In the case at bar the facts relating to waiver were not in dispute. They were established, principally, by the testimony of defendant's representative Larkin. We believe that only one inference can be drawn from the undisputed facts, and that is that defendant, with full knowledge of plaintiff's noncompliance with the iron-safe clause, determined to waive such noncompliance and pay the amount of indemnity which plaintiff was entitled to receive under the policy. The amount of plaintiff's loss has been determined by a jury whose verdict is amply sustained by the evidence.

The defense of forfeiture for failure to comply with the provisions of the iron-safe clause must be specially pleaded. Ennis v. Retail Merchants Asso. Mut. F. Ins. Co. 33 N. D. 20, 156 N. W. 234. This defense was not pleaded in the original answer herein. And although, under the views expressed above, it is unnecessary to determine whether the proposed amendment to the answer should have been allowed, it may properly be observed that under our system of procedure, trial courts are vested with a broad judicial discretion with respect to the allowance of amendments. And it is firmly established that an appellate court will not interfere with the trial court's action except in case of a clear abuse of such discretion. Webb v. Wegley, 19 N. D. 606, 610, 125 N. W. 562. The authority vested in courts under the law to allow amendments to pleadings is conferred to promote the ends of justice, and should be liberally exercised by the courts to that end. The controlling principle in determining an application to amend is, or should be, whether the proposed amendment, if allowed, would further the ends of justice. Martin v. Luger Furniture Co. 7 N. D. 220, 77 N. W. 1003. In the case at bar the affidavit submitted in support of the application to amend presented no excuse whatever for the failure to assert the defense in the original answer. As we have already stated, the defendant was informed of the plaintiff's noncompliance with the iron-safe clause immediately after its adjuster arrived in Olga. The action was not commenced until more than one year after the adjuster had obtained this information. Under these circumstances, we would by no means feel justified in saying that the trial court erred in holding that an allowance of the proposed amendment would not be in furtherance of justice. But if the amendment had been allowed, we are wholly satisfied that, under the undisputed facts in this case, it must be held

that defendant has waived the right to assert the defense sought to be interposed thereby.

The judgment must be affirmed. It is so ordered.

BRUCE, Ch. J. I dissent.

On Rehearing.

CHRISTIANSON, J. Defendant has filed a petition for rehearing wherein it asserts: (1) That the construction placed upon the ironsafe clause is too narrow; (2) that the acts of Larkin and the offer of payment made by him did not operate as a waiver; (3) that it was incumbent upon plaintiff to raise the question of waiver by way of reply; that the question was not so raised, or at all; (4) that we overlooked certain showing made by defendant's counsel in support of the motion to amend the answer; (5) that the evidence was insufficient to show that the plaintiff had sustained a loss, under the policies, for the amount of the verdict.

With respect to the first two propositions, it is sufficient to say that we have again considered the former opinion, and are wholly satisfied with what we there said with respect to the purpose of insurance contracts; the construction to be placed upon forfeiture provisions in such contracts, and waiver of such provisions.

Defendant is in error when it asserts that it was incumbent upon the plaintiff to raise the question of waiver by way of reply. In this state "a plaintiff is not required to reply to new matter in an answer not constituting a counterclaim, except by order of the court; but every allegation of new matter in the answer, not constituting a counterclaim, is deemed controverted by the plaintiff as upon a direct denial or avoidance by operation of law." Moores v. Tomlinson, 33 N. D. 638, 157 N. W. 685, Comp. Laws 1913, §§ 7467-7477 and 7452; Kingman v. Lancashire Ins. Co. 54 S. C. 599, 32 S. E. 762; Crittenden v. Springfield, F. & M. Ins. Co. 85 Iowa, 652, 39 Am. St. Rep. 321, 52 N. W. 548. See also Moody v. Amazon Ins. Co. 52 Ohio St. 12, 26 L.R.A. 313, 49 Am. St. Rep. 699, 38 N. E. 1011; 19 Cyc. 922, and authorities cited in notes 38, 39, 40, and 41.

As noncompliance with the iron-safe clause was not pleaded in the

38 N. D.-32.

answer, the question of waiver was not strictly an issue in this case. But, as stated in our former opinion, appellant anticipated this question, and devoted a considerable portion of its brief to argument and citation of authorities in support of the proposition that defendant had not waived the right to avail itself of the defense of noncompliance with the iron-safe clause. Appellant raised the question of waiver, and we are wholly satisfied with what we said with respect thereto in our former opinion.

