Cooledge v. Continental Ins.

TAFT, J. I. It is stated in the record that, under objection and exception, the plaintiff’s husband testified that he was the agent of his wife. It is insisted this was error ; that it was necessary before he could testify, to establish his agency by other testimony than his own, according to the rule stated in Sanborn v. Cole, 63 Vt. 590. As showing the exception, the testimony is referred to, and upon an examination of it, it appears that the question was not made upon the trial. Therefore it is not before us.- II. The. defendant claims there was a variance in three respects, between the contract offered in proof and that set forth in the declaration, and that the court erred in admitting the contract in evidence. The plaintiff in setting forth her contract alleges the making and delivery of it by the defendant, and that the defendant therein and thereby in consideration of twenty-six and twenty-five one-hundredths dollars to it paid, did insure the plaintiff upon a tin shop building and merchandise therein, for one year, expiring at — 27 — noon, January 2, 1892, against all direct loss or damage by fire upon or to the property named, to an amount not exceeding fifteen hundred dollars, describing the property, its subdivisions, and the amount insured on each item, with loss, if any, payable to a mortgagee, and in case of loss or damage by fire thereto did promise to pay such loss or damage, to an amount not exceeding such sum for which each item of property was so respectively insured, and further alleging “all which will more fully and at length appear from said original policy of insurance now ready here in court to be produced ; and a performance on her part of all the conditions of the policy, by her to be kept, observed, and performed.” The allegation that the facts set forth will more fully and at length appear from the policy ready in court to be produced, etc.-, adds no force to the declaration for, as was said by the court in Estes v. Whipple, 12 Vt. 373, the writing declared upon “cannot be referred to and so made a part of the declaration, as is done in chancery.” The questions of variance were raised and passed upon in the county court, and so are properly before us under R. L., s. 1391. a. The contract is declared upon as absolute and unconditional ; it is alleged that by it the defendant did insure the plaintiff against all direct loss or damage by fire upon or to the property, etc. The contract in proof insures “against all direct loss or damage by fire, except as hereinafter provided;” and there are subsequent stipulations which provide that in certain contingencies the policy shall be void, such as loss caused by riot, etc. By the very terms of the contract it is conditional; it insures the plaintiff only in case the loss does not occur from the excepted causes; a contract to insure, without limitation, is not a contract to insure only in certain cases. .• fo -5 ■ b. In another respect the contract in proof is a conditional or qualified one. The declaration is upon a contract — 28 — to insure the tin shop building and its contents. The company would be liable if the property burned, situated as described when the policy was issued, and it might be liable in case of loss if the building was located elsewhere and the personal property contained in some other building. Petty v. Governor, etc., 1 Bur. 341; Lyons v. Prov. Wash. Ins. Co., 14 R. I. 109. The contract in proof insured the property “while located and contained as described herein, and not elsewhere.” This latter clause qualifies the contract, making it conditional. In the two respects named the contract was a qualified or conditional one. ’ In declaring upon a contract, if it contains an exception or provision qualifying the defendant’s liabil— it)?, the exception or proviso should be stated. An omission to do so creates a variance which is necessarily fatal. Bennett, J., in Woodstock Bank v. Downer, 27 Vt. 482, speaking of a clause in an agreement says, “It is a modification of the contract itself, and should have been set out in the declaration.” Chitty says in his PI., p. 314: “The omission of any part of the contract which materially qualifies and alters the legal nature of the promise which is alleged to have been broken will be fatal.” In Vavasour v. Ormrod, 6 B. & C. 430, Lord Tenderden, C. J., says, “The plaintiff ought in his declaration to have stated the reservation and the exception, and if he state it as an absolute unconditional stipulation without noticing the exception, it will be a variance.” While it is true that a question of variance sometimes does not affect the result of a trial, you cannot disregard them without, as Peck, J., in Gotlieb v. Leach, 4a Vt. 278, says, “violating the principles of pleading and evidence.” Ammel v. Noonan, 50 Vt. 406, cited by plaintiff, does not aid her. It was held in that case that it was necessary to set forth in the declaration only the particular promise or part of the agreement for the breach of which suit was brought, and that there was no variance if the — 29 — promise alleged in the declaration and the promise of the defendant to pay the debt which the plaintiff was seeking to recover, the one proved, were identical, although the defendant at the time of the promise promised to pay another debt to a third party. In the case at bar the promise to insure, etc., does not contain the exception or proviso in words, but refers to it, reading “except as hereinafter provided.” In such case it has been ruled that when the covenant or clause, although it does not contain the exception or proviso, refers to it by such words as “except as hereinafter excepted,” the exception or proviso must be stated in the declaration, for “verba relates inesse vldenturC Heard’s Civ. Prec. 16; Vavasour v. Ormrod, 6 B. & C. 430. Included in the contract and following the promise of the defendant to insure, etc., are many stipulations and provisions relating to the rights of the parties, making the policy in some cases void, giving directions in case of loss, etc. The counsel for the defendant has ably argued that these provisions should be alleged and set forth in the declaration. We think in this he is in error. The promise of the defendant as made, whether absolute or conditional, must be accurately stated, but it is by no means necessary that parts of the contract should be stated which are distinct and collateral provisions, or, respect only the liquidation of damages under particular circumstances, without extending to absolve the defendant from responsibility. Ch. Pl. 314; Clarke v. Gray, 6 East 658: “If the covenant or clause in an agreement is absolute in itself, without any exception or proviso, nor reference to any, it may be stated as an absolute contract, although in a distinct part of the instrument there is a proviso defeating or qualifying it under certain circumstances \ such a proviso is in the nature of a defeasance, and must be set up, if the facts permit it, by the other side.” Bennett, J., in Woodstock Bank v. Downer, 27 