Seevers, Ch. J.
I. The policy provides that “the loss or damage to be estimated according to the actual cash value of the property at the time of the loss, and to be payable ninety days after, and notice and proofs thereof made by the assured, and received at the company’s office,” and in case of loss “the assured shall forthwith give notice of any loss to the secretary of the company, and within thirty days deliver at the office of the company in Cedar Rapids, Iowa, either personally or by agent, mail or express, a particular account of such loss, signed' and sworn to by them, stating whether any other insurance has been made on the said property, what [589]*589was the cash value, at the time of the loss, of the subject insured, the interest of the assured therein, * * * giving copies of the written portions of all policies thereon, and when and how' the fire originated, and shall introduce a certificate of a magistrate, notary public, or clerk of a court of record,” etc.; the provisions being such as are usually contained in policies. The plaintiff offered to produce in evidence a paper which may be designated as the notice or preliminary proofs, or both, contemplated by the policy, to ' which defendant objected on the grounds that no such paper was contemplated by the policy, and that it was immaterial and inadmissible for any purpose under the pleadings; but the objection was overruled and said paper admitted in evidence, and the plaintiff duly excepted. The plaintiff being on the'stand as a witness, he was asked to state whether the property insured had been lost; if so, when and how. To this the defendant objected on the ground that it is not alleged in the pleadings that plaintiff has ever furnished proof of loss as required by the policy; but the objection was overruled and defendant excepted. Whereupon the plaintiff gave testimony material to his right to recover.
The defendant asked .the court to instruct the jury that the plaintiff could not recover because the petition contained no averment that proof of the loss had been furnished to the defendant; but the court refused to so instruct, and on the contrary instructed the jury: “The furnishing the proofs of loss is a condition precedent to be performed by the plaintiff before he is entitled to recover from .the defendants in this action, unless you believe that the same has been waived by the defendants.” To the giving of said instruction, and the refusal to give that asked, the defendant duly excepted. At the proper time the defendant filed a motion in arrest of judgment- on the ground that it is not averred in the petition plaintiff furnished proofs of loss as required by the policy, or that such proofs were waived by the defendant; which motion was overruled, as was also a motion for a new trial, and defendant duly excepted thereto.
[590]*5901. insurance: eondítionloss: precedent. [589]*589The policy contemplates a notice of the loss to be given the [590]*590insurer, and also afterward a particular account or proofs thereof, and what the latter shall contain or set forth is contained in or set out in the policy, -\ye gee n0 reasoll) however, why the same paper may not contain both the notice and particular account. Therefore the paper introduced in evidence against defendant’s objection may be designated as intended both for the notice and such particular account. It in fact was neither, but an appraisement of the property destroyed, accompanied by a certificate of a notary public. It may be sufficient as a notice, but is wholly deficient as proof or particular account of the loss. Counsel do not claim that it in any respect complies with the requirements of the policy as a particular account or proof of loss. There is no averment in the petition that plaintiff has complied with or performed all the conditions of the policy, or that the particular account or preliminary proofs required by the policy had been furnished to the defendant. Such preliminary proofs are conditions precedent to plaintiff’s right to recover. Blakely v. Phœnix Ins. Co., 20 Wis., 217; Inman v. Western Ins. Co., 12 Wend., 452; Owen v. Farmers Joint S. Co., 47 Barb., 518; Willcome v. Peoples Ins. Co., 2 Gray, 480. Where the policy provides the loss shall not be payable until the certificate of a magistrate as to certain facts is produced, the production of such certificate is a condition precedent to plaintiffs 'right to sue. Johnson v. Phoenix Ins. Co., 112 Mass., 49. An averment, therefore, of the performance is necessary, and the proof must sustain the averment. Flanders on Insurance, 514; St. Louis Ins. Co. v. Kyle, 11 Mo., 185.
