Viele v. Germania Insurance Co. As such, he was in privity with the plaintiff. The conversations with him, also, occurred immediately after, and are part of the same course of conduct, or res gesta, with the acts and declarations of Verder on the insured premises, already alluded to, and in his interview with Newcomb, plaintiff's agent, and are explanatory and confirmatory thereof, and of the construction claimed for them by the plaintiff. Even if not themselves acts of waiver, they are acts from which a waiver could be inferred. Waiver, like other matters resting in parol, may be proved by indirect and circumstantial, as well as by positive, evidence. Indeed, it is not so much a distinct act, as the legal result or effect of other acts. V. There was no breach of the condition as to keeping benzine on the insured premises, for the following reasons: 1. The language of the condition is to be construed strictly against the insurers, for the double reason, that such construction is always put on a condition creating a forfeiture, and that the forms of policies are prepared exclusively by the insurers, with great care, and with sole reference to their own views and interests, and hence are to be taken most strongly against them. Carter v. Humboldt Fire Ins. Co., 17 Iowa, 456; Hoffman v. Etna Ins. Co., 32 N. Y. 405; North Berwick Co. v. Ins. Co., 52 Me.; S. C., 6 Am. Law Reg. N. S. 187; Merrick v. Germaina Fire Ins. Co., 54 Penn. St. 277; 7 Am. Law Reg. N. S. 314. 2. The language of the condition is, "if the assured shall keep upon the said premises gunpowder or phosphorus, or petroleum, or rock or earth oils, or benzole, benzine or naptha, or any explosive substances, or shall keep or use upon the said premises camphene, spirit-gas, or chemical oils, without written permission in this policy, then and in every such case this policy shall be void." Viele v. Germania Insurance Co. A keeping by tenants of the assured, is not a keeping by the assured. If the insurers had intended to prohibit a keeping by any body of the articles in question on the premises, they would have said so. The "assured" was a non-resident of the State, as the policy on its face shows, and the insured premises were intended and always used for renting out to miscellaneous tenants. An owner of real estate cannot control the conduct of his tenants, and is not identified with them in law, unless by his own express agreement. Sanford v. Ins. Co., 12 Cush. 541; Paddleford v. Ins. Co., 3 R. I. 102; White v. Ins. Co., 8 Gray, 566. 3. The "keeping" only of certain inflammable articles, including benzine, is prohibited, while in the same sentence the "keeping or using " of certain others is prohib ited. This shows that the using of the first class was not intended to be forbidden. Hence the term "keeping means something more than the presence of the article, for any purpose or in any quantity on the premises. It does not apply to a keeping in small quantities for daily use in a manufacture carried on in the building. Yet this was all that was done, as the jury have expressly found. See the following cases: Ins. Co. v. McLaughlin, 6 Am. Law Reg. N. S. 374; Ins. Co. v. Langdon, 6 Wend. 623; O'Neil v. Ins. Co., 3 N. Y. 122; Hynds v. Ins. Co., 11 id. 554. VI. The keeping of benzine was not a separate and distinct thing from the window-shade factory, but part and parcel thereof, and the very thing, most of all, claimed to render said factory an increase of the risk. Hence a waiver of objection to the factory necessarily involved a waiver of objection to the benzine, and vice versa; and the court's charge to that effect was correct. Citizens' Insurance Co. v. McLaughlin, 6 Am. Law Reg. N. S. 374; Pindar v. Kings Co. Ins. Co., 36 N. Y. 648; Viele v. Germania Insurance Co. Harper v. Albany Mut. Ins. Co., 17 id. 194; Same v. N. Y. Ins. Co., 22 id. 441. VII. The jury have expressly found, that the defendant's agent gave directions as to the manner in which the benzine should be kept, which were complied with, which, as matter of law, was a waiver of any breach, by reason either of the occupation as a window-shade factory, or the use of benzine. VIII. There was no error in the refusal to submit to the jury certain of the special issues requested by defendant, nor in the submission of the one asked by plaintiff, and those submitted by the court on its own motion. It is not the right of a party to have any and all questions which he chooses to frame, submitted. It is in the discretion of the court to submit such as it deems proper, which discretion will not be reviewed except in a clear case of abuse. The questions rejected were wholly immaterial. Hatfield v. Lockwood, 18 Iowa, 296; Patridge v. Gilbert, 3 Duer, 184. 