40 Del. 467 | Del. Super. Ct. | 1940
delivering the opinion of the Court:
The special demurrer to the replication to the sixth plea to the second count of the declaration, alleging waiver of any lapse under the certificate of membership, will be considered first.
The defendant urges that the replication alleges a legal conclusion. The plaintiff insists that the allegation of waiver is a statement of ultimate fact, and is therefore sufficient. Jonas v. West Palm Beach, 76 Fla. 66, 79 So. 438; Macfarland v. West Side Imp. Ass’n, 56 Neb. 277, 76 N. W. 584; United Firemen’s Ins. Co. v. Kukral, 7 Ohio Cir. Ct. R. 356, 4 O. C. D. 633.
One of the functions of pleading is to inform the opponent with reasonable particularity of what is proposed to be proved at the trial; and it is not sufficient to state a mere conclusion of law, or to state the result or conclusion of facts arising from circumstances not averred. Campbell v. Walker, 1 Boyce 580, 76 A. 475. The decided weight of authority holds that the averment of a waiver of a condition or right, without more, is but a conclusion of law. 49 C. J. 58, and cases cited.
Waiver is the intentional relinquishment of a
The demurrer to this replication is sustained.
The plaintiff’s replication to the seventh plea to the third count of the declaration alleges an estoppel. The defendant contends that this averment constitutes a departure from the declaration which alleges full performance of all terms, provisions and conditions of the certificate of membership. Cohen v. Home Insurance Co., 5 Boyce 531, 95 A. 238. In the cited case, the plaintiff alleged performance of the covenants of the contract. The defendant averred a breach of the iron safe clause of the contract. The plaintiff replied by averring a waiver of the covenant. This was held to be a demurrable departure.
The plaintiff, to avoid the effect of the Cohen case, contends that the effect of an estoppel is radically different from that of a waiver; that a waiver is an excuse for non-performance, while, if the defendant is es-topped to raise the defense of non-performance, no excuse for non-performance is necessary. The argument, how
In substance the plea alleges a lapse of the certificate by reason of the failure to pay a certain monthly assessment within the time stipulated, an application for re-instatement, death of the assured within six months after re-instatement as a result of organic heart disease, and a consequent reduction of benefit accruing to the beneficiary under the particular terms of the certificate. The replication does not deny the lapse, or that the certificate was reinstated. The substance of the inducement is that no additional assessment of 50 cents per month was necessary for the reason that no such necessity would have arisen
It is not alleged to whom the salaries, bonuses and commissions were paid. The other wrongful purposes are not specified. It is not averred when or where or by whom the fraudulent representations were made; nor of what statements such representations consisted, except by the merest inference. It is not sufficiently informative, and is substantially defective for want of certainty.
Moreover, the argument is that the extra assessment was not necessary to protect the certificate and like certificates, but was levied because the defendant had dissipated the money applicable to the mortuary fund; that the words, “if necessary” appearing in paragraph 3 of the certificate refer only to a necessity arising from an exhaustion of the mortuary fund created and maintained in accordance with the terms of the certificate; that, there being no necessity recognizable legally, no necessity existed; wherefore, there was no lapse of the certificate as the defendant at all times had in hand sufficient money received from the assured for assessment purposes to discharge all monthly assessments due and payable including the assessment for the month of January.
The provisional language of the paragraph, reasonably construed to effectuate its meaning and purpose
When the replication is examined to determine its sufficiency as an answer to the plea, it is manifest that the necessity for levying an additional assessment is not denied. What is asserted is that such necessity should not have arisen. The so-called fraudulent representations are