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Cornell University 
 Library 
 
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 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019359300 
 
THE LAW OF INSURANCE 
 
 Volume I 
 
THE 
 
 LAW OF INSURANCE 
 
 AS APPLIED TO 
 
 FIHE, LIFE, ACCIDENT, GUARANTEE 
 
 AND OTHER NON-MARITIME RISKS 
 
 BY 
 
 JOHN WILDER MAY 
 i?ourtt) CDition 
 
 REVISED, ANALYZED, AND GREATLY ENLARGED 
 
 By JOHN M. GOULD 
 
 IN TWO VOLUMES 
 
 Vol. I 
 
 BOSTON 
 
 LITTLE, BROWN, AND COMPANY 
 1900 
 
Entered according to Act of Congress, in the year 1873, by 
 
 John Wilder May 
 In the office of the Librarian of Congress at Washington. 
 
 Entered according to Act of Congress, in the year 1881, by 
 
 John Wilder Mat 
 In the office of the Librarian of Congress at Washington. 
 
 Copyright, 1891, 
 By Little, Brown, and Company. 
 
 Copyright, 1900, 
 By Little, Brown, and Company. 
 
 JEmbersitg Press 
 John Wilson and Son, Cambridge, U. S. A. 
 
PREFACE TO THE FOURTH EDITION. 
 
 Judge Mat's treatise upon the Law of Insurance has 
 now for so many years been a recognized help to the 
 profession and to the bench, and has been so constantly 
 relied upon, and cited with such approval, as to leave 
 little to be desired with respect to its plan and state- 
 ment of principles. But the vast interests involved in 
 the different forms of insurance, and the necessity of 
 having its business conducted by sure and intelligent 
 rules, appear to have uniformly conduced towards hav- 
 ing the best legal talent engaged in the discussion of 
 new questions thereon before the courts, and thus, from 
 issues carefully raised, the development of doctrine 
 upon this topic has, it seems, been particularly system- 
 atic, and upon clear lines of business progress and 
 certainty. This is especially noticeable in the numer- 
 ous cases decided since the last edition of this treatise 
 in 1891, when the painstaking labors of Mr. Frank 
 Parsons raised this book to a high rank. His analysis 
 of chapters, improvement of the Index, and the addition 
 of important sections, discussing the problems involved 
 
VI PREFACE TO THE FOURTH EDITION. 
 
 in the decisions rendered after the author's second 
 edition in 1882, made the work very acceptable up to 
 that time. In the present edition, the difficulties of 
 which have been somewhat increased by the growth of 
 courts and decisions, the labors of the author and of Mr. 
 Parsons have been supplemented by the addition of all 
 the more important decisions down to the date of going 
 to press, special attention being given to the very 
 latest decisions, and many new topics, not before 
 referred to in the Index, being discussed from the 
 advanced standpoint thus afforded. These new topics 
 include standard policies, incontestable clauses, proofs 
 of death and of loss, additions to buildings, adjacent 
 buildings, removal of goods, duty of the insured to 
 read his policy, etc., while such leading heads as general 
 and local agents, conditions, forfeiture, waiver, suicide 
 and insanity, assignments, arbitration, mutual and 
 foreign companies, etc., have been further developed 
 in lengthy notes, the value of which can be best deter- 
 mined by use. About three thousand cases are now 
 added. To make room for these additions, the longer 
 quotations from opinions have been transferred from 
 the text to the notes. 
 
 JOHN M. GOULD. 
 
 Boston, October, 1900. 
 
PREFACE TO THE THIRD EDITION. 
 
 The present edition of this well-known work exhibits a 
 growth corresponding to the vast increase of the busi- 
 ness whose legal aspects are treated in these volumes. 
 This edition contains about seventy-five per cent more 
 matter than the last. Every effort has been put forth 
 to make the necessary additions in a manner worthy 
 of the high character of the original structure. The 
 old cases have been revised, and new ones added to a 
 number nearly sufficient to double the Table of Cases. 
 All relevant decisions in the United States, England, 
 Scotland, Ireland, Canada, New Brunswick, and Nova 
 Scotia, have been examined down to as recent a date 
 as was possible before going to press in the spring. 
 In respect to courts of the last resort, in the United 
 States, exhaustiveness has been the aim ; but in treat- 
 ing the labors of other courts, decisions that are merely 
 cumulative authority upon undisputed points have been 
 frequently omitted. 
 
 The analyses at the chapter heads are entirely new, 
 and, as a condensation of the substance of Insurance 
 Law, will, it is hoped, be found useful. 
 
VIU PEEPACE TO THE THIBD EDITION. 
 
 The new matter in text and notes is enclosed in 
 brackets. Where possible, with due regard to the value 
 of the new material, it has been consigned to the foot- 
 notes, but many times a place had to be given it in 
 the text, in order to secure harmony of treatment, and 
 give equal attention to matter of equal novelty and 
 importance. 
 
 The old section numbers remain, almost without 
 exception, the same as in the last edition ; the new 
 sections being distinguished by an alphabetical termi- 
 nation, for example, 109 A. This edition contains six 
 more chapters than the last. 
 
 The Index has been remodelled, greatly increased 
 in size and minuteness, and in some degree rendered 
 analytic in its character. 
 
 FEANK PARSONS. 
 Boston, 1891. 
 
NOTICE TO SECOND EDITION. 
 
 This second edition has been improved by a careful 
 revision of all the cases cited in the first edition ; by 
 the addition of about two thousand cases, mostly de- 
 cided since the publication of that edition, many of 
 them from Canadian and other colonial and foreign 
 reports not heretofore generally accessible ; by a con- 
 siderable enlargement of the Index ; by very frequent 
 cross references ; and by the elimination of such matter 
 of discussion as has now become of less relative im- 
 portance since the practical settlement of questions to 
 which it related. 
 
 The author will not venture to say that no case has 
 escaped his notice ; but he will be surprised if any 
 case deciding any new and important point shall be 
 found to have been overlooked. 
 
 The original purpose has been kept steadily in view, 
 — to present within a moderate compass a complete 
 summary of what is to be found of importance in the 
 reports printed in the English language upon the topics 
 under consideration. 
 
X NOTICE TO THE SECOND EDITION. 
 
 The author desires to acknowledge his obligations 
 to his professional brethren for their friendly criticisms, 
 — which he hopes will be continued, — whereby he 
 has been able to correct errors which otherwise might 
 have escaped his notice, and by which he will be mate- 
 rially assisted in his efforts to present them with a safe 
 guide to their investigations. 
 
 J. W. M. 
 
 Boston, Jan. 1, 1882. 
 
PREFACE TO THE FIRST EDITION. 
 
 An effort has been made in the following pages to 
 give, within the limits of an ordinary volume, such a 
 statement of the law of Insurance as applicable to non- 
 maritime subject-matters, as will meet the require- 
 ments of those engaged in the various branches of the 
 business, the student, and the practising lawyer. To 
 extract from the wealth of material furnished by the 
 reports so much as seems to be essential to a correct 
 understanding of the results arrived at ; to set it out 
 with the requisite fulness and precision ; and to fuse 
 the whole into a form having method, unity, and com- 
 pleteness, — has been found to be a work of much 
 greater diflEiculty than was foreseen. Nevertheless, by 
 a studied brevity in the statement of the earlier ques- 
 tions which may now be regarded as settled, room has 
 been found to present, with considerable fulness, the 
 discussions to be found in the reports upon many of the 
 more recent questions which may be regarded as still 
 undergoing the process of elaboration ; such, for exam- 
 ple, as the liability for loss by explosion, how far suicide 
 
XII PREFACE TO THE FIRST EDITION. 
 
 is a defence, and the import of the phrase, " travelUng 
 by public conveyance." Such a work, however, can 
 never be truly said to be finished. That it has been 
 successfully begun, is more than the author will ven- 
 ture to affirm. Still, he believes that the profession will 
 here find results which, however imperfect, they will 
 welcome as a foretaste of something better, bearing, 
 he trusts, such evidence of an earnest purpose to sub- 
 serve their interests as they have a right to expect 
 from 
 
 THE AUTHOE. 
 Boston, December, 1873. 
 
CONTENTS OF YOL. I. 
 
 Page 
 TABLE OF CASES xv 
 
 CHAPTER I. 
 
 Of the Nature of the Contract 1 
 
 CHAPTER II 
 
 Of the Form of the Contract and the Parties thereto 26 
 
 CHAPTER III. 
 The Effect of War 58 
 
 CHAPTER IV. 
 Consummation of the Contract 68 
 
 CHAPTER V. 
 Termination and Revival 113 
 
 CHAPTER VI. 
 Sobject-matter. Insurable Interest 136 
 
 CHAPTER .VII. 
 Agents, their Powers and Duties 212 
 
 CHAPTER VIII. 
 Warranties, Application, Construction ...... 304 
 
XIV CONTENTS. 
 
 CHAPTER IX. PAOH 
 
 Representation 362 
 
 CHAPTER X. 
 Of Concealment 397 
 
 CHAPTER XI. 
 
 Special Provisions of the Contract, Increase of Risk, 
 Alteration, Use, Vacancy, Watchman, Working of 
 Mills, Care of Books, etc 427 
 
 CHAPTER XII. 
 Alienation 540 
 
 CHAPTER XIII. 
 Title and Incumbrance 580 
 
 CHAPTER XIV. 
 Health, Habits, Age, etc 622 
 
 CHAPTER XV. 
 Sdicide 654 
 
 CHAPTER XVI. 
 Of Death by Law, or while violating it, by Violence, 
 Casualty, or War; and of Restrictions upon Resi- 
 dence AND Travel 696 
 
TABLE OF CASES. 
 
 [the references are to the sections.] 
 
 Section 
 Abbinett v. N. W. Mut. L. Tns. Co. 399 D 
 Abbott V. Hampden Mut. Fire 
 
 Ins. Co. 81, 264 271 
 
 V. Howard 181, 201, 212, 304 
 
 u. Sebor 79 
 
 u. Sliawmut Mut. Fire Ins. 
 
 Co. 145, 206, 258, 287 
 
 Abe Lincoln Mut. L. & A. Soc. u. 
 
 Miller 399 D 
 
 Abel V. Phoenix Ins. Co. 21 
 
 Accident Ins. Co. v. Crandal 307, 322, 
 
 325 
 
 Acer V. Merchants' Ins. Co. 83 a, 86 
 
 Acie V. Fernie 136 
 
 Aclser, Receiver, v. Hite 555 
 
 Adair u. Southern Mut. Ins. Co. 230, 240 
 
 Adams o. Greenwich Ins. Co. 249 H 
 
 u. Ins. Co. 493 
 
 1/. Lindsell 46 
 
 V. Manufacturers', &c. F. Ins. 
 
 Co. 67 H 
 
 V. Natl. Ins. Co. 493 A 
 
 V. New York Bowery Fire 
 
 Ins. Co. 420, 492 
 
 V. Otterbach 582 
 
 r. Rockingham Mutual Fire 
 
 Ins. Co. 264 
 
 Adamson, Ex parte 497 
 
 Addison v. Kentucky, &c. Ins. Co. 80, 
 
 293 
 Adema v. Ins. Co. 287 
 
 Adkins v. Columbia Life Ins. Co. 322 
 Adrevery v. Mut. Reserve Fund 
 
 L. Ass. 508, 579 
 
 Adriance v. Roome 63 
 
 ..^tna Ins. Co. o. Baker 456 
 
 V. Black 590 
 
 u. Boon 403 
 
 0. Farrell 465 
 
 V. Glasgow Electric Light & 
 
 Power Co. 402, 421 a 
 
 V. Grube 159, 161 
 
 V. Han. and St. Jo. E. R. 454 
 
 V. Harvey 577 
 
 V. Jackson 80, 83 a, 175, 268, 420 
 V. Johnson 423 A, 583 
 
 Section 
 -(Etna Ins. Co. v. Kittles 590 
 
 u. McGinness 67 
 
 V. McGuire 485, 509 
 
 V. McLead 465, 494, 589 
 
 V. Meyers 249 
 
 V. Miers 87, 466 
 
 V. Norman 405 
 
 V. N. W. Iron Co. 23 B 
 
 V. People's Bank of Greenville 466 
 V. Phelps 590 
 
 V. Resh 277, 291 
 
 u. Shryer 138, 469 D 
 
 V. Sparks 504 E 
 
 V. Stevens 465, 496 B 
 
 V. Tyler 37 A, 254, 365, 377, 424, 
 456, 457, 466, 468, 473 
 iEtna Life Ins. Co. ;;. Brodie 679 B 
 V. Davey 301 
 
 u. Deming 299, 465 
 
 V. Florida 327 
 
 0. France 107, 110, 185, 186, 297 
 V. Hanna 299 
 
 V. Holcomb 144 D 
 
 V. Paul 133 A, 567, 569 
 
 V. Smith 175, 187, 360 
 
 V. Ward 299 
 
 ^tna Live Stock, &c. Ins. Co. v. 
 
 Olmstead 131, 294 6, 498, 499 
 
 Agen V. Met'n L. Ins. Co. 323, 325 
 
 Agnew V. Ins. Co. 404 
 
 Agricultural Ins. Co. v. Bemiller 175, 
 
 207; 466 
 
 .;. Hamilton 189, 247 
 
 V. Montague 81, 360 B 
 
 V. Potts 369 
 
 Ahlberg v. German Ins. Co. 294 
 
 Akers v. Hite 69 B 
 
 Akin V. Liverpool, &c. Ins. Co. 44, 469, 
 
 488 
 Alabama Gold Life Ins. Co. v. 
 
 Garner 144 A, 156, 188 A 
 V. Herron 60 
 
 V. Johnston 156, 162, 175 
 
 V. Mayer 23, 58 
 
 V. Mobile Mut. Ins. Co. 398 
 
 Alabama State Mut. Ass. Co. v. 
 Long Clothing & Shoe Co. 369 
 
 XV 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Albert v. Mutual L. Ins. Co. 103 A, 112, 
 158, 187, 805, 340 
 Albert Life Ins. Co., In re 358 
 
 Albion Lead Works v. Williams- 
 burg City Eire Ins. Co. 158, 159, 
 171, 248, 250 
 Alderman v. West of Scotland Ins. 
 
 Co. 466 
 
 Aldrich v. Equitable Safety Ins. 
 
 Co. 95 A 
 
 V. Mercantile Mut. Ace. Ass'n 306 
 
 Aldridge v. Gt. Western R. R. Co. 454 
 
 Aleliouse v, Savile 28 
 
 Alexander v. Atlanta Ace. Ass'n 515 n, 
 
 517 A 
 
 V. Continental Ins. Co. 345 H, 360 C 
 
 i;. Germania Fire Ins. Co. 247 
 
 Alexander's Cotton 38 
 
 Alkan V. N. H. Ins. Co. 207, 249 G, 
 
 273 A 
 
 Allegre v. Maryland Ins. Co. 469 
 
 Allemannia F. Ins. Co. u. Hurd 369 
 
 V. Little 478, 488 
 
 V. Peck 279, 479 
 
 Allen V. Cliarlestown Mut. Ins. Co. 258, 
 
 285, 287 
 
 V. Franklin Fire Ins. Co. 81 
 
 V. Freedman's S. T. Co. 23 D 
 
 V, German-American Ins. Co. 369 
 
 V. Hartford L. Ins. Co. 399 D 
 
 V. Hudson R. Mut. Ins. Co. 294 
 
 V. Mass. Mut. Ins. Co. 502 a 
 
 V. Massasoit Ins. Co. 221 
 
 V. Mereh. M. Ins. Co. 478 
 
 u. Mutual Fire Ins. Co. 219, 287 
 
 „. Ogden 126 
 
 V. Thompson 459 E 
 
 1^. Vermont Mut. Fire Ins. Co. 506, 
 
 553 
 
 V. Watertown Ins. Co. 457 C 
 
 V. Winne 560 
 
 AUetson v. Chichester "^95 
 
 Alleyn v. Quebec Ins. Co. 432 
 
 Allgeyer v. Louisiana 578 a 
 
 Alliance Mar. Ins. Co. v. Lou. St. 
 
 Ins. Co. 457 
 
 Alliance Mut. Ins. Co. v. Swift 67, 555 
 Allis V. Ware 391 A, 399 L 
 
 Allison w. Corn. Exch. Ins. Co. 417 
 V. Phenix Ins. Co. 365, 456 
 
 Aloe V. Mut. Reserve Fund L. 
 
 Ass'n 298, 303 
 
 Alsop V. Conn. Ins. Co. 30, 33 
 
 Alspaugli V. British- American Ins. 
 
 Co. 253 
 
 Alston V. Mechanics' Ins. Co. 192 
 
 V. Old North State Ins. Co. 248, 249 
 
 u. Phenix Ins. Co. 469 C 
 
 Alter V. Home Ins. Co. 412 
 
 Althorp V. Wolf 455 
 
 xvi 
 
 Section 
 
 Amazon Ins. Co. v. Steamboat 454 
 V. Wall 378 
 
 American Ace. Co. v. Reigart 517 A 
 
 American Artistic G. S. Co. v. 
 
 Glenn Falls Ins. Co. 159 
 
 American Bk. v. Rollins 459 G 
 
 American Basket Co. u. Farmville 
 Ins. Co. 75 A, 287 
 
 American Building & Loan Ass'n 
 
 V. Farmers' Ins. Co. 478 
 
 American Central Ins. Co. v. Bass 494 
 I/. Brown 409 
 
 - V. Clarey 249 F 
 
 V. Heaverln 469 D 
 
 V. McCrea 253 B, 370 
 
 V. McLanathan 81, 143, 430 
 
 V. Rothschild 466 
 
 V. Sweetser 452 F, 469 C, 589 
 
 V. Ware 203 A 
 
 American Credit Indemnity Co. 
 
 V. Alliens Woolen Mills 2 
 
 V. CarroUton F. M. Co. 2, 159, 
 
 459 E, 460 
 
 V. Wood 279, 452 F, 544 
 
 American Employers' L. Ins. Co. 
 
 V. Barr 112 
 
 American Express Co. v. Triumph 
 Ins. Co. 464, 506 
 
 Am. Fire Ins. Co. v. Brighton 
 
 Cotton Manuf. Co. 248, 253, 253 A 
 V. Brooks 67, 70 B, 125, 500 
 
 V. Hazen 452 
 
 American Horse Ins. Co. v. Pat- 
 terson 44, 400, 547 
 
 Am. Ins. Co. u. Bryan 411 A 
 
 V. Copps 135 
 
 V. Cougle 341 a 
 
 V. Crawford 573 
 
 V. Foster 248 
 
 !;. Gallagher 384 
 
 V. Gallatin 143 
 
 u. Gilbert 159, 373 B, 374 
 
 V. Henley 341 a 
 
 V. Klink 341 a, 343 
 
 V. Leonard 345 E 
 
 V. Luttrell 372 C 
 
 V. Mahone 144, 497 
 
 V. Padelfield 248, 249 C 
 
 ■V. Pane 166 
 
 V. Pettijohn 577 
 
 0. Pressell 345 G 
 
 J). Replogle 365 B 
 
 V. Schmidt 557 
 
 V. Stoy 341 a, 577 
 
 V. Weiberger 566 B 
 
 0. Wellmau 577 
 
 V. Wilder 133 
 
 V. Woodruff 67 
 
 American Legion of Honor v. 
 Smith 399 F, 399 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 American Life Ins. Co. v. Greene 360 
 Am. L. Ins. Co. v. McAden 5f)7, 579 
 American Life & H. Ins. Co. v. 
 
 Bobertshaw 109 
 
 American Pop. Life Ins. Co. v. Day 159, 
 1B4, 465 
 American Towing Co. v. German 
 
 Fire Ins. Co. 402 
 
 Amer. Underwriters' Ass. v. George 589 
 
 Ames V. N. Y. Union Ins. Co. 1.32, 141, 
 
 143, 371, 505 
 
 V. Richardson 466 
 
 Amesbury et al. v. Bowditch Mut. 
 
 Fire Ins. Co. 478, 490, 491 
 
 Amey o. Granite State F. Ins. Co. 405 
 Amicable Ins. Soc. <,-. Bolland 323, 326 
 Amick V. Butler 75 B, 108, 459 A 
 
 Amis V. Witt 399 C 
 
 Amory v. Gilman 74 
 
 Amsinck v. American Ins. Co. 96 
 
 Anchor Life Ins. Co. v. Pease 345 B 
 Ancient Order of United Work- 
 men u. Moore 345 a, 550 a 
 Anctil V. Manufacturers' L. Ins. 
 
 Co. 478 
 
 Anderson v. Butterly 391 
 
 V. Commercial Union Ass. Co. 430 
 V. Coonley 129 
 
 V. Edie 108 
 
 V. Fitzgerald 156, 170, 185, 303 
 V. Goldsmidt 391 A 
 
 V. Manchester F. Ass. Co. 249 J, 
 263 E 
 V. Miller 453 
 
 V. Morice 107 a 
 
 V. Mutual Reserve Fund L. 
 
 Ass'n 360 
 
 u. Scottish Ace. Ins. Co. 
 
