for the by-laws show that the company regarded such a use of the house as adding to the risk. The rule seems to be that such represen cations in, or a part of the policy, are construed to be warranties when it appears to the court that they have had, in themselves, or in the view of the parties, a tendency to induce the company to enter into the contract on terms more favorable to the insured, than without them. If the court cannot say so, then they are treated as representations, and it is left to the jury to say whether or not they are material misrepresentations tending to mislead, and actually misleading the insurers. The rule perhaps may be more concisely stated thus. Any statement or description, or any undertaking on the part of the assured, on the face of the policy, which relates to the risk, is a warranty, an express warranty, and a condition precedent. It is not necessary that it should be stated to be a warranty, or that it should be so by construction. It is enough that it appears upon the face of the policy and relates to the risk.'

'In Wood v. Ins. Co., 13 Conn. 533, the subject of insurance was described in the policy as "the one undivided half of the paper-mill which the insured owned at W., together with the half of the machinery, wheels, gearing," etc., and in a memorandum in the conditions annexed to the policy, paper-mills and grist-mills were mentioned among the articles which were to be insured at special rates of premium, in contradistinction to those which were not hazardous, hazardous or extra hazardous. In February, when the insurance was effected, the building in question was a paper-mill, and was used for no other purpose. In August following, its use as a paper-mill was discontinued, the rag-cutter and duster were removed, and a pair of millstones, for grinding grain, were put in their places, moved by the same gearing, and by the power of the same water-wheel, all the other machinery remaining as it was. By the use of the millstones, the risk was greater than it would have been if no use had been made of the premises, but not greater than if the paper-mill only had been in operation. In September, during the continuance of the risk, the premises were destroyed by fire, not caused by the millstones. In an action on the policy against the insurers, it was held that the description of the building as a paper-mill related to the risk; that it was a warranty, and that if the building was not a paper-mill at the time of the loss, the warranty was not complied with; that at the time of the loss it was a paper-mill, ready for use, and, consequently, the warranty was duly kept; and that the insurers were not absolved from their obligations by reason of any increased hazard resulting from the alterations in the mill.

SEC. 192.

Description of use; warranty in presenti.

Effect of list of hazards upon contract.

Representations substantially true.

SEC. 193. Ashes; method of keeping.

SEC. 194. Breaches must be plead or relied on at trial.

Representations; what are; must be material.

SEC. 177. A representation precedes the contract; and, being only the inducement thereto, need only be true as to matters material to the risk, and that influence the insurer in taking or rejecting the risk, or in fixing the rate of premium therefor.' It is not, however, for the insurer, but for the jury to say whether the representation is material. The mere fact that the insurer insists that the risk would have been

1 Boardman v. N. H., etc., Ins. Co., 20 N. H. 551; Price v. Phoenix, etc., Ins. Co., 17 Minn. 497; Nicoll v. American Ins. Co., 3 W. & M. (U. S.) . 2; Williams v. N. E., etc., Ins. Co., 31 Me. 289; Columbian Ins. Co. v. Lawrence, 10 Pet. (U. S.) 507; see, also same case, 2 Pet. (U. S.) 25; Stebbins v. Globe Ins. Co., 2 Hall (N. Y. S. C.) 632; Barber v. Fletcher, 1 Doug. 305; Daniels v. Hudson River Ins. Co., 12 Cush. (Mass.) 416; Dennison v. Thomaston, etc., Ins. Co., 20 Me. 125; Delonguemere v. Tradesman's Ins. Co., 2 Hall (N. Y. S. C.) 589; Harmer v. Protection Ins. Co., 2 Ohio St. 452; Glendale Mf'g Co. v. Protection Ins. Co., 21 Conn. 19; Peoria M. & F. Ins. Co. v. Perkins, 16 Mich. 380; Witherill v. Maine Ins. Co., 49 Me. 200; Marshall v. Columbian Ins. Co., 27 N. H. 157; Cumberland Valley, etc., Protection Co. v. Schell, 29 Penn. St. 31; Wall v. Howard Ins. Co., 14 Barb. (N. Y.) 383; Carpenter v. American Ins. Co., 1 Story (U. S.) 57; Roth v. City F. Ins. Co., 6 McLean (U. S.) 324; Clark v. N. E. Mut. F. Ins. Co., 6 Cush. (Mass.) 342; Gould v. York Co. Mut. F. Ins. Co., 47 Me. 403.

rejected, or the rate of premium would have been higher, if the real facts had been known to him, is not enough to weaken the validity of the policy. The jury must find, as a matter of fact, that the representations were material, and in fact influenced the insurer in taking the risk at a lower rate of premium than he would have taken it for, if the real state of the risk had been known.'

In arriving at a proper result, the jury may consider the evidence of insurance men as to the materiality of the statements, but that is only an aid to the result, and by no means decisive. The jury must say, from all the facts and circumstances, whether the representations were material or not. But in a case where the facts are not in dispute, the question of materiality is for the court."

