#### HARRIS’S *v.*THE PROTECTION INSURANCE COMPANY.

Estoppel — evidence—fraud—issue—upon whom the proof lies — hazardous employments— schedule — insurance—contribution—new trial — cumulative evidence.

An estoppel must be pleaded, a demurer will not raise one, and the court will not notice one, unless pleaded.

If the evidence tends to prove the issue made up, it is admissible to the jury, and if- the facts are opposed by the contract declated upon, that may be shou;n by way of rebuttal.

"Where the object is to show fraud, and it has been proven that the plaintiff has a large quantity of merchandize, it is competent to show by the proceedings before the insolvent commissioner, that his situation was such as to preclude the honest possession of such goods, and that he swore he had *no*properly.

If the party on whom the affirmative of the issue rests, fails in proving it, the issue should be < fouud against him .

Prom of loss must be presented to the office sixty days, before suit on the policy.

Although a night auction is not included in the. schedule of hazardous employments, yet if the issue presents the question whether a night auction is more hazardous than a drygoods store, tile jury must find upon it.

When there are several policies on the same risk, contributing rateably. the verdict should be for the proportion the policy bears to the whole loss, if not more than the amount insured.

In cases of fraud, where new discovered evidence is cumulative upon the fraud, but of *new*facts, a new trial will be granted.

Covenant on a policy of insurance, dated 20th October 1829, on $2000 of merchandize of the fourth class of hazards, against fire for five months.

Pleas. 1. Non est factum.

2. The fire was occasioned by plaintiff’s negligence.

3. The- goods were not consumed by fire.

4. That plaintiff did not furnish proof of loss sixty days before the suit, or at any time before.

5. Spreads out on oyer the schedule of hazards annexed to the policy, and sets up as a bar, that the store was used as a night auction, which is more hazardous than a dry goods store.

Replication to the plea, protesting that the store was not used as anight auction, replying that a night auction is not more hazardous than a dry goods store, and that the fire was not occasioned by the use of the store as a night auction. Issue was joined on the four first pleas and upon the replication.

*549The policy declared on, was read in evidence.

Also a policy on the same risk at the Cincinnati Insurance office the 31st October, 1829, for $2000, which was paid.

And another policy on same risk, Ohio Insurance Company 28th August, 1829, for $4000, not paid.

Much evidence was offered upon the issues by the parties, and by the defendants, to prove that the goods had been mostly withdrawn from the store before the fire, and that the store was burned by design, or the carelessness of the plaintiffs. The fire was just at dark.

In the progress of the trial,

*N. Wright*for the defendant,

asked of a witness what was the comparative risk between a store used as a night auction, and one used for dry goods.

*King*for the plaintiff,

objected to this question.

*Fox*

on the same side, though he contended that the question of extra hazard was for the jury, (1 *Taunt R.*430; 4 *Mass. R.*328.) insisted that as the policy contained a schedule of extra hazardous employments, not including a night auction, the defendants were estopped from going out of the policy into proof of any extra hazard not in the schedule, and cited 6 *Wend. R.*627; 2 *Cains R.*288; 2 *Con. R.*468.

Caswell, contra,

contended that the plaintiff should have demurred upon their oyer, if they intended to rely upon the estoppel of the schedule.

King,

objected to this as irrelevant.

*N.*Wright, contra.

Wright, J.

An estoppel should be pleaded as such, a demurrer only admits what is well pleaded, it cannot set up an estoppel, nor can we notice an estoppel unless it is pleaded. The question is, does this evidence tend to prove the issue. If it does, it is admissible, the policy may be offered in rebutting as the acknowledgment of the defendants, that such use of the store is not extra hazardous. The evidence is admitted.

Evidence having been given to show that the plaintiffs, since they left this city and went into Kentucky, had there a quantity of valuable merchandize—

The defendant produced the records of the insolvent commissioner, to show the plaintiffs applied for, and obtained a discharge under the insolvent law, after the fire.

Wright, J.

