General Rules.

dition is qualified by a limitation as to its property, but without authority to bind materiality to the risk, it opens that him by representations in the application. question in each particular case. Parker Draper v. Charter Oak Fire Ins. Co., 2 v. Bridgeport Ins. Co., 10 Gray, 302 (Mass.) Allen, 569 (Mass.) 14. The condition in policy, that "it shall be void if the party insuring his goods or buildings shall cause the same to be described in the policy otherwise than as they really are, so as the same be charged at a lower premium than is herein proposed," relates to a misdescription of the property, and not to the character of title or interest in it. Franklin Fire Ins. Co. v. Coates, 14 Md. 285.

20.- A warranty is a written stipulation in the policy, or made part of it, on the literal truth or fulfilment of which, the entire contract depends. A representation is a verbal or written statement before the subscription of the policy, as to the existence of some fact tending to induce a more ready assumption of the risk. Pierce v. Empire Ins. Co., 62 Barb. 636(N. Y.)

21.- Where an applicant for an insurance covenants in his application that it contains "a just, full and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property to be insured, so far as the same are known to the appli

15.- Where verbal statements had been made to the insurer in respect to the subject of insurance, and a written application was subsequently drawn up and signed by the assured; held, that the company was not bound by any communication made before the insurance was effected, and not connected with the ap-cant, and are material to the risk;" and plication therefor. Boggs v. America | the policy declares that the application is made a part of the policy, and that the policy "is made and accepted upon the representation of the assured in his appli

Ins. Co., 30 Mo. 63.

16. Where statements are made with the qualification that they "are true so far as known to the applicant and ma-cation;" the statements made in the apterial to the risk," to avoid a policy founded thereon on account of a variance of such statement from the facts, their materiality to the risk must appear; although in terms such statements amount to a warranty. Etna Ins. Co. v. Grube, 6 Minn. 82.

17.- Warranties in a policy of insurance, or in the application when made a part of the policy, must be fully kept and performed, without reference to the question whether they are material to the risk or not. Witherell v. Maine Ins. Co., 49 Me. 200.

18.- Where a policy refers to the application for a description of the property insured, the application must be regarded the same as if incorporated into the policy itself. Gahagan v. Union Mut. Ins. Co., 43 N. H. 176.

19.- One who accepts a policy of insurance in which it is expressly provided that it is agreed and declared that the policy is made and accepted upon and in reference to the application filed in the office, is thereby concluded from denying that the application is his, and cannot set up that it was made by an agent employed by him to procure insurance upon his

plication, if warranties, are such only as far as the facts stated "are known to the applicant, and are material to the risk.” Garcelon v. Hampden Fire Ins. Co., 50 Me. 580.

22.-- To make a stipulation an express warranty, so that on the literal fulfilment thereof the entire contract shall depend, it should be inserted in writing on the face of the policy, or in a detached paper expressly stipulated to be a part of the policy. Commonwealth Ins. Co. v. Monninger, 18 Ind. 352.

23. When at the time of applying for insurance, a paper, called in the policy a survey, is filled out by the applicant and delivered to the agent of the insurer, and the policy expressly refers to such survey, and makes it a part of the policy, any representation contained therein is to be deemed a warranty. Ripley v. Ætna Ins. Co., 30 N. Y. 136.

24. A warranty in a policy is a contract as to an existing fact, and not a covenant for future acts, and differs from a representation in that it is a binding agreement that the fact is as warranted ; while a representation is not an agreement that the fact stated is so, but only such a

General Rules.

statement of it as will constitute a misrep-Baker v. Home Ins. Co., 64 N. Y. 648. resentation if it be untrue. Lycoming Ins. Co. v. Mitchell, 48 Pa. 367.

25.- When an executed policy is delivered, and with it a survey to be filled out -the policy not being made conditional | upon the procuring of the survey, and its delivery being unqualified-such subsequent survey, conditions or warranty, is wholly inoperative; the contract was complete on delivery of the policy. LeRoy v. Park Fire Ins. Co., 39 N. Y. 56.

