Schwahn v. Michigan Fire & Marine Insurance

NewMAN, J. The complaint states, in substance, that the plaintiffs are copartners, engaged in the saddlery and harness business; that the defendant is an insurance company; that the plaintiffs had a policy from defendant, insuring their stock; that the policy was about to expire; that the defendant agreed to renew the policy, and accepted a premium for the renewal; that it did not renew it; that before the túne of such renewal, if made as agreed, would have expired, the plaintiffs’ stock was destroyed by fire. That seems to embody all the issuable facts necessary to entitle the plaintiffs to recover. The contention arises over another fact which is stated in [86] the complaint. That is, tbe complaint states that the defendant’s agent, through, whom the renewal agreement had been ■made, afterwards, and before the loss, told the plaintiffs that the policy had been renewed. Of course, if the policy had been renewed, the complaint was defective for not showing the performance of conditions of the policy precedent to a right of recovery by the plaintiffs. But, clearly, what the agent may have said about the renewal at that túne was not a material issuable fact. It determines nothing. It may or may not be binding on the defendant as an admission. As an admission. it is only evidence. As matter of pleading it is entirely irrelevant. It may be both competent and material as evidence to show that the policy was in fact renewed, if issue shall be joined upon that fact. Scott v. Home Ins. Co. 53 Wis. 238. But as pleading it is entirely immaterial and would have been struck out on motion. No issue can be taken on it. It is not even admitted by the demurrer; for only issuable immaterial facts which are well pleaded are admitted by a demurrer. Yan Santv. PL (3d ed.), 183. So it is held that the complaint states facts which constitute a cause of action. It was error to sustain the demurrer. By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.