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Oupton y. Oupton, 47 Mo. 87; Sutton y. Hay den, 62
Mo. 101. A father desiring to Uye with his daughter,
and haye her husband manage his liyery business,
transferred to her an insurance certificate and one-
half interest in his liyery stock, the daughter agreeing
to pay $1,000, which was to be appUed on a mortgage
giyen by the father, and to manage the business; the
earnings, after pacing all expenses, to be applied on
the mortgage, and after that was paid, to be equally
diyided. The daughter's husband was to have the



management of the father's interest in the busIneM.
At the same time the fkther executed tn the daughter
a deed for a one-ball interest in certain lands. Includ-
ing the stable, on the condition that she should suit-
ably proyide for him, the deed to be yoid on her fail-
ure to do so. The profits of the lands conyeyed were
reseryed to the father during hie life by the agreement.
The daughter and her husband had but $1,000 when
the agreement was made, and they acted in good faith
and performed their agreement. It was held that they
had the ezdusiye right to the sole control and manage-
ment of the business so long as there was no forfeiture
or interyenlng equity, and that the father was entitled
only to an accounting, and could not maintain an ac-
tion to dissolye a oopartnership alleged to exist by
reason of their agreement. Haggarty y. White, 84
N. W. Bep. 92; s. c, 89 Wis. 317.

W. W. Thornton.



INSUBANCE — WABBANTIB8 — PLEADING —
NECESSABY ALLEGATIONS ON A POLICY
OF INSUBANCE.

COWAN V. PH<ENIX INS, CO.

Supreme Court of Gol^/bmia, Jamuuy 29, 1889,

1. Insurance— WarrantUs" Pleading, —In counting
on a policy of insurance the petition need not allege
performance of warranties in prcuenti or aiBrmatlye
warranties, but the rule Is otherwise In the case of
promissory warranties.

2. Same— Necessary Allegations on a Policy
of Insurance. — The terms of an insurance
policy proyided that the amount of loss or
damage shall be estimated according to the
actual cash yalue of the property at the time of the
loss, and be paid sixty days after proofs of the same,
required by the company, shall haye been made by the
assured, and receiyed at the ofllce in Chicago: JBeltf,
that the complaint was bad on demurrer, for want of
allegation, that proofs were furnished sixty days
before the Institution of the action.

Thornton, J., delivered the opinion of the
court:

Actiou on policy of fire insurance, on whidi
plaintiff recovered judgment. Defendant appeals.

It is argued that the complaint is defective in
that it does not set forth the application of the
assured, which is deelaied to form a part of the
policy. It appears clearly from the complaint
that there was an application, which was made a
part of the policy. The contents of it are not
stated in the complaint. But it is stated in the
complaint, by appending the policy to and mak-
ing it part of it, that there was an application,
and that that application should be considered a
warranty by the assured. This stipulation of tlie
contract is a solenm engagement by the assured
that the representations made, in the application
at the time they were made, and when Uie policy
became a contract, were true and correct. There
are two classes of conditions usually inserted in
policies — the first pointing to the time of the con-
tract ; the second, to things which may occur, or
which may have to be performed, at a time sub-
sequent. In the former case the stipulation is



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called aa ^^affirmative warranty,'* and in the lat-
ter a ^^promissory warranty.^' 1 Marsh. Ins. 578;
Ann. Ins. § 145; Insurance Co. y. Cotheal, 7
Wend. 72. Affirmative warranties are sometimes
called *' warranties ^ prcesenti.^^ 1 Wood, Ins.
444. A breach of an affirmative warranty con-
sists in the falsehood of the affirmation, when
made, of a promissory warranty, which is in its
nature executory, of the non-performance of the
stipulation. De Hahn v. Hartley, 1 Term R. 343.
A stipulation that ^^a watchman shall be l^ept on
the premises nights** is a promissory warranty. 1
Woods, Ins. §§ 179, 186. So, also, that, during
the risk the premises shall be used as an hotel is a
promissory warranty that it shall be so used. An
engagement that so many buclcets of water shall
be kept by the assured on any floor of a building
is also a promissory warranty. 1 Wood, Ins. § 187.

