delivered the opinion of the court:
It is first contended by appellant that the action is barred because it was not brought within one year after the fire, as required by the terms of the policy. The question whether the action was barred was raised by appellant’s demurrer to appellee’s second replication to appellant’s fourth plea, but when the court overruled the demurrer the appellant did not stand by the demurrer, but filed a rejoinder traversing the facts set up in the replication. The rule is well settled in this State, that where a party to an action desires to have the ruling of the court in overruling a demurrer reviewed on appeal or writ of error he rnust abide by the demurrer. By pleading over the demurrer is waived. So, also, the right to assign error in the ruling. Chicago and Alton Railroad Co. v. Clausen, 173 Ill. 100, and cases cited.
But had the question been preserved we do not regard the ruling of the court in sustaining the replication erroneous. Evidence was introduced on the trial establishing the main facts set up in the replication, from which it appeared that the original action was brought within the time prescribed by the policy; that pleas were filed, upon which issue was taken; that by agreement of the parties a jury was waived and the cause was set for trial before Judge Payne; that after several postponements by agreement of the parties, upon the application of the appellant, on June 25,1895, an order was entered by Judge Payne continuing the trial of the cause until after vacation of the court, but, disregarding the solemn agreement of the parties and the previous order of the court, the clerk of the court placed the cause on the trial calendar of Judge Sears, and he, not knowing the agreement made by the parties and having no knowledge of the order of Judge Payne, when the cause was called on his calendar and no one appearing, entered an order dismissing the case from the docket. After parties have made a stipulation in regard to the trial of a cause, with the sanction and approval of the court, to allow a dismissal of the cause to bar an action would seem to be so unfair, unjust and inequitable that it should not receive the sanction of a court established to mete out justice to the parties. Whether the facts set out in the replication may be technically sufficient to constitute an estoppel in pais is immaterial. They do show a sufficient excuse for not complying strictly with the terms of the policy in bringing the action, and that is sufficient. Home Ins. Co. of Texas v. Myer, 93 Ill. 271.
It is next insisted that proofs of loss were not furnished within thirty days aftér the fire, as required by the policy. Where proofs of loss are served on an insurance company and retained without objection, and the company refuses to pay the loss, denying all liability under the policy on grounds other than defects in the proofs of loss, any further performance of the condition in regard to proofs is waived. (Continental Ins. Co. v. Buckman, 127 Ill. 364.) There were here five distinct losses. As to proof under losses 4 and 5 no question is made. As to the other losses, evidence was introduced tending to prove that proofs of loss were furnished within thé time required, and also that the insurance company repudiated all liability within thirty days of each of the losses, and thus waived proofs of loss. Whether proofs of loss were served on the company or were waived was a qüestion of fact which the Appellate Court found against appellant, and the judgment of the Appellate Court is conclusive of the question.
It is also insisted in the argument that the policy does not cover the property destroyed. By the terms of the policy the insurance company insured the railroad company against loss or damag'e by fire on the following property: “§52,750 on rolling stock as described below, or leased, and for which the assured are liable, which is to be covered wherever it may be, whether in any engine or car house or repair shop, or otherwise upon the line of the road hereby insured, or upon any branch railroad operated by the insured, as their interest may require.” The cars destroyed were the property of other railroad companies, and were at the time of the loss being moved over appellee’s line of road for other companies, to whom appellee was responsible for any loss that might happen to such foreign cars.
It is claimed in the argument that under the language of the policy the insurance company is only liable for cars owned by appellee or such cars as appellee may have leased. We do not think the language used will bear the construction contended for. On the other hand, we think it is plain that the proper construction to be placed on the language used is that the insurance company assumed responsibility for not only all cars owned or leased by appellee, but also all cars which might be in appellee’s possession for which appellee was liable to other persons or companies. Indeed, appellee’s main business was moving cars for other companies. It owned but few cars and leased but few, and the object of the insurance was to afford protection for loss which it might be required to pay other companies where cars belonging to such companies might be damaged or destroyed on appellee’s line of road, and this fact was known to the insurance company when the policy was issued. A policy in many respects similar to the one here involved was before this court in Home Ins. Co. of New York v. Peoria and Pekin Union Railway Co. 178 Ill. 64, where the insurance company was held liable.
Objection is also made to the ruling of the court on the admission and exclusion of evidence, but upon examination we find no substantial error in such ruling.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.