Opinion by
Mr. Chief Justice Sterrett,From the learned judge’s charge and part of the record before us, this action appears to be on a policy of insurance, issued, by defendant for $1,000, covering plaintiff’s dwelling *385house. During the life of the policy, the house was destroyed by fire, and within a fortnight thereafter plaintiff procured blanks from defendant, on which regular proof of total, loss, amounting to $1,300, was made and delivered to defendant’s agent, who in substance expressed his satisfaction therewith, and informed plaintiff that he had nothing more to do, etc.
The only grounds of defence were: 1st. That plaintiff “ was not the sole and unconditional owner of the property; ” 2d. “ That he cannot recover because he did not ask for appraisers to appraise his loss under the conditions of the policy.” As correctly stated by the learned judge, “ These are the only two questions raised by the affidavit of defence.” Under the rules of the court below, any defence, not disclosed by defendant’s affidavit, is unavailable on the trial, without amendment, etc. It further appears that as to both grounds of defence testimony was introduced, which, in the opinion of the trial judge, presented questions of fact exclusively for the jury. They were accordingly submitted to and determined by them in favor of the plaintiff. So far as shown, by the incomplete record before us, there was no error in thus submitting the questions on which said defences respectively depended. We have not been furnished with plaintiff’s statement and affidavit of claim, nor with the policy of insurance etc., nor with any of the testimony, except a copy of plaintiff’s agreement with Frank Newman, on which defendant appears to have relied to sustain its first ground of defence. No reason is even suggested for omitting to present copies of plaintiff’s statement and affidavit of claim, and policy of insurance with conditions attached thereto. The only excuse offered for not furnishing the testimony is that the stenographer died and his notes could not be translated into long hand. Granting this; if the testimony was made part of the record by exception etc., its loss, by reason of impossible translation of the deceased stenographer’s notes or otherwise, might have been sufficiently supplied in same way that lost or destroyed records are supplied when necessary.
It would be unfair to the successful party in the court below, as well as to the court itself, if we should undertake to convict it of error, in matters depending either on the evidence, *386or the state of the pleadings in the court below, without having either the testimony or the pleadings before us.
As to the first ground of defence, it may be fairly inferred, from what is said in the charge of the court, that the agreement, relied on by defendant, was shown by the testimony to have been executed some- time after the policy of insurance was issued, and hence there was nothing to sustain that ground of defence. That question, as well as the one relating to the other ground of defence, was submitted to the jury, as already stated, and the necessary implication, from their verdict is that both were found in favor of plaintiff. But it is enough to say that there is nothing in the record, as presented to us in the paper-books, to justify us in convicting the court below of error in either of the particulars specified iii the assignments.
Judgment affirmed.