Jones v. Supreme Court of the Independent Order of Foresters

The trial court overruled the demurrer to the complaint upon the grounds that the plaintiff and her assignor, Samuel T. Jones, the insured under the endowment certificate,' treated the insurance contract as breached by the defendant, that they had elected to consider the contract as ended, and that their acts in effect amounted to ah election to stand on. the breach and to enforce their claim for a recovery •of the value of the contract as damages for the breach of the agreement by the defendant. The appellant insists that the allegations of the complaint show that there was a rescission •of the contract by the plaintiff and the insured following its alleged breach. An inspection of the complaint 'indicates that the pleader employed language whereby he omitted to preserve the distinction between a complaint for damages arising from a breach of the policy, which is the value of the contract, and one for the damages based upon a rescission of the policy. The nature of the complaint must be ascertained from a consideration of all the facts alleged, since the aspect of the whole complaint-controls its nature rather than any of the allegations, which may be somewhat vaguely and loosely stated and permit of different interpretations leading to inconsistent results. The allegations of the defendant’s repudiation and abandonment and of plaintiff’s notice to the defendant electing to treat the contract as ended, and that plaintiff would •claim damages for the breach, are controlling features of the transaction alleged, and the other matters pleaded must be interpreted in the light of these allegations and claims of the plaintiff. In this view of the pleading we are of the opinion *671that tbe complaint must be beld'to allege a cause of action against tbe defendant for tbe recovery of tbe value of tbe contract as tbe damages occasioned by tbe breach. It bas been beld that tbe rights of parties to a contract such as is alleged 'to have existed between tbe parties herein are valuable property rights, and that an invasion of the rights of the insured by a breach of the contract gives rise to a legal claim for the damages resulting therefrom. Merrick v. N. W. Nat. L. Ins. Co. 124 Wis. 221, 102 N. W. 593; Slocum v. N. W. Nat. L. Ins. Co. 135 Wis. 288, 115 N. W. 796.

The plaintiff avers that she is the-assignee of all the rights and claims that may have accrued to the insured as a result of the alleged breach. She is therefore the only party in interest 'under the complaint

By the Court. — The order appealed from is affirmed.