Instances of promissory or executory warranties
may be found in Murdock v. Insurance Co., 2 N.
Y. 210, and Bobbitt v. Insurance Co., 66 N. C. 70.

In pleading performance of conditions prece-
dent in a contract, it is not necessary, under the
law of this State, to state the facts showing per-
formance, but it may be stated generally that the
party duly performed all the conditions on his
part. Code Civil Proc. § 457.

In counting on a policy of insurance, we cannot
see that there is any necessity of averring per-
formance by the insured of anything warranted
to be true when the policy is issued, for the reason
that there is nothing to be performed. When the
assured has warranted a thing to exist, or a rep-
resentation to be true, at a time when a policy
becomes consummated as a contract, he has done
all that he can do. The warranty is agreed to by
him, and there is an end of all he can do or per-
form. Under the section of the Code of Civil
Procedure above referred to, he is only required
to aver performance of the conditions on his part
to be performed, and, where there is nothing in
the representation or statement to be performed
by the plaintiff, theie is no necessity of setting
forth >uch representation or statement. Clearly,
when nothing is required to be performed by him,
finch an averment by him would be useless and
without meaning; whereas in the case of a prom-
issory warranty, the assured has warranted that
he will do something during the existence of the
risk, and therefore an averment of such stipula-
tion and of its performance is required. As is
«aid in 2 Wood, Ins. 1136: ''It can readily be
determined of what matters performance should
be averred by ascertaining what, under the policy,
the assured has stipulated to do, and what he
must do in order to recover, and he must aver
X>erformance of all such conditions; as where be
stipulates to erect a chimney, to keep a watch-
man, to put in a force-pump, to keep water in
certain quantities and in certain places, or any
other matter or thing which the insurer has con-
tracted to do.*' In same connection this author,
on same page, says : ''But, as to all other matters
which are in the nature of exceptions, or which



are merely prohibitory, and provide that the as-
sured shall not do certain things, the plaintiff
need not make any special averments, as they are
merely matters of defense, which, if relied upon
by the insurer, must be pleaded and proved by
him; and, if nothing is said in the declaration as
to whether such conditions have been broken or
not, the declaration will not be defective.** These
statements of Mr. Wood are sustained by cases
cited by him, and are on principle correct.

An application is generally nothing more than
a representation made by a party when he applies
for insurance of his property. These statements
or representations relate to the descriptive char-
acter and value of the property of which insurance
is sought, and how such property is used. When
the application is made a part of the policy given
out and a warranty, the warranties in it are of the
kind styled "affirmative** or ^Hn prcesenH,'*^ They
constitute a contract that the representations
made in the application are true. Of such engage-
ments or contracts there is nothing to be done
or performed by the insured, and therefore the
statements need not t>e set forth in a complaint
on the policy or any averment of the performance
of them. A plaintiff is not called on to aver or
prove the truth of such representations in his
complaint. It was so held in the case, of Herron
V. Insurance Co., 28 111. 238, upon a demurrer to a
complaint, where the same objection was made
to it as in the case before us, and the ruling of the
court below sustaining the demurrer was reversed.

It is said that something material, or which
may be material, to plaintiff's right to recover,
has been left out of the complaint. In reply to
this, we say it does not appear that anything ma-
terial in the application, or which may be mate-
rial to plaintitf's case, has been left out. The
application is not before us, and we cannot say
what is in it. Therefore we cannot say that any-
thing material is omitted from the complaint.
As to the contention that there may be something
material in the application which is omitted from
the complaint, in addition to what is said above,
we will further say that a demurrer to a complaint
should not be sustained because there may be
possibly something in an application affecting
plaintiff's right to recover which is not averred in
the complaint. Certainly we should not reverse
a ruling of tne court below overruling a demurrer
on a perhaps. Error should clearly appear to
justify such a course.