1. PLEADING confession and In BECK, J.This cause has been conducted by the respective counsel of the parties with ability, learning and zeal fully commensurate with its importance. AND PRACTICE: The record attests the skill displayed by the avoidance. counsel at the trial in the District Court. addition to complete and exhaustive printed arguments submitted in this court in behalf of each party, which exhibit great learning and industry in their preparation, we have had the benefit of a most thorough and profound oral discussion of the questions involved by Mr. Lane, for the defendant, and Mr. Rogers, for the plaintiff. These arguments cannot be too highly commended for the evidence they exhibit of patient industry in the collection of authorities and thoughtful consideration of the questions which arise in the case. The industry and ability of VOL. XXVI. — 6 Viele v. Germania Insurance Co. counsel in the argument have greatly abbreviated our labors in the investigation of these questions, and we enter upon their discussion with a satisfactory feeling of preparation, for which we are free to acknowledge our obligation to the attorneys who have argued the cause. I. The assignment of errors first presented in argument for our consideration relates to the action of the court in reference to the admission of plaintiff, to the effect, that the terms of the policy had been violated, as averred in the answer of defendant. The defendant in separate motions moved to strike the paper from the files, to strike out the notice, therein contained, that evidence in avoidance of the admitted defenses would be relied on, for judgment upon the pleadings, and finally for permission to open and close the cause upon the trial. These motions were severally overruled. The answer of defendant admitted the execution of the policy and the loss as alleged in the petition, but set up certain acts of plaintiff in violation of the terms of the policy whereby it became forfeited. Under our system of pleading, no replication is required to an answer of this character, and the cause is at issue thereon, the law presuming a full denial thereof, and all matter properly in avoidance, as the replication of plaintiff. The answer may be controverted at the trial by evidence in denial of the facts averred or by new matter in avoidance, as if fully pleaded under the old system. The Revision (§ 2917) provides, that a party may admit in writing any allegation of facts pleaded by his adversary which otherwise would be deemed controverted by mere force of law. This admission, of course, dispenses with proof of all facts thus admitted. But it does not preclude the party making it from proving other independent facts in avoidance of those admitted. Upon the defendant filing such admission, his answer Viele v. Germania Insurance Co. sets up the facts relied upon as matter in avoidance; but when filed by the plaintiff, the replication being dispensed with, there is no pleading prescribed by the Revision in which such matter may be embodied. Upon an admission by the plaintiff, it is evidenly proper that he should in some way advise the court that matter in avoidance of the facts admitted is relied upon to defeat their effect, for, without being so advised, the court, upon the pleadings, would be justified in rendering judgment for defendant. This may be done by a separate paper, by an entry of record, or, as in the case at bar, which seems to be the better practice, by embodying the notice in the admission itself. This practice, we think, is contemplated by section 2917, above cited. If, upon filing an admission, the plaintiff would be precluded from setting up matter in avoidance, it would practically defeat the intention of the section, and render it impossible for such admissions to be made when facts in avoidance are relied on. But the law expressly provides that the admission may be by the plaintiff as well as the defendant. When made by the plaintiff, it may be without the abandonment of his right to defeat the effect of the facts admitted, by evidence of other independent facts. How can this be done? The obvious solution of the difficulty is a statement or notice of intention to prove matter in avoidance. Such a statement or notice is not expressly provided for by the Revision, but, from the nature of the case, is necessary, and is in harmony with our system of pleading, and, therefore, proper. It matters not whether it be classed as a pleading or not, nor what name be given it, though it may be properly designated an admission and avoidance, in imitation of the name of pleas and replications of like character under the common law pleading. As no replication to the answer is necessary, the matter of avoidance relied upon need not be specifically set out |