*37On Petition for Behearing.
Bruce, J.A petition for rehearing has been filed in this case, which asks for a rehearing, or, at any rate, for a modification of the decision. The petition, as far as it relates to the rehearing, largely restates the arguments presented in the original briefs and on the oral argument, and which we believe have already been sufficiently covered by us. The petition for a modification of the decision, however, presents a new question.
Counsel for appellant asserts that “the decision in this court must, in any event, be modified. The motion for new trial, assigning many errors of law and insufficiency of the evidence, was presented to the trial court, but not passed upon because of his decision in our favor on the motion for judgment notwithstanding the verdict. The case must, in accordance with the established practice, be remarked for further proceedings.”
We have, however, carefully examined the record of the case and find that no errors of law were committed by the trial court which would have justified the granting of a new trial, and that the only issue which was presented by the pleadings, namely, the fact of the payment or the nonpayment of the premium, was properly submitted to the jury. Formal proof of loss prior to the trial was, of course, waived by the flat refusal of the company to pay the same on account of the alleged nonpayment of the premium. See § 5977, Rev. Codes 1905, § 6544, Compiled Laws of 1913; May, Ins. §§ 468, 469.
The controversy as to the payment or nonpayment of the premium was decided by the jury in favor of the plaintiff, and the only question, therefore, is whether in furtherance of justice the trial court should, at the close of plaintiff’s testimony, have allowed an amendment to the pleadings permitting the setting up of the defense of the breach of the iron-safe clause and the provisions in regard to encumbrances or limitations of ownership, and therefore whether in the furtherance of justice the trial court, after the rendition of the verdict, should have ordered a new trial so that this might be done, and whether this court on this appeal should send the case back in order that these proceedings may be had. It is, of course, well established that the defendant has no right to such amendment; that such amendment would introduce entirely *38new issues into the case, and that such amendments should only be allowed in the sound discretion of the court, and are never allowed except in the furtherance of justice.
In the case at bar there can be no doubt that when the trial judge refused the amendment on the trial, he committed no abuse of discretion. Defendant, it is true, insists that such judge knew, and was informed upon the motion for judgment, notwithstanding the verdict, that the defendant only became aware of the failure of the plaintiff to keep the iron safe upon the cross-examination of the plaintiff. There is nothing, however, in the record to bear out this statement. The record, as far as proof is concerned, is entirely silent on this proposition, and even if, on the motion for judgment notwithstanding the verdict, the trial court was of that opinion, it by no means follows that at the time the amendment was asked on the trial, he had any such belief, or that there was in the evidence proof in support thereof. The only defense that- the defendant had interposed was that of nonpayment of the premium. In all of its letters it had insisted upon this defense and on this defense alone. Although we held in the principal opinion that the failure to mention this defense in the letters did not preclude it from pleading the same when sued upon the policy, we stopped far short of holding that this fact might not be considered by the trial court in refusing, in the exercise of its sound discretion and in furtherance of justice, to allow an amendment of the pleadings setting up the same, and when such amendment was not asked for until after the close of plaintiff’s case, and this court must consider the fact in passing upon the question of whether in furtherance of justice it itself should send the case back so that a new trial may be granted and the amendment allowed.
Section 7482 of the Compiled Laws of 1913 only permits such amendments when “in the furtherance of justice.” The purpose of the iron-safe clause is merely to serve as a safeguard against the padding of accounts and the claim of a greater loss than has actually occurred. Here the policy was only for $2,500, and the proof is positive and uncontradicted that the loss was over $5,000, and we are asked to send the case back for a new trial in order to allow to be interposed what, under the peculiar facts of the case, would be merely a technical defense, and when the uncontradieted proof shows that not only has there been *39no padding of accounts, but tbe recovery of tbe plaintiff has only been for one half of bis actual loss, and when, as a matter of fact, on account ■of tbe peculiar nature of tbe goods destroyed and tbe fact that tbe goods ■consisted principally of farm machinery, largely composed of metal which does not bum, it lay within tbe power of tbe defendant company, if it bad chosen to investigate tbe loss, to have largely acquainted itself with tbe real extent of such loss. Tbe skeletons of tbe machinery, in short, would have been strong proof of tbe existence of tbe original .article.
Tbe proof, too, is uncontradicted that tbe defendants at no time asked for any invoices or books of account, and we have no reason to believe that if they bad been forthcoming, defendant would have in any way profited thereby.
We have carefully examined tbe case of Nelson v. Grondahl, 13 N. D. 363, 100 N. W. 1093, which is cited by counsel for appellant. In that case, however, there was a valid reason for a new trial on tbe record as presented to tbe supreme court and to tbe trial judge on tbe motion for judgment notwithstanding tbe verdict, and in tbe alternative for a new trial. In other words, a question bad been taken from tbe jury which should have been submitted to it under the pleadvngs, and there was no question that tbe court bad erred in directing a verdict and in not having this question so submitted.
Tbe petition for a rehearing is denied.