London & Lancashire Fire Insurance Co. v. Liebes
Before: Haynes
Synopsis
Insurance—Proofs of Loss—Fraudulent Representation—Recovery of Money Paid—Insufficient Complaint.—A complaint in an action by an insurance company to recover back insurance money paid upon proofs of loss, alleged to have contained a false representation as to the value of the goods in the building, does not state a cause of action for relief upon the ground of fraud, if it does not negative the fact that the actual loss exceeded the amount insured and paid by the plaintiff and his assignors.
Id.—Fraud without Damages.—A recovery cannot be had for a fraudulent representation without allegation and proof of damage.
Id. — Money Had and Received—Pleading — Averment of Nonpayment.—An action for money had and received is based upon a promise, express or implied, to pay the money to the plaintiff, and the complaint must allege the failure of the defendant to pay the money, which constitutes the breach of the contract, and, failing to make such averment, is insufficient as a complaint for money had and received.
Haynes, C. This appeal is from a judgment entered in favor of defendant, Jacob Liebes, upon his demurrer to plaintiff’s complaint. Louis Liebes was not served.
The complaint alleges that the plaintiff, on January 27, 1890, issued to Liebes Brothers & Co., a firm composed of Jacob and Louis Liebes, a policy of insurance in the sum of $2,500 upon merchandise, consisting of cigars and tobacco, in a building on Davis street in the city and county of San Francisco. Other insurance was carried by the insured in some fifteen other companies, the total amount carried being $59,500.
That on November 13, 1890, a fire occurred, whereby said merchandise “ was damaged and partially destroyed”; that proofs of loss, sworn to by respondent, were presented, wherein it was claimed that the loss amounted to $65,705.60.
“ That in support of said claim of loss it was represented ” by defendants that their stock of merchandise on hand on January 1, 1890, was of the value of $92,-442.31; that between January 1st and the date of the fire they had purchased cigars and tobacco of the value [205]of $174,376.62, and between the same dates their sales amounted to $196,481.89, of which last-named sum $44,432.78 were profits; that plaintiff believed said statements, and, relying thereon, “ did, subsequent to the presentation of' said proof, and prior to the commencement of this action, pay to the defendants the sum of $2,500, being the total amount of indemnity named in its said policy of insurance.”
The complaint then proceeds: “ That the plaintiff is informed and believes, and therefore alleges, that each and all of said statements so made by defendants to the plaintiff in support of their said claim of loss were false and fraudulent,” and made for the purpose of defrauding the plaintiff, and followed this allegation with a statement of the particulars in which it is claimed the statements were false, viz:
That the stock on hand January 1, 1890, was but $67,442.31; that of the $174,376.62 purchased, $9,447.37 had not been received by defendants, and fifty-four bales of Sumatra tobacco, of the value of $10,025.25, was, at the time of the fire, in a bonded warehouse on Broadway, leaving the value of the goods purchased and put in the store between January 1 and November 13,1890, $154,904, and that goods of the value of $781.20 were sold and not accounted for, which should be added to the sales represented, making such sales $152,830.31.
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