The demurrer to the complaint was properly overruled.
Upon the first point of demurrer the allegation in the complaint, “that on the said 18th day of August, 1865, at Chinese Camp, county and State first aforesaid, the plaintiff herein, to Miller & Co., the agents of said defendant company, having before that date made application thereto, effected an insurance and became insured in said defendant company,” etc., if it stood as an independent allegation, would be but a conclusion of law; but' it is followed in immediate connection by an allegation setting forth the facts constituting a contract of insurance against loss by fire, originating from any cause.
The second ground of demurrer is untenable.
The third ground of demurrer is not well taken. The complaint substantially avers performance by plaintiff of the acts required of him as conditions precedent to defendant’s liability, and the averment that these acts were performed in the “ manner required and according to the conditions of the policy,” is sufficient under the sixtieth section of the Practice Act. The complaint, upon its face, states a good cause of action upon a policy of insurance against loss by fire, unrestricted in origin or occasion.
The second assignment of error, to wit: the admission of the policy in evidence, offered by plaintiff against the objections, is well taken, admitting the amendment made to the complaint on the trial to have been properly allowed.
As appears by the complaint, the policy declared upon insured against loss by fire originating from any cause, and under all circumstances; whereas, the policy offered and *178read in evidence against the objections of defendant limits and restricts the responsibility of the insurer to losses other than “ losses hy theft at or after a fire, loss or damage by fire caused by means of or during an invasion, insurrection, riot, civil commotion, or military or usurped power,” and the allegation in the amendment to the complaint, “that the said fire was not caused by means of any of the exceptions specified in the conditions of the said policy, against which the said defendants declare in said policy that they do not insure,” is insufficient to authorize the admission of the policy offered, because the terms of the policy stated in the complaint as amended are essentially different from the one offered.
The complaint should have affirmatively alleged the loss within the restricted limits, stating the limits as prescribed in section two of the policy.
This second section of the policy offered is a special restriction of the general undertaking of defendant contained in the first section. The complaint seems to have disregarded the terms and legal effect of this section, and, as the plaintiff assumed to state the contract sued on according to its legal effect, without setting it out hoec verba, he cannot be permitted to give in evidence, in support of his complaint, a contract the legal effect of which is essentially different.
The allegata and probata should correspond. The policy offered is at fatal variance with the allegations of the complaint. (Fairchild v. Slocum, 19 Wend. 833; Rockefeller v. Hoysradt, 2 Hill, 617.)
“ When a pleader assumes to ser out the. particulars of his case, he must be held to have done so.” (Low v. Henry, 9 Cal. 551.)
And when a complaint or answer assumes to set out a contract according to its legal effect, and not hoec verba, the allegations cannot be sustained, nor can the responsibility of the party thereby sought to be charged be established by proof of a contract materially modifying or changing the *179responsibility as charged. (Green v. Covillaud, 10 Cal. 331; Cornwall v. Haight, 8 Barb. 329.)
The instruction asked by the defendant was improper in two respects: First—Because it does not appear that there was any evidence at the trial to point that portion of the instruction with reference to the cause of the fire. Second—That portion thereof having reference to the extent of the loss is too restricted, add would visit honest error of judgment with the same penalty as corrupt falsehood. I am of opinion that the modification to the instruction made by the Court is technically and substantially erroneous; a deliberate, willful attempt of the insured to exaggerate his loss by false swearing, whether the effect he to secure a small or large sum exceeding the actual loss, would vitiate the policy. The test upon this point is the corrupt, fraudulent intent to magnify and exaggerate the loss, not the magnitude of the excess over the actual loss. Although a sworn estimate greatly exceeding the real loss might be a circumstance tending to show vicious intent, the simple fact of over-estimate clearly should not be conclusive upon the question of fraud, as it may have been the result of honest error of judgment; hence, the word much, as used in the qualifying instruction, was calculated to mislead the jury, and ought not to have been used.
With this correction, I am entirely satisfied with the instruction as finally given by the Court.
Under our statute, (Prac. Act, Sec. 167,) the papers constituting the preliminary proof of loss, served upon defendant, were properly allowed to be taken by the jury under the instruction given by the Court in relation thereto.
Entertaining these views of the case, I am of opinion the judgment and order should he reversed and cause remanded, with leave to plaintiff to amend his complaint.
Mr. Chief Justice Sawyer expressed no opinion.