\i.-n ^Mm HAY 12 1904 Cornell University Library KF 1196.A59L77 1868 Digest of fire insurance decisions in tfi 3 1924 019 294 887 (Joriipll IGam ^rljonl IGibrarg The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019294887 DIGEST FiEE Insurance Decisions OOUETS OF GREAT BEITAIN AND NORTH 2ODEEIOA. E A. LITTLETON AND J. S. BLATCHLEY. SECOND EDITION, RKVISKD A.NT» Ei N r. A. R Q- E D . BY STEPHEN G. CLAEKE, OOUNSELLOK AT LAW. NEW TOEK: BAKER, VOORHIS & CO., PUBLISHERS, 66 NASSAXT STREET. 1868.- Entered according to Act of Congress, in the year 186S!, Dy Hensy A. Littuitoh and Jokl 9. Blitoh- LBT, In the Olerk's OfQce in tlie District Conrt for the Northern District of Iowa. ' Entered according to Act of Congress, in the year 1868, by Baker, Voorhib Sc Co., in the Olerlc's Office of the District Court of the United States for the Southern District of New York. '.:<■• %--4. LAW LUiH^,^ BAEBR ft &ODWIN, FRIKTEBS, FRINTIKG-HOUSB SQUARE, N. Y. PREFACE TO THE FIRST EDITION. The present work is designed to embrace a digest of all the decisions on the subject of insurance against fire, pronounced in the Courts of Great Britain and North America, from the earliest times down to the latest reports. "We have examined 2,576 volumes, and have attempted to give abstracts of 930 cases, which are embodied in 1,525 sections ; and we have read every case cited. The vol- umes examined, are indicated in the table of reports, and the cases examined, in the table of cases. We have at- tempted to make the digest complete only so far as regards fire insurance. That still more bulky division of the law which embraces Marine and Life Insurance, we have not attempted to do anything with, though a few cases, which properly belong to that division, have crept into this work. We have appended to each section the date of the decis- ion, which may be found useful in studying the conflicts and fluctuations of judicial opinion on some branches of the law ; and we attempted to arrange the sections under the several headings in chronological order, but, on account of practical difficulties in the preparation of the work, have not been able in every instance to adhere to that arrangement. We are acquainted with no other work the design of which is to give the entire body of judicial decisions on this branch of the law, and we have had nothing by which to test the completeness of our lists. In examining for PREFACE. cases we have been compelled to rely on the indices and tables of cases in the reports, and these we haye not found to be entirely reliable, as indicating all the cases on insurance which they contain. Erom this cause, as well as because of mistakes and oversights which may have been committed by ourselves, cases which ought to be embraced may have been overlooked. We have, how- ever, used all the means in our power for discovering the cases, and believe that few will be found to have eluded our search. We shall be happy to be advised of any omissions or mistakes which may be discovered. In the preparation of both the body of the work and the index, we have kept constantly in mind the wants and habits of thought of agents, officers of insurance companies and others, practically engaged in the business of insurance, as well as of the legal profession ; and the work has not been entirely arranged as it would have been, had we designed it for the latter class alone. Probably no one will become more thoroughly aware of the imperfections of the work than ourselves. Such as it is, however, we subniit it to the public, in the hope that the long and wearisome labor it has cost us, may be saved in some corresponding degree to those who shall use it. Our thanks are due to many reporters and publishers for permission to use their head notes, and also to John L. Harvey, of the Dubuque Bar, for assistance in the preparation of the work, DuBXTquB, 1863. LAW LlJatUtu PREFACE TO THE SECOND EDITION. Iw preparing this edition of a book so favorably known, I have in no respect ventured to change the plan of the original work. My aim has been to make it as complete as possible to the present time; and to this end I have carefully exaiillined every volume of reports pub- lished in this country or Grreat Britain since the former edition appeared, and also a few volumes of prior date accidentally omitted from that edition. The present vol- ume contains an abstract of 1,246 cases embodied in 2,216 sections, being an increase of 316 cases and 691 sections over the former edition. As the value of a work like the present depends greatly upon the readiness with which a case in point may be found, I have taken great pains to make the index and the cross references at the end of each title both full and accurate. The growing importance of the interests protected by insurances against fire, and the necessity of a collection of the adjudged cases upon that branch of the law, is well illustrated by the increase of matter in the present edi- tion. If it shall be found of use in lightening the labors of those who may be called upon to consider the many and perplexing questions arising upon contrstcts of insur- ance, I shall feel that my labor will not have been with- out reward. STEPHEN G. CLARKE. New York, Sept. 1868. TABLE OF CASES. Abbott V. Hampden Ins. Co., 66. Abbott V. Hampden Mnt. Fire Ins. Ca, 326. Abbott V. Shawmut Fire Ins. Co., 690. Adams v. SockiDgham Mnt. Ins, Ca, 66. Addison v. Lonisville and Kentucky Ins. Co., 288, 326. ■Mtati Ins. Co. V. Crrabs, 664, 93. .£tna Ins. Co. v. Jackson, 63, 209, 327. .£tBa Ins. Co. v. Miers, 166, 327. JEba& Ins. Co. r. Tyler, 63, 152, 386, 664. Mbui Ins. Co. V. Harvey, 289. jfitna Ins. Co. v. Pbelps, 4'70. Alchome v. Saville, 461. Aldermen ». West of Scotland Ins. Co., 150. Allen V. Mnt Kre Ins. Co., 312, 678. Allen V. Charlestown Mnt Fire Ins. Co., 230, 681. Allen V. Vermont Mut Fire Ins. Co., 211. Allen t>. Hudson River Mnt Ins. Co., 241, 269,440,630. Allen ». Franklin Fire Ins. Co., 326. Allen V. Pacific Ins. Co., 633. Allen V. Winne, 496. Alliance Mnt Ins. Co. t>. Swift, 146, 488. Alliance Marine Ins. Co. v. Louisiana State Ins. Co., 340, 564. Alston V. Mechanics' Mnt Ins. Co., 432. American Ins. Co. v. Schmidt, 498, 666. Ames V. New York Union Lis. Co., 244, 403. Ames I). New Tork Union Ins. Co., 369. Amesbnry ii. Bowditch Mntoal Ins. Ca, 142, 368, 359. Andree i>. Fletcher, 521, 636. Andrews v. Ellison, 461. Andrew v. Union Mat Ins. Co., 364. Angelrodt v. Delaware Ins. Co., 193, 419. Appleby «. Fireman's Fand Ins. Co., 320, 629. Appleton Mutual lire Ins. Ca « Jeaser, 112. I Aimitage «. Winterbottom, 348, ' Ashland Mut Fire Ins. Co. v. Honsinger 699. Aspinwall v. Meyer, 601, Associated Firemen's Ins. Co. v. Assam, 266. Atkinson v. Mutual Ass. Society, 362. Atlantic Fire Ins. Co. «. Goodall, 149, 406, 491. Atlantic Mnt Fire Ins. Co. «. Saunders, 109, 272, 462. Atlantic Mutual Fire Ins. Co. v. Tonng, 462, 464, 493. Atlantic Mutual Fire Ins. Co. ti. Gk>odall, 272, 292, 400. AUantic Mutual Fire Ins. Co. v. Conklin, 287. Atiantic Mntual Fire Ins. Co. ». Fitipat- rick, 104. Atwood V. Union Mut Fire Ins. Ca, 396. Audubon ». Excelsior Ins. Co., 276, 428. Augusta Mntual Fire Ins. Co. v. F^nch, 106. Austin V. Drewe, 640. Ayres n. Hartford Fire Ins. Co., 49, 74, 76, 96, 803, 883, 648. Ayves v. Home Ins. Co., 50, 77) 489. B Babcock v. Montgomery Co. Mut Ins Co.. 364, 602. Bailey v. Gonld, 34. Baker i>. Biddle, 252. Baker v. Cotter, 43, 600. Baltimore Fire Ins. Co. v. McGowan, 68. Baltimore Fire Ins. Co. «. Loney, 143, 172, 192, 420, 640. Bangs V. Bailey, 496, Bangs V. Dackenfield, 110. Bangs V. Mcintosh, 108, 492. Bangs V. SUdmore, 216, 216, 368. Bangs V. Gray, 106. Baptist Church v. Brooklyn Fire Ins. Co., 87, 187, 276, 444, 448, 627. TABLE OF CASES. Baptist Society v. HiUeboroiigh Ins. Co., 392. Barnes v. Mntual Fire Ins. Co., 680. Barnes v. Union Mut. Fire Ins. Co., 73, 113, 257, 383. Barre Boot Co. v. Milford Mnt. Fire Ins. Co., 96. Barrett v. Jenny, 311. Barrett v. Union Mut. Fire Ins. Co., 394, 676. Bartlett «. Union Mnt. Fire Ins. Co., 381, 636. Bataille v. Merchants' Ins. Co., 390, 474. Battles V. York Co. Mut. Fire Ins. Co., 87, 243. Baxendale a. Harvey, 222. Baxter v. Chelsea Mut. Fire Ins. Co., 44. Baxter v. Massasoit Ins. Co., 429. Bay State Mut Fire Ins. Co. v. Sawyer, 103. Bayles v. Hillsborough Ins. Co., 168. Bayles v. Insurance Co., 127. Bayley v. Onondaga Co. Mnt. Ins. Co., 132. Beadle v. Chenango Co. Mut. Ins. Co., 101. Beach v. Bowery Fire Ins. Co., 680. Beal V. Park Ins. Co., 48, 46, 260. Beals V. Home Ins. Co., 441, 513, 614. Beatty v. Lycoming County Ins. Co., 508. Beebe v. Hartford Mnt. Ins. Co., 39, 164. Beemer v. Anchor Ins. Co., 676. Bell V. Teates, 603. Bell V. McElwain, 602. Bell V. Shibley, 494. Belleville Mut. Ins. Co. «.Van Winkle, 426. Benjamin v. Saratoga Co. Mut. Ins. Co., 407, 425, 666. Benedict v. Ocean Ins. Co., 418, 686, 253, 223, 225. Bentley v. Columbia Ins. Co., 42, 43. Berkshire Mutual Fire Ins. Co. v. Sturaris, 516. ^ Berry v. Yates, 554. Berry v. Brett, 561. Bersche v. Globe Mut. Ins. Co., 640. Bibend v. Liverpool & London Fire & Life Ins. Co., 131. Bigler v. New York Central Ins. Co., 412, 663. BUbrough v. Metropolis Ins. Co., 154, 650. Billings V. Tolland Co. Mut. Fire Ina Co., 610. Birmingham v. Empire Ins. C6., 276, 592. Bissell V. Boyal Exchange Assurance Co., 508. Blake v. Exchange Mnt. Ins. Co., 92, 192, 417, 481, 668. Blakely v. Phoenix Ins. Co., 485. Blanchard v. Atlantic Ins. Co., 404, 538. Blanchard v. Atlantic Mat. Fire Ins. Co., 376, 478, 675. Blood V. Howard Fire Ins. Co., 613. Boardman v. New Hampshire Mnt. Fire Ins. Co , 609. Boardman v. Merrimack Mut. Fire Ins. Co., 611. Boatwright v. jEtna Ins. Co., 311. Bodle V. Chenango Co. Mnt. Ins. Co., 637, 672. Boggs V. American Ins. Co., 166, 436. Bonner v. Home Ins. Co., 468. BoeheuB.WilliamsburghCity Ins. Co.,448. Borden v. Hingham Mut. Ins. Co., 200. Boston & Salem Ice Co. v. Royal Ins. Co., 211. Bouton V. American Mut. Life Ins. Co., 445. Boyle V. Franklin Ins. Co., 295. Boyle V. North Carolina Mnt. Ins. Co., 478. Boynton v. Clinton 2 Crawford § 8. The insured executed his premium note payable in such portions and at such times as the directors might, agreeably to their act of incorporation, require. At the great fire in Pittsburgh the company sustained losses, ex- ceeding in amount the premium notes and other resources 102 ASSESSMENTS. of the company, together with the additional sum of one dollar on every one hundred dollars insured, which the company was authorized to assess. Held^ that the com- pany was bound to call in the whole amount of the pre- mium notes and of the one per cent, additional at once, and to distribute the same pro rata among the losers. Ehinehart v. Alleghany County Mut, Ins. Co., 1 Penn. St. 359. 1845. § 9. In a suit upon a premium note, given to a mu- tual company, to recover an assessment thereon, to pay a loss by fire ; Held^ that the maker, after aiding to put the corporation into action, and partaking of its benefits, could not now deny its legal existence, in order to escape from liability on his premium note. Trumbull County Mut. Fire Ins. Co. v. Horner, 17 Ohio, 407. 1848. § 10. Assessments need not be made on the premium not^s of a mutual company at every loss, but should be made upon a rule approximating to it as near as is prac- ticable and reasonable. New England Mut. Ins. Co. v. Belknap, 9 Cush. Mass. 140. 1851. § 11. By the provisions of the plaintiff's charter it was declared that every member of the company shall be bound to pay for losses, &c., " in proportion to the amount of his deposit note," and the 10th section provided that the directors, having ascertained the loss, " shall settle and determine the sums to be paid by the several members of the company, as their respective proportions of such loss, and that the sum to be paid by each member shall always be in proportion to the original amount of his deposit note or notes." Hdd^ that the directors having ascertained that the company is liable for a loss, and that the company have not sufficient funds to pay such loss, are first to ascertain who were members of the company at the time the loss occurred, and having ascertained this, their assess- ment is to be made upon each, in the proportion which the amount of his deposit note bears to the aggregate ASSESSMENT^. 103 amount of all the deposit notes. The directors have no right to take into consideration the length of time any person has been a member, in determining the amount of his assessment, or whether he shall be assessed at all. If the directors have " omitted to assess the deposit notes of divers persons, then being members and liable for their proportion of the losses," thus increasing the amount of the defendants' assessment, or if they have included in the assessment the amount of previous assessments, from the payment of which the parties assessed have been released, the assessment is invalid. Herkimer County Mut. Ins. Co. V. Fuller, 14 Barb. N. Y. 373. 1852. § 12. In an action to recover an assessment on pre- mium note, given to a company that had divided all its risks and notes into two classes, contrary to the general insurance law of 1849, in N. Y. ; Held, that assured had a right to claim that all the premium notes held by the company should be assessed, before an assessment on his note could be recovered ; as he was not limited to that class of risks in which his policy had been placed. Thomas v. AchiUes, 16 Barb. N. Y. 491. 1853. § 13. The by-laws provided for a regular monthly meeting of the president and directors of the company. Article 22 of the By-laws was as follows : " To avoid the necessity of making an assessment in case of trifling losses, a majority of the directors are authorized to bor- row such sum or sums of money as may be necessary. And in case an assessment be needed for any purpose, the directors shall have power to order such assessment, at any meeting called for the purpose." An assessment was levied at the regular monthly meeting, which was resist- ed because no notice was given of the purpose to levy assessments at that meeting. Held, that it was part of the ordinary business of the regular monthly meetings to order assessments when required, and that no notice was necessary. Bay State Mut. Fire Ins. Co. v. Sawyer, 12 Cush. Mass. 64. 1853. 104 'ASSESSMENTS. § 14. Assessments may be made, after expiration of policy, for losses happening while the insurance con- tinued, and insured is not entitled to his premium note, untU all the losses for which he was liable have been sat- isfied. St. Louis Mut. Fire & Marine Ins. Co. v. Boeck- ler, 19 Mo. 135. 1853. § 15. In an action on a premium note, to recover an assessment; Held, that in order to maintain the action, the plaintiffs were bound to show that legal assessments had been made by the directors, and for this purpose, to produce proper evidence of their act of incorporation and by-laws, so that it might appear that their provisions had been substantially complied with, in making the assess- ments. It was not enough to show actual assessments, leaving the defendant to prove that they were not in ac- cordance with the act of incorporation and by-laws. At- lantic Mut. Fire Ins. Co. v. Fitzpatrick, 2 Gray, Mass. 279. 1854. § 16. It is not essential that a loss by fire shall have happened before an assessment upon premium notes coidd be lawfully made. Kelly v. Troy Fire Ins. Co. 3 Wis. 254. 1854. § 17. Where a mutual insurance company was au- thorized by an amendment to its charter to issue policies "for cash premiums," at the election of the applicant, which were to be taken in lieu of a deposit note, and the fund arising therefrom, together with the deposit notes, were declared to be the capital of the company for the pajrment of losses and expenses ; Held, 1st, that the fund arising from cash premiums was subject to the same application as " premium notes," and could not be diverted to the payment of losses accruing before such premiums were received; and, 2d, that an assessment for the whole amount of losses accruing during the time such funds were received, made upon the deposit notes, with- out first exhausting the cash funds as provided by law. ASSESSMENTS. 105 was illegal and void. Ohio Mut. Ins. Co. v. Marietta Woolen Factory, 3 OMo St. 348. 1854. § 18. Three companies, under a statute, united to form a fourth consolidated company, and the latter brought suit for assessments on a policy issued by one of the original companies. Held^ that the action could not be maintained, without showing that the insured, by his vote in favor of consolidation, or by some fact stronger than mere silence, assented • to the change. Hamilton Mut. Ins. Co. v.-Hobart, 2 Gray, Mass. 543. 1854. § 19. A statute, amending the charter of a mutual insurance company, provided for a division of the risks, thereafter taken, into classes, when the property insured should amount to $50,000, in each class, and then each class should bear its own losses. Held, that an assess- ment, based on a classification assigning less than $50,000 to each class, was invalid. Augusta Mut. Fire Ins. Co. V. French, 39 Me. 522. 1855. § 20. Members of mutual companies, under the 11th section of the act of 1849, in N. Y., can only be made to pay in proportion to the original amount of their deposit note or notes, and can be made to pay no more, in the hands of a receiver, than could have been collected by the directors; nor can the liability of the members be increased by the insolvency of the company. Assess- ments must be made separately upon all premium notes in force at time of happening of each successive loss, un- less two or more losses occur about the same time, when one assessment wUl answer for both. Nor can the re- ceiver change this rule because the cash premiums paid the company have been expended in paying losses, and thereby lightened assessments on prior notes and left sub- sequent losses under the receiver to be paid wholly by assessments on notes then in force. Nor can any dis- crimination be made because some of the notes were ex- 106 ASSESSMENTS. ecuted for higher rates of premium than were charged by the company afterwards. Shaughnessy v. Rensselaer Ins. Co. 21 Barb. N. Y. 605. 1855. § 21. The Rochester Insurance Company made an assignment of all its assets, consisting only of premium notes ; and the assignee, ascertaining that there was $40,000 to $60,000 losses due, made an assessment, in- cluding in such assessment $4,500 for expenses of assign- ment, $5,266 for costs, interest and expenses„and $4,735 for costs of collection. Held, that the assignee could not levy assessments for these expenses, nor for losses. The power of levying assessments can be exercised only by the corporation .or by a receiver; it cannot be transferred to an assignee, Hurlburt v. Carter, 21 Barb. N. Y. 221. 1855. § 22. An assignee of policy is liable on his promise to pay all future assessments on the policy, though the original deposit note had been surrendered to surety of the original insured, upon payment of assessments -then due upon it, for losses occurring prior to assignee's member- ship in the company. New Hampshire Mut. Ins. Co. v. Hunt, 10 Fost. N. H. 219. 1855. § 23. Assessments are not invalidated by delay, not unreasonable, in making them; nor by small errors, if made in good faith ; nor by variance, at different times, between cash premiums and deposit notes, as against members suffering no damage thereby. Whether there was sufficient data for making a correct assessment, is a question for the jury upon the whole evidence. Marble- head Mut. Ins. Co. V. Underwood, 3 Gray, Mass. 210. 1855. •^' § 24. Each note is to be assessed in the proportion which it bears to aggregate of notes subject to assessment and collectable. Bangs v. Gray, 2 Kernan, N. Y. 4^. 1856. Reversing 15 Barbour, N. Y. 264. 1853. ASSESSMENTS. 107 § 25. Assessments are vitiated by intentional omission of some members, liable to assessment. Marblehead Mut. Fire Ins. Co. v. Hayward, 3 Gray, Mass. 208. 1855. § 26. Personal service is sufficient publication of no- tice of assessments. Jones v. Sisson, 6 Gray, Mass. 288. 1856. § 2*7. Assessments, covering interest on borrowed money, probable failures in collection, and 10 per cent, for expenses, are valid. So a reasonable reduction may be provided for, in case «f prompt payment to the treasurer. Jones V. Sisson, 6 Gray, Mass. 288. 1856.- § 28. In an action for assessments against two mem- bers of a mutual company, for losses occurring before one of tbem became a member ; Held^ that the assessment was valid as against the one who was a member at the time the loss occurred, but void as to the other, who was not a member at that time. Long Pond Mut. Fire Ins. Co. V. Houghton, 6 Gray, Mass. 77. 1866. § 29. Where a portion of the members of a mutual insurance company, denominated " first class policy hold- ers," were intentionally omitted in making an assessment, and the assessment was laid only on those having policies coming within the designation of " second class," and where the plaintiffs did not show that they were legally entitled thus to divide their policies into classes ; Heldy that the whole assessment was thereby invalidated. People'-s Equitable Mut. Fire Ins. Co. v. Arthur, 7 Gray, Mass. 267. 1856. § 30. The act of incorporation of the Genessee Mu- tual Insurance Company required the directors to settle and determine " the sums to be paid by the several mem- bers thereof, as their respective proportions of any loss, and to publish the same in such manner as they shall see 108 ASSESSMENTS. fit, or as by their by-laws shall have been prescribed." Hdd^ that the assessment was not complete and consum- mated till it was ascertained, fixed and determined by carrying out on the extension book the amount each member was to pay ; and that the notice should state the amount demanded of each member; and that a notice issued before the assessment was consummated, and which only stated the rate per cent., was both premature and defective. Bangs v. Mcintosh, 23 Barb. N. Y. 591. 1851 § 31. In an action upon two premium notes, the com- plaint contained an averment that the company did at vari- ous times make assessments on the notes, and required such payments ; 'Held^ that this was sufficient to show a cause of action in this respect. If the defendants required more particular information, they should have applied to the court, to have the "pleadings amended. Where the act of incorporation vested in the directors of the company the right of deciding what amount or portion of the note shall be paid, and provided for the payment at such times, as the directors shall deem necessary, for the honorable and prompt payment of the losses and expenses of the compa- ny ; lleld^ that it was not necessary to aver in the com- plaint that such losses had been sustained. Held, also, that a resolution levying a per cent, assessment was a nullity. Where a witness proved, from his own knowledge, that the books produced were the books of the company, and contained the entries of the proceedings of the board, made by the secretary in his presence ; Hdd, that the evidence of the assessment on the notes by the directors was suffi- cient, and that it was not necessary that the secretary should be called for this purpose. St. Lawrence Mut Ins Co. V. Paige, 1 Hilton, N. Y. 430. 1857. § 32. A premium note, given to a mutual insurance company, was payable, by its terms, in such portion and at such time or times as the directors of the company ASSESSMENTS. 1U9 should direct. The general insurance law of 1853 in New- York, to which the plaintiff was subject, provided that the directors should, after receiving notice of any loss or dam- age by fire sustained by any member, and ascertaining the same, settle and determine the sums to be paid by the several members, tfec, m altering the building, and provided against any increase of risk, by act of assured ; Held, that the words " insured " and " assured," applied to the party whose interest was originally insured, and not to a lessee under him, nor to a party to whom, in case of loss, the policy was made pay- able. Sandford v. Mechanics' Mutual Fire Ins. Co. 12 Cush. Mass. 541. 1853. § 7. In answer to the question in application, "whether the lamps used in the woolen factory were open or covered ? " the reply was " covered." It appearing that an open lamp was commonly used to light up with ; Held, that the question referred to lamps that were habitu- ally used, and not to the lamp used for lighting up with, and that there was, therefore, no misrepresentation. H ow- ardlns. Co. v. Bruner, 23 Penn. St. 50. 18^4. § 8. A policy issued to M. and assigned to W., as collateral security, provided that, " if the insured shall neglect for the space of ten days, when personally called coNSTRTTcrnojf. 171 VLVon, or after notice in writing, to pay any a^iaessment, the risk of the company on the policy shall be suspended until the same is paid." Held, Ist, that a feilure to eom- pjly with this provision would be a good defense to an ac- tion on the policy ; and 2d, that the notice of assessment was properly given to M. the original insured, unless it appeared that W. the assignee, had given a new deposit note or assumed the liability for the payment of assess- ments, in which case W. and not M. should be notified. Bowditch Mut. Fire Ins. Co. v. Winslow, 3 Gray, Mass. 415. 1855. « § 9. When policy makes survey Mid representations warranties, the court will not extend the effect of any statement therein to the prejudice of the assured. Sayles V. North Western Ins. Co. 2 Curtis, C. C. U. 8. 610. 1856. § 10. In application, in reply to questions as to dis- tance of other buildings, assured answered : " House and wood-house connected. No other buildings within four rods, except the ice-house." It appeared in evidence that in rear of the ice-house was a small building, three and half feet high in rear, and six feet high in front, divided by a gartition of boards, and called a " hog-house " and " hen- ouse." Seld, that they were not buildings within mean- ing of the application, and evidence as to the increase of ri^ from them, was not competent. White v; Mutual Fire Assurance Co. 8 Grray, Mass. 566. 1857. § 11. A policy of insurance, in respect to the rules by which it is to be construed, and the principles by which it is to be governed, does not differ from other written mercantile contracts. It is a contract of indemnity, and the right to that indemnity, vested by the contract, can be taken away only on principles alike applicable to other instruments of that character. Miller v. Western Farm- ers' Mut. Ins. Co, 1 Hand, Ohio, 208. 1854, 172 CONSTRUCTION. § 12. In an application for insurance, whicli provided that questions not answered should be construed most fa- vorably to the risk, the applicant left unanswered a ques- tion whether there was any livery-stable in the vicinity. In an action on the policy of which this application was made part ; Held, that the jury, if there viras a livery- stable in the vicinity at the time of the application, were to determine what was the meaning of the question and of the word " vicinity ; " and whether there was a livery- stable in that vicinity, having reference to' the situation of the building in which the property insured was situated, the situation of other buildings, and the locality, as ascer- tained from the contract and evidence. Haley v. Dorches- ter Mut. Fire Ins. Co. 12 Gray, Mass. 545. 1859. § 13. An endorsement on a policy of receipt of an additional premium for " carpenter's risk " in extending a store-room adjacent to the building in which the property insured was situated, cannot be construed into any en- gagement to insure goods in the extended store-room, although a portion of the building originally insured was removed, and its place occupied by the extended store- room. Lycoming County Ins. Co. v. Updegraff, 40 Penn, St. 311. 1861. § 14. The law of the relation between insurers and the assured is the policy of insiu-ance, with all its clauses, conditions, and stipulations, by which their mutual rights and liabilities are defined and measured. West Branch Ins. Co. V. Helfenstein, 40 Penn. St. 289. 1861. § 15. Where a policy is entirely consistent with the tei-ms of the application, free from ambiguity, and suscep- tible of a consistent construction in all its parts, although there be a mistake in the insurance effected not attributa- ble to the insurer, the Court will not look beyond the terms of the policy in ascertaining its meaning and legal effect. Baltimore Fire Ins. Co, v. Loney, 20 Md. 20. 1862. CONSTRUCTION. 173 § 16. For a proper understanding of the rights and obligations of the parties to an insurance effected by a mutual insurance company, the charter of the company, a policy issued by it, and the conditions annexed thereto, must be read together. Hyatt v. "Wait, 37 Barb. N. Y. 29. 1862. § 17. A vote by the directors of an insurance com- pany, indefinitely to postpone the subject of a loss, will be construed as a refusal to allow any thing on account of it. Patrick v. Farmers' Ins. Co. 43 N. H. 621. 1862. § 18. A clause in a policy of insurance, that it should " cease at and from the time the property hereby insured shall be levied on or taken into possession or custody, un- der any proceeding at law or equity," is to be construed as meaning an actual levy and change of possession under it. A mere notice of levy by the officer charged therewith to the defendants at their store, without his taking the goods insured into possession or custody, though good as a levy, will not defeat the policy. Commonwedth Ins. Co. V. Berger, 42 Penn. St. 285. 1862. § 19. Ambiguous words in a policy of insurance may be construed by extrinsic evidence of accompanying cir- cumstances and the usages of the business in which the property insured was employed. New York Belting & Packing Co. v. Washington Fire Ins. Co. 10 Bosw. N. Y. 428. 1863. § 20. Under the usual provision in a policy of insur- ance, that the conditions annexed are " to be resorted to in order to explain the rights and obligation of the par- ties thereto, in all cases not herein otherwise specially provided for," such conditions do not define the rights and obligations of the parties under any contingency provided for in the body of the policy. Hence, where a clause in the body of the policy provides that the insurance shall 174 CONSTRUCTION. Tbe suspended during any increase of the risk from speci- fied causes, and the conditions annexed provide that the policy shall become void by any increase of the risk, an increase of risk such as is specified in the clause in the body of the policy, does not avoid but merely suspends the policy. Mayor, DEPENDENCY OF POLICT AND PREMIUM NOTE. 211 § 7. A policy of insurance upon goods will not be discharged by an executory contract for the sale of such goods, or by the receipt of a portion of the purchase money therefor, if at the "time of the loss the title to the goods remains in the person insured ; and his right to recover is not limited to the balance of purchase-money remaining due. Boston & Salem Ice Co, v. Royal Ins. Co. 12 AEen, Mass. 381. 1866. See Alienation, § 23, 33. Goods in Trust or on Commission, 2, 8, 10. Insurable Interest, 24. Responsibility of Assignee for acts of As- signor, 8. Written Portion of Policy, 2. DEPENDENCY OF POLICY AND PREMIUM NOTE. § 1. Where a policy in a mutual company is obtained upon the suppression of a fact in the application which was material to the risk, a subsequent reception of an in- stalment on the premium note does not render the policy binding, in 'a case where neither the company nor the agent had notice of the existence of the fact suppressed. iOlen V. Vermont Mut Kre Ins. Co. 12 Vt. 366. 1840. § 2. After an assignment of the policy, which was relied on as having avoided the contract, an assessment was made on premium note, signed by plaintiffs, for losses occurring before the assignment. JSeld, that the collection of these assessments did not revive the policy. Smith V. Saratoga Ins. Co. 3 Hill, N. Y. 508. 1842. § 3. Where policy provided, that upon alienation of the property "insured, the assured might surrender his policy and take up his premium note, upon payment of aU losses then due, &c., and the insured alienated the 212 DEPENDENCY OF POLICY AND PREMIUM NOTE. property, but did not surrender the policy or take up his note, and the company had full knowledge that the policy had become void by alienation of the property, and after- wards collected assessments on account of losses after such alienation ; Held^ that this did not revive the policy, nor operate as a waiver of the right of the company to treat it as void. Neely v. Onondaga County Mut. Ins. Co. 7 Hill, K Y. 49. 1844. § 4. If an insurance company, with a knowledge of breach of warranty in application as regards distance of other buildings, which avoids the policy «J m»«'^w?, make and receive assessments from insured on his premium note, after the fire, and with knowledge of the breach, they will be estopped from setting up the breach of war- ranty in defense to an action on the policy. Frost v. Saratoga Co. Mut. Ins. Co. 5 Denio, N. Y. 154. 1848. § 5. Where policy has been rendered void by a trans- fer of interest, the insured continues personally liable on his premium note, until an actual surrender of the policy to the insurance company. Indiana Mut. Fire Ins. Co. v. Coquillard, 2 Carter, Ind. 645. 1851.' § 6. After forfeiture of policy, by alienation of the property insured, a member is not liable for assessments on his premium note for losses occurring after such aliena- tion. Wilson V. Trumbull Mut. Fire Ins. Co. 19 Penn. St. 3Y2. 1852. § 7. The insured is liable for assessments on his pre- mium note during the whole term of insurance, even though the property had been consumed and full amount of policy paid, unless there is something in the charter or by-laws, or premium note, showing a different contract or discharge. New Hampshire Mut. Fire Ins. Co. v. Rand, 4 Fost. N. H. 428. 1852. Swamscot Machine Co. v. Partridge, 5 Fost. N. H. 369. 1852. DEPENDENCY OF POLICY AND PREMIUM NOTE. 213 § 8. Where policy was avoided by alienation before the fire, and the insurers levied and collected an assess- ment made after the fire ; Held^ not a waiver of the for- feiture. Boynton v. Clinton & Essex Mut. Ins. Co. 16 Barb. N. Y. 254. 1853. § 9. Insurance upon machinery in mill, with condi- tion " that if the mill were operated the policy should be void." The mill burned up on the 26th of April, and on the 1st of April the company levied an assessment of $26, and collected it on the^ 4th of July following. It was proven, on trial, that the condition had been violated by assured by putting the mill in operation after the insur- ance was effected, and the company relied upon it as a matter of defense. Held^ that when policy became void by breach of condition, the note also became void ; and that the company by collecting an assessment on it, with a knowledge of the facts, had waived the forfeiture, and admitted the contract of insurance as still in existence. ViaU V. Grenessee Mut. Ins. Co. 19 Barb. N. Y. 440. 