Question for Court or Jury.

agreed, the agreement precludes all inquiry upon the subject. Gerhauser v. N. B. & Mercantile Ins. Co., 7 Nev. 174. 34. The question of materiality in case of misrepresentation as to title must be submitted to jury. Bellatty v. Thom

would have enhanced the premium. This question of materiality is one of fact for the jury; and there is no presumption of law that a misdescription of the premises, material to the risk, did reduce the premium; the inference in such case being one of fact to be left to the jury. Colum-aston Ins. Co., 61 Me. 414. bian Ins. Co. v. Lawrence, 10 Pet. 507 35. The materiality of a representa(U. S.) tion in regard to the existence of other insurance is proper to be submitted to the jury. Parsons v. Citizens' Ins. Co., 43 Up. Can. Q. B. 261.

27. Whether there has been such misrepresentation in the description of a building (described in application, which in this case was held to be representation 36. The question of materiality should merely) as will avoid the policy is a ques-not be submitted to a jury where there is tion to be determined by the jury. Far- an express stipulation as to the effect of mers' Ins. & Loan Co. v. Snyder, 16 misrepresentations and it is manifestly Wend. 481 (N. Y.) plain that it might have affected the company in taking the risk, had all the facts been disclosed. Graham v. Firemen's Ins. Co., 11 Ins. L. J. 65; 87 N. Y. 69.

28. The materiality of a fact concealed, is a question for the jury; and where it consisted of a previous fire in the same building, it is proper to instruct the jury, that they may consider the true cause of the fire, and not the suspicions or belief of the insured as to the cause. Protection Ins. Co. v. Harmer, 2 Ohio, St. 452.

29.- The materiality of the disclosure, or concealment, of the nature of the interest or title of the insured, is a question of fact which must be submitted to the jury; and a prayer, omitting to do so, is for this reason defective. Franklin Fire Ins. Co. v. Coates, 14 Md. 285.

30. When there is nothing in the policy requiring disclosure of encumbrances, their materiality may be properly left to the jury. Perkins v. Equitable Ins. Co., 4 Allen, 562 (N. B.)

31.—Where a misrepresentation by the assured of his title, if material to the risk, will avoid the policy, the question of materiality is for the jury. Mutual Ins. Co. v. Deale, 18 Md. 26.

32.- Whether a disclosure of the interest of an assured was material to the risk incurred, and would have enhanced the premium, is a question of fact for the jury. Insurance Co. v. Chase, 5 Wall. 509 (U. S.)

|

37. When the facts are indisputable, the question of materiality becomes one of law to be decided by the court. Ryan v. Springfield Fire Ins. Co., 46 Wis. 671.

38.— Making of inquiries by the company and answers thereto by the assured are tantamount to an agreement that matters inquired about are material, and under such circumstances materiality ceases to be a question for the jury. Mullin v. Vermont Mutual Ins. Co., 12 Ins. L. J. 147; 2 N. Eng. Rep. 483; 54 Vt. 223; 56 Vt. 39; 58 Vt. 113.

39.- Materiality of a defect in the title or interest of assured known to him but not communicated to the company, is proper to be determined by a jury; property may be properly described as "his,” even if title is imperfect or defective. Williams v. Buffalo German Ins. Co., 12 Ins. L. J. 374; 17 Fed. Rep. 63.

40.- Materiality of a misrepresentation as to encumbrance, is a proper question for the jury. Sweat v. Piscatiquis Mut. Ins. Co., 16 Ins. L. J. 608, 896; 79 Me. 109; 3 N. East. Rep. 837.

41. Whether a misrepresentation as to title is material is a question for the jury. Id.

33. The materiality of a representa42. Whether or not a statement in an tion is a question of fact for the jury, but application for $1,000 insurance upon a the policy may itself provide what facts building worth from $1,200 to $5,100 upon shall be deemed material by converting land worth from $6,500 to $10,000, that the representation into a warranty or by there was no encumbrance thereon, was mere stipulation as to its materiality. In material when there is $500 encumbrance such case where the parties have so thereon, is a question for the jury, under

IV. STATEMENT OF INTEREST. when such is the fact. South Australian

Ins. Co. v. Randell, L. R., 3 P. C. 101 (Eng.)

