Co., 35 Mo. 148, contained the provision as to fraud or false swearing in its disjunctive form, so as to preclude the basing of the decision on any distinction between the two terms. And in the Marion Case it was distinctly stated that a statement would not necessarily forfeit the policy because it would support an indictment for perjury. In Knop v. National Fire Ins. Co., 101 Mich. 359, 59 N. W. 653, and Huston v. State Ins. Co., 100 Iowa, 402, 69 N. W. 674, belonging to the same class of cases, the condition of the policy in relation to fraud did not even appear. And in Springfield Fire & Marine Ins. Co. v. Winn, 27 Neb. 649, 43 N. W. 401, 5 L. R. A. 481, approved in Home Ins. Co. v. Winn, 42 Neb. 331, 60 N. W. 575, though the provision was that the policy should be forfeited by "fraud by false swearing," no suggestion was made that the policy would have been declared forfeited for the willful exaggeration of the loss, had the policy decreed a forfeiture in case of "fraud or false swearing."

The case of Shaw v. Scottish Commercial Ins. Co. (C. C.) 1 Fed. 761, does, however, make such suggestion, and seems to recognize a distinction between the two terms as used in the clause under consideration. And in Tiefenthal v. Citizens' Mut. Fire Ins. Co., 53 Mich. 306, 19 N. W. 9, where, also, emphasis was placed on the absence of a specific intent to defraud, the court, in quoting the phrase contained in the policy, italicized the words "false swearing with fraudulent intent."

(g) Statements as to cause and circumstances of loss.

The rule that an innocent mistake will not forfeit the policy. applies to mistakes in stating the cause of the loss or the situation of the property. Thus, in White v. Merchants' Ins. Co., 93 Mo. App. 282, where it appeared that a false statement by an assignee as to the origin of the fire was occasioned by his misunderstanding, the insured was held not to have forfeited the claim. Conversely, the insured need not state information as to the condition of the property, communicated by another, but as to the truth of which he has no personal knowledge (Merrill v. Insurance Co. of North America [C. C.] 23 Fed. 245). In Pencil v. Home Ins. Co., 3 Wash. St. 485, 28 Pac. 1031, where the insured was a feeble-minded old man, an attempt by him, acting under threats by others, to suppress alleged evidence that he set the fire, was held not to have constituted fraud or false swearing.

(h) Statements regarding property not covered by policy or not destroyed.

An attempt to collect from the company for property believed in good faith to be covered by the policy will not forfeit such policy, though in fact the company is not liable therefor.

Rafel v. Nashville Co., 7 La. Ann. 244; Farmers' Mut. Fire Ins. Co. v.
Gargett, 42 Mich. 289, 3 N. W. 954; Tubbs v. Dwelling House Ins.
Co., 84 Mich. 646, 48 N. W. 296; Dolan v. Ætna Ins. Co., 22 Hun (N.
Y.) 396; Boyd v. Royal Ins. Co., 111 N. C. 372, 16 S. E. 389.

Under the same principle, an inclusion of articles as destroyed by the fire, under a mistaken belief that they were so destroyed, will not amount to fraud or false swearing in the proofs of loss.

Reference may be made to Runkle v. Hartford Ins. Co., 68 N. W. 712,
99 Iowa, 414; Garner v. Mutual Fire Ins. Co. (Iowa) 86 N. W. 289;
German Ins. Co. v. Reed, 13 Ky. Law Rep. 207; Baillie & Co. v.
Western Assur. Co., 49 La. Ann. 658, 21 South. 736; Planters'
Mut. Ins. Co. v. Deford, 38 Md. 382.

But an attempt to collect for property known not to have been destroyed will, of course, amount to fraud and forfeit the policy.

The following cases illustrate this rule: Regnier v. Louisiana State Marine & Fire Ins. Co., 12 La. 336; Wunderlich v. Palatine Ins. Co., 80 N. W. 467, 104 Wis. 382; Huchberger v. Home Fire Ins. Co., 12 Fed. Cas. 793; Weide v. Germania Ins. Co., 29 Fed. Cas. 594; German Ins. Co. v. Reed, 9 Ky. Law Rep. 929; Virginia Fire & Marine Ins. Co. v. Vaughan, 88 Va. 832, 14 S. E. 754; Vaughan & Co. v. Virginia Fire & Marine Ins. Co., 102 Va. 541, 46 S. E. 692.

And such fraud may take the form of a removal of the property after the fire.

Schmidt v. Philadelphia Underwriters, 109 La. 884, 33 South. 907 And see, also, Cheever v. British-American Ins. Co., 83 N. Y. Supp. 728, 86 App. Div. 333.

