Argued December 11, 1923. Plaintiff has judgment on a verdict in a suit on a fire insurance policy. Defendant's motion for judgment n.o.v. was refused. The case was tried below with ten others, on other policies covering the same building or contents. The parties differ as to the legal effect of evidence elicited in cross-examination of the assured. Total loss by fire was alleged. The policy before us covered household furniture and fixtures in a building "while occupied as store and dwelling" from May 1, 1921, to May 1, 1922. It provided that "permission is given ..... to keep on hand not exceeding one (1) quart in all, per family, of gasoline ...... for household use, but the use thereof for lighting, heating or cooking is prohibited without special permission endorsed on this policy....." "Unless otherwise provided by agreement in writing added hereto, this company shall not be liable for loss or damage occurring ...... while ...... there is kept, used, or allowed on the described premises ...... explosives, benzine, gasoline, naphtha or any other petroleum product of greater inflammability than kerosene oil......"
The affidavit of defense averred (1) that plaintiff's loss was less than averred; (2) that the required proofs of loss had not been furnished; (3) that the assured had caused the premises to be fired. On the issue so made, the parties went to trial.
The assured testified in chief about the building, its cost, value, use, the business by him conducted in it, the kind and value of merchandise carried and sold, the fixtures and their value and use. He was then cross-examined in detail on those subjects and stated that, as part of his business in the building, he sold gasoline "by the can," having no filling station; this gasoline he kept in a 60-gallon capacity tank "outside the building," "right beside the foundation"; he tapped it in the cellar by a pump, "into vessels and those vessels were carried *Page 600 outside of the building and supplied to [the] trade." He had been doing that "possibly ever since 1914." No objection was made to this cross-examination, but, later in the trial, plaintiff moved to strike it out on the ground that it was an effort to establish a breach of contract by the assured, not available as a defense, because not averred in the affidavit. The motion was refused.
Defendant offered no evidence, but made requests for instructions, several presenting the contention that the policy was not in force in consequence of the storage and handling of the gasoline. These requests were refused for reasons subsequently stated by the learned trial judge as follows: "Summarizing our views, we hold; first, that the cross-examination of Freedman [assured] was proper for the purpose of showing the nature and extent of his merchandise and the manner of its disposal, but that the defendant could not derive the advantage of supporting an affirmative defense thereon which was not set up in the pleadings; second, that the condition alleged to have been breached was a condition subsequent and that under the pleadings in the case it was not incumbent upon the plaintiff to show that there was a compliance with a condition subsequent; third, that if the defendant desired to defend for a breach of condition subsequent it was necessary to be set out in the affidavit of defense notwithstanding the testimony that was brought out in the cross-examination of the plaintiff."
We agree the cross-examination was proper, but we find it neither necessary nor desirable to pass on the question raised under section 16 of the Practice Act, in the circumstances disclosed at the oral argument; it was then stated that plaintiff had evidence sufficient to prove that defendant had waived the right to insist on the provision in question, by witnesses other than the assured (Freedman) but that, as the point was not expected, these witnesses to prove waiver had not been brought into the court below when the case was tried. *Page 601 In view of that statement, we think the interests of justice will best be served by a retrial of the case.
The judgment is reversed and a new trial ordered.