Vt. 482, — 30 — speaks of provisions in an agreement as “matter in discharge of the contract which may be omitted in the declaration, and to be treated as matters of defence.” Of this class of cases. Tripp v. Vermont Life Ins Co., 55 Vt. 100, is in point. This latter case is cited by the plaintiff’s counsel as sustaining the sufficiency of the declaration in the case at bar. The promise in that case as alleged and proven was an absolute one, and there was no necessity of alleging the collateral stipulations of the contract, and the remark of the court that the allegation “that the plaintiff kept and performed all and singular the conditions by him to be kept and performed was sufficient” would seem to be superfluous, in view of the fact that it was unnecessary to allege any conditions; and when, in fact, none were alleged. The rule substantially covering the whole subject is tersely stated by Lord Tenderden, C. J., in the case above cited of Vavasour v. Ormrod, 6 B. & C. 430: “If an act of parliament or a private instrument contain in it first, a general clause, and afterwards a separate and distinct clause, which has the effect of taking out of the general clause something which would otherwise be included in it, a party relying upon the general clause, in pleading, may set out that clause only, without noticing the separate and distinct clause which operates as an exception. But if the exception itself be incorporated in the general clause, then the party relying upon it (the general clause) must in pleading state it with the exception, and if he state it as containing an absolute' unconditional stipulation without noticing the exception, it will be a variance.” The conditional or qualifying clauses in the plaintiff’s policy being incorporated in the general clause of the contract should have been alleged, while it was not necessary to set out the collateral conditions which were separate and distinct, except so far as they may have been referred to by the phrase “except as hereinafter provided.” We do not wish to be understood that a condition prece — 31 — dent need not be alleged in whatever part of the contract it may be placed. c. The defendant raises another question of variance between the declaration and proof. The plaintiff alleges that by the contract the defendant, in case of loss, did therein and thereby undertake and promise to pay and indemnify the plaintiff for such loss or damage, to the amount not exceeding the said-sum for which each item of property was so respectively insured. A general promise to pay, without limitation as to time, is a promise to pay forthwith, within a reasonable time, and such must be the construction of the promise alleged. This is the only allegation in the declaration of the defendant’s promise in respect to the time of payment. The contract in evidence provided that the insured should “give immediate notice of any loss,” and that the “loss-or damage should be ascertained or estimated according to the actual cash value,” and that “said ascertainment or estimate should be made by the parties, or, if they differed by appraisers,” etc., and “the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy.” There is a material difference between the contract declared upon and the one offered in evidence. Under the one declared upon it would be the duty of the defendant in case of loss to pay the same forthwith within a reasonable time. Under the one offered in evidence the loss would not be payable until sixty days after due notice, ascertainment, estimate, and proof of loss in the manner provided by the policy. The. case is similar to Clark v. Todd, 1 D. C. 213, in which the court say: “The plaintiff has declared on a contract, by which the defendant promised to deliver to the plaintiff a certain quantity — 32 — of.cloth, that is, according to the legal effect of the contract, to deliver the cloth to the plaintiff, at his, the plaintiff’s place of abode; the contract proved is for the delivery of the cloth at the defendant’s factory in Poultney, the variance is fatal.” A non-suit was entered. There is a substantial difference between the contract alleged and the contract proven. It is clear that the defendant was not liable to pay any loss until it had been ascertained and sixty days had elapsed, or until he had refused to ascertain the amount in the manner provided in the policy. Such ascertainment and the lapse of sixty days, therefore, was a condition precedent to the payment; and if the performance of a contract depends upon some act to be done by either party or any other event, the plaintiff must aver the fulfilment of such condition precedent. Ch. PI., 321. If the obligation of the defendant to perform its contract depends upon an event which will not otherwise appear from the declaration to have occurred, an averment of such event is essential to a logical statement of the cause of action; such is the performance of a condition precedent. The defendant, by the contract in evidence, promised to pay in sixty days after the ascertainment and proof of loss, and was under no liability until that time expired, or, there was a waiver of the proofs and time, or, it was estopped by its conduct from making that claim. Such a provision is a condition precedent. The time when the defendant promised to pay is not alleged in the declaration. It would be its duty under such a contract to pay forthwith. It is a substantial part of the contract. That the pleader regards it as material is evident from the fact that he sets forth that the loss or damage was ascertained and proofs of loss furnished in the manner required by the contract in proof, and that sixty days had elapsed. This would be an unnecessary ‘allegation if the contract was like the one described in the declaration ; but this does not cure the misdescription of the — 33 — contract in a matter so material as the time, when the loss should be paid. The defendant insists that the policy was void by reason of the foreclosure proceedings. The decree of foreclosure was obtained in June, 1890, and was running when the policy was dated in January, 1891; the decree expired June 16, 1891. This claim is based upon the clause in the policy which reads, “If with knowledge of the insured foreclosure-proceedings be commenced, by virtue of any mortgage, * * * the policy shall be void.” We think this clause refers to foreclosure proceedings begun after the date of the policy, and not to- those already commenced'. In case of a policy with like provision, the applicant stated in his application that no foreclosure proceedings had been begun, but afterwards and before the policy was dated, such proceedings were commenced, and it was held the company was bound. Day v. Hawkeye Ins. Co., 72 Iowa 597, 17 Ins. Law Jour. 143 ; and see Phenix Ins. Co. v. Union M. Life Ins. Co., 101 Ind. 392, 14 Ins. Law Jour. 461. That the policy was void by reason of any concealment or misrepresentation of material facts is a question not raised by the record, and therefore is not considered. Judgment reversed and cause remanded.