Shertzer v. Mutual Fire Insurance

Miller, J., delivered the opinion of the Court. A practice which cannot he too highly commended, of waving hy agreement, all errors in pleading, has heen gradually growing in favor with the profession in this State, and has prevailed especially in suits upon policies of insurance. In this case, however, it is purely a question of pleading that we have to decide. • The action is in covenant, the policy being under seal. The defendant, after craving oyer, pleaded four pleas, to the first of which the plaintiff replied and issue was joined upon each of the others.

The defendant demurred to the replication, and the demurrer being sustained, the plaintiff, without trial of the issues, suffered judgment in favor of the defendant to he entered on the demurrer, and from that judgment has appealed. As the demurrer goes hack to the declaration, we need not, in the view we have taken of the case, consider whether the replication is had. By the policy, dated the 28th of February, 1870, which, with its conditions and endorsements, was produced on oyer, the company insured the plaintiff, among other sums, to the amount of $1000 “ on the contents of” a frame barn, granary, and stabling (which were also insured), situated on his land, called “ Widow’s Care,” in Harford County, and the suit is for loss hy the destruction of this property hy fire, which occurred in 1874. The declaration admits that the property, when destroyed, was not in the buildings in which it was at the time the insurance was effected, hut had heen removed to another part of the same tract of land which the plaintiff had subsequently purchased, and avers that on the 29th of July, 1870, the plaintiff applied to the defendant “for permission to remove the personal property described in said policy to ⁵⁰⁹ that part of Widow’s Care,” which he had so purchased and which was then in his occupancy, “ and the defendant then and there granted that privilege and right to the plaintiff and endorsed said permission upon said policy of insurance, and in pursuance of said permission ” the removal was made.

The endorsement thus made on the policy is signed by the secretary of the company, but is not under seal, and is in these terms : “ Permission is hereby granted to assured to remove the personal property insured within to the property now occupied by him and insured to Jacob Shertzer by policy Ko. 832.” One of the conditions annexed to and made part of the policy, provides that “ insurance on contents of buildings shall be taken and construed to include every species of personal property therein,” and from this, in connection with the terms of insurance in the body of the policy itself, it is clear the risk which this policy covered as respects the property in question, continued only so long as it remained in the buildings in which it was at the time the policy was issued. Annapolis and Elk Ridge Railroad Co. vs. Baltimore Fire Ins. Co., 32 Md., 37 ; Maryland Fire Ins. Co. vs. Gusdorf, 43 Md., 506 .

It follows, therefore, that the plaintiff had no cause of action against the company for this loss except by virtue of the permission thus endorsed on the policy. The declaration, in fact, sets up this endorsement and relies upon it as the means by which the insurance, which would otherwise have been ineffectual, was extended to and continued in force as to this property, after its removal, and as this permission was not granted under the seal of the company, the inquiry arises, was covenant the proper form of action ? This question is in effect