The evidence is admissible to show a state of things inconsistent with his situation in Kentucky, from whence to infer the fraud of the plaintiff.

*550
      *Storer*and *King*for the plaintiff, and

*Starr*and *N. Wright,*for the defendants.

The proceedings were read, by which it appeared that J. Harris, who had the goods in Kentucky, was discharged in December, 1831, having sworn that he had *no property.*

The cause was argued to the jury by

Wright, J.

to the jury. The policy upon which this controversy arises, is upon a stock of dry goods valued at $¡2,000, against fire for five months from the 20th of October, 1829, to be void if the store during the continuance of the risk, should be used in business hazardous or extra hazardous, as set forth in the schedule, unless the permission so to use is endorsed on the policy. The policy is in evidence, and does not include a night auction in the schedule of hazardous or extra hazardous employments.

There are several issues made up, on which you are to pass. I will briefly state the questions which arise on each, and leave the case with you.

1. The first issue presents the simple question, whether the policy is the deed of the defendants? There is no dispute but this issue must be found for the plaintiffs.

2. The second issue raises the question, was the fire in the store of the plaintiff occasioned by their mere carelessness? The defendants have undertaken to prove this issue, and if they have failed to do so, your finding should be for the plaintiff, but if the fact is proven, you will find for the defendants.

3. The third issue presents this question, were there goods of any amount of the plaintiffs, consumed in the store? The plaintiffs have the burthen of proving this issue to your satisfaction. You will apply the evidence to the question, and if satisfied any of the plaintiffs’ goods were consumed, you should find this issue for the plaintiffs, but if not, for the defendants.

4. Under the fourth issue you are to inquire, whether the plaintiffs gave the defendants notice and due proof of loss *sixty*days before the 18th of September, 1830, the commencement of the suit. You will look to the plaintiffs to satisfy you of this issue, and if not satisfied of it, you should find for the defendants.

5. This issue presents two questions:

1st. Is a night auction more hazardous than a dry good store?

2d. Were the plaintiffs’ goods burnt by reason of the stores being used as a night auction? The pleadings admit the store was used as a night auction. You need not look to the schedule to see if a night auction be included in the schedule of hazardous trades, *551for the parties have made up the issue for you to find the fact, and you must decide it on the evidence you have. The burthen of proving the questions arising on this issue is with the defendants.

*N. Wright,*

now moved for a new trial.

If any one of the issues are with the defendants you need not trouble yourselves with the amount of damages; but if all are with the plaintiffs, then they have a right to recover one-fourth of the amount of goods lost, if the whole loss does not exceed $8,000, the whole sum insured, with interest from a period of sixty days after notice and proof to the company of the loss.

Verdict for the plaintiff *‡2,500.*

Because the verdict is against evidence, and because of newly discovered evidence.

Affidavits were filed of sundry new circumstances, tending to establish the fact of a fraudulent destruction of the goods by the plaintiffs, and of their withdrawal of many of them from the store before the fire.

Wright, J.

It is a well settled rule that for newly discovered evidence on facts which were controverted at the trial the verdict will not be set aside. When this motion was first submitted, we were impressed with the opinion the affidavits disclosed only facts of this character, as fraud was one of the matters litigated before the jury. Reflection has raised a doubt in this application, and we are now induced to entertain the motion. The evidence was such as to raise a strong suspicion that all was not as it should be with the plaintiffs in reference to this fire; yet we could not say the verdict was so palpably against evidence, as to be set aside on that ground. The facts now disclosed are cumulative to establish the fraud, though not upon any one fraudulent fact before submitted to the jury— they are *new*facts and circumstances. The fraud was sought to be established by circumstances. The allegation of fraud supposes an effort on the part of the fraudulent actor to preserve the appearance of honesty. It is difficult to unravel a fraudulent web, and greater latitude in evidence, is allowed in such cases from necessity.

Upon the whole, we order the verdict set aside and a new trial, if the defendants pay the costs in sixty days, if not, the judgment to remain.