2 _._. pieadmg. It is, however, insisted, that the testimony was ample and sufficient to show a waiver by the defendant of any other or more particular .account of the loss than that iurnished, and that the jury have so found. We are not called upon to determine whether, if there had been an averment in the petition of performance, evidence of a waiver could have been introduced or not. We have, however, held in actions against an indorser of a promissory note, when the petition averred demand and protest, that evidence of a [591]*591waiver could not be introduced. Lambert v. Palmer, 29 Iowa, 104; Woolsey v. Williams, 21 Iowa, 413. In the latter case it is said by Beck, J.: “No principle of law is better understood than the one which the proceedings in this case violate, namely: the evidence must correspond with the allegations of the pleading, and the rights of the parties must be determined upon the facts in issue.” Now it being a condition precedent to plaintiff’s light to recover, he should have averred a performance and the evidence should have corresponded therewith. But there was no such averment, nor any such issue. The defendant objected to the introduction of any evidence showing a loss because of the want of such averment in the petition. In overruling the objection the court erred.
It necessarily follows that if no evidence could be introduced until performance of the conditions precedent was averred, that proof of a waiver of such conditions was not admissible. Counsel for the plaintiff have cited many authorities showing that the preliminary proofs may be waived. Admitting such to be the case, still such fact in no manner affects the point in issue here. It is also insisted that want of notice should be specially pleaded; in support of which Wightman v. Western Marine Ins. Co., 8 Robinson, 442, and Dayton Ins. Co. v. Kelly, 24 O. St., 357, are cited. The former we have not seen, and the latter by no means supports the position claimed by counsel.
3. practice : pleading: motion in arrest, II. Under the authorities cited it cannot be doubted that the petition was demurrable Instead of taking advantage in that wax’, the question was raised by ansxx’er, . , ., , ,, . , , and defendant at the proper time moved the court to arrest the judgment. That such course was proper is held in Nollen v. Wisner, 11 Iowa, 190. If such xvas the proper course then, much more is it now, as the Code expressly recognizes the right to move in arrest of judgment. Code, Sec. 2650. The petition xvas defective in substance, and not as a matter of form only; hence the judgment should have "been arrested unless the plaintiff could have prevented such result under Code, secs. 2842 and 2843. These sections, it will be observed, contemplate that a judgment may be arrested by [592]
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Seevers, Ch. J.
I. The policy provides that “the loss or damage to be estimated according to the actual cash value of the property at the time of the loss, and to be payable ninety days after, and notice and proofs thereof made by the assured, and received at the company’s office,” and in case of loss “the assured shall forthwith give notice of any loss to the secretary of the company, and within thirty days deliver at the office of the company in Cedar Rapids, Iowa, either personally or by agent, mail or express, a particular account of such loss, signed' and sworn to by them, stating whether any other insurance has been made on the said property, what [589]*589was the cash value, at the time of the loss, of the subject insured, the interest of the assured therein, * * * giving copies of the written portions of all policies thereon, and when and how' the fire originated, and shall introduce a certificate of a magistrate, notary public, or clerk of a court of record,” etc.; the provisions being such as are usually contained in policies. The plaintiff offered to produce in evidence a paper which may be designated as the notice or preliminary proofs, or both, contemplated by the policy, to ' which defendant objected on the grounds that no such paper was contemplated by the policy, and that it was immaterial and inadmissible for any purpose under the pleadings; but the objection was overruled and said paper admitted in evidence, and the plaintiff duly excepted. The plaintiff being on the'stand as a witness, he was asked to state whether the property insured had been lost; if so, when and how. To this the defendant objected on the ground that it is not alleged in the pleadings that plaintiff has ever furnished proof of loss as required by the policy; but the objection was overruled and defendant excepted. Whereupon the plaintiff gave testimony material to his right to recover.
The defendant asked .the court to instruct the jury that the plaintiff could not recover because the petition contained no averment that proof of the loss had been furnished to the defendant; but the court refused to so instruct, and on the contrary instructed the jury: “The furnishing the proofs of loss is a condition precedent to be performed by the plaintiff before he is entitled to recover from .the defendants in this action, unless you believe that the same has been waived by the defendants.” To the giving of said instruction, and the refusal to give that asked, the defendant duly excepted. At the proper time the defendant filed a motion in arrest of judgment- on the ground that it is not averred in the petition plaintiff furnished proofs of loss as required by the policy, or that such proofs were waived by the defendant; which motion was overruled, as was also a motion for a new trial, and defendant duly excepted thereto.
