111 So. 455 | Miss. | 1927
It was also alleged that on the 6th day of January, 1925, the said stock of goods was destroyed by fire while situated in the house described in the certificate of insurance, and that the stock of goods at the time of the said fire exceeded the sum of six thousand dollars; and the complainant brought suit and demanded judgment for the amount of three thousand dollars.
The certificate made Exhibit A to the bill, in so far as deemed material to this decision, reads as follows: *241
"Amount $3,000. Rate 3.07. Premium $92.10.
"This is to certify that the Home Insurance Company, in consideration of ninety-two 10/100 dollars premium has issued to Mrs. S. Newman, and legal representatives, the above-described policy, to the extent of the actual cash value (ascertained with proper deductions for depreciation) of the property at the time of loss or damage, but not exceeding the amount which it would cost to repair or replace the same with material of like kind and quality within a reasonable time after such loss or damage, without allowance for any increased cost of repair or reconstruction by reason of any ordinance or law regulating the construction or repair and without compensation for loss resulting from interruption of business or manufacture, for the term of one year from the 21st day of August, 1924, at noon to the 21st day of August, 1925, at noon, against all direct loss and damage by fire and by removal from premises endangered by fire, except as herein provided, to an amount not exceeding three thousand dollars to the following described property while located and contained as described, or pro rata for five days at each proper place to which any of the property shall necessarily be removed for preservation from fire, but not elsewhere, to-wit."
The certificate had attached to it a printed clause, usually attached to policies, showing the terms and conditions of the contract, and then had the following provision:
"This is furnished simply as a memorandum of said policy as it stands at the date of issue hereof, and is given as a matter of information only, and confers no rights on the holders. Said original policy is subject to indorsement, alteration, transfer, assignment, and cancellation, without notice to the holder of this certificate." *242
This bill was demurred to on the following grounds:
"First. There is no equity on the face of the bill.
"Second. No cause of action is stated in the amended bill of complaint, either in law or in equity.
"Third. The certificate of insurance sued on, Exhibit A, shows on its face that it is not a contract or promise to pay any indemnity to complainant under any circumstances.
"Fourth. The certificate of insurance sued on, Exhibit A, shows on its face that it was never intended `to evidence the said insurance,' and thereby evidences no right of action in favor of complainant against this defendant.
"Fifth. A copy of the alleged contract of indemnity has not been filed with the amended bill of complaint as an exhibit thereto, as would be required by statute if sued on.
"Sixth. Even if there was originally such contract of indemnity, as is referred to in Exhibit A, the amended bill of complaint and exhibit does not show that it was in force at the time of the fire which is said to have destroyed the subject of insurance."
The demurrer was overruled, and an appeal granted to settle the principles of the case.
Section 734, Code 1906 (section 517, Hemingway's Code), provides that in all actions founded upon writing "there shall be annexed to or filed with the declaration in every case founded . . . on any writing, a copy of such writing, with the names of subscribing witnesses, if any, shall be annexed to or filed with the declaration." In Palmetto Fire Ins. Co. v. Allen,
It is well settled that, when a bill is filed to enforce a contract made an exhibit to the bill, the terms of the contract control over the allegations to the bill. We cannot ignore the concluding clause of the exhibit, which expressly provides that it confers no rights on the holders, but that it is a mere memorandum showing how the policy stood on the date the certificate was given. The policy might be outstanding in the hands of some other person, or various other dispositions might have been made of the policy. The memorandum, of course, would give the complainant the information necessary to file his pleading. In the case of Palmetto Fire Insurance Company v.Allen,
The judgment of the lower court will therefore be reversed, and the cause remanded, with leave to file an amended bill within thirty days after mandate reaches the court below.
Reversed and remanded, with leave to file an amended bill within thirty days after mandate reaches court below.
Reversed and remanded.