62 Iowa 387 | Iowa | 1883
I. The policy contains a condition in the following language: “The commencement of foreclosure oi
Upon the trial, the plaintiff introduced in evidence the policy, and proved the destruction of the property insured by fire, and thereon rested his case. The defendant thereupon asked the court to direct a verdict to be brought in for it, on the ground that plaintiff admitted in his reply the facts pleaded by defendant, which annulled and avoided the policy,
II. We shall first inquire whether tbe reply of plaintiff admitted tbe allegations of tbe answer setting up a forfeiture of tbe policy. A reply is not permitted, except where a counterclaim is set up, or some matter is pleaded in tbe answer to wbicb plaintiff claims a defense by reason of facts wbicb avoid tbe matter alleged in tbe answer. • Code, § 2665. The reply is not admissible, except to a counter-claim, or to plead matter in avoidance of tbe defense set up by tbe defendant. In order to avoid tbe defendant’s defense, it must, of course, be admitted; for reason would not permit a party to allege an avoidance of a defense wbicb is wholly denied. If the allegations sought to be avoided are not true, it is plain that matter pleaded in avoidance can have no existence. Tbe very meaning of tbe words “avoid” and “avoidance,” when used by pleaders, implies tbe admission of tbe defense sought to be avoided. Bouvier’s Law Dictionary. Indeed, there cannot be an avoidance without a confession of tbe defense sought to be avoided. Gould’s Pleadings, p. 34; 1 Chitty’s' Pleadings, 556.
III. Counsel for plaintiff insist that, as inconsistent defenses may be stated in tbe same answer or reply, (Code, § 2710,) we must regard plaintiff’s reply as both denying tbe allegations pleaded as a defense, and as alleging facts avoiding it. But there is something more than an inconsistency in tbe pleading. Tbe avoidance is based upon and cannot be made without an admission of tbe defense set up by defendant. If tbe reply be regarded as denying tbe allegations of tbe defense, then does it fail to present an avoidance?
Counsel cite, in support of .their position, Barr v. Hack, 46 Iowa, 308, wbicb bolds that, in an action for slander, a general denial may be pleaded in the answer with a justification. It may be conceded that tbe rule of tbe case applies to
“Section 2666. When a reply must be filed, it shall consist of: 1. A general or specific denial of each allegation or counter-claim controverted, or any knowledge or information thereof sufficient to form a belief; or 2. Any new matter not inconsistent with the petition, constituting a defense to the matter alleged in the answer; or the matter in the answer may be confessed and any new matter alleged, not inconsistent with the petition, which avoids the same.”
“Section 266T. Any number of defenses, negative or affirmative, are pleadable to a counter-claim, and each affirmative matter of defense in the reply shall be sufficient in itself, and must intelligibly refer to the part of the answer to which it is intended to apply. ******
It will be observed from these provisions that a reply is not permitted to deny the allegations of the answer, which is regarded as denied without further pleadings. See .cases cited in Miller’s Code and McClain’s Statutes. A denial of the allegations of the answer is unknown and is forbidden. A counter-claim, introducing new'matters not put in issue by the' petition and answer, must be denied by a reply. “ New matters, not inconsistent with the petition, oonstituing a defense to the matter alleged in the answer,” and matters in confession and avoidance of the defense pleaded in tlie answer, must be set up in the reply.
In the case at bar, the part of the reply denying the allegations of the answer must be disregarded, for the reason that it is forbidden by the statute. The reply must be regarded as
III. The allegations of the answer, showing the forclosure of a mortgage subsisting against the property, and the sale
The facts admitted by the reply are in direct violation of the condition of the policy above quoted. Under this condition, the policy becomes absolutely void upon the happening of the things contemplated therein, without any act on the part of the insurance company. The condition is a part of the contract entered into by the parties, and must be enforced. We cannot make a new contract for them, nor refuse to enforce the contract they made for themselves. Supple v. The Iowa St. Ins. Co., 58 Iowa, 29; Titus v. Glens Falls Ins. Co., 81 N. Y., 410; McIntire v. Norwich Ins. Co., 102 Mass., 230; Wood on Insurance, p. 550.
We reach the conclusion that the court below erred in refusing to direct the verdict for defendant. As this point is decisive of the case, other questions discussed by counsel need not be considered.
Reversed.