46 Fla. 268 | Fla. | 1903
(after stating the facts). — I. The amendment of the declaration merely enlarged the claim for damages to be recovered, so as to include attorneys’ fees, without the addition of a single allegation as to plaintiff’s right to recover upon the cause of action alleged in the declaration. The demurrer to this amendment was based solely upon the alleged unconstitutionality of the statute purporting to authorize the recovery of attorneys’ fees. A demurrer does not lie to a declaration because it claims other or greater damages than the case made legally entitles the plaintiff to recover, demurrer not being the proper pleading by which to test the extent of the recovery. It was, therefore, error to sustain the demurrer to the amendment of the declaration. Cline v. Tampa Waterworks Company, de
The fourth plea was not a proper plea-even if as contended by defendant the action was upon a covenant under seal, for the reason that under rule No. 67 above referred to the proper plea is non est factum. The court should have granted the motion to strike that plea.
III. The demurrer to the replications of plaintiff to the ninth, tenth and eleventh pleas was based upon several grounds. The first two contend that the replications are departures from the declaration, and are, therefore, subject to general demurrer. A departure in pleading is a matter of substance, and ground for general demurrer. Tarleton v. Wells, 2 N. H. 306; Pease v. McKusick, 25 Me. 73; Pollard v. Taylor, 2 Bibb, 234; Keay v. Goodwin, 16 Mass. 1; 1 Chitty’s Pleading, 678. The defendant in error contends-that the declaration alleges performance of all things to be performed by the plaintiff in general terms; that the pleas traverse this general allegation by alleging specifically nonperformance of the iron safe clause; that the replications, instead' of denying the allegations of the pleas, admit them and set up excuses for non-performance though the declaration alleges performance, and, therefore, the replies constitute departures. We infer from the citation of an authority in the order of the Circuit Judge upon the demurrer that he sustained it upon these grounds, but the order being general, this court can not reverse his ruling if it finds that any ground of demurrer was good. In order to determine whether the replications constitute departures in pleading
Other grounds of demurrer claim that the alleged waiver is pleaded as a legal conclusion, that it is not alleged to be supported by a consideration and that facts are not alleged showing that plaintiff was misled to his prejudice. It appears from the declaration that plaintiff gave defendant immediate notice of the loss; that defendant’s agent came to where the property was destroyed, made an adjustment of the loss, expressed himself satisfied concerning it, found that plaintiff had sustained a loss of $2,886.13, and thereupon then and there agreed and promised to pay plaintiff the amount of money secured to be paid by the policy. These allegations of the declaration are not denied by the ninth, tenth and eleventh pleas, and the replications allege that after knowledge of the breach of the iron safe clause' the defendant promised to pay the policy. These allegations do not set up waiver as a legal conclusion, but aver the fact to be that defendant promised to pay the policy after knowledge of the breach of the iron safe clause. The object and purpose of the iron safe clause was to enable the defendant to secure reliable data upon which to base an adjustment of the loss. These pleas do not deny that plaintiff had kept books and the inventory as required, but alleged merely that they were not kept in the proper place and that they were not
We are referred to a clause in the policy that “the use of general terms, or anything less than a distinct specific agreement clearly expressed and endorsed on this policy shall not be construed as a waiver of any printed or written condition or restriction .therein,” but we do not see that such clause affects the question here. It is doubtful if it has reference to waivers of forfeitures made after a loss has occurred, as its language seems applicable to waivers of the conditions or restrictions in the policy. But however that may be, it is a clause which may itself be waived, and if the company adjusted the loss and promised to pay the policy with knowledge of the forfeiture, it will be bound, notwithstanding such waiver was not endorsed on the policy. The adjustment and unconditional promise to pay the loss with full knowledge of the forfeiture, with no reservation that the waiver was to be endorsed upon the policy, will bind the company to such waiver, notwithstanding the clause referred to.
The judgment of the Circuit Court of Alachua county is reversed and the cause remanded with directions to overrule the demurrer to and motion to strike the amended declaration, to grant the motion to strike the fourth plea and to overrule the demurrer to plaintiff’s replications to the ninth, tenth and eleventh pleas, and for such further pro