The policy of insurance upon which this action is based and which is set out in the complaint of the defendant in error, who was the plaintiff in the court below, covered $4,000 on certain quartz mill buildings described in the policy, $3,000 on its boiler and engine, and $3,000 on the fixed and movable machinery contained in the buildings — $10,000 in all. The policy contained, among others, this provision:

The policy also provided that, in the event of loss or damage, the same should he ascertained or estimated by the insured and the insurance company, and in the event that they should differ then by appraisers to be appointed in a prescribed way, and further provided that, the amount of loss or damage having been thus determined, the sum for which the insurance company is liable pursuant to the policy shall be paid at a certain time after due notice,‘etc.

The trial in the court below, which was with a jury, resulted in this verdict:

Based -upon such verdict the court entered judgment in favor of the plaintiff and against the defendant insurance company for $10,-617.20, with legal interest thereon from the date of the judgment, and costs of suit. The case is brought here by writ of error, the. sufficiency- of most .of the assignments of error on which are questioned by the defendant in error. These we do not think it necessary to consider, for the reason that the unquestioned assignment that the verdict and judgment are contrary to law raises the point of the sufficiency of the complaint to sustain, the judgment, even if any assignment in respect to that matter be necessary; but, as said by Chief Justice Marshall in Slacum v. Pomery, 6 Cranch, 221 , 3 L. Ed. 204 :

The complaint itself, after pleading the policy and the destruction of the insured property by fire, alleges that:

' This stipulation so pleaded, and afterwards introduced in evidence according to the bill of exceptions, fixed the actual cash value of the property at the time of the loss, the aggregate insurance upon which was, according to the policy, $10,000 for three-fourths of which only was the'insurer liable according to its express provision. The verdict and judgment were, therefore, in excess of what they could legally be under-the averments of the complaint itself; for they not only went beyond the issues in the case, but • are in direct • conflict with the express averments of the complaint itself.

The suggestion on' the part of the defendant in error that this court may remit the ¿xcess and affirm the judgment for three-fourths of the ascertained loss, cannot be sustained, for the reason that the judgment brought up for review has for its sole support the verdict of the jury, which verdict, as has been said, is not only beyond the issues, but is in direct conflict with the express averments of the plaintiff’s complaint. It is apparent that the rule under which courts at times grant a new trial unless the plaintiff consents to a remission of a part of a verdict which is within the issues is not authority for *503 this court to change the verdict which is the sole Basis, ol the judgment in question.

It results that the judgment must be, and is, reversed, and the cause remanded to the court below for a new trial.