In an action on a policy covering merchandise stock, where the insurer alleged that the proofs of loss overstated the quantity of a particular article on hand, evidence of the amount of it usually kept in stock by several other merchants in the same line of trade, and that the insured made purchases of the same kind of goods at the time when he claimed to have such goods on hand, is inadmissible to discredit his testimony (Townsend v. Merchants' Ins. Co.,

36 N. Y. Super. Ct. 172). Nor is it competent for the insurers to prove the amount of stock of the largest dealer in the trade to which the assured belonged, for the purpose of raising the presumption of fraud in the account of loss furnished by the assured (Phoenix Fire Ins. Co. v. Philip, 13 Wend. [N. Y.] 81). Likewise, in Morley v. Liverpool, L. & G. Ins. Co., 92 Mich. 590, 52 N. W. 939, evidence that the insured was doing a losing business was held too remote to be used to establish fraud on his part in making false statements as to the amount of goods on hand. On the other hand, the Wisconsin court, in Rickeman v. Williamsburg City Fire Ins. Co., 120 Wis. 655, 98 N. W. 960, decided that, where the insured claimed that a large amount of goods readily convertible into money had been destroyed, it was competent to show that she was at the time in pressing need of money, and compelled to overdraw her bank account. While an affidavit made by the plaintiff at the time of his application for a trader's license is admissible to show that he has exaggerated his loss (Mispelhorn v. Farmers' Fire Ins. Co., 53 Md. 473), yet a discrepancy between the amount of loss claimed and the amount of stock covered by a license tax has been held not fatal where the business had not commenced at the time of the fire, and where, therefore, no license was required (Home Ins. Co. v. Lowenthal [Miss. 1904] 36 South. 1042).

(i) Statements as to value of property destroyed.

The question as to fraud and false swearing in the proofs has arisen most frequently where the value of the property destroyed, as estimated by the insured in the proofs, was greater than the actual value. The rule as to innocent mistake has been held particularly applicable to this class of cases. Value is necessarily a matter of judgment, and, furthermore, a matter of judgment in which each person is prone to err by overestimating his own. Of course, an overvaluation is an evidence of fraud, but it does not amount to fraud where it expresses the bona fide opinion of the insured.

The following cases are illustrative of such principles: Mack v. Lancashire Ins. Co. (C. C.) 4 Fed. 59; Putnam v. Commonwealth Ins. Co. (C. C.) 4 Fed. 753; Oshkosh Packing & Provision Co. v. Mercantile Ins. Co. (C. C.) 31 Fed. 200; Huchberger v. Providence Washington Ins. Co., 12 Fed. Cas. 795, affirmed 79 U. S. 164, 20 L. Ed. 364; Huchberger v. Merchants' Fire Ins. Co., 12 Fed. Cas. 794, affirmed 79 U. S. 164, 20 L. Ed. 364; Howell v. Hartford Fire Ins.

Co., 12 Fed. Cas. 700; American Cent. Ins. Co. v. Ware, 65 Ark. 336, 46 S. W. 129; Clark v. Phoenix Ins. Co., 36 Cal. 168; Franklin Ins. Co. v. Culver, 6 Ind. 137; Stone v. Hawkeye Ins. Co., 68 Iowa, 737, 28 N. W. 47, 56 Am. Rep. 870; Erb v. German-American Ins. Co., 98 Iowa, 606, 67 N. W. 583, 40 L. R. A. 845; Petty v. Mutual Fire Ins. Co., 111 Iowa, 358. 82 N. W. 767; Goldstein v. St. Paul Fire & Marine Ins. Co., 124 Iowa, 143, 99 N. W. 696; Marchesseau v. Merchants' Ins. Co., 1 Rob. (La.) 438; Hoffman v. Western Marine & Fire Ins. Co., 1 La. Ann. 216; Guma v. Hope Ins. Co., 16 La. Ann. 415; Beck v. Germania Ins. Co.. 23 La. Ann. 510; Erman v. Sun Mut. Ins. Co., 35 La. Ann. 1095; Hanscom v. Home Ins. Co., 90 Me. 333. 38 Atl. 324; Hilton v. Phoenix Assur. Co., 92 Me. 272. 42 Atl. 412; Goldstein v. Franklin Mut. Fire Ins. Co., 170 Mass. 243, 49 N. E. 115; Johnston v. Farmers' Fire Ins. Co., 106 Mich. 96, 64 N. W. 5; Walker v. Phoenix Ins. Co., 62 Mo. App. 209; Gerhauser v. North British Mercantile Ins. Co., 7 Nev. 174; Jersey City Ins. Co. v. Nichol, 35 N. J. Eq. 291, 40 Am. St. Rep. 625; Carson v. Jersey City Ins. Co., 43 N. J. Law, 300, 39 Am. Rep. 584; Owens v. Holland Purchase Ins. Co., 1 Thomp. & C. (N. Y.) 285, affirmed (1874) 56 N. Y. 565; Hickman v. Long Island Ins. Co., 1 Edm. Sel. Cas. (N. Y.) 374; Dolan v. Etna Ins. Co., 22 Hun (N. Y.) 396; Storm v. Phenix Ins. Co., 61 Hun, 618, 15 N. Y. Supp. 281, judgment affirmed in memorandum opinion (1892) 133 N. Y. 656, 31 N. E. 625; Cheever v. Scottish Union & National Ins. Co., 86 App. Div. 328, 83 N. Y. Supp. 730; Insurance Co. of North America v. Melvin, 1 Walk. (Pa.) 362; Phoenix Ins. Co. v. Munday, 5 Cold. (Tenn.) 547; Pelican Ins. Co. v. Schwartz (Tex. Sup.) 19 S. W. 374; Phoenix Ins. Co. v. Shearman, 17 Tex. Civ. App. 456, 43 S. W. 930; Dogge v. Northwestern Nat. Ins. Co., 49 Wis. 501, 5 N. W. 889; Beyer v. St. Paul Fire & Marine Ins. Co., 88 N. W. 57, 112 Wis. 138.

