When a Warranty. state, and make known the proper value, the title, the location, the exposures, the occupancy, the liens and encumbrances thereon, then said policy shall be void, the answers made by the assured to the questions are express warranties, and if they are untrue no recovery can be had upon the policy. Chrisman v. State Ins. Co., 16 Ore. 283; 18 Pac. Rep. 466. a watchman in the mill during the night; is the mill ever left alone?" to which the answer was, "no regular watchman, but one or two hands slept in the mill." Held, that this was equivalent to an undertaking by the assured that one or two of his employees lodged in the mill each night, although they were not regular watchmen, and further that the same was a promissory and continuing under- 80.- A statement in a policy of insurtaking which bound the assured to a sub-ance that the building insured was stantial compliance with its terms from the time the policy was delivered until the mill and machinery were burned. Blumer v. Phænix Ins. Co., 45 Wis. 622; Id. 48 Wis. 535. 66 OC cupied as a hotel, with bar and billiard room attached," with a printed stipulation that false representations or concealment concerning the use or occupation of the property shall void the contract, consti75.- Property was insured as a tene- tutes a warranty that the premises are ment dwelling. By an indorsement, sub-occupied for no other purpose; and occusequently made, building was allowed pancy of the building as a saloon at the "to be occupied as a refreshment room-time the policy is issued renders it void. no liquor sold." Building was occupied *Baker v. German F. Ins. Co., 24 N. by a tenant, and liquor was sold by him, East. Rep. 1,041; 19 Ins. L. J. 802; 124 Ind.. but without knowledge or consent of as- 490. sured. Held, that indorsement created a warranty, and that there was a breach avoiding the insurance. Gauthier v. Mutual Ins. Co., 29 Up. Can. C. P. 593. 76.— Where policy is issued upon a prior application made to another company, assured is responsible for the truth of its statements only at the time of such prior application. Schroeder v. Traders' Ins. Co., 13 Ins. L. J. 492; 109 Ill. 157. 77.— Although a house may be placed on blocks of wood and held by its own weight, under an agreement that the insured might recover it as his own from the land, if not paid for, still it not being insured as a chattel, but as realty, the insured was bound to disclose the existence of a mortgage describing the land in answer to an inquiry for encumbrances in his application. Philips v. Grand River Ins. Co., 46 Up. Can. Q. B. 334. 78.- Where the policy refers to an application for a description of the subject of insurance, in ascertaining the subject to which the policy applies it is immaterial whether or not the application was made by the authority of the insured, or whether it was genuine or forged. *Sanders v. Cooper, 115 N. Y. 279. 81. Where an application for insurance declares that the statements and answers shall constitute a warranty and be a basis upon which the insurance is asked, and the policy refers to the application as a part thereof and a basis on which the insurance is written, and provides that any misrepresentation or concealment shall avoid the policy, the statements in the application are made intrinsically material by the express agreement of the parties, and must prevail, under Dak. Comp. Laws, § 4,163. *Johnson v. Dakota F. & M. Ins. Co., 45N. W. Rep. 799; 1 N. D. 167. 82. A clause obligating insured to keep his books in an iron safe at night is a promissory warranty, and if broken, and the books destroyed by fire, it voids the insurance; assured can not prove his loss in any other way. *Landmann v. Hartford Ins. Co., 18 Ins. L. J. 813 (La.) On appeal held that the warranty did not affect the insurance upon the building. 19 Ins. L. J. 572. 83.- False statements made in an application for fire insurance, which is made a part of the policy, are warranties and will bar a recovery. *Roberts v. State 79.- Where an applicant for fire insur-Ins. Co., 26 Mo. App. 92. ance agrees in his application that if it 84.- A representation in an applica does not truly answer the following in- tion for fire insurance, as to encumterrogatories, and correctly describe, brances on the property, is a material When no Warranty. warranty. *Stevens v. Queen Ins. Co., 51 N. W. Rep. 555; 21 Ins. L. J. 443 (Wis.) 66 plaintiff was bound by them no further than they were material; and the ma85. When no warranty. Where as- teriality of such representations was to sured represented the ground adjoining be determined by the jury. Boardman the property to be insured as vacant," v. New Hampshire Mut. Fire Ins. Co., 20 and, subsequent to the insurance, other N. H. 551. buildings were erected; held that there was no continuing warranty that the ground should remain vacant during the term of policy, and there being no prohibition in the policy against the erection of such buildings, the assured might recover. Stebbins v. Globe Ins. Co., 2 Hall, 632 (N. Y.) 86.