3

The assured is not held to the strict or even literal truth of his representations. It is enough if they are subtantially true. "It is enough" says SUTHERLAND, J., "if a representation be made without fraud, and be not false in any material point; or if it be substantially, although not literally true. Although," he adds, "the description may

'In Clason v. Smith, 3 Wash. (U. S. C. C.) 156, the assured represented to the insurer that they had no doubt that they could get the insurance in New York for 15 per cent. The defendants charged them 20 per cent. In fact, the assured had applied to several offices in New York, and 20 per cent. had been demanded. In an action upon the policy this misrepresentation was set up in defense. The court held that the representation was not material, as it did not influence the insurers to take 15 per cent., and that, as they charged and received the risk at 20 per cent., it must be presumed that they acted upon their own judgment rather than upon what the assured said. "While," say the court, "the statement could not be defended at the bar of conscience, the misrepresentation could have had no influence affecting the rate of premium, because upon their own judgment they demanded 20 per cent. instead of 15; nor ought it to have induced the acceptance of the risk at all, nor influenced the rate of premium, for the representation expressed nothing but an opinion that the insurance could be effected at that rate; and the insurer could not have accepted it as a candid opinion, because the facts showed that it was not; for, if it were, why leave New York and go to Philadelphia, and then pay 20 instead of 15 per cent. ?" Hubbard v. Glover, 3 Camp. 313.

* Wainwright v. Bland, 1 M. & W. 32; McLanahan v. Universal Ins. Co., 1 Pet. (U. S.) 170; McLaws v. United Kingdom, etc., Institution, 23 C. C. S. (Sc.) 559; Sexton v. Montgomery, etc., Ins. Co., 9 Barb. (N. Y.) 191; Power v. City F. Ins. Co., 8 Phila. (Penn.) 566; Mut. Ins. Co. v. Deah, 18 Md. 26; Life Ins. Co. v. Fransisco, 17 Wall. (U. S.) 672; Percival v. Maine Ins. Co., 33 Me. 242; Parker v. Bridgeport Ins. Co., 10 Gray (Mass.) 302; Boardman v. N. H., etc., Ins. Co., 21 N. H. 551; Bulkley v. Protection Ins. Co., 2 Paine (U. S.) 82.

Curry v. Com. Ins. Co., 10 Pick. (Mass.) 535; Fletcher v. Com. Ins. Co., 18 id. 419; 1. Ben. F. I. C. 556.

4 Nichol v. American Ins. Co., 3 W. & M. (U. S.) 527; Edwards v. Footner, 1 Camp. 530.

Jefferson Ins. Co. v. Cotheal, 7 Wend. (N. Y.) 72; 1 Ben. F. I. C. 354.

Pawson v. Watson, Camp. 787. The force of this proposition will perhaps be more readily grasped, from a brief statement of what has been held by the courts in various cases involving the question. Thus in Delonguemare v. Tradesmen's Ins. Co., ante, the building was represented as completed; held, complied with if

differ very considerably from the actual state of the property insured, if such variation were not fraudulently intended, and did not in fact affect the rate of insurance, or change the actual risk, it can scarcely be deemed material." The assured is not bound to state what his opinion is of the risk, but the bald, naked facts relating thereto.2

3

Where the misrepresentation alleged is of something that is independent of the property insured, the policy is not invalidated when the loss is not affected thereby; nor when the application was made out by the insurer's agent, and, knowing the facts, he misstated them; or when the facts were stated as they were, by his direction. A representation may be made either in writing or by parol, and is equally fatal to a recovery in the one case as in the other, if false and material to the risk."

If an answer to an interrogatory is false and relates to a material matter, it is fatal to a recovery under the policy. The assured is bound to answer truly or not at all; and as to whether, in view

substantially finished. In Collins v. Charlestown Mut. F. Ins. Co., 10 Gray (Mass.) 155, the building was represented as used for manufacturing lead pipe only. Reels, for winding pipe on, were also made in the building; held, no misrepresentation. In Suckley v. Delafield, 2 Caines (N. Y.) 222, it was represented that the ship would sail with ballast, she sailed with one trunk and ten barrels of gunpowder; held, a substantial compliance. In Alexander v. Campbell, 27 L. T. (N. S.) 462, the vessel was represented as having been new metaled, in fact new metal had only been put on where needed; held, the representation was met. In Ins. Co. of N. America v. McDowell, 50 Ill. 120, the assured represented that no open lights were used in the mill, in fact an open kerosene lamp was used in the counting-room; held, no misrepresentation. In Lee v. Howard Ins. Co., 11 Cush. (Mass.) 324, the value of the goods was represented as being between $2,000 and $3,000. When the application was made there was not $2,000 worth of goods on hand; held, that the policy was not thereby avoided, if the assured in good faith intended and expected to keep that amount during the life of the policy. In Irvin v. Sea Ins. Co., 22 Wend. (N. Y.) 380, it was represented "no spirits allowed on board." There were two kegs of four or five gallons each on board, but they were not on board for use, nor were they tapped during the voyage; held, not a misrepresentation. See also, Wynne v. Liv., Lon. & Globe Ins. Co., 71 N. C. 121; Dennison v. Thomaston, etc., Ins. Co., 20 Me. 125; Allen v. Charlestown Ins. Co., 5 Gray (Mass.) 384.

