Buchanan, J.,
delivered the opinion of the court.
Mrs. Mary Rutherford instituted an action of debt against the Metropolitan Life Insurance Company to recover the sum of $1,012.94:. The declaration contained two special counts, the common counts for money lent, money paid, and money had and received, and upon an account stated.
The defendant company demurred to the declaration and to each count thereof, and pleaded nil debet. The demurrer was sustained as to the special counts, and overruled as to the common counts. Upon the trial of the cause upon the issues joined upon the common counts, the plaintiff offered to read to The jury two policies of insurance issued by the defendant upon the life of Edward Rutherford, each for $500. To this evidence the defendant objected upon the ground that thesé policies which contained conditions and provisos, were not admissible in evidence upon the common counts, but that in order to introduce them, it was necessary to declare upon them specially and set out in the declaration fully the terms of each contract, and the performance of its conditions on the part of the plaintiff and those she claimed under.
This assignment of error raises the question whether a recovery can be had upon a policy or contract of insurance where, by the terms of the policy, the money is only payable on the performance of certain acts by the insured and the existence of certain facts without alleging in the declaration the performance of those acts, and the existence of those facts, or averring some sufficient excuse for their non-performance and non-existence.
Counsel for plaintiff have cited us to no authority, nor have we, in our research, been' able to find any case in which it has been held that a recovery can be had upon such a policy of insurance upon a declaration containing only the common counts.
The general rule is that where an act is to be done by one party as a condition precedent to his right to claim performance upon the part of the other, he cannot claim such performance [779]*779■without averring the doing of such act or giving’ some excuse for its non-performance.
Mr. Chitty says, that “when the consideration of the defendant’s contract was executory, or his performance was to depend upon some act to be done or forborne by the plaintiff, or in some other event, the plaintiff must aver the fulfilment of such condition precedent, whether it were in the affirmative or negative, or to be performed or observed by him or by the defendant, or by any other person, or must show some excuse for the non-performance.” 1 Chitty on Pleading, 329.
Mr. Robinson says, in discussing this question, that “all the cases agree that where words make such condition” (that is, a condition precedent) “the declaration must aver performance thereof.” 4 Rob. Pr. p. 3, 492, &c.; 3 Do. 571, 581; 1 Barton’s Law. Pr. 317.
The rule as stated in the text books is fully sustained, we-think, by the cases. Baltimore & Ohio R. Co. v. McCullough, 12 Gratt. 595, 597, and cases cited; Roach v. Dickenson, 9 Gratt, 154; Brockenbrough v. Ward, 4 Rand. 352, 354-5.
If money due upon such policies of insurance could be recovered upon the common counts, the Act of Assembly of February 9, 1872, entitled an act to simplify declarations in actions; against insurance companies (Acts 1871-2, p. 578), and now found in substance in the Code as section 3251, was wholly unnecessary.
That section of the Code provides “that in an action on a policy of insurance, if the plaintiff file the policy or a sworn copy thereof with his declaration, it shall not be necessary, in respect to the conditions and provisos of such policy to set forth in the declaration every such condition and proviso, nor to allege observance thereof or compliance therewith in particulars; but in-respect to such conditions and provisos it shall be sufficient to refer to the policy or copy and allege, in general terms, the performance of all its conditions, and the violation of none,of its prohibitions.”
[780]*780The first two counts in the declaration were evidently framed with reference to the provisions of that statute, and the common ■counts were added doubtless to enable the plaintiff to recover the small sum sued for, in addition to the amount of the two policies, which the evidence shows or tends to show had been overpaid upon the premiums on the policies.
The common counts are some times added to the special counts for the purpose of recovering money which cannot be recovered upon the special counts based upon the policy itself, as for over payment of premiums and the like. 2 Saunders on PI. & Ev., Pt. 1, p. 231; 2 Chitty on Contracts (11th Amer. Ed.), '925.
The court, we think, erred in admitting’ the policies of in•surance in evidence.
When a demurrer is sustained to a count in a declaration, Issue taken upon the remaining counts, a trial had and a verdict and judgment rendered in favor of the plaintiff, a writ of error •awarded to the defendant does not bring up the action of the •trial court in sustaining the demurrer to that count, nor can that •count be looked to in this court in order to sustain the verdict and judgment complained of, as counsel for defendant in error insist.
The second assignment of error seems to have been abandoned; at least, it was not pressed in oral argument, and properly so-, for it is without merit.
The third error assigned is to the action of the court in refusing to give instructions numbered four, five, and six asked for by the defendant, and in giving in their place instructions marked, A, B, and O.
