Plaintiffs brought this action to recover for loss sustained by fire, against which they alleged they had been indemnified by defendant under a policy of insurance. The insurance covered a one-story frame building and fixtures, also general household effects and wearing apparel and an outbuilding on the premises. By the terms of the policy, a copy of which was attached to the complaint as an exhibit, *Page 779 the insurance was made effective as to the first-named building while it was "occupied only as a private dwelling," and as to the outbuilding only while the same was being used as such. The policy also provided that the personal property mentioned was insured while it was contained in the dwelling. Plaintiffs alleged in their complaint that the frame buildings, together with all of the property described in the policy of insurance, were destroyed by fire, but the complaint contained no statement showing that the buildings were being put to the particular uses limited by the insurance contract at the time they were destroyed. In the case of Arnold v. American Ins.Co., 148 Cal. 660, [25 L. R. A., N. S., 6, 84 P. 182], it is held where like conditions of contract and allegations existed, that the complaint failed to state a cause of action. The defendant here seasonably raised the question in the superior court by demurrer to the complaint, but not only was its demurrer overruled, but it was penalized in the sum of ten dollars as a condition to its being allowed to file an answer within five days. The record shows that the demurrer was presented to the court by argument. Respondents do not contend that the complaint is sufficient, but expressly admit in their brief that it fails to state a cause of action under the authority herein cited. We are asked, however, to consider the contents of an affidavit filed in this court showing that at the trial of the action evidence was introduced to the effect that at the time of the destruction of the property described in the insurance policy the buildings were being used as provided in the policy, and that the personal property was located in the dwelling-house. The record on this appeal consists of the judgment-roll only, there being no statement of the evidence nor bill of exceptions. An affidavit cannot be used to supply any matter which should have been presented in either of the last-mentioned forms. The question, therefore, as to whether the admission of evidence establishing a material fact essential to a recovery can be made to cure a failure to allege such fact in a complaint calls for no discussion.

The judgment is reversed, with direction to the trial court to sustain the demurrer of defendant to the complaint of plaintiffs and allow plaintiffs to amend their complaint within such reasonable time as may seem to the court to be proper.

Allen, P. J., and Shaw, J., concurred. *Page 780