- Where the policy was on mill, machinery and fixtures; and conditions, among other things, required the application to be in writing, "the relative situation of other buildings if within less than ten rods," etc.; and in application was the question, "relative situation of other buildings if within less than ten rods," and applicant failed to make known all the buildings within that distance; held, that the condition had no reference to anything but the insurance on the building, and, so far as it was concerned, as well as machinery, there could be no recovery; but, that the condition not referring to personal property, assured might recover for the loss of personal property. Trench v. Chenango County Mut. Ins. Co., 7 Hill, 122 (N. Y.) 87.- Plaintiff in his application, which was referred to and made part of the policy, described building as occupied by several tenants for certain purposes. In 1843, when the policy issued upon this application, was about to expire, he made application for further insurance upon same premises, and wrote in the application for the second insurance, "For particulars relative to the description of the brick store, reference is had to my application for policy, No. 12,018," which was the first application. This last application was also referred to and made part of the second policy. At date of the second application and policy, the occupations were different, and, as appeared, by agreement of the parties themselves, more hazardous than at date of first insurance. Held, that the statements of the occupation of the premises in the application were merely representations, and not express warranty; and that the 88.- Assured was a tenant for a year, and in policy the property was described as "his building." Held, not equivalent to a warranty, on the part of assured, that he was the owner of the tenements, when no inquiry was made as to the interest to be insured, nor does it constitute a material misrepresentation of the fact. Niblo v. Ins. Co., N. A., 1 Sandf. 551 (N. Y.) 89. In an application for insurance on personal property, which application was referred to in the policy as forming part thereof, was written, in answer to the question "where situated, of what materials, and size of building, etc., and relative situation as to other buildings, distance from each if less than ten rods," a description of several buildings standing within ten rods on the several sides of the one in which the insured goods were, but several others beyond them, but within the distance of ten rods, were not mentioned. On the above facts, the court say, "I think there can be no doubt, but that, had this been an insurance upon real estate, the statement as to the distance of the buildings would have been a warranty. But it is said that the rule is different in case of personal property. If this be law, I doubt very much whether it is applicable where personal property only is insured, and the statement respecting other buildings within ten rods can only refer to those within ten rods of that in which the goods are kept." Sexton v. Montgomery County Mut. Ins. Co., 9 Barb. 191 (N. Y.) 90.- Where the question in application, which was referred to and made part of the policy, was as follows: "How bounded, and distance from other buildings if less than ten rods,” etc.; and the answer stated all the nearest buildings on each side of the property insured, but did not state all the buildings within ten rods; held, that the answer was sufficient, for the question required the distance from the nearest buildings if within ten rods, not the distance from all buildings When no Warranty. within ten rods. Gates v. Madison v. Northwestern Ins. Co., 2 Curtis, 610 County Mut. Ins. Co., 2 N. Y. 43; 5 N. Y. | (U. S. Cir.) 469; rev'g, 3 Barb. 73. 94.- An application made by a third person, not on its face purporting to have been made by the plaintiff, or on his behalf, nor signed by him, and where there is no evidence that its contents were assented to or known by plaintiff, is not binding on him. And though policy stipulated "that the contract was made and accepted with reference to a survey on file in the office of the company," the plaintiff is not thereby chargeable with constructive notice of any statements or representations of a promissory or executory nature embraced in the application. Denny v. Conway Stock & Mut. Ins. Co., 91.- Application was referred to as forming part of the policy, one question of which was: "How bounded, and distance from other buildings if less than ten rods," etc. The surveyor and agent of the company, who by a condition of policy was made the agent of the applicant, examined the premises alone, and put in, as answer to the question, the nearest buildings, without mentioning others that were within ten rods. Held, that the putting down the nearest buildings only, did not amount to a warranty that there were no others within the distance of ten rods, and that, if there were other build-13 Gray, 492 (Mass.) ings, it only amounted to a withholding 95. The word "survey," in a policy information called for by the interroga- of insurance, imports only a plan and tory, upon which the question would description of the present existing state, arise whether it is material to the risk, condition and mode of use of the property. which is a question of fact proper to be Id. Contra, May v. Buckeye Ins. Co., submitted to the jury. Masters v. Madi-25 Wis. 291. son County Mut. Ins. Co., 11 Barb. 624 (N. Y.) 96. In his application for insurance, to the question, Who occupies the building? the owner answered, "Will be occupied by a tenant." Held, in a suit on the policy to recover for loss, that the answer was not a stipulation that the building should be so occupied, but was rather the representation of his expectation that it should be occupied by a tenant, and not by himself. Herrick v. Union Mut. Fire 92.