In ruling against the defendant on the point
above discussed, we desire to say, further, that
we cannot see how it can receive any detriment
from the lack of the suggested allegation. The
policy states that the application is filed with the
defendant, and in his answer defendant can set it
out and aver non- performance of anything re-
quired by it to be performed.

The second objection to the complaint is that it
does not appear that the proof of loss was fur-
nished to the defendant sixty days before the com-
mencement of this action. This question was



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presented to this court in Doyle v. Insurance Co.,
44 Cal. 264, and it was there held that a complaint
with a similar allegation was fatally defective.

The provisions of the policy in regard to proof
of loss are as follows : ''The amount of loss or
damage to be estimated according to the actual
cash value of the property at the time of the loss,
and to be paid sixty days after the proofs of the
same required by the company shall have been
made by the assured, and received at the office in
Chicago, and the loss shall have been ascertained
and proved in accordance with terms and provis-
ions of this policy, unless thQ property be replaced,
or the company shall have given notice of their
intention to rebuild or repair the damaged prem-
ises. Persons sustaining loss or damage by fire
shall forthwith givre notice in writing of said loss
to the company, and within thirty days thereafter
render a particular and specific account of such
loss, signed and sworn toby them, stating whether
any and what other insurance has been made on
the same property, giving copies of the written
portions of all policies thereon ; also the actual
cash value of the property, and their interest
therein; for what purpose and by whom the
building insured, or containing the property in-
sured, and the several parts thereof, were used at
the time of the loss; when and how the fife origi-
nated ; and shall produce a certificate under the
hand and seal of a magistrate or notary public
nearest to the place of the fire, not concerned in
the loss as a creditor or otherwise, nor related to
the assured, stating that he has examined the cir-
cumstances attending the loss, knows the charac-
ter and circumstances of the assured, and verily
believes that the assured has, without fraud, sus-
tained loss on the property described to the
amount which such magistrate or notary public
shall certify."

This last paragraph quoted is from subdivision
9 of policy. There are other provisions in this
subdivision which need not be quoted, bearing on
the subject of the proofs of loss.

The respondent's counsel, referring to the lan-
guage of the first paragraph just above quoted as
to proofs of loss, asiis: ''Now, how is the loss to
be ascertained and found in accordance with the
terms and provisions of this policy?'* • He then
proceeds to say that the mode prescribed by the
policy for ascertainment is the arbitration clause
of the policy, which is in these words. "The
amount of said value and of damage to the prop-
erty, whether real or personal, covered by this
policy, or any part thereof, may be determined by
mutual agreement between the company and the
assured ; or, failing to agree, the same shall then,
at the written request of either party, be submitted
to competent and impartial arbitrators, one to be
selected by each party, the two so chosen, in case
of disagreement, to select a third; and the award
of any two of them in writing, under oath, shall
be bindinv^ and conclusive as to the amount of
such loss or damage, but shall not determine the
validity of the contract, nor the liability of this



company, nor any other question, except only the
amount of such loss or damage.''

We cannot discern that the proofs of loss or
damage are dispeiised with or waived by the pro-
vision. The stipulation in tie policy that the
amount of loss or damage may be determined by
arbitration only talces eiSect when the parties have
failed to agree, and there is no allegatioii in the
complaint that they have failed to agree. If an
arbitration is required by the policy to ascertain
and determine the amount of loss or damage, still
it is clear from the clause first quoted, in regard
to proofs of loss, that the loss is not payable until
sixty days after the proofs have l)een made and
received at the office in Chicago.