Where, however, the overvaluation is knowingly made for the purpose of securing that to which the insured is not entitled, it will forfeit the policy under the clause as to fraud and false swearing. Reference may be made to the following: Geib v. International Ins. Co., 10 Fed. Cas. 157; Howell v. Hartford Fire Ins. Co., 12 Fed. Cas. 700; Huchberger v. Merchants' Fire Ins. Co., 12 Fed. Cas. 794, affirmed 79 U. S. 164, 20 L. Ed. 364; Huchberger v. Providence Washington Ins. Co., 12 Fed. Cas. 795, affirmed in 79 U. S. 164, 20 L. Ed. 364; Shaw v. Scottish Commercial Ins. Co., 21 Fed. Cas. 1197; Sibley v. St. Paul Fire & Marine Ins. Co., 22 Fed. Cas. 60: Phoenix Ins. Co. v. Summerfield, 70 Miss. 827, 13 South. 253; Home Ins. Co. v. Winn, 42 Neb. 331, 60 N. W. 575; Hickman v. Long Island Ins. Co., 1 Edm. Sel. Cas. (N. Y.) 374; Phoenix Ins. Co. v. Munday, 5 Cold. (Tenn.) 547; F. Dohmen Co. v. Niagara Fire Ins. Co. of City of New York, 96 Wis. 38, 71 N. W. 69.

B.B.INS.-215

And the overvaluation may be so great as to preclude any other conclusion than that it was intentional.

Gerhauser v. North British Mercantile Ins. Co., 7 Nev. 174; Sternfield v. Park Fire Ins. Co., 50 Hun, 262, 2 N. Y. Supp. 766; Anibal v. Insurance Co. of North America, 84 App. Div. 634, 82 N. Y. Supp. 600.

It is not essential that the truth of the affidavit as to value be established by direct evidence (Marchesseau v. Merchants' Ins. Co., 1 Rob. [La.] 438). But where there is a discrepancy between the alleged and the real value, it is incumbent on the insured to show that such discrepancy was the result of an innocent mistake.

Hoffman v. Western Marine & Fire Ins. Co., 1 La. Ann. 216; Israel v.
Teutonia Ins. Co., 28 La. Ann. 689.

While it is held in Probst v. American Cent. Ins. Co., 64 Mo. App. 408, and Burge Bros. v. Greenwich Ins. Co., 80 S. W. 342, 106 Mo. App. 244, that the tax lists given by the insured, fixing the value of the property at a much smaller sum than that stated in the proofs of loss, are a proper subject of inquiry in determining the question of fraud, yet it is also held in the Burge Bros. Case that such a discrepancy is not conclusive, but subject to explanation, and the value of a building in which the insured goods were situated is not only inconclusive, but entirely incompetent to prove a fraudulent overestimate of the insured property, though the building, also, was insured (Ward v. Washington Ins. Co., 19 N. Y. Super. Ct. 229).

(j) Statements as to title and interest-Incumbrances.

A mistaken statement in the proofs as to interest or title will not forfeit the policy for fraud or false swearing where the insured is innocently ignorant that the proofs contain such statement.

This rule is illustrated by Hilton v. Phoenix Assur. Co., 92 Me. 272, 42 Atl. 412, where the insured was illiterate, and the mistake was made by the scrivener; also, by Home Ins. Co. v. Mendenhall, 164 Ill. 458, 45 N. E. 1078, 32 L. R. A. 374, affirming 64 Ill. App. 30, where there was evidence tending to show that the insured was misled by the agent as to the contents of the affidavit. In Parker V. Amazon Ins. Co., 34 Wis. 363. the haste of the insured in preparing the affidavit was held to excuse his ignorance of a mistake therein; and in Star Union Lumber Co. v. Finney, 35 Neb. 214, 52 N. W. 1113, there seem to have been no special circumstances ex