62 A. 1040 | Md. | 1906
The questions in this case arise upon demurrers to the several pleadings. The narr. contains thirteen counts, the first four being the ordinary money counts, the other nine are special counts. The fifth count alleges that the Mutual Reserve Fund Life Association, now known as The Mutual Reserve Life Insurance Company, in December, 1882, insured the life of Elias C. Price, deceased, father of the appellant, for the benefit of the plaintiff, and that the said appellee failed to carry out its contract with the said Elias; that the said Elias has since died and by his last will and testament the appellant is the sole legatee of his estate; that the said insurance company failed to comply with its said contract of insurance, in that it did the things and omitted to do the things mentioned in the narr as *685 particularly mentioned in the fifth to the thirteenth counts inclusive. To this narr, the appellee filed nineteen pleas, wherein he pleaded, by the first plea, limitations, by the second and third the general issue, by several pleas from the fourth to the eighteenth inclusive, special traverses, of the several breaches set out in the narr; and by the nineteenth plea, "that with full knowledge of all the actings and doings of the defendant on the policy of insurance and without any concealment or misrepresentations on its part, the said Elias Price voluntarily elected to discontiue payment on the mortuary assessments and dues, levied and assessed by the defendant, and thereby voluntarily suffered the said policy to elapse, whereby all the rights and claims of the said Elias Price wholly ceased and determined according to the express terms of said policy; and that said Elias Price, with full knowledge of all the acts and doings of the said insurance company for more than four years fully acquiesced in and assented to all said doings and well knew that said policy had lapsed and become null and void, wherefore it is further alleged that the said policy was cancelled and terminated during the lifetime of the said Elias and was acquiesced in by the said life association.
The appellant by his replication to the defendant's first plea, set up to the plea of limitations as follows; that by the false and fraudulent conduct and deceit of the defendant, his right of action was not discovered until within a period of less than three years prior to the bringing of this suit. He joined issue upon all the other pleas except upon the nineteenth plea, to which he demurred. To this replication, the defendant rejoined, setting up, to the plea of limitations, first, that the defendant was not guilty of fraudulent conduct and deceit in relation to the policy; and that the said Price with full knowledge of all the doings and acts of the said insurance company in reference to the said policy, had voluntarily refused to pay the assessment and had directed the company to cancel the policy. And further that said Elias lived for more than four years thereafter, and that the said Elias, as well as the appellant, did know of said alleged causes of action, and that the *686 appellant could have discovered by the use of ordinary diligence the alleged causes of action, four years next preceding the institution of this suit.
The appellant demurred to the second, third and fourth rejoinders; and joined issue as to the fifth, whereupon the Court sustained the demurrer as to the narr., overruled the rejoinders to the plea of limitations, and on the 19th of July, 1905, on motion of appellees rendered judgment in their favor, and from this the appellant has appealed.
Without further particularity in stating the voluminous pleadings in the case it is apparent that the real questions involved are, whether or not a legal cause of action is stated in the narr., and also whether the plea of limitations was properly pleaded, and if so whether the facts set out in the rejoinders thereto were legally effective to constitute a bar. Stripped of its verbiage the ground of the plaintiff's right of recovery appears to be, that the appellant, the son and sole legatee of Elias C. Price, bases his right to sue, upon the facts that Elias in his life time entered into a contract with the appellee, and that the appellee failed to observe the obligations resting upon it by the terms of said contract in the several particulars specially set out in the narr., notwithstanding the fact that in the life time of Elias, the contract was by agreement between the said Elias and the company cancelled. The appellant claims this right to sue, not because, under and by virtue of the contract itself he has any such right, but solely because he was named as the beneficiary therein. It was laid down in Seigman v. Hoffacker,
The interest of the appellant being that of a beneficiary, had no interest in the policy further than that he could claim as beneficiary, and therefore no right to sue for the breach of the contract with Elias Price. If the breaches set out in the narr. can be recovered for at all (and of this we are not to be understood as expressing any opinion) the personal representatives of Elias Priee are the proper parties to sue. But apart from this — the appellee, by his nineteenth plea, alleges that about April, 1898, Elias Price, with full knowledge of the actions of the defendant in relation to the said policy "voluntarily elected to discontinue payment on the mortuary assessments and dues lawfully levied and assessed and suffered the said policy to lapse" and directed the policy to be cancelled and the same was cancelled and for more than four years acquiesced in the cancellation of the policy and in the doings and acts of the defendant, and well knew that said policy had lapsed, c., according to the express terms and conditions of the policy. The demurrer admits these facts, which are set out in the *688
pleading. And further by the second rejoinder to the said replication, that Price with full knowledge of all the facts failed and refused to pay the assessments then due, and directed the defendant to cancel the policy and that in consequence thereof the policy was abandoned, c. These facts are conclusive against any claim under the policy. Mutual L.I. Co. v. Sears,
The plea of limitations was set up by the appellee's first plea. It applied to all the counts in the narr. To this the replication was, "That by the false and fraudulent conduct and deceit of the defendant, his right of action was not discovered until within a period of less than three years prior to the bringing of this suit. This replication was insufficient, in that it is not alleged that the fraud was not discovered and could
not have been discovered with ordinary diligence within a period of three years prior to the bringing of the suit. Wear v.Skinner,
Apart from this, upon the facts alleged in the appellee's rejoinder, the appellant was not kept in ignorance of his alleged cause of action by the fraud of the defendant and could have discovered it within three years by ordinary diligence. Inasmuch as the plea of limitations as set out by the appellee's plea went to the whole declaration including the four first counts, the Court committed no error in sustaining the demurrer to the declaration and the plea of limitations.
The appellant not having asked leave to plead over, the appellee, on motion was entitled to judgment on the pleadings.
Judgment affirmed.
(Decided January 9th, 1906.) *689