If arbitration is resorted to for the ascertain-
ment and proof of the amount of loss, and the
award is not made until the period of sixty days
above stated has elapsed, still the amount of loss
Is not payable until such award is made. The
resort to arbitration may prolong the day of pay-
ment beyond sixty days, but cannot shorten that
period. This Is clear from the words used in the
clause first above quoted, which provides that the
loss shall not be paid until sixty days after the
proofs shall have been received at Uie office in
Chicago, and shall ha\e been ascertained and
found in accordance with the terms and provisions
of the policy, i. e., by arbitration, when resort is
had to it, if the tsontention of the plaintiff is to be
sustained. We thinlL it clear that the resort to
arbitration, as said above, may prolong the day
of payment beyond the sixty day period, but can-
not bring it within the sixty days.

We are of opinion that the objection to the
complaint just above discussed is well talcen, and
that the demurrer to it should have been sustained.

We deem it unnecessary to pass on the other
point made by the defendant, in regard to the
verdict, as there is no probability of its arising on
a new trial.

For the reasons above given the judgment is
reversed, and the cause remanded for a new trial,
with direction to the court below to sustain the
demurrer to the complaint, with leave to the
plaintiff CO amend.

KoTB.-— Judge Leonard, one of the ablest Judges
who ever oooupied a place on the bench of Missouri,
has thus defined warranties in the law of insurance:
"A warranty, in the law of insurance, is |i written
stipulation in the policy applicable either to matters^
present or future; in the former case it is called an af-
firmative and in the latter a promissory warranty,
these warranties are made effectual by treating them
as conditions precedent, upon the truth or fulfillment
of which the entire contract depends." ^ At the com*
mon law it was necessary to plead conditions prece-
dent, and show the manner of their performance.*
cases which, like this, seemingly are at va-
riance with the accepted law, are likewise dlstin-
The case annotated at first blush seems at variance
with the settled rules of law as held by other courts,
but the case has distinguishing features, for the court
says that,by reason of the code of the State the pleader

1 Hatohln son ▼. Instiranoe Co., 81 Mo. 97.

• 1 Otaltty's Pldg. p. S87.



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it only required to aver performanee of things re-
quired of him to be performed. Other
guishable, as where it was held that the application,
though called a warranty, was no part of the contract;
or, as in another, that It was a representation;' so this
case may be further distinguished, it holds the state-
ments in the application to be warranties '^proeseiHi,*'
and need not be averred. It will be observed that in
each of these cases the question is raised on the refer-
ence in the policy to the applioatlon. The rule of the
common law oontinues to be the sound rule of plead-
ing, namely, that conditions precedent must be set out
and their performanee pleaded.^ Where the appliea-
tUm is made a part of the policy, as where the question
is asked, '*is there a watchman In the mill during the
night?*' and the reply was *Hhere is a watchman
nights," it was held to be a continuing warranty, and
a failure to allege It made the petition demurrable.'
So, also, where a stipulation in a policy required that
notice of loss be given forthwith upon occurrence of
loas;* a petition was likewise held radically defective
where a provision of the policy called for a full and
particular account. In writing, stating the nature of
the assured'8 Interest therein, though this provision
was a by-law of the company, not incorporated in the
policy, but merely referred to as part of the contract,
and liiough the proof of the loss was alleged to have
been duly made;^ and again, where immediate notice
was required to be given in writing, stating whether
any, and what insurance had been made on said prop-
erty, giving copies of the written portiom of all poH-
ciee thereonfi From the cases it clearly appears that
the defect may be made by demurrer or by motion in
arrest, as It is a fatal defect and not cured by verdict.
Proof, though propeily made, and forwarded, will not
be competent unless the proper ground for Its intro-
duction has been laid by proper averment.* Though
a dedarstion sets out specifically the terms of the
policy, if a compliance be not averred specifically of
all conditions precedent, the pleading Is defective and
is not cured by a general averment that plaintiff per-
formed all things required of him by the contract.!®
The payment agreed to be made is conditional, and
before reoovery may be bad a substantial- compliance
wltk those eendtUons must be shown.u The test as
to what are necessary allegations In a given case is to
be determined by the pleader by a reference to the
terms of the policy on which he proposes to bring
suit.^ But there are what are termed exceptions,
which are negative are prohibitive in their character,
requiring that defendant shall refrain froin certain
things or acts; these need not be averred, being ex-
ceptions to the rule requiring the pleading of warran-
ties in the petition; in order that defendant may avail
hlmsell of them he must plead tbem in the answer,
bring' properly matter of deftonse.^ Respecting war-

