Bruce, J.
(after stating the facts as above). It is quite clear to us that the mere fact that, during the negotiations in regard to the loss, the defendant insurance company said nothing about the failure to maintain the safe and to keep the books therein, did not estop it from raising and interposing such a defense upon the trial and when it first learned of such failure. “The doctrine of waiver . . . should not be extended so as to deprive a party of his defense, merely because he negligently, incautiously, when a claim is first presented, while denying his liability, omits to disclose the ground of his defense, or states another ground than that upon which he finally relies. There must, in addition, be evidence from which the jury would be justified in finding that, with full knowledge of the facts, there was an intention to abandon, or not to insist upon, the particular defense afterward relied upon, or that it was purposely concealed under circumstances calculated to, and which actually did, mislead the other party to his injury.” Devens v. Mechanics’ & T. Ins. Co. 83 N. Y. 168. The record shows that until the trial the defendant was of the opinion that the insurance premium had never been paid, and there is no evidence whatever that it had any knowledge of the failure to keep the books in the safe until the fact had been disclosed upon the cross-examination. None of the numerous eases cited by counsel for appellant bear him out in his contention. All of them relate to formal proofs of loss which the courts held could not be insisted upon where the defendant insurance company had re[32] pudiated the policy on other grounds, and had lulled the plaintiff into the belief that, even if such proofs were furnished, they would not be considered and would be unavailing. They are cases, indeed, where the plaintiff had been lulled into a sense of security, and had refrained from doing certain formal acts, and this on account of the actions of the insurance company. In the case at bar the failure to keep the books in the safe was a matter which went to the question of liability in the first instance. Either they had been kept in the safe or they had not; and no action on. the part of the insurance company, after the occurrence of the fire, could, as far as this matter was concerned, have unduly affected the insured. We can, indeed, see no grounds for the application of the rules either of waiver or of estoppel. See chapter on Waiver and Estoppel, 14 Mod. Am. Law, 46; 1 Clement, Fire Ins. 410.
We are quite satisfied, however, that the learned trial court erred in granting the motion of the defendant for judgment notwithstanding the verdict, and allowing, the filing of the amended answer after the rendition of the verdict and entry of the judgment, and in order to justify the granting of the motion. The law, indeed, is well established that the breach of a condition subsequent in an insurance policy must, in order to be relied upon, be specially pleaded, and the failure to keep the books of account in the iron safe was clearly a condition subsequent. The policy, in short, was operative when issued; and if the fire had taken place before any new goods were purchased or sales had been made, the clause in regard to the keeping of the books and the preserving them in an iron safe would have been in no way applicable. So far, too, as the inventory was concerned, the policy merely provided that it should be taken “at least once during the life” thereof, and as the fire happened within three months of the issuance of the policy, there appears to have been no violation of the terms of the instrument in failing to make the same. There was no attempt in the original answer to plead either of these defenses, and, as far as the original answer was concerned, they could therefore not be relied upon. See Cooley Briefs on the Law of Insurance, vol. 2, page 1176, and cases cited; Phillips, Code Pl. § 421; Bringham v. Leighty, 61 Ind. 524.
We are not unaware of the holding in Sifton v. Sifton, 5 N. D. 187, 65 N. W. 670, in which it was held that where the contract sued upon [33] imposed “certain conditions precedent to be performed on plaintiff’s part, and tbe complaint alleged that 'tbe said plaintiff has fully performed all tbe conditions of said instrument on her part.’ Tbe answer embraced a general denial, . . . [sucb] answer raised a material issuq of fact wbicb defendant bad a legal right to have presented to a jury for determination.” We have to remember, however, that in tbe case at bar, tbe keeping of tbe books in tbe safe was a condition subsequent, and not a condition precedent.