1864. § 10. The plaintiff, after loss, notified the company of the existence of another policy on the property, not before known to them, the existence of which without consent of the company rendered their policy void, upon which the company rejected his claim. Afterwards the company made and collected an assessment on plaintiff's premium note. Held, that such assessment did not waive the forfeiture, and render the company liable to pay the loss. Philbrook v. New England Mut. Fire Ins. Co. 37 Me. 137. 1853. § 11. The receipt of assessments, after the insured property was destroyed by fire, for losses occurring during continuance of the policy, such losses also occurring after the policy had been forfeited by act of the insured, is no waiver of the forfeiture. Gardiner v. Piscataquis Mut. Ins. Co. 38 Me. 439. 1854. 214 DEPENDENCY OF POLICY AND PREMIUM NOTE. § 12. In this case, Held^ ttat with the sale of the property all liability on the premium note ceased and company could not recover on it. The policy and pre- mium note are dependent contracts. Indiana Mut. Fire Ins. Co. v. Conner, 5 Port. Ind. 170. 1854. Over- ruling 2 Carter, Ind. 645. § 13. If insurance company continue to treat policy as valid, by not declaring it void, and continuing to levy and collect assessments on the premium note, even after the loss, after notice of an insurance beyond the amoimt allowed within policy, it is a waiver of their right to re- sist a recovery on that ground. A condition, however, that the loss shall be apportioned between this and other oflBces insuring on same property, pro rata, is not thereby waived. Insurance Co. v. Stockbower, 26 Penn. St. 199. 1856. § 14. Where an administrator, after death of assured, paid assessments on the premium note for losses occurring subsequently to the death of the assured, it was HM^ that by the levying and collection of such assessments the com- pany were estopped from denying the validity of the insur- ance after that event, and that the administrator should be allowed whatever he paid as assessments for losses hap- pening after the death of the intestate, for two reasons : 1st, on the ground that it was his duty to preserve the property while in his care ; and 2d, because the lien upon property insured, given by the charter of the company in which intestate had been insured, " such lien to continue during the existence of the policy and the liability of the assured therein, notwithstanding any transfer or aliena- tion," was a valid lien and an encumbrance which it was the duty of the administrator to remove. Tuttle v. Rob- inson, 33 N. H. 104. 1856. § 15. The charter provided that all persons who should insure with the corporation, should thereby become mem- bers thereof during the -period they should remain so in- DEPENDENCY OF POLICY AND PREMIUM NOTE 215 ;sured, and no longer. Hdd^ that under this charter, a party insuring continued a member of the corporation, and liable to assessments on his premium note, during the term of the policy ; and that this membership and liability did not terminate when a loss occurred and the policy was paid up. Bangs v. Scidmore, 24 Barb. N. Y. 29, ISSY. Affirmed 21 N. Y. 136— see ^05^, § 19. § 16. Where policy had become void by sale of one partner to the other, and the company, in ignorance of that fact, afterwards collected assessments on the premium note of the remaining partner, and at time of loss chose ap- praisers to determine the value of the property lost ; Held, that the company had not thereby waived forfeiture ■of the policy. Finley v. Lycoming County Mut. Ins. Co., 30 Penn. St. 311. 1858. § 17. Where charter provided that in case of alienation ■of the property insured, the assured should surrender his policy, take up his premium note, § 24. A mutual insurance company has no right to assess a premium note for losses occurring after the can- cellation of the policy, or for anticipated losses arising from a supposed failure of others to contribute their pro- portion of losses occurring after such cancellation. York County Mut. Fire Ins. Co. v. Turner, 53 Me. 225. 1865. § 25. Where an insurance company, being sued by the insured, to recover for a loss, defended the action upon the 318 DESCRIPTION OF PROPERTY INSURED. ground that the insured had procured other insurance upon the same property, without giving notice of the same, or having it endorsed upon the policy issued by such com- pany; and the defense was sustained and the defendant recovered a judgment ; Held, that such judgment was in legal effect an express adjudication between the parties that the policy of insurance sued on was void and of no force after the day on which the additional insurance was procured, and was expressly avoided by the election of the company, as from that date ; and that the moment the policy became thus void by the election of the company to avoid it, the note given by the insured, for the pre- mium, also became void for want of consideration, in re- spect to all future risks and losses of the company, and that an assessment to cover losses happening after such date could not be recovered. Tuckerman v. Bigler, 46 Barb. N. Y. 375. 1866. See Assessments, § 35. Other Insurance, 78. Premium .Notes, 3, S, 7, 9, 10, 22, 25. Revival and Suspension of Policy, 2, 5. DESCRIPTION OF PROPERTY INSURED. § 1. Groods insured were described in the policy to be in dwelling house of insured ; the insured had only one room, as a lodger, in which the goods were ; Hdd, cor- rectly described within the condition that " the houses, buildings, or other places where goods are deposited and kept, shall be truly and accurately described," such condi- tion relating to the construction of the house and not to the interest of the parties in it. Friedlander v. London Assurance Co., 1 M. & Rob. 171. 1832. § 2. Policy on certain property in cotton mill. " War- ranted that the above mill is conformable to the first class of cotton and woolen rates delivered herewith." The mill DESCRIPTION OF PROPERTY INSURED. 219 in fact was second class. Hdd^ that tlie warranty was broken, and it made no difference whether the variance was material or otherwise ; there could be no recovery. Newcastle Fire Ins. Co. v. MacMoran, 3 Dow, 255. 1815. § 3. In the policy of insurance it was stated " that the dwelling-house of assured was built of stone and covered with tin, gables through the roof and plafond, iron doors and shutters." The fire, destroying the building, began in an adjoining house, and spread from thence to a wooden building on the premises of assured, from which it was communicated through a doorway of the dwelling-house, which was open, although it had an iron door, to the inte- rior of the last-mentioned edifice ; Held^ that the descrip- tion " iron shutters and doors," whether regarded as representation or warranty, was substantially true, and did not include by implication the duty of keeping them closed ; Hdd^ further, that the fact of their being open in the middle of August, at 8^ P. M., was no proof of negli- gence. Scott V. Quebec Fire Ins. Co., 1 Stuart, Lower Canada, 147. 1821. § 4. Policy on a building described as a barn, which was an agricultural building, not strictly to be described as a barn, but would have been insured at the same rate. Description held substantially correct. Dobson v. Sothe- by, 1 Moody & M. 90. (22 E. C. L. 481.) 1827. § 5. One condition attached to the policy provided that a misdescription of the property insured, so that the same might be taken at a less rate, «fec., should avoid the • policy. The property insured was described as contained in a two-&tory frame house, fiUed in with brick. No. 152 Chatham street." The house No. 152 Chatham street was a frame house not filled in with brick; Held^ that the words of description, " filled in with brick," were a war- ranty, which being untrue, avoided the policy. Fowler V. JEtna Ins. Co. of N. Y. 6 Cow. N. Y. 673. 1827. 220 DESCRIPTION OF PROPERTY INSURED. § 6. Rule annexed to policy stated, that persons de- sirous of making insurance on buildings should state in writing the following particulars, to wit : " Of what ma- terials the walls and roofs each are constructed," &c. " And if any person shall cause the same to be described in the policy otherwise than as they really are, so as the same be charged at a lower premium than would other- wise be demanded, such insurance shall be of no force." Meld, that a misdescription would not avoid the policy, unless a lower rate of premium was charged in conse- quence of it, and whether such misdescription reduced the premium, which would otherwise have been de- manded, was a question of fact which the jury alone could decide. Columbian Ins. Co. v. Lawi-ence, 2 Pet. U. S. 25. 1829. § 7. Policy describing the premises as a house, bounded in rear by a stone building covered with tin, and by a yard, in which yard there was being erected a first- class store, which would communicate with the building insured ; Meld, to be incorrect and therefore null, it being proved that there was between the house and the stone building a brick building covered with shingles commu- nicating to both by doors. Casey v. Goldsmid, 2 Lower Canada E. 200. 1862^but see post, § 9. § 8. Description of building to be insured, was made by an agent of the company, who gave a vmtten descrip- tion of the property to the company, including a kitchen, which applicant intended to biuld, and which was built after issue of the policy and before the fire. K objection be taken by the company that the description of the kit- chen building was erroneous, the insured may show, by verbal testimony, that it was in contemplation at time of making policy, and was therefore included in it, and may recover for the loss of it, and if it appear, by the evidence, that the additional building did not conform to the inten- tion of the assured, as communicated to the agent of the company at time of application, the variation would not DESCRIPTION OF PROPERTY INSURED. 221 of itself avoid the policy. It Stands upon the principles of an alteration, and avoids the policy only in case the risk is thereby increased, which is a question of fact, to be determined by the jury. Perry Ins. Co. v. Stewart, 19 Penn. St. 45. 1852. § 9. The case reported, ante^ § 7, reversed and judg- ment given for the assured, inasmuch as the omission to mention such doors in the description, was not proved to have been a fraudulent concealment, and inasmuch as it was not established that the fire had been occasioned and had extended by means of such apertures. Casey v. Ooldsmid, 4 Lower Canada, Q. B. Appeal Side, 107. 1854. § 10. There is an implied warranty that the descrip- tion of the property insured, contained in the policy, is correct at the date of the policy, and that no alteration should be made afterw^ds so as to increase the risk. In October, 1850, G. S. & Co. sent to agents in London a description of their two-story house in San Francisco, CaJ., to be insured. Policy was executed April 7th, 1851, describing the building as a two-story house. On the 26th of March, 1851, G. S. & Co. commenced putting on a third story, which was completed May 3d, of which the underwriters were not informed ; Held, that the insured could not recover on the policy. Pim v. Eeid, 6 Man. &, Grang. 1, commented on, explained, or overruled. Sillem V. Thornton, 3 Ellis & Bl. 868, (77 E. C. L. 808.) 1854. § 11. The error of an insurance company's agent, in making and transmitting to the head office, a diagram of the buildings insured, by means of which the buildings are described in the policy as " detached " instead of " as connected with other buildings," cannot deprive the as- sured of his remedy on the policy ; and to a plea setting up that the policy was obtained by false and fraudulent misrepresentations, as to the building being "detached" and 222 DESCRIPTION OF PROPERTY INSURED. as to the number of tlie occupants, and that thereby the conditions of the policy were broken, and the plaintiff de- prived of all benefit under it, the plaintiff is entitled to answer, denying such misrepresentations, and alleging the visits of the company's agent to the insured premises, and his doings as to the making and transmitting of an erro- neous diagram. Somers v. Atheneum Fire Assurance Co. 9 Lower Canada S. C. Montreal, 61, 1858. § 12. Insurance on premises in which was a steam engine which was mentioned in the policy. The engine was then used to hoist goods, of which the company was notified. Afterwards machinery was put up for grinding,, and attached to the engine, of which the company had no notice, and subsequently a renewal of the policy was executed. Condition that every policy will be void, xm- less the nature and material structure of the buildings and property instired be fully and accurately described, &c. Held, that the alteration did not render the descrip- tion in the policy inaccurate within the meaning of the condition, so as to avoid the policy. Baxendale v. Har- vey, 4 Hurl. & Norm. Exch. 445, 1869. § 13, Application stipulated that the insurer woidd not be bound by any acts or statements made by or to any agent, unless contained in it, and that applicant should be liable for all statements in application, if made through an agent. The subject to be insured was de- scribed in application, as a " stone dwelling house," with- out disclosing the fact that there was a wood kitchen at- tached, although such fact was well known to the agent. Held, that the company's proposition was to insure a " stone " dwelling house, and assured accepted this prop- osition, and, as the house was part wood and part stone, it was not embraced in the proposition, and no contract to insure such a house was ever made, and assured could not recover ; and that the knowledge of the agent was immaterial. Chase v. Hamilton Ins. Co. 20 N. Y. 52. 1859. Eeversing 22 Barb. N. Y. 527. 1856. DESCRIPTION OF PROPERTY INSURED. 22S § 14. Where policy describes the interest insured as a " mechanic's lien," it covers both a lien belonging to assured alone and his interest in one held by him and two others jointly, and parol evidence is admissible to show, that the intention was to insure such separate and joint liens. Longhurst v. Conway Fire Ins. Co. U. S. D. Ct; Northern Division, Iowa, October Term. 1861. § 15. A building having five floors above the side- walk is properly described in a policy as a five-story building. The cellar is not a story in the ordinary sense of that word. Benedict v. Ocean Ins. Co. 1 Daly, N. Y. 8. 1860. § 16. Where it is shown that an insurance company prepared a policy of insurance after a careful examination of the insured premises by their own surveyor, and with a full knowledge of the nature of the risk, any misde- scription of the policy must be deemed the fault of the company, and the insured should not be called upon to bear the consequences. Benedict v. Ocean Ins. Co., 1 Daly, N. Y. 8. 1860. § 17. An insurance on "merchandise" such as is usu- ally kept in country stores, is not void because hardware, china, glass-ware, looking-glasses, &c., were not specifically mentioned, if the articles were such as are usually kept in country stores. Franklin Fire Ins. Co. v. Updegraff, 43 Penn. St. 350. 1862. § 18. Where one of the conditions of a policy was that " a false description, or the omitting to make known any fact or feature in the risk which increases the hazard," shall render the policy void ; and the application, which was made a part of the policy, described the building in- sured to be a wooden four-story paper mill, 60x70 feet from above basement, ten feet between floors, and ceiled with wood," and not only made no mention of a brick " bleach-house," 20x30 feet, which was separated from the 224 DESCEIPTION OF PROPERTY INSURED. paper mill by a wooden shed-roofed building, known as a " salt-box," 24x18 feet, and 14 feet high, one end of which was formed by the paper-mill and the other by the bleach- house, but, on the contrary, in answer to a written ques- tion, the application declared there was no building within 300 feet of the mill, except the " stock-house," which was other than the " bleach-house " or " salt-box" Held^ that whether the " bleach-house " and " salt-box " were a part of the paper-mill or not, the warranty on the part of the insured was broken. Day v. Conway Ins. Co., 52 Me. 60. 1862. § 19. An agent of an insurance company who is au- thorized to issue policies, «fec., may, after a policy has been delivered by him, and before the receipt of the premium, correct a misdescription in the name of the street on which the property insured is situated. Warner v. Peoria Ma- rine and Fire Ins. Co., 14 Wis. 318. 1863. § 20. Where the plaintiffs, as mortgagees of a part of the machine-works and buildings occupied by the mort- gagor, procured a policy of insurance upon their interest, covering all the said works and buildings; Held, that in an action on such policy, the plaintiffs could recover the amount of their policy, if the loss upon the machine works and buildings covered by the mortgage was more than the amount insured. Fox v. Phenix Fire Ins, Co., 52 Me. 333. 1864. § 21. A description of property to be insured as " The five-story building and three-story addition known as the Lawrence Block, occupied as stores on the first floor, the upper portion intended for a hotel, and to be unoccupied durmg the continuance of this policy," is not a warranty that all the rooms on the first floor were occupied ; and if any of the rooms on that floor were oc- cupied as stores, the others remaining unoccupied, the lan- guage of the policy is met. Carter v. Humboldt Fire Ins. Co., IT Iowa, 456. 1864. DISTANCE OF OTHER BUILDINGS. 225. § 22. Describing a building as a five-story brick build- ing, and making no mention of a cellar under it, is not a misdescription, though there be a cellar under the build- ing. Benedict v. Ocean Ins. Co., 31 K Y. 389. 1865. § 23. K there be such a variance between the de- scription of property intended to be insured and its actual description as will amount to a breach of warranty in any material respect, the policy will be void, although the insured intended to effect an insurance on the property by whatever description might be correct. Tesson v. Atlantic Mut. Ins. Co., 40 Mo. 3*3. 1867. See Application, § 5, 20, 22, 23, 31. Construction, 2. Parol Evidence, 3. Title, 38. Warranty and Representation, 14, 15, 16, 18. What Property is Covered by Policy, 8. DISTANCE OF OTHER BUILDINGS. § 1. Where assured represented the ground adjoin- ing the property to be insured as " vacant," and, subse- quent to the insurance, other buildings were erected ; Hdd, that there was no continuing warranty that the ground should remain vacant during the term of policy, and there being no prohibition in the policy against the erection of such buildings, the assured might recover. Stebbins v. Globe Ins. Co., 2 Hall, N. Y. 632. 1829. ' § 2. The insured, in reply to interrogatory as to the- distance of other buildings, omitted to mention certain wooden buildings standing forty-nine feet off from the building insured, on another street, from which fire was accidentally communicated to the property insured; Held, that if, as a man of ordinary capacity,, the assured ought to have apprehended that a fire originating in said wooden buildings would have endangered his house, then he ought. 15 226 DISTANCE OF OTHER BUILDINGS. to have named those buildings in reply to the interrogar tory propounded ; for what a man ought to have known he must be presumed to have known. But this knowledge must be something more than that, by possibility, a fire so originating might have endangered his house. Dennison V. Thomaston Mut. Ins. Co., 20 Me. 125. 1841. § 3. In reply to the question in application " as to dis- tance of other buildings," answer was, "East side of the block, small one-story sheds, and would not endanger the building if they should bum." The fii'e was communi- cated 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. 1841. § 4. Where the assured, in his written application, ia answer to the following question, viz : " Relative situa- tion as to other buildings — distance from each, if less than ten rods," mentioned five buildings, but omitted to men- tion several others within ten rods, and the policy con- tained the following clause : " Reference being had to the application for a more particular description, and as form- ing a part of this policy ;" Meld, that the statement in the application was a warranty, and that the existence of . other buildings within the prescribed distance avoided the policy, whether that fact was material to the risk or not. And where one of the conditions of insurance was, that any misrepresentation or concealment in the application should render the policy void and of no effect ; Hdd, that any misrepresentation or concealment, however immate- rial, would render the policy void. Burritt v." Saratoga County Mut. Fire Ins. Co., 5 Hill, N. Y. 188. 1843. § 5. Where a by-law of a mutual company provided that the application should contain a full description of certain things, among which were the " situation of in- DISTANCE OF OTHER BUILDINGS. 227 STired property witli respect to other buildings," and that assured himself or the surveyor might make it, but that in either case the assured should be bound by the repre- sentations therein made, and the surveyor should be deemed the agent of the applicant ; and, in answer to the question in application, " relative situation of other build- ings, distance from each if less than ten rods," &c. ; the reply was, " The building in which stock is deposited is 40x90 feet ; two stove-pipes enter chimneys, well secured ; the boiler of the engine is carefiiUy secured by ar double arch with a flue passing into a chimney" and upon the trial it was proven that the tannery and saw-mill stood within less than five rods of each other, and the dwelling within less than ten rods of both buildings ; Hdd, that the failure to make known the proximity of the buildings to each other in reply to the question, avoided the policy under the by-laws above mentioned. Susquehanna Ins. Co. V. Perrine, 7 Watts & Serg., Pa. 348. 1844. § 6. Where the policy was on mill, machinery and fix- tures, and conditions, among other things, required the application to be in writing, " the relative situation of other buildings if within less than ten rods," «fec. ; and in application was the question, " relative situation of other buildings if within less than ten rods," and applicant failed to make known all the buildings within that dis- tance ; Hdd, that the condition had no reference to any- thing but the insurance on the building, and, so far as it was concerned, as well as machinery, there could be no recovery ; but, that the condition not referring to personal property, assured might recover for the loss of personal property. Trench v. Chenango County Mut. Ins. Co., 7 Hill, N. Y. 122. 1845. § 7. The policy referred to the application as forming a part of it. The conditions required that the application should state the situation of the property insured; its relative situation as to other buildings; distance from «ach if less than ten rods, «fec. ; and further provided that 228 DISTANCE OF OTHER BUILDINGS. in all cases the assured should be bound, by the applica- tion, and that any misrepresentation or concealment in the application, would render the insurance void. The application represented the building to be insiu-ed to be a grist mill, and stated : " This mill is bounded by space on all sides." Held, that this amounted to a warranty that there was no building within ten rods, and as the proof showed that there was a building within ten rods, the in- surance was void; and the fact that the agent of the com- pany knew of the building, and that the omission to men- tion it in the application was due to his ignorance,, carelessness or bad faith, made no difference. Jennings v. Chenango Mut. Ins. Co., 2 Denio, N. Y. 75. 1846. § 8. In an application for insurance on personal property, which application was referred to in the policy as forming part thereof, was written, in answer to the ques- tion " where situated, of what materials, and size of build- ing, &c., and relative situation as to other buildings, distance from each if less than ten rods," a description of several buildings standing within ten rods on the several sides of the one in which the insured goods were, but several others beyond them, but within the distance of ten rods, were not mentioned. On the above facts, the court say, " I think there can be no doubt but that, had this been an insurance upon real estate, the statement as to the distance of the buildings would have been a warranty. But it is said that the rule is different in case of personal property. If this be law, I doubt very much whether it is applicable where personal property only is insured, and the statement respecting other buildings within ten rods can only refer to those within ten rods of that in which the goods are kept. Sexton v. Montgomery County Mut. Ins. Co., 9 Barb. N. Y. 191. 1848. § 9. Application was referred to and made part of the policy; and, in answer to question as to relative dis- tance of other buildings within ten rods, assured failed to- DISTANCE OF OTHER BUILDINGS. 229 state one or more witHii that distance. Hdd, that it was a breach of warranty that avoided the policy. Prost v. Saratoga County Mut. Ins. Co., 5 Denio, N. Y. 154. 1848. § 10. Where the question in application, which was referred to and made pai-t of the policy, was as follows : " How bounded, and distance from other buildings if less "than ten rods," &c. ; and the answer stated all the nearest buildings on each side of the property insured, but did not state all the buildings within ten rods ; Held, that the answer was suflScient, for the question required the dis- tance from the nearest' buildings if within ten rods, not the distance from aU buildings within ten rods. Gates v. Madison County Mut. Ins. Co., 2 Comst. N. Y. 43. 1848. Same case, 1 Seld. K Y. 469. 1851. 3 Barb. N. Y. Y3. 1848, reversed. § 11. Application was referred to as forming part of the policy, one question of which was : " How bounded, and distance from other buildings if less than ten rods," § 4. A policy was for " $1,000, say $700 on books and $300 on music," knew that the property had been sold and transferred to him, and that a new d^osit note had been given to an agent of the company only authorized to receive and forward applications; Held^ that the testimony of the president and secretary, that they had no such knowledge, was admissible as rebutting testimony. Fogg v. Middle- sex Mut. Ins. Co. 10 Cush. Mass. 347. 1852. § 31. The policy in controversy was on a stock of goods. At time this policy was made, another policy, in mvor of the same party, was made on the building in which the stock was kept. Held, that a copy of this last policy, with the indorsements thereon, the original being lost, was admissible in evidence, if it had any bearing upon the other, and its weight was for the jury. Fogg v. Middle- sex Mut; Ins. Co. 10 Cush. Mass. 337. 1852. § 32. It is not error to ask witness, who was an ex- perienced and practical fireman, whether in his opinion the risk fi'om fire was increased by certain alterations in a buUding; for such purpose he is an expert. Schenck v. Mercer County Mut. Ins. Co. 4 Zabr. N. J. 447. 1853. § 33. Opinions are only admissible where the nature of the inquiry involves a question of science or art, or of professional or mechanical skill, and then only from wit- nesses skilled in the particular business to which the question relates. Hartford Protection Ins. Co. v. Harmer, 2 Ohio St. (22 Ohio), 452. 1853. 268 EVIDENCE. § 34. The opinions of witnesses engaged in the in- surance business, as to the materiality of the fact that the building insured had shortly before been on fire, and the ■effect it would have upon the mind of a prudent under- writer, if communicated, are not admissible in evidence. Hartford Protection Ins. Co. v. Harmer, 2 Ohio St. (22 Ohio) 452. 1853. § 35. An offer to sell, is evidence, at least, against ihe person offering, that the property was not worth more. Hersey v. Merrimack County Mut. Fire Ins. Co. 7 Fost. N. H. 149. 1853. § 36. Where the building insured is described in the policy as " occupied as a storehouse," it is a warranty that the building is occupied as a storehouse only. The ordi- nary signification of the word, " storehouse," can not be changed by evidence of a usage in a different sense, reach- ing back but a few weeks, nor by evidence that all par- ties to the policy knew the building was not exclusively occupied for storing. It cannot be inferred from such evi- dence that the word was used in a different sense from the -ordinary meaning. Wall v. East Eiver Ins. Co. 3 Duer, 264. 1854. § 37. The rates of hazards, instructions to their agents, or the by-laws of the company, are not evidence on the part of the company, it not appearing that the ad- verse parties had been informed of theii- terms. Evidence is admissible of the testimony of a witness before arbi- trators in the same case, he being at a distance out of the State, being unmarried, and having never had a permanent residence in the State. Insurance Co. v. Johnson, 23 Penn. St. 72. 1854. § 38. Where a general assignment for the benefit of creditors has been made, the assignor is rendered a com- petent witness in a suit by the assignee on a policy of in- EVIDENCE. 26& surance. Nor is any notice of tlie intention of the plain- tiiffs to examine the assignor as a witness, necessary. Nor is it error to allow the assignor to state the purpose for which the securities were given to the plaintiff. Allen V. Hudson River Mut. Ins. Co. 19 Barb. N. Y. 442. 1854. § 39. A letter from secretary of the company, to as- sured, acknowledging the receipt of preliminary proofs and notice of loss, and admitting the sufficiency thereof, is suf- ficient evidence of the time when they were given to, and received by the company. Troy Fire Ins. Co. v. Carpenter, 4 Wis. 20. 1855. § 40. In a suit on a policy on machinery, the testi- mony of one, who had owned it, and sold it to the plain- tiff who was familiar with such machinery, having had it repaired, estimates made for other machinery of a similar kiid, &c., is admissible on a question as to the value of the machinery destroyed. Haskins v. Hamilton Mut. Ins. Co. 5 Gray, Mass. 432. 1855. § 41. In an action on a premium note, the note itself makes out & prima facie case of compliance with the re- quisitions of statutes in regard to insurance companies. Williams v. Cheney, 3 Gray, Mass. 215. 1855. § 42. The answers of the plaintiff to interrogatories filed in another suit, are competent evidence, as admissions, against him, Williams v. Cheney, 3 Gray, Mass. 215. 1855. § 43. The production of a premium note to an in- surance com^ainj is prima fade evidence, in a suit on the note against the maker, that the corporation was duly or- ganized, and had capacity to make and enforce the contract declared on. Williams v. Cheney, 3 Gray, Mass. 215. 1855. 270 EVIDENCE. § 44. Evidence was given of a vote of the directors aTitltorizing the secretary to assign securities to a givein aSnount, and the secretary made assignments accordingly ; and afterward, withoutfurther authority, he assigned other securities, the note in suit among others, and substituted them for a part of those before assigned. There was evi- dence that the secretary had never before assigned notes to be held as collaterals^ but had frequently assigned them for purposes of discount. Held^ that this evidence should go to the jury ; and from it they might decide whether there was authority to assign the note in question. Wil- liams V. Cheney, 3 Gray, Mass. 215. 1855. § 45. W. brought a suit to recover on a lost policy of insurance ; on the trial he was sworn to prove the loss of the policy ; he testified that the policy had never come to his hands, that he had never received it, that he had searched for it among his papers, and that he had no such paper in his custody or under his control. Held^ that the proof was sufficient to establish the loss of the policy. Sussex County Mut. Ins. Co. v. Woodruff, 2 Dutch. K J. 241. 1866. § 46. An application for insurance was dated August 1st, 1854, and it therein appeared that the insurance was for five years; the aniount of the premium paid and de- posit note was sufficiently large to cover an insurance for that term ; and on the back of the policy was stated that the policy expired August 1st, 1859; but in the body of the policy, it was expressed to be from 1st of August, 1854, to August 1st, 1854. Held^ that other parts of the contract were admissible in evidence to 'correct what was evidently a clerical error. Liberty Hall Association v. Housatonic Mut. Fire Ins. Co. Y Grray, Mass. 261. 1856. § 47, Proof that notices to all parties assessed were made and deposited in the post office by the secretary and treasurer, and that a member, when afterwards called upon, EVIDENCE. 271 refused to pay on otter grounds than want of notice, is sufficient evidence of notice of assessment to go to the jury. Jones v. Sisson, 6 Gray, Mass. 288. 1855. § 48. "When a member of a firm describes the prop- erty as " his own," and in affidavit in preliminary proofs states he is the principal member of a fii^m, that he fur- nished all the capital, § 30. Where a policy contains a condition that " all persons insured by the company shall deliver a particular account of loss or damage, signed by their own hands, containing," &c. part owner insured $10,000 on same property, as " Trustee," for the benefit of the children, but not on behalf of first assured, as trustee had notice of first insurance. Jleld, that such second insurance did not avoid the first policy, as it was not an additional insurance within the meaning of the condition prohibiting it. Franklin Ins. Co. v. Drake, 2 B. Monroe, Ky. 47. 1841. § 13. A policy obtained by misrepresentation of cost and value of premises insured, is voidable, and not void ; and a second underwriter, under condition in policy re- quiring notice of prior insufanice, is entitled to notice of the same. And it is further argued by Judge Story, that stipulations as to prior and subsequent policies are designed to apply to all cases of policies then existing in point of fact, or whether they be void or voidable. Cai-penter v. Providence Washington Ins. Co. 16 Pet. U. S. 495, 1842. . § 14. A policy which has been assigned to a mortgagee as collateral security, is within the provision in a subse- quent policy requiring' notice of previous insurance. Car- penter v. Providence Washington Ins. Co. 16 Pet. U. S. 495. 1842. § 15. At law, whatever may be the rule in a case in equity, parol notice is not a compliance with the condition of the policy, requiring other insurance to be endorsed in writing on the policy. Carpenter v. Providence Wash- ington Ins. Co. 16 Pet. U. S. 495. 1842. § 16. Assured applied to the agent of the defendant company for an insurance of two thousand dollars, stating OTHER INSURANCE. 