MUTUAL v. this being a matter unquestionably within the scope of 1878 his agency. Who but the company is to be responsible HASTINGS for his not making a more accurate examination and survey in the first instance, or for his not making the SURANCE CO. resurvey and measurements as he promised, or for not SHANNON. correcting the description and diagram before transmission to the company, as the assured desired and he agreed to do, and as it was his duty to the company to do, or for not furnishing the company with the information the assured gave him as to the inaccuracy of his description and diagram, and which, being connected with what was clearly within the scope of his agency, must have the same effect as if communicated directly to the company, the knowledge of the agent in such a case being the knowledge of the company, or, in other words, in such a case notice to the agent being notice to the principal; or for transmitting contrary to the evident wish of the assured an incorrect description and diagram, he being for the purpose of transmission the agent of the company, but who, on the contrary, transmitted the documents with his certificate or written assertion that he had personally examined, that is surveyed the premises, and that there were not any other circumstances connected with danger of fire. Surely under such circumstances the Plaintiff had a right to rely on Defendants' agent's assertion that he would transmit a correct description, and I think the survey and diagram must be considered the survey and diagram furnished by the agent of the company, and made part of the application by him, and for which the company, through him, are responsible; and so establishing their agent's description, diagram and assertion as the basis of the contract, which they cannot now dispute, it operating to estop the Defendants from disputing its correctness; for if the Defendants are responsible for the surveys of their agent, and for the information of the agent in 1878 MUTUAL respect thereof as being the information of the company, HASTINGS it would be a gross fraud in Defendants to receive FIRE IN through their agent a premium with the intention of SURANCE CO. avoiding the insurance in case of loss, and retaining SHANNON, the premiums in case no loss should occur. v. So long ago as 1815 Lord Eldon, in the House of Lords, recognized that while it is a first principle of the law of insurance that, in the case of a warranty, the thing must be exactly as it is represented to be, it would be an effectual answer, even in the case of a warranty, that the insured were misled by the insurers or their agents; Newcastle Fire Ins. Co. v. Macmoran (1); and, in Hartford Protection Ins. Co. v. Harmer (2), Ramsay, J., referring to this case, says Stephens, in his Nisi Prius, (3) says:- Upon the authority of Newcastle Insurance Company v. Macmoran (4), it seems that, even in case of warranty, it would be a good answer that the mistake or misrepresentation was to be attributed solely to the insurers themselves or their agent; and finally, the Supreme Court of Pennsylvania, in the case of Bruner v. Howard Fire Insurance Company-determined during the present year, and not yet reported—has decided that parol evidence is admissible to show that the description of property insured, annexed to a policy, though signed by the insured, was drawn up by the agents of the insurer; that they knew all about the property from verbal description by the insured and from actual survey, and that, therefore, omissions and errors therein were those of such agents, and not of the insured, notwithstanding a provision in the policy that the description should be taken as part thereof, and as a warranty on the part of the insured. 2 Am. Law Reg. 510. In the case of Peoria Marine and Fire Ins. Co. v. Hall (5), it is stated: But the counsel for the Plaintiff in error insists that the printed conditions were notice to the assured of the agent's want of authority to assent to the keeping of gunpowder, &c., and that this assent could be given only by the company itself. This, at first view, would (1) 3 Dow. 255. (3) Vol. 3, p. 2,081. 1878 HASTINGS v. seem plausible, and might be sound but for another principle which lies back of it and defeats its application. The principle to which we allude is, that notice to the agent is notice to his principal. The MUTUAL company must be regarded as knowing what he knew. If he knew FIRE INthat powder was kept at the time of the insurance, or to be kept SURANCE Co. during its continuance, the company mnst be regarded as having SHANNON. known it also. They had power to waive the condition; and by taking the premium and issuing the policy with such notice or knowledge, they must be regarded as having waived the condition which prohibited its keeping. It would be a gross fraud in the company to receive the premium for issuing a policy on