Opinion
January 6, 1941.
1. — Appeal and Error. Where there was no objection to trying case as a suit at law and it fairly appears from the record that it was tried on the theory, by both parties, that it was such a suit it will be so treated in Appellate Court.
2. — Appeal and Error — Insurance. In a suit on a beneficiary certificate where it was alleged by association that certificate sued on had been cancelled and new certificate issued in lieu thereof, and beneficiary wholly failed to prove as ground for invalidating certificate that at time of exchange of certificates, association knew of insured's insanity, an instruction in the nature of a demurrer to the evidence should have been given, but cause should not be reversed outright if there is room for beneficiary to amend his reply to allege that he had offered before suit to place association in status quo by tendering sufficient money to pay dues and assessments that would have become due upon the certificate sued upon up to time of death of insured.
3. — Appeal and Error. In suit on beneficiary certificate where it was alleged by association that insured surrendered old and accepted new certificaite in lieu thereof and beneficiary in reply alleged that exchange of certificates was void because insured was insane at time thereof, beneficiary before suit was required to have tendered amount of unpaid assessments so as to put association in status quo before he could insist upon his claim of insanity.
4. — Equity. While the substantive rules of law are the same in suits at law and in equity, the procedure is different.
5. — Insurance. Where there was no provision in beneficiary certificate for reserve values fraternal association had right and authority to raise assessments upon current cost of certificate.
6. — Insurance. In suit on beneficiary certificate alleged to have been exchanged for new one and beneficiary alleged exchange was invalid and that insured had paid a sufficient amount to keep old certificate in force until his death, evidence held insufficient to sustain beneficiary's contention.
7. — Appeal and Error — Instructions. In suit on beneficiary certificate where it was alleged by association that certificate sued on had been exchanged for new certificate and beneficiary alleged in reply that exchange was void because of insanity of insured, association's offer of instruction that if insured executed application for exchange of certificates verdict should be for association unless jury should find at time of exchange insured was mentally incompetent did not constitute a joining with beneficiary in the theory that beneficiary could recover without showing tender to association of sufficient money to pay assessments on old certificate, in view of other instructions telling jury, in effect, that beneficiary was required to put association in status quo before insisting upon claim of insanity of insured.
Appeal from Circuit Court of Boone County. — Hon. W.M. Dinwiddie, Judge.
REVERSED.
Edwin C. Orr for respondent.
(1) The trial court did not err in refusing to give Instruction 2 in the nature of demurrer to the evidence at the close of the whole case, requested by the defendant, and correctly submitted the case to the jury. (a) This case is to be reviewed in the court of appeals on the same theory it was tried below. Kelley v. United Mutual Ins. Ass'n (Mo. App.), 112 S.W.2d 929, 931; Cook et ux. v. Sears Roebuck Co., 71 S.W.2d 73, 74; Brann v. Missouri State Life Ins. Co. (Mo. App.), 226 S.W. 48; Wells v. Covenant, 126 Mo. 630, 29 S.W. 607; Doty v. Mumma, 305 Mo. 188, 264 S.W. 656; Jamison v. Culligan, 151 Mo. 410, 52 S.W. 224. (b) Plaintiff made submissible case and since insured received nothing from the company at time of alleged transaction there was nothing to tender back, therefore, tender was unnecessary because impossible. Doty v. Mumma, supra; Kelley v. United Mutual Ins. Ass'n, supra. (c) Insanity is a good defense at law to the enforcement of a contract against the insane person. 