8 Throop V. Ins. Co., 19 Mioli. 428; Herron v. Ios« Co.,
»IU.S88.

* Glendale Hnfg. Co. v. Ins. Co., 21 Conn. 1ft ; Bockford
V. Ins. COm 66 111. 415; Bdgerly v. Ins. Co., 48 Iowa, 687.

' Glendale Mnfg. Co. v. Ins. Co., 21 Conn. 19; Bobbett
T. Ins. Co., 66 N. Car. 70.

« Inman v. Ids. Co., 13 Wend. 460.

7 Johnston v. Ins Co., 112 Biass. 49; Dolbier v. Ins. Co.,
«7 Me. 180.

6 2 Gray, 280.

* Edgerly v. Ins. Co., 43 Iowa, 587.

IS Wood on Insurance, p. 1186, and oases cited In note
S; Perry v. Ins. Co., 8 Fed. Eep. 648.

11 Ptsrry ▼. Ins. Co., tupra.

a Woolen Co. v. Ins. Co., 21 Conn. 19.

IS Hnnt ▼. Ins. Co., 2 Daer, 481 ; Westf all v. Ins. Co., 2
Dner, 480; Ix>ansberry ▼. Ins. Co., 8 Conn. 458.



ranties in pr<B«eni< a change of use of the property
insured does not invalidate contracts unless risk Is
thereby materially increased.!^ Affirmative warranties
must be literally true, and promissory warranties
must be strictly performed.^ Bbnj. J. Kijbnb.

14 United States Ins. Co. v. Kimberly, 84 Hd. 224; BU-
Hngs V. Ins. Co., 20 Conn. 189; Jenkins v. Ins. Co., 2
Denlo, 76 ; Smith ▼. Ins. Co., 82 N. Y. 897.

U Hntchlnson v. Ins. Co., 21 Mo. 87.



WEEKLY DIGEST

Of ALLtke Cvrreat Optelona of 'AI.I. the State
«Ml Territorial Gonrts of Last Beaort, aa<l of tko
Snprooio, Clroolt aad DIstrtet Covrta of tbo
ITaltea States, ezeept tkoee tkat are PaMlsbe^l
In FnU or CoMaseated af^osi la oar Hoteo of
Mfeea t ]



ALlBAia 12, 16, 21, 23, 81, 88, 60, 66, 64, 68, 73, 77, 116, 120
124

ABKAHSAS 9,24,60

OALIFORVTA 17,19,61,82,101

COLORADO 89

GBORGIA 61,76

ILLIFOTS 26, 85

IKDIANA .• 68,86. 8H, 118

Iowa f!.... 26,99

KAHSA8 5, 6, 18, 18, 20, 80, 41, 56, 68, 65, 66, 67, 72, 78, 102, 106
127

KnirruOKT 82,89,70,71,78,79,108

MAIHB 80

MiSSOimi 8,14,69,98,109,112,122

NKW YOBS 98,128

NOSTH Carolou. 86,42,64,97,107

ORBOOM « 11,27,40,95

PBHHSTLYANIA 46

Sooth Carolou. lo

TBinrBSSBB 88,48,128

TBXAS 1,8, 7. 62. 82, 68, 85, no. Ill, 117, 118, 119,121, 120, 128
UBITBD 9TATBS a C. 2, 4, 15, 22, 29, 48; 44, 47, 57, 68, 74, 88
90, 91, 92, 94, 101, 105, 108, lU, 116, 129

