Cohen v. Home Insurance Company
| Decision Date | 14 June 1915 |
| Citation | 28 Del. 531,95 A. 238 |
| Court | Delaware Superior Court |
| Parties | DAVID COHEN v. THE HOME INSURANCE COMPANY, a corporation of the State of New York |
Superior Court, New Castle County, May Term, 1915.
ACTION IN DEBT (No. 71, January Term, 1915) by David Cohen against the Home Insurance Company, a corporation of New York.
Argument on defendant's demurrer to plaintiff's replication it being contended that in the latter there was a departure from the allegations in the declaration. Demurrer sustained.
Demurrer sustained.
Robert H. Richards, Aaron Finger and T. Allen Goldsborough (of the Maryland Bar) for plaintiff.
Richard S. Rodney (of Saulsbury, Morris and Rodney) and Enos H Stockbridge (of the Maryland Bar) for defendant.
OPINION
Demurrer filed by the defendant to two replications filed by the plaintiff.
It appears from the pleadings that David Cohen, the plaintiff, brought an action in debt against the Home Insurance Company, and filed a narr. containing three counts.
In the first count he claims damages for loss by fire, to the stock of goods in his store and declares on a policy of insurance dated September 15, 1913. He avers that he did on his part duly observe and fulfill all terms and conditions set forth.
In the second count he declares on a policy of insurance dated November 1, 1913.
The third count is based on both policies of insurance set forth in the former counts and also avers performance of conditions on the part of the plaintiff.
Defendant in its second plea alleges a breach on the part of plaintiff in that he did not perform his covenant to take an itemized inventory of his stock within thirty days of the issuance of the policy. The fifth plea in addition to alleging that the plaintiff did not take the inventory also alleges that the inventory was not placed in an iron safe as he covenanted to do.
The plaintiff in his replication to the second and fifth pleas avers that on or about the twentieth day of October, 1913, the defendant's agent inspected the plaintiff's stock of goods, and the plaintiff made application for additional insurance of four thousand dollars, whereupon defendant's agent suggested that he make an inventory of the stock to enable the defendant to ascertain whether or not it would issue the aforesaid additional insurance; the plaintiff made and completed the inventory on November 3, 1913, and submitted it to defendant and the defendant issued to the plaintiff the additional insurance. In the replication to the fifth plea the plaintiff also claims that the inventory then taken was placed in an iron safe.
As we understand the pleadings there is no contention on the part of the defendant that the inventory was not taken within thirty days of the issuance of the additional insurance policy on November 1, 1913.
The defendant claims that there is a departure in the plaintiff's pleadings in that he has in his narr. alleged performance of the covenants and in...
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Hanson v. Fidelity Mutual Benefit Corporation of Delaware, a Corp.
...replied by averring a waiver of the covenant. This was held to be a demurrable departure. The plaintiff, to avoid the effect of the Cohen case, contends that the effect of an estoppel is different from that of a waiver; that a waiver is an excuse for non-performance, while, if the defendant......
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