389 in reply to inquiry of the agent, that he had no other in- surance on the property. In fact, he had already insured two thousand dollars in another company, and, with con- sent of that company, assigned the policy ta a creditor from whom he had purchased the goods, and to whom he was yet indebted for the balance of the purchase money. The policy in suit provided, " that it should be void if prior insurance were not expressed in the policy." Held, that the policy, by its terms, was void, it having been ob- tained by fraud and misrepresentation. Neve v. Columbia Ins. Co. 2 McMullin, S. C. 220. 1842. § 17. Plaintiffs, who were grocers, had two policies of insurance on their stock in trade. Having subsequently purchased the stock of another grocer, which had been in- sured by the defendants, they removed their own stock to the establishment of their vendor, whose policy had been transferred to them with the consent of the defendants. Plaintiflfe also obtained from their own insurers transfers of the policies on the stock in their former establishment to the same stock in the store to which they removed. The policies contained the usual clause requiring notice to in- surers, and an endorsement on the policy of any other in- surance elsewhere on the stock on pain of forfeiture. Plaintiffs omitted to notify defendants of the two insur- ances previously existing on their stock. The stock being injured by fire, in an action against defendants ; Held, tlmt by consenting to the transfer of the policy to the plaintu^, defendants became the insurers of the stock in trade of the former in the store to which they removed, which stock consisted of the goods originally covered by their policy, and of plaintiffs' stock in their former store ; that the latter were bound to give defendants notice of the two insurances previously existing on their stock, and that having failed to do so, they could not recover. Wal- ton V. Louisiana State Marine &, Fire Ins. Co. 2 Rob. La. 563. 1842. § 18. Policy stipulated " that notice of other insur- 390 OTHER DfSUEANCE. ance must be given and endorsed on the policy, or other wise acknowledged and approved in writing, or else the policy should he void." Assured effected a second insur- ance on the property, and notified the company by letter of the same. The secretary replied, " I have received your notice of additional insurance." Meld, that this was an ap- proval and acknowledgment in writing, within the mean- ing of the condition ; and that after receipt of the notice, the policy continued in full force, until the company made their election to terminate the policy, and made known to the assured such determination. Potter v. Ontario & Livingston Mut. Ins. Co. 5 Hill, K Y. 147. 1843. § 19, Where policy of insurance contained the usual stipulation in regard to forfeiture of policy, if prior or sub- sequent insurances existed, or were taken, without notice and consent, proof that another policy was obtained on the property, which was not notified to the insurer, wiU discharge the latter from all liability. Battaile v. Mer- chants' Ins. Co. of N. O. 3 Eob. La. 384. 1843. § 20. Where policy provided, that in case the assured had already made any other insurance on the same prop- erty, not notified to the corporation, the policy should be void ; and the conditions annexed further provided, that all applications for insurance should be in writing, &c., but application made no inquiry as to other insurances, and at time of application the plaintiff verbally made known to the ^ent (who was only authorized to receive and forward applications, solicit insui^uces, and receive premium notes and cash percentage thereon) a prior insurance already ex- isting, but agent failed to put it in the application, or otherwise notify the company of it ; Held, 1st, that in the absence of any stipulation in the policy requiring notice of other insurance to be in writing, and no question in the application concerning it, parol notice was sufficient ; 2d, that such notice to the agent, only authorized as above, and while actually engaged in preparing an application OTHER INSURANCE. 391 for tte policy in question, was within the scope of his au- thority, and binding on the company, though it never reached them. McEwen v. Montgomery County Mut. Ins. Co. 5 Hill, N. Y. 101. 1843. § 21. Where a policy of insurance provides that "in case of other insurance against loss by fire on the property hereby insured, not notified to this corporation, and men- tioned in or endorsed on this instrument, or otherwise ac- knowledged by them in writing, this insurance shall be void ;" and a third person, to whom the property insured had been transferred, and to whom the policy was assigned with the assent of the assurers, fails to notify the latter, at the time of the transfer, of another policy previously taken out by him on the same property, the insurers will be dis- charged. A declaration of the first insurance, made after the loss, in compliance with the stipulation that assured shall declare on oath whether any and what other insur- ance has been made on the same property, will be too late. Levitt v. Western Marine & Fu-e Ins. Co. 7 Rob. La. 351. 1844. § 22. A policy, covering a three story biick building called the Central Exchange, provided that " all policies which may issue from this company to cover property previously insured, shall be void, imless such previous insurance be expressed in the policy at the time it issues." On the margin of the policy, when issued, was written, " Five thousand dollars insured by the Worcester Mutual Insurance Company." It appeared that the insurance in the Worcester Mutual Company was in fact but $4,700 on the building, and $300 on a barn on the premises ; and that the policy on the building included also a wooden end, which was not covered by the defendant's policy ; Held, that a compliance with the above-mentioned by-law was a condition precedent to a recovery, in cases where it applied, but that in the present case, the notice expressed in the policy was a substantial compliance with the by- law, and a sufficient exposition of the fact of the former 392 OTHER INSURANCE. insurance, althougli all the prior insurance was not upon the same building embraced in defendant's policy. Liscom V. Boston Mut. Fire Ins. Co. 9 Met. Mass. 205. 1845. § 23. Verbal notice of a prior insurance, given at the time of making application, to an agent authorized to make surveys and receive the cash percentage and the premium note, is sufficient, where the condition relating to prior insurance ofily requires " that notice thereof shall be given to the company." Sexton v. Montgomery County Mut. Ins. Co. 9 Barb. N. Y. 101. 1848. § 24. The charter, to which the policy was made sub- ject, provided, that in case of other insurance on the same property, the policy should be void, "unless such double insurance subsist with the consent of the directors; signi- fied by endorsement on the back of the policy, signed by the president and secretary." The plaintiff took a policy for five years, which was signed by the president and sec- retary, and which recited on its face that $2,500 was in- sured " in a company in Concord." Ifeld, that the require- ments of the charter were substantially complied with. And further held, that the contract must be considered to be an insurance for five years, with a double insurance to the amount of $2,500, to subsist during the whole term; and that, at the expiration of the Concord policy, plaintiff was at liberty to renew it, or to take a policy for the same amount in any other company, without giving any further notice to the company. Baptist Society v. Hillsborough Mut. Fire Ins. Co. 19 N. H. 580. 1849. § 25. Where, in obtaining a second policy, assured represented that the same property was already insured in another company for $4,000, and it was so expressed in the policy, when in fact the prior policy did not cover all the property insured by defendants ; Held, that the assured was estopped by his representation, and by the terms of the policy, to assert that the specific property OTHER INSURANCE. 393 insured by the defendants was not insui-ed to the amount and in the manner he had represented it to be, and as be- tween these parties, the fact should be taken as it was represeiited. McMahon v. Portsmouth Marine & Fire Ins. Co. 2 Fost. N. H. 15. 1850. § 26. Where policy stipulated that if assured should effect a subsequent insurance on the property without notice and consent of the company, &c. the policy should be void ; Meld, that a second policy, taken out by the as- sured, which was void on account of misrepresentation, was not an insurance within the prohibition. Clark v. " 'New England Mut. Fire Ins. Co. 6 Cush. Mass. 342. 1850. § 27. The mere fact that a prior polity is represented to a subsequent insurer to be on the same property, when in fact it does not embrace all the property covered by defendant's policy, or that the first policy is in specific amounts, whilst the second one is general, will not avoid a. policy of insurance, because the insured is not bound to give any details unless inquired of, or required so to do by the by-laws. McMahon v. Portsmouth Fire Ins. Co. 2 Fost. N. H. 15. 1850. § 28. When by-1^ provides, that consent to addi- tional insurance may be given by the president and secre- tary, and no other mode of giving such consent is- pro- vided for, it is an error to charge the jury that it may be given by a secretary or director. Stark County Mut. Ins. Co. V. Hurd, 19 Ohio, 149. 1850. § 29. The 18th section of the company's charter, de- claring a double insurance on a house or building without consent of the company an avoidance of the policy, does not render a policy on merchandise void, although addi- tional insurance had been taken without notice to, or' con- sent of, the company, on said merchandise. Illinois Mut. Fire Ins. Co. v. O'NeUe, 13 111. 89. 1851. § 30. The by-laws annexed to the policy provided 394 OTHEE mSUEANCE. that prior insurance, xinless expressed in the policy, should avoid it. In this case there was prior insurance not ex- pressed in the policy. Held, that the policy was void ; and that payol evidence was not admissible to show that the prior insurance was known to, and assented to, by the company, and that the policy was received by assured, supposing it contained a recital thereof. Barrett v. Union Mut. Fire Ins. Co. 7 Cush. Mass. 175. 1851. § 31. The policy was made payable in case of loss to Q. who assigned to another party. The policy was void, because of prior insurance not expressed in the policy. The point was made that the failure to insert the fact of prior insurance should not prejudice the plain- tiffs, who were assignees, without notice. Not sustained. Barrett v. Union Mut. Fire Ins. Co. 7 Cush. Mass. 175. 1851. § 32. Mere knowledge of other insurance upon the part of agent of the company is of no avail to insured if not endorsed on the policy, a clause in the policy requiring such endorsement. Such knowledge is not a waiver of notice of such insurance. Forbes v. Agawam Mut. Ins. Co. 9 Cush. Mass. 470. 1852. • § 33. Insurance by a mortgagee of his interest is not within the clause of a prior policy, in favor of the mort- gagor, prohibiting him from making other insurance with- out notice ; but, if such insurance is made at the expense of the mortgagor, and may be applied to his benefit, it is within the clause, and would avoid the prior policy. Hol- brook V. American Ins. Co. 1 Curtis C. C. U. S. 193. 1852. § 34. A policy of insurance provided that " if assured should thereafter make any other insui'ance on the same property, and should not, with all reasonable diligence, give notice thereof, and have the same endorsed on the policy, or otherwise acknowledged by them in writing, the policy should be void." The insured subsequently took OTHER rCfSUEANCE. 395 out another policy in another company for $1,500, and wrote to the defendants, advising them of the same, and received in writing an acknowledgment of his notice, sub- ject to the following restriction : " That in event of dam- age or partial loss, the sum recoverable shall not, together with all insurance, exceed two-thirds of the cash value of the property insured, and at risk, at time of loss." There .being no evidence that assured had ever assented to such restriction, it was Held, that the insurers had not re- served a right in the policy to declare it void, on receiving notice of another insurance on the same property, or to prescribe the terms and amount for which it should sub- sequently stand good. It merely required the insured, on effecting a subsequent insurance on the same property, to give notice thereof with reasonable diligence, and have the same endorsed on the policy, or otherwise acknowledged in writing. This the insured had done, and there bemg no clause in the policy other than that in acknowledg- ment referred to, restricting the liability of the company to two-thirds the value of the property, the assured might recover from defendants their proportion of the fall value of the property destroyed, not exceeding the sum insured. "Westlake v. St. Lawrence County Mut. Ins. Co. 14 Barb. N. Y. 206. 1852. § 35. A. owned a mill, and gave a bond to B. for one-half of it. At the time B. agreed with A. that the latter should insure B.'8 half, for his own benefit, the money to apply in extinguishment of the debt, in case of loss. A^ effected an insurance on the whole mill with de- fendants, whose charter prohibited a double insurance by any other company, " or from or by any other person or persons at the same time ;" Hdd, that the agreement be- tween A. and B. was not a double insurance within the meaning of the condition. Burbank v. Rockingham Ins. Co. 4 Fost N. EL 550. 1852. § 36. Assured effected an insurance of two thousand dollars with defendants, whose charter provided, " that if 896 OTHER INSURANCE. any other insurance shall be obtained on any property in- sured by this company, notice shall be given to the secre- tary, and the consent of the directors obtained, otherwise the policy issued by this company shall be void." Subse- quently assured made an application, through agent of the defendants' company, for additional insurance of $1,000. This application was taken to the secretary of the defendants by the agent, and secretary remarked that the defendants could not insure so much in one risk, but that the Union Company, in the same building, and of which he was also the secretary, would take it. There were then present two directors of the Union Company, and after examining application, they consented to take the risk. These direc- tors were also directors in defendants' company. In an action on the defendants' policy, the defense being that the consent of the directors had not been obtained ; Held, that the provision with reference to other insurance had been substantially complied with, and that parol evidence of the above fact was competent to show notice and consent. Goodall V. New England Mut. Fire Ins. Co. 5 Fost. N. H. 169. 1852. § 37. The conditions required notice to be given of subsequent insurance, and assent thereto endorsed on the policy, or it should become void. The application con- tained the following request : "Applicant asks leave to insure $1,000 on same property in some other company. Please signify the assent of the company in the policy." This application was approved by an endorsement there- on, signed by a director, but the policy contained no ex- pression of assent. Held, that no inference of assent could be inferred from the endorsement of the director, but rather the contrary. And further held, that a recital of the fact of prior insurance in the application would be notice to the company of such insurance ; but that a recital of a wish to obtain subsequent insurance was not notice to the company of such insurance when obtained. Forbes v. Agawam Mut. Fire Ins, Co. 9 Cush. Mass. 4Y0. 1852. OTHER INSTIRANCE. 397 § 38. The policy provided, that, "if the assured shall have already any other insurance against loss by fire on the property hereby insured, not notified to this company and mentioned in or endorsed on this policy, then this policy shall be void and of no effect." At time of appli- cation for this policy, assured mentioned to the agent the existence of another insurance in a New Hampshire com- pany, and the agent made a Dote of it in a memorandum book, which contained other entries, relative to insurance and to private matters, but the policy was issued and ac- cepted by assured without any consent therein expressed, as to the prior insurance. Held, that the policy was void and parol evidence of the notice to the agent was inadmis- sible, as tending to vary the terms of the written contract. Pendar v. American Mut. Ins. Co. 12 Cush. Mass. 469. 1853. § 39. The policy in this case prohibited any subse- quent insurance, without notice and consent of the com- pany, and required notice of all prior insurances. In the application, assured stated that there was then $8,000 in- sured on the property, to wit : $5,000 in the JEtna, and $3,000 in the Conway ; but, in fact, such insurances did not then exist, but were intended to be taken, and the agent of the company so informed at the time, who said to as- sured, that if this insurance of $8,000 was subsequently effected in the offices named, or in any other offices, to the same amount, it would be sufficient. Afterwards the as- sured made additional insurance to the amount of $8,000, not in the offices mentioned in the application, but in Trenton and Lafayette companies, and gave no farther notice to the company or agent. Held, that the failure to notify the defendants of this subsequent insurance avoid- ed the policy, and that evidence showing the knowledge of the ^ent was inadmissible. Conway Tool Co. v. Hudson Kiver Ins. Co. 12 Cush. Mass. 144. 1853. § 40. Where the first policy prohibited a subsequent insurance, and a subsequent insurance was made by policy 398 OTHER INSXTRANCE. conditioned to be void, in case of a prior insurance with- out notice ; Hdd, that the second policy was void, if notice of a prior insurance was not given, and did not, therefOTe, avoid the first policy. Schenck v. Mercer County Mut. Ins. Co. 4 Zabr. N. J. 441 1854. § 41. Plaintiff issued a policy to Walsh for $6,000) on one-foxirth of a steamboat, said fourth valued at $7,500, with stipulation "that, if any other insurance should be effected by which a greater amount than $6,000 on this one-fourth of the steamboat should be insured, the policy should be void." Afterwards defendants procured insur- ance in another company upon one-fifth of three-fourths of said steamboat, valuing the said three-fourths at $22,500, and stating that $18,000 was already insured on the said three-fourths. This one-fifth, last procured, was estimated at $4,600; and making in all $22,500, the estimated value of the entire three-fourths of the boat; Udd, that the first insurance was thereby increased fifteen hundred dol- lars contrary to express stipulation, and the policy was thereby avoided, Columbus Ins. Co. v. Walsh, 18 Mo. 229. 1853. § 42. A condition in the policy required notice of other insurance to be endorsed on the policy or otherwise acknowledged in writing. The insured took other insur- ance and gave a memorandum of it to the agent. to be en- tered on the records of the company, the policy not being at hand, and the, agent saying that such entry would an- swer every purpose. The agent afterwards returned the memorandum, saying that he had made such entry ; but he had not in fact done so. Held^ a violation of the con- dition. Worcester Bank v. Hartford Fire Ins» Co. 1 1 Cushi Mass. 266. 1853. § 43. One of the conditions of a policy issued by a mutual insurance company was, " that in ease insurance shall subsist or be effected upon the premises or property insured by the company, in any other office, or from, by OTHER INStJRANCE. 399 or with any other person or persons, during the continu- ance of such insurance, the policy granted thereon by the company shall be void, unless such double insurance sub- sist with the consent of the directors, signified by endorse- ment on the back of the policy, signed by the president and secretary." It appeared by the pleadings that three separate sums were insured — on a building, on the ma- chinery, and on the stock in it ; and a second insurance, without the consent of the company, was effected on the building and machinery. Held, that by the terms of the condition, and of the statute under which this company was incorporated, the policy was wholly avoided, and not merely as to the property so doubly insured ; and also, that it was immaterial that such second insurance was with a foreign company, and, therefore, not capable of being enforced here, as it was an insurance in fact made, and such as was intended to be prohibited by the condi- tion. Kamsay Woolen Cloth Manf. Co. v. Mutual Fire Ins. Co. 11 Upper Canada, Q. B. 516. 1853. § 44. Where policy provided " that if any prior in- surance exist on the property hereby insured, this policy shall be void, unless such prior insurance be endorsed on this policy when it issues," and at time of taking out such policy, assured held a prior policy on the same property ; Held^ that this endorsement, to wit : " Leave given to keep insured to an amount not exceeding three- fourths of the value of the property," written in the policy when it issued, included " prior" as well as " sub- sequent " insurances, and was a substantial compliance with the by-law, requiring notice of prior insurance. PhUbrook v. New England Mut. Ins. Co. 37 Me. 137. 1853. § 45. A second policy, which is void, does not va- cate a first policy, under provisions in the first which preclude a second insurance without notice and consent of the company, even though the underwriters of the void policy compromise and pay the loss. Philbrook v. New England Mut. Ins. Co. 37 Me. 137. 1853. 4rOO OTHER INSURANCE. § 46. Agent endorsed consent of company to addi- tional insurance, when charter required that consent of directors must be obtained; Held^ that company was not confined by their charter to a single secretary ; that, when- ever they directed any agent or officer to perform the ap- propriate duties of a secretary, they made such agent or officer secretary for that purpose ; and evidence, snowing the exercise of such authority on the agent's part, was ad- missible. Peck V. New London County Mut. Ins. Co. 22 Conn. 575. 1853. § 47. A policy was executed and delivered to assured with the understanding that it should not take effect un- til a prior policy in another company should be delivered up and cancelled. This was afterwards done, subsequent to the date of the latter policy. The subsequent policy contained a provision requiring prior insurance to be en- dorsed on it. jHeZt?, that as, by the understanding, the prior policy was to be cancelled before the subsequent policy went into effect, no endorsement of the foi-mer was required to be made on the latter. Atlantic Mut. Fire Ins. Co. V. Goodall, 9 Fost. N. H. 182. 1854. § 48. Where by-law required " notice of any other insurance " to be given, without specifying that such no- tice must be in writing ; Held, that verbal notice to an agent soliciting risks, was sufficient ; but mere knowledge of such other insurance, upon the part of such agent, would not be chargeable to the company. Schenck v. Mercer County Mut. Ins. Co. 4 Zabr. N. J. 447. 1854. § 49. Where policy was made subject to limitations and conditions annexed, and it was stipulated therein that a subsequent -insurance, by any other company or person, without consent, should avoid the policy, and at time of issue an endorsement of $3,000 insurance already made was written on the policy ; Held, that a second insurance afterwards obtained without the knowledge or consent of the company avoided the policy, although it was to take OTHER mSURANCE. 401 the place of the insurance existing at the time of issue of this policy, and was for a less amount. Burt v. People's Mut. Ins. Co. 2 Gray, Mass. 397. 1854. § 50. "Where policy stipulated that " a subsequent insurance, without notice, should avoid the policy ; Held, that a second insurance, effected subsequently by assured, without notice to first insurers, avoided the first policy. Forbush v. Western Massachusetts Ins. Co. 4 Gray, Mass. 337. 1855. § 51. Where a fii%t policy prohibited any "increase of risk," and the insured increased the risk, by erecting a building connecting his house and barn ; Held, that this policy was void. And where, subsequent to such increase of risk, and consequent avoidance of first policy, the as- sured took out the policy in suit, which required a dis- closure of all prior insurance, and failed to make known the existence of the first policy ; Held,, that the first policy being at an end, and of no effect, did not avoid the second policy. Jackson v. Farmers' Mut. Fire Ins. Co. 5 Gray, Mass. 52. 1855. § 52. Assured took out a policy for $3,000 on his mill, with the defendants, which policy provided " that notice of any prior or subsequent insurance must be en- dorsed on the policy." At the time of taking it there was already $2,500 on the same mill in the City Insurance Company of Cincinnati, notice of which was given and consent for endorsed on defendant's policy. Subsequently, the policy in the City Insurance Company having expired, the assured had a new policy made for $2,000, in another company, in place of the City Insurance Company's policy, but did not have this change endorsed on the policy in suit, although he verbally notified the agent of the com- pany. Held, that the condition, requiring endorsement on policy of subsequent insurance, was a condition prece- dent; and that verbal notice was not a compliance with it. Hutchinson v. Western Ins. Co. 21 Mo. 97. 1855. 26 402 OTHER INSURANCE. § 53. When second policy issued, there was endorsed on the face of it, as well as in application, -" $2,000 on same property in the People's Mutual," Held, that this statement was not a continuing warranty, and was satis- fied by the existence of such an insurance at time of issu- ing the second policy, though it might afterwards have ex- pired, been cancelled or avoided by acts of assured. Also, that the first policy having been avoided by subsequent insurance without notice, the second policy was liable for the whole loss, notwithstanding its stipulation that, in case of other insurance, they would be liable only for their pro rata proportion. Forbush v. Western Mass. Ins. Co. 4 Gray, Mass. 337. 1855. § 54. M. having effected an insurance with a mutual company, assigned all his interest in the policy and prem- ises insured to the plaintiffs by way of mortgage, to secure a debt, and the policy was duly ratified to them in accord- ance with the act of incorporation, which provided " that when any house or building shall be alienated by sale or otherwise, the policy shall thereupon be void," &c., " pro- vided always that the grantee or alienee having the policy assigned to him may have the same ratified and confirmed to him for his own proper use and benefit," 6. 1857. Toll V. Whitney, 18 How. N. Y. 161. 1858. See also, Savage v. Medbury, 19 N. Y. 32. 1859. § 24. In an action upon a premium note, for the re- covery of the whole note, because of the non-payment of an assessment; Held, that the recovery for the whole amount of the note was in the nature of a penalty, and there being no express agreement to pay interest, interest was not recoverable under a penalty. Bangs v. Mcintosh, 23 Barb. N. Y. 591. 1857. § 25. The New York statute of 1849 required mutual insurance companies, before commencing business, to pro- cure the certificates of the Comptroller and Secretary of State, showing that the company had received premium notes in advance to a certain amount, payable within twelve months. The company in this case issued a policy and took an ordinary premium note, payable in such por- tions and at such times as the directors, agreeably to the charter and by-laws, might require ; jBe^, that this was not such a note as the company was authorized to take be- fore obtaining the certificates of the Comptroller and Sec- retary of State ; and that, as the note and policy were ex- ecuted before the company had authority to enter into such contracts, they were both void. Williams v. Babcock, 25 Barb. N. Y. 109. 1857. § 26. Where a premium note was payable in assess- ments of which a certain notice was to be given ; Held, that a receiver of the company could not enforce collection by suit until the conditions of payment had been satisfied PREMIUM NOTES. 493 by levying assessments and giving the required notice thereof. Williams v. Babcock, 25 Barb. N. Y. 109. 1857. § 2 7. Where the charter provided that " notes received in advance of premiums on open policies shall in no case be deemed liable for any losses that may accrue beyond the actual earnings on such policies," and a premium note, for a nominal premium upon an open policy, is given, after the company has been organized and commenced business ; is a " premium note " and not a " subscription or capital stock note," and the maker is liable to the company on such note only to the amount of the actual premiums upon risks assumed by the company and endorsed on the policy, and a receiver of the company can recover no greater amount. Elwell v. Crocker, 4 Bosw. N. Y. 22. 1858. § 28. It is no defence to an action on premium note, that the company became insolvent before the expiration of the policy. Sterling v. Mercantile Mut. Ins. Co. 32 Penn. St. 75. 1858. § 29. A premium note given to a mutual company, is not void because the charter of the company was to ex- pire by limitation, prior to the expiration of the contract of insurance. The policy is valid for the unexpired term of the charter. Nor is the assured entitled to any " rebate or reduction " from the amount of the assessment, or from the amount of the premium note, because of that fact. Huntley v. Beecher, 30 Barb. K Y. 580. 1859. See also, Huntley v. Merrill, 32 Barb. N. Y. 626. 1860. § 30. Where the contract is to pay such portions of the premium note and at such times as the directors may require agreeably to the act of incorporation and by-laws, in an action for assessments, the declaration must allege the assessments to have been made in conformity to the act and by-laws. Atlantic Mut. Fire Ins. Co. v. Young, 38 N. H. 451. 1859. 494 PREMIUM NOTES. § 31. Where the charter of a mutual company provid- ed that if a member neglects for a certain time to pay any sums assessed upon his premium note, a suit may be brought and the whole amount of the deposit note may be recovered; the whole note may be recovered in an action on the note alone, and against the maker only. Huntley v. Merrill, 32 Barb. N. Y. 626. 1860. § 32. A note given to a mutual insurance compai^ in New York, to be used as a premium note only, cannot be used as a part of the original capital stock, on which the company is organized ; and if so used without the maker's knowledge or consent, it is a mis-appropriatioii that does not bind him, being a fraudulent perversion of its object and design. The note in such case is invalid, except in the hands of a honaflde holder, and the company or its receiver is not a bona fide holder. The burden of proving it an original capital note is upon the company, and evidence on part of maker, showing the purpose for which such note was given, is admissible. The fact of the note being made before the company was organized, makes no difference. If the note was given to an agent of the company, they must be deemed to have had notice of the purpose for which it was given. Bell v. Shibley, 33 Barb. N.Y. 610. 1861. § 33. This was an action on a policy to S., payable in case of loss to C. S. was described as of Roxbury, Mass. One of the by-laws referred to in the policy provided that " if the assured shall neglect, for the term of thirty days, to pay his premium note, or any assessment thereon, when requested to do so, by mail or otherwise," the policy should become void. An assessment was made on the premium note of S., and notice thereof, with a request for payment, was sent by mail to him at Eoxbury, which was not received by him, because he had then removed to Pittsburg, Penn. Held, that under the provisicais of the by-law, notice was complete when deposited in the post- office after the lapse of sufficient time for it to reach its PREMIUM NOTES. 495 destination ; that the company was not responsible for its delivery to the assured ; that the change of residence did not affect the company until notified thereof; and that as the assessment had remained unpaid for more than the space of thirty days after the notice shotild have been re- ceived in the post-oflBce at Roxbury, the policy was void. Lothrop V. Greenfield Stock & Mut. Fire Ins. Co., 2 Al- len, Mass. 82. 1861. § 34. By the terms of the charter of a mutual insur- ance company, each member was entitled to have his premium notes surrendered to him at the expiration of his term of insurance, upon payment of his share of losses and expenses to that time ; or upon alienation of the property insured, surrender of his policy, and like payment of his share of losses and expenses ; or upon payment of the whole of his premium notes and surrender of his policy. Meld, in a suit by a receiver for the benefit of creditors, that a surrender of the premium notes upon payment of assessments to date, and cancellation of the policies by or- der of the directors of the company before its insolvency, was binding upon the company and its creditors. Wads- worth V. Davis, 13 Ohio St. 123. 1862. § 35. The non-acceptance of an amendment of the char- ter of a mutual insurance company, cannot be set up as a defence to an action on a premium note given by the de- fendant to the company in accordance with the provi- sions of the amendment. Fell v. McHenry, 42 Penn. St. ■ 41. 1862. §• 36. Persons who have ^ven premium notes to a mutual insurance company, and have thus become mem- bers of the corporation, are not in a condition to assail the organization of the company, by way of defence to an action on such notes. Cooper v. Shaver, 41 Barb. N. Y. 151. 1862. § 37. Although the basis of all assessments on pre- 496 PREMIUM NOTES. mium notes so long as the right to make them remains, continues to be " the original amount of the deposit note," yet the fund which secures them, whether in note or money, is only the amount remaining after crediting assess- ments already paid. Hence, " the whole amount of the deposit note" which the directors, in case of default, are authorized by the statute to sue for and recover, is not its face but the actual amount for which the note continues to stand as security. Bangs v. Bailey, 37 Barb. N. Y. 630. 1862. § 38. Premium notes, constituting the capital and being regarded as assets of a mutual insurance company ; are ultimately liable for the payment of debts of all class- es. It is therefore proper to assess them to pay losses on cash or stock policies issued by the same company. Coo- per V. Shaver, 41 Barb. N. Y. 151. 