of marine insurance, that the insured shall make a full disclosure of all facts materially affecting the risk which are within his personal knowledge at the time when the contract is made. Where an insurance is effected through the medium of an agent, the ordinary rule of law applies; and non-disclosure of material facts, known to the agent only, will affect his principal, and give the insurer good ground for avoiding a con

tract.

In the case of insurance by a ship-owner, it has been decided that he is affected by the knowledge of a class of agents other than those whom he employs to insure. In the ordinary course of business, the owner of a trading vessel employs a master and ship-agents, whose special function is to keep their employer duly informed of all casualties encountered by his ship, which would materially influence the judgment of an insurer.

On that ground it has been ruled that the insurer must be held to have transacted, in reliance upon the well-known usage of the shipping trade, and that he is consequently entitled to assume that every circumstance material to the risk insured has been communicated to him, which ought in due course to have been made known to the ship-owner before the insurance was affected. Accordingly, if a master or ship-agent, whether willfully or unintentionally, fail in their duty to their employer, their suppression of a material fact will, notwithstanding his ignorance of the fact, vitiate his contract.

I do not think it necessary to notice in detail the authorities which bear on this point. I desire to say, however, that I have difficulty in comprehending the principle upon which the court in Gladstone v. King, supra, and Stribley v. Imperial Marine Insurance Company, 1 Q. B. D. 507, held that the innocent non-communication of a material fact by an agent who was the alter ego of the ship-owner merely created an exception from the policy. In both these cases the court appears to me to have undertaken the somewhat perilous task of settling the terms of the contract, which the insurer would have made for himself if the fact had been communicated to him.

In the present case it is sought to extend the imputed knowledge of the insured to all facts which, during the period of his employment, became known to any agent other than the

agent effecting the policy in question, who was employed at any time, successfully or unsuccessfully, to insure the whole or part of the same risk with that covered by the policy. This is a case of reinsurance; but it is obvious that the principle, if admitted, would be equally applicable to the original contract.

I am of opinion, with your Lordships, that the responsibility of an innocent insured for the non-communication of facts which happen to be within the private knowledge of persons whom he merely employs to obtain an insurance upon a particular risk ought not to be carried beyond the person who actually makes the contract on his behalf. There is no authority whatever for enlarging his responsibility beyond that limit, unless it is to be found in the decisions which relate to captains and ship-agents; and these do not appear to me to have any analogy to the case of agents employed to effect a policy. There is a material difference in the relations of these two classes of agents to their employer. The one class is specially employed for the purpose of communicating to him the very facts which the law requires him to divulge to his insurer; the other is employed, not to procure or furnish information concerning the ship, but to effect an insurance. There is also, as the Master of the Rolls pointed out, an important difference in the positions of those two classes with respect to the insurer. He is entitled to contract, and does contract, on the basis that all material facts connected with the vessel insured, known to the agent employed for that purpose, have been by him communicated, in due course, to his principal. So, also, when an agent to insure is brought into contact with an insurer, the latter transacts on the footing that the agent has disclosed every material circumstance within his personal knowledge, whether it be known to his principal or not; but it cannot be reasonably suggested that the insurer relies, to any extent, upon the private information possessed by persons of whose existence he presumably knows nothing.

In the circumstances of this case I have come to the conclusion, that, whilst it might be the moral duty of Mr. Murison to communicate to the appellants the information which he received on the forenoon of the 1st of May, 1884, he was under no legal obligation to do so. There may be circumstances which impose upon agents in the position of Mr. Murison an

express or implied duty to communicate their own information to their principal, but nothing of that sort occurs here. I must, in fairness to Mr. Murison, say that I can find no warrant for the inference of fact drawn by Lindley, L. J., that he purposely omitted to impart his knowledge to the appellants, in order that they might reinsure on more favorable terms. No such imputation was made at the trial; and, if it had been made, it ought to have been submitted to the jury, and their verdict taken upon it.

I concur therefore in the judgment which has been moved. Order appealed from reversed.

CHAPTER V.

GENERAL PRINCIPLES.

Warranties.

HOUSE OF LORDS, 1884.

THOMSON v. WEEMS.

(L. R., 9 App. Cas. 671.)

Warranty of temperate habits.

LORD WATSON.-This appeal raises two questions of some importance: the one of law, the other of fact. The first of these involves the construction of a policy of assurance, bearing date the 25th of November, 1881, effected by the deceased, William Weems, upon his own life, with the Standard Company, which is represented in this action by the appellant.

On the 9th of November, 1881, the deceased submitted a proposal to the company, which was made the basis of the contract of assurance. The seventh question in the proposal was in these terms: "(1) Are you temperate in your habits? (2) And have you always been strictly so?" And the reply made to it by the deceased was: "(1) Temperate; (2) Yes," It was set forth in the proposal, and it was also made a condition of the policy, that in the event of the foregoing or any other averments made by the assured in his proposal concerning his age, health, and other particulars proving to be untrue, the policy was to become null and void, and all sums paid by the assured were to be forfeited.

Mr. Weems died on the 29th of July, 1882, and the Standard Company declined to pay the sum assured, on the ground that various statements made by the deceased in his proposal, including his answer to the seventh question, were, in point of fact, untrue. The respondents, who had acquired right to the

policy, thereupon brought an action for recovery of its amount, which was resisted by the appellant upon the same grounds which had previously been assigned by the company for their refusal to pay. The Lord Ordinary (Fraser), after a proof had been given, gave decree for the respondents; and his judgment was, on a reclaiming note, affirmed by three of the learned judges of the second division, Lord Rutherfurd Clark dissenting.

I entertain no doubt that, according to the law of Scotland, the declaration of the assured taken in connection with the policy itself, in his proposal to the company, constitutes an express warranty that the answer made by him to the seventh question was true. In other words, it is an express and essential condition of the contract, that the policy shall be null and void in the event of the averment by the assured as to his habits, implied in his answer to that question, proving to be false. The doctrine of warranty, as applied to such stipulations in a contract of assurance, is the same in the law of Scotland as in that of England.

Notwithstanding that the warranty is express, there still remains for consideration what must be held to be the subjectmatter of the warranty. That is a point to be determined in each case, according to the just construction of the question and answer taken per se, and without reference to the warranty given. In the present case, the seventh question proceeds from the company, being printed on a form of proposal issued by them for the use of persons who may be desirous of effecting an assurance. The question must, in my opinion, be interpreted according to the ordinary and natural meaning of the words used, if that meaning be plain and unequivocal, and there be nothing in the context to qualify it. On the other hand, if the words used are ambiguous, they must be construed contra proferentes, and in favor of the assured. For my own part, I can discern no ambiguity in the language of question seven. I agree with Lord Rutherfurd Clark, that "the import of the answer is precisely the same as if the deceased had affirmed: first, that he was temperate in his habits; and, secondly, that he had always been strictly so." In its plain and ordinary sense, that statement is an averment of fact, and not a mere assertion of the opinion or belief entertained by the assured