This was an action of assumpsit brought by the appellant against the appellee, to recover for a loss under a policy of insurance against fire. The trial which was had before the county court without a jury, resulted in a finding and judgment for the defendant, and the plaintiff brings the case to this court by appeal.
Ueither the pleadings nor the proofs heard at the trial are embodied in the record, but in lieu thereof the parties have brought to this court an agreed statement of the pleadings and facts, and on the case thus presented we are asked to reverse the judgment.
It is admitted that the plaintiff filed a proper declaration, and that the defendant pleaded the general issue and a special plea setting up a warranty against incumbrances on the property insured and its breach. It is also admitted, in substance, that the defendant by its policy of insurance dated December 8, 1878, insured certain property belonging to the plaintiff against loss or damage by fire, in the sum of §500; that said policy contained a provision making a certain application for insurance by the plaintiff to another insurance company bearing date February 2, 1878, a part of the policy and a warranty on the part of the assured; thatsaid application contained a statement that the property was unincumbered; that on the 11th day of July, 1878, the plaintiff had executed a chattel mortgage on said property to one Thomas Richter, to secure the plaintiff’s promissory note of that date and maturing two years thereafter; and that on the 17th day of December, 1878, the property described in the policy was destroyed by fire.
Ro questions of law are presented by the record or argued by counsel except such as arise upon the facts, embodied in the stipulation. Upon those facts alone the plaintiff’s right to recover must be determined, and if they fail to establish such right, the judgment of the court below should be affirmed.
The stipulation shows that the policy was issued December 3, 1878, but it is entirely silent as to the term of the insurance. Whether it was to run for a day, a week, a month or a year, or for any other period definite or indefinite can not be ascertained from anything appearing in the stipulation or elsewhere in the record. All that is said is, “ that the defendant, by its policy dated December 3, 1878, insured said property against loss or damage by fire in the sum of $500.” It was incumbent on the plaintiff to show that said policy was in force on the 17th day of December, 1878, the day of the loss. This, so far as appears by the record before us, he wholly failed to do, and we are therefore unable to say that the court below erred in finding the issues for the defendant. • Again, there is no stipulation as to the value of the property at the time of the loss, or that said property was of any value whatever, nor does the record contain any evidence on that subject. The fact that the defendant insured said property for $500, was no evidence as to its value or that it was of any value, there being no pretense that the policy was a valued policy. Standard Fire Ins. Co. v. Wren, 11 Bradwell, 242. The contract of insurance is a contract of indemnity, and as it does not appear that the plaintiff has lost anything of value, it is difficult to see how he can be entitled to recover any indemnity of the defendant, the insurer, at least beyond a nominal sum. As we can perceive no error in the record as made up and certified to this court, the judgment will be affirmed.
Judgment affirmed.