Other Special Cases.

ing was used for "tobacco pressing; no jury; when there is a positive explicit manufacturing;" when, in fact, an addi- statement or assertion of a fact it is error tion to the building was used to manu- to submit to a jury whether or not it was facture hogsheads for the tobacco. Held, intended only as an expression of an if it is generally customary for tobacco opinion. Bennett v. Agricultural Ins. pressers to prepare their own hogsheads- Co., 13 Ins. L. J. 817; 51 Conn. 504. which is a question for the jury-such 451. The application forms a part preparation is an incident to the business, of the contract, and the inquiry and which the insurers are supposed to be answers are tantamount to an agreeaware of, and not a concealment consti- ment that the matter inquired about is tuting a breach of warranty. Sims v. material, and its materiality is not open State Ins. Co. 47 Mo. 54. to be tried by the jury. Cuthbertson v. 448.— The policy and the application | North Carolina Ins. Co.. 96 N. C. described the premises insured, a distil- 480. lery, as built of brick, adding that the "gable end is frame," whereas the third story was entirely of wood, and a portion of the building one story high was wood. But, it appearing that the assured's agent expressed himself to the company's agent as uncertain as to correctness of the description, and that the question of its accuracy was left open to be determined by certain plats not then present; held, it was the proper province of the jury to pass upon these facts; that it was error to assume the defense of breach of warranty to be true, and require a finding for defendant; if the plats gave the facts not disclosed in the application and policy, the agent might have returned the premium. Woods v. Atlantic Mut. Ins. Co., 50 Mo. 112.

449.— Assured was bound by terms of the policy to "use only lard and tallow, or sperm or lard oils for lubricating, and to keep a force-pump on the premises, with a proper supply of good hose on hand." Held, that to make a forfeiture the breach must be a substantial one. That

452. Other special cases. Where application was referred to and made part of the contract, and provided that the company should only "be obliged to pay as if they had insured two-thirds of the actual cash value of the said property, anything in the policy or application to the contrary notwithstanding;” held, that a recovery for loss must be in accordance with the condition; and that instruction to the jury, therefore, that assured might recover the full value of property destroyed, was erroneous. Egan v. Mut. Ins. Co., 5 Denio, 326 (N. Y.)

453. The statements of the application and survey not deemed warranties, although expressly referred to in the policy as forming part thereof. Kentucky & Louisville Mut. Ins. Co. v. Southard, 8 B. Monroe, 634 (Ky.)

454. The survey was referred to in policy as follows: "Reference is made to survey No. 83 on file in the office of the Protection Insurance Company." One of the questions in the survey thus referred to was, "Is there a watchman in the mill during the night?" Answer: There is a watchman nights." Held, that the answer was not a warranty, but a representation, material to the risk, to be substantially kept and performed, and there being no watchman in the mill on Sunday morning, when it was destroyed, assured could not recover. Sheldon v. Hartford Fire Ins. Co., 22 Conn. 235.

if the assured, in usual course of business, ordered lard and sperm oil for lubricating purposes, and believed they obtained and were using what they ordered, and if the oil used contained lard and sperm oil and (although compounded with a product of petroleum) was equally as good and safe as pure lard and sperm oil, there is no substantial breach of the condition as to lubricators. That the question as to 455.- In an application on October 14, whether there was a proper supply of a bleaching and dye factory was treated hose or not, should be submitted to the and described as being complete, and on jury. Copp v. German-American Ins. December 8, following, when policy was Co., 51 Wis. 637. taken and premium paid, the agent put 450. The construction of a written on policy this endorsement: "These warranty is for the court and not the buildings are in course of construction."

Other Special Cases.

Although the application was referred to in policy and made a part thereof and warranty on part of assured; held, that the policy must be taken as upon buildings in course of construction." Gloucester Manuf. Co. v. Howard Fire Ins. Co., 5 Gray, 497 (Mass.)

456. From the answer to a question in an application, that the factory insured is "worked usually" certain specified hours in the daytime "in the summer," and certain specified hours "in the winter-short time now," it may be inferred that it was expected at times the factory would run nights. North Berwick Co. v. New England F. & M. Ins. Co., 52 Me. 336.

457.— The application erroneously stated there was no encumbrance; the assured afterward notified the agent of the mistake, and he wrote to the company. Held, if the information arrived before forwarding the policy, it was a correction of the application, making it true; if not until after, query whether the defendant should not have returned the premium and demanded a surrender of the policy or be estopped to set up the error? Anson v. Winnesheik Ins. Co., 23 Iowa, 84.