 (Lira.) 518 A 
 
 V. St. Louis, &c. Ins. Co. 345 a 
 
 V. Thornton 567 
 
 Anderton v. Home Ins. Co. 224 
 
 Andes Ins. Co. u. Fish 144 B, 424 A 
 
 V. Loeliy 140 
 
 I.. Shipman 159, 240, 503 
 
 Andree v. Fletcher 10, 567 
 
 Andrews, £x parte 459 A 
 
 V. JEtna L. Ins. Co. 130 A, 344 A 
 
 V. Ellison 28 
 
 V. Essex F. and M. Ins. Co. 566 
 
 V. Union Mut. Fire Ins. Co. 35, 
 
 406 
 
 Angel V. Hartford Fire Ins. Co. 129, 
 
 1.34 
 Angelrodt v. Delaware Ins. Co. 435 
 Angler v. Western Ass. Co. 239 A, 
 
 469 C 
 Annan v. Hill Union Brewery Co. 557 
 Annapolis R. R. Co. v. Baltimore 
 Fire Ins. Co. 219, 222, 420 
 
 VOL. I. — h 
 
 Section 
 Annely v. De Saussure 81 
 
 Anoka Lumber Co. v. Fidelity &, 
 
 Casualty Co. 2, 379 
 
 Anonymous 465 
 
 Anson «. Winnishiek Ins. Co. 131, 
 
 365, 502, 502 a, 508 
 Antes V. Western Ass. Co. 369 
 
 Anthony v. Mass. Ben. Ass'n 379 
 
 V. Slajd 453 
 
 Anthracite Coal Co. v. Sears 388 
 
 Appeal of Elliott's Exrs. 391 B 
 
 Appeal of Susquehanna Ins. Co. 
 
 560 A, 563 
 Appleby v. Astor Ins. Co. 239 
 
 V. Fireman's Fund Ins. Co. 227 
 Appleton Iron Co. v. Brit. Am. 
 
 Ass. Co. 170, 264, 386 
 
 Appleton Mut. Ins. Co. v. Jesser 552, 
 
 557 
 Application of Corson 100 A, 102 A 
 Arazo v. Currell 331 
 
 Archbold v. Merchants' Mar. Ins. 
 
 Co. 452 B 
 
 Archer v. Merch. & Manuf. Ins. 
 
 Co. 239, 386 
 
 Archibald v. Mut. Life Ins. Co. 297, 
 890, 391 
 Arctic Ins. Co. v. Austin 408 
 
 Arffy. Star Ins. Co. 126, 369, 500 
 
 Argall V. Ins. Co. 462, 469 C 
 
 Arkansas F. Ins. Co. v. Wilson 287 B 
 Ark. Ins. Co. v. Bostick 420 B 
 
 Arkell v. Commerce Ins. Co. 239, 258 
 Armenia Ins. Co. v. Paul 501 
 
 Armitage v. Wmterbottom 116 
 
 Armour v. Transatlantic F. Ins. 
 
 Co. 159, 188 A, 372 E 
 
 Armstrong v. Mut. L. Ins. Co. 398 
 u. State Ins. Co. 126 A 
 
 V. Toler 246 
 
 V. Turquand 362, 502, 505 
 
 V. Western Manufacturers' 
 
 Mut. Ins. Co. 263 E 
 
 Amer Ins. Co. v. Barnett 452 F 
 
 Arnfeld w. Guardian Ass Co. 67 G 
 Arnet v. Milwaukee, &c. Ins. Co. 490, 
 
 491 
 Arthur v. Homestead Ins. Co. 483 
 
 V. Palatine Ins. Co. 294 E 
 
 Arthurholt v. Susquehanna Mut. 
 
 F. Ins. Co. 126, 360 
 
 Ashbrook v. Phoenix Mut. Life 
 
 Ins. Co. 342 A 
 
 Ashenfelter u. Employers' Liab. - 
 
 Ass. Corp. 531 A 
 
 Ashford v. Victoria Mut. Fire 
 
 Ins. Co. 131, 132, 243 
 
 Ashland Mut. Fire Ins. Co. v. 
 
 Housinger 425 
 
 Ashley v. Ashley 398 
 
 xvii 
 
TABLE OF OASES. 
 [The references are to the sectionB.] 
 
 Section 
 Ashworth v. Builders', &c. Ins. Co. 247 
 Aspinwall w. Meyer 5496 
 
 Associated, &c. Ins. Co. v. Assum 
 
 258, 277, 366 
 Astor V. Union Ins. Co. 420 A 
 
 Atchison, T. & S. F. E. Co. v. 
 
 Home Ins. Co. 453, 457 B 
 
 Atkin i: Nat. Ins. Co. 190 
 
 Atkins V. Sleeper 400, 401 
 
 Atkinson v. Hawkeye Ins. Co. -54 A 
 
 Atlantic, &c. Ins. Co. v. Carlin 124 A 
 
 V. Concklin 577 
 
 Atlantic Ins. Co. v. Fifzpatrick 557 
 
 V. GoodaU 67, 365, 400, 553, 555 
 
 V. Lunar 566 C, 579 
 
 V. Storrow 454 
 
 V. Wright 131 
 
 Atlantic Mut. Fire Ins. Co. v. 
 
 Sanders 562 
 
 V. Young 557 
 
 Attleborougli Savings Bank v. 
 
 Security Ins. Co. 449, 456 
 
 Attorney-General v. Continental 
 
 L. Ins. Co. 344 F, 356 A, 594 a 
 
 < . Guardian L. Ins. Co. 594 a 
 
 V. North American Ins. Co. 331, 
 
 594,594 a 
 
 V. Ray 181 
 
 Atwood V. Union Mut. Ins. Co. 425 
 
 Audubon v. Excelsior Ins. Co. 23 
 
 Augusta Ins., &e. Go. u. Abbott 452 E 
 
 Augusta Mut. Ins. Co. v. French 560 
 
 Aultman u. Bishop 453 
 
 V. McConnell .386, 407 
 
 Aurora Fire Ins. Co. v. Eddy 131, 199, 
 
 239, 245, 255, 269, 405, 498, 505 
 
 V. Jolmson 374, 411, 466, 475, 590, 
 
 591 
 
 Aurora, &c. Ins. Co. v. Kranich 190, 469 
 
 Au Sable Lumber Co. u. Detroit 
 
 M. M. F. Ins. Co. 252 
 
 Austin V. Drewe 402, 408, 413 
 
 Avery v. Equit. L. Ass. Soc. 566 A 
 Aveson v. Lord Kinnaird 214 
 
 Ayer v. N. Eng. Mut. Life Ins. Co. 338 
 Ayres v. Hartford Ins. Co. 87 A, 144, 
 152, 272, 273, 424, 505, 508 
 V. Home Ins. Co. 131, 143, 272 
 
 B. 
 
 Babcock v. Montgomery County 
 Mut. Ins. Co. 180,406 
 
 Babson «. Thomaston Mut. Fire 
 Ins. Co. 80 
 
 Bachmeyer v. Mutual Reserve 
 Fund L. Ass'n 823 
 
 Bacon v. U. S. Mut. Ace. Ass'n 
 
 517 A, 518 A, 618 B, 523 A, 531 A 
 
 xviii 
 
 Section 
 
 Badenfeld f. Mass. Ace. Ass'n 531 A 
 
 Badger v. Glens Falls Ins. Co. 464, 475 
 
 V. Phoenix Ins. Co. 466, 487 
 
 V. The American Popular Life 
 
 Ins. Co. 65, 359 
 
 Baer v. Phojnix Ins. Co. 365, 372 
 
 Bagg w. Jerome 246 
 
 Bagster v. Earl of Portsmouth 309, 310 
 
 Bahner u. Ins. Co. 364 A 
 
 Baile v. St. Josepli Ins. Co. 565 
 
 Bailey v. Am. Cent. Ins. Co. 275, 566 A 
 
 V. Homestead F. Ins. Co. 291 
 
 * V. Interstate Co. 517 A 
 
 f. Mut. Ben. Ass. 502, 563 A 
 
 I). N. E , &c. Ins. Co. 392 
 
 Baily v. Hope Ins. Co. 466, 470 
 
 Bain v. Case 428 
 
 Baker v. Home Life Ins. Co. 20o 
 
 V. Citizens' Mut. F. Ins. Co. 560B 
 
 V. Commercial Union Ass. Co. 
 
 70 B, 126 
 
 V. Cotter 126 
 
 V. Fireman's Fund Ins. Co. 452 B 
 
 u. Ins. Co. 144 D 
 
 .,■. New York L. Ins. Co. 187 
 
 V. State Ins. Co. 83 a, 257, 287 B 
 
 V. Union Life Ins. Co. 107 b, 341, 
 
 359, 584 
 
 V. Young 391 
 
 Baldwin v. Begley 399 O 
 
 V. Chouteau Ins. Co. 44, 45 a 
 
 V. German Ins. Co. 247 
 
 V. Hartford F. Ins. Co. 278 
 
 V. N. Y. Life Ins. Co. 335, 465 
 
 V. Phcenix Ins. Co. 21,273, 379,457 
 
 V. State Ins. Co. 76 A 
 
 Balen v. Hanover F. Ins. Co. 566 
 
 Balestracci v. Firemen's Ins. Co. 402 
 
 Baley v. Homestead Ins. Co. 292 
 
 Ball, &c. Wagon Co. «. Aurora F., 
 
 &c. Ins. Co. 360 B, 469 
 
 Ballagh v. Royal Mut. Fire Ins. 
 
 Co. 180 a 
 
 Ballou V. Gile 390 
 
 Baltimore Fire Ins. Co. v. Loney 13, 
 
 428, 4.34 
 
 V. McGowan 27, 190, 281 
 
 Bangs, In re 557 
 
 V. Bailey 561 
 
 V. Duckinfield 557, 562 
 
 V. Gray 657, 559 
 
 V. Mcintosh 561, 562 
 
 V. Skidmore 665 
 
 Banholzer v. New York L. Ins. Co. 
 
 345 E 
 
 Bank v. Bank 23 D 
 
 u. German American Ins. Co. 690 
 
 Bank of Columbia v. Patterson 16 
 
 Bank of New South Wales v. Royal 
 
 Ins. Co. 424, 432 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Bank of Oil City v. Guardian, &c. 
 
 Ins. Co. 317, 323, 325, 469 
 
 Bank of Toronto v. European Ins. 
 
 Co. 541 a 
 
 Bankers' Ace. Ins. Co. v. Rogers 14 
 Bankers' & M. Mut. L. Ass'n v. 
 
 Stapp 340 
 
 Bankhead v. Des Moines Ins. Co. 263 15 
 Banks v. Phoenix Ins. Co. 345 a 
 
 V. Wilson ■ 566 A 
 
 Banting v. Niagara Ins. Co. 476 
 
 Baptist Cliurch v. Brooklyn Fire 
 
 Ins. Co. 346 
 
 Baptist Society v. Hillsborough 
 
 Mut. Fire. Ins. Co. 371 
 
 Barber v. Fire, &c. Ins. Co. 479, 492 
 
 V. Fletcher 188 1) 
 
 V. Morris 115 
 
 Barbour v. Conn. Mut. Life Ins. 
 
 Co. 450 E 
 
 Barclay v. Cousins 79, 80 
 
 Bard v. Peiin M. F. Ins. Co. 868 
 
 Bardwell v. Conway Mut. Fire Ins. 
 
 Co. 166, 374, 435 
 
 Bargett v. Orient Mut. Ins. Co. 177, 
 
 179 D 
 
 Barker v. Knickerbocker 591 
 
 Barlow v. Ocean Ins. Co. 452 F 
 
 o. Scott 172 A 
 
 0. St. Nich. Nat. Bk. 292 A 
 
 Barnard v. Nat. F. Ins. Co. 239, 287 
 
 Barnes v. Continental Ins. Co. 360 C 
 
 i;. Fidelity M. L. Ass'n 187 
 
 V. Hartford F. Ins. Co. 434 
 
 V. Hekla F. Ins. Co. 12, 566 
 
 V. London &c. Ass. Co. 103 A 
 
 u. Newcomb 594 a 
 
 V. Piedmont, &c. Ins. Co. 345 C 
 
 V. Union Mut. F. Ins. Co. 277, 
 
 279, 280, 448 
 
 Barnum v. Merchants' F. Ins. Co. 239 B 
 
 Baron v. Brummer 459 C 
 
 Barr v. Ins. Co. of N. A. 58 
 
 Barralou u. Royal Ins. Co. 215 a 
 
 Barre v. Council Bluffs Ins. Co. 23, 464 
 
 Barre Boot Co. v. Milford Mut. 
 
 Fire Ins. Co. 180 a 
 
 Barrett v. Buxton 308 
 
 V. Jermy 220, 241 
 
 V. Union Mut. Fire Ins. Co. 63, 
 
 145, 447, 566 
 
 Barrows v. March Ins. Co. 454 
 
 Barry v. Brune 399 P, 399 Q 
 
 !'. Eq. Life Ass. Soc. 391 
 
 V. Farmers' Mut. Hail Ins. 
 
 Ass'n 79, 547 a 
 
 V. Hamburg and Bremen F. 
 
 Ins. Co. 272 
 
 V. Mut. Life Ins. Co. 391 
 
 V. Prescott Ins. Co. 249 A 
 
 Section 
 Barteau v. Phoenix Mut. Ins. Co. 206, 
 
 210 
 Bartholomew r. Merchants' Ins. Co. 138 
 Bartlett v. Fireman's Fund Ins. 
 
 Co. 12 A, 133 A, 579 
 
 V. Iowa State Ins. Co. 449 
 
 V. Looney 456 
 
 V. UnionMut. Fire Ins. Co. 175, 
 
 469 B, 491, 504 
 
 V. Walter 82 
 
 Barton v Home Ins. Co. 403 
 
 Basch V. Humboldt F. and M. Ins. 
 
 Co. 359, 469 B 
 
 Bassett v. Parsons 594 
 
 Batchelder y. Ins. Co. ofN. A. 165 A 
 0. Queen Ins. Co. 145 A 
 
 Batchelor v. People's Ins. Co. 385 
 
 Bateman u. Lumbermen's Ins. Co. 
 
 294 E, 368, 434 
 
 Bates V. Buclceye Ins. Co. 273 
 
 17. Com., &c. Ins. Co. 271,365 
 
 u. Detroit Mut. Ben. Ass. 560 B, 
 
 562, 563 A 
 
 V. Eq. Ins. Co. 282 A, 379 
 
 V. Grabliam 566 A 
 
 V. Hewitt 207 
 
 Battaille v. Merchants' Ins. Co. 364 A, 
 
 465, 475 
 
 Battles V. York County Mut. Ins. 
 
 Co. 290 
 
 Baubie v. Mtna. Ins. Co. 23, 129 
 
 Bauer v. Samson Lodge K. of P. 563 A 
 Bauni V. Parkhurst 70 a 
 
 Baumgart v. Modern Workmen 187 
 Baumgartel v. Providence-Wash- 
 ington Ins. Co. 369 
 Bawden v. London, &c. Ass. Co. 514 
 Baxendale r. Harvey 219, 231, 256 
 Baxter v. Brooklyn L. Ins. Co. 356 A 
 V. Chelsea Mut. Fire Ins. Co. 146, ■ 
 504 
 V. Hartford F. Ins. Co. 95 A 
 V. Massasoit Ins. Co. 23 
 Bayles v. Ins. Co. 385, 393 
 Baylies v. Payson 568 
 Bayliss v. Travellers' Ins. Co. 515 a 
 Bayly v. Lancashire, &c. Ins. Co. 583 
 !'. London, &c. Ins. Co. 242 
 Bayse v. Adams 398, 399 L 
 Bay State Mut. Fire Ins. Co. v. 
 
 Sawyer 562 
 
 Beach o. Bowery Ins. Co. 448 
 
 Beacon, &c. Ins. Co. v. Gibb 243 
 
 Beadle v. Chenango Co. Mut. Ins. 
 
 Co. 156 
 
 Bealces v. Phoenix Ins. Co. 406 
 
 Beat V. Park Ins. Co. 1.32, 14.3, 144 
 
 Beals V. Home Ins. Co. 423, 432, 4.S3 
 Bean, In re 391 
 
 V. At. & St. Law. R. R. Co. 453 
 
 xix 
 
TABLE OF CASES. 
 
 [The references are to the sections,] 
 
 Section 
 
 Bean v. Barney & Scott 286 
 
 V. Stupart 168 
 
 Beatty v. Lycoming County Mut. 
 
 Ins. Co. 401 a, 420, 462, 464, 469 a, 
 
 475, 508 
 
 Beaty v. Downing 110 
 
 Bebee v. Hartford Mut. Fire Ins. 
 
 Co. 144, 208, 209 
 
 Beck V. Germania Ins. Co. 477 
 
 V. Hibernia Ins. Co. 206 
 
 Becker v. Farmers' Mut. F. Ins. 
 
 Co. 249 B, 249 G 
 
 Beebe v. Oliio Farmers' Ins. Co. 294 E 
 Beemer v. Anchor Ins. Co. 446 
 
 Beer v. Forest City Mut. Ins. Co. 233 
 Beers v. New York L. Ins. Co. 303 
 Begler v. Ins. Co. 365 B 
 
 Beliler v. German, &c. Ins. Co. 176^ 
 245, 360, 365, 368, 577 
 Behrens v. Germania F. Ins. Co. 
 
 365 C, 373 A 
 Beiseeker v. iEtna Ins. Co. 442 
 
 Belclier v. International, &c. Ins. 
 
 Co. 572 
 
 Bell V. Bell 215 C 
 
 V. Chapman 39 
 
 V. Gilson 37 
 
 u. Shibley 549 
 
 V. Western M. andF. Ins.Co. 452 E 
 
 V. Yates 549 
 
 Bell's Case 594 a 
 
 Bellatly v. Thomaston M. F. Ins. 
 
 Co. 587 B 
 
 Belleville Mut. Ins. Co. i,-. Van 
 
 Winkle 63, 134, 146 
 
 Bellevue Roller-Mill Co. v. Lon- 
 don & L. F. Ins. Co. 253, 276 C 
 Bellington v. Can. Mut. Fire Ins. 
 
 Co. 277 
 
 Benard v. United Workmen 399 I) 
 
 Ben Franklin Ins. Co. v. Flynn 462, 
 466, 459 B, 504 A 
 V. Gillett 143 
 
 Benedict v. Ocean Ins. Co. 239, 371 
 Benefit L. Ins Co. v. Martin 336 
 
 Benham v. United Guaranty & 
 
 Life Ins. Co. • 191, 542 
 
 Benjamin v. Conn. Ind. Ass'n 186 
 
 V. Saratoga County Mut. Ins. 
 
 Co. 368, 457 
 
 Bennecke v. Ins. Co. 339 
 
 Bennett v. Agr. Ins. Co. 156, 249 B, 
 
 2491 
 V. Anderson 185, 197 
 
 0. City Ins. Co. 67 
 
 r. Council Bluffs Ins. Co. 1.32 
 
 V. Lycoming Ins. Co. 462, 469 
 
 V. Md. Ins. Co. 469 
 
 (.. N. Brit., &c. Ins. Co. 143, 166, 
 497 
 
 XX 
 
 Section 
 
 Benninghoffu. Agr. Ins. Co. 138 A, 
 
 282 A, 294 E 
 
 Benson v, Ottawa Agr. Ins. Co. 129, 
 
 140, 143, 207, 507 
 
 Bentley r. Columbia Ins. Co. 125, 137 
 
 V. Lumbermen's Ins. Co. 239 A 
 
 u. Standard F. Ins. Co. 379, 386, 
 
 465 
 
 Benton u. Farmers' Mut. F. Ins. 
 
 Co. 222, 401 a 
 
 Bentz V. Northwestern Aid Ass. 663 A 
 Bergeron v. Pamlico Ins. Co. 151 
 
 Bergman v. St. L Ins. Co. 502 
 
 Bergson v. Builders' Ins. Co. 67, 584 
 Berkshire Mut. Life Ins. Co. u. 
 
 Sturgis 575 
 
 Berliner v. Travelers' Ins. Co. 306, 360 
 Bermon v. Woodbridge 567 
 
 Bernard u. United Life Ins. 
 
 Ass'n 500 
 
 Bcrners v. South British, &c. Ins. 
 
 Co. 463 
 
 Berry v. American Central Ins. 
 
