Hersey v. N. Assur. Co.

• Decision Date: 31 August 1903
• Citation: 75 Vt. 441,56 A. 95
• Parties: HERSEY v. NORTHERN ASSUR. CO.
• Court: Vermont Supreme Court

56 A. 95

75 Vt. 441

HERSEY

v. NORTHERN ASSUR. CO.

Supreme Court of Vermont. Washington.

Aug. 31, 1903.

Exceptions from Washington County Court; Stafford, Judge.

Action by Harvey Hersey against the Northern Assurance Company. From a judgment overruling defendant's demurrer to the declaration, defendant brings exceptions. Reversed.

Argued before TYLER, MUNSON, START, WATSON, STAFFORD, and HASELTON, JJ.

R. A. Hoar, F. P. Carlton, and F. L. Laird, for plaintiff.

J. W. Gordon and F. A. Howland, for defendant.

STAFFORD, J. The plaintiff is seeking to recover upon a fire insurance policy, and the case stands upon a demurrer to each of the six counts of his declaration. The first and second are intended as general counts in assumpsit. Neither is claimed to be good as a special count. We think it clear that at common law neither would be good as a general count, because it discloses an express promise as the indispensable basis of recovery. The allegations of fact, aside from the promise, are not such that the law raises therefrom an implied promise. Although the existence of an express promise in a special contract does not prevent a recovery upon a promise implied by law, when the contract has been fully performed on the part of the plaintiff, and nothing remains to be done on the part of the defendant except to pay money, it is always necessary that what has been done on the part of the plaintiff should be sufficient of itself to raise an implied promise. In the present case the facts aside from the promise, viz., the plaintiff's ownership of the property, its destruction by fire without his fault—even the payment of premiums-do not raise an implied promise by the defendant to pay. It is only the fact that it promised, upon certain conditions, to pay, that makes it liable. Consequently, at common law, the promise, the conditions, and the fulfillment of the conditions must be set forth. In other words, the count must be special. See the notes to Cutter v. Powell, 2 Smith's Lead. Cas. 8 et seq., and the admirable account of the action of assumpsit in Perry's Common-Law Pleading, 82-89.

It is claimed, however, that these two counts are good by virtue of No. 121, p. 89, of the Acts of 1896, which declares that in actions upon fire, life, and accident insurance policies the general counts in assumpsit shall be a sufficient declaration, and requires the plaintiff to file with the writ a specification of the number of the policy, the date of fire, death, or accident, and the items of the policy involved in the claim, and provides that the plea of non assumpsit shall put in issue only the execution of the policy, and the amount of damages sustained thereunder. In Wertheim v. Fidelity & Casualty Co., 72 Vt. 326, 47 Atl. 1071, it was held that under this act the usual omnibus counts were not sufficient, and the statute was construed as requiring a general count aptly framed for the recovery of money due upon a policy of insurance. The two counts we are now considering appear to fulfill this requirement Each alleges, in substance, that the defendant, being indebted to the plaintiff in the sum of $2,000 by reason of its having become an insurer of his property against loss by fire, and the subsequent loss thereof by fire without his fault, promised to pay said sum on demand, yet, though requested, neglects and refuses so to do. To say that the count must go further, and set forth the terms and conditions of the contract whereby the defendant became insurer, would be to say that the count must...