Estabrooks v. Fidelity Mutual Fire Insurance

Munson, J. This is a writ of error. Tire question raised by the first assignment of error is apparent from the record,, and can be revised by this court, although no exception to the judgment was taken. Small v. Haskins, 30 Vt. 172. The claim of the defendant in error is for certain assessments made upon, an insurance policy held by the plaintiff in error. The original declaration contained only the usual common counts. In Wertheim v. The Fidelity and Casualty Co., [205] 72 Vt. 326, 47 Atl. 1071, it is said that none of these counts is applicable to a contract of insurance. But it is urged that the ■ result of that case is not conclusive of this, because of the difference in the claims sought to be recovered. It is said that this suit is to recover what is due from the insured on account ■of moneys expended by the company for the benefit of all its members, and that a claim of this nature is recoverable under ■ the count for money paid. The company’s contract of insurance provided that certain assessments might be levied upon the policy-holders to meet the losses and expenses of the company. We are unable to see ' how the relations created by this contract afford any basis for a recovery under the count relied upon. To be thus recoverable, the money must have been paid in satisfaction of some ob'ligation resting upon the defendant, 1 Chit. Pl. 350. Here, there was no contract relation between the persons to whom the losses were paid and those against whom the assessments were levied. The rights of one and the obligations of the other were due from and to the company. The company paid the • moneys for which the assessments were levied in discharge of its own liabilities, and not in discharge of any debt due from ■ this plaintiff. Its claim against the plaintiff on account of these payments rests solely upon the terms of the policy, and that must be declared upon before recovery can be had. The defendant in error filed additional counts, declaring ■ specially upon the policy. Additional counts can be filed onfy for the cause of action originally declared upon. Inasmuch as ■ the original declaration contained no count applicable to a contract of insurance, the special counits upon the policy brought in a new cause of action, and should have been dismissed for that reason. Brodek v. Heirschfield, 57 Vt. 12. Judgment reversed, additional counts dismissed, judgment . that plaintiff in error recover his costs, and execution awarded.