When Breach of Warranty.

145.- If there is any danger of incendiary fire, reasonably to be apprehended, known to the assured, it is his duty to state it in his application and inform company of it; and if he answers falsely in that regard, and a loss ensues, company is relieved from liability. But such incendiary danger must be real and substantial, one that necessarily enhances the risk, one which a man of ordinary prudence and caution would regard as not mere idle talk or reports, which if the assured knew of, he might be excused from repeating to the agent. McBride v. Republic Fire Ins. Co., 30 Wis. 562.

146.- Where the survey referred to and made part of the policy was false and inaccurate, the assured cannot recover, although he supposed a different survey was the one referred to; and a charge to the effect that the minds of the parties met in issuing the policy, but not in the annexing of the conditions destroying it, is erroneous. Le Roy v. Market F. Ins. Co., 45 N. Y. 80.

147.- Survey was made part of policy and contained the following: "Watch

inan.

time of his application not more than $4,000. Its real value was then about $3,000. Held, to constitute a breach of warranty; that the question of over-valuation in the application was not one to be submitted to the jury as a question of good faith or fraud. American Ins. Co. v. Gilbert, 27 Mich. 429.

149.- Assured stated in his application that the property was not mortgaged, that he was the sole and undisputed owner of the property and that he owned the ground on which the building stood by contract. Held, that this must be construed as equivalent to a representation that no person other than himself had any substantial interest in the property, and it appearing that there was an interest or lien upon the premises in favor of the vendor to the amount of the unpaid purchase money that there was a breach of warranty. Hinman v. Hartford Fire Ins. Co., 36 Wis. 159.

150.- Where distance between buildings is made a warranty, if actually less than stated, there is a breach. Mamlok v. Franklin, 65 N. Y. 556.

the watchman being withdrawn several weeks prior to fire constituted a breach of warranty. Whitlaw v. Phanix Ins. Co., 28 Up. Can. C. P. 53.

Is one kept in the mill or on the 151.- Application made a warranty, premises during the night and at all times contained the following: "Is there a when the mill is not in operation, or when watchman kept on the premises at night the workmen are not present? Ans. and at all other times when works are Yes." Upon the day previous to destruc- not in operation, or when the workmen tion of the property by fire, the sheriff are not present? Ans. Yes." Held, to levied an execution against the assured be a continuing representation, and that upon the personal property in the building (mill), and excluded their employees therefrom, took the keys and locked up the building. The deputy sheriff and one of the trustees of the assured remained in the office of the company, a building about two rods from the mill, during the night and until discovery of the fire. Held, survey to be a warranty and that there was a breach. That the levy did not affect the obligation to perform the warranty, and that the sheriff and trustee were not watchmen within the meaning of the warranty. First Nat. Bank of Ballston v. Ins. Co. of N. A., 50 N. Y. 45. 148.- Policy contained provision that an over-valuation either in written application or otherwise should render it void. Assured stated in his written application that the value of the property was $8,000 or more. Upon the trial he admitted that he knew it was worth at the Mass. 274.

152.- Policy "warranted a family to live in said house throughout the year.” Trial court was asked by defendant, upon plaintiff's evidence, to charge the jury that "the occupation of the premises by two hired men in plaintiff's employ, who took their meals and were employed during the day on other premises, but slept in the insured premises at night, assured and his wife and children being absent, was not such an occupation of the premises as complied with the warranty,“ which was refused. Held, error; that court should have charged as requested, and that the evidence did not sustain finding by jury of compliance with the warranty. Poor v. Humboldt Ins. Co., 125

When Breach of Warranty.

153. When application, made a war- survey of a carpenter shop, when, in fact, ranty, contains a question as to whether a carpenter shop stood directly in the rear there was any danger of an incendiary of the house in very close proximity to it. fire which is answered in the negative, Held, that there was a breach of the warand the evidence on the trial shows the ranty, and that the legal effect of such answer to be untrue, plaintiff cannot re-breach in the voidance of the insurance cover. Herbert v. Mercantile Fire Ins. Co., 43 Up. Can. Q. B. 384.

154.- Application was made a warranty. It contained a question as follows: "Title. Is your title to or interest in this property absolute; if not, state its nature and amount, name interest and amount of others concerned?" Ans. "Yes." In fact, the assured had no absolute inheritable interest. He was neither a tenant in common nor an ordinary joint tenant. It was held by him and his wife under same deed, and upon his death went by survivorship to his wife. Held, that policy was avoided by the false statement in regard to title. Etna Ins. Co. v. Resh, 40 Mich. 241.

155.— A false statement in relation to encumbrance made a warranty, is a breach thereof and avoids the insurance. Schumitsch v. American Ins. Co., 48 Wis.

26.

