Smith v. Phœnix Insurance

In March, 1890, we made a decision in this case reversing the judgment of the superior court, with directions to enter judgment on the' findings in *327 favor of the appellant. ( 23 Pac. Rep. 303 .) After a rehearing of the case, and upon fuller consideration of the questions involved, we are satisfied that our former decision was erroneous, and that the judgment of the superior court should be affirmed.

The action is upon a fire insurance policy. Plaintiffs had judgment in the lower court, and defendant appealed from the judgment alone, claiming that upon the facts found, the judgment should have been in its favor.

The policy in suit was issued in August, 1887, and the property insured consisted of a frame building designed for a hotel or boarding-house. The defendant was advised by the papers accompanying the application for insurance — which, by the terms of the policy, are made a part of the contract — that the building was occupied, or to be occupied, by a tenant (no particular tenant being named) for hotel purposes, and it is found by the court, as alleged in the complaint, “ that before said insurance was effected, defendant had full knowledge that said building was built…