Ætna Insurance v. Phelps

Walker, J. It is urged, that the declaration in this case was insufficient, and that the court below erred in overruling the defendant’s demurrer. The policy upon which suit was brought, contains this amongst other provisions: “ In case of any loss on, or damage to, the- property insured, it shall be optional with the company to replace the articles lost or damaged, with others of the same kind and equal goodness; and to rebuild or repair the building or buildings within a reasonable time, giving notice of their intention so to do within thirty days after preliminary proof shall have been received at the office of the company.” It is insisted, that the declaration is substantially defective, for the want of an averment, negativing this clause. By the common law rules of pleading, in declaring upon a bond with a condition annexed, breaches were alone required to be assigned upon the bond. If there had been a performance of the defeasance or condition, it was held to be matter of defense. And this is certainly true of all conditions subsequent. 1 T. R. 640. It is however otherwise, with conditions precedent. Gould, in his treatise on Pleading, 177, states the rule thus: “ It is never necessary, by the common law, for the plaintiff, in his declaration to state or in any manner to take notice of any condition subsequent annexed to the right he asserts. For the office of such condition is not to create the right on which the plaintiff founds his demand; but to qualify or defeat it. The condition therefore, if performed or complied with, is matter of defense, which it is for the defendant to plead.” In this case the defendant in error became, according to the covenants contained in the policy, entitled to recover at the time the loss occurred. But by this condition the company had the right-to defeat the recovery, by rebuilding the property destroyed. If they performed this subsequent condition, they should have pleaded the performance. This condition was inserted solely for the benefit of the company, its performance was to be subsequent to any loss which might occur, and after notice of that fact, and was purely a matter of defense. Howard Fire and Marine Ins. Co. v. Cornick, 24 Ill. 455. It is also urged that the court erred in impanneling a jury to assess the damages, after the regular panel had been discharged for the term. At common law, the court had the unquestioned right to issue a venire facias, at any time during its session, returnable to the term, whenever the business of the corut might require it. And we must suppose if it was designed to constitute this a regular panel, that such a writ was issued. But if that were not so, still upon a default, a writ of inquiry may issue to have the damages assessed, which may be executed in court, or be directed tb the sheriff to execute in vacation. If the sheriff executed the writ, by summoning the jury, and having the damages assessed in the presence of the court, it would certainly be as regular as if done in' vacation. So that whether it were executed before the court, or the sheriff, with a portion of the regular panel or bystanders, can make no difference. We are unable to perceive any error in this record requiring the judgment of the court below to be reversed, and it is therefore affirmed. Judgment affirmed.