Hatcher v. Branch, Powell & Co.

141 Ala. 410 | Ala. | 1904

DOWDELL, J.

While the suit appears to have been brought in the name of the partnership as plaintiff, still the individual names of the partners composing the firm were set out in the complaint. On the authority of Foreman v. Weil Bros., 98 Ala. 496, the trial court properly overruled the demurrer to- the complaint on the ground that the suit was brought in the name of the partnership. The case of Simmons v. Titche, 102 Ala. 317, cited by council for appellant, is unlike the case at bar, and that of Foreman v. Weil Bros., supra, in that in the former case, the suit was brought in the firm name, and the names of the individuals composing the partnership nowhere; appeared. There were other grounds of demurrer to the complaint, but the same are not insisted e.n in argument; moreover, we fail to see any merit in them.

The second assignment of error is, that the court erred in sustaining the plaintiff’s demurrer to the second plea. There were a number of grounds of demurrer assigned, but it is unnecessary to notice all, since if any one was good, the demurrer was properly sustained.

The contract of insurance for which the plea alleges the notes were given, is not set out in the record. It is not alleged that the notes were given for the premium on the policy, but for the policy of insurance. The plea does not show that the plaintiffs agreed to the'cancellation of the policy of insurance, nor does it show that the defendant had a right to demand a cancellation of the same, “The right of either party to a valid contract of insurance, to cancel it at pleasure can accrue only in three ways: 1st, by a concurrent agreement with the other party; 2d, by a previous reservation of the right in the conditions of the policy itself; 3d, by a provision in the State insurance law permitting it.” — 16 Am. & Eng. Ency. Law (2d ed.) p. 870. The plea failed to meet any one of these conditions. If it should be conceded that tlie defendant did return the policy, and that it was accepted by the plaintiff, the date of the return and acceptance is not averred, further than that it was •before .the commencement of the suit. It is not averred that the return of the policy was accepted in extinguishment of the notes sued on. For aught there appears from the plea, the term of the policy covered by the notes had expired and the policy had lapsed. In any event it would seem that the defendant would be liable for the portion of the premium earned up to the date of the return and acceptance of the policy, in the absence of any contract or agreement averred. We think the court below committed no error in sustaining the demurrer to the plea.

The 3d, 4th and 5th assignments of error are directed to rulings of the trial court on motions to strike certain mentioned pleadings. Such’questions can be considered by this court on appeal only when properly presented by the bill of exception's. In this case neither the motion-to strike, nor the action of the court thereon, is shown by the bill of exceptions. The bill is wholly silent on the subject, and the matters assigned in this respect cannot therefore be reviewed. — Bessemer Liquor Co. v. Tillman, (Ala.) 36 So. Rep. 40; Central of Ga. Ry. v. Joseph, 125 Ala. 313; Holly v. Coffee, 123 Ala. 406; Spraggins v. State, (Ala.) 35 So. Rep. 1000.

There is no error in the record, and the judgment will, therefore, be affirmed.

Affirmed.

McClellan, C. J. Haralson and Denson, JJ.., concurring.