UN1TBD 8TATB8 D. C 84,87,48,81,84,87,96,180

ViBGliaA • 45

Washihgton XBB. 28,100

1. AOTIOH ~ Joinder of Causes. Under tlie Code

system, a simple contract creditor may in the same
action reoover a Judgment for the indebtedness, and
have set aside a fraudulent conveyance by the debtor
to a CO defendant, — Shirleif v, Waoo JL Co,t 8. C. Tex.,
Jan. 22, 1889; 10 8. W. Rep. 548.

2. ADmBALTT^Jurisdiotion — Contracts; A con-
tract by which a master of a vessel agreed to carry
cbarooal to the place of destination, sell the same and
account for proceeds is not a martlme contract and the
admiralty court has no Jurisdiction.— Xrote v. Th^ Julia,
U. S. C. C. (La.), Jan. 19, 1889; 87 Fed. Bep. 869.

8. ADVBRSB PoesBSSiov— Actual and Continuous.

Adverse possession, to be available, must have been
contlnn'-tnA for the statutory period, Rev. St. Tex. art.
8198, deflnlpg adverse possession to be an actual and
visible appropriation, commenced and continuous un-
der claim of right, etc. — ffolsteinv, Adami,S.O. Tex.,
Jan. 22, 1889; 10 8. W. Bep. 580.

4. AiniiALS— Injuries by Dogs —Presumption. — Dogs
kept upon a farm are presumed not to be vicious and
the owner Is not liable for their vicious acts unless he
had knowledge of their vicious habits. — Shaw v. Craft,
U. S. C. C. (Ohio), Deo. 1888; 87 Fed. Rep. 817.

5. Appbal — Appealable Order — Appointment of Re-
ceiver. A writ of error to an order denying a motion

to vacate the appointment of and to discharge a re-
ceiver, and to require him to pay over the funds in his
hands, will not He before the final disposition of the

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aot!oii.^Boytf «. Cook, 8. 0. Kan., Feb. 9, 1889;20 Pao. Eep.
479.

6. Appbal — Appealable Orders — YacatlDg Order of

Arree(. Tbe supreme coort la wltbou( Jorladlctlon

to review a rallng of tbe district coart, refnslDg to
vacate an order of arrest before tbe flnal Judgment In
tbe action bas been rendered. — Bureh «. Adami, 8. 0.
Kan., Feb. 9, 1889; SO Pao. Rep. 478.

7 APPBAL—Asslgnment of Error— ^Sufficiency. An

assignment of error, simply stating tbat tbe Judgment
is contrary to tbe law and evidence oMbe case. Is too
Indefinite to be noticed. — Hougton v. Btptke, 8. O. Tex.,
Nov. 18, 1888; 10 8. W. Bep. 520.

8. Appeal— Bevlew— Objections not Made Below.

Exceptions to tbe Introduction of evidence, not made a
ground of complaint in tbe motion for new trial, can-
not be considered on appeal. ~ Ctfy of 8t. Louit v. Excel-
fior Co., 8. C. Ho., Feb. 4, 1889; 10 8. W. Rep. 477.

9. APPBAL—Bevlew— Objections not Made Below.

In KCtlon by tbe 8tate to collect excess In commissions,
no objection bavlng been made In tbe court below, tbat
It was Improper to Impose penalties for delinquencies
In tbe payment of tbe excess, it will not be considered
on appeal.— ITtifoti v. SUUe, to urn of St. FrancU Co., 8. O.
Ark., Feb.. 971889; 10 8. W. Bep. 491.

10. APPKAL^Bevlew— Questions of Fact. In cases

at law questions of fact cannot be brougbt under re-
view bowever erroneously found by tbe trial court. —
Miller V, Monk, 8. 0. 8. Oar., Feb. 6, 1889; 8 8. B. Bep. 688.



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