1862. § 39. In an action on a premium note given on effect- ing an insurance brought to recover the whole amount on a default in payment of an assessment, the plaintiff is not entitled to interest on the amount of the note. Bangs v. Bailey, 37 Barb. N. Y. 630. 1862. § 40. Since the New York statute of 1853, premium notes given for more than five times the amount of the cash premium are illegal and void. Otis v. Harrison, 36 Barb. N. Y. 210. 1862. § 41. The maker of a premium note given to a mutual company, which does business in two classes in pursuance of its charter, is not liable for assessments to pay any other losses than those happening in the class in which the note was given. Allen v. Winne, 15 Wis. 113. 1862. § 42. Notwithstanding a policy be regarded as abso- lutely void, by reason of an unauthorized transfer, so far as to prevent an action for a loss by the assured against the PKEMIUM NOTES. 497 • company, the former is not released from the obligation of his deposit or premium note until he has complied with a condition of the policy and charter, requiring "the payment of his proportion of all losses and expenses that may have accrued prior to the surrender" of the policy, or alienation of the property. Hyatt v. Wait, 37 Barb. N. Y. 29. 1862. § 43. Where a promissory note, on its face, is payable at such time or times as the directors of a mutual insur- ance company may, agreeably to their charter and by- laws, require, the presumption is that it was given and taten as and for a premium or deposit note ; and no re- covery can be had on such a note, unless it has been duly assessed. But the plaintiff may allege and prove that the note, notwithstanding its form, was given and taken as and for a capital stock note and used as such in organizing the in- surance company, and recover the whole amount thereof, without showing that it has been assessed; such notes being payable absolutely, at maturity. Sands v. St. John, 36 Barb. X. Y. 628. 1662. § 44. A note having been given to an insurance com- pany for premiums, payable twelve months from date, and liable for losses occurring during that period, was assigned by the company as collateral for a loan to them; the drawer of the note paid to the pledgee the sum for which it had been pledged, which was less than its face, and ob- tained the note ; the company becoming insolvent made an assignment to assignees, who brought trover for the note, claiming for the payment of losses which had occur- red during the time for which it had been given. Held, that the plaintiffs could recover only the balance due on defendant's note, deducting the amount for which it had been pledged. Fell v. McHenry, 41 Penn. St. 41. 1862. § 4.5. The premium notes held by a mutual insurance company in Indiana, are not promissory notes within the 32 498 PREMIUM NOTES IN ADVANCE. statute of that State authorizing a levy upon choses in action. Hubler v. Taylor, 20 Ind. 446. 1863. § 46. .In an action by a mutual insurance company against one of its members, upon his premium note, the defendant is an adversary party ; and as such is not boimd to take notice of their proceedings in relation to his note. American Ins. Co. v. Schmidt, 19 Iowa, 502. 1865. See Premium Notes in Advknee and Assessments. Also Agent, § 59. Cancellation, 6, 7. Classification of Risks, 2, 3, 5, 6. Dependency of Policy and Premium Note, 5, 12, 19, 22, 24, 25. Foreign Insurance Companies, 1, 6, 10, 11, 16, 17, 18, 19, 20, 22. Illegality of Contract, 9. Insolvency, 5, 6. Mutual Companies and Members of, 1. Other Insurance, 47. Place of Making Contract, 4. Pleading and Practice, 40, 49, 56, 78. Receivers, 2, 3. Revival and Suspension of Policy, 1. ;Set-off, 8, 9, 10. PREMIUM KOTES IN ADVANCE. ' § 1. The defendant gave his note to a mutual insur- ance company at its organization for $1,000, payable in one year. During the year he incurred premiums to the amount of $518 ; and at the expiration of the year he paid the premiums, and renewed his note for the wuole amount. Held, that the maker had a right at the end of the first year to deduct the premiums of that year, and only give his renewed note for the balance ; but as he had chosen to renew his note for the whole amount, in contemplation of certain benefits conferred in such cases, he was now bound for the whole amount of it, less the sum of the premiums for the second year. Hone v. Ballin, 1 Sandf. N. Y. 181. 1847. § 2. An action may be maintained on a renewed pre- mium note in advance after the failure of the insurance company ; and the fact that insurance was demanded, in PEEMItJM NOTES IN ADVANCE. 499 respect to sucli note, after the failure, and was refused, is no defense. Hone v. Folger, 1 Sandf. N. Y. 177. 1 847. § 3. Notes given to a mutual insurance company at its organization, in order to provide a fund as a basis for doing business, are valid contracts for a valuable consider- ation, and may be enforced by the receiver on the insol- vency of the company ; and a parol agreement with the president, cotemporaneous with the execution of the note, to give it up at maturity, cannot be shown to defeat an action on the note ; and a promise by the president of the company to give up the note, made after it fell due, is without authority and void. Brouwer v. Appleby, 1 Sandf. N. Y. 158. 1847. Hone v. Allen, contained in note to case of Brouwer v. Appleby. § 4. Whether premium notes were given at the or- ganization of the company to constitute a fund to transact business on, or were simply notes in advance to secure premiums to accrue on an .open policy in the ordinary course of business, is a question of fact for the jury. Mer- chants' Mut. Ins. Co. V. Eey, 1 Sandf N. Y. 184. 1847. Brouwer v. Hill, 1 Sandf N. Y. 629. 1848. § 5. A premium note was executed payable to the order of the maker, but never endorsed, and an open pol- icy was issued on which nothing was ever written. The maker was elected one of the trustees of the company, and the note was included ifl the annual statement of the company, made out and published by order of the trustees. The note was afterward, by order of the trustees, and without consideration, delivered up, and the policy was cancelled. There was testinlony tending to show that the note and policy were made in order to provide votes for an election of officers then about to come off. Held, that the note was to be regarded as a premium note in advance, or as an accommodation note ; and, either way, it belonged to the assets of the company, and the trustees had no au- 500 PEEMIUM NOTES IN ADVANCE. thority to deliver it up without consideration, and the maker continued liable to the company and to its receiver on the contract. Brouwer v. Hill, 1 Sandf. N. Y. 629. 1848. § 6. A receiver of an insurance company may main- tain action against the maker of a premium note in ad- vance, and recover the amount of the note, where the same has been delivered up to the maker in violation of the rights of the coEopany and its creditors. Brouwer v. Hill, 1 Sandf. N. Y. 629. 1848. Tuckerman v. Brown, 11 Abb. N. Y. 389. 186p. § t. The defendant executed to the Croton Insurance Company his premium note i^ advance, and afterward took insurance in the company. The company having become insolvent, the receiver brought an action on the note ; and the defendant on the trial sought to introduce evidence to prove an agreement with the president of the company, to the effect that the note was to be delivered up at maturity, and was to be liable only for losses accru- ing during the time it had to run. But the evidence was rejected, and judgment given for the amount of the note and interest, less the premiums on the insurance which defendant had effected. Cruikshank v. Brouwer, 11 Barb. N. Y. 228. 1851. § 8. Where charter authorized company to take pre- mium notes in advance, of those designing to insure, and to use the same ; Held, that such notes were for a valid consideration, and were effectual for the whole amount. Brouwer V. Harbeck, 1 Duer, N. Y. 114. 1852. Deras- mus V. Merchants' Mut. Ins. Co. 1 Comst. N. Y. 371. 1848. Brown v. Crooke, 4 Comst. K Y. 51. 1851. Baker v. Cotter, 45 Me. 236. 1858. Howland v. Meyer, 3 Comst. N. Y. 290. 1850. § 9. A premium note in advance was given, made pay- PEEMItTM NOTES IN ADVANCE. 501 able to the maker's order, and endorsed to tlie Croton In- surance Company. The board of trustees passed a reso- lution authorizing the pledge of the assets of the company to raise money to pay its debt's. Subsequent to said res- olution said note was taken up, and two others in lieu of it, and one of the two was pledged for money by the pres- ident of the company, and an action was broTight on it by the assignee. Defense was made that the president had no authority to transfer the note in suit, because it was not in existence when said resolution was passed. Held^ that, as the note was given in lieu of one which was in existence at the date 6f the- resolution, the president had authority to make the transfer, if indeed any authority other than his general agency for the company was neces- sary. Crook V. Mali, 11 Barb. N. Y. 205. 1857. § 10. A premium note in advance may be transferred by the president on an insurance company, acting as its general agent, in payment or on account of losses ; and the transferee may maintain action thereon against the maker. Such a transfer cannot be avoided by a receiver subsequently appointed, it not appearing that the transfer was made in contemplation of insolvency for the purpose of preferring a particular creditor. Such a transfer by the president does not come within the prohibition of 1 Revised Statutes .'iQl, § 8, of New York. Brouwer v. Harbeck, 1 Duer, K Y. 114. 1852. Aspinwall v. Meyer, 2 Sandf. N. Y. 180. 1848. § 11. Premium note in advance, paid by premiums of insurance by maker and his friends, and note given up ; Held, to be a valid proceeding, binding on company and its receiver, though not ratified by a formal vote of the directors. Emmett v. Reed, 4 Seld. N. Y. 312. 1853. 4 Sandf. N. Y. 229. 1850. § 12. The defendant executed a premium note to an insurance company, whereby he agreed to pay the com- pany or its treasurer $10,000, " in such portions and at 502 PREMIUM NOTES IN ADVANCE. such time or times as the directors may, agreeably to their charter and by-laws, require." The note was re- ceived as a part of the capital stock of the company. The directors afterward adopted a resolution, under which all the assets of the company, including the note in question, were transferred to the plaintiff, in trust, that he should collect them, and apply the proceeds to the payment of the debts of the company ; Held, that this resolution was a requirement by the directors that the note should be paid, and was a substantial compliance with the condition upon which it was made payable. Hill v, Keed, 16 Barb. N. Y. 280. 1853. § 13. Premium notes in advance, given to mutual in- surance companies under the provisions of the New York Statutes of 1849, are absolute and payable without any assessment. The company may enforce their collection at maturity, and devote the proceeds to the paymeni of losses, or to investments in other securities. White v. Haight, 16 N, Y, 310. 1857. Bell v. McElwain, 18 How. N. Y. P. 150. 1859. § 14. See, also, as to validity of premium notes in ad- vance, power of company to transfer, &c., the following cases: Holbrook v. Bassett, 5 Bosw. N. Y. 147. 1859, Scott V. Johnson, 5 Bosw. N. Y. 213, 1859, Smith v. Hall, 5 Bosw. N. Y. 319. 1859. Nelson v. Wellington, 5 Bosw. K Y. 178. 1859. Brookman v. Metcalf, 5 Bosw. N. Y. 429. 1859. New York Exch. Co. v. DeWolf, 5 Bosw. N. Y. 593. 1859. Marine Bank v. Clements, 6 Bosw. N. Y. 166. 1860. Marine Bank v. Vail, 6 Bosw. N. Y. 421. 1860. Merchants' Bank v. McCall, 6 Bosw. N. Y. 473, 1860, § 15, In an action on a premium note in advance, given to a company which divides its business into two departments, a stock and a mutual; it is not a defense that there were no unpaid losses in the mutual department. Tuckerman v. Brown, II Abb, N, Y, 389, 1860. PREMIUM NOTES IN ADVANCE. 503 § 16. A premium note given to a mutaal insurance company as a part of the capital stock, under the act of 1849, in New York, and made payable "in such portions and at such time or times as the directors " may require, is in compliance with the 5th section of said act, requiring all such notes to he made payable at the end of or within twelve months from the date thereof, as it is in such form that payment could be required within the period speci- fied by the statute. The statute of limitation, applied to such note, does not commence to run until payment has been required by the company or its receiver. Howland V. Edmonds, 33 Barb. N. Y. 433. 1861. But see contra, Bell V. Yates, 33 Barb. N. Y. 627. 1861. § 17. The by-laws of a mutual insurance company provided that any person giving an " advance note," shoidd become a member thereof, and that the directors might give up any or all of the advance notes, whenever they should deem it for the interest of the company to do so. The defendants gave the company an advance note, speci- fying that it should be subject to assessments " at an equal per cent, with all other advance notes." Held, that the assessment was to be made upon all the advance notes re- maining uncancelled at the time it was made ; and that the signers of advance notes were liable for the fiill amount thereof, if required to pay the debts of the company. Maine Mut. Marine Ins. Co. v. Swanton, 49 Me. 448. 1861. § 18. An insurance company, although authorized to receive notes for advanced premiums to be written against, and to allow a certain interest thereon, is not authorized to allow five per cent, on the whole amount, without deduc- tion for such sums as may be written against. An agree- ment to that eflfect is illegal, and the note cannot be recov- ered on, by the company. But as the statute does not make the note void, a third person, receiving it before it became due, for a valuable consideration and with- out notice of the illegal agreement, will be entitled to recover. Chesbrough v. might, 41 Barb. N. Y. 28. 1863. See Set-off, § 5. Premium Notes, 27. QUESTIONS FOE COURT AND JURY. § 1. Where plaintiff effected an insurance on a house, whicli had been previously insured by the party from whom plaintiff purchased, and the judge charged the jury, that if assured knew that there was a previous insurance, and neglected to disclose the fact to the insurers, it was such a concealment of a fact, material to the risk, as avoided the policy ; Held, a misdirection, for which a new trial must be granted, as the question of its materiality was one of fact, that should have been submitted to the jury. Tyler v. ^tna Ins. Co. 12 Wend. N. Y. 507. 1834. § 2. Whether there has been such misrepresentation in the description of a building (described in application, which in this case was held to be representation merely) as will avoid the policy, is a question to be determined by the jury. Farmers' Ins. & Loan Co. v. Snyder, 16 Wend. N. Y. 481. 1836. § 3. The question, whether the stock of goods, de- scribed in one policy, is the same as those described in another, is a question properly for the jury ; and their find- ing will not be disturbed. Neve v. Columbia Ins. Co. 2 McMuUan, S. C. 220. 1842. § 4. Where policy provided, "that if the risk should be increased by any means within the control of assured, or premises occupied so as to render the risk more hazard- ous than at time of insuring," the insurance should be void ; and it was proved that, after the insurance, the building had been leased, that a back building had been put up adjoining, and another building moved up to the addition, and that extensive repairs were going on in the house at the time of the fire ; ^Z(^,that it was not for the court QUESTIONS FOR COURT AND JURT. 505 but for tte jury to determine, whether the risk had been increased. Grant v. Howard Ins. Co, 5 Hill, N. Y. 10. 1843. § 5. "Whether there has been such a concealment of a material fact as will avoid the policy, is a question to be submitted to the jury. Sexton v. Montgomery County Mut. Ins. Go. 9 Barb. N. Y. 191. 1848. § 6. Insurance was upon a starch manufactory. At time of insurance, assured represented that they were through manufacturing for the season, but afterwards had a fire built to expel the moisture from some starch that was left upon the rack, and whilst so doing the building was destroyed. Defense set up, that assured had misrep- resented, in saying that the manufacturing was through for the season. The jury were instructed that the drying of starch was a part of the " process of manufacturing " if the same fires were used, as in the original process. Held^ that it was not for the court, but for the jury to determine whether such drying was a " manufacturing " or not. Per- cival V. Maine M M. Ins. Co. 33 Me. 242. 1851. § 7. Whether there has been an increase of risk or not, is a question of fact for the jury. Gamwell v. Merchants' &, Farmers' Mut. Fire Ins. Co. 12 Cush. Mass. 167. 1853. § 8. The materiality of a fact concealed, is a question for the jury ; and where it consisted of a previous fire in the same building, it is proper to instruct the jury, that they may consider the true cause of the fire, and not the sus- picions or belief of the insured as to the cause. Protection Ins. Co. V. Harmer, 2 Ohio St. (22 Ohio,) 452. 1853. § 9. Where an application called for the distance of all buildings within ten rods, and stipulated over the signa- ture of assured at bottom, that " all exposures within ten rods are mentioned ;" Held, that it was error to submit to the jury the question as to whether certain buildings 506 QufeSTIOirS FOR COUET AND JURY. witMn that distance were " exposures ;" that the company had reserved the right to pass upon the extent — or whether at all — the risk would be increased by them, and to fix the rate of insurance accordingly. Chaffee v. Cattaraugus County Mut. Ins. Co. 18 N. Y. 376. 1858. § 10. Where a misrepresentation by the assured of his title, if material to the risk, will avoid the policy, the question of materiality is for the jury. Mutual Ins. Co. V. Deale, 18 Md. 26. 1861. § 11. If the notice of a loss to the insurers is sufficient in form, it is for the jury to determine whether it is suffi- cient in substance. Witherell v. Maine Ins. Co. 49 Me. 200. 1861. § 12. The sufficiency of the preliminary proofs of loss, is a question for the court. Commonwealth Ins. Co. v. Sennett, 41 Penn. St. 161. 1861. § 13. The jury must determine from the evidence the degree of particularity in the account of the loss sent to the insurance company the nature of the case admitted of. Franklin Fire Ins. Co. v. Updegraff, 43 Penn. St. 350 1862. § 14. It is for the jury to determine, as a question of fact from the evidence, whether the merchandise insured was destroyed in the " building " described in the policy. Franklin Fire Ins, Co. v. Updegraff, 43 Penn. St. 35Q. 1862. § 15. Where statements in an application are cove- nanted to be true so far as the same are known to the ap- plicant, and material to the risk ; the question as to their materiality and as to the knowledge of the applicant may properly be left to the jury.- Garcelon v. Hampden Fire Ins. Co. 50 Me. 580. 1862. QUESTIONS FOR COURT AND JURY. 507 § 16. A limitation or condition in a policy of insur- ance intended for the benefit of the corporation may be waived by it, and the fact of waiver is a question for the juiy. Coursin v. Pennsylvania Ins. Co. 46 Penn, St. 323. 1863. § 17. Whether spirituous liquors were included in the term " groceries " as used in a particular policy ; Heldt a question of fact for the jury. !Niagara Fire Ins. Co. v. DeGraff, 12 Mich. 124. 1863. § 18. Where the defense to an action on an insurance policy is, that the insured in procuring the policy repre- sented that the value of the property was much more than it in fact was ; Meld, that whether there was any misrepre- sentation as to the value of the property, and if so, whether it was material to the contract, was a question of fact for the jury. Keeler v. Niagara Fire Ins. Co. 16 Wis. 523. 1863. § 19. Whether a false presentation was or was not wilftil and fraudulent, is a question of fact for the juiy, under proper instruction as to the effect of such a repre- sentation. Cumberland Valley Mut.' Protection Co. v. Mitchell, 48 Penn. St. 374. 1864. § 20. The question of identity of the property, where the description is different in two policies, is for the jury ; where there is no dispute as to identity, but the question is whether the terms of the different policies is the same, this, being a subject of comparison between writings, is for the court. Mitchell v. Lycoming Mut. Ins. Co. 51 Penn. St. 402. 1865. § 21. Where there was an application and insurance on goods in a house described, and another application and insurance on a house also described, which latter house was burned ; there being some evidence as to goods being 508 REBXTILD, EEPAm OR EEPLA.CE. insured in tie latter house ; Held, tLat it was a question for the jury whether the goods burned were or not covered by the policy. Beatty v. Lycoming County Ins, Co. 52 Penn. St. 456. 1866. § 22. Whether a disclosure of the interest of an assured was material to the risk incurred, and would have enhanced the premium, is a question of fact for the jury. Insiu'ance Ca V. Chase, 5 Wall. S. Ct U. S. 509. 1866. § 23. Whether the description in a policy covers or fairly describes the property intended to be insured, is a matter of fact for the jury to determine, and the terms of the policy are to be reasonably construed with reference to Ihe whole subject-matter. Tesson v, Atlantic Mut. Ins. Co. 40 Mo. 33. 1867. See Agent, § 43, 46. Alienation, 69. Alteration, 1, 4,5. Applica- tion, 8, 32. Assessments, 23. By-Laws and Conditions, 11. Certificate, 13. Concealment, 12. Construction, 12. Description of Property In- sured, 6. Distance of other Buildings, .11, 14,22. Encumbrance, 19, 26. Evidence, 4. Foreign Insurance Companies, 17. Increase of Risk, 23. Interest in Policy, 22. Limitation Clause, 18. New Trial, 7. Notice of Loss, ft, 29. Other Insurance, 64. Paid Contract, 15. Plead- ing and Practice, 58. Preliminary Proofs, 11, 16. Premium Notes in Advance, 4. Rebuild, Repair or Replace, 7. Title, 7, 36. Usage, 9. Use and Occupation, 2, 17, 32, 42, 52. Warranty and Representation, 20, 23. Watchman, 1, 2, 8. REBUILD, REPAIR OR REPLACE. § 1. Interdict refused against an insurance company's re-building premises destroyed by fire, pending an action to have it found, that a lease of the premises was thereby terminated and that the insured was entitled to their value. Bissel v. Royal Exchange Association Co. 1 Cases in Court of Sessions, 165. 1821. EEBUILD, REPAIR OR REPLACE. 509 § 2. The company have no right to rebuild or replace articles lost, unless such right is expressly given in the policy. Wallace v. Insurance Co. 4 La. 289. 1831. § 3. Under policy giving twenty days to elect to re- place or rebuild, there is no jurisdiction in equity to re- strain assured from removing or disposing of his goods, (before the time of expiration for the company to replace them,) so that they cannot tell what kind of goods they were ; but it would be proper evidence to submit to the jury, and would authorize them to presume that the state- ment of the loss was in bad faith. New York Fire Ins. Co. V. Delavan, 8 Paige, N. Y. 418. 1840. § 4. Policy provided that insurers might rebuild or replace the property lost or destroyed, with other of the like kind or quality, or pay the money, at their election, within sixty days after loss. After the dwelling insured by this policy had been destroyed, the assured endorsed on the policy, " Pay the loss under the within policy to Joseph A. Tolman," which was assented to by the presi- dent of the company. The company then rebuilt the house, and plaintiff brought suit on the policy, for the amount of the policy in money; Held, that the order upon the policy, and assent of the company, did not bind the company to pay the money absolutely, but only operated as an assignment to Tolman of the assured's claim under the policy, without affecting in the least the right of the company to replace the building, or to pay the amount of the loss in money, at their election, according to the terms of the policy; and the company having replaced the build- ing the action could not be maintained. Tolman v. Man- ufacturer's Ins.. Co. 1 Cush.'Mas8. 73. 1848. § 5. Policy, on stock of stationer in Edinburg, in a London company, with clause giving company the option to pay or reinstate. The fire occurred April 13; the statement of loss was filed April 23 ; and on the 22d May, 510 EEBUILD, REPAIR OR REPLACE. after a variety of negotiations for a settlement, tte com- pany intimated their election to reinstate ; Held^ that there had been no such delay as to bar the company from exercising their election to settle in this way. Suther- land V. Society of the Sun Fire Office, 14 Cases in the Court of Sessions, N. S.775. 1852. § 6. An insurance policy for $3,000, on machinery, bound the company to pay that sum in case of loss or dam- age by fire, " unless they shall, within thirty days after proof of such loss or damage, furnish the insured with a like quantity of any or all of the said goods, and of the same quality as those injured by the fire, or shall make good the damage or loss by paying therefor," &c., Held, 1st, the company had the right, under this policy, to pay the damages in money, or repair the old machinery, within thirty days, so as to make it as good as it was before the fire ; 2d, in covenant on this policy, the defendants may show by parol, that, after their liability to repair occurred, by their election to do so, and before the expiration of the thirty days, they made a valid arrangement with the as- sured, by which the time for making the repairs was ex- tended beyond the thirty days ; and performance of this agreement by them discharges the covenant ; 3d, enlarge- ment of the time of performance, waiver of performance by the assured, accord and satisfaction, or tender of per- formance after the accrual by election of the liability to repair, are good defenses to an action on this policy ; and parol proof is admissible to sustain them. Franklin Fire Ins. Co. V. Hamill, 5 Md. 170. 1853. § 7. Where policy reserved the privilege of replacing property destroyed within a reasonable time ; Hdd, in an action upon the policy, that the question whether certain machinery insured had been repaired and replaced within a reasonable time, was a question for the jury, and not for the court, although the facts as to the length, and reasons of the delay in furnishing such machinery, were undis- puted. Haskins v. Hamilton Mut. Ins. Co. 5 Gray, Mass. 132. 1855. REBtriLD, REPAIR OR REPLACE. 511 § 8. A by-law of a mutual insurance company pro- vided that the company might, within a reasonable time, rebuild, repair, or replace, the property lost or damaged ; that when they elected to rebuild or repair, the assured should contribute one-third of the expense, and give suffi- cient security, and that the company " shall not be liable to any action for the loss until such security shall have been furnished, or unless the company shall neglect for thirty days thereafter to proceed to rebuild, repair, or re- place, as the case may be." The property insured were machines for manufacturing boot and shoe laces, which having been destroyed, the company undertook to replace, and the assured reftising to receive or accept them when complete, brought an action on the policy. Held, that the by-law only suspended the right of action on the policy during the time within which the company had a right to rebuild, repair, or replace the property lost or damaged, and if such replacing and repairs commenced within the thirty days after the security had been furnished, had not been finished within a " reasonable time," the action on the policy might be sustained. Haskins v. Hamilton Mut. Ins. Co. 5 Gray, Mass. 432. 1855. § 9. An insurance company who had insured a house from fire, with an option to reinstate it, having elected, in the event of a fire, to reinstate it, employed the defend- ant, a builder, to reinstate it, who used the old walls so far as they remained ; and when he had finished all but a little painting, gave one of the insured a small sum to com- plete it, and got him to sign a certificate that the work was complete, and then received payment from the com- pany. The old walls not bearing the weight of the new work, " bulged." The assured sued the company for not duly reinstating the house, and they defended the action, without defendant's authority, and the assured recovered damages. The company then sued the builder on his con- tract, (the breach being an insufficient and imperfect re- instating,) and also for fraudulent representations, and for costs. The judge told the jury that the defendant was 512 KEBUILD, REPAIR OK REPLACE. only bound to put the building as near as possible in the same state as before the fire ; and they found that he had done so, and that the building was not less secure than before. At the close of the case the plaintiffs relied on the omission of the painting ; but the. jury found that the value was nominal, and that in getting the certificate there was no fi'aud. The verdict was entered for the defendant, the judge telling the juiy, that, in the absence of any ex- press authority to defend the former action, the company could not recover costs ; Held, that the direction was right, and that the plaintiffs were not entitled to a verdict, even for nominal damages ; and that no amendment could be allowed. Times Fire Assurajice Co. v. Hawke, 5 Hurl. & Norm. Exch, 935. 1859. § 10. Where a policy gives to the assurer the right of " re-instatement " in case of loss, at his option ; and he elects after a loss to reinstate and is proceeding to do so, and the municipal authorities cause the building to be taken down as dangerous ; the assurer is not thereby relieved from liability, although the dangerous condition of the building was not occasioned by the fire. Having elected to reinstate, he must either do it or pay damages for not doing it. Brown v. Koyal Ins. Co. 1 Ell. & Ell. 2 B. 853. (102 Eng. C. L.) 1859. § 11. A policy of insurance declared expressly in the body thereof, that the same was made and accepted in reference to the terms and conditions thereunto annexed, one of which conditions was that in case of any loss on or damage to the property insured, it should be optional with the insurers to rebuild or repair the buildings within a reasonable time, on giving notice of their intention to do so, within thirty days after receiving the preliminary proofs of loss. Within the specified time after proof of loss, the insurers served upon the insured written notice of their intention to rebuild the building destroyed. Held, that no action would lie, upon the policy, to recover the amount of the loss, until the neglect of the insurers to comply with REBUILD, REPAIR OR REPLACE. 513 their offer, to rebuild vnthin a reasonable time. The in- surers having elected to pay the loss by restoring the building, cannot be required to pay in any other way. Beals V. Home Ins. Co. 36 Barb. N. Y. 614. 1862. § 12. A wooden building situated within the fire limits of Detroit was injured by fire, and by the ordinances of that city could not» be rej^ired without the consent of the common council, which was refused. The building was insured for $2,000, and the policy contained a clause that in case of loss or damage to the property, it should be optional with the fiompany to rebuild or repair the building within a reasonable time.'' The cost of repairing the building would be much less than the amount of the insurance, but without leave to repair, the building which before the fire was worth $4,000, would be worth less than $100. Held, that the insured was entitled to recover the whole insurance, and was not limited to such sum as would cover the cost of repair. Brady v. North Western Ins. Co. 11 Mich. 425. 1863. § 13. Where premises were insured in two separate companies for distinct sums, and each contract of insurance contained the same stipulations on the subject of electing to rebuild, and both companies united in notifying the in- sured of their election to rebuild after the loss ; Held, that the insured might maintain an action against such com- panies jointly or severally for a breach of the contract to rebuild. MorreU v. Irving Fire Ins. Co. 33 N. Y. 429. § 14. A policy of insurance contained a condition to the effect that it was optional with the insurance company in case of loss to rebuild or repair the building within a reasonable time, giving notice of their intention to do so, within thirty days after service of the preliminary proofs. Immediately after a loss by fire the plaintiff laid a new foundation, and proceeded to erect a new brick building. 33 514 RECEIVEES. WitMn thirty days tte defendants gave notice tliat they availed themselves of the option, and would, rebuild the property. Held, that under these circumstances the con- tract became substantially a building contract, and an action upon the policy to recover the loss could not be , sustained. Beals v. Home Ins. Co. 36 K Y. 522. 1867. See Damages, § 13, 14, 23, 26, 30, 31, Interest in Policy, 1, 5, 14. Successive Losses, 3. • RECEIVERS. § 1. An order of the court of chancery in New York, made upon a summary application, Held, not only obliga- tory upon the receivers, but binding upon all the creditors of the corporation, so long as it remains in full force. In matter of Receivers of Globe Ins. Co. 6 Paige N. Y. 102. 1836. § 2. The receiver of a mutual insurance company takes the place of the directors in ascertaining the claims upon the company, in determining upon the necessity of an assessment and the amount which each member of the company should pay upon his note, with this limitation upon his authority, that he cannot act without the authority and sanction of the court. But his authority depends not upon the order of the court, but upon the existence of facts rendering an assessment proper and necessary. The ne- cessity of sanction and authority of the court is an addi- tional restriction and limitation of the authority, and does not dispense with the other more important condition. Hence in such proceedings the courts do not adjudicate the liability of the company, or determine the amounts for which assessments shall be made. They merely sanction and authorize the acts of the receiver, who acts ministeri- RECOVERY BACK OF LOSSES PAID. 515 ally, not judicially. Thomas v. Whalloii, 31 Barb. K Y. 172. 1857. § 3. Receivers, from tlie mere fact of the insolvency of the company, cannot maintain a suit, under circumstances in which the company could not have done so, nor can they recover any greater amount than might have been recovered by the company. Savage v. Medbury, 19 N. Y. 32. 