Page:Federal Reporter, 1st Series, Volume 2.djvu/312

 plaintiff to recover from the defendant the sum of $2,100, the amount of a policy of insurance issued by the defendant to the plaintiff on the thirteenth day of February, 1878, upon his flouring mill, situated in Minneapolis, Minnesota, and the mill machinery, tools, implements and fixtures therein and attached thereto, insuring the plaintiff against loss and damages by fire to the extent of the amount named in said policy, $700 of which was placed upon the building, and $1,500 upon the machinery, tools, implements and fixtures.

The plaintiff alleges that other insurance to a large amount was placed upon the property; that on the second day of May, 1878, the said mill, machinery, tools, implements and fixtures were damaged by fire to an amount largely in excess of ail the insurance upon the property; that on the twenty-fifth day of May, 1878, due notice and proof of loss was given and made to the defendant, according to the conditions and terms of the policy; and the plaintiff further avers that he has duly performed all the conditions of said policy upon his part, and prays judgment against the defendant for the sum of $2,100, with interest from the twenty-fourth day of July, 1878.

The defendant, by its answer, admits the issuing of the policy as alleged by the plaintiff, but denies that the property was injured or destroyed by fire within the meaning of the policy; but says that the injury thereto was caused by an explosion of some substance in said mill building, against which the policy did not insure the plaintiff.

By this policy of insurance the defendant, in consideration of $63, the premium paid it by the plaintiff, agreed to indemnify the plaintiff against loss and damage by fire to the property described therein, according to the terms and conditions of the policy, one of the conditions of which is “that the defendant shall not be liable for any loss or damage caused by explosion, including steam boilers, unless fire ensue, and then for the loss and damage by fire only.”

It is admitted, by counsel for the defendant, that the property insured was damaged to an amount in excess of all the insurance thereon; and it is also admitted that due and