31 C.J., 785, par. 636-7; 14 R.C.L., 554, par. 5; 14 R.C.L. 582, par. 38; Nichols Shepherd Co. v. Hardman, 62 Mo. App. 153; Collins v. Trotter, 81 Mo. 275; Cutler v. Zollinger, 117 Mo. 101; Tock v. Tock, 120 S.W.2d 169; Kelley v. United Mutual Ins. Ass'n, supra; Doty v. Mumma, supra. (d) Defendant's Points I D and I E of nonpayment of premiums by insured on old contract are not in the case on the pleadings, and if in the case were questions for the jury. Ash-Grove Lime Portland Cement Co. v. Southern Surety Co., 39 S.W.2d 440; State Bank of Anderson v. Dunn, 325 Mo. 709, 29 S.W.2d 79; Sec. 965, R.S. 1929, R.S. Ann. 1235. (2) The trial court did not err when it sustained plaintiff's objection to defendant's statement and testimony of nonpayment of premiums on certificate No. 263659 because that defense was not pleaded by defendant in its answer. Chadwick v. Order of Triple Alliance, 56 Mo. App. 463, 474; Hanheid v. Tribe, 223 S.W. 684, 688; Sharp v. Supreme Council of Royal Arcanum (Mo. App.), 251 S.W. 159; Stout v. Independent Order of Foresters, 115 S.W.2d 32; Garofalo v. Societa Operaia Di Mutuo Soccorso St. Giuseppe, 112 S.W.2d 934; Bedwell v. Capital Mutual Association of Jefferson City, 66 S.W.2d 962; Wilson v. Most Worshipful Grand Lodge of A.F. and A.M., 114 S.W.2d 173; Chambers v. Sovereign Camp W.O.W., 33 S.W.2d 1029; Wooden v. Modern Woodmen, 194 Mo. App. 666, 189 S.W. 394; Welch et al. v. Fraternal Aid Union, 214 Mo. App. 443, 253 S.W. 187. (3) The court did not err in giving the instruction offered by the plaintiff. Nichols Shepard Co. v. Hardman, 62 Mo. App. 153; Cutler v. Zollinger, 117 Mo. 101; Acor v. School District, 141 S.W.2d 197. (4) The court did not err by abusing its judicial discretion in refusing to grant leave to defendant to amend its answer for the purpose of pleading the defense of nonpayment of dues, increases and assessments on the old certificate No. 263659. Reutner, Klaus Co. v. Nelson Chesman Co., 9 S.W.2d 655, 658; Ash-Grove Lime Portland Cement Co. v. Southern Surety Co., 39 S.W.2d 441; Yerxa, Andrews Thurston v. Randazzo Macaroni Mfg. Co., 288 S.W. 20, 31, par. 24; Simon v. S.S. Kresge Co., 103 S.W.2d 523. (5) The court did not err in permitting Mabel Allen, Albert Byers and William Byers, three lay witnesses, to testify that Flemon Byers was mentally incompetent and insane; and did not err in permitting Dr. Stephen Smith, insured's life-long physician, to testify that Flemon Byers was insane prior to and on July 25, 1934. (a) The testimony of these witnesses was admissible and the facts testified to sufficient to permit the witnesses to give their opinion as to the insanity of the insured. Acor v. School Dist. No. 9 of Lincoln Co., 141 S.W.2d 197. (b) Even if the admission of the testimony of witnesses as to insanity was error, said error was not reversible, and error, if any, was waived by the defendant. Continental Casualty Co. v. Monarch Transfer Storage Co., 23 S.W.2d 209, 212; Holloway v. Barnes Grocer Co., 15 S.W.2d 917, 920; Cole v. St. Louis-San Francisco Ry. Co. (Mo.), 61 S.W.2d 344, 347; Stewart v. Kansas City Pub. Serv. Co. (Mo. App.), 49 S.W.2d 1061, 1064; General Motors Acceptance Corp. v. Lyman et al. (Mo. App.), 78 S.W.2d 109; Callahan v. Kansas City, 226 Mo. App. 408, 41 S.W.2d 894; Wielms v. St. Louis County Gas Co., 37 S.W.2d 454; Swift Co. v. Epps, 182 S.W. 1024. (c) Defendant does not claim that the admission of the testimony of Mabel Allen, Albert Byers and William Byers was prejudicial. Spann v. Coal Mining Co., 322 Mo. 158, 178, 16 S.W.2d 190; Mundy v. Mo. Power Light Co., 231 Mo. App. 555, 558, 101 S.W.2d 740. (5) The court did not err in giving Instruction 4 requested by defendant for the reason that non-payment of premiums was not pleaded.
Donald Lamm, Lawrence Barnett, A.W. Fulton and Harry L. Ladbury for appellant.
