112 Mich. 106 | Mich. | 1897
This is an action on a fire policy for $1,500,— $500 on a two-story frame, shingle-roof creamery building and additions; $800 on engine, boilers, fixed and movable machinery, fixtures, tools, etc.; $200 on merchandise, consisting chiefly of butter and cheese, manufactured and in process of manufacture, and all materials and supplies for the same, including packages. The loss on the
A preliminary question is raised as to the sufficiency of the declaration, the point being that there was a variance between the proofs and the declaration. We think this objection not tenable. It is alleged in the declaration that by the policy the defendant did insure plaintiffs and Milton M. Rose, mortgagee, as the interest of the mortgagee should appear, against loss or damage by fire, etc. It is further averred that the building was burned and destroyed by fire, whereby said plaintiffs, and Milton M. Rose as mortgagee, have sustained damage to the amount of $1,500. It concludes with an averment of damages to the plaintiffs, and, we think, could not have been misleading. The point appears to be that the averment that plaintiffs and Rose sustained damage to the amount of $1,500 amounts to an averment that they were jointly entitled to recover that sum. But we think, in view of the previous statement, that it could not be so construed. It is stated that the defendant did insure plaintiffs and Rose, mortgagee, as his interest might appear. There was no demurrer to the declaration, and we think it sufficient.
The principal defenses attempted were:
First. That the policy was issued upon a written application, containing representations of facts material to the i’isk, which were violated.
Second. That the assured ceased to operate the creamery for more than 10 days prior to the fire.
Third. That foreclosure proceedings were commenced to the knowledge of the assured.
Fourth. That the building insured was unoccupied, and so remained for 10 days prior to the fire, without the consent of the company indorsed upon the policy.
None of these defenses, except that based upon the representations contained in the application for the policy, are set up in the pleadings by the defendant, and the
‘ ‘ When the declaration is upon a written contract, under a plea of the general issue the defendant may show, upon cross-examination of plaintiff’s witnesses or otherwise, a noncompliance with any of the conditions of the contract which will defeat recovery.”
This language must be construed with reference to the subject being dealt with, and, so construed, it is evident that by “conditions” was meant conditions precedent. The true rule is stated by Mr. Justice Devens, in Coburn v. Insurance Co., supra, which is: “Stipulations added to a contract, which are intended to avoid the defendant’s promise by way of defeasance or excuse, must be pleaded in defense, and must be sustained by evidence. They are in the nature of provisos.” The defenses in the present case relating to the failure to have the fact of foreclosure proceedings indorsed, the cessation of use, and the want of occupancy of the building, are by way of confession and avoidance, and should have been pleaded specially at the common law, and, under our practice, should have been noticed under the general issue.
As before stated, the breach of representations contained in the application was fully set up in the notice. This defense depended for its validity upon two considerations : First, whether the application offered in evidence was, in fact, the basis of the insurance, or whether, on the other hand, the policy was issued upon a distinct oral application; and, second, whether there was a material misrepresentation. Neither of these questions was submitted to the jury. We think there was error in these rulings.
It is claimed that the judgment was excessive. There was included in the judgment, under the clause insuring “merchandise, consisting chiefly of butter and cheese, manufactured and in process of manufacture, and all materials and supplies for the same, including packages,” an item of $91.50 for milk cans. It is claimed that the word “packages” is not broad enough to include packages in which the materials and supplies are to be placed, but only relates to the packages for the manufactured article, such as cheese and butter. The word is used in connection with materials and supplies, and, we think, is broad enough to include the milk cans.
For the error pointed out, the judgment will be reversed and a new trial ordered.
Rehearing granted May 4, 1897. Former decision affirmed (no opinion filed) November 8, 1897.