So, too, tbe failure to keep tbe books in a safe was, in no event, a complete defense. Tbe policy was divisible. By its terms tbe insurer agreed to pay $500 in tbe case of tbe loss or destruction of tbe building, and $2,000 in case of tbe loss of the contents. If tbe jury believed, as it evidently did, that tbe plaintiff bad paid the premium on tbe insurance policy, tbe plaintiff was, at any rate, entitled to a recovery of $500 for tbe loss of tbe building, as tbe provision in relation to tbe keeping of tbe books in an iron safe bad no relation to sucb building. “But tbe iron-safe clause,” says tbe supreme court of West Virginia, “relates only to tbe stock of merchandise, and noncompliance with it does not necessarily affect defendant’s liability with respect to tbe other property insured. It was not intended to apply to tbe building itself, tbe household furniture, or tbe fixtures in tbe building, and notwithstanding tbe policy expressly provides that it shall be void and no action shall be maintained upon it if any of tbe warranties' are violated, tbe rule established by tbe great weight of decisions is that, in tbe absence of fraud or any act condemned by public policy, tbe contract is divisible, and recovery may be bad for the loss of other property not affected by tbe particular warranty broken. Tbe risk as to tbe building, fixtures, and household furniture is in no wise increased by a failure to preserve an account of the mercantile transactions.” Fisher v. Sun Ins. Co. 74 W. Va. 694, L.R.A.1915C, 619, 83 S. E. 729.
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Bruce, J.
(after stating the facts as above). It is quite clear to us that the mere fact that, during the negotiations in regard to the loss, the defendant insurance company said nothing about the failure to maintain the safe and to keep the books therein, did not estop it from raising and interposing such a defense upon the trial and when it first learned of such failure. “The doctrine of waiver . . . should not be extended so as to deprive a party of his defense, merely because he negligently, incautiously, when a claim is first presented, while denying his liability, omits to disclose the ground of his defense, or states another ground than that upon which he finally relies. There must, in addition, be evidence from which the jury would be justified in finding that, with full knowledge of the facts, there was an intention to abandon, or not to insist upon, the particular defense afterward relied upon, or that it was purposely concealed under circumstances calculated to, and which actually did, mislead the other party to his injury.” Devens v. Mechanics’ & T. Ins. Co. 83 N. Y. 168. The record shows that until the trial the defendant was of the opinion that the insurance premium had never been paid, and there is no evidence whatever that it had any knowledge of the failure to keep the books in the safe until the fact had been disclosed upon the cross-examination. None of the numerous eases cited by counsel for appellant bear him out in his contention. All of them relate to formal proofs of loss which the courts held could not be insisted upon where the defendant insurance company had re[32] pudiated the policy on other grounds, and had lulled the plaintiff into the belief that, even if such proofs were furnished, they would not be considered and would be unavailing. They are cases, indeed, where the plaintiff had been lulled into a sense of security, and had refrained from doing certain formal acts, and this on account of the actions of the insurance company. In the case at bar the failure to keep the books in the safe was a matter which went to the question of liability in the first instance. Either they had been kept in the safe or they had not; and no action on. the part of the insurance company, after the occurrence of the fire, could, as far as this matter was concerned, have unduly affected the insured. We can, indeed, see no grounds for the application of the rules either of waiver or of estoppel. See chapter on Waiver and Estoppel, 14 Mod. Am. Law, 46; 1 Clement, Fire Ins. 410.
We are quite satisfied, however, that the learned trial court erred in granting the motion of the defendant for judgment notwithstanding the verdict, and allowing, the filing of the amended answer after the rendition of the verdict and entry of the judgment, and in order to justify the granting of the motion. The law, indeed, is well established that the breach of a condition subsequent in an insurance policy must, in order to be relied upon, be specially pleaded, and the failure to keep the books of account in the iron safe was clearly a condition subsequent. The policy, in short, was operative when issued; and if the fire had taken place before any new goods were purchased or sales had been made, the clause in regard to the keeping of the books and the preserving them in an iron safe would have been in no way applicable. So far, too, as the inventory was concerned, the policy merely provided that it should be taken “at least once during the life” thereof, and as the fire happened within three months of the issuance of the policy, there appears to have been no violation of the terms of the instrument in failing to make the same. There was no attempt in the original answer to plead either of these defenses, and, as far as the original answer was concerned, they could therefore not be relied upon. See Cooley Briefs on the Law of Insurance, vol. 2, page 1176, and cases cited; Phillips, Code Pl. § 421; Bringham v. Leighty, 61 Ind. 524.
