62 Fla. 161 | Fla. | 1911
— These cases were before this court at the June Term, 1905, and the decision of the court is found in 50 Fla. 419, 39 South. Rep. 495. As was stated in that opinion the pleadings and issues in the two cases are substantially the same. It was held in the former opinion that the pleas setting up the fact that prior to the taking-out of the fire insurance policies Erickson had contracted to sell and convey the property on which the insurance was taken out to one W. L. Burch rendered the policies void at law by reason of the provision contained therein, “This entire policy unless otherwise provided by agreement indorsed hereon ór added hereto shall be void if the interest of the insured be other than unconditional and sole ownership.” For this reason the judgments below were reversed and the cases remanded. After the case was sent back to the Circuit Court the plaintiff filed replications to these pleas, setting up in substance that at the time of the execution of this policy the insurance company through its agent, Robert R. Taylor, by and through whom they entered into the contracts of insurance, was already informed and knew of the sale of the property to Burch and that the sale was a true sale, and notwithstanding wrote up said policies and received the premiums as a consideration for the insurance and suffered the plaintiff to believe he was insured until after the fire, and that thereby the defendant companies were estopped to claim the policies were void. The replications further set up that the plaintiff Erickson had executed the contract of sale with Burch, deducting $2,000.00, the amount of the insurance, in reliance on said contracts of insurance.
These replications were demurred to on twenty grounds,
These demurrers were overruled and the defendant company given leave until Eule Day in December, 1908, to plead as it might be advised. On the 7th of December, 1908, the defendant company joined issue on the plaintiff’s replications, and also filed several rejoinders thereto. On the same day the defendants, with leave of the court, as alleged, filed four additional pleas. These pleas set up the contract between Burch and Erickson, which is set up in the original pleas, which was passed upon by this court in its former opinion, and certain allegations based upon the construction given said contracts in said opinion. The pleas substantially repeat the issues made in the first pleas. A motion to strike these pleas was made and overruled. On the first of January, 1909, the plaintiff filed replications to the additional pleas • substantially setting forth the facts contained in the replications to the first pleas. On "the 10th of August, 1909, the plaintiff filed other replications substantially embracing the facts set forth in the replications of first of January, 1909, and other facts, all of which are in substance but a repetition of the facts set forth in the replications to the first pleas. A demurrer was filed by the defendant company to these replications filed August 10th, 1909, and on the 8th of June, 1911, the court sustained said demurrer in the following order:
Final Judgment.
This cause coming on again to be heard and it appearing that an’ order has been made sustaining the demurrer of defendants to the replications filed by plaintiff August 10, 1909, to the 1st, 2nd, 3rd and 4th additional pleas of defendants filed December 7, 1908, said replications being amended replications the replications first filed to said pleas having been considered bad,
It is thereupon considered that the defendants are entitled to final judgment on said demurrer, it is considered that the defendants have final judgment on said demurrer and that the plaintiff, John W. Erickson, have and recover nothing of the defendants and that the defendants, Insurance Company of North America, a corporation, and Fire Association of Philadelphia, a corporation, go hence without day and have and recover of and from the plaintiff their costs herein taxed at $16.44, for which let execution issue.
This 8th day of June, 1911.
(Signed) Minor S. Jones, Judge.”
A writ of error was sued out from this judgment.
We shall not undertaken to discuss in detail the assignments of error having their basis in an unusual meth
There are some technical objections presented here arising out of the pleading. There was an issue joined to the replication to the first plea. It was never formally withdrawn. But it seems to us there is no reversible error because judgment was entered by the court with that issue technically undisposed of. As we have said the second set of pleas of defendant company practically presented the same defense as the first pleas.- ' The
The. judgment below in both of said cases is affirmed.