1859. Devendorf V. Beardsley, 23 Barb. N. Y. 656. 1857. § 4. A receiver of an insolvent insurance company has no power to waive strict proof of claims against the company upon policies issued by it. Evans v. Trimoun- tain Mut. Fire Ins. Co. 9 Allen, Mass. 329. 1864. See Assessments, § 20, 63, 65. Mutual Companies and Members of, 1. Premium Notes in Advance, 2, 3, 6, 13. RECOVERY BACK OF LOSSES PAID. § 1. A loss having been paid on a policy through ignorance that it had become void by a subsequent insur- ance contrary to express stipulation in policy, may be re- covered back ; nor can the defendant resist the re-payment of the money on the ground that he effected the insurance as the agent of the real owner, if such agency was not dis- closed at time of procuring the policy. Columbus Ins. Co. V. Walsh, 18 Mo. 229. 1853. § 2. K a party insured caused the fire by which his goods were destroyed, and should by false representations recover fi'om the insurer, he may be compelled to refund what has been paid him. McConnell v. Delaware Ins. Co. 18 111. 228. 1856. 516 EECOVERY BACK OF LOSSES PAID. § 3, Insurers cannot recover money back, paid under a policy, whicli might Lave been avoided by reason of a misrepresentation, on the part of the assured, or his agent, if, at the time of payment of such loss, they knew, or upon inquiry might have informed themselves, of the grounds upon which they might have resisted the claim ; but if the loss was paid in ignorance of some circumstances attending the loss, and whiqh if known would have en- abled them to resist the claim, the money may be recov- ered back. Mutual Life Ins. Co. of New York v. Wager, 27 Barb. N. Y. 354. 1858. § 4. This was an action brought against the assured and his agent to recover back a loss paid. The declarar tion alleged that, at the time of the fire, the assured had no interest in the premises ; that defendants represented that assured had an interest in the premises, which repre- sentation was false and known to be false at the time ; Held^ that it was incumbent on plaintiffs to prove the fact, according to their allegation, that such representation was made by both defendants, or by one with the knowledge and authority and in behalf of the other, and then to prove that this representation was false, by showing that assured had no intei-est in the house, and sustained no loss by its being burnt, and thereby wrongfully obtained the pay- ment of the loss not due. Berkshire Mut. Fire Ins. Co. v. Sturgis, 13 Gray, Mass. 177. 1859. See Contribution, § 15, REFORM OF POLICY. § 1. Memorandum for policy on " Grrist Mill" handed to company, who executed policy on " Mill house," which insured carried off without examination. Policy corrected so as to conform to memorandum. Phoenix Fire Ins. Co. V. Gurnee, 1 Paige, N. J. 278. 1828. § 2. Where the policy delivered to assured differed in its terms from the agreement for insurance, and -it ap- peared that the clerk received the policy, placed it in the safe, without any examination on the part of the assured, then or afterwards, untU the occurrence of the loss ; JleM, that there was no such acceptance of the policy by the as- sured, as would prove that they had waived the original contract, or taken this policy as a consummation of it, and as they still held the original agreement in writing, they might enforce it in equity. Franklin Fire Ins. Co. v. Hewitt, 3 B. Monroe, Ky. 231. 1842. § 3. Where agreement for policy, and policy as writ- ten, vary; or where mistake has been made by agent of insurers ; a court of equity will compel a performance of original agreement, and correct the mistake. Franklin Fire Ins. Co. v. Hewitt, 3 B. Monroe, Ky. 231. 1842. § 4. Where in an application for insurance on a mill, to which applicant had only the equitable title, and which was encumbered to the amount of $800.00, but all the facts were duly disclosed to the agent, who filled up the application and inserted that " assured was the owner of the mill and that premises were not encumbered," and afterwards communicated the true state of title to the company when sending them the application and premium note, and the company afterwards made assessments on 518 REFORM OF POLICY. assured witli a knowledge of these facts ; Held, that a court of chancery had power to reform the contract and grant relief. Harris v. Columbia County Mut. Ins. Co. 18 Ohio, 116. 1849. § 5. Where bill is filed to compel issue of policy on a contract previously made, proof of such contract must be conclusive. If matter left in doubt, on the whole evidence, bill will be dismissed. Suydam v, Columbus Ins. Co. 18 Ohio, 459. 1849. Neville v. Merchants and Manufactur- ers' Mut. Ins. Co. 19 Ohio, 452. 1850. § 6. The policy was filled up in the name of A. Bex, mortgagee, of Philadelphia. The mortgage was made to him, but long before the insurance had been assigned to A. Eex, of Lebanon county. The application produced was A. Eex, of- County, in the handwriting of an agent of the insurers. The preliminary proofs were by A. Kex, of Lebanon county, and were received by the company without objection. The referee in making his award de- cided that the intention was to insure A. Eex, of Lebanon, and that the addition of "Philadelphia" was a clerical er- ror, that might be rejected. Held, that there was no such plain mistake of fact or law, in such finding of referee, as to justify the setting aside the .award. Eex v. Insurance Co. 2 Philadelphia, Pa. 357. 1858. § 7. Where a court of equity is asked to reform a written contract, on the ground of mistake, the mistake charged must be proved in the most clear and unequivo- cal manner ; the proof must be free from all reasonable doubt, almost, if not quite incontrovertible, and clear and overwhelming. National Fire Ins. Co. v. Crane, 16 Md, 260. 1860. § 8. An error in the description, which crept into the policy through the mutual mistake and misunderstanding of the parties, was held in the Supreme Court not to be ground for decreeing a correction, the policy in such case REFORM OF POLICY. 519 correctly representing the understanding of the parties, but the understanding being erroneous. New York Ice Co. V. North Western Ins. Co. 10 Abb. Pr. N. Y. 34. 1860. But on appeal, held, that such a mistake should be corrected. New York Ice Co. v. North Western Ins. Go. 23 N. Y. 357. 1861. § 9. The policy stipulated that the defendants " do insure William Longhurst (mortgagee), Dubuque, Iowa, against loss," &c. The petition averred that the interest of L. was a mechanic's lien ; that the term " mortgagee," in the policy, was inten,ded to describe that interest ; that the nature of the interest was made known at the time of the application, and was mis-described by mistake of the agent of the defendants, who said that the description was sufficient to indicate the real interest. Issue was taken upon these averments, and a stipulation was filed, signed by the parties, that any evidence, to correct any mistake in the terms of the policy sued on, which could be given in a proper chancery proceeding, might be introduced in this proceeding. Sisid, that the policy, and testimony showing the mistake and facts averred, were competent and admissible in evidence under the pleadings and stipu- lation ; overruling the objection taken, that the mistake alleged, consisting in the supposition that the term " mort- gagee" would describe a mechanic's lien, was a mistake, not of fact, but of law, and could not therefore be corrected. Stout V. City Fire Ins. Co. of New Haven, Supreme Court of Iowa, June Term, 1861. § 10. The defendants having issued a policy to A. upon property which, in fact, belonged to B. his wife, were asked to correct this error, and to make the loss pay- able to the wife's mortgagee ; and their secretary merely indorsed a memorandum that the loss, if any, was payable to the mortg^ee. The mortgagee having accepted the poli- cy with this indorsement, and without a correction of the mistake in the name of the assured ; Meld, that he could not recover, and that it was too late, after a loss, to alter or reform the policy. Solms v. Eutgers Fire Ins. Co. 8 Bosw. N. Y. 578. 1861. 520 REFORM OF POLICY. § 11. Where a mortgagee applied for insurance through the local agent of an insurance company, intend- ing to procure an insurance of his mortgage interest and so stating to the agent, but the agent drew the application as for an insurance on the property itself, in the name of the mortgagor and as his property, the amount to be payable in case of loss to the mortgagee ; and so made the applica- tion and had the policy so issued in the belief that such was the proper legal mode of effecting an insurance on the mortgage interest; Held, that the mistake could be cor- rected by a court of chancery although it was one of law and not of fact. Woodbury Savings Bank v. Charter Oak Ins. Co. 31 Conn. 517. 1863. § 12. Where application was made to an agent of an insurance company authorized to take risks, for a policy upon a mechanic's lien interest in real estate, and a policy was issued in which the interest of the assured was de- scribed as that of a mortgagee, both parties believing that the description embraced the interests of a mechanic's lien ; Held, that the contract would be so reformed in equity as to make it express the real intent of the parties. Long- hurst V. Star Ins. Co. 19 Iowa, 364. 1865. § 13. To afford grounds for reforming a policy for a mistake, the mistake must appear to have been mutual. Cooper V. Farmers' Mut. Fire Ins. Co. 50 Penn. St. 299. 1865. § ,14. A court of equity will reform a policy or other written contract, upon parol evidence, when the agreement really made between the parties has not, through accident or mistake, been correctly incorporated into the written instrument ; but both the agreement and the mistake must be made out by the clearest evidence, according to the understanding of both parties as to what the contract was intended to be. The court cannot supply an agreement that was never made. Tesson v. Atlantic Mut. Ins. Co. 40 Mo. 33. 1867. See Agent, § 36. Construction, 15. Endorsements, 1. Evidence, 46. Lamitatioii Clause, 24. Beuewal of Policy, 1. RE-INSURANCE. § 1. Every re-insurance in England, either by British subjects or foreigners, whether on British ships or foreign ships, is void. Andree v. Fletcher, 2 Term Rep. 161, 3 Term Eep.* 266. 1789. § 2. By 19 George 11., C. 37, S. 4, it is not lawful to make I'e-assurance, unl§ss the insiirer be insolvent, become bankrupt, or die ; in either of which cases the assurer, his executors, administrators, or assigns, may make re-insur- ance to the amount of the sum before assured by him, pro- vided it be expressed in the policy to be a re-insurance. Andree v. Fletcher, 2 Term Kep. 161, 3 Term Rep. 266. 1789. § 3. Re-insurance is a valid contract at the common law, and thwe is no difference in principle between re-in- surance against fire, and re-insurance against loss by the perils of uie sea. The risk assumed by the first under- writer, in relation to the subject-matter, constitutes an in- surable interest. Where the act of incorporation gave to one company the power " to make contracts of insurance against loss by fire of any houses or buildings whatsoever, and of any goods, chattels, or personal estate whatsoever," and to the other the power " to make all kinds of insur- ance against losses by fire, of any houses or buUdings whatsoever; and also upon all goods, wares and merchandise whatsoever ;" ffeld, that a re-insurance was included in such power, and that the subject-matter of insurance was the same in the policy of re-insurance as in the original insurance, though the interest was different. In such con- tract, the condition of policy requiring preliminary proofs, tfec, is complied with, by the first underwriter transmit- ting to the re-insurer, the proofs made by the original as- sured. New York Bowery Fire Ins. Co. v. Kew York Fire Ins. Co. 17 Wend. N. Y. 359. 1837. 522 RE-INSUEANCE. § 4. From tlie nature of the contract of re-insurance, and the want of privity between the re-insurer and the person first insured, it does not come within the rule, that the principal creditor is in equity entitled to the benefit of the contract of re-insurance. Herckenrath v. American Mut. Ins. Co. 3 Barb. Ch. N. Y. 163. 1848. § 5. The re-insurer is liable for the costs and expenses incurred in a suit between the original insured and the company re-insiu'ed, if the re-insurer withhold payment until the termination of such suit. New York Central Ins. Co. V. National Protection Ins. Co. 20 Barb. N. Y. 468. 1854. § 6. Re-assured can collect of re-insurer before pay- ment to the original insured; and though the company re-insured become insolvent, the re-insurer is not released from payment in fall, by reason thereof. Eagle Insurance Co. V. Lafayette Ins. Co. 9 Ind. 443. 1857. Home v. Mu- tual Safety Ins. Co. 1 Sandf N. Y. 137. 1847. § 7. Re-insurers may make every defense the re-in- sured could then make, when loss remains unadjusted be- tween re-insured and party originally insured, on the terms and conditions of the policy; and where the re-in- sured is not liable on the original policy, a recovery can- not be had against the re-insurer. Eagle Ins. Co. v. Lafay- ette Ins. Co. 9 Ind. 443. 1857. § 8. By the terms of the contract of November 30, 1854, the defendants "re-insure the American Mutual In- surance Company, of Amsterdam, upon the following policies issued by them," (a detailed statement of which policies was embodied in and formed part of the contract,) " loss, if any, payable to the assured upon the same terms and conditions, and at the same time, as contained in the original policies. Re-insured, from November 30, 1854, twelve o'clock at noon, to the expiration of the policy." The American Mutual Insurance Company becoming in- solvent subsequent to taking out the above policy of re-in- BEMOVAL. 523 surance witli tte defendants, one of the parties originally insured brought an action to recover of defendants a loss sustained by him. Hdd^ that the word " assured," as used in the contract of re-insurance, meant the party re-insured, and that the plaintiff had no interest in, or lien upon, the contract in question, and no right to maintain an action thereupon ; that the money which the defendants might pay under it, would form part of the assets of the company, which insured plaintiff origiaally, and fix)m which the plaintiff must be paid j>?*(? rata with the other creditors of the insolvent company. Held further, that parol evidence to show that the re-insurance was intended to protect the parties originally insured, and that the word " assured " was used with reference to that object, was inadmissible. Carrington v. Commercial Fire § 13. K the owner of property, which is insured by a policy containing an express provision that the by-laws of the company shall form a part thereof, mortgages the same in violation of one of the by-laws, the policy is defeated; and no right of action thereon remains in favor of one to whom it had previously been assigned with the consent of the company to secure a prior mortgage. Edes v. Hamil- ton Mut. Ins. Co. 3 Allen, Mass. 362. 1862. § 14. After an assignment of a policy of insurance with the consent of the insurance company, a non-compli- ance with the terms of the policy by the assignor, in mat- ters material to the interests of the company, will avoid it as against the assignee. Pupke v, Resolute Fire Ins. Co. 17 Wis. 378. 1863. RESPONSIBILITY OF ASSIGNEE FOE ACTS OF ASSIGNOE. 533 § 15. No act of the party insured, after an assignment of the policy with the assent of the insurers, can impair the rights of the assignee. New England Fire & Marine Ins. Co. V. Wetmore, 32 Bl. 221. 1863. § 16. "Where it is provided in by-laws which are a part of a contract of insurance, that " when any property shall be alienated, by sale or otherwise, the policy thereupon shall be void," if the insured, after mortgaging the property and assigning the policy with the consent of the insurers, con- veys his equity of redemption without such consent, the policy thereupon becomes void. Lawrence v. Holyoke Ins. Co. 11 Allen, Mass. 387. 1865. § 17. A policy upon a house described therein as " oc- cupied for a dwelling-house, the basement being of stone and wood," becomes void in the hands of a mortgagee to whom it has been assigned, by the use and occupation of the basement of the house, after the assignment and before the loss, as a joiner's shop, although such change of use was unknown to the mortgagee ; the charter expressly pro- viding, that " no policy shall extend or be construed to extend " to such and other specified risks, " unless the same are expressly mentioned in the policy, and a proportional premium and deposit paid." Hoxsie v. Providence Mut. Ins. Co. 6 R. L 517. I860. See Alienation, § 21, 35, 40, 52, 66. Assignmrait, 13. Dependency of Policy and Premium Note, 18. Encumbrance, 24. Interest in Policy, 11. Other insurance, 31, 54. EESPONSIBILITY OF ASSUKED FOE ACTS OF OTHERS. § 1. Where assured represented in Ms 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. Mass. 416. 1853, § 2. The premises insured were leased before, and sub- leased after, the date of the policy ; and the risk was in- creased by acts of sub-lessees. A by-law provided, that " whenever the risk of any insurance is increased by the act of the assured, the policy shall thereupon be void." Held, that assured was not responsible for acts of the sub- lessees, done without his consent or knowledge, and that he was entitled to recover. Sanford v. Mechanics' Mut. Fire Ins. Co. 12 Cush. Mass. 541. 1853. § 3. Under provision in charter "against alteration by acts of the proprietors ;" a tenant is not the proprietor within the meaning of that section ; it refers to the insured owner, and it must be his act, one that he does himself, or authorizes to be done, or one which he adopts as his before any loss occurs. Paddleford v. Providence Mut. Fire Ins. Co. 3 R. L 102. 1855. § 4. The keeping of straw upon the insured premises, so as to increase the risk, by a tenant of the insured, and without the latter's knowledge or consent, will not avoid the policy. White v. Mutual Fire Ins. Co. 8 Gray, Mass. 566. 1857. RETURN PREMIUM. 535 § 5. A stipulation in a policy that if any agent of tlie company, in the transaction of their business, shall violate the conditions, the violation shall be construed to be the act of the assured and shall avoid the policy, will not render the assured responsible for the mistakes of the agent. Columbia Ins. Co. v. Cooper, 50 Penn. St. 331. 1865. See Alteration, § 5. Burning by Design, 4. Increase of Risk, 20. Negligence, 3. Other Insurance, 85. Use and Occupation, 28, 35, 37, 41, 46, 48, 64. Warranty and Representation, 16. RETURN PREMIUM. § 1. An action for money had and received vyill not lie to recover the premium of a re-assurance void by statute of 19 George 11. C. 37, S. 4. Andree v, Fletcher, 2 Term Kep. 161. 3 Term Kep. 266. 1789. § 2. Where assured had alienated the insured prop- erty, and offered to surrender his policy and take up his deposit note; Held, that under the charter of the company^ he had the election, without the assent of the company, thus to surrender his policy, and was entitled to that por- tion of his funds which had not been appropriated for losses and expenses previous to the surrender of the policy. Sullivan v. Massachusetts Mut. Fire Ins. Co. 2 Mass. 318. 1807. § 3. Where risk never attached, the premium must be returned, if there was no fraud. In this case an ac- tion was brought on the policy, with counts for money had and received. There had been renewals, running back many years. The policy was held void, for non- compliance with warranty in original application, to which 536 REVIVAL AND SUSPENSION OF POLICY. all the renewed policies referred. Plaintiff held entitled to all renewals paid by him, within the statute of limit- ations. €lark V. Manufacturers' Ins. Co. 2 Wood. & Mi- not, C. C. U. S. 4T2. 1847. § 4. If a policy is obtained by fraudulent misrejH-e- sentations, and never attached for that reason, no premium is returnable. Friesmuth v. Agawam Mut. Ins. Co. 10 Cush. Mass. 587. 1852. § 5. If the by-laws of a mutual insurance company provide that policies may be surrendered at any time to be cancelled, and that the insured shall receive the return premium in accordance with a certain table, and, after an injunction has been laid upon the company, the directors, under the authority of the court, have duly cancelled aU the outstanding policies, the return premiums due to the policy-holders are just claims against the company, and may be included among the items of liability, in making an assessment upon the deposit notes. Fayette Mut. Fire Ins. Co. V. Fuller, 8 Allen, Mass. 27. 1864. See Countersigning by Agenl^ § 2, Title 1. REVIVAL AND SUSPENSION OF POLICY. § 1. A corporator of a mutual fire insurance company effected insurance on his individual property, and gave to the company a note for the amount of the premium of in- surance. A by-law was subsequently passed by a meeting of the managers, at which he was not present, which pro- vided " that if the interest of any note be in arrear at any time for three months, the policy shall be suspended and REVIVAL AND SUSPENSION OF POLICY. 537 of no effect to make the company liable for loss, until the interest be paid." Upwards of three years after the pas- sage of the by-law, notice of it was given to him by a circular letter, and within thirty d^s after the notice, his property was destroyed by fire. Hdd^ that the company could not, by the passage of a by-law, without consent of the assured, prevent his recovering upon the policy, that the only remedy of the corporation for the non-payment of interest was that given to them by the charter, to wit : the calling in of the entire principal sum of the note ; and that theynad no power to forfeit his rights under the con- tract. Insurance Co. v.» Conner, 17 Penn. St. 136. 1851. § 2. Where, contrary to the provisions of the policy, the assured obtained a subsequent insm'ance without notice or consent of the first insurer; Held, that the company had not waived a compliance with such condition, because, long after the obtaining of sudh second insurance and without any knowledge on the part of the company, that it had been obtained, their treasurer, in issuing his note of assessment, endorsed, in a printed form,.a schedule of losses claimed of the company, in which the claim of the assured was included, but with a note appended, showing it as " unadjusted." Forbes v. Agawam Mut. Fire Ins. Co., 9 Cush. Mass. 470. 1852. § 3. A policy in a mutual insurance company, issued to the plaintiff, was by its terms to be " suspended," if the assured should neglect for ten days to pay an assessment levied. Nearly fifteen months after the policy was sus- pended in consequence of non-payment of two assessments, the assured sold the property to another party, and with the consent of the company, assigned the policy to such party, who at the same time executed a mortgage back to plaintiff, and re-assigned the policy to plaintiff, with con- sent of the company. At the time of this sale and assign- ment of the policy, the purchaser of the property was not informed of the defect in the policy, by reason of the non- payment of the assessments ; Hdd, that the directors of 538 REVIVAL Am) SUSPENSION OF POLICY. the coaipany, if they meant to insist on this oljjection, should have spoken then ; but not having informed the purchaser of the fact, they must be understood to have waived it, and could not be permitted to set it up to defeat an insurance, to which the purchaser of the property had innocently trusted till the loss happened. Hale v. Union Mut. Fire Ins. Co., ,32 N. H. 295. 1855. § 4. Where policy provides that if the insured shall neglect for ten days, when personally called upon, to pay any assessment, the risk of the company on the policy shall be suspended till the same is paid ; there can be no recov- ery for a loss occurring ten days after such assessment has been demanded and left unpaid. The policy is then sus- pended until such assessment be paid. Blanchard v. At- lantic Mut. Fire Ins. Co., 33 N. H. 9. 1856. § 5. Where policy had been suspended by reason of a non-payment of an assessment ; Sisld, that the company could not be considered as having waived their right to be exempted from liability for the plaintiff's loss, by their subsequent assessment and collection to cover it. Nash V. Union Mut. Fire Ins. Co., 43 Me. 343. 1857. § 6. Where the company has been discharged from liability by want of notice of loss in due time ; responsi- bility for the loss will not re-attach to them, without proving authority in the agent to waive the notice, or a new consideration to sustain it. Trask v. State Fire & Marine Ins. Co., 29 Penn. St. 198. 1858. § 7. A policy, void ab initio by mis-representation of title, is not rendered valid by an approval, by the directors of the company that issued it, to an assignment thereof of the assured's interest therein; and the assignee cannot maintain action on it, although the title came to him be- fore the loss. Eastman v. Carroll County Ins. Co., 45 Me. 307. 1858. EISK. 539 § 8. Where a policy had been forfeited by a convey- ance of the property insured without the consent of the company, and the alienee, subsequently supposing the pol- icy to be good, assigned it to a mortgagee, and, inform- ing an agent of the company of his purchase, requested consent to the assignment, and the agent wrote across the face of the policy the words " the loss, if any, to be pay- able to C, mortgagee." Held, that the company thereby waived the forfeiture, and continued the policy in force. Keeler v. Niagara Fire Ins. Co., 16 Wis. 523. 1863. See Agent, § 49. AlienatSoii, 3, 9, 42. Assessments, 45. Camphene, 1. Construction, 20. Dependency of Policy and Premium Note, 1, 2, 3, 8, 9, 16. Parol Contract, 2. Prepjium Notes, 4, 7. Storing and Keep- ing, 4. Use and Occupation, 58, 60. RISK. § 1. Condition, that insurers would not be liable for any loss by reason of any invasion, or any military or usurped power. The house was burned by a mob. Held, that the loss was not by reason of any usurped power within the meaning of the policy. Drinkwater v. Lon- don Assurance Co., 2 Wilson, 363. 1767. § 2. The words, " civil commotion," in a policy of in- surance against fire, excludes losses happening in conse- quence of the riots in London in 1780. Longdale v. Ma- son, 2 Marsh, on Lisurance, 792. 1780. § 3, Insurance " against all losses which defendants should suffer by fire " on stock and utensils in sugar house. By reason of negligence, in building fire without unclos- ing register on top of chimney, which had as usual been closed the night before, the rooms were filled with sparks 64:0 EISK. and smoke, and the walla were blistCTed. and the sugar injured by the heat ; but there was no actual fire. JBeld, not a loss within the policy. Austin v. Drewe, 6 Taunt. 426. (1 E. C. L, 691.) 1816. Austin t. Drewe, 4 Camp. N. P. 360. § 4. It having been found by verdid; of a jury, that a building protected by a policy, had been injured by the falling of the gable of another house, in consequence of fire in that house; JleM, that the insurers were liable, although the house insured had not been on fire, and the gable of the other house had stood for two days after the fire was extinguished, and fell in the course of operations by order of the Dean of Guild, with the view of taking it down. Johnston v. West of Scotland Ins. Co., 7 Cases in the Court of Sessions, 52., 1828. § 5, Where a steamboat was insured against " loss or damage by fire," and an explosion of gunpowder caused the destruction of the boat by burning ; £[eld, that as the explosion was caused by fire, the latter was the proximate cause of the loss. Waters v. Louisville Ins. Co., 11 Pet. Cr. S. 213. 1837, § 6. A policy on merchandise agreed to make good to the assured all such loss and damage to the property as should happen by " fire." In the great fire in New York, •the store containing the goods insured, was, by order of the mayor, blown up with gunpowder to prevent the spread of the conflagration. At the time this was done, the buildings all around were on fire, and were afterward destroyed, and according to every probability " the fire would have destroyed the store in question, if it had not been blown up." Held, that this was a loss by fire, with- in the meaning of the policy. City Fire Ins. Co. v. Cor- Kes, 21 Wend. K Y. 367. 1839. § 7. Where a building insured was torn down to pre- vent the spread of fire, and partly paid for by order of RISK. 541 the corporation ; HeM^ that the insurer was liable, to the amount of the policy, for the full value of the building, less the amount received ^soxa. the city, after deducting from such amount a proportionate share of the costs of recovery against the city. Pentz v. ^tna Ins. Co. of New York, 9 Paige, N. Y. 568. 1842. Keversing 3 Edw. Ch. N.Y.341. 1839. § 8. Where sugar and molasses, contained in a sugar house and covered by an ordinary fire policy, are destroy- ed by an explosion of the steam boilers used in manufac- turing sugar ; the dami^ having been produced by the explosion and not by fire, the insurers will not be re- sponsible. Millaudon v. New Orleans Ins. Co. 4 La. An. 15. 1849. § 9. In order to exempt an insurance company from liability for loss by riot, it is not necessary that the guilt of the rioters should have been first established by a criminal prosecution. Dupin v. Mutual Ins. Co. 5 La. An. 482. 1850. § 10. Where a house is destroyed by a riotous as- semblage, and there is a clause in the policy excepting a loss of that character, the insurance company is not liable for the loss ; and it is in such case immaterial that the rioters originally assembled for a lawful purpose, but afterwards were guilty of riot. Dupin v. Mutual Ins. Co. 5 La. An. 482. 1850. § 11. " Loss or damage by fire," includes a loss caused partly by an explosion of ^npowder on the premises, and partly by burning. Scriptur v. Lowell Mut. Ins. Co., 10 Cush. Mass. 356. 1852. § 12. A policy against fire, provided " that the in- surer would not be liable for any loss occasioned by the explosion of a steam boiler;" the fire was caused by an explosion of a steam boiler in the manufactory insured ; 542 RISK. Held^ that it was a loss within the excepted peril men- tioned in the condition, and eotrld not, therefore, be re- covered. St. John V. American Mut, Marine & JFire Ins. Co. 1 Duer,K. Y. 371. 1852. Affirmed, 1 Kern. N. Y. 516, 1854. § 13. An insurance against fire, effected upon a cer- tain quantity of coal, covers not only the coals deposited at the time, but those deposited since, and covers also the risk arising from the spontaneous combustion of such coal. British American Ins. Co. v. Joseph, 9 Lower Can- ada, Q. B. Appeal Side, 448. 1857. § 14. Losses arising from Tyona fide efforts to extinguish fire, such as wetting and soiling of goods, and losses by theft consequent upon their removal, are ■ fairly within the contract of insurance against fire. Whitehurst v. Fay- etteville Mut. Ins. Co. 6 Jones Law, N. C. 352. 1859. § 15. A party setting fire to grass upon his land at an improper and unfitting time, is by that mere fact, re- sponsible for the loss thereby of a threshing machine, which had been brought on his land to thresh his grain. Hynes v. McFarlan, 9 Lower Canada, Q. B. Appeal Side, 502. 1860. § 16. Assuming the risk of a steam flouring mill, in- volves the assumption of those things fairly and properly connected with such a business, as part of and apper- taining to it, whether newly introduced, or used before the insurance was effected, or not. Merchants' and Man- ufacturers' Ins. Co. V. Washington Ins. Co. 1 Hand. Ohio, 181. 1854. § 17. Where plaintiffs effected an insurance upon their stock of " flour, grain, and cooperage, contained in their stone and brick steam flouring mill, vnth a cement roof, known as the city mills, detached from all other EISK. 543 "buildings ;" and it was agreed that " thereafter," none of the following trades should be carried on therein, viz : grist, saw, paper, and other mills, manufactories, or mechanical op- erations requiring fire-heat, or in which wood chips or shav- ings are made, and at the time of the loss the business of "kiln drying corn meal," requiring ^^^ai, was carried on in the building ; Held, that as kiln, drying corn meal was an incident to a " steam flouring miU," the policy was valid. Merchants' & Manufacturers' Ins. Co. v. Washing- ton Ins. Co. 1 Hand. Ohio, 181. 1854. § 18. Insurance s^ainst fire was effected on goods contained in a store ; one of the walls gave way, and half of the store and the whole of the adjoining building fell; before there was time to remove the goods, fire broke out in the adjoining building, and communicated with the insured premises ; Meld, that the insurers were liable for damage from fire, and from water used to extinguish it, to goods not displaced or injured by the fall. Lewis v. Springfield Fire e afterwards occupied as a " boarding-house," if " board- ing-houses" are not enumerated in classes of hazards, or otherwise prohibited. Rafferty v. New Brunswick Fire Ins. Co., 3 Harrison, N. J. 480. 1842. § 13. The owner of a house, which has been insured, has a right to have it occupied by any one he pleases; provided the occupation of such persons, or the property placed in the house, is not of a nature to vitiate the policy, under the condition relative to the hazardous or extra hazardous risks. Lyon v. Commercial Ins. Co., 2 Rob. La. 266. 1842, § 14. The policy provided that in case the building should be appropriated, applied or used to or for the pur- pose of carrying on or exercising therein any trade, busi- ness or vocation, denominated hazardous, extra hazardous, or specified in the memorandum of special rates, the policy should be of no effect, so long as the building should be so used. The memorandum referred to, specified " houses building or repairing." Held, that these words taken in connection with the provision of the policy, related to car- rying on the trade or occupation of house building or house repairing in or about the building insured, and not to the repairs of the particular building itself; it was the appropriation of the building to these purposes, that the policy prohibited, and that under it assured might make all necessary repairs without avoiding his policy. Grant V. Howard Ins. Co., 5 Hill, N. Y. 10. 1843. § 15. On general principles (in the absence of any stipulation in the policy on the subject), a policy is not avoided by an alteration in the trade carried on upon the premises ; and a condition, requiring the insured " to com- municate any circumstance, which is material to be made known, to the company, to enable them to judge of the risk they have undertaken," has reference to the time when the policy was effected, and does not apply to what may USE AND OCCUPATION. 