 Co. 95A, 151, 448 
 
 Bersch v. Sinnissippi Ins. Co. 553, 557 
 Bersche v. Globe Mut. Ins. Co. 504 
 V. St. Louis Ins. Co. 292 B 
 
 Berthold t,'. Clay F. & M. Ins. Co. 399 D 
 Berthon v. Loughman 200 
 
 Berthoud v. Atlantic Fire Ins. Co. 56 
 Betcher v. Capital F. Ins. Co. 233, 
 
 469 C 
 Beutz ». N. W. Aid Ass. 419a 
 
 Bevin v. Conn. Mut. Life Ins. Co. 7, 
 109, 336, 339, 362, 502 
 Bibend v. Liverpool, &c. Ins. Co. 386 
 Bickertim v. Jaques 399 0, 399 B 
 
 Bicknell v. Lancaster Fire Ins. Co. 83 a 
 Bidileford Sav. Bk. v. Dwelling- 
 
 House Ins. Co. 469 B 
 
 Bidwell V. Astor Mut. Ins. Co. 566 
 V. N. W. Ins. Co. 294 D 
 
 V. St. Louis Floating Dock 
 
 Ins. Co. 66, 384 
 
 Bigelow !i. Berkshire Life Ins. Co. 
 
 309, 317, 322 
 
 V. State, &c. Ins. Co. 341 
 
 Biggert v. Hicks 2 
 
 Biggs V. Ins. Co. 279 
 
 Bigler v. N. Y. Central Mut. Ins. 
 
 Co. 365, 420 
 
 Bilbie v. Lumley 575 
 
 Bilbrough v. Mut. Ins. Co. 192, 248, 
 
 466, 474 
 
 Billings V. Accident Ins. Co. 322 
 
 V. German Ins. Co. .379, 456 
 
 V. Toland County Mut. Ins. 
 
 Co. 164, 191, 241, 247 
 
 Billmgton V. Provincial Ins. Co. 145, 
 
 145 a, 566 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 
 Bird V. Penn. Mut. Ins. Co. 345 a, 350, 
 
 350 a 
 Birdseye v. City Fire Ins. Co. 379 
 
 Birmingliam u. Empire Ins. Co. 287 
 V. Farmers' Joint Stools Ins. 
 
 Co. 465 
 
 Birmingliam Ins. Co. v. Kroegher 
 
 144 F, 233 
 
 V. Palmer 494 
 
 V. Pulver 423 a, 469 B, 469 C, 493 
 
 Bish V. Ilawkeye Ins. Co. 488 
 
 Bishop V. Agr. Ins. Co. 465 
 
 V. Clay Ins. Co. 269 a, 566 
 
 V. Eaton 126 
 
 V. Empire Order of Mut. Aid 563 a 
 
 V. Michigan Southern R. R. 23 D 
 
 Bishop of C. V. Western Ass. Co. 43 F 
 
 Bissell V. Am. Fire & Life Ins. Co. 137, 
 
 216, 362 
 
 Bize V. Fletcher 158 
 
 Black V. Columbian Ins. Co. 505 
 
 V. Nat. Ins. Co. 379, 382, 452 C, 456 
 
 V. Winnisheik Ins. Co. 488 
 
 Blackburn v. Haslam 122 
 
 u. St. Paul F. & M. Ins. Co. 83 
 
 Blackerby v. Continental Ins. Co. 345 H, 
 
 348 a 
 Blaekett v. Royal Ex. Ins. Co. 175, 
 
 420 o 
 
 Blackhurst v. Cockrell 172 a 
 
 Blackstone v. Alemania Ins. Co. 11 
 
 Blackwell v. Ins. Co. 279 
 
 Blaesor v. Milwaukie, &c. Ins. Co. 583 
 
 Blair v. Sovereign F. Ins. Co. 479 
 
 Blake v. Crowninshield 400 
 
 V. Exeliange Mut. Ins. Co. 14-5, 167, 
 
 371, 420, 43-5, 470, 473, 501, 505 
 
 V. Ins. Co. 48 
 
 V. National L. Ins. Co. 344 a 
 
 Blake Opera House v. Home Ins. 
 
 Co. 566 
 
 Blakeley !'. Phoenix Ins. Co. 405 
 
 Blakiston v. Ins. Co. 361 
 
 Blanchard v. Atlantic Mut. Fire 
 
 Ins. Co. 447, 555 
 
 Blanks v. Ins. Co. 485 
 
 Blattenberger v. Holman 591 
 
 Bleakley v. Niagara Dist. Mut. 
 
 Fire Ins. Co. 137, 140, 277 
 
 Blinn v. Dresden Mut. Fire Ins. 
 
 Co. 452 F 
 
 Bliss V. iEtna L. Ins. Co. 391 a 
 
 Block V. Columbian Ins. Co. 502 
 
 !;. Valley Mut. Ins. Ass'n 379 
 
 Blood V. Howard Ins. Co. 164, 170, 191, 
 
 247 
 Bloom V. Franklin L. Ins. Co. 327 a 
 V. State Ins. Co. 345 E 
 
 Blooming Grove Mut. F. Ins. Co. 
 
 V. McAnerney 294 E 
 
 Section 
 391a 
 
 Bloomingdale v. Lisburger 
 Bloomington Mut. Ben. Ass. v. 
 
 Blue 75B, 399E 
 
 Blossom V. Lycoming Ins. Co. 471 
 
 Blouiu V. Phaneuf 399 J 
 
 Blumer v. Phoenix Ins. Co. 185, 190, 250 
 Board of Education v. Citizens' 
 
 Ins. Co. 543 a 
 
 Boardman v. Maverick Mut. Fire 
 
 Ins. Co. 191 
 
 V. Merrimack, &c. Ins. Co. 246 
 
 V. N. H. Mut. Fire Ins. Co. 159, 
 
 164, 191, 247, 256 
 
 Boatman's F. & M. Ins. Co. u. 
 
 Parker 415 
 
 Boatwright v. JStnn Ins. Co. 218, 220 
 Bobbitt V. Liverpool, &c. Ins. Co. 29 a, 
 158, 188 C, 373, 374, 424, 448 
 Bodine v. Exchange Fire Ins. Co. 126, 
 134, 154, 340, 346, 360, 360 a 
 Bodle et al. v. Chenango Mut. Ins. 
 
 Co. 278, 281, 448, 468 
 
 Body V. Hartford F. Ins. Co. 67 G, 591 
 Boehen v. Williamsburgh Ins. Co. 143, 
 151, 360 
 Boehm v. Combe 34 
 
 Boetcher v. Hawkeye Ins. Co. 294 E 
 Bogardus y. N. y. Life Ins. Co. 344 D 
 Boggs V. Am. Ins. Co. 144, 192, 207, 
 
 215 a 
 Bohn Manuf. Co. v. Sawyer 96 
 
 Bohninger «. Empire Mut. L. Ins. 
 
 Co. 133 C 
 
 Boice V. Thames, &c. Mar. Ins. Co. 27 
 
 Boland v. Industrial B. Ass'n 298 
 
 V. Whitman 554, 567 
 
 Bole u. New Hampshire F. Ins. 
 
 Co. 70 a, 248 
 
 Bolland v. Disney 326 
 
 Bon V. Railway Pass. Ass. Co. 524 a 
 Bond V. Gonsales 179 a 
 
 Bonenfant v. Ins. Co. 170, 245, 247, 
 249 a, 282 A, 386, 502 
 Bonham v. Iowa, &c. Ins. Co. 285, 287, 
 873, 374 
 Bonner v. Home Ins. Co. 466 
 
 Bonneville v. Western Ass. Co. 372 D 
 Boos V. World Mut. Life Ins. Co. 131, 
 144 G, 296 
 Boot & Shoe, &c. Ins. Co. u. Mel- 
 rose , 553 
 Borden v. Hingham Mut. Fire Ins. 
 
 Co. 7, 30, 425 
 
 V. Provincial Ins. Co. 475 
 
 Boren v. Manhattan L. Ins. Co. 151 
 
 Borgards v. Farmers' Mut. Ins. Co. 557 
 
 Boright V. Springfield F. & M. Ins. 
 
 Co. 175 
 
 Borradaile v. Hunter 157, 308, 309, 310, 
 
 311, 313, 316, 320, 323, 326 
 
 xxi 
 
TABLE OF CASES. 
 
 [The references are to the eections.] 
 
 Section 
 Boston Ins. Co. v. Globe F. Ins. Co. 11 
 Boston & Salem Ice Co. v. Koyal 
 
 Ins. Co. 267, 268, 424 
 
 Bosworth V. Merchants' i\ Ins. 
 
 Co. 294 E 
 
 V. Western Mat. Aid Soc. 561 a 
 
 Bottomley v. Met'n L. Ins. Co. 21, 66 A, 
 
 70 C 
 Bound Brook Mut. F. Ins. Ass. v. 
 
 Nelson 379, 457 
 
 Bourgeois v. Mut. F. Ins. Co. 369 
 
 V. Northwestern Nat. Ins. Co. 
 
 263 E, 369 
 Bourne v. Gatliff 579 
 
 Boussmaker, £x parte 87 
 
 Boutelle v. Westchester F. Ins. 
 
 Co. 287 C, 373 a 
 
 Bouton V. Am. Mut. Life Ins. Co. 134, 
 349 B, 360 
 Bowditch Mut. Fire Ins. Co. v. 
 
 Winslow 215, 287, 562 
 
 Bowen v. National L. Ass'n 379, 465 
 
 V. Needles Nat. Bank 591 A 
 
 Bowes V. Nat. Ins. Co. 263 B, 473 a 
 
 478, 498 a, 511, 579 
 
 Bowlin V. Hekia F. Ins. Co. 465 
 
 Eow^ian v. Agr. Ins. Co. 358, 401 a 
 
 V. Franklin Fire Ins. Co. 189, 291 
 
 V. Pacific Ins. Co. 219, 242 
 
 V. U. S. Casualty Ins. Co. 154 
 
 Bowser v. Lamb 66, 577 
 
 Box V. Provincial Ins. Co. 83 a 
 
 Boyce v. Phoenix Mut. Ins. Co. 299 
 
 Boyd V. Cedar Eapids Ins. Co. 459 C 
 
 V. Dubois 207 
 
 V. Ins. Co. 231 
 
 V. Mississippi Home Ins: Co. 239 
 
 V. Talbot 347 
 
 Boyden v. Mass. Mut. L. Ins. Co. 459 E 
 
 Boyle V. Hamburg-Bremen F. 
 
 Ins. Co. 430, 465 
 
 V. N. Carolina Mut. Ins. Co. 147, 
 
 471 
 
 V. Northwestern Mut. Belief 
 
 Ass'n 187 
 
 Boynton v. Clinton & Essex Mut. 
 
 Ins. Co. 222,276,277,401a, 
 553 
 V. Farmers' Mut. Ins. Co. 387 
 
 Boynton ei al. v. Middlesex Mut. 
 
 Life Ins. Co. 491 
 
 Bradbury v. Ins. Co. 401 B 
 
 Braden w. La. St. Ins. Co. 448 
 
 Bradfleld v. Union, &c. Ins. Co. 552 
 Bradford v. Boylston F. & M. Ins. 
 
 Co. 579 
 
 V. Greenwich Ins. Co. 457 
 
 Bradley v. Mut. Ben. Life Ins. Co. 316, 
 
 329, 331 
 
 V. Phoenix Ins. Co. 479 
 
 xxii 
 
 Section 
 Bradley v. Potomac Fire Ins. Co. 55, 
 
 340 
 Bradshaw v. Agricultural Ins. Co. 492 
 Bradwell v. American Life Ins. Co. 358 
 V. Weeks 42 a 
 
 Bradgen v. Manuf., &c. Ins. Co. 285 
 Bradgon v. Appleton Mut. Ins. 
 
 Co. 55 A, 62, 360 
 
 Brady v. Northwestern Ins. Co. 70 a, 
 
 190, 404, 433 
 
 V. Prudential Ins. Co. 478 
 
 V. United L. Ins. Co. 158, 303 
 
 u. Western Ass. Co. 151, 488, 505 
 
 Bragg V. N. E. Mut. Fire Ins. Co. 269 a, 
 
 275, 276 
 
 Brandaf v. St. Paul, Fire & Mar. 
 
 Ins. Co. 143 
 
 Brandon v. Curling 36, 39 
 
 Brandup v. St. Paul, &c. Ins. Co. 372 
 Brannin v. Mercer County Mut. 
 
 Ins. Co. 562 
 
 Braswell v. American Ins. Co. 567 
 
 Braunstein v. Aoc. Death Ins. Co. 465, 
 
 493 
 Brealey v. Collins 295 
 
 Breasted v. Farmers' Loan & 
 
 Trust Co. 308, 310, 318, 816 
 
 Breckenridge v. Amer. Cent. Ins. 
 
 Co. 126, 133 A, 378 A, 393, 469 B, 579 
 Breedlove v. Norwich Union F. 
 
 Ins. Co. 276 C. 294 E 
 
 Breitung's Estate, 66, 112, 899 O 
 
 Brennan v. Crouch 279 
 
 i;. Prudential Ins. Co. 75 B 
 
 V. Security, &c. Co. 158 
 
 Breuner v. Liverpool, &c. Ins. Co. 221, 
 
 412 
 Brewer v. Chelsea Mut. Fire Ins. 
 
 Co. 127, 146 
 
 0. Herbert 83 a, 86 
 
 Brewster v. Kitchin 350 
 
 Brichta v. N. Y. Lafayette Ins. Co. 386, 
 
 424 
 Brick V. Campbell 269, 899 Q, 459 B 
 Bridge v. Niagara Ins. Co. 420 a 
 
 Bridgewater Iron Co. v. Enter- 
 prise Ins. Co. 372 E 
 Bridgman v London Life Ass. Co. 186 
 Brierly v. Equitable Aid Union 2 
 Briggs V. Fireman's Ins. Co. 144 E 
 V. McCuUough 344 D 
 V. Nat. Life Ins. Co. 358 
 V. N. A. Ins. Co. 416 a 
 «. N. Brit., &c. Ins. Co. 416 a 
 Brigbam v. Home Ins. Co. 390 
 V. Wood 279 
 Brighton Manufacturing Co. v. 
 
 Reading Fire Ins. Co. 248 
 
 Brink v. Hanover Fire Ins. Co. 469 a 
 
 507 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Brink v. Merchants' & Mechanics' 
 
 Ins. Co. 175 
 
 Brinley v. Nat. Ins. Co. 423, 425, 431 
 Brinsley v. City Kire Ins. Co. 264 
 
 Brisso V, Pacific Mat. Ins. Co. 566 A 
 British Amerija Ass. Co. v. Bradford .SO 
 V. Cooper 67 G, 125 
 
 V. Miller 420 
 
 British American Ins. Co. u. Jo- 
 seph 401 a, 413 
 British & American Tel. Co. v. 
 
 Colson 48 
 
 British Equitable lus. Co. v. Great 
 
 Western Ins, Co. 190, 388, 573 
 
 British Ins. Co. v. Gulf, &o. R. Co. 457 B 
 
 V. Jenkins 594 
 
 r. Lambert 67, 125 
 
 V. Magee 115 
 
 Britt V. Mutual Benefit Life Ins. 
 
 Co. 579 
 
 Britton v. Royal Arcanum 399 D 
 
 0. Royal Ins. Co. 591 
 
 Broadhead v. Lycoming Fire Ins. 
 
 Co. 143 
 
 Broadwater v. Lyon Fire Ins. Co. 67 G, 
 
 294 D 
 Brock V. Dwelling-House Ins. 
 
 Co. 492, 497 
 
 Brockelbank v. Sugrue 129, 139 
 
 Brockhaus v. Kemiia 390, 399 P 
 
 Brockway u. Mut. Ben. L. Ins. 
 
 Co 296, 419 A 
 
 Brooklyn v. Brooklyn Fire Ins. Co. 21 
 Brooklyn Masonic Relief Ass. o. 
 
 Hanson 399 N 
 
 Brooks V. Phoenix Mut. Life Ins. 
 
 Co. 390 
 
 V. Standard Fire Ins. Co. 252 
 
 Brossard v. Massouin 390, 451 
 
 Brougli V. Higgins 433 A 
 
 V. Whitmore 26 
 
 Brouwer v. Appleby 549 b, 552 
 
 u. Hill 549 b, 594 
 
 Brown V. Am. Cent. Ins. Co. 54 A 
 
 u. Bigelow 497 
 
 V. Cattaraugus County Mut. 
 
 Fire Ins. Co. 371 
 
 V. Commercial Fire Ins. Co. 144 A, 
 
 287 B 
 
 V. Commonwealth Ins. Co. 291 
 
 V. Cotton & Woolen Mfrs. Mut. 
 
 Ins. Co. Ill, 267, 276 A, 276 C, 
 
 459 E 
 
 V. Crook 549 
 
 V. Donnell 552 
 
 V. Equitable Ass. Society 379 
 
 V. Franklin Mutual Fire Ins. 
 
 Co. 14, 126, 557 
 
 V. Gore District Mut. Ins. Co. 287 
 V. Greenfield L. Ass'n 298, 308, 398 
 
 Section 
 Brown v. Hartford Fire Ins. Co. 460 
 V. Hartford Ins. Co. 379, 478 
 
 V. King's County Mat. Ins. 
 
 Co. 402 
 
 V. London Ass. Corp. 462, 465 
 V. Mass. Mut. Life Ins. Co. 360 F 
 V. Met'n Lite Ins. Co. 144 E, 295 
 V. Palatine Ins. Co. 263 A 
 
 0. People's Mut. Ina. Co. 277 
 
 V. Price 399 B 
 
 V. QuincyMut.FireIns.Co. 31,425 
 V. Railway Passenger Ins. Co. 70, 
 155, 428, 429, 526, 530 
 u. Roger Williams Ins. Co. 379, 
 384, 478, 483 
 V. Royal Ins. Co. 432, 433 
 
 ^. iSt. Nichol's Ins. Co. 414, 417 
 V. Savage 396 
 
 V. Savannah Mut. Ins. Co. 478, 482 
 V. Springfield Fire & Mar. Ins. 
 
 Co. 267 
 
 V. State Ins. Co. 138, 263 A 
 
 V. Sun L. Ins. Co. 325 
 
 V. U. S. Casualty Co. 12 
 
 V. Williams 287 
 
 Brown's Appeal 399 Q 
 
 Browne v. Clay Ins. Co. 465 
 
 Browne Nat. Bank v. Southern Ins. 
 
 Co. 274 
 
 Browning v. Home Ins. Co. 247, 249 B 
 
 V. Morris 567 
 
 Bruce v. Gardner 114, 449, 456 
 
 V. Gore District Mut. Ins. Co. 67, 
 
 365 
 
 V. Life Ins. Co. 344 E 
 
 Brude i). .^tna Ins. Co. 379 
 
 Brueck /;. Phoenix Ins. Co. 190 
 
 Brugger v. State, &c. Ins. Co. 93 A, 
 
 420, 424, 566 
 
 Brugurt v. La. St. Mar. & Fire 
 
 Ins. Co. 591 
 
 Brummer v. Cohn 391, 399 Q 
 
 Brunswick v. Com. Ins. Co. 269a, 379 
 Bruton ;;. Met. Life Ins. Co. 400 
 
 Bryan v. National L. Ins. Ass'n 360 
 V. Traders' Ins. Co. 272 
 
 Bryant v. Ocean Ins. Co. 188 D 
 
 V. Poughkeepsie Mut. Ins. Co. 239 
 Bryce v. Lorillard Ins. Co. 257, 401 a, 
 
 566 
 
 Buchanan ». Curry 39, 40, 42 
 
 V. Exchange Ins. Co. 239, 242, 
 
 383, 420 
 
 V. Ocean Ins. Co. 76 A 
 
 V. Westchester Ins. Co. 574 
 
 Buck V. Chesapeake Ins. Co. 74, 94 A, 
 
 179 A 
 
 V. Colbath 390 
 
 Buckbee v. U. S. Ins. & Trust Co. 361 
 
 Buckley v. Garratt et al. 280, 382, 502 
 
 xxiii 
 
TABLE OF CASES. 
 [The references are to the sectione.] 
 
 Section 
 Euekman v. Metcalf 549 
 
 Buell V. Conn. Mut. Life Ins. Co. 166 
 Bufe V. Turner 208 
 
 Buffalo Loan Co. v. Knight Temp- 
 lars' Mut. Aid Ass'n 465 
 Buffalo Steam Engine Works v. 
 
 Sun Mut. Ins. Co. 82, 279, 379 
 
 Buffum V. Bowditch Mut. Ins. Co. 285 
 
 V. Fayette Mut. Kre Ins. Co. 6S, 
 
 348 
 
 Buick V. Meclianics' Ins. Co. 67 G, 125 
 
 Bulger V. Wash. Life Ins. Co. 352 A 
 
 Bulkley v. The Derby Fishing Co. 15 
 
 V. Protection Ins. Co. 179 A 
 
 Bull V. North British Can. Invest. 
 
 Co. & Imp. Fire Ins. Co. 452 B 
 
 BuUman v. Nortli British & Merc. 
 
 Ins. Co. 379, 492, 590 
 
 Bummers v. U. S, Ins. Co. 579 B 
 
 Bumstead v. Dividend Mut. Ins. 
 
