Clay Fire & Marine Insurance v. Wusterhausen

Citations

• 75 Ill. 285

Syllabus

<p>1. Pleading—decla/ration on insurance policy not necessary to negative matter of defense. In an action of covenant on a policy of insurance containing a condition, that if any change took place in the title to the property insured by voluntary transfer, without the consent of the company, the policy should be void, it is not necessary for the plaintiff in his declaration to allege that no change in the title had taken place, etc., as such clause in the policy is solely for the benefit of the insurer, and, therefore, it is incumbent on him to interpose a breach of the condition in defense.</p> <p>2. Same — requisites of pleas in general. It is an elementary rule of pleading that every plea should be so pleaded as to be capable of trial, and, therefore, must consist of matter of fact, the existence of which may be tried by a jury on an issue, or the sufficiency of which, as a defense, may be determined by the court upon demurrer, or matter of record, which is triable by the record itself</p> <p>3. Same —plea presenting a mixed question of law and fact is tad on demurrer. In a suit upon an insurance policy, containing a condition that the same should be avoided if any change took place in the title to the property by voluntary conveyance without the assent of the company, the company pleaded that before the loss, to wit, on, etc., at, etc., a change took place in the title of the property insured by voluntary transfer, and without the consent of the defendant, whereby the policy became void: Held, that the plea was obnoxious to a demurrer, as it presented an issue involving both questions of fact and law which could not be submitted to a jury.</p> <p>4. Burden of proof—payment of loss on insurance. In an action to recover for a loss of property insured it is not incumbent on the plaintiff to prove that he has not been paid. This being a matter of defense, the burden of proof is on the defendant.</p> <p>5. Pleading and practice—leave to reply double. Where a plaintif