(1) The court erred in overruling defendant's demurrer at the close of the case, and in not directing a verdict for defendant. (a) Insanity alone, before adjudication thereof, does not make a contract of novation void, but only voidable. Brann v. Mo. State Life Ins. Co. (Mo. App.), 226 S.W. 48; Wells v. Covenant Mutual Benefit Ass'n, 126 Mo. 630, 29 S.W. 607. (1) Where the contract was entered into in good faith, without fraud or imposition, for a fair consideration and without knowledge of insanity, it shall not be set aside. Doty v. Mumma, 305 Mo. 188, 264 S.W. 656; Jamison v. Culligan, 151 Mo. 410, 52 S.W. 224. (b) Plaintiff made no offer or attempt to place the parties in status quo, a condition precedent to setting aside a contract. Wells v. Covenant Mutual Benefit Ass'n, 126 Mo. 630, 29 S.W. 607; Doty v. Mumma, 305 Mo. 188, 264 S.W. 656; Jamison v. Culligan, 151 Mo. 410, 52 S.W. 224. (c) A contract made before adjudication of insanity can only be set aside in a proceeding in equity for that purpose. Brann v. Missouri State Life Ins. Co. (Mo. App.), 226 S.W. 48; Wells v. Covenant Mutual Benefit Ass'n, 126 Mo. 630, 29 S.W. 607. (d) Under the undisputed documentary (and therefore conclusive) evidence, Flemon Byers did not pay a sufficient amount to keep his old certificate in force until the time of his death. Kazee v. K.C. Life Ins. Co. (Mo. App.), 217 S.W. 339; Constable v. Maccabees, 219 Mo. App. 632, 284 S.W. 515; Jackson v. S.B.A., 139 S.W. 1014; R.S. Mo., 1929, sec. 5997. (e) By confession and avoidance, plaintiff admitted the execution of the application for exchange. 49 C.J., 281; George v. Kansas City American Ass'n Baseball Co., 219 S.W. 134. (2) The trial court erred in sustaining the objection of plaintiff to that part of defendant's opening statement to the jury, and defendant's evidence, proving that the rates on the old certificate increased from time to time and that the payments made on the new certificate were not sufficient to carry the old certificate in force until the death of Flemon Byers. (a) The old contract, which was cancelled by the contract of novation, was not in existence and there was no liability for premiums thereunder until the contract of novation was set aside, and, therefore, the defense of nonpayment of premiums was not available to defendant at the time the pleadings were made up. Brann v. Missouri State Life Ins. Co. (Mo. App.), 226 S.W. 48; Wells v. Covenant Mutual Benefit Ass'n, 126 Mo. 630, 29 S.W. 607; Kevan v. John Hancock Mutual Life Ins. Co., 3 F. Supp. 288. (b) The evidence showed that the application for exchange was beneficial to Flemon Byers, which was a material issue. Jamison v. Culligan, 151 Mo. 410, 52 S.W. 224; Doty v. Mumma, 305 Mo. 188, 264 S.W. 656. (c) Defendant was not bound to anticipate plaintiff's claim that a release was not binding because of insanity, and should be permitted to show that the premiums paid on the new contract were not sufficient to keep the old contract in force. Sawyer v. Wabash Ry. Co., 57 S.W. 108, 110; Spann v. Mining Co., 16 S.W.2d 190; Burton v. Drennan, 58 S.W.2d 740; Stock v. Schloman, 42 S.W.2d 61; Babcock v. United Rys. Co., 158 Mo. App. 275, 138 S.W. 53, 56. (3) The trial court erred in instructing the jury to find for plaintiff if Flemon Byers was not sane at the time he executed the application for exchange. (a) An instruction which covers the entire case and directs a verdict, which omits an essential element prerequisite to plaintiff's recovery, is reversible error. Finley v. Continental Ins. Co. (Mo. App.), 299 S.W. 1107, 1111. (1) Said instruction omitted the defense that the contract was not void, but simply voidable; that defendant had no knowledge of the alleged insanity; that the new contract was in no way inequitable or unjust; and that plaintiff had not restored to defendant the consideration received, (4) The trial court erred in refusing to grant leave to defendant to amend its answer by alleging more fully that Flemon Byers had not paid sufficient premiums to keep his current cost certificate in force and effect to the time of his death. (a) It is the general rule to allow amendments, and the exception to refuse them. People's Trust Savings Co. v. Arthaud, 22 S.W.2d 860. (b) A refusal of leave to amend, where such ruling deprives defendant of a principal defense, is erroneous. State ex rel. Mackey v. Thomas, 81 Mo. App. 549; Estey v. Walker, 222 Mo. App. 619, 253 S.W. 38. (1) There was no surprise, since plaintiff was advised weeks ahead of the trial that defendant would offer such evidence. (2) There was no laches, because defendant's position that it could offer such evidence without affirmatively pleading nonpayment of premiums is supported by many decisions. State ex rel. Mackey v. Thompson, 81 Mo. App. 549. (5) The court erred in permitting Mabel Allen, Albert Byers and William Byers, three lay witnesses, to testify, over objection, that Flemon Byers was mentally incompetent. (a) Their opinion did