156.- Policy referred to application and survey as part of it. Back of application was headed diagram, with directions as to filling up. There were two buildings, one 18x20, and another smaller one, within the prescribed distance, omitted from the diagram. It seems, that diagram was part of application within meaning of condition making statements in application warranties; that the omission of the two buildings constituted a breach of warranty; but that a statement of distance between buildings as 190 feet instead of 178 feet was so slight as to be immaterial. O'Neill v. Ottawa Agricultural Ins. Co., 30 Up. Can. C. P. 151.

was not removed by the fact that the shop had ceased to be used as a shop before the insurance, and was to be removed and used as a dwelling, which was done soon after the insurance was obtained. Pottsville Mut. Fire Ins. Co. v. Horan, 89 Pa. 438.

159.- Application contained following: Q. Is there reason to fear incendiarism, or has any threat been made? Ans. No." It appeared from the evidence that about a week before application was made for the insurance, that a servant of assured had threatened to beat him, and latter being a nervous and timid man, being alarmed, obtained the insurance; that he had set up and watched for a night, and that he believed premises were set on fire. Held, that plaintiff was not entitled to recover; that having admitted his own | belief in the danger and acted upon it, his answer to the question in the application was untrue. Campbell v. Victoria Mut. Fire Ins. Co., 45 Up. Can. Q. B. 412.

160.- When application made a warranty contains a statement that property is incumbered to the amount of $2,000, when, in fact, there is a mortgage of $3,400, there is a breach avoiding policy by the terms of the contract. Byers v. Ins. Co., 35 Ohio, St. 606.

161.- Description of occupation in an application as a spool factory; condition in policy that if premises should be used for any business denominated hazardous, or extra hazardous, it should be void; the insured also manufactured excelsior on the premises, which was shown to be a 157.- Assured stated in application hazardous if not an extra hazardous busithat there was only one stove in the in-ness. Held, a breach of warranty voiding sured premises, when in fact there were the insurance. Sovereign Ins. Co. v. two. Held, an untrue statement, avoid- Moir, 14 Duval, 612 (Can. Sup.); rev'g, 6 ing the insurance. Id. Russell and G. 502 (N. S.)

158.- A warranty that the adjoining 162.— When application calls for a buildings within eight rods are used for statement of encumbrances and other inthe purpose of a private dwelling, the surance, all such must be disclosed, othersurvey on back of the application show-wise there is such a concealment as voids ing a vacant lot between the property in- the insurance. If this is shown by unconsured and a neighbor's house, and no tradicted evidence a verdict for the inmention being made in the application or sured will be set aside and a new trial

When Breach of Warranty.

granted. McKay v. Glasgow and London constitutes a breach of warranty. McCorIns. Co., 32 L. C. Jur. 125 (Can.)

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166.- A false statement in the application (made part of policy) as to encum-four thousand three hundred dollars, voids brances works a forfeiture of the insurance. Blooming Grove Mut. Fire Ins. Co. v. McAnerny, 12 Ins. L. J. 654; 102 Pa. 335; Mulville v. Adams, 13 Ins. L. J. 435; 19 Fed. Rep. 887; Connecticut Ins. Co. v. Pyle, 2 West. Rep. 377; 44 Ohio St. 19.

When no Breach of Warranty.

relieve the insured from forfeiture under ing of the insurance, and for a purpose

a clause in the policy providing that it shall be void if any of the statements, which are warranted, are false. *Crook v. Phoenix Ins. Co., 38 Mo. App. 582.

176.- Although the watchman clause in a fire policy should have a reasonable interpretation, and not be applied to the injury of the assured, the latter cannot recover where he utterly disregarded it. *Parrish v. Virginia F. & M. Ins. Co., 20 Ins. L. J. 95 (N. C.)

177.— A policy of insurance containing a warranty that a watchman shall be employed by the insured, to be in and about the premises day and night, is avoided by the employment of but one watchman, who is allowed to sleep at night in a building 300 feet from the insured premises. *Rankin v. Amazon Ins. Co., 20 Ins. L. J. 844; 26 Pac. Rep. 872; 89 Cal. 203; aff`g on rehearing, 20 Ins. L. J. 278; 25 Pac. Rep. 260 (Cal.)

connected with the finishing of the house, is not a violation of the warranty. Williams v. New England Mut. Fire Ins. Co., 31 Me. 219.

181.- Assured erected a new building beside one insured without notice to the insurers, the policy being silent on the subject, and no injury having resulted therefrom; held, that the policy was not thereby rendered invalid. Gates v. Madison County Mut. Ins. Co., 5 N. Y. 469.

182. The stipulation, "a watchman kept on the premises," inserted in the body of the policy, immediately after the description of the property insured, is in the nature of a warranty, and must be substantially complied with by the assured. But such expression does not require a constant watch, and if a watchman is kept in the manner in which men of ordinary care and skill in similar de178. When no breach of warranty.partments keep a watchman, it is suffiIn reply to the question in application cient. Evidence of the usage of similar "as to distance of other buildings," an- establishments in keeping a watchman, swer was, "East side of the block, small is admissible, in an action on such policy. one-story sheds, and would not endanger Croker v. People's Mut. Fire Ins. Co., 8 the building if they should burn." The Cush. 79 (Mass.) fire was communicated through one of the buildings referred to, and caused the destruction of the property insured. Held, that it was not a misrepresentation, but an error of judgment, and did not avoid the policy. Dennison v. Thomaston Mut. Ins. Co., 20 Me. 125.