'See also, Daniels v. Hudson River Ins. Co., 12 Cush. (Mass.) 416; Clason v. Smith, ante; Chase v. Washington Mut. Ins. Co., 12 Barb. (N. Y.) 695; Williams v. N. E. Mut. F. Ins. Co., ante.

2 Dennison v. Mut. Ins. Co., 20 Me. 125.

Howard F. & M. Ins. Co. v. Cornick, 24 Ill. 455.

Michael v. Mut. Ins. Co., 10 La. An. 737; Home Mut. F. Ins. Co. v. Garfield. 60 Ill. 124; Ayres v. Hartford F. Ins. Co., 17 Iowa, 176; Pitney v. Glen's Falls Ins. Co., 65 N. Y. 6; Viele v. Germania F. Ins. Co., 26 Iowa, 9; Andes Ins. Co. v. Shipman, 77 Ill. 189; Reaper City Ins. Co. v. Jones, 62 id. 458; McBride v. Republic Ins. Co., 30 Wis. 562.

Rockford Ins. Co. v. Nelson, 75 Ill. 548.

6 Wainwright v. Bland, 1 M. & W. 32.

Burritt v. Saratoga, etc., Ins. Co., 5 Hill (N. Y.) 188; Cumberland Valley, etc., Protection Co. v. Schell, 27 Penn. St. 31.

of the language of the whole instrument, and the facts attending the risk, his answer is true, or relates to a material matter, is a question for the jury.' It is not necessary that the jury should find that the assured made the representation with a fraudulent intent; for if it does not relate to a material matter, it does not defeat the policy, however fraudulent may have been the intent or purpose of the assured." The question is, whether it related to a matter so material that if it had not been made on the one hand, or if made on the other, the insurer would have been influenced to reject the risk or materially modify his contract. If the representation is material to the risk, although the result of accident or mistake, it avoids the policy.*

The insurer takes the burden of establishing both the falsity of the statements and their materiality,' and this must be done by full proof, as the law will not presume fraud, but the reverse, and will not set aside a contract upon that ground, unless the fraud and materiality of the statement are fully established."

Representations affecting the risk. Tests of materiality.

SEC. 178. Any representation of the assured, in reference to the property, that is material to the risk, and influences the insurer either in taking or rejecting it, and affects the rate of premium at which the risk is assumed, if relied upon by the insurer, and is untrue, avoids the policy,'

1Cumberland, etc., Protection Co. v. Schell, ante; Crocker v. People's Ins. Co., 8 Cush. (Mass.) 79; Parker v. Bridgeport Ins. Co., 10 Gray (Mass.) 302; Bellatty v. Thomaston Ins. Co., 61 Me. 414; Curtis v. Home Ins. Co., 1 Biss. (U. S.) 485. Continental Ins. Co. v. Kasey, 25 Gratt. (Va.) 268.

Hollowman v. Life Ins. Co., 1 Woods (U. S. C. C.) 674; Columbian Ins. Co. v. Lawrence, 2 Pet. (U. S.) 25; Quin v. National Ass. Co., 1 J. & C. (Irish) 316. In Columbian Ins. Co. v. Lawrence, 10 Pet. (U. S.) 507, STORY, J., says, in reference to the effect of a misdescription of the risk, that if the misdescription were material to the risk, and would increase it, but yet would not reduce the premium, it would not avoid the policy." Thus holding that the test of materiality is the effect which the misrepresentation had in inducing the taking of the risk at a higher or lower rate of premium. This, however, while one of the tests, is not now regarded as the only one. See Battles v. York, etc., Ins. Co., ante; Hollowman v. Life Ins. Co., ante; Battles v. York Co., etc., Ins. Co., 41 Me. 208; Swift v. Mut. Life Ins. Co., 2 T. & C. (N. Y.) 302.

'Carpenter v. American Ins. Co., 1 Story (U. S.) 57. 'Cushman v. U. S. Life Ins. Co., 4 Hun (N. Y.) 783.

Pine v. Vanuxem, 3 Yeates (Penn.) 30.

The distinction between a representation and a warranty in an application for an insurance is, that in the one case the underwriter's action is induced or affected thereby, while a representation may or may not be fatal if false, in proportion as it is material or immaterial to the risk undertaken, Commonwealth Ins. Co. v. Monninger, 18 Ind. 352, and a warranty will be strictly construed. Grant v. Lex. Ins. Co., 5 Ind. 23; Pawson v. Watson, Cowp. 601-784; De Hahn v. Hartley, 1 T. R. 343. Where the survey is in terms made a part of the policy, the statements therein are regarded as warranty. Cox v. Etna Ins. Co., 29 Ind. 586.; Columbian Ins. Co. v. Lawrence, 2 Pet. (U. S.) 25; Sheldon v. Hartford Ins.