88 Cal. 300 | Cal. | 1891
This is an appeal from a judgment in favor of the plaintiffs against the defendant, for the sum of two thousand dollars, and legal interest thereon from December 8, 1885, and costs. The appeal is upon the judgment roll alone. The contention of the appellant is, that the judgment should be reversed, upon the ground that the complaint does not state facts sufficient to constitute a cause of action, because it appears therefrom that notice of the loss sustained by plaintiffs was not given forthwith, as required by the terms of the policy of insurance upon which plaintiffs seek to recover. The complaint alleges that the building insured was destroyed by fire on July 25, 1885, and that upon October 8, 1885, the plaintiff gave to defendant due notice and proof of such fire and loss. The appellant insists that, as the notice was not given forthwith, the defendant is not liable; but there is also an allegation in the complaint “that the plaintiffs duly performed all the conditions of the said contract of insurance on their part,” and if giving notice of the fire and loss forthwith was a condition of said policy to be performed by plaintiffs, then the complaint, in this general statement, alleges the due and timely performance of this condition. (Ferrer
Judgment affirmed.
McFarland, J., and Sharpstein, J., concurred.