DocketNumber: Docket No. 35
Citation Numbers: 145 Mich. 473
Judges: Blair, Carpenter, Grant, McAlvay, Moore
Filed Date: 9/20/1906
Status: Precedential
Modified Date: 9/8/2022
Complainant on January 19, 1905, was in the occupancy and possession of certain farm lands in Monroe county, together with the buildings thereon and personal property used in connection therewith. On that date a local director of defendant company, a Michigan corporation, solicited insurance in said company of the buildings and personal property. An application, among other things, contained the following:
“ I do hereby make true answers to the following questions as the facts now are. * * * In whom is the title to the property both real and personal ? Fred Ruppert. * * * Is any of it incumbered ? If so what' is the amount of the incumbrance? No. * * * And the undersigned states and warrants for the purpose of obtaining such insurance, the representations and statements ^herein to be the truth and agrees that this application’together with the policy of said company, its articles of association and by-laws are a part of the contract of insurance with said company, and that no statements, agreements or representations shall be of any effect not contained in said writings. * * * I accept this insurance subject to the articles of association and rules and by-laws of said company now in force or that may hereafter be in force.”
Upon this application and the payment of the required amount of money, a policy of insurance was issued January 24, 1905, to complainant upon the dwelling house and contents, the barns and contents, including live stock and so forth, granary and contents, toolhouse and contents, and poultry house, specifying the amount of insurance placed on each item, the total being $1,700, against loss or damage by fire or lightning, during the term of five years from January 19, 1905, “ as specified in the articles of association and by-laws printed hereon, and which are signed by the assured and which are together with the application a part of this policy and agreement.” At the time the policy issued complainant’s mother had a life estate in the premises and complainant had mortgaged the premises for $1,300, all of which was unknown to defendant company. On January 29, 1905, a part of this prop
1. Because complainant has not made or stated such a case as entitles him to relief.
2. Because complainant has a complete and adequate remedy at law.
3. Because the bill of complaint attempts to set up a new contract to the terms of which defendant never agreed and upon which relief depends.
A replication was filed and by stipulation proofs were taken in open court. The court in his opinion found the facts as claimed by complainant, and that he was entitled to the amount of the loss as adjusted, with interest, and granted a decree in his favor for that amount, with costs.
Defendant appeals from this decree, and urges upon this court that the demurrer should have been sustained. It will be necessary to consider but one of the grounds of demurrer, namely, that a court of equity has no jurisdiction of the case because complainant has an adequate remedy at law. We do not find that the bill of complaint alleges sufficient to bring the case within equity jurisdiction. The allegations constitute a contract of insurance enforceable at law. No fraud, deceit, or misrepresentation is charged, nor does the bill seek for an accounting, or a reformation of the contract. The allegations relative to the mistake in answering a question in the application by reason of ignorance of the English terms used, together with the other allegations as to the acts and conduct of the officers of the defendant, show that these are questions of fact to be tried out on the law side of the court before a jury, in an action upon the insurance contract. An ex-
For the reasons given, the decree of the circuit court is reversed and set aside, and the bill of complaint dismissed without prejudice, with costs of both courts to defendant.