 Co. 465, 475, 504 
 
 Bunce v. Beck 24 A 
 
 Bunker v. Green 25 
 
 V. Shed 478 
 
 Bunten v. Orient Mut. Ins. Co. 43 E, 
 
 130 A 
 Burbank v. Rockingham Mut. Fire 
 
 Ins. Co. 264, 266, 366 
 
 Burchell v. Marsh 492 
 
 Burdon v. Mass. Safety Fund Ass. 358, 
 
 552 
 Burgess v. Alliance Iris. Co. 420, 428 
 V. Eq. Mar. Ins. Co. 222 
 
 Burgher v. Columbian Ins. Co. 447 A 
 Burke v. Prudential Ins. Co. 112 
 
 Burkhard v. Travelers' Ins. Co. 175, 
 
 531 A 
 
 Burkheiser v. Mutual Ace. Ass'n 517 A 
 
 Burland v. Mut. Ben. Ass. 563 A 
 
 Burleigh v. Gebhard Fire Ins. Co. 156 
 
 Burlingame v. Goodspeed 83 
 
 Burlington Ins. Co. o. Brockway 247 
 
 V. Campbell 401 a 
 
 ■V. Kennerly 126, 465 
 
 V. Lowery 248, 462, 465 
 
 V. Threlkeld 151, 401 a 
 
 Burmood v. Farmers' Union Ins. 
 
 Co. 557 
 
 Bumam v. White 379 
 
 Bumand «. Rodocanaehi 456 a 
 
 Burner v. German- Am. Ins. Co. 
 
 247, 345 E 
 Burnett v. Eufala Home Ins. Co. 279 
 Burnbam v. Interstate Casualty 
 
 Co. 325, 465 
 
 V. Royal Ins. Co. 247 
 
 Burr V. Broadway Ins. Co. 420 
 
 V. German Ins. Co. 189, 291 A 
 
 V. Sim 465 
 
 Burridge v. Raw 452 A 
 
 Xxiv 
 
 Section 
 Burritt v. Saratoga County Mut. 
 
 Fire Ins. Co. 159, 207, 258 
 
 Burroughs v. State Mut. Life Ins. 
 
 Co. 391, 393 
 
 Burrus v. Va. L. Ins. Co. 67 
 
 Bursinger v. Bank of Watertown 
 
 398 A 
 Burson v. Phila. Fire Ass'n 21 
 
 liUTtv. People's Mut. Ins. Co. 365, 871 
 Burton v. Buckeye Ins. Co. 483 
 
 V. Conn. Mut. Life Ins. Co. 103 A 
 V. Farinholt 459 E 
 
 Busby V. S. A., &c. Ins. Co. 346, 362 
 Busch V. Ins. Co. 471 
 
 Bush V. Westchester Fire Ins. Co. 129, 
 
 138 
 Bushnell «. Bushnell 398 A 
 
 Bussell V. Am. Fire Ins. Co. 140 
 
 Bussing V. Union, &e. Ins. Co. 344 a 
 Butler V. Am. Pop. Ins. Co. 345 a 
 
 V. Merch. M. Ins. Co. 365 C 
 
 V. Standard Fire Ins. Co. 82, 100, 
 180 a, 243, 401 a 
 Butman v. Hobbs 583 
 
 Butternut Manuf. Co. v. Manufac- 
 turers' M. F. Ins. Co. 247 
 Butterworth v. Western Ass. Co. 
 
 469 B 
 Button V. Am. M. A. Ass'n 517 A 
 
 Butz V. Farmers' Ins. Co. 282 B 
 
 Byers v. Farmers' Ins. Co. 29 A, 181, 
 188 A, 269, 290 
 Byrne v. Rising Sun Ins. Co. 504 
 
 Caballero v. Home Mut. Ins. Co. 414 
 Cady V. Imperial Ins. Co. 263 B 
 
 Caffrey v. John Hancock Mut. Life 
 
 Ins. Co. 360 G 
 
 Cahen v. Continental Life Ins. Co. 11 
 Cain V. Lancashire Ins. Co. 67 
 
 Caldwell v. Stadacona Fire and 
 
 Life Ins. Co. 278, 424 A 
 
 Caledonian F. Ins. Co. v. Traub 492 
 Calhoun v. Union M. Ins. Co. 360 C 
 California Ins. Co. ;;. Gracey 488 
 
 V. Union Compress Co. 95 A, 240, 
 402 
 California State Bk. v. Hamburg 
 
 276 A 
 Calvert v. Hamilton Mut. Ins. Co. 190 
 Camden C. Oil Co. v. Ohio Ins. 
 
 Co. 154 A 
 
 Cameron v. Can. Fire & Mar. Ins. 
 
 Co. ' 462 
 
 V. Fay 459 D 
 
 Cammack v. Lewis 75 B, 107, 398 
 
 Campbell v. Adams 555, 559 
 
TABLE OF CA.SES. 
 
 [The references are to the sections.] 
 
 Section 
 
 Campbell v. Mtna. Ins. Co. 365 
 
 V. Allan 567 
 
 V. Am. Fire Ins. Co. 54 A 
 
 V. Am. Pop. Life Ins. Co. 589 
 
 V. Charter Oak Fire Ins. Co. 246, 
 
 477 
 
 V. Hamilton Mut. Ins. Co. 185, 
 
 274, 291 
 
 u. Intern. Life Ass. See. 131, 134, 
 
 349 
 
 V, Leonard 286 
 
 V. Merchants' & Farmers' Mut. 
 
 Fire Ins. Co. 142, 143, 166, 
 
 180 u 
 
 V. Monmouth Mut. Fire Ins. 
 
 Co. 410 
 
 V. N. E. Mut. Life Ins. Co. 75 B, 
 
 112, 156, 158, 159, 164, 165, 
 
 181, 183, 185, 187, 192, 195, 
 
 205, 298, 589 
 
 V. Eickards 580 
 
 V. Victoria IVIut. Ins. Co. 2C8 
 
 Canada v. Liverpool & Lond. Fire 
 
 Ins. Co. 221 
 
 Canada Landed Credit Co. v. Can- 
 ada Agr. Ins. Co. 216, 221, 365 
 Canada Mut. Fire Ins. Co v. North- 
 ern Ins. Co. 9, 12, 197 
 Candee v. Citizens' Ins. Co. 180, 192, 
 
 346 
 Cann v. Imp. Fire Ins. Co. 373, 373 A, 
 464, 477 
 Cannel v. Plioenix Ins. Co. 247 
 
 Canning v. Farquhar 43 G 
 
 Cannon v. Home Ins. Co. 364, 504 A 
 V. Phcenix Ins. Co. 402 
 
 Canterbury v. Atty.-Gen. 454 
 
 Canton Ins. Office v. Woodside 175 
 Canton Masonic Mut. Ben. Soc. v. 
 
 Rockliold 552 
 
 Capital City Ins. Co. u. Autrey 291 A 
 Capital Ins. Co. v. Pleasanton 
 
 Bank 294 B 
 
 Capitol Ins. Co. u. Bank of Blue 
 
 Mound 557 
 
 V. Wallace 462, 494 
 
 Caplis V. American F. Ins. Co. 270, 379 
 
 Carberry v. German Ins. Co. 449, 589 
 
 Cardinal v. Dominion Ins. Co. 248 
 
 Carey v. AllemaniaF. Ins. Co. 269, 465 
 
 V. Farmers' Ins. Co. 462 
 
 o: German-American Ins. Co. 189, 
 
 274, 291 A, 369 
 
 u. Liverpool, &e. Ins. Co. 269, 
 
 287 B 
 
 V. Phoenix Ins. Co. 279, 291 A 
 
 V. London Pro v. Fire Ins. Co. 424 a 
 
 Cargill V. Miller's, &c. Mut. Ins. 
 
 Co. 175, 420 B 
 
 Carleton v. China Mut. Ins. Co. 434 
 
 Section 
 Carlin v. West. Ass. Co. 239 a 
 
 Carlook v. Plioenix Ins. Co. 345 E 
 
 Carlwitz v. Gerniania Fire Ins. Co. 
 
 345 B, 423 B, 424 a, 583 
 Carmell v. Beaver, &c. Ins. Co. 465 
 Carmichael v. N. W. Mut. Ben. 
 
 Ass. 399 F 
 
 Carmien v. Cornell 557 
 
 Games v. Iowa State T. M. Ass'n 325, 
 
 515 « 
 Carney D. New York L. Ins. Co. 303 
 Carpenter o. Allemannia F. Ins. 
 
 Co. 222, 420 
 
 V. American Ins. Co. 122, 373 
 
 1!. Centennial Mut. Ins. Co. 352 
 
 V. Continental Ins. Co. 355, 502 
 
 V. German Amer. Ins. Co. 294 E, 
 
 466 
 
 v. Mut. Saf. Ins. Co. 566 C 
 
 V. Prov. Wash. Ins. Co. 6, 12, 72, 
 
 80, 284, 365, 365 B, 369, 373, 
 
 378, 381 a, 391, 424, 456 
 
 V. Snelling 25 
 
 V. U. S. L. Ins. Co. 112 
 
 Carpenter's Estate 407 
 
 Carr v. Fire Ass. Ass'n 294 6 
 
 V. Hamilton 594 a, 595, 596 
 
 V. London & N. W. R. R. Co. 497 
 
 V. Mass. Benefit Ass. 29 C 
 
 V. Un. Mut. Fire Ins. Co. 594 a 
 
 Carraway v. Merchants' Mut. Ins. 
 
 Co. 478 
 
 Carrigan v. Ins. Co. 71, 233, 287 C 
 
 Carrington v. Com. Fire & Mar. 
 
 Ins. Co. 12, 594 a 
 
 Carroll v. Boston Mar. Ins. Co. 101 
 
 i). Charter Oak Ins. Co. 126, 151, 
 
 372, 386, 501, 502, 511 
 
 ... Girard Fire Ins. Co. 473 a, 493, 
 
 511 
 
 V. Home Ins. Co. 405 
 
 V. New Orleans, &c. R. R. 457 a 
 
 Carrugi v. Atlantic, &c. Ins. Co. 371, 
 
 372(1 
 
 Carrutliers v. Gray 407 a 
 
 V. Shedden 81 
 
 Carson v. Jersey City Ins. Co. 29 a, 170, 
 
 501,511 
 
 V. Mar. Ins. Co. 30 
 
 Carstairs v. Mechanics', &c. Ins. 
 
 Co. 457 a 
 
 Carter v. Boehm 73, 207, 582 
 
 V. Brooklyn Life Ins. Co. 356 a 
 V. German Ins. Co. 360 a, 469 
 
 V. Humboldt Fire Ins. Co. 93, 247, 
 386, 478 
 V. John Hancock Life Ins. Co. 
 
 344 B 
 V. Niagara Dist. Mut. F. Ass. 
 Co. 475 
 
 XXV 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Carter v. Roc;ket 449 
 
 Carton v. Southern Mut. Ins. Co. 
 
 560 B 
 Carver Co. v, Manf's Ins. Co. 53 
 
 Cary «. Nagle 548 
 
 Cascade F. & M. Ins. Co. v. Journal 
 
 Pub. Co. 30, 488 
 
 Case V. Hartford Ins. Co. 402, 404 
 
 Casey v. Goldsmith 256, 259 
 
 V. Nagle 345 
 
 Cashan v. N. W. Ins. Co. 11, 11 a 
 
 Casler v. Conn. Mut. Life Ins. Co. 337 
 Cassalla v. Plioenix Ins. Co. 591 
 
 Cassity i). New Orleans Ins. Ass. 425 
 Castellain r. Preston 456 a 
 
 Castner v. Earmers' Mut. Fire Ins. 
 
 Co. 35 a, 285, 562, 591 
 
 Caston V. Monmouth Mut. Fire Ins. 
 
 Co. 144 B 
 
 Catcliings v. Manglove 391 
 
 Catliolic Knights of America v. 
 
 Morrison 399 
 
 Catlett V. Pacific Ins. Co. 452 E 
 
 Catlin V. Springfield Fire Ins. Co. 170, 
 195, 247, 248, 408, 410, 465, 474, 475 
 Catoir v. Amer. Life Ins. Co. 126, 134, 
 341, 511 
 Catron v. Tenn. Ins. Co. 284, 373 
 
 Cawley v. Nat. E. A. Ass'n 158 
 
 Cayon v. Dwelling-House Ins. Co. 
 
 422 B, 466 
 
 Cazenove v. British Eq. Ass. Co. 212, 
 
 296, 305 
 
 Cedar Rapids Ins. Co. v. Sliimp 245 
 
 Central Bank of Washington v. 
 
 Hume 399 L, 459 B 
 
 Central City Ins. Co. u. Gates 460, 461, 
 462, 491 
 Central Nat. Bk. v. Hume 459 C 
 
 Central R. R. Co. w. Kisch 356 
 
 Cerf V. Home Ins. Co. 239 a 
 
 Cerys v. Stale Ins. Co. 285 
 
 Chadbourne v. Germ. -Amer. Ins. 
 
 Co. . 67 D 
 
 Chaffee v. Cattaraugus Co. Mut. 
 
 Ins. Co. 185, 206, 258 
 
 Chalaron v. Ins. Co. of North Amer- 
 ica 11 
 Chamberlain v. Ins. Co. 180 a, 447 
 Chambers r. Atlas Ins. Co. 479 
 V. Northwestern Mut. L. Ins. 
 Co. 186,299 
 Champlin v. Railway Pass. Ass. 
 
 Co. 525, 529, 530 
 
 Chandler v. Commerce Fire Ins. 
 
 Co. 287 C 
 
 V. St. Paul Fire & Mar. Ins. 
 
 Co. 479, 487 
 
 V. Worcester Ins. Co. 411 
 
 Chapin v. Fellowes 391, 392 
 
 xxvi 
 
 Section 
 Chapman v. Atlantic & St. Law- 
 rence R. R. Co. 94 
 V. Chapman 291 
 V. Delaware M. Ins. Co. 65 
 V. Gore Dist. Mut. Ins. Co. 190 
 V. Mcllwrath 391 A 
 V. Pote 443, 477 
 V. Republic Life Ins. Co. 322 
 V. Rockford Ins. Co. 494 
 Charleston Ins. & Tr. Co. v. Neve 
 
 378 A, 379, 468 
 Cliarleston Ins Co. u. Potter 566 C 
 Charter Oak Life Ins. Co. v. Brant 391 
 Chartiers & Rob. Turnpike Co. u. 
 
 McNamara 25 
 
 Chase v. Hamilton Mut. Ins. Co. 50, 
 
 133, 137, 261, 287 
 
 V. Ins, Co. 67 
 
 V. Phoenix, &c. Ins. Co. 344 a, 574 
 
 V. Washington, &c. Ins. Co. 94 A, 
 
 133 C 
 
 Chattillon v. Canadian Mut. Fire 
 
 , Ins. Co. 143, 159, 216 
 
 Chattock V. Shawe 297 
 
 Cheek v. Columbia Fire Ins. Co. 143, 
 
 207 
 Cheever v. Union Mut. Life Ins. 
 
 Co. 185, 190, 207, 216, 499 
 
 Cheeves v. Anders 109 a 
 
 Chesbrough v. Home Ins. Co. 434 
 
 Chester Glass Co. v. Dewey 23 D 
 
 Cliicago Mut. Life Indem. Ass. </. 
 
 Hunt 552 
 
 Chicago Sugar Ref. Co. v. Ameri- 
 can S. B. Co. 2 
 Chickering v. Globe Mut. Life Ins. 
 
 Co. 134 
 
 Chipman v. Carroll 447 A, 449 
 
 Chisholm v. Nat. Cap. Life Ins. Co. 75, 
 
 107 a 
 V. Prov. Ins. Co. 382 
 
 Chomas v. Cummiskey 452 A 
 
 Chowne v. Baylis 395 
 
 Chrisman v. State Ins. Co. 100 A, 161, 
 447 A, 589 
 Christian v. Conn. Mut. L. Ins. 
 
 Co. 158, 327 
 
 I). Niagara F. Ins. Co. 434 
 
 Christie v. N. Brit. Ins. Co. 50, 51, 64, 
 
 570 
 Christy v. Homoeopathic Mut. Ins. 
 
 Co. 344 H 
 
 Church V. Lafayette Fire Ins. Co. 134 
 Church of St. George v. Sun F. 
 
 Office Co. 364 
 
 Cincinnati Mut. Health Ass. Co. 
 
 V. Rosenthal 577 
 
 Cinque Mars v. Eq. Ins. Co. 465 
 
 Citizens' Ins. Co., In re 541 a 
 
 V. Bland 469 C 
 
TABLE OF CASES. 
 
 [The Tef erences are to the sections.] 
 
 Section 
 
 Citizens' Ins. Co. v. Crist 263 A 
 
 V. Doll 287, 384, 465, 471, 475 
 
 u. Marsh 407,411 
 
 V. McLaughlin 179, 239 
 
 Citizens' Mut. Ins. Co. v. Sortwell, 5o2, 
 
 559 
 Citizens', cStc. Ins. Co. u. Parsons 263 D, 
 
 578 a 
 
 V. Short 373 
 
 City Banli: v. Adams 459 F 
 
 V. Sovereign L. A. Co. 325 
 
 City Banlc of Gurney, In re 595 
 
 City i'ire Ins. Co. v. Carrugi 180 a, 
 
 215 a, 372 
 
 V. Corlies 242, 403, 413 
 
 V. Marie 101, 379, 381, 384, 401 a 
 
 City Five Cents' Savings Banli v. 
 
 Penn. Ins. Co. 869 
 
 City Ins. Co. v. Brioker 158 
 
 V. Zoller 56 
 
 City of Davenport v. Peoria Mar. 
 
 & Fire Ins. Co. 15, 45o, 191, 400,665 
 City of Lond. Fire Ins. Co. v. Smith 479 
 City of Worcester v. Worcester 
 
 Mut. Fire Ins. Co. 408 
 
 City Planing & Shingle Mill Co. 
 
 V. Merchants' Mut. F. Ins. Co. 253 
 
 City Sav. Bank v. Whittle 399 L 
 
 Claflin V. Commonwealth Ins. Co. 477 
 
 V. U. S. Credit System Co. 1 
 
 Clapp u. Farmers' Mut. F. Ins. 
 
 Ass'n 287 B 
 
 V. Mass. Benefit Ass. 161, 202 
 
 V. tJn. Mut. Ins. Co. 287 
 
 Clark V. Allen 398 
 
 V. Baird 423 B 
 
 V. Dawson 399 O 
 
 V. Darand 391 
 
 V. Dwelling-House Ins. Co. 81 
 
 V. Fireman's Ins. Co. 81, 420 
 
 V. German Mut. Fire Ins. Co. 287 
 V. Hamilton Mut. Ins. Co. 208, 367 
 V. Inhabitants of Blything 454, 455 
 V. Manufactures', &c. Ins. Co. 192, 
 207, 215 a, 567 
 V. Middleton 577 
 
 V. Mobile 578 a 
 
 V. N. E. Mut. Ins. Co. 274, 278, 
 365, 365 B, 468, 473 
 V. Ocean Ins. Co. 30 
 
 V. Phoenix Ins. Co. 477 
 
 V. Scottish Imp. Ins. Co. 82 
 
 V. Svea F. Ins. Co. 379, 459 B 
 
 V. Union Mut. Fire Ins. Co. 14.3, 
 180 a, 203 
 V. Western Ass. Co. 83 a 
 
 V. Wilson 116, 457 B 
 
 Clarke v. Manufacturers' Mut. 
 
 Fire Ins. Co. 159 
 
 V. Moray 42 A 
 
 Section 
 
 Clarke v. Schwarzenberg 459 B 
 
 V. Western Ass. Co. 364 
 
 Clary v. Prot. Ins. Co. 420 
 
 V. Scottish Imp. Fire Ins. Co. 93 A 
 
 V. Uni(m Fire Ins. Co. 66 
 
 Clason V. Smith 184, 188 D 
 
 Clawson V. Citizens' Mut. F. Ins. 
 
 Co. 287 B 
 
 Clay V. Harrison 79 
 
 Clay Fire & Mar. Ins. Co. v. Beck 287 C 
 Clay F^ire, &c. Ins. Co. v. Wuster- 
 
 hausen 591 
 
 Clay Ins. Co. v. Huron, &c. Co. 287, 577 
 
 Clay, &c. Ins. Co. i,. Beck 287 
 
 Cleaver v. Ins. Co. 369 
 
 V. Mutual Reserve Fund L. 
 
 Ass'n 399 E, 407 
 
 Clemens v. Supreme Assembly 144 a 
 Clement!;. Britisli Amer. Ass. Co. 99, 
 
 465 
 
 V. New York L. Ins. Co. 112, 327, 
 
 398, 478 
 
 V. Phoenix Ins. Co. 122 
 
 Clendining v. Church 75 
 
 Clevengeru. Mut. Life Ins. Co. 126, 143 
 
 Clift V. Schwabe 308, 309, 310, 313, 
 
 316, 320 
 
 Clifton Coal Co. v. Scottish Union 
 
 & N. Ins. Co. 248, 269 
 
 Clinton v. Hope Ins. Co. 91, 158, 159 
 424, 445, 457 
 Clubb V. American Ace. Co. 144 A 
 Cluff «. Mut. Ben. Life Ins. Co. 328, 331 
 Coates V. Penn Fire Ins. Co. 447 A 
 Coats V. West Coast F. & M. Ins. 
 