26. To instruct a jury, that the as-312 (Ky.) sured, to recover, must prove that he did 35.-A statute which provides that all "substantially" keep a condition is in-statements or descriptions in an applicadefinite and misleading. Aurora Fire Ins. Co. v. Eddy, 55 Ill. 213.

28.- Courts do not favor warranties by interpreted by the courts as they have construction, and terms that are satisfied | contracted it shall be interpreted. Id. as a description will not be extended to 36. A warranty is as much coninclude a warranty, unless clearly designed. U. S. Fire & Marine Ins. Co. v. Kimberly, 34 Md. 224.

General Rules.

ulars of other existing insurance, must be 47. A stipulation in an insurance considered and taken as a part of it. Par- policy should be held to be a representasons v. Queen Ins. Co., 43 Up. Can. Q. B. | tion rather than a warranty, when from

271.

ambiguity or other reason there is room
for doubt. Estimates as to the value of
property in applications for insurance are
ordinarily not statements of fact but mere
matters of opinion. Merchants', etc., Ins.
Co. v. Schroeder, 18 Ill. App. 216.
48.- When defense is breach of war-

40. The fact that an application is written in pencil upon the blank of another company does not prevent its effect as a warranty when its identification is established by the number indorsed upon | it and by the property proposed to be insured. City Ins. Co. v. Bricker, 91 Pa. | ranty, good or bad faith, or belief of insured are immaterial. If facts warranted

488.

41.- Creation of a warranty does not are false, insured can not recover. Knowldepend upon the use of that word. Red-edge by company of a breach at time, man v. Hartford Fire Ins. Co., 47 Wis. 89. does not relieve the insured. Common42.- No part of an application can be wealth Mut. Ins. Co. v. Huntzinger, 98 regarded as a warranty unless made so by Pa. 41. the contract of insurance. To do this the 49. Effect of warranty is to require same stipulations must be inserted in the literal compliance. Sayles v. Northwestcontract, or, if not so, the paper contain-ern Ins. Co., 2 Curtis, 612 (U. S. Cir.) ing them must be referred to and adopted, 50.- A concealment in an application so as to become part of the contract. made a warranty, voids the insurance; Owens v. Holland Purchase Ins. Co., 56 the burden does not rest upon the inN. Y. 565; s. P. Co-operative Assoc. v. surance company to prove materiality or Leflore, 53 Miss. 1; Byers v. Farmers' Ins. fraud. Fame Ins. Co. v. Thomas, 10 Co., 9 Ins. L. J. 743; 35 Ohio St. 606. Bradwell, 545 (Ill.)

51.- Where questions to an applicant are ambiguous, they will be construed most strongly against the company. Mutual Mill Ins. Co. v. Gordon, 10 West. Rep. 613; 121 Ill. 366; 12 N. East. Rep. 747. 52.- Where an application for insur

43.- Company cannot avail itself of any breach of warranty to defeat an action brought upon an agreement to pay the loss made after the loss has occurred, and after the company has had opportunity to investigate the facts and circumstances without any interference, decep-ance is referred to in the policy as the tion or fraud practiced by the insured at the time of the investigation. Stache v. St. Paul Fire Ins. Co., 49 Wis. 89; s. P. Smith v. Glens Falls Ins. Co., 62 N. Y. 85. 44. If by terms of policy misrepresentations are converted into warranties by stipulation, an untrue answer will avoid the policy, without reference to materiality. Graham v. Firemen's Ins. Co., 87 N. Y. 69.

basis of the contract, and it is agreed that it shall be deemed and taken as a part of the policy and as a warranty on the part of the assured, both the application and the policy are to be construed together as one entire contract. Chrisman v. State Ins. Co., 16 Or. 283; 18 Pac. Rep. 466; Byers v. Ins. Co., 35 Ohio St. 606; Edwards v. Farmers' Ins. Co., 74 Ill. 84. 53. Since an application for insur

45.— Where a policy refers to the ap-ance, a copy of which is indorsed on the plication and makes it a part of the policy, any breach in the conditions or representations which are warranted avoids it. Roberts v. Ætna Ins. Co., 58 Cal. 83.

policy which the insured has in his possession, is his own contract, the insured will be presumed to know all of its contents, although the copy of the application is not referred to in the body as being indorsed on the policy. *Johnson v. Dakota F. & M. Ins. Co., 45 N. W. Rep. 799; 1 N. D. 167.