609 take place afterwards. Pirn v. Raid, 6 Man. & Grrang. 1. (46 E. C. L. 1.) 1843. See comuieiits on this case in Silem V. Thornton, 3 Ellis & B. 868. § 16. Where application, which was made part of the policy, described the premises insured as occupied for a " grist mill," and it was proved to have been also occupied for " carpenter's work ; " Meld, to be a warranty as to occu- pation, breach of which avoided the policy. Jennings v. Chenango County Mut. Ins. Co. 2 Denio, N. Y. 75. 1846. § 17. Plaintiff in his application, which was referred to and made part of the policy, described building as oc- cupied by several tenants for certain purposes. In 1843, when the policy, issued upon this application, was about to expire, he made application for forther insurance upon same premises, and wrote in the application for the second insurance, " For particulars relative to the description of the brick store, reference is had to my application for policy. No. 12018," which was the first application. This last application was also referred to and made part of the second policy. At date of the second appKcation and policy, the occupations were different, and, as appeared, by agreement of the parties themselves, more hazardous than at date of first insurance. Held, that the statements of the occupation of the premises in the application were merely representations, and not express warranty; and that the plaintiff was bound by them no farther than they were material ; and the materiality of such representations was to be determined by the jury. Boardman v. New Hampshire Mut. Fire Ins. Co. 20 N. H. 551. 1847. § 18. The premises insured were described as "occu- pied by G., as a private dwelling." Jffeld, that this was an affirmative stipulation that the house was then occupied by Gr., but not a promissoiy agreement that he should con- tinue to occupy it ; and assured might recover, although the house had been vacated before, and was yet vacant at 39 310 USE AND OCCUPATION. the time of the fire. O'JSTeill v. Buffalo Fire Ins. Co. 3 Oomst. K Y. 122. 1849. § 19. This policy was on certain barns, and contained the following statement : " All the above described barns ire used for hay, straw, grain unthreshed, stabling, and shelter." Held^ that these words were descriptive, and aot a warranty that the barns should be used only in the nanner described ; that assured had the right to use his barns in the ordinary way ; and that for assured to mix md keep paints in his barn, while painting his house, was m ordinary use of the same among Connecticut farmers. Billings V. Tolland County Mut. Fire Ins. Co. 20 Conn. L39. 1849. § 20. A mere change in the occupation of a house in- sured against fire, without notice, &c., there being no )ther alteration in the manner or purpose of occupation^ (vill not avoid a policy of insurance effected under the pro- visions of the act 6 Wm. IV, Ch. 18, incorporating the Wellington District Insurance Company. Nor is a lease jf the house insured, for one year, " an alienation" within the act. Hobson v. Wellington District Ins. Co. 6 Upper Danada, Q. B. 536. 1849. § 21. In an insurance upon a house in process of building, a statement, in reply to inquiry, that there are ao stoves in it, must be understood to mean that no stove is to be habitually kept and used in it, as stoves are ordi- Darily used in a dwelling house. The use of a stove for a few days, subsequent to the effecting of the insurance, and for a purpose connected with the finishing of the house, is not a violation of the warranty. WiUiams v. New England Mut. Fire Ins. Co. 31 Me. 219. 1850. § 22. Where assured's tenant had a fire among some chips under a wood house, and adjoining the tavern, being the buildings insured, for the purpose of extracting grease USE AND OCCUPATION. 611 from spoiled meat, and the policy contained a provision that the premises should not be used for " the purpose of carrying on therein any trade or business denominated hazardous or extra-hazardous, &c., which would increase the hazard, without the consent of the insurer ; " Held, that the said provision pointed only to a permanent alter- ation in the business, and as the act done was a mere tem- porary affair, it did not avoid the policy, though it might, and probably did, increase the risk. .Gates v. Madison County Mut. Ins. Co. 1 Seld. X. Y. 469. 1851. § 23. The use of a room for the drawing of a lottery in a building insured as a " shoe manufactory " vsdth per- mission of the assured, vrill not, in the absence of any pro- hibition in the policy, avoid the policy either on building or on stock, although the drawing of such lottery was an unlawful, act. Boardman v. Merrimack Mut. Fire Ins. Co. 8 Cush. Mass. 583. 1851. § 24. There is no rule of law or usage, which requires the owner of an untenanted house to have it guarded by a keeper, to enable him to recover his insurance in case of a loss of the building by fire. Soye v. Merchants' Ins. Co. 6 La. An. 761. 1851. § 25. Where a policy described insured property as occupied by a certain individual, a change of tenants, there being no provision in the policy prohibiting it, vdll not avoid the policy, though the first tenant may be a care- fully prudent, and the second a grossly negligent one. Gates V. Madison County Mut. Ins. Co. 1 Seld. IN. Y. 469. 1851. § 26. Where policy was for " $2,000 on their stock as rope manufacturers contained in their brick building with tin roof occupied as a store house, and situate," &c., and no written application had been made, and it was in proof that a part of the building was used for hackling 612 USE AND OCCUPATION. hemp and spinning it into rope yarns ; Held^ that the de- scription " occupied as a store-house," was a warranty that the building was occupied as a store-house only, and the additional occupation, therefore, avoided the policy. Wall V. East Eiver Mut. Ins. Co. 3 Seld. N. Y. 3T0. 1852. § 27. Where policy was for $1000 on brick ware- house on Water Street between Morgan & Green Streets in block 1 5 Saint Louis, " to be occupied as three stores, but not as Coffee Houses ; " and subsequent to execution of the policy, and before and at time of the fire, one of the tenements was used as a- coffee-house, though the fire orig- inated in another tenement; Held^ that the words, " not to be used as Coffee- Houses," were equivalent to a warranty that the premises should not be used for that purpose, and the plaintiff could not recover. Lawless v. Tennessee Marine & Fire Ins. Co. Ct. Ct. St. Louis, Mo. 1852. Cited in Angel oir Fire & Life Ins., note 2, to § 169. § 28. A policy of insurance was on his brick dwell- ing and stores, and no other description of the building or business to be carried on therein ; and in the printed body of the policy it was stipulated, that, " if these prem- ises shall hereafter be appropriated, applied or used, to or for the purpose of carrying on therein any trades, business or vocations denominated hazardous, extra hazardous, OCCUPATION. 627 the agent who issued the policy knew that the building was / then occupied. The occupant afterwards moved out, and the building remained unoccupied seven months, when it f was destroyed by a fire the origin of which was unknown. The insured knew that the premises were vacant, but I gave no notice of the fact to the company, and did not pay or offer to pay an additional premium. Hield, that ' the policy had become void. Wustum v. City Fire Ins. Co. 15 Wis. 138. 1862. § 58. Where a policy of insurance provided, that should the premises insured be applied during the term of the insurance to any of certain prohibited uses, the policy then and from thenceforth, so long as the same should be so appropriated, applied or used, should cease, and be of no force or effect. Held, that the application of the property to a prohibited use, within the term, would not affect the right of the assured to recover in case of a loss, if, at the time of the loss, the property was not being so improperly applied or used, and it did not appear that such antecedent misapplication increased the risk or contributed to the loss. New England Fire & Marine Ins. Co. v. Wetmore. 52 111. 221. 1863. § 59. A policy of insurance, issued upon a dwelling- i house occupied by tenants, and containing a provision that " the policy becomes void when the occupant personally vacates the premises, unless immediate notice be given to ' this company and additional premium paid," will become void if the building is vacated, and the only notice given i thereof is to an agent of the company whose authority is limited " to take applications and countersign policies, to collect and receive cash for premiums, and to issue a . ' binder' on special hazards for ten days," and no additional premium is paid ; and it is immaterial that the insured did not know the extent of the agent's authority. Har- ' rison v. City Fire Ins. Co. 9 Allen, Mass. 231. 1864. § 60. Where a policy of insurance upon a trip-hammer 628 USE Am) OCCUPATION. shop, witli the machinery therein, contained a provision that the policy should be void if the building remained unoccupied over thirty days without notice ; Jield, proper to instruct the jury that it is not sufficient to constitute occupancy that the tools remained in the shop, and that the plaintiff's" son went through the shop almost every day to look around and see if things were right, but some practical use must have been made of the building ; and if it thus remained without any practical use for the space of thirty days, it was, within the meaning of the policy, an unoccupied building for that time, and the policy be- came void. Keith v. Quincy Mut. Fire Ins. Co. 10 Allen, Mass. 228. 1865. § 61. A statement in a policy as to the manner in which the building insured is occupied, is not a warranty that it shall continue to be so iised during the policy. It is a warranty only as to the present use. To make a con- tinuing warranty it must be so expressed by apt words. Smith V. Mechanics' & Traders' Fire Ins. Co. 29 How. K Y. 384. 1865. § 62. Where on account of the character of the use of the property insured special rates are required to be paid and the policy contains no warranty of continued use, a change of such use, keeping within the same character of risk, will not avoid the policy where the risk is not thereby increased. Smith v. Mechanics' & Traders' Fire Ins. Co. 32 N. Y. 399. 1865. § 63. Where a policy of insurance describes the pro- perty insured as being a " two story frame building used for winding and coloring yarn and for the storage of sptm yam," it does not thereby warrant that such building is to continue to be thus used. Such statement is only a war- ranty as to the present use, and an insurer wishing to pro- tect himself by a continuing warranty as to the future use of a building must do so oy language plainly importing such intent. Smith v. Mechanics' & Traders' Fire Ins. Co, 32 N. Y. 399. 1865. VALUE. 629 § 64. Where an insurance is made upon goods in a specified building, generally, so as to cover goods m any part of it, the insured cannot escape the consequences of iQowing a hazardous business to be carried on in any part of the building by tenants by showing that he only occu- pied a part of the building, and not the whole, as described in the policy. Appleby v. Firemen's Fund Ins. Co. 45 Barb N. Y. 454. 1866. See Concealinent, § 20. Description of Property Insured, 12. In- crease of Risk, 13, 25, 28, 30, 31. Parol Evidence, 27, 33. Pleading and Practice, 18, 52. Preliijpinary Proofe, 48. Questions for Court and Jury, 6. Risk, 26. Storing or Keeping, 2, 4, 8, 11, 18, 19. War- ranty and Representation, 22. Written Portion of Policy, 1, 3. VALUE. § 1. Plaintiff applied for insurance on a factory, repre- senting that an insurance of $15,000 had already been -taken on the property, which was valued at $19,000. The company declined on the ground that there was insurance enough on the property. The plaintiff then represented that additions had been made to the factory folly equal to $10,000, and upon the faith of this statement, a policy was issued. This last statement turning out wholly un- true ; Hdd^ that the policy was void, and that it made no difference that the misrepresentation was made by an agent, and by mistake. Carpenter v. American Ins. Co. 1 Story, C. C. U. S. 57. 1839. § 2. An over-estimate of $4,000 in the value of the property, is a gross over-valuation, that avoids the policy ; though a slight over-estimate, such as m^ht reasonably be accounted for from difference of opinion, would not have done so. Catron v. Tennessee Ins. Co. 6 Humph. Tenn. 176. 1845. 630 VALUE. § 3. The valuation is material to the risk ; and mis- representation, as to value, avoids the policy. Wilbur v. Bowditch Mut. Ins. Co. 10 Cush. Mass. 446. 1852. § 4. If an applicant for insurance, in I'eply to inquiry- in application, which is made part of the policy, fraudulent- ly over-value the property insured, the policy issued upon Such application may be avoided by the company on that f round. Hersey v. Merrimack County 'Mut. Ins. Co. 7 'ost. N. H. 149. 1853. § 5. Policy on goods, running from $2,000 to $3,000, and so represented by assured. Policy stipulated thatthe- " survey is made part of the policy and warranty 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." JSeld, that taking the clauses together, the warranty was not of the literal truth of the facts, but only so far " as material to the risk ; " so that if assured had not the amount of goods, but intended his stock to be about those figures, and as the policy was plainly an open one, and the underwriter was to pay only three-fourths the actual loss, the variation was immaterial, and the policv was valid. Lee v. Howard Fire Ins. Co. 11 Cush. Mass. 324. 1853. § 6. A condition in a policy of insurance "that a. false description by the assured of a building insured, or of its contents, or in a valued policy, an over-valuation shall render void a policy issuing upon such description or valuation," does not apply to an over-valuation of goods insured under an open policy. Lee v. Howard Fire Ins.- Co. 11 Cush. Mass. 324. 1853. § 7. A serious over-valuation, knowingly made, upon work not done or a subject not in existence, and that fact not disclosed, is a sufficient cause for avoiding the policy; but a small over- valuation, such as might reasonably be ac- counted for in difierence of opinion, is not. Protection.^ Ins. Co. V. Hall, 15 B. Monroe, Ky. 411. 1854. VALUED POLICY. 631 § 8. The assured effected an insurance with the defendants on certain buildings for $1,100, stating their value to be $3,000. In an action on this policy, it ap- peared, that a few days before, he had insured the same houses, together with a driving shed, worth $400, in another office for $900, and had then valued the whole at from $1,200 to $1,400. The evidence as to the actual value was contradictory, and the great difference in the assured's two valuations was not explained. The jury having found for the plaintiff; Hdd^ that the evidence supported a plea of fr%udident over-valuation, and a new trial was granted, with costs to abide the event. Note — This case has since been again tried, and a second verdict having been rendered for the assured, on evidence not dif- fering materially from that given at the first trial, the court refused to disturb it. Dickson v. Equitable Fire Assurance Co. 18 Upper Canada, Q. B. 246. 1859. See Application, § 17. Evidence, 13, 35, 52. Other Insurance, 13. 'Htle, 18. Two-thirds or Three-fourths Clause, 11. Warranty and Rep- resentation, 20. What Property is Covered by the Policy, 25. VALUED POLICY. § 1. Where there is an absolute loss of an article distmctly valued in the policy, the loss is to be estimated according to the valuation ; as when policy read, " .S80 kegs tobacco worth $9,600," and 157 kegs were lost; Held, that the assured was entitled to receive the propor- tionate value of $9,600, and not merely the cost of manu- facture, with a per-centage added. Harris v. Eagle Ins. Co. 5 Johns. X. Y. 368. 1810. § 2. A policy of insurance against fire, where the con- tract states that the company have insured eight thousand five hundred dollars on one brick house, and two wooden ones, is not a valued policy. . The words, " valued at," are 632 VALUED POLICY. invariably used where the intention of the parties is to make the estimate conclusive. Wallace v. Insurance Co. 2 La. 559. 1831. § 3. Where a policy of insurance against fire covers fifteen thousand dollars of the property insured, and a second policy is taken out of another office, on the same property, as a valued one, which is endorsed on the first policy ; it cannot have the effect of putting the first office dv/riori casu, or to convert its policy from an open, to a valued one. Millaudon v. Western Marine Fire Ins. Co. 9 La. 27. 1835. § 4. A policy insuring $1,700 on a mUl and fixed machinery, and $150 on movable machinery therein, pro- ceeded in written words as follows : " Said insured being the lessee of said mill for one year from November 1st, 1850, and having paid the rent therefor of $2,171, which interest diminishing day by day in proportion to the whole rent for the year is hereby insured." Ileld, that the policy was a valued one, although, in a printed part of the instru- ment, there was a provision, that the loss or damage should be estimated according to the true and actual cash value at the time such loss or damage should happen. Cushman V. North Western Ins.. Co. 34 Me. 487. 1852. § 5. In the application of the assured the value of the property was stated, and in the policies issued were these words : "The amount insured being not more than three- fourths the value of said property, as appears by the pro- posal of the said assured." Sisld, that these were valued policies in the sense in which that term is applied to poli- cies of fixe insurance. Nichols v. Fayette Mut. Fire Ins. Co. 1 Allen, Mass. 63. 1861. § 6. A valued policy of insurance is not one which estimates merely the value of the property insured, but which values the loss, and is eqidvalent to an assessment of damages in the event of a loss. Lycoming Ins. Co. v. Mitchell, 48 Penn. St. 367. 1864. See Damages, § 5. Evidence, 29. Two-thirds or Thi-ee-fourths Clause, 1, 2, 3, 7. VENUE. § 1. By the Revised Statutes of Massachusetts, C. 90, § 14, 16, a foreigner or inhabitant of another State, may bring suit in any county of the State against an insurance company of Massachusetts, although the company's place of business is in the city of Boston, m the county of Suffolk, and aU its annual meetings are held there. Allen v. Paci- fic Ins. Co. 21 Pick. Mass. 257. 1838. § 2. Conditions of mutual company in one State au- thorized suit to be brought in a certain county in another State, and suit to be brought within ninety days from the time the directors, after notice of loss, should determine its amount. Held, that courts of Maine were not precluded from the jurisdiction of actions brought to recover losses, in cases where no such determination of the amount of the loss had been made by the directors. Williams \. New England Mut. Fire Ins. Co. 29 Me. 465. 1849. § 3. Policy provided that upon happening of a loss the directors should proceed to ascertain and determine the same, and if assured were not satisfied with such de- termination, he should bring an action against the com- pany at the next term of court to be held " in and for Portage County," and the director failed to make any determination and ascertainment of the loss, and assured brought his action in another county than that mentioned in the policy. The act of 1845, in Ohio, provided that suits on policies of insurance might be brought in the county where the contract was made, .mpany for such loss ; which action shall be brought at a proper court in the county of Merrimack," State of New Hampshire. A. having insured in said company, notified them of a loss, but the directors neglected to " ascertain and determine the amount thereof; Hdd, that the direc- tors having neglected or refused to do their duty, A. might maintain an action against the company for the loss, after the time limited in the by-laws ; that after a contract has been broken, the remedy is regulated by law and must be governed by the law of the forum where redress is sought, and that A. was not boimd by the provisions that any suit should be brought in the county where the com- pany is established. Bartlett v. Union Mut. Fire Ins. Co., 46 Me. 500. 1859. § 9. A provision in the charter of an insurance com- pany which limits a suit on the policy to the county where the company is located, pertains merely to the rem- edy, and may be changed by a general law upon the sub- ject. Sanders v. Hillsborough Ins. Co. 44 N. H. 238. 1862. § 10. A clause in an act incorporating a mutual fire 636 WAIVER. insurance company, providing that, " in case of loss by fire," the insured shall give notice thereof in writing to the directors within thirty days ; and the directors shall ascertain and determine the amount of such loss, and if the party suffering is not satisfied with such determinar tion, he may bring an action against said company for said loss, at the next court, to be holden in and for the county " where said company is established, " and not after- wards," neither repeals in express terms nor by necessary implication the general law of the State authorizing the plaintiff to maintain his action in the county where he resides. Martin v. Penobscot Mut. Fire. Ins. Co. 53 Me. 419. 1866. See By-Laws and Conditions, § 9, 10. Limitation Clause, 10. Pre- mium Notes, 11, 18. WAIVER. § 1. The fact that the underwriter failed to specify the non-production of the preliminary proofs, required, by the policy, as an objection to the payment of the loss, is not sufficient evidence to justify the jury in inferring that the underwriter had thereby waived the production of such proofs. Columbian Ins. Co. v. Lawrence, 2 Pet. U. S. 25. 1829. § 2. A defect in the certificate presented to the com- pany is not waived by their receiving it without objection, nor by adopting a resolution that the company wiU not pay the claim made by the plaintiff, or any part thereof, believing that it is founded in an attempt to defraud the company. Roumage v. Mechanics' Fire Ins. Co. 1 Green, K J. 110. 1832. WAIVEB. ' 637 § 3. Where, after the loss of insured property, re- peated communications had taken place with the officers and agents of the company, and in some instances, in pur- suance of directions from the board of directors, after the preliminary proofe were delivered, and no objection was made to the sufficiency of such proofs, but the refusal of the company to pay, based upon an entirely different ground ; Hdd^ that the defects in such proofs must be con- sidered as waived. McMasters v. Westchester County Mut. Ins. Co. 25 Wend. N. Y. 379. 1841. § 4. Where assured under advice and direction of an agent of the company, made out the preliminary proofs, in compliance with the requirements of the policy, as he supposed, and subsequently, at the request of the insurers, produced his books of account, which were examined by the insurers, who then offered to pay a certain portion of the insurance money, which assured refused to accept, and brought suit in equity on the policy ; Held, that the company having failed to point out the particular detects in the preliminary proofs, and having expressed no dissat- isfaction therewith, except in general terms as to the loss generally, could not upon the trial make such an objec- tion. Bodle V. Chenango Couuty Mut. Ins. Co. 2 Comst. N. Y. 53. 1848. § 5. The payment by the insurers, to the insured, of a psurt of the sum agreed to be paid by the policy, is a waiver of the usual preliminary proofs. Westlake v. St. Lawrence County Mut. Ins. Co. 14 Barb. X. Y. 206. 1852. § 6. If a deficiency in the plaintiff's proof is supplied during the trial by the defendants themselves, it is a waiver of any exception they may have taken, based on such deficiency : and if the insured is examined as a wit- ness by the defendants this is a waiver of an exception taken to a decision, excluding his admissions. Westlake V. St. Lawrence County Mut. Ins. Co. 14 Barb. N. Y. 206. 1852. 638 WAITER. § 7. Where there are defects in the preliminary proofs, given to the underwriter, in compliance with 'a condition of the policy, and those defects are supplied by additional proofs furnished by the assured in compliance with the request of the company, and received and re- turned by them without objection, and afterwards they refuse to pay the loss, because they concluded that they were not legally liable; Held, that the company had waived their rights to insist upon the defects or omissions in such prelimmary proofs. Bumstead v. Dividend Mut. Ins. Co. 3 Kern. N. Y. 81. 1854. § 8. Where insurers plead non-payment of premium as a bar to recoveiy on a policy, and in the supplemental answer, allege misrepresentation and concealment, the plea of non-payment is waived. Michael v. Mutual Ins. Co. of Nashville, 10 La. An. TSY. 1855. § 9. An insurance company, by consenting to make a policy upon an application in which one or more ques- tions; are unanswered, waive all claim for further answers. Hall V. People's Mut. Fire Ins. Co. 6 Gray, Mass. 185. 1856. § 10. Insurance company waives the right to object to preliminary proofs, if they omit to point out defects in time, or refuse to pay upon other grounds. Firemen's Ins. Co. V. Crandall, 33 Ala. 9. 1858. Francis v. Som- erviUe Mut. Ins. Co. 1 Dutch. N. J. 78. 1856. § 11. If insurer places his refasal to pay for a loss on other grounds than defects in the preliminary proofs, he cannot object to such insufficiencies on the trial. Under- hill V. Agawam Mut. Ins. Co. 6 Cush. Mass. 440. 1850. Peoria Marine & Fire Ins. Co. v. Lewis, 18 lU. 553. 1857. § 12. A valid legal objection to the payment of a loss on a policy of insurance, is not a waiver of all other ob- jections, if the plaintiff go into equity to avoid the effect WAIVER. 639 of tliat objection at law. Brown v. Savannah Mut. Ins Co. 24 Ga. 97. 1858. § 13. A policy issued to a mortgagee of the insured property, required certain proofs to be made by assured in case of a loss. After the loss, the mortgagor made out the proofs required, stating that the buUdings were in- sured by the defendants, and specified their numbers and the streets on which they were situated, and also gave the number of the policy under which they were insured. Accompanying these proofs made by the mortgagor, was an affidavit of the insured mortgagee, verifying the above facts. The company, made nonobjection to these proofs at the time, or afterwards, until the trial of the action, that they were not made by the " insxired," or for any other cause. Seld, that they had thereby waived any objec- tions as to them. Kernochan v. Xew York Bowery Fire Ins. Co. 17 K Y. 428. 1858. § 14. Therulethat insurers will be'held to have waived objections to defects in the preliminary, proofs presented by a claimant if they do not distinctly specify their inten- tion to rely upon such objections, and especially if instead of so doing they assert a distinct ground of defense, or only generally deny their liability, rests upon the tendency of such a course to mislead the claimant ; and insurers who ap- prise a claimant that his papers are not proof, and refer bim to the policy, will not be held to have waived defects in such .proofs because they did not go further and specify them ; nor because they at the same time took other ob- jections to being held liable. Kimball v. Hamilton Fire Ins. Co. 8 Bosw. N. Y. 495. 1861. § 15. A policy provided for the payment of losses within sixty days after the same should be ascertained and proved. A loss was proved and demand of payment made , within the time limited. The loss was admitted by the insurance company which offered payment of what it as- siuned to be the amount of its liability, but payment of the full amount of the insurance was refused. Jleld, that 640 WAIVEB. the condition as to the time of payment was waived, and that the sum for which the insurers were bound became due and recoverable with interest from the date of the de- mand. Baltimore Fire Ins. Co. v. Loney, 20 Md. 20. 1862. § 16. The requirements of a policy that a particular statement of loss shall be famished, may be waived. Franklin, Fire Ins. Co. v, Updegraff, 43 Penn. St. 350. 1862. § 17. A notice by an insurer, under a condition of the policy authorizing him at his election to rebuild or repair in case of loss, that he elects to rebuild or repair, is a waiver of any defence based upon misrepresentations by the assured at the time of the application ; if the fact of such misrepresentations be known to the insurer when he gives the notice. Bersche v. Globe Mut. Ins. Co. 31 Mo. 546. 1862. § 18. A clause in a policy of insurance providing that the interest of the assured in the policy, or in the property insured, is not assignable without the consent of the in- surers, in writing ; and that in case of any transfer or ter- mination of such interest without such consent the policy shall thenceforth be void and of no effect, is to be regard- ed as a provision made for the exclusive benefit of the company, and to be practically exercised by them or not,^ at their option. If, after the assured has transferred his interest in the policy and in the property insured without the written consent of the company, the company choose to ratify the transfer, and, notwithstanding the transfer, to continue the insm-ance, the policy will not be absolutely void. If, after notice of such transfer, they treat the as- signee as a member of the company, they will be estopped from denying such ratification and approval. Hyatt v. Wait, 37 Barb. N. Y. 29. 1862. § 19, The insurer may waive the benefits of a condi- tion that any misrepresentation or concealment on the part of the insured shall avoid the policy. Bersche v. Globe Mut. Ins. Co. 31 Mo. 546. 1862. WAIVER. 641 § 20. Where the policy provided that the insurance should be void if articles denominated " hazardous" should be stored in the building without the consent of the com- pany indorsed on the policy, and the agent of the company consented to the removal of the property to another build- ing in which such hazardous articles were stored, and agreed to make whatever entry was necessary on the policy to continue it in force notwithstanding such storage, and took and retained the policy for the purpose. Held, that the agreement of the agent was a waiver by the company of the condition which required such written indorsement of consent until such inliorsement should be made. Rath- bone V. City Fire las. Co. 31 Conn. 194. 1862. § 21. If by the terms of a contract of insurance it is expressly provided that the application on which the policy is issued shall be held to be a warranty on the part of the assured, knowledge by the agent or officers of the company that certain answers in the application were not correct is no evidence of a waiver by the company, and the policy is void. Tebbetts v. Hamilton Mut. Ins. Co. 3 Allen, Mass. 569. 1862. § 22. The assessment and collection of a- premium note' by a mutual insurance company, after it has been ad- vised of violations of the conditions of the policy, operates as a waiver of any forfeitTU-e occasioned by such violations. Keenan v. Dubuque Mut. Fire Ins. Co. 13 Iowa, 375. 1862. § 23. Where the general agent of an insurance com- pany, acting in the matter of his agency and in relation to the particular loss and controversy in question, stated to an agent of the plaintiff who had prepared and forward- ed the preliminary proofs, that it was only the quantity and value of the property that the company disputed ; Hdd, a waiver by the company of all objection to the pre- liminary proofs on account of defects in them. Hathbone V. City Fire Ins. Co. 31 Conn. 194. 1862. 41 64-2 WAIVEE. § 24. A waiver of formal preliminary proof of loss may be proved by evidence that one of the officers of the company made personal examination of the premises after the fire in company with a person interested in the pro- perty; that afterwards, and within the time limited for making formal proof of loss, the secretary told the person to whom the amount insured was payable that no further proof of loss was* necessary ; that the directors, upon the informal proof, and within the time limited for making formal proof, passed a vote appointing a committee to ad- just the loss ; and that afterwards, in refusing to pay the loss, the refusal was put solely on other grounds. Priest v. Citizens' Mut. Fire Ins. Co. 3 Allen, Mass. 602. 1862. § 25. The general agent of a company sent a policy by mail to an applicant for insurance with a statement that the premium charged was higher than usual, and say- ing " Should you decline the policy, please return ; if you retain it, please send me the premium." Held^ a waiver of a condition in the policy requiring prepayment of the premium. Sheldon v. Atlantic Fire & Marine Ins. Co. 26 N. Y. IIT. 1863. § 26. . An offer of compromise of a claim on a policy for a ■ loss, made by the insurer, after the preliminary proofs of loss had been received and examined without making any objections to the proofs, is a waiver of any defects in such proofs. Van Deusen v. Charter Oak Fire &, Marine Ins. Co. 1 Kobert. N. Y. 55. 1863. § 2Y. Where insurers received and examined the proofs of loss presented by the insured, and, in answer to subsequent inquiries on his part, whether there were any further proofs that he could show, or any thing further was wanted of him, answered that there was not, and after- ward offered to compromise the claim, but without making any objection to the proofs. Held^ that the insurer must be deemed to have waived the objection,that a magistrate's certificate, which the policy required should accompany WAIVER. 643 the proofs of loss, was never served on them. Van Deusen V. Charter Oak Fire & Marine Ins. Co. 1 Abb. Pr. N. S. N. Y. 349. 1863. § 28. The provisions of the statute of Maine requir- ing certain notice and proof of loss to be furnished the company may be waived by the company or its officers. Lewis V. Monmouth Mut. Fii-e Ins. Co. 52 Me. 492. 1864. § 29. While mere silence will not amount to a waiver of defects in proofs of loss, an objection to the proofs upon one specific ground and silence as to another in which was the real defect, operates as a waiver of such defect. Ayres T. Hartford Fire Ins. Co. 17 Iowa, 176. 1864. § 30. The act of receiving an additional premium for a variation of the risk after the existence of facts which would authorize a forfeiture, had become known to the in- surers, must, in the absence of fraud and concealment, be regarded as a waiver of the forfeiture. North Berwick Co. V. ISr. England F. & M. Ins. Co. 52 Me. 336. 1864. § 31. Notice of a fact material to the risk to the agent of a company is notice to the principal, and by taking the premium and issuing the policy the company must be regarded as waiving objection on account thereof. Peoria Marine & Fire Ins. Co. v. Hall, 12 Mich. 202. 