Shawmut Mutual Fire Insurance v. Stevens

Dewey, J. 1. Objections to the form of a declaration, or that the same does not sufficiently set forth the ground of the plaintiffs’ claim, are to be raised by demurrer. Batchelder v. Batchelder, 2 Allen, 105. We perceive no ground for exceptions as to any omission to set forth the substantive facts upon ’which the recovery in the present action is sought. 2. The liability of the defendant upon the alleged contract constituted a part of the absolute funds of the company, and the money due thereon was payable on demand of the company or its treasurer. Long Pond Ins. Co. v. Houghton, 6 Gray, 82. 3. The court properly rejected the proposed evidence as to the fraudulent representations of the agent to the defendant in reference to the state of affairs of the company, the policy having been made with the following recital embodied therein: And every insurance agent, broker, or other person, forwardng applications or receiving premiums, is the agent of the applicant, and not of the company; ” and in the application the applicant having expressly agreed “ that the company shall not be bound by any act done, or statement made to or by any agent or others, not contained in this application.” The cases of Abbott v. Shawmut Ins. Co. 3 Allen, 213, and Mulrey v. Same, 4 Allen, 116, fully authorized the rejection of the proposed evidence. The case of Fogg v. Griffin, 2 Allen, 1 [335] cited by the defendant, was not similar to the present, the policy in that case containing no such stipulation declaring the insurance agent who forwarded applications and received premiums to be the agent of the applicant exclusively. Exceptions overruled.