- The application was made part of the policy, and a warranty on the part of the assured. In answer to the question as to occupation of the building, assured replied, “formerly used as a machine shop, all of which business is now stopped, and shop fastened up, and only used for the purpose of the meeting of the band two evenings of the week on the second | Ins. Co., 48 Me. 558. floor." After the insurance, the building 97. The policy stipulated that the was used for other purposes, which use representations in the application should was set up in defense, as a breach of war- | be a warranty on the part of assured, and ranty; held, that the answer of assured related only to the condition of things at the time of the insurance; and as the company had guarded against any "increase of risk," by an express condition in the policy, that to give effect to both clauses in the contract, the warranty as to occupation must be construed as affirmative only, and not intended to apply to the future condition of the property. Blood v. Howard Fire Ins. Co., 12 Cush. 472 (Mass.) contain a just, full and true exposition of 93.- Where policy provided that rep-Pa. 293. resentations should be deemed warran- 98. That a party in his application ties, and the insured, in reply to question for insurance, which application is made as to adjacent buildings, said, see dia- part of the policy, called the property gram;" held, that there was no warranty"his property" does not constitute a of the correctness of the diagram. Sayles warrranty on his part that he holds the 64 When no Warranty. fee simple thereof unencumbered. Ins. Co. v. Deale, 18 Md. 26. 99. A description of premises sought to be insured in the application, in reference to the uses to which they are then being applied, is not to be regarded as a warranty that they shall not be used during the existence of the policy for any other purpose. The application is a mere representation of the assured, and he is not bound to set it out and prove its truth. Its falsity is a matter of defense. New England Fire & Marine Ins. Co. v. Wetmore, 32 Ill. 221. 100. The application gave as answer, as to facilities for extinguishing fires: · Force pump, and abundance of water." Held, the answer states what the then condition was, and is no promise for the future that the pump should continue in good order. Gilliat v. Pawtucket Mut. Fire Ins. Co., 8 R. I. 282. 66 Mut. office of the defendant's agent at Utica, and a subsequent erection of neighboring buildings had rendered its description inaccurate. Held, it is not to be inferred that such previous survey should stand as the application for this insurance. Nor does the fact that this policy insures a further amount "on movable machinery, as per survey on file at office of T. (the agent) at Utica," render it the survey mentioned in the printed clauses; and, as to the machinery, such reference is only for convenience of identification, and has not made the other statements therein a part of the contract. A condition precedent cannot be established by inference; it must be explicit. Clinton v. Hope Ins. Co., 45 N. Y. 454; aff'g, 51 Barb. 647. 104.- Policy read as per application on file, No. 1,234." No such application was ever sent to defendant, or was on file in its office. It appeared that an application of that description, signed by plaintiff, was on file with defendant's agent, who issued policy in suit, and that it was sent to same agent in regard to another application made some time previously, upon which a policy was issued by another company, which had expired, and in place of which policy in suit was issued. Upon back of the application was a diagram, assumed to have been made by the agent, showing location of building insured. The only application made by assured was by a letter requesting insurance in good company without any reference to previous application. Reference in policy appeared to have been made by the agent upon his own motion. Held, that there was no warranty created; and that even if application could be regarded as obligatory, the diagram, not purporting to have been made by assured, and there being no proof that he ever saw or had anything to do with it, was not binding. Vilas v. N. Y. Central Ins. Co., 72 N. Y. 590; affi'g, 9 Hun, 121. 101.- Clause in policy on a tannery, "No fire in or about said building, except one under kettle, securely imbedded in masonry, and made perfectly secure against accidents." Held, not a promissory warranty, but an affirmance merely of condition at issue of policy. Schmidt v. Peoria Mar. & Fire Ins. Co., 41 Ill. 295. 102.- A policy refers to "assured's application, No. 127, which is his warranty and a part hereof." The only application was a verbal one. Held, not a part of the contract, and only a representation, and to invalidate the policy must be shown to have embraced a statement of fact, not only untrue and fraudulently made, but material to the risk; and that the policy uses the words of the verbal application that the roof was good, does not make it a warranty by incorporation, nor change its character of representation. Newman v. Springfield F. & M. Ins. Co., 17 Minn. 123. 