46. Statements in application made part of policy and warranties must be regarded as material whether they relate to the risk or not. The only proper ques- 54. Where it is expressly stated in a tion is whether they be true or not. Ben-policy that the insurance is based upon net v. Agricultural Ins. Co., 12 Ins. L. J. the representations contained in the ap569: 50 Conn. 420. plication, and such representations are

When a Warranty.

made warranties, a statement as to the age of the building will be construed to be a representation, and not a warranty, under the rule that ambiguous language is not to be construed so as to impose a warranty on the insured. *Rogers v. Phoenix Ins. Co., 121 Ind. 570; 19 Ins. L. J. 492; 23 N. East. Rep. 498.

where the latter provides that any application therein referred to is made a part of the policy and a warranty by the assured, and its terms are different from those of the letter. Id.

61.- Representations as to the age and value of buildings, in an application for insurance, are mere expressions of opinion, although by the terms of the policy all answers are declared to be warranties. *Phonix Ins. Co. v. Wilson, 20 Ins. L. J. 73; 25 N. East. Rep. 592 (Ind.)

62. When a warranty. Where ap

55.- The intention of the parties must control in the construction of the warranties contained in a policy of insurance, as the same is shown by the situation of the parties, the condition of the thing insured, and what was said or done at the plication, which was made part of the time the insurance was effected. *Hoose v. policy, described the premises insured as Prescott Ins. Co., 11 L. R. A. 340; 84 Mich. occupied for a "grist mill," and it was 309; 47 N. W. Rep. 587; 20 Ins. L. J. 506. proved to have been also occupied for "carpenter's work;" held, to be a warranty as to occupation, breach of which avoided the policy. Jennings v. Chenango County Mut. Ins. Co., 2 Denio, 75

56.- Recovery may be had upon a policy of fire insurance, notwithstanding the building is detached less than the distance warranted in the policy, when the risk is not thereby increased. *Baldwin | (N. Y.) v. Citizens' Ins. Co., 39 N. Y. S. Rep. 752; 15 N. Y. Supp. 587; 60 Hun, 389; and see Burleigh v. Adriatic Ins. Co., 12 Ins. L. J. 141; 90 N. Y. 220.

66

63.- A policy of insurance contained the following clause, immediately after a brief description of the property insured: "Reference being had to the application 57.- A survey agreed to be furnished of the said K. for a more particular deby an applicant for insurance, and by the scription and forming a part of this polterms of the policy made a part thereof icy." Defense was, that because the and a warranty on the part of the assured, word and " was used instead of the but which he fails to furnish until after word "as," the application was not part delivery of the policy, is a representation of the contract. Held, that the applicaon his part, though it may be deprived of tion was part of the contract, and the effect as a warranty. *Rankin v. Ama-reference sufficient to make it such. zon Ins. Co., 20 Ins. L. J. 844; 26 Pac. Egan v. Mutual Ins. Co., 5 Denio, 326 Rep. 872; 89 Cal. 203; aff'g on rehearing, (N. Y.) 20 Ins. L. J. 278; 25 Pac. Rep. 260. 58.- Where by the terms of an insur-plication, as forming part of the contract, ance policy and the application itself, the and application declared that, if assured application is made a part of the policy, "shall suffer a judgment or decree, operit requires clear proof of fraud, accident, ating as a lien on said property, or any or mistake, to take it out of the contract. part thereof, to pass against him, the *Parrish v. Virginia F. & M. Ins. Co., 20 policy shall be void, unless he shall make Ins. L. J. 95 (N. C.) a representation thereof in writing to the directors." Held, that this clause constituted an express warranty, and, if a breach should be shown, the policy was void. Id.

59. Statements made by the insured on his application for insurance are not deemed warranties unless they are incorporated in the policy, or in some appropriate method referred to in that instrument. *Citizens' Ins. Co. v. Hoffman, 128 Ind. 370; 27 N. East. Rep. 745.

