Croyle v. Moses. The learned judge answered all these points together, and appear: to have overlooked the distinction between warranty and deceitful representations. As was said in Krumbharr v. Birch, 2 Norris, 426: "It needs no citation of authorities to prove that the willful misrepresentation or concealment of a material fact by the vendor constitutes a fraud." But fraudulent representations may be as well by arts or artifices calculated to deceive, as by positive assertions. 2 Kent's Com. *483; 1 Story's Eq., § 192; Brightly's Eq., § 55; Cornelius v. Molloy, 7 Barr. 293. Although no answer to the points, yet in the absence of artifice or deceitful representations, the jury was correctly told "the defendant was not bound to inform the plaintiff that the horse was a cribber. He had a right to remain silent and let the purchaser examine for himself and buy on his own judgment." The jury was also correctly instructed that "a seller has no right, by words or acts, to mislead a buyer and prevent an examination or inquiry." The error was committed in the next sentence, which declared: "But a mere evasive answer is not of itself equivalent to a warranty." This is undoubtedly true, but is no answer to the points. The request was not for instructions as to what constituted a warranty or what answers were equivalent to a warranty, but as to the effect of fraudulent acts and declarations in the absence of a warranty. The court again interwove the warranty saying: "The seller may keep the horse's defects to himself, if he does not warrant nor make false representations nor fraudulent concealment, and the buyer has an opportunity to inspect and test the horse, and buys on his own judgment. The mere short hitching of the horse to a fence, accompanied by the defendant's statement that he thus hitched him to keep him from rubbing the saddle, would not of itself be a falso representation, equivalent to a warranty, if the buyer bought on his own judgment, and after an express refusal on the part of the defendant to warrant the horse." Thus the prominent thought expressed in the answer of the court relates to a warranty, while no such question was presented in the points. They called for no instructions that any "false representations were equivalent to a warranty;" nor that "the mere short hitching of the horse," and the defendant's statement relating thereto, were of themselves equivalent to a warranty. The question presented by the points was substantially, if at the time of the sale the horse was known to the defendant to be "a cribber or wind-sucker," and ། McClure v. Watertown Fire Insurance Company of New York. this fact was artfully concealed by him to the injury of the plaintiff, whether it was such a concealment of a latent defect as would avoid the contract. The points submitted did not rest on the mere facts that the horse was hitched short and the reason assigned therefor, but also on the additional facts that the defendant knew him to be a crib-biter, and resorted to this artifice to conceal it, and gave an untruthful reason to mislead and deceive the plaintiff. The complaint is not for a refusal or omission to answer, but for an . evasive and artful answer. That the horse was actually a crib-biter, and so known to the defendant, was clearly proved. Whether that defect made him unsound was fairly submitted to the jury, under the evidence. That it lessened his market value seems to admit of no doubt. If the jury should believe, as the plaintiff testified, that he said to the defendant, "If there is any thing wrong with the horse, I do not want him at any price," and that the defendant, with knowledge he was a crib-biter, answered the plaintiff artfully and evasively, with intent to deceive him, and did thereby deceive him to his injury, it was such a fraud on the plaintiff as would justify him in rescinding the contract. The answer of the court, blending warranty with fraudulent artifices, failed to present the latter to the mind of the jury in a proper manner. The answer was calculated to mislead them as to the law applicable to that branch of the case. Relf v. Rapp, 3 W. & S. 21; Wenger v. Barnhart, 5 P. F. Smith, 300; Gregg Township v. Jamison, id. 468; Stall v. Meek, 20 id. 181. Judgment reversed and a venire facias de novo awarded. Judgment reversed. MCCLURE V. WATERTOWN FIRE INSURANCE COMPANY OF NEW YORK. (90 Penn. St. 277.) - Insurance-fire — vacancy — removal of tenant — good faith. A fire policy was conditioned to be void if the premises should become vacant or cease to be occupied. The proofs of loss showed a vacancy by the tenant a few days before loss. Held, that evidence that the vacancy occurred without the knowledge of the insured, and that on learning it he at once endea vored to procure another tenant, and notified the company, is immaterial.* * See Cook v. Continental Ins. Co., ante, p. 438. A McClure v. Watertown Fire Insurance Company of New York. CTION on a fire policy. The opinion shows the facts. The defendant had judgment below. W Trickett, J. A. C. McCune and W. F. Sadler, for plaintiff in error. S. Hepburn, Jr., and S. Hepburn, for defendant in error. GORDON, J. William H. McClure, the plaintiff below, accepted the policy which is the subject of the present contention, subject to the express condition that it should be null and void, "if, without the written consent of the company first had and obtained, the dwelling-house or houses hereby insured become vacant by the removal of the owner or occupant, or cease to be occupied in the usual and ordinary manner that dwelling-houses are occupied.' This provision became part of the contract of insurance; the company agreed to insure the premises at a certain rate, and the plaintiff in consideration thereof, on his part agreed, that the property should be occupied either by himself or