We are not unaware of the holding in Sifton v. Sifton, 5 N. D. 187, 65 N. W. 670, in which it was held that where the contract sued upon [33] imposed “certain conditions precedent to be performed on plaintiff’s part, and tbe complaint alleged that 'tbe said plaintiff has fully performed all tbe conditions of said instrument on her part.’ Tbe answer embraced a general denial, . . . [sucb] answer raised a material issuq of fact wbicb defendant bad a legal right to have presented to a jury for determination.” We have to remember, however, that in tbe case at bar, tbe keeping of tbe books in tbe safe was a condition subsequent, and not a condition precedent.
So, too, tbe failure to keep tbe books in a safe was, in no event, a complete defense. Tbe policy was divisible. By its terms tbe insurer agreed to pay $500 in tbe case of tbe loss or destruction of tbe building, and $2,000 in case of tbe loss of the contents. If tbe jury believed, as it evidently did, that tbe plaintiff bad paid the premium on tbe insurance policy, tbe plaintiff was, at any rate, entitled to a recovery of $500 for tbe loss of tbe building, as tbe provision in relation to tbe keeping of tbe books in an iron safe bad no relation to sucb building. “But tbe iron-safe clause,” says tbe supreme court of West Virginia, “relates only to tbe stock of merchandise, and noncompliance with it does not necessarily affect defendant’s liability with respect to tbe other property insured. It was not intended to apply to tbe building itself, tbe household furniture, or tbe fixtures in tbe building, and notwithstanding tbe policy expressly provides that it shall be void and no action shall be maintained upon it if any of tbe warranties' are violated, tbe rule established by tbe great weight of decisions is that, in tbe absence of fraud or any act condemned by public policy, tbe contract is divisible, and recovery may be bad for the loss of other property not affected by tbe particular warranty broken. Tbe risk as to tbe building, fixtures, and household furniture is in no wise increased by a failure to preserve an account of the mercantile transactions.” Fisher v. Sun Ins. Co. 74 W. Va. 694, L.R.A.1915C, 619, 83 S. E. 729.
Although, indeed, there is a decided conflict of authority upon tbe proposition, and some courts bold that where the premium is paid in gross, tbe breach even of a condition which is strictly applicable to only one class of goods will invalidate tbe whole policy, tbe role wbicb is gaining ground and wbicb seems to use to be more just and reasonable is that “where an insurance policy is issued, and different classes of property are insured, each class being separated from the others and [34] insured for a specific amount, and there is a breach of the conditions of the contract as to one class of the property insured, the contract should be considered as not one entire in itself, but as one which is severable, and in which the separate amounts specified may be distinguished, and a recovery had for one or more of them without regard to the other, provided the contract is not affected by any question of fraud, act condemned by public policy, or any increase of the risk of the company on the whole property insured because of the breach.” Miller v. Delaware Ins. Co. 14 Okla. 81, 65 L.E.A. 173, 75 Pac. 1121, 2 Ann. Cas. 17, and cases cited; See also Fisher v. Sun Ins. Co. 74 W. Va. 694, L.R.A.1915C, 619, 83 S. E. 729, and cases cited. For general discussion of the proposition and also for authorities contra, see Joffe v. Niagara F. Ins. Co. 116 Md. 155, 81 Atl. 281, Ann. Cas. 1913C, 1217, and valuable note in 51 L.R.A.(N.S.) 1047; Southern F. Ins. Co. v. Knight, 111 Ga. 622, 52 L.E.A. 70, 78 Am. St. Rep. 216, 36 S. E. 821.
We are satisfied, also, that the learned trial judge did not err or commit an abuse of discretion in refusing to allow the filing of the amendment to the answer, and setting up this defense at the close of the plaintiff’s case. It may be true that as a general rule a plaintiff cannot claim to be surprised by a defense, the facts which furnish the basis of which are within his own peculiar knowledge, and that in,the case at bar plaintiff must have known of his own failure to keep the books in an iron safe. See Southern Ins. Co. v. Hastings, 64 Ark. 253, 41 S. W. 1093, 1094. The matter of allowing the amendment, however, was within the sound discretion of the trial court, and the practice is not favored which inverts the orderly modes of trial which generally prevail and settles issues after, instead of before, trial. 31 Cyc. 452; Wood v. Pehrsson, 21 N. D. 357, 130 N. W. 1010. It is also to be remembered that the motion was not made until the plaintiff had rested; that neither throughout the negotiations for a settlement nor in the original answer had the defendant in any manner suggested the defense; that the trial was held at a place more than a hundred miles from the home of the plaintiff and of his attorneys, and that, although the defendant now insists in its brief that it had no knowledge of the fact of the failure to keep the books in the safe until after the cross-examination of the plaintiff himself on the trial, no such statement was made to-[35] the trial court, and no affidavit in support of such a proposition was filed, nor, as far as the record discloses, was any such showing in any other manner made. The trial court, therefore, was, as we have before said, clearly within the limits of his discretion, and committed no error in refusing to permit the amendment, and he could hardly, after the trial of the case had been completed and a verdict for the plaintiff' had been returned upon the pleadings and the proof thereunder and which were before the jury and the court, change these issues, and set aside the verdict and order judgment for the defendant.