not purport to be based upon acts related in evidence, and therefore was not admissible. Lee v. Lee, 258 Mo. 599, 167 S.W. 1030. (b) The acts testified to were not sufficient to support an opinion of insanity, and therefore were not admissible. Lee v. Lee, 258 Mo. 599, 167 S.W. 1030; Brann v. Missouri State Life Ins. Co. (Mo. App.), 226 S.W. 48. (1) Mere testimony of peculiar and eccentric acts is not evidence of unsound mind. Brann v. Missouri State Life Ins. Co. (Mo. App.), 226 S.W. 48. (6) The trial court erred in permitting plaintiff's witness, Dr. Stephen Smith, to testify, over objection, that Flemon Byers was insane on July 24, 1934. (a) The doctor testified he saw Byers only twice during 1934, in May and December. This was too remote from the time in question. (b) There is no evidence that what Dr. Smith called delusions were not statements of fact. (c) Mere eccentricities and peculiarities, not accompanied by proof of acts and facts showing that the person is incapable of understanding the ordinary affairs of life, will not support a conclusion of insanity. Berkemeier v. Reller, 317 Mo. 614, 296 S.W. 739, 753. (7) The trial court erred in refusing to instruct the jury that plaintiff could not recover unless all assessments and dues on the old certificate, required by the by-laws or levied by the executive committee, were paid. (a) Assessments levied by the by-laws or by the executive committee will be presumed to be reasonable and necessary until the contrary is shown. Jackson v. S.B.A., 139 S.W.2d 1014. (b) To set aside a contract of novation, plaintiff must pay all premiums due at the time of decease. Wells v. Benefit Ass'n, 126 Mo. 630, 29 S.W. 607.
This is a suit on a beneficiary certificate. There was a verdict and judgment in favor of plaintiff in the sum of $1000, and defendant has appealed.
The certificate is in the sum of $1000, and was issued on December 18, 1911, by defendant, a fraternal beneficiary association, upon the life of Flemon Byers, one of its members, and in favor of his wife, Agnes W. Byers, as beneficiary. Insured changed his beneficiary on April 9, 1931, to the plaintiff, William T. Byers, and the certificate was reissued to the insured showing such change. Insured died on May 30, 1939, at the age of 75 years.
The petition contained the usual allegations found in a petition on an insurance certificate of this kind, including an allegation of the compliance with all of the terms of the contract and the payment of all "premiums" due upon the certificate (described therein as a "policy" of life insurance) to the time of the death of the insured.
Among other things, defendant, in its answer, admitted issuing the certificate sued upon but alleged that, on or about July 25, 1934, Flemon Byers applied for the exchange of the certificate for a new and different certificate and, pursuant to said application, the old certificate was surrendered by him and was cancelled and there was issued to him, in exchange, a new certificate. The answer denied that the beneficiary certificate sued on was in force and effect at the time of the death of Flemon Byers and denied that the premiums or assessments due thereon were paid up to and including the time of the death of the said Flemon Byers, and alleged that from and after the date of the execution of the new certificate the old certificate was cancelled. The answer also contained a general denial.
Plaintiff filed a reply consisting of a general denial of all the new matter contained in the answer and specifically denied that the certificate sued on was surrendered for cancellation and that Flemon Byers applied for a new certificate in lieu thereof and pleaded that, at the time of the purported exchange of the certificate sued on, for the new certificate, Flemon Byers was insane and that defendant at the time knew it. The parties went to trial on these pleadings.
Plaintiff introduced the original certificate in evidence and rested. Thereupon, defendant offered an instruction in the nature of a demurrer to the evidence, which the court overruled.
The certificate sued upon was what is called a current cost certificate and contained no provision for reserve values. It provided for a monthly assessment of $2.14 and that "This rate of assessment is subject to triennial revision as provided in laws of the Association." The evidence shows that the assessments were increased from time to time and that defendant, on May 28, 1935, increased the assessments on such certificates by amending its by-laws so that the monthly rate of assessments on persons of the age of insured became $10.55.
Defendant's evidence tends to show that Flemon Byers, on July 25, 1934, executed an application for the exchange of the original certificate for a new certificate described as "American Experience 4% Whole Life" with full legal reserve values and that the new certificate was issued to him. It appears that the last assessment paid by insured was for the month of October, 1937.