183.- Where assured represented in his application that water casks in the insured building were constantly kept full; held, that the negligence of assured's servants in not keeping them full, contrary to assured's order to have them kept full, would not avoid the policy. Daniels v. Hudson River Fire Ins. Co., 12 Cush. 416 (Mass.)

179.— In the application in this case was this question: "In what are ashes kept at all times?" Answer, "Brick.” 184.- Policy on goods, running from Held, that if after the issuing of the policy $2,000 to $3,000, and so represented by asupon the application, the ashes of assured sured. Policy stipulated that the “surwere kept as safely in the building in-vey is made part of the policy, and war. sured, as if they had been kept in the mode represented in the application, the assured, so far as this point was concerned, would be entitled to recover. Underhill v. Agawam Mut. Ins. Co., 6 Cush. 440 (Mass.)

ranty on the part of the assured." The application stipulated that the answers therein given were a just, full and true statement of all facts "so far as material to the risk." Held, that taking the clauses together, the warranty was not of the 180.— In an insurance upon a house literal truth of the facts, but only so far in process of building, a statement, in as material to the risk;" so that if asreply to inquiry, that there are no stoves sured had not the amount of goods, but in it, must be understood to mean that intended his stock to be about these figno stove is to be habitually kept and ures, and as the policy was plainly an used in it, as stoves are ordinarily used open one, and the underwriter was to pay in a dwelling house. The use of a stove only three-fourths the actual loss, the for a few days, subsequent to the effect-variation was immaterial, and the policy

When no Breach of Warranty.

was valid. Lee v. Howard Fire Ins. Co., water at all times;" held, that this state11 Cush. 324 (Mass.)

185. The policy bound assured to keep a night watch upon the premises at all times during life of policy. Held, that because the watchman, unknown to the assured, had agreed, and did occasionally look after a yard opposite the one insured, there was not such a non-compliance with the requirements of watchJuan as to avoid the policy. Hovey v. American Mut. Ins. Co., 2 Duer, 554 (N. Y.)

ment must be taken to be made with reference to the existing state of the building and required a performance of the conditions or stipulations adapted to that state of things; the water tanks were to be supplied with all reasonable diligence, having reference to the progress in the construction of the building insured; and they were not required to have them at all times well supplied from the first moment the policy issued, as they would have been had the policy been on a fin

186.— In answer to the question in ap-ished building. Gloucester Manufacturplication "whether the lamps used in the ing Co. v. Howard Fire Ins. Co., 5 Gray, woolen factory were open or covered?" 497 (Mass.) the reply was "covered." It appearing 190.- Where insured in his applicathat an open lamp was commonly used tion stated that two buildings were to be to light up with; held, that the question moved fifteen feet, and a loss occurred referred to lamps that were habitually before removal; held, insured was entitled used, and not to the lamp used for light-to a reasonable time to remove them, and ing up with, and that there was, there- what was a reasonable time was a quesfore, no misrepresentation. Howard Ins. tion for the jury. Lindsay v. Union Co. v. Bruner, 23 Pa. 50. Mut. Fire Ins. Co., 3 R. I. 157.

187. In reply to the question in application as to encumbrances, the assured truly stated the encumbrances then existing, but, after making the application on the 17th of July, on 25th of same month, when policy was signed, he had made another mortgage on the premises for $5,000, and on the 11th of October following, a second one for $1,100. The company defended on this ground, but it was held that there was no misrepresentation as to encumbrances, the assured having stated truly those existing at the time of application. Id.

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188.— A question in application as to relative situation of other buildings was answered as follows: A dwelling house and cabinet maker's shop, with' fifty feet;" held, that the true construction of the answer was that the buildings were “within” fifty feet, and the answer was correct, although one of the buildings was within three feet; also, that being the construction of a written instrument, where no question arose as to the use of words of art, it was a question for the court to determine. Allen v. Charlestown Mut. Ins. Co., 5 Gray, 384 (Mass.)

189. A policy of insurance upon a building, in course of construction, contained this statement in the application: "Water tanks to be well supplied with

191.- Relative situation of other buildings being required in application, which was expressly made part of the policy, the assured answered: "Dwelling about four feet distant on one side; about fifteen feet to small dwelling and storehouse." At bottom of application assured stipulated that above was a full and true exposition of all facts, etc., “so far as the same are known to the applicant." It appeared in evidence that there were several other buildings on other sides of the property insured, besides those mentioned in the application. Held, that if the existence of these other buildings was not known to the assured or his agent who made the application, the omission to mention them would not prevent a recovery. If the insurers desired more exact information, other questions should have been put accordingly. Hall v. People's Mut. Ins. Co., 6 Gray, 185 (Mass.)

192.- In the application for insurance, which by express reference was made part of the contract, was this question: "For what purpose is the building occupied, and by whom?" Answer: “As a hotel, by Mr. Holmes." At bottom of the application assured stipulated that the above was a full, just and true exposition of all the facts regarding the risk, so far

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