The introduction of the evidence as to the iron safe and the keeping of the books therein was strenuously objected to by counsel for plaintiff, on the ground that there was no foundation therefor in the pleading. The evidence, it is true, was admitted in spite of the objections, but later, and at the close of plaintiff’s case, and when counsel for the defendant sought to amend his answer and to set up his defense, the motion was denied by the trial court. This action on the part of the trial court could only have been understood by the plaintiff as a repudiation of the defense on the part of such court, and the allowing of the evidence to stand merely as evidence which might tend to show the inaccuracy of the plaintiff and his lack of information in regard to the property actually burned, but not in any manner as decisive, or evidence which would tend to defeat the action altogether. “Respondent’s counsel,” says Mr. Justice Fisk, in speaking for this court in the case of Maclaren v. Kramer, 26 N. D. 244, 50 L.R.A.(N.S.) 714, 144 N. W. 85, “earnestly contend that, even though it be held that justification must be pleaded in order to be available as a defense, the allowance of the amended answer after the trial in which such justification is alleged renders plaintiff’s point in this respect of no avail. In other words, it is contended that by the allowance of such amended answer defendant is in as advantageous a position as he would have been in had he pleaded such new matter in the original answer. We ax*e unable to uphold respondent’s contention in this x*espect. Had the testimony showing justification been introduced withoxxt objection, a different situation would arise, but as we understand the settled rule, while amendments to pleadings to conform to the proof will, in furtherance of justice, be liberally granted, they will never be granted where the admission of evidence was promptly objected to, when it was offered, upon [36] the ground that it did not tend to support the allegations in the pleadings.”
The practice on motions for judgment notwithstanding the verdict is governed by § 7643, Compiled Laws 1913. This section, so far as it relates to the practice in the trial court, reads as follows: “In all cases where at the close of the testimony in the case tried, a motion is made by either party to the suit requesting the trial court to direct a verdict in favor of the party making such motion, which motion was denied, the trial court on motion made, that judgment be entered notwithstanding the verdict, or on motion for a new trial, shall order judgment to be entered in favor of the party who was entitled to have a verdict directed in his or its favor.”
Under the provisions of this section, two prerequisites are essential to justify a trial court in ordering judgment notwithstanding the verdict: (1) A motion for a directed verdict must have been made and denied; (2) the party who moved for a directed verdict must have been entitled to a directed verdict at the time of the motion. The motion for judgment notwithstanding the verdict in effect reviews only the court’s ruling in denying the motion for a directed verdict. If no motion for a directed verdict has been made, or if the motion for a directed verdict was properly denied,'then a motion for judgment notwithstanding the verdict should not be granted. See Johns v. Ruff, 12 N. D. 74, 95 N. W. 440; West v. Northern P. R. Co. 13 N. D. 221, 231, 100 N. W. 254. In the case at bar the motion for a directed verdict was properly denied. At the time such motion was made and denied, the defense of the failure to keep the books in the safe was not an issue in the case. The only issue presented by the pleadings on which the motion could have been granted was that the plaintiff: had not paid the premium, and on this there was a direct conflict in the testimony. Hence, the trial court’s ruling in denying the motion for a directed verdict was correct. And this being so, the motion for judgment notwithstanding the verdict should, also, have been denied.
This being our view of the case, we have no option but to order a reversal of the judgment for the dismissal of the action, and 'to remand the case to the District Court, with directions to reinstate the verdict of the jury and to enter judgment for the plaintiff in accordance therewith: It is so ordered.