
    W. E. STEWART v. ST. PAUL FIRE & MARINE INSURANCE COMPANY.
    
    May 27, 1927.
    No. 25,937.
    Contract to insure and breach of it sustained by evidence.
    1. Evidence held sufficient to sustain a finding of a contract to insure and a breach of it.
    Objection at close of trial came too late.
    2. The trial was upon the theory that there was a breach of contract to insure and not upon the theory that there was a present contract of insurance.
    Fire Insurance, 26 C. J. p. 51 n. 76.
    Pleading, 31 Cyc. p. 720 n. 79; p. 729 n. 54.
    
      Defendant appealed from an order of the district court for Nicollet county, Enersen, J., denying its alternative motion for judgment or a new trial.
    Affirmed.
    
      Oppenheimer, Diehson} Hodgson, Brown & Donnelly and Henry N. Benson, for appellant.
    ' O. J. Laurisch, for respondent.
    
      
      Reported in 214 N. W. 58.
    
   Dibell, J.

Action to recover for the breach of a contract to insure the plaintiff’s property. There was a verdict for the plaintiff. The defendant appeals from the order denying its alternative motion for judgment or a new trial.

On October 17, 1924, the plaintiff’s barn in North Mankato was damaged by fire. On August 17, 1921, the defendant, through its agent Theodore Williams, delivered to the plaintiff a policy expiring August 17, 1924, covering this property. The company had carried a policy on the property prior to that time. The plaintiff claims that in the first few days of August, 1924, he had a conversation with Williams relative to this insurance; that at that time he told him that because of his becoming interested in a bank, an officer of which was writing insurance, he, Williams, could not have his insurance longer, except the insurance on the barn; and that at that time it was agreed that the policy on the barn should be renewed when it expired and that Williams would take care of it. The testimony of Williams is that no such conversation took place at this time. He says there was a conversation in the fall of 1923 when the plaintiff told him that he could not have his insurance longer for substantially the reasons before stated. There are circumstances quite strongly corroborating the testimony of Mr. Williams, but the question was one of fact for the jury.

The case comes fairly enough within Eifert v. Hartford Fire Ins. Co. 148 Minn. 17, 180 N. W. 996. There is some claim that the agreement was not sufficiently definite. Williams represented some 20 companies. The jury could find that there was a talk something like two weeks before the expiration of the policy about continuing the insurance in the same company, “a renewal of the same policy.” As was said in Ames-Brooks Co. v. Aetna Ins. Co. 83 Minn. 346, 86 N. W. 344, “a proper administration of justice will not permit us to be over sub tie, but we must interpret tbe contract from tbe standpoint of the practical business men who made it, * * * and tbe established course of business between them.” Tbe evidence sustains tbe jury’s finding that there was a contract by tbe defendant to renew tbe policy and a breach of it.

Tbe defendant claims that tbe case was tried upon tbe theory of a contract of present insurance. Tbe plaintiff does not allege a contract of present insurance. It is true, too, that there is no allegation of tbe breach of a contract to furnish insurance. For this reason tbe complaint did not state a cause of action. No objection was made until tbe close of tbe case. An amendment could then have been made, would doubtless have been granted if asked, and tbe absence of it should be overlooked now. While some uncertainty of theory appeared at times in tbe trial it may be said fairly that tbe case was tried on tbe theory of a breach of contract to insure. That was tbe definite theory upon which it was put to tbe jury.

Order affirmed.  