Hersey v. Northern Assurance Co.
Supreme Court of Vermont
Assumpsit on a fire insurance policy. Heard on demurrer to the declaration, at the March Term, 1903, Washington County, Stafford, J., presiding. Demurrer overruled pro forma. The defendant excepted. The first count does not show a consideration. Gray v. Osborne, 24 Tex. 157; Harding v. Cragie, 8 Vt. 501; Perry Com. 1,. PI., 88, 89; Cowan v. Insurance Co., 78 Cal. 181. The second count is equally defective in this particular.
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Assumpsit on a fire insurance policy. Heard on demurrer to the declaration, at the March Term, 1903, Washington County, Stafford, J., presiding. Demurrer overruled pro forma. The defendant excepted. The first count does not show a consideration. Gray v. Osborne, 24 Tex. 157; Harding v. Cragie, 8 Vt. 501; Perry Com. 1,. PI., 88, 89; Cowan v. Insurance Co., 78 Cal. 181. The second count is equally defective in this particular. Marshall v. Aiken, 25 Vt. 328; Bank v. Adams, 43 Vt. -i95. The third count is not good as a general count, for it states that there was a special contract, which must be…
1Opinion of the CourtStafford, J.
The plaintiff is seeking to recover upon a fire insurance policy; and the case stands upon a demurrer to each of the six counts of his declaration. The first and second are intended as general counts in assumpsit ; neither is claimed to be good as a special count. We think it clear that at common law neither would be good as a general count, because it discloses an express promise as the indispensable basis of recovery. The allegations of fact, aside from the promise, are not such that the law raises therefrom an implied promise. Although the existence of an express promise in a special…
2Cases cited2 opinions
- Greaves v. NealU.S. Circuit Court for the District of Massachusetts · 1893
- Wertheim v. Fidelity & Casualty Co.Supreme Court of Vermont · 1900
3Cited by10 opinions
- Houran, Admr. v. Preferred Acc. Ins. Co. of N.Y.Supreme Court of Vermont · 1938
- Jacobs v. Loyal Protective InsuranceSupreme Court of Vermont · 1924
- Patterson's Admr. v. Modern Woodmen of AmericaSupreme Court of Vermont · 1915
- Steve A. Ziman v. The Employers Fire Insurance CompanyCourt of Appeals for the Second Circuit · 1974
- Howard National Bank v. Fidelity & Casualty Co.Supreme Court of Vermont · 1923
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