It is asserted that in our former opinion we overlooked the oral statement made by defendant's counsel upon the hearing of the motion for leave to file an amended answer to the effect "that the answer in this case was prepared rather hurriedly, and that in preparing for trial, after talking to my client, I discovered that the answer as originally prepared did not set out all of the defenses to which the defendant was entitled and which was necessary to be pleaded as a defense so as to properly protect the rights of the defendant, and, accordingly, I prepared an amended answer." Whatever value was to be attributed to a statement of this kind was primarily for the trial court. A party who desires to apply to a trial court for leave to amend a pleading has the burden of sustaining his application, and should show some reason justifying or requiring the court to grant the amendment. The application is addressed to the court's discretion. The discretion should be exercised to promote the ends of justice. The presumption is that it was so exercised. On appeal it must be shown that the discretion has been abused. In this case we are agreed that an abuse of such discretion has not been shown.

It is true that appellant, in its specifications, assails the sufficiency of of the evidence as to the value of the stock of merchandise destroyed. But no further reference is made thereto, and no argument is presented in support thereof in the brief. Nor is it mentioned by appellant, as one of the issues presented for determination on this appeal. Hence under the well-settled rule that assignments not argued will be deemed abandoned, the specification of insufficiency of evidence as to the value of the stock of merchandise should be deemed abandoned. In this case, however, the point is without merit, as plaintiff's testimony is to the effect that the stock was worth to exceed $12,000 at the time of the fire.

A rehearing is denied.

J. B. BEAUCHAMP v. NORTHWESTERN MUTUAL FIRE INSURANCE COMPANY.

(165 N. W. 550.)

This case is governed by the decision rendered in Beauchamp v. Retail Merchants Asso. ante, 483.

Opinion filed October 20, 1917. Rehearing denied December 14, 1917.

From a judgment of the District Court of Cavalier County, Honorable W. J. Kneeshaw, Judge, defendant appeals.

Affirmed.

Pierce, Tenneson & Cupler, for appellant.

Grimson & Johnson, and Linde & Murphy, for respondent.

CHRISTIANSON, J. This case was consolidated with Beauchamp v. Retail Merchants Asso. ante, 483, 165 N. W. 545, and was tried in the court below, and argued in this court jointly with that case, and involves the other insurance policy referred to in the opinion in that case. The controlling facts and legal principles involved are identical with those involved in Beauchamp v. Retail Merchants Asso. and, on the authority of that case, the judgment of the District Court is affirmed.

BRUCE, Ch. J. I dissent.

MAGDALENA KRUMENACKER v. ANTON ANDIS, Executor of the Last Will of Decedent; Magdalena Krumenacker; Katie Stecher; her Children, Peter, Ludvig, Katie, and Thomas Krumenacker Stecher.

1. Under § 7428, Compiled Laws of 1913, relating to the service of the summons by publication, and stating what is required to be done in order to secure service of the summons by publication, requiring among other things that an affidavit stating the place of defendant's residence, if known to the affiant, and if not known, stating that fact. Held, that an affidavit which states that the "whereabouts" of the defendant are unknown is not a compliance with the requirements of such section in that the word "whereabouts" in its signification as used in such affidavit is not synonymous with the word "residence" in said section, and an affidavit for publication which contains the word "whereabouts," instead of the word “residence," is wholly defective; and the court acquires no jurisdiction by reason of such defective affidavit. Where such affidavit is in proper form, it must also be filed before the first publication of the summons. If otherwise, the court acquires no jurisdiction.

Exemptions - statutes - construction of -husband or wife- minor children persons entitled to claim - residence.

2. Section 8725, Compiled Laws of 1913, which relates to the setting aside for the surviving wife or husband, or minor children, all property of the testator or intestate which would be exempt from execution if he were living, including all property absolutely exempt, and other property selected by the person or persons entitled thereto to the value of $1,500. Held, that such statute is one of exemption, and not of inheritance; and that to entitle one to the benefits of such section such person must bring himself within the letter or spirit of the exemption laws of this state as to residence therein, or at least circumstances must show an intent and desire to establish and have such residence within the state.

Opinion filed October 9, 1917. Rehearing denied December 14, 1917.