JAMES H. CLARK v. PHŒNIX INSURANCE COMPANY, 36 Cal. 168

By the Court, Sanderson, J. : The complaint in this case is doubtless obnoxious to criticism, when compared with the contract upon which the action was brought; but it must be held good on demurrer. It alleges an unconditional contract on the part of the defendant, in consideration of the sum of seventy-five dollars, to insure the hotel and furniture of the plaintiff against loss by fire, for the period of time stated, and a loss by fire within the life of the contract, which the defendant has failed to pay, notwithstanding the request of the plaintiff—and, therefore, states a cause of action.

The objection to the contract as evidence in support of the cause of action stated in the complaint, on the ground of variance, was well taken, (Stout v. Coffin, 28 Cal. 65,) but the Court did not err in allowing the plaintiff to amend so as to obviate the objection. (Stringer v. Davis, 30 Cal. 318.) The amendment made by the plaintiff did not wholly obviate the objection, but the objection -was not renewed by the defendant after the complaint was amended, and must, therefore, be considered as thereafter abandoned.

Nor did the Court err in allowing the jury to take to their room the sworn statement of the plaintiff as to his losses, and the certificate of the Justice of the Peace. They were documentary evidence within the meaning of the one hundred and seventy-sixth

section of the Practice Act. The instruction of the Court as to what would constitute fraud or false swearing on the part of the plaintiff within the meaning of the contract in suit, is not wholly free from objection, but the expression, “a much larger amount,” is not so far out of the way as to justify us in setting aside the verdict.

Upon the question of fraud or false swearing on the part of the plaintiff in estimating his losses, in actions of this character, a discrepancy between his estimate and the actual loss, as proved at the trial, which can be reasonably accounted for on the score of opinion, is entitled to no weight. The discrepany must be such as to show a material and intentional over-valuation on the part of the plaintiff before a jury would be justified in convicting him of fraud and perjury. In Moore v.

Protection Insurance Company, 29 Maine, 97, the plaintiff estimated his loss at two thousand eight hundred dollars, and the jury returned a verdict of only one thousand eight hundred and fifty-eight dollars; but the Court held that the discrepany was not such evidence of fraud as would justify it in granting a new trial. The discrepancy was much less in this case, and we find nothing else in the evidence which satisfies us that there was any substantial ground for the charge of false swearing made by the defendant.

Conceding, then, that the language of the Court was not as exact as it should have been, there is no reason, in view of their verdict, to suppose that the jury were misled by it. (Moadinger v. Mechanics’ Fire Insurance Com pany of the City of New York, 2 Hall, 490; The Franklin Insurance Company v. Culver, 6 Ind 137.) Judgment and order affirmed. It is also ordered that the remittitur be issued forthwith.