Redmon v. Phœnix Fire Insurance

Cassoday, J. Two questions are presented for consideration: Was the evidence to prove the existence of a mechanic’s lien of several thousand dollars on the property in question properly excluded by reason of the insufficiency of the answer? Was the mechanic’s lien an incumbrance, within the meaning of that word as used in the application for the insurance? It is urged on the part of the respondents, that, in order to entitle the defendants to introduce the evidence offered, they should have alleged in their answer such facts as it would have been necessary to allege in a complaint by Nordyke, Morman & Co. to enforce the lien. Of course, as urged by counsel, the statute requires the answer to contain, in order to make it available, “ a statement of any new matter constituting a defense or counterclaim, in ordinary and concise language, without repetition.” Section 2655, E. S. But the criticism is, that the answer “avers no fact; asserts only the pleader’s conclusion' that there were Encumbrances’ on the property in excess of the stipulated $5,000, without so much as indicating of what character they might be, much less — 298 — stating facts from which the court could perceive that any existed.” Good pleading undoubtedly required a statement of the nature of the incumbrances, and when and in whose favor they were incurred. Rut the question is not, whether this is a model answer, but whether it was so defective as to authorize the exclusion of the evidence. It is to be remembered that, “ in the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed with a view to substantial justice between the parties.” Section 2668, R. S.; section 21, ch. 125, R. S. 1858. The liberality here indicated has been sanctioned by this court from the first. Flanders v. McVickar, 7 Wis., 372; Robson v. Comstock, 8 Wis., 372; Morse v. Gilman, 16 Wis., 504. So this court has frequently held that, upon objection to receiving any evidence in support of a complaint or answer, taken for the first time at the trial, the pleading will be more liberally construed than where it is formally demurred to on the same ground. Luth. Ev. Church v. Gristgau, 34 Wis., 328; Hazleton v. The Bank, 32 Wis., 34; Teetshorn v. Hull, 30 Wis., 162. We are also to remember that evidence is not to be excluded merely because a pleading is “indefinite or uncertain.” The remedy in such case is by motion to make the pleading more definite and certain, under section 2683, R. S.; and even a demurrer in such cases will not lie, much less an objection to evidence on the trial. Flanders v. McVickar, 7 Wis., 372; Morse v. Gilman, 16 Wis., 531; Grannis v. Hooker, 29 Wis., 65; People v. Ryder, 12 N. Y., 433; Prindle v. Caruthers, 15 N. Y., 425. In New York the time for making such motion is limited to twenty days by rule. 2 Wait’s Practice, 500. This is in harmony with the sqoirit of our statute providing for the waiver of certain defects if not corrected within twenty days. Sections 2654, 2660, 2685, R. S. Counsel cite Thurber v. Jones, 14 Wis., 16, in support of the claim that this answer was so defective that the court was authorized to exclude the testimony. The similar allegation — 299 — there was, “ that the defendant is indebted to the plaintiff for moneys by the defendant received from and for the use of the plaintiff,” in the sum of $23.56; but Oole, J., in giving the opinion said: “ Perhaps this cause of action might support a judgment for the amount of money thus alleged to have been received.” The second count, however, was held to be fatally defective, as it did not allege ownership, and hence the reversal. • In Grannis v. Hooker, 29 Wis., 65, the same question arose, and the opinion was written by the same learned judge; and, although he makes no reference to Thurber v. Jones, yet the court, through him, fully sanctioned the claim “that all it is necessary the complaint should contain is substantially an allegation that the defendant, has received a certain amount of money to the use of the plaintiff, as in the old form of a declaration in indebitattis assumpsit/” and it was distinctly held “that the facts which, in the judgment of the law, create the indebtedness or liability, need not be set forth in the complaint.” Page 67. In Schmidt v. Pfeil, 24 Wis., 452, it was held that an allegation that the plaintiff had “ necessarily paid out a large sum of money in endeavoring to be cured,” etc., “ was sufficient to admit evidence of the amount so expended by plaintiff for medical services;” and that, if anything more was desired by the defendants, “ they should have moved to have the complaint .made more definite and certain.” In Pettit v. Hamlyn, 43 Wis., 314, it was held that “ where there is an averment, in general terms, of an agreement to convey, it must be assumed that it was a valid agreement; and it is error to reject all evidence under the complaint for its failure to expressly allege an agreement in writing, even though the answer denies such an agreement.” Decisions of other states, under statutes differing more or less from our own, of course are inapplicable. A motion to have the answer made more definite and certain would prob — 300 — ably have prevailed; but no such motion having been made, and eighteen months having elapsed after answer and before trial, and depositions having been taken on due notice in a distant state to establish the allegation of excessive incum-brance upon the property, we must, in harmony with the spirit of the decisions of this court, hold that objections taken for the first time at the trial, that the allegations of such incumbrance were insufficient to admit the evidence offered, came too late. ■ This brings us to the question whether a mechanic’s lien is an incumbrance. It is in effect conceded by counsel for the respondents, “ that a covenant against incumbrances in a conveyance of land is a guaranty against the existence of any charge upon it, which will compel the grantee to pay