APPEAL from a judgment of the Superior Court of the County of Yuma. Fred L. Ingraham, Judge. Affirmed.
Messrs. Ellinwood & Ross, Mr. Martin Le Boutillier and Mr. Wm. H. Mackay, for Appellant.
Mr. William H. Westover, for Appellee.
E. F. Sanguinetti brought this action against O. T. Simonson for $1,321.11, and caused a writ of garnishment to be issued and served on the [38 Ariz. 222] North River Insurance Company, insurance carrier for Simonson whose property had been recently destroyed by fire. The contest is between plaintiff and the garnishee. Judgment in favor of plaintiff against defendant Simonson was entered upon the pleadings, and the latter dropped out of the case except as a witness. Upon issues formed between the plaintiff and the garnishee, the trial proceeded before a jury and resulted in a verdict in favor of the plaintiff. The garnishee has appealed.
The facts are presented to us under an agreed statement of the case. We learn therefrom that some time before the fire the garnishee issued to Simonson, on a New York standard form, a policy of insurance against damages by fire, to building $500, merchandise $600, fixtures $450, and personal effects $150, located in Wellton, Yuma county; that all said property was, on August 27, 1927, destroyed by fire; that due proof was made and payment demanded and refused before suit was brought and garnishment served; that the building was not on ground owned in fee simple by the insured, but that it was on leased ground and there was a mechanic's lien on it for $800; that the personal effects belonged to one Thompson; that certain of the fixtures, to wit, tanks, pumps and gasoline equipment were bought under conditional sales contracts and were not entirely paid for; and that said Thompson was a partner of the insured "in the profits derived from the business."
We also learn therefrom that the garnishee's defense is based upon the insured's breach of the following conditions of the policy, to wit:
"This entire policy, unless otherwise provided by agreement endorsed hereon or annexed hereto shall be void if the interest of the insured be other than unconditional and sole ownership."
". . . if the subject if the subject of insurance be a building on ground not owned by the insured in fee simple."
[38 Ariz. 223] "This entire policy shall be void if the insured has concealed or misrepresented in writing, or otherwise, any material fact or circumstance concerning this insurance or the subject thereof, or if the interest of the insured in the property be not truly stated herein."
That the plaintiff denied that the insured concealed or misrepresented in writing or otherwise any material fact or circumstance concerning the insurance or the subject thereof,
and contended that the garnishee waived the unconditional and sole ownership and fee-simple clauses in the policy.
The garnishee presents its contentions in the form of two assignments: First, it is said the plaintiff having admitted in his pleadings and in his evidence breach of the conditions of the policy, and there being no evidence of a waiver of those conditions by the garnishee or its authorized agent, its motion for a directed verdict should have been granted; second, that "the trial court erred in instructing the jury that garnishee waived the conditions by ...