Cox v. Farmers' Mutual Fire Assurance Ass'n

The opinion of the court was delivered by Parker, J. This action is founded on a policy of insurance made by the defendant company, on the 17th day of July, 1871, by which said company covenanted to insure certain buildings and other property of plaintiff, against loss or damage by fire, for the term of ten years, from the 9th day of June, 1871, in a sum not exceeding $2500. The declaration is in legal form and makes averments which, if proved, will entitle the plaintiff to recover. Several pleas are filed. To the seventh plea the plaintiff has demurred. This plea sets forth and alleges that by the fifth section of the act of incorporation of the defendant company, the board of directors has the power to make and prescribe such by-laws and regulations as to them shall appear needful and proper, and to alter and amend the same, touching all such matters as appertain to the business, ends and purposes which said corporation by such act was entitled to; ■and also that by the seventh section of said act of incorpora [54] tion, it was provided, that all policies of insurance which should be made by said incorporation in pursuance of said act, shall be made upon such terms and conditions as should be from time to time ordained and prescribed by the by-laws, rules and regulations of said corporation. The plea then states that in pursuance of the power and authority as aforesaid, the said board of directors did adopt and establish a bylaw, which, among other things, provided that if the president of the company should cause notice to be given in writing to the insured that the company declined to have an arbitration, or to pay the loss without suit, the insured must bring suit against the company within six months thereafter, or be barred of his claim against the company, of which bylaw the plaintiff had notice on the 17th day of July, 1871, and that afterwards the said company did cause notice to be given to the plaintiff, that the company declined to have an arbitration, or to pay the loss without suit, and that the plaintiff did not, within six months after the receipt of such notice, bring suit against the company for the claim. This plea is bad because it does not allege that said by-law was adopted before the contract of insurance made with the plaintiff was entered into. It alleges that plaintiff had notice of the by-law on the 17th of July, 1871, but whether before or after the policy of insurance was entered into it does not state. The plea should allege that the by-law was passed before the issuing 'of the policy. Wood on Fire Insurance 871; Ins. Co. v. Harvey, 45 N. H. 292. Demurrer sustained. As the plea thus overruled does not go to the merits of the case, the defendant cannot be permitted to plead de novo.