Defendant offered to prove that between July, 1934, and the time of his death, Flemon Byers paid $394 in assessments, which was not sufficient to keep the original certificate in force, if it had not been cancelled. Defendant also offered to prove facts showing that the assessments paid were insufficient to keep the new certificate in force to the death of Flemon Byers and that the new certificate was more favorable to the insured than the old, in that, the old certificate would have lapsed prior to the date of the new one under the payments made by the insured to the defendant after the surrender of the original certificate. The court refused to allow defendant to show these facts on the theory that it had not pleaded non-payment of assessments.
Plaintiff, in support of his reply, introduced evidence, which he claims tends to show that insured was not competent mentally to make a contract at the time he applied for the issuance of the new certificate. Defendant contends that this evidence does not measure up to that required to establish mental incapacity of the insured but merely tends to show that he exhibited some mental infirmities, consisting of eccentricities and peculiarities due to old age, and not amounting to mental incapacity to make a contract. However, for the purposes of this case, we may assume that plaintiff's evidence tended to show that insured was mentally incapacitated at the time in question to make the exchange of certificates. Defendant introduced evidence tending to show that insured was mentally competent to make the exchange.
It is admitted that insured was not under guardianship at the time of the exchange of the certificates. There is no evidence that defendant knew or should have known that insured was insane at the time of the exchange. There is no evidence that plaintiff, or anyone else, offered to restore the status quo by tendering to defendant, before suit, the return of the new certificates and sufficient money to pay the assessments that would have become due on the old certificate after its surrender in order to have left it in force at the date of the death of insured. There was no allegation in the reply that any of these things had been done, or offer in the reply to do them, or that insured had paid a sufficient amount of money to continued the old certificate in force to the date of his death.
Defendant insists that the court erred in refusing to give its instruction in the nature of a demurrer to the evidence submitted at the close of all the evidence, for the reason that plaintiff could only avoid the contract, wherein insured surrendered the old and accepted the new certificate in lieu thereof, by a suit in equity to annul and cancel the agreement. There was no objection to trying the case as a suit at law and it fairly appears from the record that it was tried on the theory, by both parties, that it was such a suit and, consequently, it will be so treated in this court (Kelly v. United Mut. Ins. Asso., 112 S.W.2d 929), in accordance with plaintiff's contention.
However, it is further insisted by the defendant that its instruction in the nature of a demurrer to the evidence should have been given for the reason that since insured had not been adjudged insane, the contract wherein the certificates were exchanged was not void, but merely voidable; that in order to void it plaintiff was required to allege and prove that the contract was inequitable and defendant knew of insured's incapacity.
"Where a contract with an insane person has been entered into in good faith, without fraud or imposition, for a fair consideration, of which the incompetent has received the benefit, without notice of the infirmity, and before an adjudication or insanity, and has been executed in whole or in part, it will not be set aside unless the parties can be restored to their original position." [28 Amer. Jurisprudence, p. 716. See also, 9 C.J., p. 1215; 14 R.C.L., pp. 584, 585; 32 C.J., 734, 735; Wells v. Covenant Mut. Benefit Asso., 126 Mo. 630; Jamison v. Culligan, 151 Mo. 410; Doty v. Mumma, 305 Mo. 188.] Such "contract may be avoided without restoring or tendering the consideration received, when such consideration was not beneficial to the insane person." [32 C.J., p. 737.] "The burden of proof upon the issue of insanity, in cases involving contracts or conveyances, rests upon the person who raises this issue, as where he seeks to avoid or disaffirm a deed or contract upon the ground of the mental weakness or insanity of the grantor or of the contracting party." [28 Amer. Jurisprudence, p. 753; 32 C.J., pp. 734, 736, 756; 8 Crouch Cyc. of Ins. Law, p. 826.]
There is authority holding that the burden is upon the person claiming insanity of the insured to not only establish such insanity but, in addition, that the other party had knowledge of the incompetency of the person with whom he completed the transaction, and that he lacked good faith in dealing with the other, where such are essential elements in securing the avoidance of the contract. Other authorities hold that such a person is required to prove only the insanity, whereupon the burden is shifted to the other party to prove good faith and lack of knowledge of the insanity. The former seems to be the rule in Missouri. See, Jamison v. Culligan, 151 Mo. 410, where the court said:
"It must appear upon the face of the petition either that the defendant knew that the man with whom he was dealing was insane and took advantage of him, or else, if he dealt with the insane man without knowledge of his misfortune and dealt fairly the petition must show both an ability and a willingness on the part of the plaintiff to put defendant in status quo."
