Butternut Manufacturing Co. v. Manufacturers' Mutual Fire Insurance

Oassodat, J. It is claimed that by the terms of the policy as set out in the complaint there is no agreement on the [207] part of the defendant to insure the plaintiff; that the only agreement therein is that the plaintiff company, having secured and in part paid the premium, “ do insure,” etc. The substance of what is thus contained in the policy is indicated in the foregoing statement. It is very manifest that the name of the insurance company in the fore part of the policy has inadvertently been omitted in copying the same into the complaint. Counsel claim that such inadvertent omission cannot be aided by the portions of the complaint alleging the legal effect of the contract of insurance. But such allegations as to the legal effect of the contract are complete in themselves, and are admitted by the demurrer. The whole scope and purpose of the complaint is to charge liability upon a contract of insurance which purports to have been executed by the insurance company by its president and secretary. Such being the nature of the complaint and the allegations therein, it would be absurd to hold that by reason of the inadvertent omission mentioned it was not the insurance company that thus agreed to insure the plaintiff, but that the plaintiff paid the premium for the privilege of insuring itself. This view does not militate against the authorities oited; nor do we think it is in conflict with any rule of pleading in force in this state. If the defendant regarded the complaint indefinite and uncertain in the particular mentioned, then of course the remedy was by motion. If the policy became forfeited before the fire by reason of non-occupancy, then that was a matter of defense not available for want of negative allegations in the complaint. Benedix v. German Ins. Co., ante, p. 77. It is true that by virtue of a certain clause of the policy the amount of the loss was not due or payable until sixty days after the first meeting of the defendant’s board of directors subsequent to the full completion of all the requirements of the policy. But the time of such meeting was peculiarly within the knowledge of the defendant, and it [208] is alleged that the defendant absolutely refused to disclose the same to the plaintiff. The allegations in that regard are sufficient to put the defendant to its defense. Burnham v. Milwaukee, 69 Wis. 379. It is true that under certain clauses of the policy set forth in said statement the amount of the loss did not become due and payable until sixty days had elapsed after the plaintiff had furnished proofs of loss. Counsel insists that it does not appear from the complaint that such period had elapsed before the commencement of this action. We think, however, that it does so appear. It is alleged, in effect, that full and complete proofs of loss were furnished to the defendant July 17,1889; that on that day the amount of such loss and damage was adjusted by the defendant with the plaintiff at $1,792.98, and the same was so agreed upon by the parties, and that the defendant then agreed to pay that amount within the time specified; that no objection had been made to the proofs so furnished, nor other nor further proofs demanded; that the sum last named became due and payable to the plaintiff from the defendant September 17, 1889; that the plaintiff had demanded the payment thereof, which the defendant refused; and that said amount was due and owing to the plaintiff from the defendant. Such allegations, with the general allegation of performance found in the foregoing statement, sufficiently showed that the sixty days had fully elapsed before the commencement of this action, and that all conditions precedent had been performed, within the rules repeatedly sanctioned by this court. Benedix v. German Ins. Co., ante, p. 77. By the Gourt.— The order of the circuit court is affirmed.