Bennett

An action to recover on a policy issued by appellant corporation upon an automobile by which respondent was insured for the term of one year against direct loss or damage caused by fire or theft.

During the term of the policy the automobile was stolen and destroyed by fire, its value at the time of its destruction being in excess of the amount for which it was insured. The action was tried by the court, and upon its findings judgment was entered for respondent in the sum of one thousand dollars, the amount of the policy.

As defenses to the action it was alleged that the automobile at the time of the loss was, without the permission of the insurer, encumbered by a lien, and that at the time of the execution of the policy the insured warranted the automobile to be a 1921 model when in fact it was a model of the year 1920.

The policy contained the following clause:

The evidence shows that respondent on or about November 5, 1923, arranged with one Turner for a loan from the latter in the sum of $338.50, to be repaid in installments with interest. Respondent testified that the conversation between the two as to the manner in which the loan should be evidenced was as follows: “I…