261 P. 499 | Cal. Ct. App. | 1927
This action was commenced June 30, 1924. The defendant's demurrer to the complaint was sustained, and thereafter the plaintiff filed an amended complaint reading as follows:
"Wherefore, plaintiff prays judgment against the defendant in the sum of ten thousand ($10,000.00) dollars with interest thereon from the 14th day of July, 1922, and for costs of suit."
The defendant demurred to the amended complaint on the grounds that it "does not state facts sufficient to constitute a cause of action," that the action was not commenced "within fifteen months" after the alleged fire, and that the action was barred "by subdivision 1 of section 339 of the Code of Civil Procedure, . . . as the same was not commenced within two years after the alleged cause of action mentioned in plaintiff's amended complaint accrued." The demurrer was sustained with ten days leave to amend. Plaintiff failed to amend within the time allowed by the *31 court and judgment was thereupon entered dismissing the action. The plaintiff has appealed from the judgment.
[1] The complaint alleges a contract of insurance, whether oral or written being immaterial. "A parol contract of insurance may be made and is enforceable." (American C. Co. v.Agricultural I. Co.,
[4] As stated, the complaint alleges an enforceable contract of insurance, under which the plaintiff, by proceeding in accordance with the terms thereof, as supplied by the statute, could have recovered against the defendant for the amount of his loss. The question is whether having failed to assert his rights under a valid contract which was binding upon the defendant, the plaintiff may now sue *32
for damages on the ground that, at the time of the execution of the contract, the defendant did not intend to perform its promise, even though such want of intention in no manner affected its liability. Section
The judgment is affirmed.
Plummer, J., and Hart, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on December 17, 1927, and a petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 16, 1928.
All the Justices concurred. *33