
    FANNIE B. WHEELER, PLAINTIFF IN ERROR, v. UNITED STATES CASUALTY COMPANY, DEFENDANT IN ERROR.
    Argued December 1, 1905
    Decided June 18, 1906.
    On error to the Supreme Court.
    Eor the plaintiff in error, McDermott & Fnright.
    
    Fox the defendant in error, Frank II. Sommer.
    
   Per Curiam.

The contract sued upon in this ease was construed in the Supreme Court, in the opinion of Mr. Justice Dixon, reported in 41 Vroom 370, upon which judgment was entered on a demurrer to counts in the declaration, and we find no error in the construction then given.

The declaration was thereafter amended, and a demurrer was interposed to the first and second counts. The demurrer was sustained in the Supreme Court, and judgment for defendant was entered thereon.

In the opinion delivered in the Supreme Court by Mr. Justice Swayze, reported in 42 Vroom 396, the demurrer was held to be good as to the first count of the declaration, because, among' other things, it pleaded a' waiver of a provision of the contract sued upon, without averring that the waiver was by such a writing as was required by the express terms of the contract, which contract was annexed to and made part of the declaration.

As it is unnecessary to the decision of this cause, we are unwilling to express approval of this doctrine, which seems inconsistent with the doctrine in respect to pleading, in a declaration, contracts required to be in writing by the statute of frauds. Wilkinson-Gaddis Company v. Van Riper, 34 Vroom 394. But for the other reasons given in tire opinion of Mr. Justice Swayze for sustaining the demurrer to both counts, we think the judgment should be affirmed.

For affirmance — The Chancellor, Chief Justice, Garretson, Hendrickson, Reed, Vredenburgi-i, Vroom, Green, Gray. 9.

For reversal — Fort, Pitney, Bogert, Dill. 4.  