In the first application of the deceased, which was made a part -of the policy, the following question was asked the deceased: “Has the life ever had any of the following complaints? Answer (yes or no) opposite each.” Then follows a list of diseases •about which the deceased was asked, viz.: apoplexy, asthma, ¡bronchitis, cancer or other tumor, consumption, disease of the [781]*781brain, disease of tbe heart, disease of the kidneys, disease of liver, disease of the nninary organs, dropsy, fistula, fits, or convulsions, general debility, habitual cough, hemorrhage, insanity, jaundice, paralysis, pleurisy, pneumonia, rheumatism, scrofula, spinal disease, spitting or raising blood, ulcer or open sores, and varicose veins. As to the disease of kidneys and jaundice the deceased answered: “Yes;” as to all others “Ho.”
In the application for the other policy, which was also made a part of it, he was asked the same question and gave the same answers, except as to1 the disease of the liver, which was answered “Yes.” In each application he answered “yes” when asked if he was “now in sound health.” He was also asked in both applications when he was last sick, and of what disease. In the former he answered in 1893 with colic, and in the latter January, 1894, with chills.
In the instructions asked for by the defendant the jury were informed, among other things, that if the deceased had had disease of the urinary organs or was not in sound health when insured the defendant was released, and that they must find in its favor. In the substituted instructions the court, upon this question, limited the grounds upon which the defendant would be released to the lack of prior health, or to diseases not caused by disease of the kidneys.
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Buchanan, J.,
delivered the opinion of the court.
Mrs. Mary Rutherford instituted an action of debt against the Metropolitan Life Insurance Company to recover the sum of $1,012.94:. The declaration contained two special counts, the common counts for money lent, money paid, and money had and received, and upon an account stated.
The defendant company demurred to the declaration and to each count thereof, and pleaded nil debet. The demurrer was sustained as to the special counts, and overruled as to the common counts. Upon the trial of the cause upon the issues joined upon the common counts, the plaintiff offered to read to The jury two policies of insurance issued by the defendant upon the life of Edward Rutherford, each for $500. To this evidence the defendant objected upon the ground that thesé policies which contained conditions and provisos, were not admissible in evidence upon the common counts, but that in order to introduce them, it was necessary to declare upon them specially and set out in the declaration fully the terms of each contract, and the performance of its conditions on the part of the plaintiff and those she claimed under.
This assignment of error raises the question whether a recovery can be had upon a policy or contract of insurance where, by the terms of the policy, the money is only payable on the performance of certain acts by the insured and the existence of certain facts without alleging in the declaration the performance of those acts, and the existence of those facts, or averring some sufficient excuse for their non-performance and non-existence.
Counsel for plaintiff have cited us to no authority, nor have we, in our research, been' able to find any case in which it has been held that a recovery can be had upon such a policy of insurance upon a declaration containing only the common counts.
The general rule is that where an act is to be done by one party as a condition precedent to his right to claim performance upon the part of the other, he cannot claim such performance [779]*779■without averring the doing of such act or giving’ some excuse for its non-performance.
Mr. Chitty says, that “when the consideration of the defendant’s contract was executory, or his performance was to depend upon some act to be done or forborne by the plaintiff, or in some other event, the plaintiff must aver the fulfilment of such condition precedent, whether it were in the affirmative or negative, or to be performed or observed by him or by the defendant, or by any other person, or must show some excuse for the non-performance.” 1 Chitty on Pleading, 329.
Mr. Robinson says, in discussing this question, that “all the cases agree that where words make such condition” (that is, a condition precedent) “the declaration must aver performance thereof.” 4 Rob. Pr. p. 3, 492, &c.; 3 Do. 571, 581; 1 Barton’s Law. Pr. 317.
The rule as stated in the text books is fully sustained, we-think, by the cases. Baltimore & Ohio R. Co. v. McCullough, 12 Gratt. 595, 597, and cases cited; Roach v. Dickenson, 9 Gratt, 154; Brockenbrough v. Ward, 4 Rand. 352, 354-5.
If money due upon such policies of insurance could be recovered upon the common counts, the Act of Assembly of February 9, 1872, entitled an act to simplify declarations in actions; against insurance companies (Acts 1871-2, p. 578), and now found in substance in the Code as section 3251, was wholly unnecessary.
That section of the Code provides “that in an action on a policy of insurance, if the plaintiff file the policy or a sworn copy thereof with his declaration, it shall not be necessary, in respect to the conditions and provisos of such policy to set forth in the declaration every such condition and proviso, nor to allege observance thereof or compliance therewith in particulars; but in-respect to such conditions and provisos it shall be sufficient to refer to the policy or copy and allege, in general terms, the performance of all its conditions, and the violation of none,of its prohibitions.”
[780]*780The first two counts in the declaration were evidently framed with reference to the provisions of that statute, and the common ■counts were added doubtless to enable the plaintiff to recover the small sum sued for, in addition to the amount of the two policies, which the evidence shows or tends to show had been overpaid upon the premiums on the policies.
