Page:North Dakota Reports (vol. 1).pdf/198

 seventy dollars, at their office in Chamberlain, Dakota, on the 1st day of October, 1885, with interest at the rate of ten per cent. per annum, without interest if paid thirty days before due. Dated this 1st day of June, 1885, W. E. Jonnson. Whole number of acres insured isone hundred. Quarter section No. 20, twp. No. 154, range No. 54, county of Grand Forks. P. O. Larimore. Strong & Treat, Agts. No. 514” That the defendant is now the owner and holder of said promissory note, and that the amount is now due and wholly unpaid. Wherefore defendant demands judgment against the plaintiff for his costs and disbursements, and for judgment upon said promissory note in the sum of $70, with interest at ten per cent. from June 1, 1885.”

The action was tried by the court without a jury, and the trial court made and filed its findings of fact and law upon which judgment was entered in favor of the plaintiff for the amount of the claim, less the sum due on the premium note, which is pleaded as a counter-claim. Defendant appeals from the judgment. A bill of exceptions was settled, and a motion for a new -trial was denied. The findings of fact are as follows: “That the defendant made, issued, and delivered to the plaintiff its insurance policy as set forth in the complaint herein and that the application for said insurance policy, signed by the plaintiff, is the application set forth in said complaint, and attached thereto as part thereof, and marked ‘Exhibit B.’ That the following answer to the following question in the said application was at the time the same was written untrue and false, to-wit: ‘Question. Are your lands incumbered? If yes, for how much? Answer. Three hundred dollars.’ That the said lands were at the same time incumbered for an amount exceeding one thousand dollars; that the following answer to the following question in said application was at the same time untrue and false, to-wit: ‘Question. Are the crops on the above-described land mortgaged or otherwise incumbered? If so, for how much? Answer. No.’ That the crops on the said land were in fact at said time mortgaged fora greater sum than seven hundred dollars; that one Strong was the agent of the defendant for the purpose of taking applications for hail insurance in Grand Forks county, Dak., and forwarding the same to the defendant company at the time