his tenants during the running of the policy, and if at any time it became vacant, then and in that case this policy should be of no further force or effect. As this condition is unambiguous and reasonable, and as the plaintiff voluntarily accepted it, prima facie it would seem to be obligatory. What reason then has the plaintiff to give why it should not be so? The property certainly became vacant without the assent of the company first being had and obtained, and during that vacancy it was burned. Now, in the case of the Birmingham Fire Insurance Company v. Kroegher, 83 Penn. St. 64; s. c., 24 Am. Rep. 147, this court held, that a provision, in the policy, providing against the use of carbon oil in and about the insured building, was good and binding upon the insured, and this notwithstanding the knowledge of the company's agent at the time of insurance, that carbon oil was kept upon the premises. It is therefore certain that provisions, of the character of that now under discussion, are obligatory, and that their violation will avoid a policy of insurance. It will be observed that the case cited and the one in hand are similar, excepting only the objects embraced by the conditions. In the one case, there was a prohibition of the use of carbon oil upon the premises, in the other, a prohibition of the vacancy of the insured building; but on VOL. XXXV-83 McClure v. Watertown Fire Insurance Company of New York. both, confessedly, the non-observance of the conditions increased the risk. Why then, should the ruling of the one not apply to the other? It is urged that the plaintiff's tenant left the premises without his knowledge and consent, and that as soon as he discovered that fact he endeavored to procure a new one. All this may be admitted as true, but then who was to bear the risk in the meantime? Not the company, for it had expressly provided that it would assume no such risk. What then mattered the good intention of the plaintiff? The fact remained that the loss occurred during the vacancy of the property. Had McClure taken the pains to have notified the company of the vacation of the building, and obtained its assent thereto, he would have saved his policy; he did not choose so to do, and hence relieved the defendant of its responsibility. It but comes to this, the plaintiff did not live up to his contract, and so lost the advantages of it. It is true, as is said in the Western Insurance Co. v. Cropper, 8 Casey, 351, that the stipulations in a policy are intended for the benefit of the underwriters, and where they are obscure, they must be interpreted most favorably to the assured; but on the other hand, to refuse their enforcement when they are not obscure, would be a denial of justice. Then again, it is not quite correct to say that such stipulations operate wholly to the advantage of the underwriters, since in consequence thereof the assured obtains his policy at lower rates than would be the case were that policy unconditional. Our attention has been directed to the case of Gamwell v. Merchants' and Farmers' Mutual Fire Ins. Co., 12 Cush. 167; but it is not in point. The defense there was, not upon any condition in the policy, but upon an alleged increase of risk, occasioned by the vacation of the insured building, and also upon the further allegation that the loss occurred through the culpable negligence of the assured. These were of course questions for a jury, and involved, among other things, the good faith of the plaintiff in his alleged endeavors to procure a new tenant as soon as possible after the vacancy had occurred. Such however is not the question which we have now to consider; it is not whether the risk was increased, or whether the plaintiff acted in good faith, but whether he complied with the condition which he had adopted by accepting the policy. Pennsylvania Canal Company v. Burd. The ruling of the court below is supported by the case of Harrison v. City Insurance Co., 9 Allen, 231, in which it was held that where the policy contained a condition similar to that now under consideration, the company was relieved from responsibility where the loss occurred during the vacancy of the insured premises. Substantially the same ruling may be found in Keith v. Quincy Fire Insurance Co., 10 Allen, 228, and in Corrigan v. Connecticut Fire Insurance Co., 122 Mass. 298. The conclusion at which the court below arrived, being thus abundantly supported by reason and authority, must be affirmed Judgment affirmed. PENNSYLVANIA CANAL COMPANY V. BURD. (90 Penn. St. 281.) Negligence-canal company—character of ability. A company owning and operating a canal is not bound as a common carrier or insurer for the safely navigable state of the canal, but only for the exercise of reasonable care.* A CTION of damages for injury to a canal boat by an obstruction in the canal. The point is stated in the third paragraph of the opinion. The plaintiff had judgment below. Francis Jordan and C. J. T. McIntire, for plaintiffs in error. J. C. McCallister and W. A. Sponsler, for defendant in error. STERRETT, J. In its relation to the defendant in error, the Pennsylvania Canal Company was neither a common carrier nor an insurer, nor liable as such. As owner and operator of a public water highway, formerly owned by the State, it was bound to so maintain and manage the canal that it could be used with reasonable safety and convenience by the public, for whose benefit it was constructed. To this end the duty of the company to the public demanded the exercise of reasonable and ordinary care; and it is by this standard its liability to the plaintiff below must be measured. It follows from this that the company is not liable for injuries arising from unforeseen and unexpected contingencies, such as *See City of Petersburg v. Applegarth (28 Gratt. 821), 26 Am. Rep. 857. |