Home Mutual Fire Insurance v. Garfield

Citations

• 60 Ill. 124

Syllabus

<p>1. Plea waives a demurrer to the declaration. Where a defendant demurs to the declaration and the demurrer is overruled, and he then pleads to the action, he waives the grounds of demurrer, and can not raise the legal questions presented by the demurrer. If he desired to do so, he should • have abided by his demurrer.</p> <p>2. Insurance — policy—condition—notice—waiver. Where an- insurance policy contained a condition that if the interest in the real estate be less than a fee, the nature of the title must be stated, or the policy should be void, in answer to the question, what is the title, and is it incumbered by mortgage, etc., it was answered, a fee simple. There was a mortgage on the property to secure a loan of $10,000 to the person to whom the loss was, by the terms of the policy, made payable; but that fact was known to the agent and the vice president when the policy was issued, and the agent of the company wrote the application: Held, that under such circumstances it would be a fraud to permit the company to escape liability on that ground. The assured had a fee simple title subject to an incum-brance, of which the officers were fully informed. There was not a concealment of the title. This case distinguished from the Illinois Mutual Insurance Go. v. Marseilles Manufacturing Go., 1 Gilm. 236.</p> <p>3. Same — re-building by the company. Where the charter of an insurance company provided that settlement should be made, and a payment of the loss within three months, unless they, within that time, determined to re-build, and were authorized to do so in a convenient time, “provided they do not lay out and expend in such buildings or repairs more than the sum insured on the premises,” and a loss occurs, and notice is served on the assured that the company had elected to re-build, but they failed to do so: Held, that by giving the notice, the contract was not changed to a contract to re-build, but the company, failing to re-build within a reasonable time, bec