In Error to the Circuit Court of the United States for the Northern District of California.

Action by Haas Bros, against the Hamburg-Bremen Fire Insurance Company. Judgment for defendant, and plaintiff brings error.

Action at law by Haas Bros., a corporation, to recover from the Hamburg-Bremen Fire Insurance Company, a corporation, the sum of $3,869.36, being the difference between 98 per cent, of the amount adjusted and agreed upon as the loss and damage occasioned by Are and sustained by plaintiff in the San Francisco Are of April, 1906, and 75 per cent, of such loss, the amount paid to plaintiff by defendant on certain Are insurance policies issued by the defendant, insuring property belonging to plaintiff against Are. Judgment for defendant on the pleadings, and plaintiff brings error.

The action was originally brought in the state court and removed to the United States Circuit Court on the ground of diverse citizenship. The allegations of the complaint are substantially to the effect that the plaintiff, a California corporation, held six policies of Are insurance issued by the defendant, insuring certain property in San Francisco belonging to plaintiff against Are; that in April, 3906, the property so insured was damaged and partially destroyed by Are; that, in accordance with the terms of said policies of insurance, plaintiff gave immediate notice of such loss to the defendant, and in due time served upon defendant its veriAed proof of loss on forms approved by the defendant; that thereafter, and by agreement, the loss and damage occasioned by the Are was adjusted, and by such adjustment the sum of $16,823.29 was found due from the defendant to the plaintiff by reason of such damage and loss; that thereupon the defendant became indebted to the plaintiff in said sum of $16,823.29; that, after such adjustment, the defendant falsely and fraudulently represented to the plaintiff that it was insolvent and unable to pay its creditors in full; that it was able to pay to its policy holders who had suffered loss from such conAagration 75 per cent, of their respective claims, and no more; that it was making a uniform payment to each and every one of its creditors of, 75 per cent, of their claims, and no more; that this course would be pursued by the defendant until it had Anally settled all claims of its San Francisco creditors, and in no event could it pay to any of such creditors a larger percentage than 75 p^r cent.; that defendant promised plaintiff that, if plaintiff would accept the sum of 75 per cent, on its claims against the defendant and sign a receipt in full of such claims, the defendant would, in the event that it voluntarily paid more than 75 per cent, to any of its other San Francisco creditors, pay to the said plaintiff the difference between 75 per cent, on its claims and any percentage which it paid to any other of its San Francisco creditors; that plaintiff, relying upon the false and fraudulent statement of the defendant that it was insolvent, and relying upon the promise of the defendant that it would pay to the plaintiff the difference between 75 per cent, and any other per cent, which it paid to any other of its San Francisco creditors, received from the said defendant 75 per cent, upon its claims against the defendant, to wit, the sum of $12,617.87, and gave the defendant its receipt in full for such claims; that since the settlement and payment defendant has paid to other San Francisco creditors 98 per cent, of the face value of their claims as adjusted. Plaintiff accordingly demands judgment for the difference amounting to $3,869.36.

Defendant answered the complaint, admitting the insurance substantially as alleged in the complaint, the Are and partial destruction of plaintiff’s property, the adjustment by agreement of the loss and damage occasioned by the Are, but denies that the parties adjusted the amount or thereby ascertáined that any amount was due from defendant to plaintiff by reason of the latter’s damage or loss on any of said policies, and in any amount whatsoever under all or any of them; denies that defendant from and after such alleged adjustment, or at any other time, became indebted to plaintiff in the alleged agreed or other' sum of $16,823.29, or in any sum in excess of $12,-617.87; denies that it promised to plaintiff that if the latter would accept the sum of 75 per cent, of its claims against defendant, and sign a receipt in full for such claims, defendant would, in the event that it voluntarily or otherwise paid more than 75 per cent, to any of its other said San Francisco creditors, pay to plaintiff the difference between said 75 per cent, of its claims and any percentage which it paid to any other of its said San Francisco creditors ; admits that “plaintiff gave defendant its said receipt In full”; but alleges that it was “in compromise of plaintiff’s said claim against the defendant and of various differences of law and fact which had theretofore arisen between them growing out of said claims and in full settlement and satisfaction thereof.” Upon the filing of the answer defendant moved for judgment on the pleadings on the ground that the complaint did not either of itself or by the assistance of the averments contained in the answer thereto set forth a cause of action against the defendant. Thereafter it was stipulated “that the promise set forth in the complaint whereby defendant agreed to pay plaintiff the difference between seventy-five per cent. (75%) of its claims and any other amount which it might pay any other claimant was an oral promise.” Plaintiff thereupon moved to amend the complaint in certain particulars. The court denied plaintiff’s motion to amend the complaint, and entered a judgment in favor of the defendant on the pleadings. Plaintiff brings the case on a writ of error.