-

459. The Mass. statute, which provides that "the conditions of insurance shall be stated in the body of the policy, and neither the application of the insured nor the by-laws of the company shall be considered as a warranty or a part of the contract, except so far as they are incorporated in full into the policy and so appear on its face." Policy contained following clause: "reference is had to application on file at this office, which is hereby made a part of this policy, and a warranty on part of the assured." Held, that company could not be permitted to defeat a recovery by treating the application as a representation. Taylor v. Etna Ins. Co., 120 Mass. 254.

460.- Kentucky statute, which provides, in substance, that all statements and descriptions shall be held representations and not warranties, does not prevent parties to an insurance contract from stipulating otherwise. Farmers' Ins. Co. v. Curry, 6 Ins. L. J. 733; 13 Bush, 312 (Ky.)

461.- Under the Georgia Code an application, although made a warranty, does not void the policy unless the variation changes the nature, extent, or character of the risk. Mobile Fire Dep. Ins. Co. v. Miller, 58 Ga. 420.

462.- Covenants in application are no part of the insurance contract unless made part of the policy by reference or incorporation. Brogan v. Manufacturers and Merchants' Ins. Co., 29 Up. Can. C. P. 414.

463.- Although by statute when an indorsement is made upon a policy it does not become a part thereof as a warranty, it becomes so on renewal authorized by the same statute. Gauthier v. Canadian Mut. Ins. Co., 29 Up. Can. C. P. 593.

464.- Application contained question whether the stoves, funnels, flues, etc., employed for heating or using fire, are properly secured, to which the answer was none." Held, that the word none meant that there were no stoves, funnels, flues, etc., employed for heating or using fire, and not that there was no stove on the vessel, used or unused. Lyon v. Stadacona Ins. Co., 44 Up. Can. Q. B. 472.

465. When policy covers specific amounts upon the building and personal property a breach of warranty in connection with the building only avoids the entire policy. Schumitsch v. American Ins. Co., 48 Wis. 26.

466.- Insurance was upon "cotton seed oil factory;" issue was whether use of cotton gins constituted a breach of warranty in such description. The court charged the jury: "If you believe, from the evidence, that cotton gins are embraced fairly in the term cotton seed oil factory, or if you believe, from the evidence, that when the risk was taken cotton gins were used openly and publicly in that factory, and that it was then usual in Texas to run them in connection with such factories, then find for the

Other Special Cases.

plaintiff." Held, error, in absence of evi- 474. A copy of an application atdence that any usage in Texas to run tached to an insurance policy, which does cotton gins in cotton seed factories having not have the name of the applicant apbeen so general and well and long estab-pended thereto, is not a copy of such lished as to charge the insurance com- application, within the meaning of Wis. pany with notice. Texas Banking Co. v. Rev. Stat. § 1,945a, requiring a copy of Hutchins, 53 Texas, 61. an application to be attached to the policy in order to permit the insurance company to prove the falsity of any statement therein. Dunbar v. Phœnix Ins. Co., 40 N. W. Rep. 386; 72 Wis. 492.

467. By the Mass. statute a warranty cannot be created by a reference in policy. The statements or representations relied upon must be stated in body of policy. Wheeler v. Watertown Fire Ins. Co., 10 Ins. L. J. 354; 131 Mass. 1.

475. The statements contained in an application for insurance are conclusively 468.- An application made a part of presumed to be true, under Wis. Rev. the policy controls its provisions, where Stat., § 1,945a, if a copy of such applicathere is a variance in respect to description is not attached to the policy; and tion of property insured. Vezina v. Can- the insurance company cannot be perada Ins. Co., 9 Quebec L. R. 65. mitted to try the case as though no ap469.- It seems that a misrepresenta- plication had been made and appended tion as to amount of an encumbrance in to the policy, on the ground that maan application must be alleged to be material information was not disclosed terial. So held on demurrer to a plea. by the insured, when the application Steeves v. Sovereign Ins. Co., 4 Pugsley does contain answers on such matters. and B. 394 (N. B.) Id.

470.- Breach of warranty in application as to value does not prevent a recovery, where another condition allows a recovery for such proportion of the actual value as amount insured bears to value given in the application. Doull v. Ins. Co., 6 Russell and G. 511 (N. S.); rev'd on another ground, 12 Duval, 446 (Can. Sup.)

471. Although an application be made a part of the policy, if in either its statements be also referred to as representations, they will be given that character by the court in construction. Hammond v. Citizens' Ins. Co., 26 N. B. 371. 472.- Where a fire insurance policy covering two buildings is several as to each of the buildings, a breach of a warranty by the insured as to one of the buildings will constitute no defense to an action for a loss of the other. Phoenix Ins. Co. v. Pickel, 119 Ind. 155; 21 N. East. Rep. 546.