1864. § 32. If an insurer receives and retains preliminary proofs of loss without objection, he will be deemed to have waived any defects or insufficiencies therein. Brown v. King's County Fire Ins. Co. 31 How. N. Y. 508. 1865. See Agent, § 3. Alienation, 66. Application, 27, 42. Assignment, 38. Certificate, 8, 9, 11, 13, 17. Consummation of Contract, 17. De- peDdency of Policy and Premium Note, 10, 12, 16, 18. Endorsements, 3, 6. Limitation Clause, 2, 3, 4, 8, 12, 15, 21. Notice of Loss, 6, 7, 9, 1-4, 17, 18, 20, 22, 27, 32, 33. Other Insurance, 32, 62, 78, 88. Pay- ment of Premium, 4, 6, 8, 9, 12, 17. Parol Evidence, 27. Pleading and Practice, 21, 79. Preliminary Proofs, 8, 12, 13, 15, 17, 18, 22, 24, 26, 27, 29, 30, 31, 32, 33, 34, 36, 38, 41, 47. Questions for Court and Jury, 16. Rebuild, Replace, or Repair, 5. Revival and Suspension of Policy, 2, 3, 5, 6, 7. Title, 41. Use and Occupation, 56. WARRANTY AND REPRESENTATION. § 1 . A policy of insurance on a manufacturing estab- lishment provided that, " if the situation or circumstances affecting the risk upon the property insured shall be al- tered or changed, by or with the advice, agency or consent of the assured or their agent, so as to increase the risk thereupon, without the consent of the company, the policy shall be void." Held^ that this clause, taken in connection with certain representations in the application of assured, as to certain usages and practices observed at the factory, as to mode of conducting their business, and as to pre- cautions taken to guard against fire, was, in legal effect, a stipulation, not only that the facts were true at the time, but that as far as the assured, and all those entrusted by them with the care and management of the property, were concerned, such modes of conducting the business should be substantially observed, and such precautions substanti- ally be continued to be taken, during the continuance of the policy ; and that if any alteration or change should be made, or any custom or practice, different from that repre- sented, should be introduced, whereby the risk should be increased, the policy should be void. Houghton v. Manu- facturers' Mut. Fire Ins. Co. 8 Met. Mass. 114. 1844. § 2. Representations of the insured are not to be taken as warranties, so that the slightest variation would release insurers, but as statements of facts, which do not release insurers, unless materially different from truth, and that in a way which increases the risk ; its materiality being determined by the amount of premium required. But the representations, if material, will avoid the policy, whatever may be the cause of the loss. Nicol v. American Ins. Co. 3 Woodb. & Minot, C. C. U. S. 529. 1847. WARRANTY AND REPRESENTATION. 645 § 3. The assured represented that there were no lamps in the picking room. The proof was that lamps were used in the picking room, which materially increased the risk, and from which the fire arose. Held, that the policy was void. Clark v. Manufacturers' Ins. Co. 2 Woodb. «fe Min. C. C. U. S. 472. 1847. AfSi-med, 8 How. U. S. 235. 1850. § 4. Warranties cannot be deviated from in the smallest particular, whether material - or immaterial ; but the insured is not answerable on account of representations, unless they differ, in Material respects, from the truth, or are departed from in a material manner. When the repre- sentations are deJiors the policy, and are not referred to in it as warranties, they are not to be treated as warranties. Nicol V. American Ins. Co. 3 Woodb. & Min. C. C. U. S. 629. 1847. § 5. The application for insurance was referred to in the policy as forming a part thereof. In such application in answer to a question as to the stoves, assured answered : " Pipe passes through the window at side of the building. There will, however, be a stove chimney built, and the pipe will pass into it at the side." Three years afterwards the building was destroyed by fire, the chimney not yet having been built. Held, that the policy was void. It further appearing that the secretary had endorsed upon the policy the following : " Consent is given that the within policy remain good notwithstanding the stove in said mill has been removed." «fec.; Held, that such endorse- ment did not exonerate the assured from building the chimney according to his promise. Murdock v. Chenango County Mut. Ins. Co. 2 Comst. N. Y. 210. 1849. § 6. The assured in giving notice to the company of the introduction, into the mill insured, of a kiln drying machine, stated, " it is for burning hard coal." Held, that this was a mere statement that the machine was designed ^' for burning hard coal," without binding the assured not 646 WARRANTY AND REPRESENTATION. to use other fae], if it should become necessary; provided the risk was not thereby increased. Tillou v. Kingston Mut. Ins. Co. n Barb. N. Y. 570. 1850. §7. In a verbal application for leave to obtain an ad- ditional insurance, the statements made to first company insuring are not warranties ; they are only representations which may be untrue, and yet, if not fraudulently made, if they are immaterial, and produce to the defendant no in- jury, will not avoid the policy issued by the defendants. Williams v. New England Mut, Fire Ins. Co. 31 Me. 219. 1850. § 8. In the application in this case was this question r " In what are ashes kept at all times ? " Answer : " Brick," Held, that if after the issuing of the policy upon the ap- plication, the ashes of assured were kept as safely in the building insured, 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. Un- derhill v. Agawam Mut. Ins. Co. 6 Cush. Mass. 440. 1850. § 9. A representation, inserted in a policy, becomes a warranty. Kepresentations are part of the proceedings preliminary to the contract. Williams v. New England Mut. Ins. Co. 31 Me. 219. 1850. § 10. The rule, that warranty does not extend to de- fects, which are known to the purchaser in sales of prop- erty, does not apply to warranties in contracts of insurance. Kennedy v. Insurance Co. 10 Barb, N. Y. 285. 1851, § 11. A representation precedes, and is no part of the contract of insurance, and need be only materially true ; but a warranty is part of the contract, and must be exactly and literally fulfilled, or else the contract is broken and policy becomes void. Glendale Woolen Co. v. Protection Ins. Co. 21 Conn. 19. 1851. WARRANTY AND REPRESENTATION. 647 § 12. Any misrepresentation in regard to encum- brances or title, in a mutual insurance company, in reply to inquiries, avoids the policy, although not made with a knowledge of their falsity on the part of assured, or with any intent to deceive. Wilbur v. Bowditch Mut. Ins. Co. 10 Cush. Mass. 446. 1852. § 13. No mere representation, made by the assured, is a warranty. A representation which is false, will avoid the policy, if the actual risk were greater than it would be if the represlntation were true ; otherwise not. Wall v. Howard Ins. Co. 14 Barb. N. Y. 383. 1852. § 14. Agent of plaintiffs handed a brief memorandum to insurers, reading : " Wall, Uichardson & Engle wish in- surance on their own, boilers, and $400, on the tackle and furni- ture of the steamboat Malakoff, now lying in Tate's dock, Montreal,*and intended to navigate the St. Lawrence and lakes from Hamilton to Quebec, principally as a freight boat, and to be laid up for the winter in a place approved by this company." That boat remained in the dock until destroyed by fire, without ever having navigated, or being even in a condition to navigate. Held, that the words in the policy as to the intention to navigate constituted a warranty that the boat should run during the summer and be laid up in the winter, but having, in fact, never left the dock at all, the assured could not recover. Grant v. ^tna Ins. Co. Queen's Bench, Appeal Side, Montreal, Lower Canada. 1860. § 29. Policy provided that, "if, subsequent to the making of the application, any new fact should exist, either by a change of any fact disclosed by the application, the erection or alteration of any building, the carrying on of any hazardous trade," Fire Ins. Co. v. Lewis, 18 HI. 553. 1857. ■664 WHAT PROPERTY IS COVERED BY POLICY. § 22. In the application and policy, the property in- sured was described as " a brick dwelling house and wood house," situate, &c., and " occupied for the usual purposes, by a tenant." It appeared that the " wood house " was built at one time, had but one frame, was all under one roof, and was designed for one building, a wood house and carriage house ; the wood room constituted two-thirds or more of the entire building, and was separated from the carriage room by a loose partition, about seven feet high, which extended to the eaves on one side and not so high on the other side, leaving a distance of about seven feet between the top of the partition and the ridge pole. The company set up in defense a false representation on the part of the assured, in stating there was no other building within four rods of the premises insured, claim- ing that the carriage house, part of the wood house, was a separate building which should have been mentioned; Held^ that the " wood house " covered and included the carriage house and evidence that the whole structure was called by the tenants and neighbors the " wood house " was admissible. White v. Mutual Fire Ins. Co. 8 Gray, Mass. 566. 1857. § 23. The policy insured the plaintiffs to the amount of $3,000 ; " on their three and half story brick building, slate roof, coped, occupied as a patent cordage manufac- tory, situate No. West Comer of First and South Eight streets, Williamsburg, L. I., $1,000 ; on their main shSffc- ing and fixtures contained therein, $1,000 ; on their lignum vitae in the cellar of said building, $1,000." At time of effecting the insurance, and at time of the loss, the plain- tiffs were the owners of two brick buildings on the oppo- site corners of South Eighth and First streets, one of which was occupied as a patent cordage factory, and con- tained main shafting and fixtures, with a cellar underneath which was used by the plaintiffs for storing large quanti- ties of lignum vita3. The other building was occupied as a block factory, and not as a cordage factory, with what is called a basement under it, and no cellar. Both buildings WHAT PSOPERTY IS COVERED BY POLICY 665 were on the westerly corners of South Eighth and First streets, the block factory being on the north-westerly and the cordage factory on south-westerly comer. The build- ing on the south-westerly corner was destroyed by fire, and assured brought suit to recover for the loss, whilst de- fendants claimed that the policy covered the building on the north-west corner, and not that on the south-west corner. Held, that the policy was plain enough ; but an ambiguity arose in consequence of the extrinsic fact that ■ there were two buUdings on the west corners of First and South Eighth streets, of the same height, and 'alike, except the cellar, belonging to the plaintiffs; that this was a latent ambiguity raised by extrinsic evidence and that plaintiffs might introduce evidence to show which was the building intended to be insured ; that even supposing the abbreviation " No." meant north, the remainder of the de- scription as to occupancy would be inaccurate as applied to that building, but entirely correct as applied to the building on the south-west comer, and as, notwithstand- ing the mistake, the intent was clear that the building on the south-west comer was the one intended to be insured, the mistake must be disregarded, even at law, without re- course to equity for correction, Burr v. Broadway Ins. Co. 16 N. Y. 267. 1857. § 24. Three policies covered merchandise and fixtures, contained in a certain building, designated in the policy. Subsequently another policy was obtained of defendants upon a stock of merchandise " in the chambers" of the same building. The goods in the chambers were destroyed by fire. Hdd, that, it being proved that goods in the chambers were not intended to be included in the first pol- icies, the defendants were liable for the whole loss. Storer V. EUiot Fire Ins. Co. 45 Me. 175. 1858. § 25. Hawes & Stanley effected an insurance with defendants to the amount of |1500, as follows, to wit: on stock, $150 ; on tools, flasks, machinery, fixtures and cupola, $750 ; on patterns and steam engine, $600, con- 666 WHAT PROPERTY IS COVERED BY POLICY. tained in their " furnace" building " on Eddy street, Provi- dence, southerly side," and in their application for this policy, being No. 281, represented the value of their stock to be $400 ; of their tools, flasks, &c., to be $2,500 ; and of their patterns and steam engine to be $2,000. At the eirpiration of this policy the same firm applied for a re- newal, with request to defendants to " let the policy read, $150, on stock, raw, wrought, and in process; $750, on tools and flasks; $600, on fixtures, cupola, and patterns; situate in rear of 82 and 84 Eddy street, Providence." In answer to the question in application for this policy, " Have any alterations been made in or about the prop- erty insured, since your last application, materially affect- ing the risk ? If so, state what ; " the reply was : " Boiler and steam engine have been removed." The policy num- bered 412 was then issued, conforming in all respects, as to amounts insured, and situation of the property, to the re- quest of assured. Upon the expiration of this second policy, a third policy, numbered 619, the one in suit, was issued, in all respects like the preceding one, 412, except that 619 was issued in name of the " Eddy Street Iron Foundry, of Providence," the firm of Hawes & Stanley having beeii incorporated by that name. The by-laws of the company limited them to insurances of three-fourths the value of the property, and the printed rules of the com- pany, appended to the policy, stated as amongst the " mat- ters which will vacate a policy," " or if there shall be an enlargement, alteration, or addition to the premises, of a character increasing the risk," — " or, if the state of things in or about the buildings insured be so altered or changed, by the advice, consent or procurement of the insured, as to cause a material increase of risk" — as well as unfair representations or concealment of facts material to the risk. A loss occurred, destroying property in a store- house on the premises of assured in the rear of 82 Eddy street, and not in the furnace building ; the property, consisting of flasks and patterns, being stored for use. Held, first, that the policy was not confined in its protec- tion to the " furnace building" only, but by the second WHAT PROPERTY. IS COVERED BY POLICY. 667 policy was made to include all the property of the as- sured on their premises in the rear of 82 and 84 Eddy street, whether in storehouse, furnace building or outside ; second, that the jury having found that this location of the property did not materially increase the risk, and the change or alteration not being in the property itself, but in the policy, ^extended so as to embrace the entire prop- erty in its existing situation, there had been no violation of the by-laws above mentioned ; third, that the amounts insured on different subjects, having been differently ap- portioned in the second policy, of which the one in suit was a renewal, the statgment of values given in the appli- cation for the first policy, No. 281, could not be adduced as evidence against them, of the value of the property in- sured, either at the date of the last policy,, or at the time of the loss, and that there was, therefore, no misrepresen- tation, in respect to such value, on the part of the assured. Eddy Street Iron Foundry v. Farmers' Mut. Ins. Co. 5 R. I. 426. 1858. § 26. On a policy of insurance, covering a stock of goods in a comer store, was this endorsement: "The communication made in the adjoining stores, does not prejudice this insurance." The assured had made a com- munication between the two stores, and occupied both. A loss having occurred, and claim made for the loss of goods in both stores ; Held, that this endorsement did not of itself extend the insurance over the goods in the adjoin- ing store, and as there was nothing in the language of the policy itself, which necessarily embraced the stock in such adjoining store, parol evidence, of what was said at time of application for the privilege of such communication, (,v scope, and force of a written contract, and, in effect, to in- corporate a new provision into it. Liddle v. Market Fire Ins. Co. 4. Bosw. N. Y. 179. 1859. § 27. A description in an application for insurance of a building as used "for the maniiacture of lead pipe," or " of lead pipe only," includes the manufacture of wooden 668 WHAT PROPERTY IS COVERED BY POLICY. reels on which to coil the lead pipe, if essential to the reasonable and proper carrying on of the business of mamifacturing lead pipe. Collins v. Charlestown Mut. Fire Ins. Co. 10 Gray. Mass. 155. 1857. § 28. A policy of insurance on goods in " the brick buUding situated on Main street in C, known as D. & Co.'s car factory," covers goods in a building ei-ected as a wing against the rear wall of D. & Co.'s car factory on Main street, with an opening through the wall of less than three feet square, usually closed by an iron door, if both wing and main building are used for manufacturing cars and are known as " D. & Co.'s car factory." Blake v. Ex- change Mut. Ins. Co. 12 Gray, Mass. 265. 1858. . § 29. A policy of insurance on " stock in trade, being mostly chamber furniture in sets, and other articles usually kept by farniture dealers," based on an application which is made part of the contract, for insurance on " household furniture, being my stock in trade, mostly chamber furni- ture in sets," covers paints and varnish used to finish the furniture, if usually kept by furniture dealers. And this notwithstanding the assured, to a question in the application a,s to whether any highly inflammable matter was kept in or near the premises, answered : " Not to my knowledge. Haley v. Dorchester Mut. Fire Ins. Co. 12 Gray, Mass. 545. 1859. § 30. Under an ordinary policy the interest of a hus- band in property conveyed to his wife, would be covered by an insurance of the policy as his ; and if no inquiry be made an omission to state the nature and extent of his interest, will not avoid the policy. Mutual Fire Ins. Co. V. Deale, 18 Md. 26. 1861. § 31. A firm took out a policy of insurance upon merchandise contained in a " new frame barn, wagon and ware room," situated on an alley and occupied foi* a ware- house, and subsequently assigned their interest in the pol- WHAT PROPEBTY IS COVERED BY POLICY. icy and property insured to others, who erected a brick addition of their store-room (which was bmlt upon the front of the lot on the reai- of which the frame bam was erected), extending it back to the alley, and requiring the removal of part of the bam; afterwards, the new build- ing and the remnant of the frame barn, with their con- tents were destroyed by iSre. In an action against the in- surance company for the insurance upon the goods in the remnant of the barn and in the brick extension, HM, that no recovery could be had under the policy, for any loss of goods in the new brick building or extension of storeroom, and if at all, only for those in the remnant of the frame barn and wareroom as originally erected and used. Lyco- ming County Ins. Co. v. Updegraff, 40 Penn. St. 311. 1861. § 32. If one partner insure the partnership property against loss by fire in his own name only, and it does not appear that the insurance was reaUy intended for the ben- ^t of the firm, the premium paid from the partnership funds, and the transaction subsequently ratified by the other partners, the policy will cover only the undivided in- terest of the partner insuring. Peoria Marine &, Fire Ins Co. V. Hall, 12 MicL 202. 1864 § 33. An open policy of insurance upon merchandise will not cover articles kept wholly or partially for use in and about a building, but only article^ kept for sale; but an open policy upon " property " contained in specific buildings will cover articles kept for use as well as those kept for sale. Burgoss v. Alliance Ins. Co. 10 AUen, Mass. 221. 1865. § 34. A policy of insurance against fire purporting to cover " merchandise hazardous, not hazardous, and ex- tra-hazardous, their own or held by them in trust or on commission or joint account, ntinu0i2. partition, 73 § 65. purchase of stock by sarviTing partner, 677 § 27. sale and resale, 53 § 3 ; 54 § 9; 55 § 13. to asagnee, 55 § 12 ; 71 § 56 ; 329 § 31. to assignee of mortgagee, 57 § 22. to assignees in bankruptcy, 70 § 52. to payee of poUcy, 123 §13; 127 §26; 425 § t where policy is payable to third party, 70 § 52 ; 531 § 9. where possession is retained to secure purchase moner. 58 S 23. ALTBRATION, J. s additions to buildings, 221 § 10 ; 309 § 3 ; 311 8 6, 8 : 312 5 10, 11 : 401 § 51. by tenant, 79 § 5. contemplated at time of insurance, 220 § 8. erecting buildings adjoining, 140 § 2 ; 314 § 15. examination o^ by company, 78 § 3. must increase the ridk to avoid policy, 78 § 1, 2; 309 § 1, 3 ; 311 8 7 ; 665 §25. notice of, 78 § 4 ; 311 § 7; 312 § 9. substitiition of another buOding, 652 § 28. where not communicated, 652 § 28. with knowledge or consent of assured, 310 § 4. ANSWERS, (See Interbooatoribs.) APPLICATION, ambiguity in, 87 § 25 ; 651 § 24. agreement (o remove buildings, 230 § 14. diagram, 80 § 1 ; 93 § 43 ; 221 § 11 ; 230 § 16 ; 232 § 20. material misrepresentations in, 95 § 49. mistake in, 40 §30; 41§36; 89 § 30,31; 93 § 43; 221 §11; 233 §23; 393§37; 406§70; 430§3; 517§3; 518 § 6. omission in, 83 § 11 ; 84 § 18; 92 § 38, 39; 94 § 46; 95 § 47. parol agreement at time of, 85 § 30. reference to surrey in anottier company, 80 § 2. statement that bmlding would not en^uiger, ^26 § 3. two sets of representations, 82 § 9. unauthorized insertion, 41 § 37. Tariance between policy and, 86 § 23. when partof contrad,80§l, 3; 81 §5; 83 §7; 83§12, 13, 14: 84§15; 87|24; 93§41; 94 § 44, 45; 141 § 3, 4. wherenot s^ed by applicant, 456 § 14 ; 90 § 33 ; 243 § 22 ; 244 § 35 ; 345 §»7. where signed in blank, 41 § 37 ; 87 § 26. where drawn by agent, 37 §21 ; 39 § 28; 41 § 36 ; 45 § 46; 84§ 17; 85§19; 91§36; 96§50; 430§3; 623 §47. where agent examines property, 86 § 21 ; 88 § 28, 29 ; 221 § 11 ; 333 §22; 623 §47. when a warranty, 93 § 43; 95 § 48; 96 § 51. ^EB ESTOFPSL, WaBBASTT AXD Rs>RESEKTATION.) ARBITRATION, assignment and bond of submission, 133 § 12. awMd, 98 § 6. notice of meeting of arbitrators, 98 § 7. revocation of submission to, 98 § 7. 44 690 INDEX. ARBITRATION,— Continued. Scotch decree arbitral, 98 § 5. stipulation in policy for, 97 § 1, 2, 3, 4; 99 § 9. where policy is payable to mortgagee, 98 § 8. ASSESSMENTS, after earned premiums are used up, 112 § 42. after consolidation of companies, 105 § 18. after expiration of policy, 104 § 14; 148 § 8. after forfeiture of policy, 110 § 36; 113 § 48 ; 211 § 1, 2, 3 ; 212 § 4, 5, 6 ; 213 § 8, 9, 10, 11 ; 214 § 12, 13 ; 215 § 16, 17 ; 216 § 20 409 § 78. against one not a member at time of loss, 107 § 28. authority of directors to levy, 110 | 36 ; 116 § 56 ; 117 § 62. by assignee of company, 106 § 21. by receivers, 105 § 20 ; 109 § 34 ; 117 § 63 ; 118 § 65, 66 ; 492 § 26 ; 514 § 2. cash fund's to be first exhausted, 104 § 17 ; 111 § 41 ; 113 § 46 classification of, 100 § 2; 103 § 12; 105 § 19; 107 § 29; 158 § 2; 159 § 3. demand of, 109 § 33 ; 111 § 38, 39. double, 118 § 64. equality of, 116 §58. for losses on cash policies, 308 § 9. for whole amount of premium note, 101 § 8; ]13§47; 568 § 2. liability for, cea.si:S, prima facie with policy 242 1 19. liability of assignee for, 106 § 22; 111 § 39; 113 § 45; 170 § 8. mode of, 102 § 11 ; 105 § 20 ; 106 §24; 112 §43; 115 § 54; 116 §57; 117 § 60. . need not be made at every loss, 102 § 10. non-payment of, 101 § 7; 170 § 8; 114 § 53; 487 § 4; 488 §7; 538 § 4. non-payment of, by assignor, 170 § 8 ; 215 § 18 ; 537 § 3. notice of, 107 § 26, 30 ; 109 § 33, 34 ; 170 § 8 ; 270 § 47 ; 494 § 33. notice of meeting to levy, 103 § 13 ; 116 § 57. on stock notes, 117 § 61 ; 552 § 2. of blank per cent., null, 108 § 31. payment of, by administrator, 214 § 14. presumption as to necessity, 113 § 46 ; 114 § 15. ratification under Massachusetts statute,.118 § 67; 119 § 68. record of, in Massachusetts, 372 § 22. suffleiency of data for, 106 § 23. Virginia quotas, 100 § 1, 3, 4 ; 101 § 5, 6 ; 237 § 1. what may be included in, 107 § 27 ; 114 § 49, 51 ; 115 § 54. what will, or will not, invalidate, 106 § 23 ; 107 § 25; 111 § 40. when complete, 107 § 30. where divided into classes, 110 § 37; 160 § 6. where policy is paid in full, 212 § 7 ; 214 § 15 ; 216 § 19. where made before loss, 104 § 16 ; 117 § 59 ; 119 § 69 ; 492 § 23. (See Estoppel, Liek of Insures for Assessments, Premium Notes.) ASSIGNMENT, after loss, 120 § 2; 124 § 15, 17; 125 § 18, 19, 22; 126 § 24; 137 § 27 ; 128 § 29, 30, 31, 32 ; 129 § 34, 35 ; 131 § 43. approval of assignee's note, 122 § 11. authority to consent to, 35 § 12 ; 36 § 16; 43 § 41. assessments after, 106 § 21, 22 ; 170 § 8 ; 211 § 2. INDEX 691 ASSIGNMENT,— Conttnuod. burden of proof of compliance with conditions, 132 § 11. by mortgagee, 120 § 3 ; 427 § 7. by mortgagee to alienee, 57 § 32. construction of certain form of, 134 § 14 ; 130 § 41. of condition, 121 § 6, 7. consent to, 43 § 41; 60 § 38; 64§ 41 ; 121 § 6, 8 ; 123 § 10, 11 ; 134 § 14. equitable assignment, 139 § 36. garnishment after, 296 § 7. general assignment to creditors, 132 § 9. inchoate assignment, 129 § 37. mode of, 180 § 39, 40. notice o^ 120 § 4. notice of title implied by consent to, 65 § 43. of part of mortgage debt insured, 66 § 45. of policies, 130 § 1 ; 143 § 8. of policy on mechanic's lien, 127 § 36 ; 128 § 38. of suspended policy, 537 § 3. of st0(^ of insurance company, 594 § 1, 3, 3 ; 595 § 4. of void premium note, 288 § 17. order on policy to pay third party, 64 § 41 ; 123 § 13 ; 135 § 21. parol agreement for, 130 § 5. payment of loss to assignor, 676 § 23. pending arbitration, 123 § 12. election to rebuild, 509 § 41. to alienee, 55 § 13 ; 339 § 31. to fraudulent vendee, 676 § 32. without consent, 131 § 6. when unnecessary, 129 § 33. « (See £bsfonsibiijtt of Assignee for acts of Assionoe, Who kat Sde.) AWAKD, (See Abbitration.) BOARD OF DIRECTORS, (See Dibectobs.) BONDS OF AGENTS, 133 § 1, 3, 3 ; 133 § 4. BOOKS OF ACCOUNT AND VOUCHERS, 133 § 1 ; 134 § 2, 3, 4 ; 135 § 5, 6. BROKERS, 407 § 72 ; 343 § 3. BURDEN OF PROOF, as to double insurance, 136 § 7. as to compliance with conditions of asdgnmeni^ 132 { 11. as to fidse swearing, 281 § 7. as to nearest magistrate, 150 § 2. . as to title, 136 §5; 273 §57. as to assessments, 104 § 15 ; 114 § 50. as to origin of fire, 137 § 9. of authority to surrender prenuum note, 489 § 16. of alienation, 136 §6. of compliance with promissory warranty, 136 § 4. of defence undergo rata clause, 188 §2. of increase of risk, 311 §7; 137 §8, 10. of interest in policy for whom it may concern, 345 § 26. of loss from "design, invasion, insurrection," &c., 136 § 2. of misrepresentations, 135 § 1 ; 136 § 3. of notice of increase of risk, 311 J 7 ; 314 § 14. 692 INDEX. BURDEN OF PROOF,— Oontinued. of showing note to be of capital stock, 38S § 3. presumption, 181 § 13 ; 253 § 4; 476 § 23. that loss was not caused by repairs, 316 § 21. to show less interest than purported in policy, 208 § 1. BURNING BY DESIGN, action pending indictment for arson, 139 § 9. by agent of assured, l38 § 4. may be shown by presumptions, 138 § 2. sufiSciency of proof of, 138 § 1, 3 ; 189 § 5, 6, 7, 8; 140 § 10, 11, BY-LAWS AND CONDITIONS, as to forfeiture for non-payment of assessments, 101 § 7. as to keeping a watch, 142 § 12. as to proof of loss, 143 § 13 ; 144 § 16. as to interest, 148 ^ 14. as to policy to mortgagee, 143 § 15. as to increase of risk by means of others, 142 § 11. as to magistrate's Certificate, 153 § 14 ; 154 g 15. as to suspension of policy, 536 § 1. as to transfer of stock, S94 § 1. as to venue, 142 § 9, 10 ; 558 § 10 ; 683 § 2, 3 ; 634 § 6 ; 635 § 7, 8. by-laws passed after making policy, 141 § 7. how construed, 140 § 1. when part of policy, 140 § 2 ; 141 § 8, 4, 5, 7. when authorized and binding, 410, § 80. where not recited, 403 § 67 ; 478 § 28. (See LmiTATioii Clause, WArrBK.) CAMPHENE, exception of, applies to policy on merchandise, 145 § 4. meaning of " occasioned by«camphene," 145 § 8. policy avoided by, although removed before fire, 144 § 1. usages as to, 271 § 49. verbal agreement for use of, 435 § 22. when its use avoids policy, 145 § 2 : 253 § 5 ; 621 « 46 : 688 S 4 : 684 § 6. , > > . s . CANCELLATION, as to date of, 147 § 4 ; 148 § 7. of stock notes through fraud, 552 § 1. of premium note, 149 § 9. where agent is instructed to cancel, and does not, 146 § 2; 147 § 5. where property has been alienated, 535 § 2. without consent of assured, 146 S 1. CERTIFICATE OF LOSS, condition precedent, 149 § 1 ; 150 8 2 ; 151 8 7 ; 155 S 18. contents of, 150 § 2, 4, 5 ; 151 § 8 ; 154 § 16. must be furnished when, 151 § 6 ; 156 § 22. nearest magistrate, 150 § 8 ; 152 § 10 ; 153 § 12, 14; 154 § 15 ; 155 § 18, 20 ; 156 § 21. » > . s . refusal to sign, 149 § 1 ; 152 § 9. waiver of defects in, 152 § 10, 11 ; 158 § 13 ; 154 § 17; 155 § 19 ; 156 § 21, 22 ; 636 § 2. ' ' CHANGE OF VENim, (See Veitob,) CLASSIFICATION OF RISKS, assessments in one class for losses in another, r58 § 2. INDEX. 693 CLASSIFICATION OF BJSKS,^ Cmtinued. contained in policy, conclusiTe, 264 § 18. execution restsicted to particular class, 279 § 2. in town and county divisions, 100 § 2. into divisions of less than statutory amount, 105 § 19. under New York statute of 1849, 158 § 1 ; 159 § 4 ; 160 § 5. warranty of particular class of rates, 218 § 2. where insurance put in wrong class, 218 § 2. where made in violation of statute, 1 03 § 12. CONCEALMENT, by re-assured, 161 § 4. evidence to rebut charge of, 91 § 36. materiaUty of, 163 § 12 ; 233 § 22 ; 465 § 58 ; 504 S 1 ; 505 § S, 8 ; 573 §7; 582 §36; 645 §4. matters as to which assured may be silent, 160 § 1 ; 162 § 7, 9 ; 163 § 10, 11, 12, 13; 164 § 18; 165 § 19, 20; 220 § 6. matters which should be communicated, 88 § 28 ; 164 § 14, 17. of fire in adjacent building, 161 § 2 ; 162 § 5 ; 164 § 16. of occupancy by gamblers, 162 § 8. of threats or attempts to burn, 161 § 8 ; 166 § 28. through inadvertence, 162 § 6; 164 § 15 ; 165 § 21. through ignorance, 165 § 21, 22. where enough is stated to put on inquiry, 164 § 16. (See Distance of Other BuiLDiiies, Other Insurance, TnxE, Encuhbbahoeb.) CONDITIONAL SALE, (See Alienation.) CONDITIONS, (See By-Laws and Conditions.) CONSEQUENTIAL DAMAGES, for loss of custom or profits, 167 § 1, 2 ; 168 § 4, 6. for rents, 167 §3. for wag^ 168 § 4. for injury to business, 168 § 6. not recoverable, 168 § 5. CONSIGNEE, insurable interest of, 326 § 22. neglect to insure, 84 § 5 ; 39 § 29. usage of to insure, 600 § 1 ; 603 § 11. (See Goods in Trust or on Commission.) CONSOLIDATION OF COMPANIES, 105 § 18. CONSTRUCTION, as to party and interest insured, 847 § 36. force pump does not include hose, 661 § 26. in case of ambiguity, 87 § 25 ; 178 § 19 ; 175 § 27 ; 651 § 24. incidental to business stated, 617 § 88. of by-laws and conditions, 140 § 1 ; 173 § 16, 20. of certain form of assignment, 124 § 14, 15. of clause as to assignment, 121 § 6, 7. as to usurped power, 169 § 1. as to description of buildings, 218 § 1 ; 623 § 49. as to preliminary proofs, 473 § 4. as to tide, 683 § 35 ; 583 § 38, 39 ; 485 § 43. as to houses building and repairing, 608 § 14. as to levy of execution, 178 § 18 ; 174 § 28. 694 INDEX. CONSTRUCTION,— Contmued. of limitation clause, 360 § 16. of note payable to company "or their treasurer,'' 462 § 50. of notice of machine " for burning hard coal," 645 § 6. of policy, 171 § 11 ; 172 § 14, 15 ; 175 § 25, 26. of vote to postpone subject of paying loss, 173 § 17. of the description, 169 § 3. where a particular description is false, 169 § 2. where there are two sets of representations, 82 § 9. what conditions apply in policy on goods, 145 § 4 ; 228 § 8 ; 230 § 13. whether condition or proviso, 169 § 4. (See Bisk, Wabkanty ^ and Kepkesentation, What Pbopertt is Covebed bt Policy, Written Portion op Policy.) > CONSTRUCTION OF CERTAIN WORDS AND PHRASES, absolute interest, 585 § 43. approval, 179 § 9. articles subject to legal restrictions, 174 § 22. as soon as possible, 151 §6; 156 § 22 ; 361 § 18. assigns, 170 § 5. assured and insured, 170 § 6. buildings, 171 § 10. civil commotion, 539 § 2. carpenters' risk, 172 § 13.; condition, situation, value and risk, 245 § 27. constantly worked, 89 § 31. duly assigned, 125 § 20. during continuance in office, 133 § 4. encumbrance, 249 § 33. exposures, 231 § 18. five-story building, 223 § 15. fixtures, 661 § 10. forthwith, 877 § 3, 5 ; 378 § 7 ; 380 8 15. inn, 604 § 1. occasioned by camphene, 145 § 3. occupied as a store, 611 § 26. occupied as a storehouse, 268 § 36. other buildings, 171 § 10 ; 2.S2 § 19 ; 664 § 22. plate and paintings, 659 § 2. * proprietors, 534 § 3. reasonable diligence, 406 § 69 ; 407 § 73. so far as known to the applicant and material to the risk, 247 § 31. so far as regards the risk, 239 § 9. starch factory, 405 § 83. stock of watches, watch trimmings, &c., 662 § 17. storing, 304 § 2. subject insured, 452 § 5. survey, 90 § 34. tavern keeping, 607 § 11. time of working factory, 175 § 24. unoccupied, but to be occupied by tenant, 625 § 52. usurped power, 169 § 1. vicinity, 172 § 12. water on each floor, 174 § 21. worked by day only, 606 § 7, 9. INDEX. 696 CONSUMMATION OF CONTRACT, when contract is complete, 42 § 38 ; 177 § 3 ; 179 8 7, 8 9 ; 180 S 10 ■ 182§U, 15, 16; 183§17; 184 § 19 ; l.<5§2d: 187 § 22, 28 ' 449 § 2, 3. > J > > I r when contract is incomplete, 176 §1,2; 17854,6: 181 S 12 13- 186 §21; 187 § 24; 443 §1. ' CONTRACT, , , . (Seb Poucr.) tJONTRIBUTION, right to, 192 § 18. amount recoverable where policies have pro rata clause 188 S 2 • 194 §15. > S I where other insurance, 189 8 4 : 191 8 10. 11 ■ 392 §25. s . . where one policy is on the whole and another on ^arte, 189 § 5 ; 190 § 7 ; 192 § 12, 14 ; 194 § 17. wheie one policy is void, 190 § 9 ; 402 § 68. for expenses of protecting against fire, 298 § 1. in case of double insurance, 188 § 1 ; 190 § 8 ; 194 8 16 • 324 S 6 • 340 §10. ' > . s , where one policy has pro rata clause and others not, 188 8 2 COUNTERSIGNING BY AGENT, 195 § 1, 2 ; 449 § 3. COVENANTS TO INSURE, assignee of lessee liable on, 197 § 7. lessor may sue on, 197 § 7. breach o^ by tenant, 195 § 2. consideration of, 197 § 9. damages on, 196 § 1. does not give lien on policy, 197 § 10. injunction against ejectment for breach of, 195 § 1. in mortgage, 366 § 6. need not be in writing, 197 § 8. re-entry for breach of, 196 § 4. run with the land, 196 § 3, 6 ; 197 § 7. where sub-lessee insures, 196 § 5. DAMAGES, actual loss with interest only recoverable, 168 § 5. by removal, 206 § 27 ; 523 § 2 ; 524 § 4. consequential, 167 § 1, 2, 3 ; 168 § 4, 5, 6. cost, as evidence of, 200 § 8. cost of rebuilding, not the rule of, 125 § 13 ; 205 § 24. deduction of per centage, 202 § 17. entire loss recoverable within limit of insurance, 199 § 2 ; 202 § 16 ; 204 § 21 ; 207 § 28. for loss of machinery, 199 § 4. fbr loss of cotton mill and machinery, 202 § 14. for imported goods with duties unpaid, 203 § 19. for patented reaping machines, 205 § 24. for successive losses, 567 § 1 ; 568 § 3, 4. for goods in trust or on commission, 299 § 1, 2 ; 300 § 4 ; 301 § 8, 11 ; 323 § 3 ; 326 § 22. for expenses of protecting property against fire, 298 § 1. for expenses of collecting assessments, 101 § 5. for neglect to insure, 33 § 2 ; 34 § 5 ; 40 § 34. for refusal to recognise transfer of stock, 594 § 1. 