not find for her on that branch of the case. If the instruction was not clear as to how the agency might be shown, it was because it was ambiguous or defective in fullness, and counsel should have requested an instruction on that question; and, not having done so, error cannot be assigned upon the instruction as given. Kearney v. Snodgrass, 12 Or. 317, 7 Pac. 309. The reference to the examination of the land by the husband was no doubt prompted by the allegations of the answer, and probably by some evidence on the trial. It was not, however, to the effect, as claimed, that before the jury could find for the defendant, if they believed the husband made the contract as the agent of plaintiff, they must find that he actually examined the land before he bought it, but, as we understand it, that if he was an agent authorized to make the contract, and did so make it, they must find for the defendant, because it was not claimed or contended that he made any false or fraudulent representations to the husband which induced him to enter into the contract for and on behalf of the plaintiff.

4. The instruction that the burden of proof is on the defendant to establish any ratification of the averred agreement and part payment by the plaintiff is, we think, certainly correct. If the plaintiff was induced to make the contract by the false and fraudulent representations of the defendant, and he claims that she afterwards, with full knowledge of the facts, ratified it, it seems clear that the burden of proof is upon him to show such ratification. Finding no error in the record, the judgment of the court below is affirmed.

(5 Wyo. 126) MCFARLAND ▾. RAILWAY OFFICIALS' & EMPLOYES' ACC. ASS'N OF INDIANAPOLIS.1 (Supreme Court of Wyoming. Nov. 14, 1894.) ACTION ON INSURANCE POLICY-LIMITATIONS.

The limitation in a policy of insurance against death resulting from an accident, indicated by a clause that an action thereon must be brought "within one year from the date of the happening of the alleged injury," begins to run at the death of the insured, and not at the time at which the right of action accrues.

Reserved case from district court, Laramie county; Richard H. Scott, Judge.

1 Rehearing denied. See 38 Pac. 677.

Action by Mary E. McFarland against the Railway Officials' & Employés' Accident Association of Indianapolis, Ind., to recover on a policy of insurance on the life of her deceased husband, William W. McFarland, in which she was named as beneficiary. The cause appears on the reservation by the judge of the lower court of difficult and important questions arising from a stipulation in the policy that no suit could be maintained thereon unless brought within one year from the happening of the injury. Judgment directed for defendant.

A. C. Campbell and R. W. Breckons, for plaintiff. Lacey & Vandevanter, for defendant.

CONAWAY, J. This action was brought on a certificate of membership of the defendant association, in the nature of a policy of accident and life insurance, whereby defendant insured the life of William W. McFarland for 12 months, commencing June 10, 1891, against death by external, violent, and accidental means, in the sum of $2,000, payable to plaintiff, wife of the insured, should death result within 90 days from the time of the injury. On May 1, 1892, the insured received injuries such as he was insured against by virtue of the certificate or policy mentioned, from which injuries he died the same day. Deceased was also insured in the same instrument against injuries not resulting in death, but this branch of the subject it is not necessary to consider. The certificate contains the following provision: "No suit in law or equity shall be maintained on this certificate, on any accidental injury or death, unless such suit be brought within one year from the date of the happening of the alleged injury; and failure to bring suit within one year shall be taken and deemed as conclusive evidence against the validity of such claim, and of forfeiture of all right under this certificate." Suit was not brought on this policy or certificate within 1 year from the date of the happening of the injury to and the death of the insured, but was brought a little more than 13 months after. Plaintiff admits that it was competent for the parties to limit the time for bringing suit by a provision inserted in the certificate by the association, and accepted by the insured; but plaintiff insists that under the conditions of the certificate the time of the limitation should not run "from the date of the happening of the alleged injury," but should run from the time the cause of action accrued, or, in other words, from the time when the company might be sued. This could not be done until the expiration of 90 days after the claimant had furnished verified affirmative proof in writing of the injury, which proof was required to be furnished within 7 months from the happening of such injury.

It appears that proofs of death were furnished by plaintiff on August 24, 1892,-lessthan four months after the injury to and death of the insured. It further appears that defendant finally denied its liability, and refused to pay plaintiff's claim, on September 1, 1892,-just four months after such death and injury. By written stipulation of the parties filed in the cause, it is, in effect, agreed that, if the court should be of the opinion that the suit is not barred by the limitation contained in the certificate, judgment shall go in favor of the plaintiff; otherwise, in favor of the defendant. Under these facts and conditions, the district court finds that three difficult and important questions arise, upon which it reserves a decision, and sends the cause to this court for its decision of the question, under the statute authorizing this course of procedure. The questions so reserved are these: "(1) Under the allegations contained in the pleadings herein, was this action commenced in time, or was the claim of the plaintiff barred at the commencement of this action by reason of the provisions of the policy sued upon, as set forth in the pleadings? (2) Under the pleadings herein, did the limitation named in the policy begin to run at the death of the insured, or at the expiration of ninety (90) days after the receipt by defendant of proofs of death, or at the time when the defendant refused to pay the plaintiff's claim? (3) Under the written stipulation of the parties herein, should judgment be rendered for the plaintiff, or for the defendant?"

The district court asks, "Was this action commenced in time?" The answer to this question must determine what the judg ment shall be. But, to answer this and the other questions reserved and submitted, we must consider and determine from what date the limitation runs. Three dates to be considered are indicated in the questions of the court and in the briefs and oral arguments of counsel: First, the date of the death of the insured, May 1, 1892; second, the date of the final refusal of defendant to pay the claim of plaintiff, September 1, 1892; and, third, 90 days after proofs of death were furnished, the expiration of the 90 days occurring November 24, 1892. The question of the date from which the limitation runs is an important one, involving, as it does, leading and elementary principles in the construction of contracts, and being a question of first impression in the courts of this state. And it must be considered a difficult question, since eminent courts are in conflict in their views of contracts of insurance similar to the one under consideration. These conditions require a careful consideration of the question, and a careful scrutiny and weighing of the authorities on both sides.

The main contention of plaintiff seems to be that the limitation of the time for bringing suit to "one year from the date of the