Stadler v. Trever

LyoN, O. J. The complaint, although signed by able counsel, is very carelessly and obscurely drawn. It contains extended statements of evidence as distinguished from facts, thrown confusedly together, and it omits direct statements of material allegations, which compels resort to doubtful inferences to supply them. Indeed, in some material particulars there is not sufficient averment to support even doubtful inferences. Although negligence and wilful misrepresentations are charged therein, the pleader evidently was trying to state a cause of action ex contraetu, for some breach of a contract to place insurance on plaintiff’s property. It is immaterial that defendant negligently omitted to place the insurance, or that he made the misrepresentations alleged. The omission is alleged as the breach of the contract, and averments of the reasons why it occurred are surplusage. The allegation that the misrepresentations by defendant were one of the causes of the [46] damage to plaintiff is illogical and of no significance, because the fire alone caused suck damage. If defendant entered into and failed to perform a valid contract with plaintiff to place insurance on the property burned, whether he so failed negligently or wilfully, or for any other reason not chargeable to plaintiff, he is liable to respond in damages for the breach of such contract; otherwise, not. Did the complaint allege that the original policy issued to plaintiff was canceled; that the unearned premium was in the hands of defendant, who promised to write a new policy in some other company for which he was agent, and to apply such unearned' premium in his hands in payment of the premium on such new policy; and that he failed to do so, retaining the unearned premium,— he would doubtless be liable for the damages to plaintiff caused by such breach of contract, the measure of which, in this case, would be the value of property which he agreed to insure, and which was afterwards burned. But there is no averment that the policy was ever canceled,— only a statement that defendant said it had been canceled. Without a cancellation of the policy, no unearned premium was due from the insurance company. Neither is it averred that the defendant had any such premium in his hands. . Presumably, he had paid over the premium on the original policy to the insurance company entitled thereto. In that case he had no funds in his hands with which to pay the premium on the new policy, and his agreement to write a new policy (if he so agreed) was without consideration and not binding upon him. It is said that, had he written the new policy, he would have been entitled to a commission thereon, which is a sufficient consideration for his promise to write it. But it is not alleged that he would have been entitled to such commission. He may have been working for the company in which he would [47] have written the policy for a salary, in which case his compensation might not have been affected by the writing, or failure to write, the new policy. „ Moreover, there are conflicting averments in the complaint on a very material point. While we think that, considering the whole complaint, the breach of the contract assigned is the failure of the defendant to charge some insurance company with the risk on plaintiff’s property, yet it is alleged therein that the unearned premium paid for the - original policy “was applied by the defendant in payment of the premium on the policy which defendant said and promised plaintiff to write.” If this allegation is true, probably the insurance company for whose benefit such premium was applied would be liable to plaintiff on its agreement by its agent to insure him. The plaintiff knew that the defendant was acting as agent of such company, and hence defendant could not be held liable on such agreement to insure. If plaintiff did not know the name of such company, he could have ascertained it by applying therefor to defendant, who no doubt would gladly have given the information, and thus have relieved himself from personal liability. Even under the liberal rules which now prevail for the construction of pleadings, we fail to find in the complaint any certain, intelligible statement of facts constituting a cause of action, and are therefore impelled to the conclusion that the demurrer thereto should have been sustained. By the Gourt.— The order is reversed, and the cause will be remanded to the circuit court with directions to sustain the demurrer.