5.- Assured held land under a parol contract to have the title and was performing the consideration therefor. He

As affected by acts or knowledge of had erected the insured building thereon.

The policy described it as "owned and

Effect of making loss payable to occupied by assured as a store." Held,
that the Code, requiring the insured to
have "
some interest, . . . and such as he
represented himself to have. A slight or
contingent interest is sufficient whether
legal or equitable," is satisfied both as to
insurable interest and to representation.
Southern Ins. & Trust Co. v. Lewis &
Bros., 42 Ga. 587.

When Required or Sufficiently Stated.

assured is anything but the absolute ownership, etc., it must be so stated and indorsed without any representation as to title, or any statement of the specific interest of the assured, amounts to a declaration on part of the assured that his interest is an absolute one. If assured truly states his interest to company's agent the latter's failure to incorporate it in the policy will not avoid the insurance. Mers v. Franklin Ins. Co., 8 Ins. L. J. 505; 68 Mo. 127.

11.- Failure to comply with a condition requiring the true title to be set forth vitiates the policy; but in the absence of such a condition, a misrepresentation of interest is not fatal to the policy, if knowledge of the true ownership of the property would not have enhanced the premium or prevented the taking of the risk. Adema v. Lafayette F. Ins. Co., 36 La. Ann. 660.

12.- In the clause prohibiting sale or transfer and requiring interest to be truly stated, the word "property" applies to both real and personal. Girard Fire Ins. Co. v. Hebard, 95 Pa. 45.

13.- An insurance company which, with knowledge of the facts, adopts a policy made payable to the holder of the equitable instead of the legal title, and receives premiums thereon, cannot afterwards object that the wrong person was named as owner of the premises. *Burke v. Niagara F. Ins. Co., 58 Hun, 605, mem.; 34 N. Y. S. Rep. 701; 12 N. Y. Supp. 254.

15. When required or sufficiently stated. That A. permitted his son B. to use his name in buying and selling goods, and that the business was transacted in the name of A. & B., the goods being in fact wholly owned by B. does not so affect the legal rights of other parties as to render void a policy of insurance effected on the goods in the name of B. Gould v. York County Mut. Fire Ins. Co., 47 Me. 403.

16.- Policy provided that "any policy issued by this company shall be void unless the true title of the insured in the property be expressed in the application for insurance;" and in the application itself there was no direct question or statement as to title, but in reply to a question as to encumbrances the assured stated as follows: "First mortgage to M. W. (name of assured), entered October, 1855;" and in reply to a question whether the property was insured stated as follows: "Not on the first mortgagee's interest. Not known to be by any other concern." The assured was the mortgagee in possession, and the insurance was not on her dwelling house, but on "dwelling house." Held, that the answers taken in connection with the fact that there was no other statement of the interest of the applicant to control or modify it, or calculated to mislead, must be deemed to represent the interest of the applicant truly, and to apprise the company that she was not the absolute owner in fee simple; and, if not sufficiently full, 14. A policy of fire insurance insur- it was the duty of the company to require ing "estate of O. R." on "their gristmill" further and fuller statements. Wyman loss payable to a person named, "mort-v. People's Equity Ins. Co., 1 Allen, 301 gagee, as his interest may appear," and (Mass.) providing that it shall be void if the exact interest of the assured as owner mortgagee... or otherwise, be not truly stated, is operative as a valid insurance protecting the mortgagee's interest, though the title to the property is held by a trustee, with residuary rights in the heirs of R., and a judgment of foreclosure has been obtained on the mortgage. The policy was procured by the mortgagee acting alone for his own benefit. *Weed v. Hamburg-Bremen F. Ins. Co., 39 N. Y. S. Rep. 638; 15 N. Y. Supp. 429; 61 Hun, 110; aff'd 31 N. East. Rep.

