Page:North Dakota Reports (vol. 1).pdf/201

 The appellant assigns the following errors: “(1) The court erred in permitting the plaintiff to testify, over the objection of the defendant, that he answered each of the questions in the application truthfully, and that Strong falsely inserted the answers in the application, and in allowing plaintiff to vary the terms of a written application by oral testimony. (2) The court erred in permitting the plaintiff to answer the following question over the objection of the defendant: ‘Question. Now, you may state if anything was said by you to Mr. Strong on this subject of incumbrance upon your land prior to making out and signing thisapplication?’ (3) The court erred in denying defendant’s written motiqn for judgment upon the evidence. (4) That upon the findings of the court the plaintiff is not entitled to judgment, and the court erred in rendering judgment upon said findings. (5) The court erred in denying defendant's motion for a new trial.”

We have carefully examined the testimony contained in the record, and find that the findings of fact as made by the trial court are amply sustained by the evidence. The policy provides that “no suit or action for the recovery of any claim for loss or damage under this policy shall be sustained in any court of law or equity unless such suit or action shall be commenced before the expiration of six months next ensuing after the loss.” This action was not brought within the time limited, and would have been barred at common law. for that reason, but the stipulation limiting the time is void under a provision of our Civil Code. Comp. Laws, § 3582. There is no substantial conflict in the testimony. The main questions arise upon evidence not controverted, and upon the facts as found by the trial court. Do such facts and such evidence warrant the judgment in plaintiffs favor? This question is far from being one of easy solution in view of the irreconcilable conflict found in the authorities bearing upon the various points involved.

It is conceded that the answers contained in plaintiff's written application for the insurance, which relate to incumbrances upon the land and upon the crop insured, are untrue; but the learned counsel for the respondent contends that such answers relate to matters wholly immaterial, and, as counsel claims, do