696 iND^x. DAMAGES,— Cimt^nue<^, interest, 200 § 6, 9 ; 202 § 18 ; 295 § 4 ; 427 § 7 ; 4U2 § 24. mitigation of, 263 § 12. on covenants to insure, 196 § 6. on goods dealt in at wholesale, 207 § 29. on property abroad, 208 § 32. on floating policy, 283 § 1, 2. on policy to mortgagor, 52 § 2; 199 § 3. to mortgagee, «6 § 45 ; 200 § 7 ; 204 § 20 ; 209 § 4 ; 210 S 5,6; 531 §8; 673 § 7. to assignee of mortgagee, 200 § 7. on policy assigned to mortgagee, 209 § 2. on policy to vendor, 58 § 23 ; 62 § 33 ; 69 § 51 ; 208 § 1 ; 211 § 7. to vendee, 324 § 6. to lessee, 192 § 1 ; 202 § 15 ; 220 § 13. to tenant by courtesy, 324 § 9. to purchaser of equity of redemption, 199 § 5. covering all the stock in pork house, 209 § 3. of re-insurance, 522 § 5, 6, 7 ; 601 S 5. on valued policy, 267 § 29 ; 595 § 1, 2 ; 496 §3 ; 497 § 7 ; 631 § 1. report of committee under charter not conclusive as to, 204 § 22. sale of damaged goods at auction, 200 § 10 ; 201 §12. temporary or local depression in market value, 204 g 23 ; 205 4 25. under two-thirds or three-fourths clause, 191 § 11 ; 199 § 4 ; 201 § 11 ; 394 §24; 595 § 2; 596 § 3, 4, 5, 6; 597 §i7, 8; 498 § 9, 10, 11. where there is double insurance, 188 § 1, 2 ; 189 § 3, 4, 5 ; 190 § 7, 8, 9 ; 191 § 10, 11 ; 324 § 6 ; 892 § 25 ; 402 § 53. where building has been torn down, 540 § 7. where goods insured have been levied on, 325 § 11. where insurer elects to rebuild, 207 § 30, 31. where partial repairs are made, 206 § 26. where property is injured by fire, 201' § 11. where there is no legal rule of, 201 § 13. DELIVERY OF POLICY, (Sbk Pouot.) DEPENDENCY OP POLICY AND PREMIUM NOTE, liability for assessments ceases prima faeie with policy, 242 § 19. where policy is void for alienation, 211 § 3 ; 212 § 5, 6 ; 213 § 8 ; 214 § 12 ; 215 § 16, 17 ; 488 § 10 ; 535 § 2. assignment, 211 § 2. concealment, 211 § 1 ; 217 § 21. non-payment of assessments, 110 § 35. other insurance, 409 § 78 ; 537 § 2. want of insurable interest, 487 § 85. where policy is void db initio, 212 § 4; 217 § 22, 25; 486 §3 ; 488 § 9. avoided by act of assured, 491 § 2. suspended, 488 § 7 ; 438 § 5. surrendered, 217 § 23, 24; 489 § 16. where policy has been paid in full, 21 2 § 7 ; 214 § 15 ; 215 § 18. where assured dies and administrator pays assessments, 214 § 14. DESCRIPTION OF PROPERTY INSURED, condition as to, 583 § 38. contemplated additions, 220 § 8. false description rejected as surplusage, 160 § 2. implied warranty of continued truth of, 221 § 10. as to occupation, 224 § 21. INDEX. 697 DESCRIPTION OF PROPERTY INSURED,— Ctoitjnued. iron shutters and doors need not be always shut, 219 S 8. latent ambiguity, 664 § 23. misdescription by secretary, 223 § 16 ; 430 § 295. misdescription may be corrected by agent, 224 § 19. mistake in, 81 § 4; 89 § 31 ; 225 § 28 ; 517 § 1 ; 518 § 6. mistake in diagram, -221 § 11. omission to mention wooden kitchen, 222 § 13. omission to specify particular articles, 223 | 17. mention bleach house, 223 § 18. mention cellar, 225 § 22. of building where goods were kept, 218 § 1. of agricultural building designated as barn, 219 § 4, of house filled in with brick, a warranty, 219 § 5. of mechanic's lien, 223 § 14. unnecessary particulars, 648 § 16. when misdescription avoids policy, 220 § 6. where building intervened between two described, 220 § 7 ; 221 § 9. where mill warranted to be of first class of rates, 218 § 2. (Sbb Wabranit and Refbesentation, What Pkopertt is Covered by Poucy, Distance op Other BuiLDoias.) DIAGRAM, 80 § 1 ; 141 § 11 ; 230 § 16 ; 232 § 20. DIRBCTORS, authority to bind company, 38 § 24. to consent to otLer insurance, 393 § 28. to levy assessments, 110 § 36. to waive premium note, 446 § 12. DISTANCE OF OTHER BUILDINGS, exposures within ten rods, 231 § 18. in policy on personal property, 227 § 6 ; 228 § 8 ; 230 § 13. mis-statement of, where made by agent, 233 § 22. omission of buUdings, 89 § 82 ; 225 § 2 ; 226 § 4, 5 ; 227 § 6 ; 228 § 9 ; 229 §12; 232 §19, 21. reference to diagram, 230 § 16 ; 232 § 20. statement that building named would not endanger, 226 § 3. what included by " other buQdings," 171 § 10 ; 232 § 19 ; 664 § 22. where distance is not known to applicant, 231 § 17. where building described as " with fifty feet," 230 § 15. where nearest buildings are stated, 229 § 10, 11. where premises described as bounded by space, 227 § 7. DIVIDENDS, how paid, 235 § 5. what funds may be distributed, 234 § 1, 3. what may be reclaimed, 235 § 4. DOUBLE INSURANCE, (See Contribution, Other Insurance.) DURATION OF POLICY. (See Policy.) ENCUMBRANCES, amount of understated, 239 § 8 ; 240 § 11 ; 243 § 21 ; 250 § 38, 39 ; 586 § 44. bond to convey not an, 251 § 41. by judgment or decree, 288 § 4; 358 § 8. by tax sale, 240 § 10. 698 INDEX. BNCUMBBANCES,— C(ftioks of account as, 135 § 6. by partner that another partner has no interest, 271 § 48. competent witnesses, 266 § 26 ; 268 § 38; 272 § 86 ; 531 § 8. copy of policy when, 267 § 31. examination under oath, 264 § 17. ex-parte affidavits, 475 § 16. in mitigation, 263 § 12. in suit to compel issue of policy, 518 § 5. correct policy, 518 § 6. mutilated papers, 265 § 19. of acts prior to date of policy, 265 § 21 ; 275 § 68. additional insurance, 180 § 11. admissions, 37 § 19, 21 ; 184 § 18; 269 § 39. agency, 85,.§ 10 ; 289 § 22. assured's declarations when charged with arson, 265 § 20. authority to consent to other insurance, 400 § 46. burning by design, 138 § 1, 11. burning straw &ee weeks before loss, 271 § 51. by-laws attached to policy, 272 § 54. company's organization and capacity, 269 § 48 ; 275 § 67. compliance with statutory regulations, 269 § 41. consent to alienation, 64 § 41. consent to assignment, 64 § 41 ; 122 § 10. delivery of deed, 53 § 6. policy, 184 § 18. experts as to increase of risk, 261 § 4 ; 176 § 32 ; 272 § 55 ; 277 §80. nature of risk, 273 § 61. materiality of facts, 268 § 34. 700 INDEX. EVIDENOE, — Gmtinutd. experts as to handwriting, 362 § 7. usage, 277 § 79. what are brick houses, 266 § 27. opinions, 266 ^ 25 ; 267 § 33 ; 273 § 59. false swearing, 280 § 2, 4 ; 281 § 5, 6 ; 282 § 8, 9, 10. false representations to other companies, 277 § 78. fraud, 829 § 29. good character to rebut charge of fraud, 261 § 2. insurance on indictment for arson, 261 § 1. interest insured, 345 § 27; 387 § 9; 275 § 70. loss by removal, 266 § 24. of policy, 270 § 45. nearest magistrate, 150 § 2 ; 152 § 10 ; 163 § 12 ; 155 § 20 ; 156 § 21. notice of assessments, 270 § 47. loss, 274 § 65, 66. notice to, or knowledge of, agent. (See Aoent.) policy in action against agent for slander, 264 § 15. president and secretary, 267 § 30 ; 272 § 66. preliminary proofs, 269 § 39 ; 274 § 62, 63, 64. premium note in action on policy, 490 § 17. property insured, 387 § 9 ; 595 § 2. intended to be insured, 665 § 24. records of insolvency to show situation of assured, 262 § 8. representations of agent beyond his authority, 263 § 11. secretary's authority, 35 § 12 ; 270 § 44. title, 272 §57; 578 § 8. valae of property insured, 203 § 7 ; 263 § 13 ; 268 § 35 ; 269 § 40 ; 272 §52; 273 §60. value to support judgment, 262 § 6. waiver, 277 § 77. on indictment for arson, 277 § 76. presumptions, 181 § 13 ; 476 § 23. rates of hazards, instructions and by-laws as to, 268 § 37. recital of policy in premium note, 266 § 22. of premium note in policy, 490 § 17. removal pending election to replace, 509 § 3. to correct clerical error, 270 § 46. rebut charge of concealment, 91 § 46. evidence of fabrication of papers, 261 § 5. wrongly admitted, 273 § 60. to reduce value in valued policy, 267 § 29. show that others in same business had less stock, 262 § 7. regular agent would not have insured, 263 § 9. to show when policy takes effect, 272 § 63 ; 276 § 73. to explain policy, 276 § 71 ; 276 § 74. under allegatioo of removal, 271 § 50. (SeeSubden of PRoor, Parol Evidence, Usaob.) EXAMINATION UNDER OATH, 278 § 1, 2. 3. EXECUTION, against particular classes, 279 § 2. contract to stay, 279 § 1. levy of, not alienation, 57 § 19 ; 63 § 36. does not divest insurable interest, 325 § 11. ' before taking insurance, 65 § 48. INBEX. 701 EXECUTOR AND ADMINISTRATOR, may pay assessments against decedent, 214 § 14. not required to keep up insurance, 34 § 6. policy of decedent passed to, 120 § 1 ; 338 § S. where policy is renewed by, 338 § 6 : 679 § 28. where appointed after bill ffled, 442 § 1. EXPERTS, (Ses Evidence.) EXPLOSION, (SbbRisk.) FACTORS, 40 § 31 ; 301 § 11 ; 323 § 8. FALSE SWEARING, meaning of term, 280 § 1. record of suit between agent and insurer, 281 § 6. statement of loss disproved, 280 § 3 ; 288 § 12. to create forfeiture, 283 § 11. verdict for less than sum sworn io, 280 § 4 ; 281 § 7 ; 282 § 8, 9, 10. where agent swears to loss as his, 881 § 5. FLOATING POLICY, 283 § 1, 2. (See CosTRiBimoN.) FOREIGN INSURANCE COMPANIES, competent to contract, 287 § 12. conditions of as to venue, 291 § 29 ; 633 § 2. ftilure to file statement and take out license, 133 § 2; 284 § 1, 2: 286 §7; 287§16; 288 § 17, 18, 20; 289§23; 290§27,28; 450§4. sufficiency of statement^ 287 § 14, 15 ; 289 § 24. laws imposing burdens on agenraes of, 284 § 3 ; 285 § 4; 289 § 21 ; 569 §4; 670 §6. in lOssouri, 284 § 1. Illinois, 284 § 3 ; 289 § 21. Ohio, 285 §4. Pennsylvania, 285 § 5 ; 288 § 19 ; 290 § 25. Indiana, 290 § 28. Wisconsin, 290 § 21 ; 291 § 30. New Hampshire, 290 § 26. Hen o^ 363 § 7. may be ganushed, 296 § 6. notice to agents o^ 45 § 46. place of contract, 449 § 1, 2, 3 ; 450 § 4. service, 286 § 8. proviaon forfeiting entire note, 286 § 11. in r^ard to stay of execution, 278 § 1. revocation of agency of, 286 § 9. service on agents of, 286 § 4, 5. statutes of Massachusetts as to, 285 § 6 ; 286 § 10 ; 287 § 13, 14 ; 288 §20; 289 §22, 24; 291 § 31. usage of. 600 §2; 601 §4. what law governs remedy, 288 § 19. FRAUD, in issue of policy, 294 § 11. averment of, 293 § 7. concealment of interest, 294 § 12, 18. false numbering of polides, 292 § 3. folse statements as to solvency, 293 § 9 ; 294 § 10. contract by insolvent co., 293 § 9 ; 322 § 3. 702 INDEX. VB.AUD,— Continued. fraudulent alienatioD, 55 § 12 ; ('4 § 40 ; 661 § 9 ; 586 § 44. over valuation, 630 § 5. surrender of stock note, 652 § 1. representations of agents, 292 § 2, 5 ; 293 § 8. in obtaining stock subscriptions, 554 § 8. misapplication of premium note, 494 § 32 ; 551 § 9. - mistake of agent unknown to co., 244 § 4. policy ordered to be delivered up for, 291 § 1. rescission of contracts for, 293 § 6 ; 491 § 21. (Seb BuranNG by Design, Keglisbkcb, False Sweabins, VaIiOb.) GARNISHMENT OR TRUSTEE PROCESS, after payment in good faith, 29T § 10. by landlord for rents due from tenant, 339 § 6^ foreign companies liable to, 296 § 6. for loss fixed by award, 293 § 1. ^certained before answer, 293 § 2. for unadjusted claim of loss, 297 § 8; 297 § 9, 11, 12. interest chargeable to garnishee, 200 § 9 ; 202 § 18; 293 § 4. no defense to action on policy, 293 § 4. setoff by garnishee, 293 § 3 ; 550 § 7. where policy has been assigned, 296 ^ 5, 7 ; 466 § 64. GENERAL AVERAGE, 298 § 1. GOODS IN TRUST OR ON COMMISSION, assured may pay himself before customers, 301 § 9. goods in pawn, 300 § 7. insurance covens only interest of assured, 299 § 1. covers whole value of property, 209 § 3 ; 299 § 2 ; 301 § 8, 11; 303 §14; 323 §3; 326 § 22. may be insured without order of owner, 302 § 12 ; 339 § 8. must be insured as such, 299 § 3 ; 300 § 6, 7. what property treated as, 300 § 6 ; 801 § 10 ; 303 § 13, 15. where held by partners, 300 § 4. GUNPOWDER, agent has knowledge, 306 § 7. deposited beyond policy limit, 304 § 3 ; 305 § 6. explosion by, 540 § 5, 6"; 541 § 11. storing and keeping of, 305 § ^ 5 ; 618 § 41. when not covered by insurance, 304 § 1. where building is blown up, 304 S 2. HEIRS, have no interest in policy, 120 § 1 ; 338 8 3. ILLEGALITY OP CONTRACT, adding premium to lawful interest, 307 § 4. agreement for illegal insurance, 306 § 2. cash premium in mutual companies, 808 § 7, 8, 9 ; 445 § 11. estoppel to set up, 159 § 4 ; 307 § 6. gambling policy, 806 § 8 ; 308 § 10; 809 § 11. insurance before license, 492 § 25. of re-insurance, 521 § 1, 2. Stat 6 Geo. 1 c. 18 § 12; 306 § 1. unauthorized guaranty fund, 807 § 6. (See Foreign Insurance Cohfanies, MimiAL Companies.) INDEX. T03 INCREASE OF RISK, burden of showing, 311 § 7. evidence of, 261 § 4 ; 267 § 32 ; 272 § 55. invalidates policy when, 140 § 2 ; 142 § 11 ; 309 § 3 ; 310 8 4, 5 : 311 §6; 312 §9; 314 §14, 15; 425 §10; 315 § 16,17; 315 8 19; 316 §20; 317 § 24; 318 §25; 320 § 31, 32; 455 § 19; 607 §10. notice of, 311 § 7 ; 314 § 14 ; 315 § 1 9 ; 316 § 21 ; 319 § 29 ; 320 § 33, 34; 146 §3; 436 § 27. what is not invalidate policy, 318 § 26 ; 319 § 28. when it does not, 309 § 2 ; 311 § 8; 312 § 10, 11 ; 314 8 13 ; 315 § 18; 317 § 22; 318 § 27; 319 § 30. where no stipulation in policy, 312 § 10 ; 622 § 47. (Sbe QuEsnoNS FOR Court and Jury.) INSOLVENCY, assignee of insolvent co, may reclaim dividends, 235 § 4. . contract of insolvent co. to insure, 322 § 5. distribution of assets, 321 § 2 ; 322 § 7 ; 568 § 2. insurable interest of insolvent, 326 § 18 ; 329 § 29. liability of stockholder, 321 § 4. lien of creditors of insolvent co., 321 § 1 ; 367 § 1. no defence to action on premium note, 322 § 6 ; 488 § 8 ; 493 § 28. set-ofF of creditor, 321 § 3. INSTRUCTIONS, (See AeENT, Pleadikg akd Practice.) INSUBABLE INTEREST, must exist at time of insurance and of loss, 323 § 1 ; 333 § 43. none in possibility of a right, 324 § 10. not destroyed by levy, 325 § 11. of agent or consignee, 326 § 22. assignee 331 § 38, 39. executor and creditor, 331 § 36, 37; 578 § 22. grantor of deed given in security, 432 § 11. husband in wife's property, 224 § 8, 9 ; 325 § 15 ; 329 § 29 ; 333 §45. insolvent, 326 § 18 ; 329 § 29. insurer, 621 § 3. lessee, 325 § 13 ; 334 § 47. lessor, 330 §35; 333 §42. mortgagee, 325 § 12 ; 326 § 17; 327 § 25 ; 328 § 26, 27 ; 332 § 41 ; 333 § 11. mortgagor, 241 § 15 ; 323 § 5 ; 326 § 21. partner, 325 § 16. purchaser at execution sale, 65 § 42 ; 327 § 24. railroad co. in growing timber, 327 § 23. sheriff, 330 § 34. trespasser on land of state, 326 § 19. trustee, 334 § 48. policy to secure payee of note, 324 § 7. rents and profits, 167 § 3 ; 325 § 14. under executory contract, 323 § 2, 4 ; 324 § 6 ; 328 § 28 ; 332 § 49. mechanic's lien, 326 § 20 ; 330 § 32, 33 ; 334 § 46. (Seb Goods in Trust or on GoiaassioN.) INSURANCE COMPANIES, do not forfeit charter by refusing hazardous risks, 355 § 1. in niinois cannot plead usury, 336 § 6. T04 INDEX. INSURANCE COMPANIES,— Co7i«mMe(i. may borrow money, 337 § 8. purchase bank stock, 335 § 3. bills of exchange, 386 § 4. transfer notes, 835 § 2. notice to, 336 § 7. INTEREST, (See Damaoes.) INTEREST IN POLICY, after death of assured, 34 § 6 ; 120 § 1 ; 214 § 14 ; 388 § 3 ; 841 8 14 ■ 342§19; 346§80; 347§85; 349§ 42,43; 350§45. construction as to interest insured, 302 § 12 ; 347 § 36. for whom it may concern, 345 § 27 ; 350 § 44, 49. in policy of re-insurance, 344 § 24 ; 522 § 4, 8. of bailor in policy to bailee, 300 § 5 ; 337 § 1 ; 339 § 8 : 343 § 20 ; 345 §.26 ; 349 § 41. creditor in policy assigned to himself, 64 § 40. grantee in policy to grantor, 342 § 17. joint and separate creditors in policy to Arm, 338 § 4. lessee in policy to lessor, 837 § 1 ; 838 § 5. lessor in policy to sub-lessee, 196 § 5 ; 346 § 81. lien creditor in policy to debtor, 842 § 16. mortgagee in policy to mortgagor, 839 § 9 ; 340 § 12 ; 841 § 13 : 348 §89. himself 224 § 20 ; 851 § 49. mortgagor in policy to mortgagee, 344 § 28 ; 348 § 28. to purchaser of equity redemption, 345 § 28. assigned to mortgagee, 344 § 25. mortgagor in judgment for benefit of mortgagee, 340 § 11. one insurer in policy to another, 340 § 10 ; 350 § 46. principal in policy to agent, 342 § 15. sub-lessees in policy to first lessor, 343 § 21. vendee in policy to vendor, 69 § 51 ; 208 § 1 ; 846 § 32 ; 847 § 34. on goods in trust or on commission, 300 § 5 ; 802 § 12 ; 826 § 22; 227 §8. on interest of one partner, 350 § 47. to joint heh-s, 342 § 18. where collected by receiver, 846 § 29. money collected for property not insured, 847 § 33. deposited as security, 849 § 40. assigned and re-assigned, 366 § 4. covenant to insure, 197 § 10. (See Subbooation.) INTERROGATORIES, authority of agent to construe, 41 § 36. waiver of answer to, 88 § 27; 638 § 9. LESSOR AND LESSEE, (See RESPONSiBiLiTy op Assubed for Acts of Others.) LEVY OP EXECUTION, (See Execution.) LIEN OF CREDITORS, on surplus funds of ins. co., 234 § 2. of partners and of firm, 338 § 4. LIEN OF INSURER FOR ASSESSMENTS, avoided by sale or mortgage, 57 § 20. INDEX. 705 LIEN OP INSUEEE FOR ASSESSMENTS— Coniintted. avoided by a1i.eDation, 352 § 6. descentj 353 § 5. for quotas in Virginia, 351 § 1, 2 ; 353 § 3, 4. in foreign countries, 358 § 7. valid and should be paid by administrator, 2148 13. LIEN OP MECHANIC, (Seb Mechanic's Lien.) LIEN ON INSURANCE MONET, (See Interest m Poucr.) LIGHTNING, 354 § 1, 2, 3 ; 601 § 6. LIMITATION CLAUSE, applies where claim is wholly rejected, 358 § 9. commences to run when, 359 § 13 ; 361 § 18 ; 363 § 24, 26. conclusive answer to bill in equity, 355 § 1. condition subsequent and subject of plea, 355 § 2. construed strictly, 360 f 16 ; 363 § 26. does not apply as to amount allowed, 358 § 11. inoperative, 362 § 20 ; 365 § 32 ; 635 § 8. suspended, pending on it in equity to correct policy, 363 § 24. valid and binding, 142 § 10; 358 § 10 ; 359 § 14 ; 360 § 15 ; 361 § 18 ; 362 § 19, 21 ; 363 § 22, 23, 25 ; 864 § 28, 29 ; 865 § 30. void, 357 § 5 ; 358 § 8 ; 635 § 8. waiver of, 355 § 2, 3, 4 ; 357 § 5, 7, 8 ; 359 § 12, 13 ; 380 § 15, 16, 17: 362 § 21. must be plead, 362 § 19. MATERIALITY, test of, 573 § 7. (See Questions fob ConBi and Jury.) MECHANIC'S LIEN, 223 § 14; 246 § 29 ; 326 § 20; 329 § 30, 31 ; 330 § 33, 33 ; 584 § 40. MISDESCRIPTION, (See Dbscbiption of Pbopebtt Insubed.) MISTAKE, (See Agent, Application, Coscbalment, Dbscbiption of Pbopekit Insubed, OiHEB Insubahce, Refobh of Policv.) MOBS, (See Risk.) MORTGAGOR AND MORTGAGEE, undisclosed agreement between, 164 § 17. when insurance a charge on mortgaged premises, 366 § 1, 2, 3, 4, 6, 6 ; 367 § 7. (See Alienation, Assisnuent, Encukbeance, Insubable Intebest, Intebest in Policy, Subbogahon.) MUTUAL COMPANIES, dividends of, 370 § 12. cannot do business on stock plan, 368 § 4. liability of members, 368 § 5; 372 § 19, 23. may take cash premiums, 308 § 7, 8 ; 445 § 11. insure personal property, 368 § 2. negotiate notes, 371 § 15 ; 372 § 21. assume business, 370 § 11. members charged with knowledge of by-laws, 371 § 16, 17; 372 § 19. cannot dispute organization of, 370 § 14. 45 706 INDEX. MUTUAL COilPA'SlES,— Continued. membership continues after loss, 214 § 16 ; 368 § 3. forfeiture of policy, 369 § 6 ; STl § 18. power in relation to premium notes, 369 § 9 ; 371 § 15, 18. right to cancel policy and return premium, 372 § 2. special meetings, 369 § 10. subject to N. T. insolvency act, 367 § 1. surrender of policy, 369 § 7. when members not bound by by-laws, 369 § 8 ; 370 § 13. when membership commences, 372 § 20. (See Assessmehis, Pkemitim Notes, Pkbmium Notes in Adtancb.) NEGLIGENCE, gross misconduct, 373 § 2. in making repairs, 373 § 5. loss by, within policy, 373 § 1, 3, 4; 874 § 6, 7, 8, 10. construction of clause requiring care, 374 § 9. neglect of agent to insure, 33 § 1, 2 ; 40 § 35. consignee to insure, 34 § 5 ; 39 § 29. op.en doors in August, no proof of, 219 § 3. NEW TEIAL, (See Pleading and Pbactice.) NONSUIT, (See Pleading and Practice.) NON-USER, 335 § 1. NOTICE, of alterations, 78 § 4; 311 § 7; 312 § 9; 436 § 27. assessments, 492 § 26 ; 494 § 33. assignment, 120 § 4. assignee's intjerest, 65 § 42. increase of risk, 311 § 7; 314 § 14; 315 § 19. other insurance, 385 § 2 ; 386 § 6 ; 405 § 64 ; 406 § 68 ; 409 § 78 ; 410 § 81 ; 414 § 86. charges in amounts of other insurance, 415 § 88. to agents. (See Agent.) of foreign co., 13 § 46. attorney to produce books, 430 § 2. broker, not chargeable on co., 407 § 72. NOTICE OF LOSS, plea of, 457 § 25. to be given before action, 382 § 26. to whom to be given, 383 § 29. waiver of, 376 § 2 ; 377 § 6 ; 378 § 7, 9 ; 379 § 14 ; 880 § 17, 18 ; 381 i 20 ; 382 § 22 ; 475 § 31 ; 538 § 6. what a sufBcient, 378 § 8, 10 ; 383 § 28. what not sufficient, 382 § 25 ; 883 § 31. when to be given, 377 § 3, 4, 5 ; 878 § 7; 879 § 11, 12, 18 ; 380 §"15, 16 ; 381 § 19 ; 882 § 24; 883 § 27; 384 § 93, 83. who may give, 376 § 1 ; 881 § 21 ; 882 § 23 ; 383 § 30. (See PiffiLiMiHART Proofs.) OTHER INSURANCE, assent to, 389 § 16 ; 891 § 22 ; 393 § 28, 30 ; 395 § 36 ; 396 § 37 ; 397 § 38, 39 ; 899 § 44, 45 ; 404 § 61 ; 417 § 93, 94; 423 § 111 ; 602 §8. avoids policy when, 465 § 7 ; 390 § 19 ; 401 § 60 ; 404 § 59 ; 405 § 65 ; 410 §80. . bill to compel endorsement, 251 § 1. INDEX. 707 OTHER INSURANCE,— Cimtmaed. by vendor of assured, 385 § 3. depositor with warehouseman, 386 § 4. mortgagee of insured, 886 § 5 ; 394 § 83 ; 402 § 54. mortgagor after assignment of policy, 402 § 54 ; 529 S 3 : 539 S 4 i 632 §12. o , s > JT , loss payable to mortgagee, 421 § 104. stranger, 408 § 75 ; 414 § 87. assignor of policy, 529 §1,3; 530 § 4 ; 532 § 12. agent of assured without his knowledge, 413 § 85. interim receipt, 407 § 71. conditional assent to, 394 § 34. construction of certain clause, 406 § 67. endorsement of, 251 § 1 ; 388 § 15 ; 392 § 24 ; 397 § 88 : 398 8 42 ; 401§52; 403§66; 408§74; 412 §83; 414§86; 416 § 89. errors in recital of, 191 § 11 ; 393 § 27 ; 406 § 70 ; 410 § 79. fidse statement that there is, 651 § 27. includes prior and subsequent, 386 § 10, 11. knowledge of, 394 § 32 ; 400 § 48. must be taken as recited in policy, 392 § 25. notice of, 886 §6; 393 §30; 405 § 64; 406 § 66 ; 409 § 78; 410 §81; 414 § 86 ; 418 § 97, 98 ; 428 § 111. notice of, must be shown by assured, 385 § 2. changes in amounts of, 415 § 88. no warranty of continuance, 402 § 53. ofpart of property, 255 § 4; 256 §7; 398 §43; 419 § 100, 101 ; 663 § 3. parol notice of, 388 § 15 ; 390 § 20 ; 392 § 23 ; 400 § 48 ; 401 § 52. stipulation as to, 406 § 66 ; 418 § 95 ; 421 § 106. renewal of, 392 § 24 ; 400 § 49 ; 401 § 52 ; 408 § 76. under clause limiting amount, 398 § 41 ; 408 § 55 ; 404 § 58, 60. waiver of condition as to, 394 § 32; 404 § 61 ; 405 § 62; 409 § 78 ; 410 § 81 ; 415 § 88 ; 421 § 105 ; 537 § 2. what is double insurance, 340 § 10 ; 385 § 1 ; 386 § 8 ; 889 § 9 ; 888 §12; 393§29; 395 § 35 ; 398 § 43 ; 416§91; 417 § 92 ; 420 § 102 ; 422 § 107, 108 ; 504 § 3. where effected by a broker, 407 § 72. when notice of should be given, 405 § 62 ; 406 § 69 ; 407 § 73 ; 409 §77. not in force at time of loss, 422 § 110. void or voidable, § 386 § 5, 7; 388 § 13 ; 398 § 26 ; 397 § 40 ; 399 § 46 ; 401 § 51 ; 405 § 62 ; 412 § 82 ; 418 § 84, 85 ; 414 § 86 ; 416 § 90 ; 418 § 96 ; 419 § 99 ; 420 § 103 ; 422 § 109. where policy is taken in lieu of prior policy, 147 § 4 ; 400 § 47. . assured has assigned prior policy, 388 § 14, 16. assured is assignee of prior policies, 389 § 17 ; 391 § 21. by-law is not recited, 408 § 57. policy is payable to third party, 394 § 31 ; 530 § 6. (See CoNTBiBnTiON and Entirety and Divisibility op Poucy.) PAROL CONTRACT, at time of application, 85 § 20. between mortgagor and mortg^ee, 434 § 19. by a member of firm of agents, 39 § 27. effect of demand for premium, 427 § 9 ; 428 § 10. 708 INDEX. PAROL CONTRACT,— COTi«iji««d. for extension of time to rebuild, 510 § 6. insurance, valid, 427 § 7; 428 § 10, 11. although incomplete policy delivered, 427 § 8. policy, 428 §12; 463 § 53. that policy should be good to vendee, 425 § 4. to add to property described in policy, 424 § 1. consent to removal, 424 § 2. continue insurance, 45 § 44; 426 § 6; 444 § 6. vary the policy as written, 431 § 8. continue policy to different parties, 677 § 27. under revenue laws, 429 § 13. without premium note, 425 § 5. (SeeCossommation op Contract and Parol Etidehce.)- PAROL EVIDENCE, as to title of assured, 346 § 29 ; 437 § 29 j 580 § 28. property insured, 430 § 3 ; 431 § 5, 6 ; 434 § 18, 20; 437 § 30 ; 667 § 26. interest insured, 142 § 14 ; 431 § 4. future occupation, 438 § 33. of authority to transfer notes, 43 § 40. assent to conveyance, 64 § 41. other insurance, 393 § 30 ; 395 § 36. notice to agent. (See Agent.) representations as to value, 430 § 1. choice of directors and their acts, 430 § 2. agreement between mortgagor and mortgagee, 434 § 19. privilege to use camphene, 435 § 22. authority of president to transfer, 435 § 23, 24. statement prior to application, 96 §50; 431 §7; 436 §26; 438 § 83 ; 433 § 15, 16, 17. renewal, 436 § 27. waiver of payment of premium, 444 § 5. knowledge of agent. (See Agent.) agreement to treat separate property as joint, S80 § 28. to limit act of donation, 263 § 10. written promise, 339 § 8 ; 491 § 20. show knowledge of co , 433 § 14 ; 434 § 21. show waiver of limitation clause, 357 § 8. vary the policy. 473 § 26 ; 431 § 8 ; 432 § 10, 12 ; 433 § 13 ; 438 § 32, 34 ; 595 § 2. identity application, 432 § 9. show a deed to have been intended as a mortgage, 432 § 11 ; 438 § 35. real party in interest, 437 § 27; 438 § 31. contradict recital of payment of premium, 444 § 7. . show that re-insurance was for first assured, 522 § 8. (See Parol Contbaci.) PAYABLE IN CASE OF LOSS TO, (See Responsibility op Payee fob Acts of Assured, and Who May Sub.) PAYMENT OF LOSS, after contract of sale of property, 441 § 8. effect of clause giving right to rebuild, 440 § 7. by order on secretary, 440 § 6. to assignor after assignment^ 440 § 5. to be made as stipulated in policy, 439 § 1, 2. INDEX. 709 PAYMENT OF LOSS,— Gontimied. under several policies, 441 § 10. where insurers refuse to adjust, 440 § 3 ; 639 § 16. preliminary proofs required, 440 § 4 ; 441 § 9. payable to third party, 676 § 20, 23 : 677 S 24. PAYMENT OF LOSS TO TRUSTEE, 442 S 1 2 PAYMENT OF PREMIUM, agreement for credit, 448 § 20, 23, 24. agent may assume, 445 § 10 ; 448 § 22. delivery of policy without, 188 § 25 ; 446 § 14; 448 § 24. may be made subsequently, 448 § 21. may be by check on bank, 443 § 2, mode, may be prescribed by agent, 443 § 2. recital in policy of, 443 § 3; 444 § 7; 447 § 18. to agent not binding when, 446 § 14. tender of, 445 § 9. , waiver of, 43 § 42; 183 § 17; 443 § 4; 444 § 5, 6, 8; 445 § 9; 446 §12,13; 447 §17, 19. when a condition precedent. 443 § 1 ; 446 § 15 ; 447 S 16. PLACE OF MAKING CONTRACT, 449 § 1, 2, 3 ; 450 S 4. PLEADING AND PRACTICE, action on contract for policy, 463 § 53; 471 § 82. policy pending indictment for arson, 139 § 9. of debt, 461 § 44; 466 § 63. covenant, 525 § 1. for refusal to insure, not maintainable, 457 § 27. allegation of no other insurance, 458 § 34. amendments, 358 § 11 ; 465 § 57, 60; 467 § 66. of judgment, 467 § 66. appearance for corporations, 453 § 9. assured must prove title at trial, 574 § 8. averment of notice of loss must be denied, 379 § 13. application not required, 469 § 71. contract of insurance, 458 f 33. fraud, 293 § 7; 453 § 8 ; 454 § 16. loss, 467 § 65. interest, 323 § 3 ; 469 § 73, 74 ; 470 § 80, 81 . title and value, 452 § 7; 461 § 45. compliance with condition, 454 § 14; 468 § 69, 70; 471 § 83, 84. averment that policy was duly assigned, 125 § 20. avoidance under conditions must be plead, 624 §49; 469 § 71; 470 §77; 471 §84. consolidation of cases, 452 § 6. costs, 674 § 14. defective averment cured by verdict, 465 § 59. demurrer, 458 § 32. defence must be set up in answer, 457 § 28, 29. declaration on policy with memorandum attached, 180 § 11. policy,to be paid out of society's funds, 451 § 3. what must or need not be alleged in, 136 § 5 ; 457 § 24 ; 459§36, 37, 38; 575 § 11. . in action on premium note, 492 § 23. on policy renewed by endorsements, 525 § 1 ; 468 § 68 ; 469 § 72 ; 471 § 86. 710 INDEX. PLEADING AND VRkCTlC^,— Continued. declaration for assessments, 108 § 31, 32 ; 464 § 66 ; 493 § 30. on assigned policy, 126 § 25 ; 329 § 31. on agent's bond, 132 § 1. double plea, 464 § 16. feigned case, 453 § 10. immaterial issues, 462 § 51. instructions to jury, 456 § 23 ; 460 § 41 ; 463 § 52; 505 § 8. interpleading, 466 § 61. issue as to fraudulent loss, 454 § 15. judgment on agreement for policy, 425 § 3. non obstante veredicto, 606 § 7. jurisdiction of justice, 488 § 11. county court, 470 § 78 ; 490 § 18. matters of defence that must be pleaded, 169 § 4. misrepresentations must be pleaded, 460 § 43. motion in arrest, 458 § 30. new trial, 161 §2; 164 §17; 189 §4; 261 §3; 256§8; 314§15; 253 § 1, 2, 3, 4, 5; 264 § 6, 7 ; 276 § 6, 7; 407 § 71; 301 §26; 460 § 41 ; 504 § 1. non-suit, 407 § 71. plea of limitation clause, 355 § 2 ; 862 § 19 ; 458 § 35. under two-thirds or three-fourths clause, 407 § 73. offraud, 293§ 7; 471§85. of fraud and false swearing, 453 § 12 ; 456 § 22. of misrepresentation, 455 § 16, 19 ; 456 1 20 ; 467 § 21. of alteration, 311 § 7 ; 455 § 18. of waiver, 456 § 21. of notice of loss, 457 § 26. of other insurance, 457 § 26. of encumbrance, 461 § 46. of alienation, 461 § 47. of conditions on back of policy, 464 § 55. of garnishment, 293 § 4 ; 466 § 64. of breach of conditions as to use and occupation, 264 § 1 ; 311 § 7 ; 463 § 52. of breach of warranty, 468 § 67. of prohibited articles, 469 §75. of rescission of contract, 293 § 6. alleging compliance so far as is necessary, 292 § 2. prayer, form of, 465 § 58. questions on appeal, 410 § 79 ; 460 § 41 ; 464 § 56. reference of case, 454 § 13 ; 463 § 64. replication, 221 § 11 ; 860 § 17 ; 410 § 81. trial by judge, 466 §62. traverse, 454 § 16 ; 460 § 42 under Virginia statutes, 101 § 5, 6 ; 460 § 1. unnecessary averments, 457 § 24. variance, 458 § 31 ; 459 § 34 ; 462 § 48, 49 ; 472 § 1 ; 468 § 69 ; 469 § 76 ; 674 § 13. ■ videlicet, 466 § 21. waiver of exceptions to rulings, 637 § 6. pica, 638 § 8. may be shown under averment of performance, 474 § 18. INDEX. 711 PLEADING AND PRACTICE— Coniinwd. , want of notice must be plead in abatement, 288 § 19. what must be shown in action for assessments, 104 § 15 ; 108 § 32. what may be shown under allegation of removal, 271 § 50. what admitted by demurrer, 402 § 64. what defects cured by verdict, 132 § 1 ; 462 § 7 ; 453 § 11 ; 465 § 59. when suit may be brought, 439 § 2 ; 440 § 3, 4, 7 ; 441 § 9. where defense avers alienation, 136 § 6. where policy is an order to pay, 461 § 2. where there- are mixed questions of law and fact, 451 § 4. who entitled to open at trisd, 414 § 86. (Sbb Covenants to Insure, Questions for Court and Jury, Venus and Who Mat Sue.) PLEDGE OF POLICY, 126 § 23. POLICY, after death of assured^ 120 § 1 ; 338 § 3. authority of agent to issue, 40 § 31. change of, by agent, 38 § 23 ; 86 § 23. deUvery of, 34 § 8 ; 42 § 38 ; 178 § 5 ; 184 § 18. duration of, 196 § 4 ; 235 § 1 ; 236 § 2; 153 § 3, 4 ; 237 § 3 ; 493 §29. does not run with the land, 131 § 42 ; 342 § 17. enforcement of contract for, 254 § 1, 2, 3 ; 426 § 3 ; 463 § 53. interest in policy and proceeds. (See Interest in Pouct. ) place of contract, 4i9 § 1, 2, 3 ; 450 § 4. pledge of, 126 § 23. ratiBcation of, 40 § 23 ; 677 § 27, takes effect from when, 178 § 5 ; 181 § 13 ; 272 § 63 ; 449 § 2, 3. (See Assignment, Consummation op Contract, Construction, Cancellation, Db- pendenct op polict and premium note, entirety and divisibility 0» PoucY, Parol Contract, Reform op Policy, Renewal op Policy, Revival AND Suspension of Policy, Valued Policy, and Wrttien Portion o» Policy.) PRELIMINARY PROOFS, ^ , are conditions precedent, 150 § 3 ; 473 § 9 ; 476 § 19, 21, 23 ; 478 § 28; 481 §37; 482 §39, 42; 485 §50. as evidence, 261 § 3 ; 264 § 14, 16, 17; 273 § 58. authenticity of, 475 § 16. completion of, 361 § 18 ; 474 § 11 ;'482 § 40; 483 § 44, 46. defects in, should be specified by company, 477 § 24 ; 481 § 36, 38 ; 483§43; 484 §46,47; 486 § 62. estoppel of assured by, 477 § 29 ; 484 § 48 ; 486 § 49. evidence of, 269 § 39 ; 486 § 52. in re-insurance, 521 § 3. refusal of company to produce, 476 § 23. service of, 480 § 35 ; 482 § 40. waiver of. (See Waiver.) , . what required\n, 472 § 3 ; 473 § 4, 6, 7 ; 474 § 12 ; 476 § 20, 21 ; 334 § 30 ; 476 § 20, 21 ; 482 § 41. ^ „ , when in season, 361 § 18 ; 472 § 2 ; 473 § 5 ; 474 § 10 ; 476 § 21. when not verified, 576 § 18. (See Books of Account and Vouchers. Certificate and Notice op Loss.) PREMIUM may be paid in cash in a mutual company, 308 § 7, 8 ; 445 § 11. return of; 195 § 2 ; 535 § 1, 2, 3 , 536 § 4, 5 ; 672 § 1. suit for premium paid, 348 § 37. 712 INDEX. PREMIUM,— Continued. taxation on, 561 § 1. (See Patmbnt of Peemium and Premium Notes.) PREMIUM NOTES, assessments are conditions precedent to action on, 459 § 40 ; 492 § 23, 26; 497 §43. assignment of void, 288 § Vl. assignee need not give new, 489 § 15. authority to take, '486 § 1 ; 496 § 40. can be canceled only by surrender, 487 § 5 ; 496 § 42. cannot be used as capi^l stock, 494 § 32. collectable at discretion of directors, 490 § 19 ; 497 § 43. defective organization of company no defence, 112 § 42 ; 114 § 52 ; 115 § 56 ; 495 § 35, 36. evidence of compliance with statute, 269 § 41. company's organization and capacity, 269 § 43 ; 498 § 46 ; for open policy, 493 § 27 . . insolvency no defence to action on, 488 § 8 ; 493 § 28. interest on, 492 § 24; 496 § 39. in Indiana, 497 § 45. liability for losses where business is classed, 496 § 88, 41. necessary to complete insurance, 425 § 5 ; 446 § 12 ; 497 § 44. no liability on, without loss, 489 § 14. payable to company or their treasurer, 462 § 50. in installments, 488 § 11. receivers not honafde holders, 494 § 32. right to retain per centage after loss, 202 § 17. set-off against, 487 § 4 ; 488 § 9, 10, 11 ; 497 § 44. surrender of, 488 § 6 ; 489 § 13, 1 6 ; 495 § 34 ; 149 § 9 ; 535 § 2. taken before receiving license, 492 § 25. transfer of, 43 § 40 ; 435 § 23. transfer of, illegal, 488 § 10. void, if policy is void ah initio, 486 § 3 ; 488 § 9 ; 217 § 22, 25. waiver of, 446 § 12. where statement has not been filed, 188 § 1, 2; §286 7; 287 §16; 288 § 17, 18, 20 ; 289 § 23 ; 450 § 4. charter expires before maturity of, 493 § 29. obtained by false representations, 48 § 59. party contracting refuses to sign, 181 § 12. policy is surrendered, 489 § 16 ; 217 § 24. whole note may be declared due if assessments unpaid, 286 § 11 ; 487 §4; 489 §12; 494 § 31 ; 536 § 1. where defect in policy is waived, 217 § 21. (See Assessments, Estoppel, Classification of Risk, Dependenct of Policv AND PREBinM NoTB AND PreMIDM NoTES IN ADVANCE.) PREMIUM NOTES IN ADVANCE, alter failure of company, 498 § 2. are payable without assessments, 502 § 13, 15. demand of payment, 501 § 12. note described not, 493 § 27. parol agreement to cancel, 499 § 3 ; 500 § 7. payment of by premiums, 498 § 1 ; 503 § 18. surrender of, 499 § 3, 5 ; 500 § 6 ; 501 § 11. transfer of, 36 § 13 ; 500 § 9 ; 501 § 10 ; 502 § 14. under New York statutes, 503 § 16. INDEX. 713 PREMIUM NOTES IN ADVANCE— C