44 Minn. 20 | Minn. | 1890
Action upon an insurance policy, to recover the value of certain merchandise destroyed by fire. The complaint set forth the policy in lime verba, and, among other provisions contained in it, was one declaring that, should other insurance be placed on the property without the consent of defendant company written on the policy itself, the policy should be void. It was further alleged in the complaint that other insurance was effected, but there was no averment that defendant consented thereto, or had notice or knowledge of the same. It therefore failed to state a cause of action. The answer alleged the existence of other insurance on the property previously
1. There was manifest error in the ruling upon the trial by which plaintiffs were allowed to introduce testimony tending to. sho'vy. defend, ant’s knowledge of other insurance when soliciting and delivering the policy now involved. Not only had a material allegation of fact been omitted from plaintiffs’ complaint, but in words it expresssly negatived a right to recover. The objection should have been sustained, and this seems to have been admitted by counsel and' court when, after the verdict, the former moved for and the latter granted an. amendment to the pleading.
2. The court also erred in permitting the amendment. The defendant properly and seasonably objected to the reception of testimony, inadmissible under the pleadings, but which, as the court charged the jury, was essential to a recovery by the plaintiffs, and
Judgment reversed.