I am of the opinion that the removal of the property covered by the policy from the building located at 801 18th Street, Birmingham, Alabama, to Bristol, Tennessee, if such removal was without the consent of the insurer, constituted a forfeiture of the benefits embraced in the policy, and that the defense of forfeiture was properly pleaded by the defendant in its special plea and that plaintiff pursued the proper course by filing replications to said special plea. setting up the waiver. That was the situation the Court was dealing with in Alabama State Mutual Assur. Co. v. Long Clothing Shoe Co., 123 Ala. 667,26 So. 655, so strongly relied upon by the majority.
I am also in disagreement with the majority as to the sufficiency of count 7 of the complaint which first adopts all the averments of count 6. Count 6 is in the form prescribed by the statute for actions on policies of insurance and declares on the policy issued to the plaintiff by the defendant on the 5th day of November, 1946, and then undertakes to plead as the consideration for a contract to extend the coverage of the policy on the property while being moved from its location at the time the policy was issued to its new location in Bristol, Tennessee, a mutual agreement between the parties, in legal effect, a new *Page 343 contract, different from the contract declared on in count 6 and adopted in said count 7. Great American Ins. Co. v. Dover,219 Ala. 530, 122 So. 658; Powell v. Life Casualty Ins. Co. of Tennessee, 237 Ala. 19, 184 So. 899. Therefore, assuming such "mutual agreement" would be sufficient to support such new contract, no such agreement is alleged in said count 7. At best the averment of said count merely leaves the agreement to mere inference or implication which, on demurrer, is resolved against the pleader. I am, therefore, of opinion that the demurrer was properly sustained to said count.
I am also of opinion that any statements made by the plaintiff to defendant's agent prior to the issuance of the policy in respect to the coverage as pleaded should be stricken on defendant's motion as all such negotiations are conclusively presumed to have been abandoned when they were not written into the face of the policy. The only consideration pleaded in count X was a mutual agreement made after the issuance of the policy and, as stated in the majority opinion, this was not sufficient consideration for a new contract.
I concur in the result flowing from the error of the court in sustaining the demurrer to the plaintiff's replications to the defendants' pleas.