 Co. 434, 589 
 
 Cobb V. Covenant Mut. Benefit 
 
 Ass"n 186, 202, 303 
 
 V. Ins. Co. of N. A. 238 
 
 u. Lime Eock Fire & Mar. 
 
 Ins. Co. 156 
 
 V. N. E. Mut. M. Ins. Co. 452 E, 
 496 B 
 V. Preferred Mutual Ace. 
 
 Ass'n 517 A 
 
 Coburn v. Life Indemnity Co. 70 C 
 
 V. Trav. Ins. Co. 591 
 
 Cochran v. Mutual L. Ins. Co. 325, 465 
 
 Cockerell v. Cincinnati Mut. Ins. 
 
 Co. 14, 18, 101 
 
 Cofer V. Flanagan 465 
 
 Coffee V. Universal Life Ins. Co. 488 
 Coffey V. Home, &c. Ins. Co. 325 
 
 V. Universal, &o. Ins. Co. 344 a, 
 358 
 Cohn V. Continental Life Ins. Co. 190, 
 
 214 
 V. Ins. Co. 70 B, 362 
 
 V. Mut. Life Ins. Co. 39, 39 A 
 
 V. N. Y. Life Ins. Co. 350, 668 
 
 xxvii 
 
TABLE OF CASES. 
 
 [The references are to the eections.] 
 
 Section 
 Colin V. Virginia Fire & Mar. Ins. 
 
 Co. 181 
 
 Coit V. Com. Ins. Co. 179 
 
 Colby V. Cedar llapids Ins. Co. 67, 
 
 69 B, 364 
 
 V. Life Indemnity Co. 70 C 
 
 Cole V. Accident Ins. Co. 324 
 
 V. Gerinania Fire Ins. Co. 246 A 
 
 V. Marple 391 
 
 Coleman v. New Orleans Ins. Co. 279 
 
 V. Ketail Lumberman's Ins. 
 
 Co. 420 
 
 Coles V. Bank of England 502 
 
 0. Iowa State Mut. Ins. Co. 552, 555 
 
 V. Jefferson Ins. Co. 175, 500 
 
 Collett V. Morrison 17, 356, 566 
 
 Collier v. Bedell 569 
 
 CoUingridge v. Royal, &c. Ins. Co. 424 
 
 Collins V. Bankers' Aoc. Ins. Co. 531 A 
 
 V. Cliarlestown Muf. Fire Ins. 
 
 Co. 285 
 
 u. Farmyille Ins. Co. 238, 239 
 
 V. Ins. Co. of Fhila. 56 
 
 V. Locke 494 
 
 V. London Ass. Corp. 274, 291 A 
 
 !'. Merchants' Mut. Ins. Co. 276 
 
 V. N. Y. Cent. R. Co. 455 
 
 v. North British Merc. Ins. Co. 239 
 
 V. St. Paul F. & M. Ins. Co. 257, 
 
 448 
 
 Colt V. Phoenix Ins. Co. 177, 269 a 
 
 Columbia Fire Ins. Co. v. Kinyon 563, 
 
 577 
 
 V. Lawrence 408, 452 B 
 
 Columbia Ins. Co. v. Buckley 553, 555 
 
 V. Cooper 84, 159 
 
 V. Masonheimer 67 
 
 V. Stone 555 
 
 Columbian Ins. Co. u. Cooper 131, 140, 
 
 143, 206, 552 
 
 V. Lawrence 81, 87, 195, 262, 284, 
 
 377, 408, 449, 465, 466, 469, 488 
 
 Columbus Ins. Co. v. Walsh 366, 575, 
 
 577 
 
 Combe's Case 320 
 
 Combs V. Hannibal Ins. Co. 126 A, 129, 
 
 131, 132, 144 C, 180 a, 370, 499 
 
 „. Shrewsbury Ins. Co. 279, 282 A, 
 
 372 A, 386 
 
 Com. Fire Ins. Co. r. Allen 124 A, 
 
 433 A, 488 
 
 V. Cap. City Ins. Co. 95 A, 590 
 
 V. Ives ■ 144 G 
 
 Commercial Bank v. Firemen's 
 
 Ins. Co. 202, 477 
 
 Commercial Ins. Co. v. Bergen 249 
 
 V, Friedlander 30 
 
 V. Hallock 44, 49, 53, 60, 134, 360, 
 
 400, 565 
 
 V. Huckberger 477 
 
 xxviii 
 
 Section 
 Commercial Ins. Co, v. Ives 132, 140, 
 
 497 
 i;. McLoon 573 
 
 V. Mehlman 221, 239, 242, 244, 245 
 V. Morris 23 C, 126 
 
 V. Robinson 415, 479 
 
 V. Spankneble 189, 243, 267, 269, 
 278, 292, 503 
 Commercial Mut. Mar. Ins. Co. v. 
 
 Union Mut. Ins. Co. 12a, 23 
 
 Commercial Travellers' Mut. Ace. 
 Ass'n V. Fulton 298 
 
 v.. Springsteen 531 A 
 
 Commercial Union Ass. Co. v. 
 
 Amer Cent. Ins. Co. 11, 365, 369 
 V. Canada Iron, &c. Co. 401a 
 
 „. Hocking 465, 479, 492 
 
 V. Norwood 369 
 
 V. Scammon 273, 276 A 
 
 V. State 23 A, 120, 469, 589 
 
 Commonwealth v. American L. 
 
 Ins. Co. 594 
 
 V. Andrews 407 A 
 
 V. Dennis 327 A 
 
 V. Dorchester Mut. Fire Ins. 
 
 Co. 557, 559, 594 
 
 V. Hide & Leather Ins. Co. 80, 167, 
 
 420, 595 
 
 V. Mass. Mut Ins. Co. 559, 560, 
 
 594, 549 a 
 
 V. Mechanics' Mut. Ins. Co. 558, 559 
 
 V. Niagara Fire Ins. Co. 82 
 
 V. Nutting 578 a 
 
 V. Ordway 328 
 
 V. Provident L. Ass'n 70 C 
 
 u. Union Mut. Fire Ins. Co. 553, 
 
 555, 559, 560 
 
 V. Wetherbee 1 , 550 a 
 
 Commonwealth Ins. Co. v. Berger 175, 
 
 274 
 V. Monninger 159 
 
 V. Sennett 423, 430, 432, 465, 579 
 Commonwealth Mut. Fire Ins. Co. 
 
 .;. Huntzinger 156,369 
 
 V. Knabe Co. 125, 159, 557 
 
 Comp. de I'Union c. Fouvre 356, 478 
 
 Comp. des Phoenix c. Dohis 358, 365, 
 
 502 o 
 Compton V. Beecher 2 
 
 Conadeau v. American Ace. Co. 325 
 Conboy v. Railway OfiBcials' Aco. 
 
 Ass'n 530 
 
 Concord Mut. Fire Ins. Co. v. 
 
 Woodbury 116, 449, 456 
 
 Condon v. South Side R. R. 493 
 
 Cone V. Niagara Ins. Co. 80, 143, 456 
 Confederation Life Ins. Co. v. 
 
 O'Donnell 65 
 
 Conn. F. Ins. Co. ». Hamilton 469 C, 
 
 492, 494 
 
TABLE OF CASES. 
 
 [The references are to the sections,] 
 
 Conn. F. Ins. Co. u. Railway Co. 454 
 
 V. Smith 401 a, 566 
 
 V. Tilley 247 
 
 Conn. Ind. Ass'n «. Grogan 55 A, 360 
 
 Conn. Ins. Co. o. Schwenk 465 
 
 Conn. Life Ins. Co. v. McMurdy 303 
 
 Conn. Mut. Ins. Co. v. Ryan 391 
 
 V. Siegel 477 
 
 Conn. Mut. L. Ins. Co. v. Akens 325 
 
 V. Baldwin 899 D, 399 L, 399 H 
 
 V. Real 67 M 
 
 u. Burroughs 391 
 
 u. Fisher 398 A 
 
 V. Luchs 109 a, 501, 579 
 
 V. McWhirter 325 
 
 V. N. Y. & N. H. R. R. Co. 453, 454 
 
 V. Scammon 452 B 
 
 u. Scliaeffer 8,100,106,107,110, 
 
 117 
 
 V. Westervelt 391 A 
 
 Conn. R. Mut. Fire Ins. Co. v. Way 577 
 
 Conn., &c. Ins. Co. v. Duerson 850 
 
 V. Groome 317 
 
 Connell v. Phoenix Ins. Co. 580 
 
 V. Scottisli Conn. Ins. Co. 401 a 
 
 Conover v. Mass. Mut. Life Ins. 
 
 Co. 164, 185, 187, 296 
 
 ». The Mut. Ins. Co. of Al- 
 bany 139, 269 
 Conrad's Estate, In re 399 D 
 Considlne v. Met'n Life Ins. Co. 156 
 Consolidated, &c. Fire Ins. Co. v. 
 
 Cashow 11, 11 A, 359, 468, 584 
 
 Constant y. The AUes;hany Ins. Co. 15, 
 23 D, 128 
 Continental Ins. Co. «. ^tna Ins. 
 
 Co. 11, 400, 452 F 
 
 V. Anderson 276 C 
 
 a. Boykiu 345 H 
 
 u. Chase 465 
 
 V. Chew 452 F 
 
 V. Donnan 345 E, 469 C 
 
 11. Heilman 365 
 
 V. Hillnier 591 
 
 0. Horton 365, 423 B 
 
 V. Hulman 379 
 
 u. Jachmehen 588 
 
 V. Jenkins 566 
 
 V. Kasey 499 
 
 V. Lippold 462 
 
 V. Loud Lumber Co. 453 
 
 V. Munns 144 A, 378 A 
 
 V. Pearce 44 A, 144 C 
 
 ... Randolph 469 
 
 u. Riegen 578 a 
 
 u. Ruckman 126, 144 D, 154 A, 
 249 H, 469, 511 
 V. Ward 189, 275 
 
 V. Ware 283, 373 
 
 V. Wilson 494 
 
 Continental Life Ins. Co. v. Cham- 
 berlain 124 A, 125 
 V. Daly 244 A 
 V. Gopdhall 123, 126, 154, 305 
 V. Houser 569 
 V. Kessler 589 
 V. Palmer 390 
 V. Rogers 161, 469, 589 
 u. Volger 103 A 
 V. Willets 360 B 
 V. Yung 187, 296 
 Continental, &c. Ins. Co. o. Del- 
 
 peuoh 325 
 
 Conver v. Phoenix Ins. Co. 296 
 
 Converse v. Citizens' Mut. Ins. Co. 99 
 
 V. Knights Templars' Ind. Co. 336 
 
 Conway v. Phoenix M. L. Ins. Co. 
 
 126, 360 
 Conway Tool Co. v. Hudson R. 
 
 Ins. Co. 369 
 
 Cook V. Black 395 
 
 V. Continental Ins. Co. 248 
 
 V. Federal Life Ass'n 29 C, 156 
 
 a. Lyon Fire Ins. Co. 188 F 
 
 V. Westchester F. Ins. Co. 566 
 
 Cooke V. Mtna. Ins. Co. 154 
 
 V. Oxley 46 
 
 Coolidge V. Gloucester Mar. Ins. 
 
 Co. 30 
 
 Coombs V. Shrewsbury Mut. Fire 
 
 Ins. Co. 502 
 
 Coon, Admr. v. Swan 449 
 
 Cooper V. Farmers' Mut. Fire Ins. 
 
 Co. 156, 566 
 
 V. Ins. Co. of Pennsylvania 138, 
 
 287 B, 469 C 
 
 V. Mass. Mut. Life Ins. Co. 313, 
 
 316 
 
 V. Pacific Mut. Life Ins. Co. 55, 56 
 
 V. Shaver 552, 559, 562 
 
 V. U. S. Mut. Ben. Ass'n 479 
 
 Co-operative Life Ass. v. Leflore 185 
 
 V. McConnieo 134 
 
 Copeland v. Phoenix Ins. Co. 364, 589 
 
 Copp V. Germ. Amer. Ins. Co. 157, 
 
 239 A 
 Copper Miners v. Fox 16 
 
 Corbett v. Spring Garden Ins. Co. 421 n 
 Corkery v. Security F. Ins. Co. 
 
 294 E, 475 
 
 Cormier v. Ottawa Agr. Ins. Co. 452 D 
 
 Cornell v. Hope Ins. Co. 466 
 
 V. Leroy 463, 466, 469 
 
 V. Milwaukie Mut. Fire Ins. 
 
 Co. 504 
 
 ' V. Moulton 400 
 
 V. Tiverton Mut. F Ins. Co. 294 E 
 
 Cornett v. Phenix Ins. Co. 471 
 
 Cornfoot v. Boylston Ins. Co. 579 
 
 V. Fowke 3, 122, 172, 213 
 
 xxix 
 
TABLE OF CASES. 
 
 [The references are to the eections.] 
 
 Section 
 Cornish v. Ace. Ins. Co. 409 A, 531 A 
 V. Farm Buildings Ins. Co. 218 
 Cornwell v. Fraternal Ace. Ass'n 5.31 A 
 Corrigan v. Com. Fire Ins. Co. 249 C 
 Corson v. Garnier 100 A 
 
 Cory V. Burr 417 A 
 
 Cossonan v. West 424 A 
 
 Coster V. Phoenix Ins. Co. 177 
 
 Coston V. Alleghany Co. Mut. Ins. 
 
 Co. 558 
 
 Cotten V. Fidelity Co. 158 
 
 Cotter V. Royal Neighbors 325 
 
 Cottingham v. Fireman's Fund 
 
 Ins. Co. 279, 287 B 
 
 Cotton, &o. Life Ins. Co. v. Scurry 59 
 Cotton States Ins. Co. v. Ed- 
 wards 344 D, 504 A 
 V. Lester 358 
 Couch V. City Fire Ins. Co. 86, 369, 510 
 V. Rochester Germ. Fire Ins. 
 
 Co. 253 B 
 
 County Life Ass. Co., In re 27, 63 
 
 Coursin v. Penn.Ins. Co. 468, 488 
 
 Courteney v. Wright 459 A 
 
 Courtney v. N. Y. City Ins. Co. 386 
 Cousineau v. City of London Fire 
 
 Ins. Co. 488 
 
 Cousins V. Nantes 33, 115 
 
 Coutourier v. Hastie 353 
 
 Covenant Mut. Ben. Ass. v. Con- 
 way 43 H 
 V. Hoffman 307, 399 N 
 V. Sears 399 D 
 V. Spies 465, 562 
 Coventry, &c. las. Co. v. Evans 461 
 Coverstone ;;. Conn., &c. Ins. Co. 325 
 Cowan V. Iowa St. Ins. Co. 279 
 V. Plienix Ins. Co. 589 
 Cowart V. Capital City Ins. Co. 294 E, 
 
 364 
 
 Cox V. iEtna Ins. Co. 374 
 
 V. Fire Assurance Co. 478 
 
 V. United States 66 A 
 
 Coye V. Leach 465 
 
 Coykendall v. Ladd 459 F 
 
 Craig V. Dimock 25 
 
 V. Fenn 587 B 
 
 V. Springfield Fire and Mar. 
 
 Ins. Co. 249 C 
 
 Craighton v. Agr. Ins. Co. 465 
 
 Crane, In re 399 D 
 
 Crane v. City Ins. Co. 223, 224 
 
 Craufurd v. Hunter 77 
 
 Cravens v. New York L. Ins. Co. 578 a 
 Crawford v. iEtna Life Ins. Co. 350 
 Crawford Co. Mut. Ins. Co. u. 
 
 Cochran 553 
 
 Crawley v. Agr. Ins. Co. 477 
 
 Cray v. Hartford Ins. Co. 478 
 
 Credit Co. v. Howe Machine Co. 23 D 
 
 ZXX 
 
 Creech v. Richards 
 Creed v. Sun Fire Office 
 
 Section 
 
 84 
 
 ) A, 285, 
 
 459 E 
 
 Creighton v. Homestead Ins. Co. 82 
 
 Crescent Ins. Co. v. Camp 287 B 
 
 V. Griffin & Shook 372 A, 372 B 
 
 V. Moore 454 F 
 
 Crew-Levick Co. v. British & 
 
 Foreign M. Ins. Co. 177 
 
 Crigler v. Standard F. Ins. Co. 177 
 Crisp V. Bunbury .494 
 
 Criswell v. Whitney 379 
 
 Critchett v. Am. Ins. Co. 135 
 
 Crittenden v. Phoenix, &c. Ins. Co. 390 
 Crocker v. People's Mut. Ins. Co. 180, 
 
 250 
 Crookford v. Lon. & Liv. Fire Ins. 
 
 Co. 285 
 
 Croft V. Hanover F. Ins. Co., 3, 23 C, 
 125, 126, 566 
 Croghan v. N. Y. Underwriters' 
 
 Agency 70 B 
 
 Crombie v. Portsmouth Mut. Ins. 
 
 Co. 426 
 
 Cromwell v. Brooklyn Fire Ins. 
 
 Co. 379, .386, 450 
 
 Cronin «. Phila. F. Ass'n 159, 253 
 
 Cronine v. Ken. & Lou. Mut. Ins. 
 
 Co. 435 
 
 Cronkhite v. Ace. Ins. Co. 352 A 
 
 Crosby v. Franklin Ins. Co. 420 
 
 V. Stephan 459 B 
 
 Cross V. Andrews 309, 310 
 
 w. National F. Ins. Co. 111,247, 
 
 285, 294 C 
 
 Crossley v. Conn. Fire Ins. Co. 493, 
 
 494 
 Crossman v. Mass Benefit Ass. 561 A 
 Croswell v. Mercantile Mut. Ins. 
 
 Co. 420 B 
 
 Crotty V. Union Mut. L. Ins. Co. 83, 
 
 465 
 Crowley v. Cohen 94 A 
 
 Crown Point Iron Co. u. ^tna 
 
 Ins. Co. 69 a, 69 B 
 
 Crozier v. Phoenix Ins. Co. 101, 377, 
 
 379 
 Culbertson v. Cox 452 A 
 
 Cumberland Bone Co. v. Andes 
 
 Ins. Co. 83 a 
 
 Cumberland Valley Mut. Prot. 
 
 Ins. Co. u. Douglas 247, 408 
 V. Mitchell 385, 502 
 
 V. ScheU 132, 166, 376, 423, 
 
 425, 501, 552 
 Cummins v. Agricultural Ins. Co. 248 
 V. Cheshire Ins. Co. 378, 391 
 
 V. German-American Ins. Co. 465 
 V. Hildreth 378, 553 
 
 V. Sawyer 553 
 
TABLE OF CASES. 
 [The refereuces are to the sections.] 
 
 Section 
 Cunningham v. Smith 398 
 
 Curnow v. Phoenix Ins. Co. 66 
 
 Currie v. Mut. Ins. Co. 552, 557, 560 
 Currier v. Continental Life Ins. 
 
 Co. 107 C, 340, 345, 345 H 
 
 Curry v. Com. Ins. Co. 81, 184, 208, 
 222, 285, 423, 426 
 Ciirtin V. Phoenix Ins. Co. 343, 348 A 
 Curtis V. Home Ins. Co. 488 
 
 Cusliing V. Thompson 6, 456 
 
 V. Williamsburg City F. Ins. 
 
 Co. 589 
 
 Cushman b. Liverpool, &c. Ins. Co. 277 
 
 V. New England F. Ins. Co. 287 B, 
 
 566 
 
 V. North Western Ins. Co. 30, 31, 
 
 32 239 
 
 V. U. S. Life Ins. Co. 158, 298^ 304 
 
 Cuthbertson v. Ins. Co. 185, 277, 204 F 
 
 Cutler V. Royal Ins. Co. 177 
 
 Cyrenius o. Mutual Life Ins. Co. 399 D 
 
 D. 
 
 284 D 
 
 Dacey v. Agr. Ins. Co. 
 
 Dadman Manufacturing Co. o. 
 
 Worcester Mut. Fire Ins. Co. 264 
 Dafoe V. Johnstown, &c. Ins. Co. 365 
 Dahlberg v. St. Louis Mutual Fire 
 
 & M. Ins. Co. 144 C, 365 B 
 
 Dailey v. Preferred Masonic Mut. 
 
 Ace. Ass'n 56 A, 306, 357, -368 
 
 V. Westchester Fire Ins. Co. 276. A 
 
 Dakin v. Liverpool, &c. Ins. Co. 283 
 
 Dalbier v. Agricultural Ins. Co. 590 
 
 Ualby V. India & London Life Ins. 
 
