Frasch

This is an appeal from a judgment entered in defendant’s favor when the plaintiff refused to amend upon the sustaining of a demurrer to the first amended complaint.

The action is one for declaratory relief. Plaintiff is seeking to have it determined that the defendant com- , pany is bound by and liable under the terms and conditions of a certain policy of fire insurance alleged to have been issued by it. It appears from the complaint that the person who solicited the insurance and delivered the policy, collected and receipted for the premium and absconded with the money, whereupon the defendant denied all liability under the policy unless plaintiff again paid the premium. In addition to its general demurrer challenging the sufficiency of the complaint to state a cause of action, the defendant demurred specially on the threefold ground that it could not be determined what the terms of the policy were, whether or not it was a standard form of policy, and whether or not Booth, the absconding agent, was an agent of the defendant for the collection of the premium. If one of these several grounds of demurrer is well taken the judgment must be affirmed. (Aalwyn v. Cobe, 168 Cal. 165,…