473.- In an action on a fire insurance policy covering a house and its contents as an entirety, in which the complaint alleges a total loss of both, it is a good defense that sets up that a warranty as to the age of the house, its value, and the amount of encumbrance on the land, was false. Pickels v. Phœnix Ins. Co., 119 Ind. 291; 21 N. East. Rep. 898.

476.- Where the materials from which a building was erected were partly taken from an old building,—held, that in answer to the question, When built? "—it was proper to give the year of the new, instead of the old, building. Lamb v. Council Bluffs Ins. Co., 70 Iowa, 238.

477. It is proper, in an action on the policy, to reform the application by inserting the answers actually given by the applicant. Bennett v. Agricultural Ins. Co., 8 Cent. Rep. 692; 106 N. Y. 243; 12 N. East. Rep. 609.

478.- Statements in an application for insurance, concerning the condition or value of the property, are immaterial and cannot be fraudulent where the policy is subject to the statute requiring the insurer to cause a personal examination to be made, and a full description of the property given, and its insurable value fixed in the policy. *Queen Ins. Co. v. Leslie, 9 L. R. A. 45; 19 Ins. L. J. 673; 47 Ohio St. 409; 24 N. East. Rep. 1,072.

Warranty.

Subd. I. Concealment. Nos. 8, 20, p. 308, § 22. 236, 42.

Subd. II. Misrepresentation. Nos. 10, 17, 18, 21, 22, 26, 27, 28, 30, 31, 34, 42, 50, 51, 52, 61, 68, 95. Subd. III. Subd. IV.

Subd. VI. Ground not owned in fee 1887, ch. 214, § 59. simple. Nos. 15, 37.

Subd. XII. Vacant or unoccupied. bound by knowledge of third person asNo. 18.

483. District of Columbia. Company 497. Wisconsin. Copy of application must attach to policy a copy of the appli- | must be attached to or indorsed upon the cation, so that the whole contract may policy to be available in defense. 1 Sanb. appear in said application and policy. & B. Annot. Stat. Wis., 1889, § 1,945a.

SECTION X.

In any matter relating to this insurance no person, unless duly authorized in writing, shall be deemed the agent of this company.

New York Standard Form. This clause was new both in form and substance.

I. AGENTS.

General rules.

General agent.

Soliciting agent.
Broker.

Clerks and sub-agents.

Authority of agent.

Restriction as to territory.
Agent of one company transacting
business with another.
Agent can not insure himself.
Rights and obligations as between
agent and company.

company.

Muhleman v. National Ins. Co., 6 W. Va. 508.

4.- When an agent of the company issues policy and renewal receipt with his name written upon them as completed instruments, company cannot object that they are not countersigned by such agent. Hibernia Ins. Co. v. O'Connor, 29 Mich. 241.

5.- Clause in policy making one who procures the insurance the agent of the assured is binding and operative; assured must be regarded as assenting to it when he accepts the policy. Millville Ins. Co.

Rights and obligations as between v. Collerd, 9 Vroom, 480 (N. J.)

agent and insured.

Waiver.

6. An agent's authority as to third parties continues until the latter are in

Effect of agent's acts or knowledge. some way informed of its revocation.

Evidence.

Question for jury.

Agents as partners.

Agent's bond.

Other special cases.
Cross references.
Statutory provisions.

Ins. Co. v. McCain, 6 Otto, 84 (U. S.)

7.- Agent of company cannot be made agent of the assured by virtue of an agency clause in the policy. Gans v. St. Paul Ins. Co., 43 Wis. 108.

8.- Agent of company cannot be made agent of assured. Eilenberger v. Protective Mut. Ins. Co., 89 Pa. 464. S. P. Broadhead v. Lycoming Ins. Co., 14 Hun, 452 (N. Y.); Chase v. People's Fire Ins. Co., Id. 456.

1. General rules. Foreign insurance companies may justly be held bound to the fullest extent for the acts of their agents representing them abroad. Par- 9. Agency clause in policy cannot ties are induced to rely upon them as operate to make company's agent agent having competent authority to transact of assured. Whited v. Germania Fire the whole business they undertake. Ins. Co., 76 N. Y. 415; affi'g, 13 Hun, Franklin v. Atlantic F. Ins. Co., 42 Mo. 191. 456.

10. While failure by foreign company 2. It seems that any one bringing to comply with statute governing its aurisks to the company for a percentage is thority to transact business in the State an agent. Meadowcraft v. Standard subjects its agents and brokers to penalFire Ins. Co., 61 Pa. 91.

3.- An insurance company acts and speaks by its officers, and what they say and do when in the discharge of their duty in relation to the particular duty assigned to them is evidence against the

ties prescribed, such failure does not affect the validity of the policies issued, or in any manner operate to prejudice of policy holders. Erhman v. Teutonia Ins. Co., 1 Fed. Rep. 471.

11.— It is against the policy of the law