 Co. 7, 8, 115, 116, 117 
 
 Dale V. Continental Ins. Co. 70 C 
 
 Daly V. John Hancock Ins. Co. 299 
 
 V. Nat., &c. Ins. Co. 577 
 
 Damron v. Peun. Mut. Life Ins. 
 
 Co. 399 Q 
 
 Dan V. Whetten 29 B 
 
 Dana v. Munro 549 
 
 Daniel v. Robinson 278 
 
 Daniels v. Citizens' Ins. Co. 577 
 
 o. Equitable Fire Ins. Co. 220, 466 
 
 «. Hudson R. Fire Ins. Co. 66, 156, 
 
 162, 179, 181, 184, 199,408,580 
 
 Darrell v. Tibbetts 456 a 
 
 Darrow v. F. F. Soc. 170, -327 A, 563 A 
 
 Date V. Gore District Mut. Ins. Co. 226 
 
 Daul V. Firemen's Ins. Co. 430, 469 
 
 Davega v. Crescent Mut. Ins. Co. .566 
 
 Davenport v. Long Island Ins. Co. 
 
 496 B 
 
 V. N. E. Mut. Ins. Co. 290 
 
 V. Peoria Ins. Co. 144 
 
 Davey v. iEtna Life Ins. Co. 301 
 
 Section 
 
 Davey v. Glens Falls Ins. Co. 148, 249 1 
 
 David V. Hartford Fire Ins. Co. 288, 365 
 
 u. Oakland. Home Ins. Co. 469 D 
 
 V. Williamsburgli, &c. Ins. Co. 
 
 87 A, 285 
 
 Davidson v. Guardian Ass. Co. 138 
 
 V. Hawkeye Ins. Co. 267 
 
 V. Old People's Mut. Ben. Ass. 64 A 
 
 V. Phoenix Ins. Co. 478 
 
 Davies v. Home Ins. Co. 82 
 
 V. National M. Ins. Co. 158 
 
 Davies' Policy Trusts, In re 399 D 
 
 Davis V. ./Etna Mut. F. Ins. Co. 125, 
 
 184, 401 B 
 
 V. Anchor Mutual F. Ins. Co. 494 
 
 V. Atlas Ass. Co. 492 
 
 V. Canada, &c. Ins. Co. 488 
 
 V. Davis 461 
 
 V. German Am. Ins. Co. 878 
 
 V. la. State Ins. Co. 289 
 
 V. Mass. Ins. Co. 492 
 
 V. Mass. Mut. Fire Ins. Co. 56 
 
 V. Niagara Fire Ins. Co. 138 C, 
 
 459 G 
 
 V. Phoenix Ins. Co. 83 a, 287 B, 
 
 294 E 
 
 u. Pioneer Furniture Co. 239 A, 
 
 256, 287 B 
 
 V. Quincy Mut. Fire Ins. Co. 267, 
 
 285, 458 
 
 V. Scottish Prov. Ins. Co. 143, 166 
 
 V. United States 323 
 
 o. Western Home Ins. Co. 222, 
 
 239 A, 401 B 
 
 Davis Shoe Co. i\ Kittanninglns. 
 
 Co. 469 C 
 
 Davison v. London & L. F. Ins. 
 
 Co. 67, 567 
 
 Davy V. Hallett 422 A 
 
 Dawes v. North River Ins. Co. 147 
 Dawson v. Fitzgerald 494 
 
 Day V. Case 399 N 
 
 V. Charter Oak Fire & Mar. 
 
 Ins. Co. 74, 189, 277, 287 
 
 V. Conn. Gen. Life Ins. Co. 356, 569 
 V. Conway Ins. Co. 261 
 
 V. Dwelling-House Ins. Co. 250, 
 511 
 V. Hawkeye Ins. Co. 276 C 
 
 V. Mechanics' and Traders' 
 
 Ins. Co. 24 A 
 
 V. Mill Owners' Mut. Fire Ins. 
 
 Co. 253 A 
 
 V. Mut. Ben. Life Ins. Co. 190, 201, 
 
 355, 477 
 
 V. N. E. Life Ins. Co. 459 G 
 
 Dayton Ins. Co. o. Kelley 14, 22, 23, 
 
 126, 129, 166, 365, 497 
 
 Dayton Union Ins. Co. i;. McGookey 148 
 
 Dean v. ^tna Life Ins. Co. 134 
 
 xxxi 
 
TABLE OF CASES. 
 
 [The references are to the aectionfl.] 
 
 Section 
 Dean v. Am. Life Ins. Co. 310, 312, 313, 
 
 316 
 Dean and Chapter of Norwich 592 
 Dean & Son's Appeal 459 E 
 
 Dear v. "Western Ass. Co. 446 
 
 Dearborn v. Cross 24 A 
 
 Dearie v. Hall 395 
 
 De Armand v. Home Ins. Co. 287 C 
 De BoUe' v. Penn. Ins. Co. 447 A, 579 
 De Camp v. New Jersey Mut. Life 
 
 Ins. Co. 56, 190 
 
 Deuatur Bank v. St. Louis Bank 420 
 Deeheance et aut. u. Comp. d'Ass. 539 
 Deem v. Millikin 407 
 
 De Forest v. Fulton Fire Ins. Co. 78, 
 80, 180, 424, 448 
 De Frece v. National L. Ins. Co. 356 A 
 De Gogorza v. Knickerbocker Life 
 
 Ins. Co. 322 
 
 De Graff v. Queen Ins. Co. 175, 401 C 
 De Graw v. Nat'l Accident Soc. 520 A 
 De Grove !). Metropolitan Ins. Co. 23 
 De Hahn v. Hartley 575 
 
 De Jonge v. Goldsmith 399 Q 
 
 Deier v. Continental Life Ins. Co. 298 
 Deitrich v. Madison Rel. Ass. 390, 
 
 550 a 
 Deitz V. Ins. Co. 124 A, 144 D, 144 E, 
 
 294 E 
 u. Mound City Mut. Fire & 
 
 Life Ins. Co. 372 D 
 
 V. Providence- Washington Ins. 
 
 Co, 566 
 
 Delaliay w. Memphis Ins. Co. 215,215 a 
 Delancey v. Rockingham Mut. 
 
 Fire Ins. Co. 143,180 a 
 
 Delavigne v. U. S. Ins. Co. 567 
 
 Delaware Farmers' Mut. Fire Ins. 
 
 Co. y. Wagner 547 a 
 
 Delaware Ins. Co. v. Hogan 566 A 
 
 V. Quaker City Ins. Co. 12 
 
 Delonguemare v. Tradesman's Ins. 
 
 Co. 159, 162, 177, 239, 428 
 
 Delouche v. Met'n L. Ins. Co. 144 D, 
 
 399 Q 
 De Loy v. Travelers' Ins. Co. 531 A 
 Demill v. Hartford Ins. Co. 371, 378 
 Doming v. Merchants' Cotton-press 
 
 Co. 434 
 
 Demings v. Knights of Pythias 557 
 
 Denkler v. Ins. Co. 244 
 
 Dennis v. Mass. Ben. Ass. 560 B 
 
 V. Union Mut. L. Ins. Co. 325 
 
 Dennison v. Phoenix Ins. Co. 248 
 
 V. Thomaston Mut. Ins. Co. 202, 
 
 207, 210, 259 
 
 Denniston v. Imbrie 42 
 
 Denny v. Conway Stock & Mut. 
 
 Fire Ins. Co. 141, 159 
 
 Denton v. G. N. Railway Co. 188 F 
 
 xxxii 
 
 Section 
 D'Orlu u. Bankers & M. M. L. 
 
 Ass'n 340 
 
 Depaba v. Ludlow 76 
 
 De Peyster v. Am. Fire Ins. Co. 594 a 
 Deraismes v. Merchants' Mut. Ins. 
 
 Co. 549 ft 
 
 Dermani v. Home Ins. Co. of N.Y. 279 
 Derrick v. Lamar Ins. Co. 488 
 
 Desilver v. State Mut. Ins. Co. 471, 505 
 Des Moines Ice Co. u. Niagara F. 
 
 Ins. Co. 247, 401 a 
 
 Detroit Manufacturers' Mut. Fire 
 
 Ins. Co. V. Merrill 557 
 
 Deusen v. Charter Oak Fire & 
 
 Mar. Ins. Co. 270 
 
 De Van v. Commercial Travelers' 
 
 Mut. Ace. Ass'n 517 A 
 
 Devendorf u. Beardsley 133, 552, 557, 
 591, 594 
 Devens v. Merchants', &c. Ins. Co. 507 
 Devereux v. Insurance Co. 67 L 
 
 V. Sun Fire Office 566 A 
 
 Devine v. Home Ins. Co. 248 
 
 Dewees v. Manhattan Ins. Co. 156, 183 
 DeWitt V. Home Forum Benefit 
 
 Order 299 
 
 DeWolf V. Capital City Ins. Co. 294 C 
 
 V. N. Y. Firemen's Ins. Co. 215 C 
 
 Dey V. Poughkeepsie Mut. Ins. Co. 264, 
 
 279, 386 
 
 Dezell V. Odell 502 
 
 Dial V. Valley Mut. Life Ass. 469 C, 
 
 560 B, 579 A 
 
 Dibble v. Northern Ass. Co. 3 
 
 Dibbrell v. Georgia Home Ins. Co. 138 
 
 DiboU V. Mtna, Life Ins. Co. 135, 362 
 
 Dick V. Equitable F. & M. Ins. Co. 138, 
 
 469 D 
 V. Franklin Ins. Co. 457 
 
 Dickerman v. Quincy Mut. F. Ins. 
 
 Co. 126 
 
 V. Vermont Mut. F. Ins. Co. 590 
 
 Dickie y Merchants' Mut. Ins. Co. 402 
 
 V. Western Ass. Co. 479 
 
 Dickinson County v. Miss. Valley 
 
 Ins. Co. 126 
 
 Dickson v. Eq. Fire Ins. Co. 373 
 
 V. Provincial Ins. Co. 190, 365, 502 
 Diebold v. Phoenix Ins. Co. 144 A 
 
 Diedericks y. Com. Ins. Co. 278 
 
 Diedrich v. N. W. Co. 390 
 
 Diehl V. Adams County Mut. Ins. 
 
 Co. 218, 227, 247, 508, 552 
 
 Dietz V. Knickerbocker Life Ins. 
 
 Co. 345 a 
 
 Diffenbaugh w. Union F. Ins. Co. 81, 
 
 287 B 
 
 Dillard v. Manhattan Life Ins. Co. 39, 
 
 39A, 40, 3.34, 350 a 
 
 Dilleber v. Home Life Ins. Co. 166, 304 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Dilleber c^. Knickerbocker Life 
 
 Ins. Co. 135, 304, 358 
 
 Dilling y. Draemel 453 
 
 Diman v. Prov., &c. R. R. Co. 566 
 
 Dingee v. Agr. Ins. Co. 145 
 
 Dinning w. Plioenix Ins. Co. 56, 70 B 
 Uircks V. German Ins. Co. 137 A 
 
 Disbrow v. Jones 6 
 
 Dittmer v. Germania Ins. Co. 230 
 
 Ditwiller ;;. Phoenix Fire Ins. Co, 239 
 Dix u. Mercantile Ins. Co. 277, 280, 
 
 281 
 Dixon V. National L. Ins. Co. 83, 379, 
 
 398 
 
 V. Sadler 408 
 
 Doane v. Milville Ins. Co. 64 A, 67 
 
 Dobson V. Laud 116 
 
 V. Sotheby 241, 242, 262 
 
 Dobyns v. Bay State Ben'y Ass'n 359 
 
 Dodd V. Home Mut. Ins. Co. 70 B 
 
 V. Jones 399 B 
 
 Dodge V. Essex Ins. Co. 566 
 
 V. Hamburg-Bremen F. Ins. 
 
 Co. 275 
 
 Dodge Co. Mut. Ins. Co. v. Rogers 143 
 
 Doe V. Dixon 172 A 
 
 V. Knight 60 
 
 V. Nepean 465 
 
 'Dogge !>. North Western Ins. Co. . 386, 
 
 477 
 Dohn V. Farmers', &c. Ins. Co. 166, 
 285, 290, 292 
 Dolan V. Missouri Town Mut. F. 
 
 Ins. Co. 156 
 
 V. Mutual Reserve Fund Life 
 
 Ass'n 156, 294 C, 305 
 
 Dolliver v. St. Joseph, &c. Ins. Co. 287, 
 
 466 
 Dolmo V. Farmers' Joint Stock 
 
 Ins. Co. 285 
 
 Donahue v. Windsor Co. Mut. Fire 
 
 Ins. Co. 462, 469, 508. 589 
 
 Donald v. Piedmont, &c. Life Ins. 
 
 Co. 65, 357 
 
 Donaldson v. Ins. Co. 83, 90, 446 
 
 V. Manchester Ins. Co. 366 
 
 Donnell v. Donnell 112, 459 E 
 
 Donnelly v. Cedar Rapids Ins. Co. 
 
 144 C 
 Donogh V. Farmers' F. Ins. Co. 365 B 
 Dooly V. Hanover F. Ins. Co. 285 
 
 Doran v. Franklin Fire Ins. Co. 366 
 Dorey v. Met'n L. Ins. Co. 298 
 
 Dorion v. Pos. Gov. Life Ass. Co. 358 
 Dormay v. Borradaile 323 
 
 Dorn V. Germania Ins. Co. 224 
 
 Dorr V. Hope Ins. Co. 174 
 
 Dougherty v. Neal 350 
 
 Douglass V. White 452 F 
 
 DouU V. Western Ass. Co. 483 
 
 VOL. I. — c ' 
 
 Section 
 Dover Glass Works Co. v. Ameri- 
 can F. Ins. Co. 70 a, 253, 291 A 
 Dow V. Phoenix, &c. Ins. Co. 344 a 
 Dowd V. American Fire Ins. Co. 288 
 Dowling V. Lancashire Ins. Co. 126, 
 
 263 E 
 
 V. Merchants' Ins. Co. 256 
 
 Downey v. Hoffer 398 
 
 Dows V. Faneuil Hall Ins. Co. 418 
 
 V. Insurance Co. 412 
 
 Doyle V. City of Glasgow L. A. 
 
 Co. 465 
 
 V. Continental Ins. Co. 678 
 
 V. Phoenix Ins. Co. 589 
 
 Dozier u. Fidelity Co. 517 A 
 
 Drake v. Farmers' Union Ins. Co. 497 
 
 c-. Rollo 595 
 
 B.Stone 399 N 
 
 Draper v. Charter Oak Ins. Co. 122, 
 
 145, 185 
 
 V. Com. Ins. Co. 156 
 
 Dreher v. iEtna Ins Co. 280 
 
 Dresser v. United Firemen's Ins, 
 
 Co. 279, 294 E 
 
 Driggs V. Albany Ins. Co. 70 A, 190 
 Drinkwater v. London Ins. Co. 408 
 Dryer v. Security F. Ins. Co. 144 D, 
 
 401a 
 Drysdale r. Pigot 108 
 
 Dual V. Firemen's Ins. Co. 477 
 
 Dube n. Fire Ins. Co. 379 
 
 Ducat V. Chicago 578 a 
 
 Duckett V. Williams 156, 202, 297 
 
 Duelos V. Citizen's Mut. Ins. Co. 364 A 
 Dudley v. Wells 25 
 
 Dufaur o. Professional Life Ins. 
 
 Co. 310, 324, 305 
 
 Duke of Hamilton's Trustees v. 
 
 Flemming 450 
 
 Duluth Nat. Bank v. Knoxville 
 
 Fire Ins. Co. 130 A 
 
 Dumas v. Jones 424 
 
 Dunbar v. Phenix Ins. Co. 29 C, 144 C, 
 
 501 
 
 Duncan v. Green 179 D 
 
 V. Great Western Ins. Co. 276 B 
 
 V. New York Mut. Ins, Co, 67 L 
 
 V. Sun Fire Ins. Co. 162, 231, 445 
 
 V. Topham 49, 51 
 
 V. United States 66 A 
 
 Dunham v. Morse 360 
 
 Dunlap V. Higgins 48 
 
 Dunlop V. Avery 452 C 
 
 Dunn V. Commonwealth Ins. Co. 442 
 
 Dupin V. Mutual Ins, Co, 403 
 
 Dupreau v. Insurance Co, 287 C 
 
 Dupree v. Virginia Home Ins, Co, 
 
 188 C 
 Dupuy u. Delaware Ins. Co. 247, 
 
 294 E 
 
 xxxiii 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Durand v. Thouron 80, 122 A 
 
 Durar v. Hudson County Mut. 
 
 Ins. Co. 139, 383, 387 
 
 Durham «. Fire & Mar. Ins. Co. 287 C 
 Durrant v. Brank 278 
 
 V. Friend 452 A 
 
 Durrell v. Bederly 216 A 
 
 Dutcher v. Brooklyn Life Ins. 
 
 Co. 344 a, 344 H 
 
 Button u. N. E. Mut. Fire Ins. 
 
 Co. 269, 294 
 
 V. Vt. Mut. Ins. Co. 491 
 
 V. Willner 67 B 
 
 Duvall V. Goodson 390 
 
 Dwelling-House Ins. Co. u. Brew- 
 ster 469 C 
 V. Dowdall 469 D 
 V. Hoffman 292 A 
 i;. Jolinson 589 
 «. Kansas Loan & Trust Co. 478 
 V. Osborn 248, 469 D, 479 
 Dwight v. Germania Life Ins. Co. 156, 
 298, 399 F, 399 G, 3991 
 Dwyer v. Continental Ins. Co. 407, 
 
 583 
 V. Edie 108 
 
 Dyer v. Piscataqua Fire & Mar. 
 Ins. Co. 691 
 
 E. 
 
 Eadie v. Slimmon 391, 397, 399 
 
 Eagan v. .^^tna, &c. Ins. Co. 294 b, 575 
 V. Fireman's Ins. Co. IB 
 
 Eager K. Atlas Ins. Co. 179B 
 
 Eagle Fire Co. v. Globe Loan & 
 
 Trust Co. 365 
 
 Eagle Ins. Co. u. Lafayette Ins. 
 
 Co. 11, 11 A, 12, 478 
 
 Eakin u. Home Ins. Co. 164, 873 A, 
 
 420 A 
 Fames v. Home Ins. Co. 48, 51, 120, 
 
 144 
 Early v. Standard L. Ins. Co. 324, 
 
 517 A 
 Earnshaw v. Stewart 391 B 
 
 Easley v. New Zealand Ins. Co. 55 a, 
 
 340 
 Eastabrook u. Union Mut. Life 
 
 Ins. Co. 311, 313 
 
 Eastern K. R. Co. v. Relief Fire 
 
 Ins. Co. 80, 94, 98, 151, 1-58, 468 
 
 Eastman y. Carrol Co. Mut. Fire 
 
 Ins. Co. 384 
 
 East Texas F. Ins. Co. ,j. Blum 67 G, 
 
 125, 364 
 
 V. Clarke 269 
 
 V. Crawford 287 B 
 
 V. Dyohes 289, 469 C, 589, 590 
 
 xxxiv 
 
 Section 
 East Texas F. Ins. Co. u. Flippin 
 
 67, 365 
 V. Harris 263 A 
 
 V. Kempner 230, 248 
 
 V. Mims 345 E, 360 B 
 
 v. Perkey 860 
 
 Eaton V. Atlas Ace. Ins. Co. 306 
 
 u. Granite State Provident 
 
 Ass'n 126 
 
 Ebsworth v. Alliance Ins. Co. 78, 81 
 Eckel V. Renner 398 A 
 
 Eclectic Ins. Co. v. Fahrenkrug 126, 
 135, 154, 295, 362 
 Eclipse Ins. Co. v. Schcsner* 512 . 
 
 Eddy V. Hawkeye Ins. Co. 188 C, 
 249 D, 292 B 
 u. London As. Corp. 364 
 
 r. Phoenix Mut. Life Ins. Co. 560B 
 Eddy St. Iron Foundry o. Far- 
 mers' Mut. Ins. Co. 188 A, 375, 401 a 
 Edeek v. Ranuer 25 
 
 Edes V. Hamilton Mut. Ins. Co, 379 
 Edge V. Duke 362 
 
 Edgerly v. Farmers' Ins. Co. 466, 589 
 Edington v. JEtna. Life Ins. Co. 188 C, 
 215, 295 
 V. Mutual Life Ins. Co. 158, 212, 
 304 
 Edmands v. Mutual Safety Fire 
 
 Ins. Co. 271 
 
 Edson V. Merchants' Mut. Ins. 
 