which they did not intend to be liable, and which they intended to treat as void in case of loss. And In re Universal Non Tariff Fire Ins. Co. (1) the same principle is put forward; the marginal note is: A fire insurance was effected in respect of certain property through an agent named Donald, who inspected the premises. One condition of the policy was, that any material mis-description of the property would render the policy void. The buildings were described as built of brick and slated, but it turned out that one of the buildings was not roofed with slate, but with tarred felt. The company alleged that Donald was not their agent, but the agent of the insured and that the mis-descripfion rendered the policy void. Held, That the mis-description was immaterial, and not sufficient to vitiate the policy; but that, if material, it was made by Donald as the agent of the insurance company, and the insured were not responsible for it. As in Wing v. Harvey, (2), it was held that the company having held out L. & S. to the world as their agents for the purpose of receiving the premiums, it became the duty of L. & S., and not that of the Plaintiff, to communicate to the head office at Norwich the circumstances under which those premiums had been paid to and received by them, and the representations which were made on the occasions of such payments and receipts. So here, the Plaintiff having held out to the world Morris as their agent to obtain insurances, trans (1) L. R. 19 Eq. 485. (2) 5 DeG. McN. & G. 271. 1878 mit applications, receive premiums, and make personal HASTINGS surveys, it became the duty of Morris, and not of PlainMUTUAL tiff, to communicate to the company all the circumstances SURANCE CO. connected with the description and diagram and the v. transmission of the application. FIRE IN SHANNON. I by no means wish to be understood as intimating that if this application had been signed by Plaintiff, and placed in the agent's hands as containing a correct description, simply to be transmitted as Plaintiff's act, independent of any personal survey or examination made by the agent, or description thereof furnished by him, that, in such a case, knowledge by the agent that it was not correct would be evidence of a waiver by Defendants of the condition that a misrepresentation in the application should avoid the policy, because, in such a case, the agent would be acting simply as the transmitter of that for which the assured alone was responsible, though it is not necessary to discuss or determine this point. There were two or three minor points suggested, but scarcely relied on, viz.: As to the notice of additional assurance; and as to the preliminary proof. We think there is nothing in either of these objections that was not disposed of by the finding of the Jury; and, as to the objection that the certificate of the magistrate most contiguous was not furnished, we agree with the Court below that this was an unreasonable condition. STRONG, TASCHEREAU, FOURNIER and HENRY, J. J., concurred. Appeal dismissed with costs. Solicitor for Appellants: George D. Dickson. Solicitors for Respondent: Dalton McCarthy & H. H. Strathy. ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO. Insurance--Misstatement as to incumbrances-Indivisibility of policy-36 sec., c. 44, 36 Vict., Ont. The Appellants issued to the Respondents, in consideration of $195, a policy of insurance to the amount of $3,000 as follows, viz. : $1,000 on their building, and $2,000 on the stock. In the Respondent's application, which had been signed in blank and delivered to the person through whose instrumentality the policy was effected, it was stated that there were no incumbrances on the property, although there were several mortgages. It was also proved that after the issuing of the policy the Respondents effected a further incumbrance on the land, but did not notify Defendants. The policy was made subject to 36 Vic., c. 44, 0., The proviso (since repealed by 39 Vic., c. 7,) to sec. 36, declared, "That the concealment of any incumbrances on the insured property, or on the land on which it may be situate shall render the policy void, and no claim for loss shall be recoverable thereunder, unless the Board of Directors shall see fit in their discretion to waive the defect." One of the conditions of the policy provided that the policy should be made void by the omission to make known any fact material to the risk. On an action upon the policy, the Court of Common Pleas (1) refused to set aside the verdict in favor of the Appellants, but on appeal to the Court of Error and Appeal for Ontario (2), it was held that the policy was divisible and that Respondents were entitled to recover the insurance on the stock. (1) 26 U. C. C. P. 465. (2) 1 Ont. App. Rep. 545. *PRESENT_Sir William Buell Richards, Knt., C. J., and Ritchie, Strong, Taschereau, Fournier and Henry, J. J. |