Rosenberg Suit & Coat Co. v. General Accident Fire & Life Assur. Corp.

193 P. 441, 98 Or. 118, 1920 Ore. LEXIS 99

• Court: Oregon Supreme Court
• Decided: November 16, 1920
• Status: Published

Opinions

BENSON, J.

There is but one question presented upon this appeal, and that is raised by defendant’s contention that the complaint does not state facts sufficient to constitute a cause of suit.

The portion of the complaint whose sufficiency is challenged reads thus:

“That on the third day of October, 1918, plaintiff and defendant entered into a contract of insurance whereby defendant contracted and agreed for a premium to indemnify the plaintiff against all loss by burglary of merchandise plaintiff may have at No. 144 — 146 Third Street, Portland, Oregon. That it was contracted and agreed that said contract of insurance and indemnity should become effective from noon, October 3, 1918, and continue for a period of one year. That in accordance with said contract of insurance and in accordance with said agreement, a certain policy of insurance was made, executed, and delivered by the defendant to the plaintiff, but said policy of insurance erroneously and mistakenly stated the date of the commencement of said insurance as of noon, October 8, 1918, contrary to the agreement and contract aforesaid.”

The complaint further recites that “during the evening of October 4th and the morning of October 5, 1918,” the burglary was effected, resulting in the loss, and that defendant was promptly notified thereof.

1, 2. Defendant relies upon the well-established doctrine that a complaint in a suit for the reformation of a written instrument must allege that the mistake was mutual, and did not arise from his own gross negligence, or that his misconception originated in the fraud, of the defendant. This doctrine is toó well settled to require citations to support it. However, it appears that no demurrer was interposed to the complaint, and that it was presented here for the first time. It has been repeatedly held by this court that in the absence of demurrer, and after decree, a defective statement of a cause of suit will be held sufficient, and this rule has been applied specifically to cases like the one at bar, wherein it was sought to reform a written instrument. In the case of Osborn v. Ketchum, 25 Or. 352 (35 Pac. 972), a case in which the plaintiff sought the reformation of a deed, the complaint did not allege the probative facts as fully or as clearly as is done in the instant case, and yet this court, speaking by Mr. Justice Moore says:

“In Hyland v. Hyland, 19 Or. 51 (23 Pac. 811), it was held, a similar complaint being under consideration, that it was not a case of a defective cause of suit, but of a defective statement of it; that if the case had been presented in this court upon demurrer to the pleading, the demurrer would probably have been sustained, and that, having answered, every reasonable inference should be in favor of the complaint that could be drawn therefrom. If it had been the intent of Critcherson to purchase the real property mentioned in the amended description, and the intention of Ketchum to grant and convey another tract, then the minds of the parties never met or agreed upon the terms of the contract, and hence the mistake, if any, would not have been mutual. But here — while conceding that the description in the deed is different from that now sought to be established — the plaintiff distinctly alleges that it was the actual intention of both parties to purchase and convey the property by the description as amended; hence it follows that, in the absence of a demurrer to the complaint, these necessary allegations are to be inferred. ’ ’

The conclusion reached in the case from which we have just quoted is peculiarly applicable to the case at bar, and we conclude that the decree of the lower court should be affirmed, and it is so ordered.

Apeibmed.

McBride, C. J., and Harris, J., concur.