In his reply plaintiff pleaded that defendant had knowledge of insured's insanity at the time of the exchange of the certificates. This plaintiff wholly failed to prove and the instruction in the nature of a demurrer to the evidence should have been given, and the cause must be reversed. However, the cause should not be reversed outright if there is room for plaintiff to amend his reply so as to allege that, whereas, defendant did not know of insured's insanity at the time in question, plaintiff having desired to avoid the agreement had offered, before suit, to place defendant in status quo by tendering to defendant sufficient money to pay all dues and assessments that would have become due upon the certificate sued upon up to the time of the death of the insured which, under the authorities, it was his duty to pay. [See, Wells v. Covenant Mut. Benefit Asso., supra.] However, no such allegation can be made because such things were not done. Neither could plaintiff allege that he had tendered the new certificate to defendant for concededly this was not done. It was necessary for plaintiff before suit to have tendered at least the money in order to put defendant in status quo.
While in the Wells case it was only necessary to allege willingness on plaintiff's part, he having claimed insanity on the part of the insured, to pay all the assessments, that was an equity case and this is a suit at law. While the substantive rules of law are the same in suits at law and in equity, the procedure is different. In suits at law tender must be made before suit. [Reed v. Gill et al., 201 Mo. App. 457; Met. Paving Co. v. Investment Co., 309 Mo. 638, 653, 654; McCoy v. McMahon Constr. Co., 216 S.W. 770; Malkmus v. Cement Co., 150 Mo. App. 446; Wessell v. Waltke, 196 Mo. App. 582, 592; Lomax v. Elec. Ry. Co., 119 Mo. App. 192, 199.]
We have examined the cases cited by plaintiff and find them not in point. In Nichols et al. v. Hardman, 62 Mo. App. 153, the defense was based upon insanity of the defendant and overreaching. Upon such a theory there was no necessity for the return of the machine received by the defendant in the transaction over which that suit arose. [28 Amer. Jurisprudence, p. 727; 9 C.J., 1, 1216.] An instruction in that case was approved although it did not cover the question of restoration of the status quo. So far as the opinion in that case shows no such question was raised.
However, plaintiff contends that insured received nothing from the defendant at the time of the exchange of the certificates and there was nothing to tender back. In this connection, plaintiff contends that insured paid more to the defendant, after the exchange of the certificates, than was necessary to keep the old certificate in force. This contention is based upon the theory that the rate of the old certificate was $2.15 per month. That was the original rate, but there is evidence that it was changed, and there is no suggestion in the record to indicate that plaintiff can ever prove to the contrary. Plaintiff admits that the company, under the law of this State, had the right and authority to raise the assessments on such certificates and, undoubtedly, such is the law. [Jackson v. Security Benef. Assn., 139 S.W.2d 1014.] The certificate, on its face, shows that the rate of assessment might be changed. The evidence, or defendant's offer of proof, clearly does not establish that insured paid a sufficient amount to keep the old certificate in force until his death. There is nothing to be gleaned from the record from which it could even be suggested that the payments were sufficient to do as plaintiff contends.
Plaintiff insists that it was unnecessary to tender the new certificate to the defendant for the reason that defendant contends that it had lapsed by reason of non-payment of assessments and, herefore, had no value. We need no, and do not, pass upon this question for the reason it was necessary for plaintiff, at least, to have tendered enough money to cover the amount of the unpaid assessments, which was not done.
Defendant's Instruction No. 5 told the jury, in effect, that if the insured executed the application for the exchange of the certificates, their verdict should be for the defendant "unless you should find that at said time the said Flemon Byers was mentally incompetent to make a contract as in another instruction defined." Defendant's Instruction No. 6, in effect, defines what was meant by "mentally incompetent."
Plaintiff contends that by offering its Instruction No. 5, defendant joined with plaintiff in the theory that the latter could recover without showing tender to defendant of sufficient money to pay the assessments on the old certificate to the date of insured's death, together with the new certificate. It appears that, in submitting the case, both parties abandoned the theory of knowledge of defendant of insured's alleged insanity, but there is no suggestion in the briefs explaining how the pleadings could be changed in such a manner. However, defendant offered other instructions telling the jury, in effect, that plaintiff was required to put defendant in status quo before he could insist upon his claim of insanity on the part of insured at the time of the exchange of the certificates. It is apparent that defendant did not try the case on the theory that mere proof of insanity, without more, was all that was necessary in order to avoid the contract wherein the certificates were exchanged. [See, on this point, Perry v. Fleming, 221 Mo. App. 1071, 1088.]
The judgment is reversed. Shain, P.J., concurs; Cave, J., not sitting.