money to relieve the land,” and hence includes a mechanic’s lien; but it is insisted that in this application “ the word ‘ incumbrance ’ is used in its popular and not its technical sense.” No case has been cited making such distinction in the use of the word “incumbrance.” Webster defines an “incumbrance” to be “ a burdensome and troublesome load;” and again, “ a burden or charge upon property; a legal claim or lien upon an estate.” It will hardly be claimed that Webster did not define the word for the use of the populace, or that he only intended such definition to include mortgages. Certainly, judgments duly rendered and docketed must be regarded as incumbrances, as used in popular speech. Is not the same true with respect to a mechanic’s lien? It would seem to be impossible to conceive of any motive which would induce an insurance company, at the time of an application for insurance, to ask whether there were any incumbrances on the property by way of mortgage, which would not be equally controlling as to incumbrances by way of judgment or mechanic’s lien. All such incumbrances affect what counsel called the “ moral hazard.” In this respect, such incumbrances are wholly unlike a highway or right of way. It is true, as stated by counsel, that “ the existence of an incumbrance adds nothing to the risk of accidental or lion301 est loss,” but it is not so certain tliat it “ can in no case take anything from the insurer.” If it be conceded that every loss is “ accidental or honest,” then it might be true. But many of the stipulations and statements required in the applications for insurance are to secure risks in which there shall be no motive for intentional or dishonest loss. Obviously, the inducement to bring about loss by fire would be far greater in one who is insolvent, having an insurance upon property incumbered for more than it is worth, than in one free from debt and 'perfectly responsible. Such questions, put to the applicant for insurance, are obviously to secure a declaration from him that he at the time is free from any temptation to bring about an intentional loss, in case the company issues the policy. It is not a prayer, bust rather a declaration, forced by the company, to the effect that the assured will not be led into temptation by the issuing of the policy. Such being the motive for putting the question, it would seem to be difficult in this case to so construe the language as to hold that the company merely intended to ask, and the assured merely intended to answer, concerning incumbrances by way of mortgage, and no other incumbrances. No reported case has been cited involving the precise question here presented, nor any affirming the distinction in the use of the word incumbrance here claimed; and it seems to ns that such a distinction would be extremely technical and overnice, if not forced. The statute provides that “ every person who, as principal contractor, performs any work or labor, or furnishes any materials, in or about the erection, construction, etc., ... of any dwelling house or other building, or of any machinery erected or constructed so as to be or become a part of the freehold upon which it is situated, . . . shall have a lien thereupon, and upon the interests of the owner of such . . . building, machinery, etc., ... in and to the land upon which the same is situated, or of the person causing such manual labor to be done, . . . and such lien — 302 — shall be prior to any other lien which originates subsequent to ■the commencement of the construction ... of or upon such building, machinery, etc., . . . and may be enforced as provided in this chapter.” Section 3314, R. S. Under this statute it was held by this court that such lien takes precedence 'of liens of any other-kind (as by mortgage, judgment, and the like) attaching subsequently to the commencement of the building, and that, where there are several persons claiming liens under said statute, their order of priority among themselves is determined by the dates of the filing of their respective petitions. Hall v. Hinckley, 32 Wis., 362. ■ The plaintiffs, as well as all other persons coming within its provisions, were conclusively presumed to know the contents of the statute. Assuming, as we must for the purposes of this appeal, that the defendants could have proved all they offered to prove, then, such being the facts, the plaintiffs were conclusively presumed to know that the same constituted a valid subsisting incumbrance of several thousand dollars upon the mill by reason of the lien so given by the statute; and, knowing such facts and knowing of the- Oopp mortgage, they were asked by the company, “ What incumbrance, if any, is now on said property?” and they answered, $5,000, whereas the Oopp mortgage alone amounted to that. But it was stated on. ■the argument that such a construction might avoid a large per cent, of existing policies; that any person, however responsible, was liable to forget unpaid bills for recent repairs upon 'their dwelling houses, and, without thinking of the statutory lien therefor, apply for an insurance, and honestly state in the application that there was no incumbrance thereon, and yet, technically speaking, the answer might be untrue. The suggestion is> pertinent, and we have fully considered it. But this is not such a case; and besides, courts are not organized ■to make, nor regulate the making of, contracts between parties, nor to relieve parties from provisions in contracts on the ground that, in their ppinion, in some conceivable case they — 303 — might operate harshly. It is for parties to make their own contracts, under such regulations as the legislature may prescribe. Courts must be content with construing and enforcing contracts according to law. We therefore hold that a subsisting mechanic’s lien, for which a petition was filed, is an incumbrance within the ordinary meaning of the word. By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial. ORTon, J., took .no part.