delivered the opinion of the Court.
This is an appeal from a judgment of $300, upon a policy of insurance issued by the appellant to the appellees upon he life of a valuable horse, which died during the term covered by the policy.
The defense was based upon the following provision of the policy : “ This company will not be liable for losses occurring through negligence or carelessness of the assured, nor for any animal, whose age shall be found to be different from that named in the application, nor if the assured, in case of sickness or accident to the animal or animals hereby insured, shall fail to render at once notice to the secretary of the" company of such sickness or accident, together with the name and address of veterinary employed.”
The horse first showed sign of sickness on July 1, 1894. He did not improve, but rather grew worse until the fifth, when a veterinary surgeon was called in. The indications became more unfavorable from day to day until the ninth, when one of the owners notified the company by mail. On the tenth the company sent a surgeon to examine the horse. This surgeon was of opinion the case was hopeless, and somewhat criticised the previous treatment, but went away leaving the former surgeon in charge. On the 13th the horse died.
Very clearly, the condition above quoted was not complied with. But it is claimed the action of the company in sending a surgeon to examine the horse and his action, together with that of the adjuster, in asking and receiving proofs of loss, amounted to a waiver on the part of the company of this condition. The letter of the 9th, informing the company that the horse was sick, read as follows:
Bank of LaHarpe, Manifold and Kirkpatrick, Bankers,
LaHarpe, Illinois, July 9, 1894.
Illinois Live Stock Insurance Company—Cents: I write to inform you that Trego is sick, with what the veterinary says is due to indigestion. Has been very sick, but we think is some better now, and if he don’t have some set back, we think he is in a fair way to recover.
Yours,
R. B. Kirkpatrick.
Upon its receipt the company, by wire, asked for the condition of the horse and whether they should send a surgeon, to which a reply by wire was sent saying the horse was no better, that company should do as it thought best about sending a surgeon, and that there were two then in attendance.
Whereupon the company sent the surgeon as already stated. What there is in the action of the company so far, to waive the condition referred to, is not apparent.
The company did not know how long the horse had been sick nor what was the ailment. It had a perfect right to send a surgeon to. ascertain the condition and to do what he could toward a cure.
In so doing it waived nothing. Nor was there a waiver in the action of the adjuster in receiving or even asking the formal proofs of loss. We do not care to discuss the cases cited by appellees which are thought to be analogous and to support their position in this respect. This contract contains an express provision binding on the parties, reasonable in its terms and inserted for the protection of the insurer.
It has a right to rely upon it and it is the duty of the court to enforce the contract as the parties have made it. The court should not be asked to strain the language employed or unreasonably to resort to the doctrine of waiver in order to support a recovery.
Counsel for appellees insist the proof supports the third count, and that by pleading over after demurrer it is too late now to urge an objection to that count.
If, however, a declaration is so fatally defective as not to support the judgment the defect may be availed of by motion in arrest. A defectively stated cause of action may be aided by verdict but when no cause of action is stated the defect in the declaration will not be so cured and the objection may be urged in arrest or on error. Stearns v. Cope, 109 Ill. 340; Tidd’s Practice, 919-20.
Hence, if a declaration fails to state a cause of action, and all the facts therein alleged are proved, and no more, the sufficiency of the evidence to support the judgment may be questioned on error.
The third count, so relied on, whether good or not, averred that the aduster, after becoming fully conversant with all the facts and circumstances, etc., demanded and received the proofs of loss.
But we find no proof that the adjuster had such knowledge or that he made such demand.
The instructions of the court to the jury proceeded upon a view directly opposite to that above announced. In our opinion the judgment is erroneous. It will be reversed and cause remanded.