 Co. 488 
 
 Educational Endowment Ass'n, 
 
 In re 594 
 
 Edwards v. Agricultural Ins. Co. 379 
 
 V. Baltimore Ins. Co. 462, 464 
 
 V. Barrow 215 
 
 V. Footner 188 E 
 
 V. Martin 396 
 
 V. Scott 396 
 
 V. Travelers' Life Ins. Co. 464 
 
 Egan V. Fireman's Ins. Co. 120 
 
 V. Mut. Ins. Co. 425 
 
 V. Oakland Ins. Co. 479 
 
 Eggleston v. Centennial Mut. Life 
 
 Ins. Ass. 563 A 
 
 V. Council Bluffs Ins. Co. 465, 488 
 Ehrman v. Teutonia Ins. Co. 577 
 
 Ehrsam Machine Co. v. Phenix 
 
 Ins. Co. 267 
 
 Eilenberger u. Protective Mut. 
 
 Ins. Co. 133, 140, 145, 552 
 
 Eiseman v. Hawkeye Ins Co. 497 
 
 Eisner v. Guardian Life Ins. Co. 298 
 Ela V. French 22 
 
 Elgutter V. Mutual Reserve Fund 
 
 L. Ass'n 590 
 
 Eliason v. Henshaw 50 
 
 Eliot Five Cents Savings Bank v. 
 Com. Ass. Co. 433 A, 457 C, 469 B 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Elkhart Mut. Aid, &c. Ass. v. 
 
 Houghton 75 B, 399 E, 663 A 
 
 Elkins V. Susquehanna Mut. Fire 
 
 Ins. Co. 360 A 
 
 Ellerbe u. Faust 594 
 
 u. United Masonic Ben. Ass'n 594 
 Ellerson v. Westcott 407 
 
 EUicott V. V. S. Ins. Co. 73, 97, 446, 645 
 Elliott V. Ashland Mut. Fire Ins. 
 
 Co. 287 C 
 
 V. Hamilton Mut. Ins. Co. 101, 
 
 19.S, 23-3, 239 
 
 V. Lycoming, &c. Ins. Co. 277, 
 
 372, 602, 505 
 
 V. Merchants' & Bankers' F. 
 
 Ins. Co. 430 
 
 V. Royal Exch. Ass. Co. 494 
 
 V. VVhedbee 399 F 
 
 Ellis V. Albany City Fire Ins. Co. 59, 
 
 65, 191 
 V. Buzzell 378 A, 683 
 
 V. Council Bluffs Ins. Co. 479 
 
 V. Ins. Co. 22, 287 C 
 
 V. Kreutzinger ' 379 
 
 V. Mass. Mut. L. Ins. Co. 345 E 
 u. North Am. Ins. Co. 407 
 
 V. State Ins. Co. 878 A 
 
 Ellison V. Tuttle 459 S 
 
 EUniaker v. Franklin Fire Ins. 
 
 Co. 420 
 
 Elstner v. Cincinnati Eq. Ins. Co. 586 
 Elwell V. Crocker 549 
 
 Ely V. Ely 466 
 
 Embler v. Hartford Steam Boiler 
 
 Inspection & Ins. Co. 2 
 
 Embree v. Shideler 557 
 
 Emerick'j). Coakley 390 
 
 Emerson v. Murray 29 A 
 
 Emery v. Boston Marine Ins. Co. 23 C 
 w. Mut. City, &c. Fire Ins. Co. 365 B 
 V. Piscataqua Fire & Mar. 
 
 Ins. Co. 131, 180 a 
 
 Emigh V. State Ins. Co. 589 
 
 Eminence Mut. Ins. Co. v. Jesse 287, 
 
 289, 294 D 
 
 Emmott V. Slater Mut. Fire Ins. 
 
 Co. 68 
 
 Empire State Ins. Co. v. Am. Cen- 
 tral Ins. Co. 125 
 Employers' L. Ass. Co. o. Merrill 2 
 Emulous, The 36 
 Engelbretson, u. Hekia Fire Ins. 
 
 Co. 465 
 
 England v. Tredegar 444 
 
 V. Westchester F. Ins. Co. 247 
 
 English V. Franklin Ins. Co. 401 B 
 
 Ennis v. Harmony Fire Ins. Co. 446, 
 
 449 
 
 Enos V. St. Paul F. & M. Ins. Co. 477 
 
 ■ V. Sun Ins. Co. 137 A, 511 
 
 Section 
 
 Ensworth v. N. Y. Life Ins. Co. 576, 
 
 582 
 Enterprise Ins. Co. v. Parisot 408, 
 
 469 C 
 Epes V. Arlington Ins. Co. 305 
 
 Eppinger v. Canepa 399 I, 459 C 
 
 Epstein v. State Ins. Co. 666 
 
 Equitable F. Ins. Co. v. Alexan- 
 der 369 
 V. Quinn 424 
 Equitable Ins. Co. u. Cooper 385 A 
 u. Heariie 566 A 
 o. McCrea, &c. 360 A, 366 B 
 V. McLennan 341 
 Equitable Life Ass. Co. v. Brobst 
 
 154 A 
 V. Paterson 107 b, 186, 295, 321, 
 573 
 Equitable L. Ass. Society v. Clem- 
 ents 66 A, 69 a 
 V. McElroy 56 A, 70 C, 159, 399 D 
 V. Trimble 66 
 V. Winning 66 A 
 Equitable Life Ins. Co. v. Poe 138 
 Equitable Reserve Fund L. Aps'n, 
 
 In re ' 276 A, 594 
 
 Erb i: German-American Ins. Co. 405 
 Erhman v. Teutonia Ins. Co. 577 
 
 Erman v. Sun Mut. Ins. Co. 477 
 
 Erraentrout v. Girard F. & M. 
 
 Ins. Co. 402 
 
 Erwin v. Springfield Fire and 
 
 Mar. Ins. Co. 462, 475 
 
 Essex Savings Bk. v. Meriden Ins. 
 
 Co. 276 C, 285 
 
 Estate of Madeira 399 I 
 
 Estate of Malone 395 
 
 Estate of Trough 395 
 
 Eureka Ins. Co. v. Baldwin 248, 500 
 
 V. Robinson 23, 424 
 
 Evans v. Bignold 113 
 
 V. Columbian Ins. Co. 239, 418 
 
 V. Edmonds 591 
 
 V. Trimountain Mut. Fire Ins, 
 
 Co. 146, 594 
 
 V. U. S. Life Ins. Co. 335, 352 
 
 Everett v. Continental Ins. Co. 219, 
 
 256, 420 
 
 V. Desborough 123, 213, 304 
 
 V, London & Lancashire Ins. 
 
 Co. 1.38 
 
 V. London Ass. Co. 414 
 
 V. Niagara Ins. Co. 479 
 
 Evers v. Life Ass. 390 
 
 Evirer V. Washington Ins. Co. 579 B 
 
 Excelsior Fire Ins. Co. v. Royal 
 
 Ins. Co. 45a, 116, 420, 424, 456, 
 
 456 a, 457 
 
 Excelsior Mut. Aid Ass. v. Riddle 590 
 
 Exchange Bank v. Loh 83 
 
 XXXV 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Fabbri v. Phoenix Iiis. Co. 172 A 
 
 ITabyan v. Union Mut. Fire Ins. 
 
 Co. 67, 364 A 
 
 Fair v. Manhatten Ins. Co. 401 a 
 
 Fairchild v. Liverpool, &c. Ins. Co. 43t5 
 V. North Eastern Mut. Life 
 
 Ass. 112,303 
 
 Fairfield Packing Co. v. Southern 
 
 Mut. Fire Ins. Co. 477 
 
 Falls V. Conway Mut. Fire Ins. 
 
 Co. ' 287 
 
 Fame Ins. Co. v. Mann 124 A 
 
 V. Norris 452 F 
 
 V. Thomas 185, 207 
 
 Fame Ins. Co.'s Appeal 12 N 
 
 Faneuil Hall Ins. Co. v, Liver- 
 pool, &a. Ins. Co. 12 
 Farley u. Union Mut. Life Ins. 
 
 Co. 344 H 
 
 Farmers' Bank v. Maxwell 345 
 
 Farmers' Ins. Co. c. Archer 276 A 
 0. Ashton 282 
 
 V. Butler 31 
 
 V. Chase 557, 659 
 
 V. Chesnut 501 
 
 V. Curry 180 a, 247, 287 
 
 V. Fogleman 285 
 
 V. Johnston 453 
 
 V. Mispelhorn 465 
 
 V. Moyer 469 
 
 V. Munn 140 
 
 Farmers' Ins. & Loan Co. v. Sny- 
 der 184, 256 
 Farmers' Mut. Fire Ins. Co. v. 
 
 Gargett 583, 591 
 
 V. Marshall 133 
 
 V. Moyer 218, 469 
 
 V. Schaefier 239 A 
 
 W.Taylor 132, 143. 365 a, 385 
 
 Farmers' Mut. Ins. Co. v. Barr 478 
 V. Graybill 264, 438, 448 
 
 ... Kryder 420 
 
 V. Turnpike Co. 76 A 
 
 v. Wenger 69 a, 385, 401a 
 
 Farmers' & Drovers' Ins. Co. ■;;. 
 
 Curry 156 
 
 Farmers' & Mechanics' Bank v. 
 
 Dearing 23 D 
 
 Farmers' & M. Ins. Co. v. Gra- 
 ham 126 
 V. Jensen 6, 264 
 V. Simmons 241 
 u. Wiard 345 E 
 Farmers' & Mer. Ins. Co. u. Ches- 
 nut 502 
 Farmers,' &c. Ins. Co. v. Bowen 553 
 V. Harmony, &o. Ins. Co. 420 
 V. Meekes 473 
 V. Smith 593 
 
 xxxvi 
 
 Section 
 Farmers' Union Ins. Co. v. "Wilder 360 
 Fannington Bank v. Fall 23 D 
 
 Farmville Ins., &c. Co. v. Butler 
 
 287 A, 666 B 
 
 Farnum v. Phenix Ins. Co. 67, 151, 
 
 359, 360, 494 
 
 Farrell v. iEtna Fire Ins. Co. 423 A 
 
 V. German-American Ins. Co. 478, 
 
 496 B 
 
 Farrell Foundry v. Dart 133 D 
 
 Faulkner v. Central Fire Ins. Co. 242 
 
 V. Mancliester Fire Ass. Co. 261, 
 
 465 
 
 Faunce v. State Mut. Life Ass. Co. 56 
 
 Fauntleroy's Case 323 
 
 Faust V. American F. Ins. Co. 177, 
 
 239, 239 A, 469 C 
 
 Fawcett v. Liv., Lon., & Globe 
 
 Ins. Co, 465, 466 
 
 Fay V. Alliance Ins. Co. 587 B 
 
 Fayerweather v. Phenix Ins. Co. 
 
 41 1 A, 457 B 
 Fayette Co. Ins. Co. v. Neel 386 
 
 Fayette Mut. Fire Ins. Co. v. Ful- 
 ler 559, 560, 562 
 Fayles v. National Ins. Co. 137 
 F. Dohmen Co. v. Niagara F. Ins. 
 
 Co. 30 
 
 Fearn v. "Ward 459 C 
 
 Fearnley v. Lon. Guarantee Soc. 541a 
 Feder v. Iowa State Traveling 
 
 Men's Ass'n 515 a 
 
 Feeney v. People's Fire Ins. Co. 590 
 Feibelman v. Manchester F. Ass. 
 
 Co. 405 
 
 Feise v. Aguila 30 
 
 V. Parkinson • 567 
 
 Felix V. Grand Lodge A. 0. U. "W. 
 
 399 D 
 
 Fell V. McHenry 652 
 
 Felrath v. Sehonfield 459 C 
 
 Fenn v. Craig 67 M 
 
 t;. Lewis 399 F 
 
 V. N. Orleans Mut. Ins. Co. 77 
 
 V. Union Central L. Ins. Co. 
 
 345 E, 399 D 
 Ferdon v. Canfield 391 
 
 Ferguson v. Mass., &c. Ins. Co. 398 
 Fernandez v. Merchants' Mut. Ins. 
 
 Co. 404 
 
 Ferree v. Oxford Fire Ins. Co. 380 
 Ferrer v. Home Mut. Ins. Co. 158, 589, 
 
 590 
 Ferriss v. N. A. Fire Ins. Co. 591 
 
 Feshe v. Council Bluffs 249 
 
 Fessenden v. Great West Ins. Co. 381 
 Fidelity & Casualty Co. v. Alpert 
 
 158, 181 
 V. Ballard 14 
 
 V. Chambers 53IA 
 
TABLE 01' CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Fidelity & Casualty Co. v. Eick- 
 
 lioff 2 
 
 V. Johnson 515 a, 531 A 
 
 «. Lowenstein 517 A, 523 A 
 
 V. Sittig 531 A 
 
 ^. Teter 126 
 
 V. Waterman 324, 523 A 
 
 V. Weise 325 
 
 V. VVilley 70 B 
 
 Fidelity Mut. L. Ass'n v. Fioklin 
 
 66, 156, 303, 306 
 
 V. Miller 156, 158, 187, 298, 325, 
 
 31)4 
 
 Field V. City of Des Moines 403 
 
 V. N. Y. Cent. R. R. Co. 459 
 
 Finch V. Modern Workmen of 
 
 America 303 
 
 Findeisen v. Metropole Fire Ins. 
 
 Co. 465, 469 B, 508 
 
 Finley v. Lycoming Co. Mut. Ins. 
 
 Co. 280, 506, 553 
 
 Finney v. Bedford Com. Ins. Co. 472 E 
 
 u. Fairhaven Ins. Co. 452 E 
 
 u. Warren Ins. Co. 424 
 
 Fire Ass. v, Blum 452 F 
 
 V. Rosentlial 433 A 
 
 Fire Ass'n of Phila. o. MoNerney 475 
 
 V. Williamson 227, 277 
 
 Fire Ins. Ass. v. Can. Fire & Mar. 
 
 Ins. Co. 12 B 
 
 V. Miller 30, 282 A, 589 
 
 Fire Ins. Co. v. Building Ass. 126, 
 
 282 A 
 
 u. Felrath 409 B, 449, 470 
 
 (/. Merchants', &c. Trans. Co. 95 A, 
 
 408 
 
 Fire & Mar. Ins. Co. v. Chesnut 131, 
 
 452 F, 502 
 
 V. Morrison 116, 267 
 
 Fireman's I<'undlns. Co. v. Buck- 
 
 stafiF 479 
 
 V. Pekor 70 B 
 
 Fireman's Ins. Co., In re 594 
 
 V. Holt 365 
 
 «. Powell 96 
 
 Firemen's Ins. Co. u. Appleton 
 
 Paper Co. 240 
 
 u. Crandall 469 B 
 
 ^. Floss & Co. 70 B, 100 A, 279, 
 469 
 V. Horton 125 
 
 Firemen's, &c. Ins. Co. v. Congre- 
 gation, &c. 412 
 First Cong. Church v. Holyoke 
 
 M. F. Ins. Co. 239 A, 240 
 
 First National Bank v. American 
 
 Central Ins. Co. 270, 368, 
 
 469 C 
 
 u. Ins. Co. ofN A. 252 
 
 V. Lancashire Ins. Co. 40 C 
 
 Section 
 Fischer v. Hope Ins. Co. 12, 568, 569 
 V. Travelers' Ins. Co. 520 A 
 
 Fish V. Cottenet 18, 25, 57, 64, 133 C 
 Fishback v. Phenix Ins. Co. 143, 365, 
 370, 372 
 Fisher v. Donovan 2, 83 
 
 V. Metropolitan Life Ins. Co. 358 
 Fitch V. Am. I'op. Life Ins. Co. 156, 
 161, 185, 188, 210, 324, 344 a 
 Fitchburg R. R. Co. «. Charles- 
 town Mut. Fire Ins. Co. 219, 420 
 Fitchburg Savings Bank v. Ama- 
 zon Ins. Co. 379 
 Fitclmer v. Fidelity Mut. F. Ass'n 269, 
 
 566 
 Fitchpatrick v. Hawkeye Ins. Co. 504 A 
 Pitt V. Fire Ins. Ass. 55 A 
 
 Fitton V. Accidental Death Ins. 
 
 Co. 518 
 
 V. Phoenix Ass. Co. 4.34 
 
 Fitzgerald v. Conn. Fire Ins. Co. 249 H 
 
 Fitzlierbert v. Mather 122, 213 
 
 Fitzpatrick v. Hartford Life & Ann. 
 
 Ins. Co. 398 A, 502 
 
 Fitzsimmons v. City Fire Ins. Co. 434, 
 
 590 
 Flannagan v. Camden Mut. Ins. 
 
 Co. 447 
 
 Fleisch v. Ins. Co. of No. America 
 
 407 A, 477 
 Fleming v. Hartford Fire Ins. 
 
 Co. 1.38A, 447A, 447B 
 
 Fletcher v. JEtna Life Ins. Co. 279, 
 
 568, 569 
 
 V. Commonwealth Ins. Co. 81, 96, 
 
 185, 285 
 
 V. German-American Ins. Co. 462 
 
 V. N. Y. Life Ins. Co. 144 E, 578 a 
 
 Flindt V. Waters 350 
 
 Flinn v. Headlaw 188 B 
 
 Flint V. Ohio Ins. Co. 44, 63, 340 
 
 V. Railway Co. 459 
 
 Flynn v. Bq. Life Ass. Soc. 123, 303 
 
 V. Mass. Benefit Ass'n 187, 465, 
 
 590 
 
 0. Merch. Mut. Ins, Co. 591 
 
 K. N. A. Ins. Co. 446 
 
 Fogg V. Griffin 133, 552 
 
 V. Middlesex Mut. Fire Ins. 
 
 Co. 145, 276, 379, 385 
 
 Folb V. Phoenix Ins. Co. 365 
 
 Foley V. Manufacturers' F. Ins. 
 
 Co. 95 A 
 
 u. Royal Arcanum 156, 287 B 
 
 V. Tabor 207 
 
 Folger V. Columbian Ins. Co. 592 
 
 Follette V. U S. Mut. Ace. Ass'n 187 
 
 Follis V. U S. M. A. Ass'n 531 A 
 
 Folsom V, Belknap Co. Mut. Fire 
 
 Ins. Co. 269, 447 
 
 xxxvii 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 
 Folsom V. Brawn 583 
 
 Foot V. Mtna. Life Ins. Co. 144 G, 
 
 156, 158 
 
 Foote V. Hartford Fire Ins. Co. 264 
 
 Forbes v. Agawam Mut. Ins. Co. 152, 
 
 369, 506, 
 
 V. American Ins. Co. 222, 261, 420 
 
 u. Am. Mut. Life Ins. Co. 107 a, 
 
 112, 336, 590 
 
 V. Aspinwall 30 
 
 V. Edinburgh Life Ass. Co. 123, 
 
 166, 200, 212, 297, 299, 
 
 304, 353 
 
 u. Manufacturers' Ins. Co. 422 A 
 
 V. Union Central L. Ins. Co. 399 D 
 
 Forbush v. Western Mass. Ins. 
 
 Co. 191, 365 
 
 Ford V. Buckeye State Ins. Co. 577 
 V. U. S. Mut. Ace. Relief Co. 523 
 Forest City Ins. Co. V. Hardesty 175 
 V, School Directors 464 
 
 Forgay v. Atlantic Mut. Ins. Co. 452 E 
 Forrester v. Mut. Life Ins. Co. 572 
 
 Forsytli v. Nat. Life Ins. Co. 67 
 
 Forward v. Continental Ins. Co. 151, 
 
 267 
 Forwood u. North Wales Ins. 
 
 Co. 421 a 
 
 Foster v. Gile 391 
 
 V. Mentor Life Ass. Co. 584 
 
 V. V. S. Ins. Co. 567 
 
 V. Van Reed 458 
 
 Foster et al. v. Eq. Mut. Fire Ins. 
 
 Co. 116, 276, 281, 378, 424 
 
 Fourdrinier v. Hartford Fire Ins. 
 
 Co. 190 
 
 Fowkes V. Manchester & Lon. Life 
 
 Ass. & Loan Assoc. 168, 176, 181, 
 
 297, 573 
 
 Fowle V. Springfield, &c. Ins. Co. 288 
 
 Fowler v. iEtna Fire Ins. Co. 179, 181, 
 
 257, 262, 587 
 
 V. Butterly 890, 395, 399 Q 
 
 V. Metropolitan Life Ins. Co. 340, 
 
 579 B 
 
 V. Mut. Life Ins. Co. 314, 316, 321 
 
 V. N. Y. Indemnity Ins. Co. 74, 
 
 100, 590 
 
 V. Old North State Ins. Co. 424 
 
 V. Phoenix Ins. Co. 477 
 
 V. Preferred Ace. Ins. Co. 566 
 
 V. Scottish Eq. Ass. 566, 567 
 
 V. Springfield, &c. Ins. Co. 84 
 
 Fox V. Masons' Fraternal Ace. 
 