[590]*5901. insurance: eondítionloss: precedent. [589]*589The policy contemplates a notice of the loss to be given the [590]*590insurer, and also afterward a particular account or proofs thereof, and what the latter shall contain or set forth is contained in or set out in the policy, -\ye gee n0 reasoll) however, why the same paper may not contain both the notice and particular account. Therefore the paper introduced in evidence against defendant’s objection may be designated as intended both for the notice and such particular account. It in fact was neither, but an appraisement of the property destroyed, accompanied by a certificate of a notary public. It may be sufficient as a notice, but is wholly deficient as proof or particular account of the loss. Counsel do not claim that it in any respect complies with the requirements of the policy as a particular account or proof of loss. There is no averment in the petition that plaintiff has complied with or performed all the conditions of the policy, or that the particular account or preliminary proofs required by the policy had been furnished to the defendant. Such preliminary proofs are conditions precedent to plaintiff’s right to recover. Blakely v. Phœnix Ins. Co., 20 Wis., 217; Inman v. Western Ins. Co., 12 Wend., 452; Owen v. Farmers Joint S. Co., 47 Barb., 518; Willcome v. Peoples Ins. Co., 2 Gray, 480. Where the policy provides the loss shall not be payable until the certificate of a magistrate as to certain facts is produced, the production of such certificate is a condition precedent to plaintiffs 'right to sue. Johnson v. Phoenix Ins. Co., 112 Mass., 49. An averment, therefore, of the performance is necessary, and the proof must sustain the averment. Flanders on Insurance, 514; St. Louis Ins. Co. v. Kyle, 11 Mo., 185.
2 _._. pieadmg. It is, however, insisted, that the testimony was ample and sufficient to show a waiver by the defendant of any other or more particular .account of the loss than that iurnished, and that the jury have so found. We are not called upon to determine whether, if there had been an averment in the petition of performance, evidence of a waiver could have been introduced or not. We have, however, held in actions against an indorser of a promissory note, when the petition averred demand and protest, that evidence of a [591]*591waiver could not be introduced. Lambert v. Palmer, 29 Iowa, 104; Woolsey v. Williams, 21 Iowa, 413. In the latter case it is said by Beck, J.: “No principle of law is better understood than the one which the proceedings in this case violate, namely: the evidence must correspond with the allegations of the pleading, and the rights of the parties must be determined upon the facts in issue.” Now it being a condition precedent to plaintiff’s light to recover, he should have averred a performance and the evidence should have corresponded therewith. But there was no such averment, nor any such issue. The defendant objected to the introduction of any evidence showing a loss because of the want of such averment in the petition. In overruling the objection the court erred.
It necessarily follows that if no evidence could be introduced until performance of the conditions precedent was averred, that proof of a waiver of such conditions was not admissible. Counsel for the plaintiff have cited many authorities showing that the preliminary proofs may be waived. Admitting such to be the case, still such fact in no manner affects the point in issue here. It is also insisted that want of notice should be specially pleaded; in support of which Wightman v. Western Marine Ins. Co., 8 Robinson, 442, and Dayton Ins. Co. v. Kelly, 24 O. St., 357, are cited. The former we have not seen, and the latter by no means supports the position claimed by counsel.
3. practice : pleading: motion in arrest, II. Under the authorities cited it cannot be doubted that the petition was demurrable Instead of taking advantage in that wax’, the question was raised by ansxx’er, . , ., , ,, . , , and defendant at the proper time moved the court to arrest the judgment. That such course was proper is held in Nollen v. Wisner, 11 Iowa, 190. If such xvas the proper course then, much more is it now, as the Code expressly recognizes the right to move in arrest of judgment. Code, Sec. 2650. The petition xvas defective in substance, and not as a matter of form only; hence the judgment should have "been arrested unless the plaintiff could have prevented such result under Code, secs. 2842 and 2843. These sections, it will be observed, contemplate that a judgment may be arrested by [592]*592reason of the non-averment of a material fact. The answer of the defendant averring that no preliminary proofs had been furnished did not obviate the necessity of the averment of performance in the petition. Having failed to demur, the defendant was cotxqielled to take advantage of the defect in the answer to avoid a waiver. Code, sec. 2650.
The plaintiff could have amended his petition, or replied confessing the allegation, and avoided it by alleging a waiver. Code, sec. 2666. This would have constituted an issue.
We do not deem it necessary to allude to the other errors assigned, as they will not be likely to occur on a re-trial. For the reasons stated the judgment below must be
Reversed.