The common counts are some times added to the special counts for the purpose of recovering money which cannot be recovered upon the special counts based upon the policy itself, as for over payment of premiums and the like. 2 Saunders on PI. & Ev., Pt. 1, p. 231; 2 Chitty on Contracts (11th Amer. Ed.), '925.
The court, we think, erred in admitting’ the policies of in•surance in evidence.
When a demurrer is sustained to a count in a declaration, Issue taken upon the remaining counts, a trial had and a verdict and judgment rendered in favor of the plaintiff, a writ of error •awarded to the defendant does not bring up the action of the •trial court in sustaining the demurrer to that count, nor can that •count be looked to in this court in order to sustain the verdict and judgment complained of, as counsel for defendant in error insist.
The second assignment of error seems to have been abandoned; at least, it was not pressed in oral argument, and properly so-, for it is without merit.
The third error assigned is to the action of the court in refusing to give instructions numbered four, five, and six asked for by the defendant, and in giving in their place instructions marked, A, B, and O.
In the first application of the deceased, which was made a part -of the policy, the following question was asked the deceased: “Has the life ever had any of the following complaints? Answer (yes or no) opposite each.” Then follows a list of diseases •about which the deceased was asked, viz.: apoplexy, asthma, ¡bronchitis, cancer or other tumor, consumption, disease of the [781]*781brain, disease of tbe heart, disease of the kidneys, disease of liver, disease of the nninary organs, dropsy, fistula, fits, or convulsions, general debility, habitual cough, hemorrhage, insanity, jaundice, paralysis, pleurisy, pneumonia, rheumatism, scrofula, spinal disease, spitting or raising blood, ulcer or open sores, and varicose veins. As to the disease of kidneys and jaundice the deceased answered: “Yes;” as to all others “Ho.”
In the application for the other policy, which was also made a part of it, he was asked the same question and gave the same answers, except as to1 the disease of the liver, which was answered “Yes.” In each application he answered “yes” when asked if he was “now in sound health.” He was also asked in both applications when he was last sick, and of what disease. In the former he answered in 1893 with colic, and in the latter January, 1894, with chills.
In the instructions asked for by the defendant the jury were informed, among other things, that if the deceased had had disease of the urinary organs or was not in sound health when insured the defendant was released, and that they must find in its favor. In the substituted instructions the court, upon this question, limited the grounds upon which the defendant would be released to the lack of prior health, or to diseases not caused by disease of the kidneys. The rejected instructions were clearly erroneous, and this does not seem to be controverted seriously, if at all, by the defendant’s counsel, but it is claimed that the court erred in the substituted instructions in limiting the defendant’s rights to be released to bad health, or to diseases not caused by disease of the kidneys.
If prior to the time when those answers were made, the deceased had had any disease of the urinary organs other than disease of the kidneys, or if he was not in sound health at the time the answers were made, the defendant was released from liability, for each of the answers made was warranted as true by the terms of the policies. What the defendant sought by its question was to learn whether or not he (deceased) had had any disease of his [782]*782urinary organs, no matter how caused, by which their ordinary operations had been seriously disturbed, or their vital powers materially weakened. In ascertaining whether his urinary organs had been diseased or not it was proper for the jury to consider -the object which the defendant had in making the enquiry and the circumstances izuder which the answer was made. As was said by the Supreme Court of the United States in the case of Connecticut Mut. Life Ins. Co. v. Union Trust Co., 112 U. S. 250: “It was not contemplated that the insured could recall, -with such distinctness as to be able to answer, categorically, -every instance during his past life, or even during his manhood, -of accidental disorder or ailment affecting the liver which lasted only for a brief period and was unattended by substantial injury, or inconvenience or prolonged suffering. Unless he had an affection of the liver that amounted to disease, that is, of a ■character so well defined and marked as to materially derange for a time the functions of that organ, the answer that he had never had the disease called affection of the liver was a fair and true’ one; for such an answer involved neither fraud, misrepresentation, evasion, nor concealment, and withheld no information as to his physical condition with which the company ought fo have been made acquainted.”
If the deceased had, in fact, had disease of the urinary organs, •other than disease of the kidneys, the defendant was released from liability, although that disease was caused by disease of the kidneys, and the court erred in not so instructing the jury.
And if the deceased was not in sound health when insured, except in so far as his health had been impaired by the diseases which he stated in his application that he had had, the defen•dant was released upon that ground also.
As the judgment will have to be reversed for the errors referred to above, it is unnecessary to consider the other assignment of error, viz., that the verdict is contrary to the evidence.
The judgment must be reversed, the verdict set aside, and [783]*783the cause remanded for a new trial with leave to the plaintiff to file an amended declaration; the new trial to be had in accordance with the views expressed in this opinion, so far as they are applicable to the case made.
Reversed.