64.- Where reference was had to ap

65. A paper annexed to a policy and delivered with it, purporting to be “ conditions of insurance," is prima facie a 60. No inference arises that a policy part of the policy, whether referred to in of insurance was issued upon the terms the body of the policy, by express words and conditions mentioned in a letter ap- or not. Roberts v. Chenango County plying for the insurance, unless the letter Mut. Ins. Co., 3 Hill, 501 (N. Y.); Muris referred to in the policy,-especially dock v. Chenango County Mut. Ins. Co.,

When a Warranty.

2 N. Y. 210: Sexton v. Montgomery Co. have been impossible, and could not Mut. Ins. Co., 9 Barb. 191 (N. Y.)

have been contemplated, still the assured must show that the required number of buckets, in serviceable condition, were at the designated place ready for instant use. Aurora Fire Ins. Co. v. Eddy, 49 Ill. 106; and see 55 Ill. 213.

66.- Where to an application was appended the clause, “the applicant covenants and agrees that the foregoing is a correct description of the property so far as regards the value and risk of the same. held, that the answers to the interrogato- 70.- The application and policy deries were warranties that the description scribed the building as a "dwelling was correct, so far as regarded the “value | house." Held, a warranty that it was and risk" only. Lindsay v. Union Mut. Ins. Co., 3 R. I. 157.

such, and used as such exclusively, and the occupation of part of it as a billiard room and part as a restaurant, which occupations are among the classes of hazards made part of the policy, avoids the insurance. Sarsfield v. Metropolitan Ins. Co., 61 Barb. 479 (N. Y.)

war

67.- Where it was stipulated in a policy against fire that the same was made and accepted in reference to conditions annexed, which were to be used and resorted to in order to explain the rights and obligations of the parties, and one 71. Application was made a of the conditions was that, if the policy ranty. In it assured stated that he had should be made and issued upon a sur-disclosed all the facts in relation to the vey and description of the property in- property so far as the same were known sured, such survey and description should to him. But in answer to the question, be taken and deemed to be a part and por-"Is your title to the property absolute? tion of such policy, and a warranty on the If not, state its nature and amount;" the part of the assured; held, that a written only answer given was, "His deceased application signed by the assured, con- wife held the deed." Assured, in fact, taining a survey and description, was a had only a written certificate signed by warranty, and not a mere representation, his wife, declaring she owed him so much and that if the survey and description | money, and that the amount was a lien was false, no recovery could be had upon upon her property. Held, the applicathe policy. Etna Ins. Co. v. Grube, 6 tion did not by its representations put Minn. 82. defendant in possession of the exact facts 68. Where an insurance was made of the case, and tended to mislead as to upon the liquors and furniture of a pub-real situation of the property and the lic house, and in answer to an interrog- real interest of the plaintiff in it, and that atory, the person whose property was it was, therefore, in this respect a warinsured stated that the liens upon her ranty, and that there was a breach. real estate amounted to a certain sum, Rohrbach v. Germania Fire Ins. Co., 62 when they really amounted to a much N. Y. 47. larger sum; and the conditions of the policy stated that it should be void, if the answers thus made were not true; held, that such answer was a warranty, and not merely a representation. Pennsylvania Ins. Co. v. Gottsman, 48 Pa. 151. 69.- A clause that "it is expressly agreed that the assured is to keep eight buckets filled with water on the first floor and four in the basement ready for use at all times in case of fire," is not a proviso or condition, but an express agreement to be construed by the same rules as other agreements, in which intent is an important element, which is that, if from freezing or other unavoidable cause, a 74.- Application made a warranty literal compliance with a warranty might | contained the following: Q. "Is there

72.- Policy read after describing the property and its situation "per survey No. 18,611, filed in the office of the People's Insurance Company, New York." Such survey was actually filed as stated, and policy was issued upon faith of its statements. Held, that the survey was made part of the policy and a warranty. Steward v. Phoenix Fire Ins Co., 5 Hun, 261 (N. Y.)

73.- A warranty may be created by reference to an application made to another company, if such be the intention of the parties. Whitlaw v. Phanix Ins. Co., 28 Up. Can. C. P. 53.