...

231.

17. Assured had described himself as owner of the property, and that it was unencumbered except by the mortgage to the plaintiff, who became assignee of the policy afterwards, when, in fact, it had been conveyed on sale for delinquent taxes. Plaintiff had paid the taxes at assured's request, and had taken a deed to himself without informing assured, who had afterward repaid the taxes. alleged in reply to this defense that the tax deed was invalid for informality. Held, whether it were good or bad, plaintiff was assured's trustee, and the assured, whether ignorant or not of the

It was

When Required or Sufficiently Stated.

of interest should be truly stated in the policy; that the statement implied that whatever interest assured had, it was subject to terms of a lease, particulars of which were not called for by the policy or made the subject of specific inquiry.

deed, could describe himself as owner, nor is the tax deed an encumbrance. It is not error in the court to refuse to allow an amendment of the answer setting up judgment liens, because these being matters of record, were constructively known to defendant, unless an offer to show Fowle v. Springfield Fire Ins. Co., 122 actual ignorance of them is shown. New-Mass. 191. man v. Springfield Fire & Marine Ins. Co.,17 Minn. 123.

21.- Condition provided that "no insurance effected shall be good and valid 18.- On May 26, 1868, owner of prop- unless the assured has a good and perfect, erty gave a mortgage to Little and unencumbered title at the time of effectStanton to secure six notes. On Jan. 31, |ing any such insurance, or unless the true1870, Little and Stanton assigned the title of the assured and the encumbrances, mortgage and indorsed the notes to the if any, be fully disclosed in the proposals plaintiff. Policy was issued July 5, 1870, for insurance and be also specified in the by which defendants insured "Little and policy." Company claimed that true title Stanton, mortgagees," loss payable to was not stated as required by the condiplaintiff. Policy contained usual condi- tion by reason of the existence of a lease tion requiring interest to be stated in of the property for five years which was policy if not sole and absolute ownership, recorded. The policy contained a state&c. Held, that Little and Stanton re- ment to the effect that the premises were tained and had an insurable interest on occupied by a tenant. Held, that the account of their liability as indorsers of title referred to in the condition had no. the notes and right to have mortgage re-reference to possession by a tenant under assigned to them upon payment of the an ordinary lease; that the policy clearly same, and that their interest was sufficiently stated. Williams v. Roger Williams Ins. Co., 107 Mass. 377.

19.- Insured bought goods in an auction store, and left them there for sale, under his direction, with an agreement that from the first proceeds of the sale, the vendor should be paid $3,000; and if the auctioneers advanced money, they were to retain possession of goods as security. There was no evidence that such advance was made. Held, there was no such limitation of assured's title as owner, as required his interest to be expressed in the policy, and there was no encumbrance. Franklin Fire Ins. Co. v. Vaughan, 2 Otto, 516 (U. S.)

contemplated that the premises were then occupied by a tenant; that a tenancy implied a lease and that if company wished further particulars, they should have called for some specific information. Having issued the policy without making such inquiry, they could not after the loss complain. It seems, that a lease for life, or for ninety-nine years, might present a different question. Lockwood v. Middlesex Mut. Ins. Co., 47 Conn. 553.

Judge v. Connecticut Fire Ins. Co., 11 Ins. L. J. 843; 132 Mass. 521.

23. Policy correctly and sufficiently describes insured property as that of the plaintiff, notwithstanding an outstanding mortgage. The clause in the policy requiring interest to be truly stated, relates to the essential or substantial interest rather than to the strict legal or technical title. De Armand v. Home Ins. Co., 28 Fed. Rep. 603; 17 Ins. L. J. 634.

20.- Assured was a sub-lessee who had erected building insured, which it was conceded became part of the real estate, and, at the end of the lease, would pass to the owner of the soil. Policy was issued two years before expiration of the lease, and the loss occurred within the term. The policy read as follows: "On his two story, &c., situate on leased land.” 24. If true nature of title is set out in Held, assured had an insurable interest, the application, which is made part of the and that the clause "situate on leased policy, it is sufficient. Lamb v. Council land,” was a sufficient compliance with Bluffs Ins. Co., 16 Ins. L. J. 123; 70 Iowa, provision of policy requiring that notice | 238.

