72 Wis. 535 | Wis. | 1888
1. It is claimed that the complaint fails to show that any premium was ever paid or agreed to be paid for the policy, and hence that there is no sufficient consideration alleged to support the contract. It is alleged “that on said day the defendant, for a valuable consideration, entered into a contract of insurance with the said Rossell, by the terms of which contract said defendant insured said Rossell for the term of one year from said date, against loss or damage to said property by fire, to the amount of $1,800.” From this it appears that the contract alleged was based upon “a valuable consideration.” This would seem to be enough to support the undertaking to insure. It is said that it expresses “a mere opinion of the pleader, and is not a statement of the facts.” But we think it does allege, as a fact, that the consideration for the contract was valuable. Whether the allegation is too general, or not sufficiently definite and certain, cannot be raised on demurrer, but only by motion. Sec. 2683, R. S.
2. It is alleged “ that on or about September 7, 1887, the hotel building above described was totally destroyed by fire.” It is said that this is insufficient by reason of the failure to allege “that the fire was the result of accident or misfortune, and not through any fraud or evil practice on the part of the assured.” The law does not seem to require the negation of such conditions subsequent. Redman v. Ætna Ins. Co. 49 Wis. 431. Besides, there is nothing in the complaint indicating that the contract of insurance contained any such exception, warranty, or condition. It
3. It said that there is an absence of any allegation that any proofs of loss were ever received by the defendant. The allegations of the complaint in this regard are that “it was further agreed by said parties, by said contract of insurance, that the amount of any loss or damage by fire to the property insured should be paid by defendant sixty days after due notice and proof of loss had been made by said Eossell and received by the defendant; and plaintiff further shows that after the destruction of said building by fire, and more than sixty days prior to the commencement of this action, the said Eossell fully complied with all the conditions of said contract, and rendered to said defendant a part icular account and proof of said loss, as required by said contract.” This would seem to be sufficient. In pleading the performance of conditions precedent in a contract, it is not necessary to state the facts showing such performance, but only to state generally that the party duly performed all the conditions on his part. Sec. 2674, R. S.; Schobacher v. Germantown F. M. Ins. Co. 59 Wis. 89; Reif v. Paige, 55 Wis. 502; Boardman v. Westchester F. Ins. Co. 54 Wis. 365.
4. It is said that the complaint is insufficient in failing to allege that the assignment by Eossell of his claim for the loss under the contract of insurance to the plaintiff, the next day after the fire, was in writing, and hence not within the statute of frauds. Sec. 2308, R. S. True, this section declares, in effect, that “ every contract for the sale of any . . . things in action, for the price of fifty dollars or
5. Besides, in pleading an assignment required to be in writing, it is sufficient to aver that such assignment was made, as this will be. held on demurrer to imply a valid assignment under the statutes. Robbins v. Deverill, 20 Wis 142.
By the Court.— The order of the circuit courtis affirmed.
