Morgan

Plaintiff appeals from the judgment entered in favor of defendant insurance company following the presentation of plaintiff’s evidence. (Code Civ. Proc., § 631.8.)

Both parties agree that said judgment rests entirely upon the trial court’s determination that this action to recover indemnity for property damage sustained as a result of the accidental destruction of plaintiff’s insured airplane is barred by a provision of the insurance policy which limits the time within which an action may be brought thereon to a period of one year following the date of loss.

Plaintiff’s amended complaint acknowledges the undisputed fact that the action was filed on November 27, 1962, after the expiration of the one-year period but alleges that “said period of limitations has been waived by the parties hereto ’ ’ and further that by reason of its actions in the premises “the defendant is now estopped from asserting [this provision of its policy] as a defense herein.”

By way of assignment of error appellant contends that the trial court erred (1) in failing to make any finding upon the issue of estoppel; and (2) that in the face of the undisputed evidence it may not be presumed that an “implied”…