103.- A policy on the "estate of D. Ross," issued to the administratrix, contained printed clauses: that if any survey is referred to, such survey shall be deemed a warranty," and that it was made with "reference to the survey on file at this office." The only survey ever made was made the previous year by the deceased, when insuring in another company, and the administratrix had no knowledge of its contents; it was then on file in the 105.- An agreement in an application for fire insurance "that the foregoing is a just, true and full exposition of all the facts and circumstances in regard to the condition, situation, and value of the property to be insured, so far as the same are known to the applicant, and the same is hereby made a condition of the insurance and a warranty on the part of When Breach of Warranty. the insured,”—is not an express warranty frame house, filled in with brick, No. 152 so as to relieve the insurance company Chatham street." The house No. 152 of liability in the case of incorrect statements made without fraud or gross negligence. Fisher v. Crescent Ins. Co., 33 Fed. Rep. 549. Chatham street was a frame house not filled in with brick. Held, that the words of description, "filled in with brick,” were a warranty, which being untrue, avoided the policy. Fowler v. Ætna Ins. 106.- Where a policy expressly names the conditions, terms, and warranties Co. of N. Y., 6 Cow. 673 (N. Y.) upon which it is executed, but among 111.- Policy on certain property in them contains no warranty or condition | cotton mill. Warranted that the above as to keeping account books and inven- mill is conformable to the first class of tory in an iron safe at night, such a pro- cotton and woolen rates delivered herevision, although called a warranty on a with." The mill in fact was second class. printed slip attached by mucilage to a Held, that the warranty was broken, and blank space in the policy, in the midst of it made no difference whether the varia sentence with which it has no proper ance was material or otherwise; there connection, but which purports to con- could be no recovery. Newcastle Fire tain the promises made on the part of Ins. Co. v. MacMoran, 3 Dow, 255 (Eng.) the insurance company-must be treated as a mere representation, and not as a warranty. Goddard v. East Texas F. Ins. Co., 67 Tex. 69; 1 S. W. Rep. 906. 112.- Where the assured, in his written application, in answer to the following question, viz.: "Relative situation as to other buildings-distance from each, 107. A statement in an application if less than ten rods," mentioned five for fire insurance, that the building in-buildings, but omitted to mention sevsured is at a certain distance from other buildings, is not a warranty, where the application concludes with a covenant or agreement that the statements therein are true so far as the same are known to the applicant, although the policy provides that the application and survey shall be taken as a part of the policy buildings within the prescribed distance and a warranty by the insured. *Noone v. Transatlantic Ins. Co., 88 Cal. 152; 20 Ins. L. J. 776; 26 Pac. Rep. 103. 108.- A statement in an application for fire insurance, that applicant's stock of merchandise "will be from $4,000 to $5,000," cannot be construed to be a warranty that such is the value at the time of the application. *Myers v. Council Bluffs Ins. Co.,72 Iowa, 176; 33 N. W. Rep. 453. 109.- A statement in an application for fire insurance, that "clerk sleeps in store," is not a continuing warranty that the clerk will continue to sleep there. *Grubbs v. Virginia F. & M. Ins. Co., 14 S. E. Rep. 516; 21 Ins. L. J. 470; 110 N. C. 108. eral others within ten rods, and the policy contained the following clause: "Reference being had to the application for a more particular description, and as forming a part of this policy;" held, that the statement in the application was a warranty, and that the existence of other avoided the policy, whether that fact was material to the risk or not. And where one of the conditions of insurance was that any misrepresentation or concealment in the application should render the policy void and of no effect; held, that any misrepresentation or concealment, however immaterial, would render the policy void. Burritt v. Saratoga County Mut. Fire Ins. Co., 5 Hill, 188 (N. Y.) And see Wilson v. Herkimer Ins. Co., 6 N. Y. 53. 113.- The policy referred to the application as forming a part of it. The conditions required that the application should state the situation of the property insured; its relative situation as to other 110. When breach of warranty. buildings; distance from each if less than One condition attached to the policy pro- ten rods, etc.; and further provided that vided that a misdescription of the prop-in all cases the assured should be bound erty insured, so that the same might be by the application, and that any misreptaken at a less rate, etc., should avoid the resentation or concealment in the applipolicy. The property insured was de- cation would render the insurance void. scribed as contained in a "two-story The application represented the building |