When Not Truly Stated-As Affected by Acts or Knowledge of Company's Agent.

25.— An insurance policy conditioned scription of the interest of the insured in to be void if the title of the assured is not the policy, it is imputable to the defendtruly stated is not avoided by the repre- ant's agent, and the policy is not void by sentation that he is the absolute owner of reason thereof; and, that if there had the house insured, when it is occupied by been a misrepresentation as to the interest him as a homestead and stands upon com- of the insured, it would not prevent a remunity property. *East Texas F. Ins. covery to the full amount of the interest Co. v. Crawford, 16 S. W. Rep. 1068; 21 insurable, unless such misrepresentation Ins. L. J. 39 (Tex.) was fraudulent. Emery v. Piscataqua Fire & Marine Ins. Co., 52 Me. 322.

30.- A. owned a tannery building and B. owned the stock therein. Agent of the insurance company knew the nature of the several interests, and, at his suggestion, they took out insurance in their joint names. One condition of the policy

26. When not truly stated. The property was described by insured as "their" stone mill. Proof was, that their title was in part good, in part derived from executory contract, and in part that of mortgagees. Held, a misrepresentation as to title, which, if material to the risk, avoided the policy. Columbian required a full disclosure as to title and Ins. Co. v. Lawrence, 2 Pet. 25 (U. S.) encumbrances, under penalty of forfeit

27. If the insured, at time of insur-ure. In an action thereon in the names of ance, represent, and insure, the whole property as his, when in fact he owns but one-half; the policy is void, whether the misrepresentation be through ignorance or design. Catron v. Tennessee Ins. Co., 6 Humphrey, 176 (Tenn.)

28.- Where it is stipulated "that policy shall be void, unless the true title of the insured be expressed in the application; " a failure to make known that another person owns part of the property, and having it described in the policy as "his" property will avoid the policy. Wilber v. Bowditch Mut. Ins. Co., 10 Cush. 446 (Mass.)

A. and B.; held, that the policy was good, and that the action might be maintained; and also that parol evidence was admissible to show that the parties agreed to treat such insured property as the joint property of the two owners. Peck v. New London Mut. Ins. Co., 22 Conn. 575.

31. The local agent of an insurance company, having power to pass upon applications for insurance, and issue policies without forwarding the application or submitting the matter to the company, upon receiving an application, was informed of the condition of the ownership of the property, but failed to take down correctly the facts stated, and the policy was thereupon issued by such agent and received by the assured in ignorance of any misstatement or omission; held, that the company was bound by the act of the agent, and could not defeat a recovery on the ground that the agent did not correctly state in the policy the facts concerning the interest or title of the assured. Ayres v. Home Ins. Co., 21 Iowa, 185; and see German Ins. Co. v. Miller, 39 Ill. App. 633.

29. As affected by acts or knowledge of company's agent. Where a policy of insurance, issued to the plaintiff by an agent since May 1, 1861, bore upon its face the name of such agent, and no written application was made; but the agent examined the premises and was fully informed of the state of the title of the insured; and one of the conditions of the policy, which, by its terms, was made a part thereof, was that "if the property to be insured be held in trust or on commission, or be a leasehold, or other 32.- A soliciting agent's authority to interest not absolute, it must be so repre- take applications carries with it the legal sented to the company, and expressed in implication of authority to fill up the apthe policy, in writing, otherwise the in-plication and do all things needful to persurance, as to such property, shall be fect it-such as determining what words void;" and the interest of the insured will describe the title. Combs v. Hannibal was in fact that of mortgagee, but that Savings & Ins. Co., 43 Mo. 148. fact, or that his interest as such, was to be insured, did not appear in the policy; held, that, if there be an error in the de

33.— If agent's duty to insert in policy nature of assured's interest as disclosed to him, his failure to do it estops the com