 Ass'n 806, 492 
 
 V. Penn Mut. Life Ins. Co. 108, 
 
 109 299 
 
 V. P1ieni.\ Fire Ins. Co. 82, 256, 437 
 
 Foy V. iEtna Ins. Co. 248, 580 
 
 Frain v. Life Ins. Co. 567 
 
 xxxviii 
 
 Section 
 France v. JEtna Life Ins. Co. 297, 305, 
 
 477 
 Francis v. Butler Mut. Fire Ins. 
 
 Co. 276, 378, 879 
 
 V. Ocean Ins. Co. 350, 505 
 
 V. Somerville Mut. Ins. Co. 220, 
 
 604 
 
 Frane v. Burlington Ins. Co. 294 E 
 
 Frank v. Mut. Life Ins. Co. 391 A 
 
 Frankfurter v. Home Ins. Co. 369 
 
 Frankle v. Penn. Fire Ins. Co. 360 A 
 
 Franklin v. Atlantic Ins. Co. 143, 
 
 370 
 V. Nat. Ins. Co. 384, 399 D 
 
 Franklin Brass Co. v. Phoenix 
 
 Ass. Co. 222 
 
 Franklin Fire Ins. Co. c. Brock 239, 
 
 277 
 t. Chicago Ins. Co. 191, 240, 511 
 V. Coates 93, 184, 288, 284, 469 
 V. Findlay 95, 274 
 
 V. Graver 221, 263 C 
 
 V. Hamil 2, 426, 431 
 
 V. Hellerick 222, 420 
 
 V. Howitt 424, 565 
 
 V. Louisville, &c. Packet Co. 577 
 V. Martin 86, 145, 192, 247, 285 
 ,/. Taylor 23, 66 
 
 V. Updegraffi 233, 420, 477, 504 
 V. Vaughan 288, 373 
 
 Franklin Ins. Co. v. Chicago Ice 
 
 Co. 224 
 
 V. Colt 15, 23 C, 191 
 
 V. Culver 477 
 
 u. Drake 81, 365, 366 
 
 V. Findlay 81 
 
 V. Humphreys 407 
 
 V. Kepler 249 D 
 
 V. Massy 67, 151 
 
 V. Sears 67 L 
 
 V. Vaughan 373 A 
 
 Franklin Lite Ins. Co. v. Hazzard 398 
 V. Sefton 346, 398 
 
 V. Wallace 170 
 
 Franklin Savings Inst. v. Central 
 
 Ins. Co. 379 
 
 Eraser v. Home L. Ins. Co. 360, 567 
 Fraternal Mut. Life Ins. Co v. Ap- 
 
 plegate 241, 392 
 
 Frazer v. Gore 345 B 
 
 Frederick, &c. Ins. Co. v. Deford 371 
 Fred. J. Kiesel & Co. v. Sun. Ins. 
 
 Co. 175 
 
 Freedman v. Phila. F. Ass'n 305 
 
 Freeland v. Per Cent Ins. Co. 591 A 
 Freeman v. Fulton Fire Ins. Co. 74, 
 
 690 
 
 V. Mercantile Mut. Ace. Ass'n 298, 
 
 517 A 
 
 V. Nat. Benefit Soc, 327 A, 563 A 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Freeman v. People 320 
 
 V. Travelers' Ins. Co. 531 
 
 Freemansdorf v. Watertown Ins. 
 
 Co. 456 a 
 
 French v. Connelly 573 
 
 ... Hartford L. Ins. Co. 70 C 
 
 V. Hope Ins. Co. 79, 100 
 
 V. Lafayette Ins. Co. 478 
 
 V. Mutual lleserve Fund L. 
 
 Ass'n 70 C, 187 
 
 V. People 66 
 
 Frey v. Mut. Fire Ins. Co. 662 
 
 «. Wellington Ins. Co. 488 
 
 Fried v. Royal Ins. Co. 55, 58, 298, 565 
 
 Friedlander v. London Ins. Co. 250 
 
 Friedman v. Fennell 459 B 
 
 Friegen v. AUemania Fire Ins. Co. 269, 
 
 287 C, 479 
 
 Friesmutli u. Agawam Mut. Ins. 
 
 Co. 189, 277, 290, 567 
 
 Frinli v. Hampden Ins. Co. 379, 446, 
 
 448 
 Frisbie v. Fayette Mut. Ins. Co. 161, 
 191, 256 
 Froehlich v. Atlas Life Ins. Co. 362 
 Froelily V. Nortli St. Life Ins. Co. 591 A 
 Fromherz u. Yankton F. Ins. Co. 125 
 Frost V. Liverpool, &c. Ins. Co. 27 
 
 u. Saratoga County Mut. Ins. 
 
 Co. 258, 502, 555 
 
 Frost's Detroit Lumber Works v. 
 
 Miller's Mut. Ins. Co. 225, 245 
 
 Fry V. Charter Oak Life Ins. Co. 68 
 V. Lane 399 D 
 
 Fuchs V. Germantown F. M. Ins. 
 
 Co. 70 a 
 
 FuUam v. N. Y. Union Ins. Co. 478, 488 
 
 Fuller ti. Boston Mut. Fire Ins. Co. 1.5, 
 
 31, 376, 425, 501 
 
 V. Detroit Fire and M. Ins. 
 
 Co. 460 
 
 V. Madison Ins. Co. 23, 43, 552 
 
 u. Phoenix Ins. Co. 294 C, 507 
 
 Fulton V. Lancaster Ins. Co. 567 
 
 Fulton Ins. Co. v. Metropolitan 
 
 Life Ins. Co. 172 A 
 
 V. Milner 179 A, 424 A 
 
 Funke v. Minn. Farmers' Mutual 
 
 Fire Ins. Ass. 365 B 
 
 Furness v. Sherwood 594 
 
 Furniss v. Mut. Life Ins. Co. 299 
 
 Furtado v. Kodgers 36, 39 
 
 G. 
 
 Gabay v. Floyd 179 C 
 
 Gahagan v. Union Mut. Ins. Co. 290, 
 
 292 B 
 Galbraith v. Arlington Ins. Co. 133 B 
 
 Section 
 Gale V. Belknap County Ins. Co. 305, 
 
 365 B 
 
 V. Lewis 132, 396 
 
 V. State Ins. Co. 4(i5 
 
 Gales V. Hailman 454 
 
 Gallant v. Met'n L. Ins. Co. 187 
 
 Gallin v. Lon., &c. Ry. Co. 529 
 
 Galloway v. Craig 391 
 
 V. Standard F. Ins. Co. 55 A, 66 
 
 Galyon v. Ketclien 456 
 
 Gamba v. Le Mesurier 36 
 
 Gamble v. Ace. Ins. Co. 465, 536 
 
 Gamhs V. Covenant Life Ins. Co. 
 
 107 b, 391 
 Gamwell v. Mercli. & Farmers' 
 
 Mut. Fire Ins. Co. 247, 248 
 
 Gandy v. Orient Ins. Co. 368, 434 
 
 Ganong v. iEtna Ins. Co. 466 
 
 Gans V. St. Paul, &c. Ins. Co. 504 
 
 Ganser v. Fireman's Fund Ins. Co. 577 
 Garber v. Globe, &c. Ins. Co. 339, 501, 
 
 507 
 y. Mut. Life Ins. Co. 346 
 
 Garcelon v. Hampden Fire Ins. 
 
 Co. 181 F, 184, 250 
 
 Gardiner v. Croasdale 421 a 
 
 V. Piscatagua Mut. Fire Ins. 
 
 Co. 220, 553, 555 
 
 Gardner i/. Union Central Life 
 
 Ins. Co. 342 A 
 
 Garlick v. Mississippi, &c. Ins. 
 
 Co. 341 a 
 
 Garner o. Germania Ins. Co. 399 0, 
 
 399 P 
 
 V. Moore 108 
 
 Garretson v. Hawkeye Ins. Co. 488 
 
 Garrett v. Prov. Ins. Co. 199 
 
 Garver v. Hawkeye Ins. Co. 277, 
 
 287 B 
 Gaskarth v. Law Un. Ins. Co. 412 
 
 Gaskin v. Plicenix Ins. Co. 273 
 
 Gasner v. Met. Ins. Co. 223 
 
 Gatayes v. Flather 399 B 
 
 Gates V. Madison County Mut. 
 
 Ins. Co. 184, 207, 210, 225, 241, 
 247, 259, 408 
 V. Smith 456 
 
 Gauche v. London & Lancashire, 
 
 Ins. Co. 455, 469 B, 475, 493 
 
 Gaunt V. Am. Cent. Ins. Co. 11 
 
 Gauthier v. Waterloo Ins. Co. 59, 365 
 Gay V. Union Mut. Life Ins. Co. 307, 
 316, 318 
 Gaylord v. Lamar Fire Ins. Co. 287 
 Geach v. Ingall 201, 298 
 
 Gee V. Cheshire, &c. Ins. Co. 365 
 
 Geib V. International Ins. Co. 143, 
 
 144 A, 216, 294 C, 497, 501 
 Geisek v. Crescent Mut. Ins. Co. 404 
 Gelatly v. Minn., &c. Soc. 465 
 
 xxxix 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Gen. Int. Ins. Co. v. Buggies 122, 
 
 407 A 
 Gen. Mut. Ins. Co. v. Phillips 577 
 
 V. Slierwood 417 
 
 Genesee Mut. Ins. Co. v. West- 
 man 563 
 George v. Goldsmiths', &c. Ins. 
 
 Ass'n 404 
 
 George and Goldsmiths and Gen- 
 eral Burglary Ins. Ass'n, Lim'd, 
 In re 2 
 
 Georgia Home Ins. Co. v. Allen 126, 
 151, 263 A 
 V. Bartlett 269 
 
 V. Brady 287 B 
 
 t;. Hall 109 a, 269, 279 
 
 V. Jacobs 177, 233, 239 B, 488 
 
 ■.. Kinnier 151, 266, 269 a, 445, 
 468, 497 
 Georgia Ins. Co. v Dawson 454 
 
 Georgia Masonic Ins. Co. v. Davis 478 
 Georgia, &c. Life Ins. Co. v. Gib- 
 son 362, 502 a 
 Gere v. Council Bluffs Ins. Co. 423 A, 
 
 498 
 
 Gerhard v. Bates 670 
 
 Gerhauser v. North B. & M. Ins. 
 
 Co. 185, 187, 200, 250, 262, 373, 375, 
 
 443, 477 
 
 Gerlacli v. Amazon Ins. Co. 134 
 
 Gerling v. Agricultural Ins. Co. 267, 
 
 269, 291 A, 469 C 
 
 German-Am. Ins. Co. v. Buckstaff 248 
 
 V. Commercial Tire Ins. Co. 420 
 
 (J. Davidson 81, 469 
 
 V. Etherton 492 
 
 W.Hart 144 A, 285 
 
 V. Hocking 479 
 
 V. Humphrey 126, 270 
 
 V. Norris 466 
 
 V. Steiger 253, 263 C 
 
 German Fire Ins. Co. v. Carrow 133 A 
 
 V. Commissioners 239 A 
 
 u. Fairbank 189 
 
 V. Frazier 170 
 
 V. Grunert 465, 504 A 
 
 V. Gunten 423 B 
 
 V. Hick 294 E 
 
 V. Roost 412 
 
 German Ins. Co. v. Brown 465 
 
 V. Davis 248, 465, 469 D, 479, 566 
 
 V. Eddy 421 o 
 
 V. First Nat. Bank of Boon- 
 
 ville 578 a 
 
 V. Frederick 462 F 
 
 V. Gray 126, 151 
 
 V. Hayden 365 
 
 V. Heiduk 369 
 
 V. Hyman 287 B 
 
 V. Penrod 126, 247, 380 
 
 xl 
 
 Section 
 German Ins. Co. v. Read 159 
 
 V. Rounds 67, 126, 380 
 
 V. Seibert 469 C 
 
 V. Ward 504 A 
 
 V. York 269 
 
 German Ins. & Sav. Inst'n v. 
 
 Kline 285, 469 C 
 
 German M. Ins. Co. v. Niewedde 452 F 
 German Nat. Bank v. Agr. Ins. 
 
 Co. 282 
 
 German, &c. Ins. Co. v. Davis 666 
 
 Gerraania Fire Ins. Co. v. Boykin 
 
 440, 465 
 V. Curran 448, 476, 590 
 
 V. Francis 239 
 
 ..,. Hick 138 A, 20 
 
 V. Home Ins. Co. 267, 279 
 
 V. Klewer 249 I, 865 B 
 
 V. McKee 143, 497 
 
 Germania Ins. Co. v. Rudwig 156, 159, 
 
 502 
 V. Sherlock 408, 417 
 
 Germania Life Ins. Co. v. Lunken- 
 
 heimer 303 
 
 Germond v. Home Ins. Co. 267 
 
 Gerrish v. German Ins. Co. 565, 566 
 Getchell v. iEtna Ins. Co. 424 
 
 V. Maney 389 
 
 Gettelman v. Commercial Union 
 
 Ass. Co. 281 B, 879 
 
 Gettworth v. Teutonia Ins. Co. 428 
 Ghio V. Western Ass. Co. 478 
 
 Gibb V. Phila. F. Ins. Co. 269, 449,468 
 Gibbs V. Continental Ins. Co. 249 D 
 V. Richmond Co. Mut. Ins. 
 
 Co. 510 
 
 Gibson v. Am. Mut. Life Ins. Co. 304, 
 
 325, 467, 587 
 
 «. Conn. F. Ins. Co. 30, 66 A 
 
 V. Farmers', &c. Ins. Co. 251 
 
 V. Imperial Council of Order 
 
 of United Friends 899 F 
 
 Giddings v. N. W. Mut. Life Ins. 
 
 Co. 56 
 
 Gier v. Western Ass. Co. 469 C 
 
 Giffard v. Phoenix Ins. Co. 70 B 
 
 V. Queen Ins. Co. 45 a, 190, 445 
 
 Gilbert v. Moose 110, 112 
 
 V. National Ins. Co. 590 
 
 V. N. A. Fire Ins. Co. 267, 465, 475 
 
 Gill V. Can. Fire and Mar. Ins. Co. 83 a 
 
 Gilleland v. Martin 465 
 
 Gillett V. Burlington Ins. Co. 689 
 
 V. Liverpool L. & G. Ins. Co. 365 
 
 Gilliat V. Pawtucket Mut. Fire 
 
 Ins. Co. 167, 171, 247, 249 B, 282, 502 
 Gilman v. Curtis 398 
 
 V. Dwelling-House Ins. Co. 86 
 Gilson V. Delaware & Hudson Ca- 
 nal Co. 402, 412 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Girard Agr., &c. Co. v. Merchants' 
 
 Lite Ins. Co. 469 
 
 Girard Fire & Mar. Ins. Co. v. 
 
 Steplienson_ 207, 215 a, 22.3, 229 
 
 Girard Fire ins. Co. v. Hebbard 282, 
 
 387 
 
 Girard, &c. Ins. Co. v. Mut., &c. 
 
 Ins. Co. 345 a, 346, 306, 356 A, 358, 
 
 360, 360 F, 361, 465, 469, 469 B 
 
 Girdleston v. N. B. Mar. Ins. Co. 839, 
 
 568 
 
 Given v. Rettew 557 
 
 V. Wis. 0. F. M. L. Ins. Co. 399 N 
 
 Girens v. Kivers 108 
 
 V. Veeder 83 
 
 Gladding v. Cal. Farmers' Mut. 
 
 Fire Ins. Ass. 511 
 
 Glade v. Germania Fire Ins. Co. 292 B 
 Gladstone v. King 122, 201 
 
 Glanz V. Gloeckler 399 A 
 
 Glass V. Walker 478 
 
 Glaze V. Three Rivers Farmers' 
 
 M. F. Ins. Co. 81, 287 B 
 
 Glen u. Hope Mut. Life Ins. Co. 11 
 0. Lewis 223, 245 
 
 Glendale Manuf. Co. u. Prot. Ins. 
 
 Co. 251 
 
 Glendale Woolen Co. v. Protec- 
 tion Ins. Co. 183 
 Glens Falls Ins. Co. v. Hopkins 125 
 V. Judge of Jackson Circuit 
 
 Court 578 
 
 Glens Falls Portland Cement Co. 
 
 V. Travellers' Ins. Co. 2 
 
 Globe Ins. Co., In re 594 
 
 V. Boyle 80, 445 
 
 V. Reals 573 
 
 ■V. Sherlock 421 a 
 
 Globe Mut. Life Ins. Co. v. Wolff 511 
 
 Globe Reserve Mut. L. Ins. Co. 
 
 V. Duflfy 187 
 
 Gloucester Manuf. Co. v. Howard 
 
 Ins. Co. 4.3, 60, 129, 130, 136, 171 
 Glover v. National F. Ins. Co. 247 
 
 Godchaux u. Merchants' Mut. Ins. 
 
 Co. 452 F 
 
 Goddard v. East Texas F. Ins. Co. 263 A 
 
 V. Ins. Co. ie'8, 175 
 
 V. Monitor Mut. Fire Ins. Co. 51, 
 
 56, 141 
 
 Goddart v. Garrett 67 M, 75 A 
 
 Godfrey v. New York L. Ins. Co. 151 
 
 Godsall V. Boldero 100, 115, 116 
 
 Goetzman v. Conn., &c. Ins. Co. 329 
 
 Goit V. Nat. Protection Ins. Co. 67, 134, 
 
 360, 386 
 
 Gold V. Sun Ins. Co. 23 A 
 
 Gold Mining Co. v. Natl. Bank 23 T> 
 
 Golden Rule v. The People 75 B 
 
 Golden Star Fraternity v. Martin 2 
 
 Section 
 Goldin V. Northern Ass. Co. 125 
 
 Goldman v. North British & Merc. 
 
 Ins. Co. 263 A 
 
 Goldschmidt v. Mut. Life Ins. Co. 325, 
 
 585 
 
 Goldsmith v. Gore Dist. Ins. Co. 475 
 
 V. Union Mut. Life Ins. Co. 566, 
 
 566 B 
 
 Goldstone v. Osborne 492, 493, 495 
 
 Goldwater v. Liverpool & L. & G. 
 
 Ins. Co. 372 A 
 
 Good V. Buckeye Mut. Fire Ins. 
 
 Co. 434 
 
 Goodall V. New England Fire Ins. 
 
 Co. 24, 45, 438, 448 
 
 Goode V. Georgia Home Ins. Co. 151, 
 
 368, 369 
 
 Gooden v. Amoskeag Eire Ins. Co. 485 
 
 Goodfellow V. Times & Beacon Ins. 
 
 Co. 69 
 
 Goodhue v. Hartford F. Ins. Co. 263 E, 
 
 497 
 Goodman v. Cohen 492 
 
 V. Harvey 410 
 
 V. Mercantile Credit Guaran- 
 tee Co. 2 
 Goodrich's Appeal 594 a 
 Goodrich v. Treat 391 
 Goodson V, Brooke 138 A 
 Goodwin v. Lancashire Fire & 
 
 Life Ins. Co. 67, 215 a, 469 
 
 V. Mass. Mut. Life Ins. Co. 107, 
 
 344 c, 469 a 
 
 V. Provident Savings L. Ass'n 66, 
 
 159, 478 
 
 Gordon v. Ingram 449 
 
 V. Lon. Ass. Co. 13 
 
 V. Mass. Ins. Co. 268 
 
 V. Parmelee 583 
 
 V. Rimmington 407 
 
 V. V. 0. Casualty Co. 524 
 
 V. Ware Savings Bk. 452 B 
 
 Goring v. Lon. Mut. Fire Ins. Co. 159 
 
 Gorman v. Hand-in-Hand Ins. Co. 420 
 
 Gortan v. Dodge Co., &c. Ins. Co. 358 
 
 Gosling V. Caldwell 391 
 
 Goss V. Citizens' Ins. Co. 2.39 
 
 Gotleib V. Cranch 449 
 
 Gottsman v. Ins. Co. 189, 277, 291 
 
 Gouinlock v. Manuf. & Merch. 
 
 Mut. Fire Ins. Co. 166 
 
 Gould V. Brit. Am. Ass. Co. 247 
 
 V. Dwelling-House Ins. Co. 138, 
 270, 379, 469 C 
 V. Emerson 391, 392 
 
 V. Holland Purchase Ins. Co. 294 
 V. York County Mut. Fire Ins. 
 
 Co. 189, 277, 285 
 
 Goulstone v. Royal Ins. Co. 81, 92 
 Gourdon v. Ins. Co. of N. A. 393 
 
 xli 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Gove V. Farmers' Mut. Fire Ins. 
 
 Co. ^ 408 
 
 Govern r. Littlefield '25 
 
 Grable v, German Ins. Co. 287 B 
 
 Grace v. Adams 457 B 
 
 u. Am. Central Ins. Co. 67, 67 I, 
 
 574 
 
 V. Koch 359 F 
 
 Grady v. Am. Central Ins. Co. 154 
 
 Graliam v. American F. Ins. Co. 72, 
 
 2g5, 294 E 
 
 V. Barras 178 
 
 V. Fire Ins. Co. 151 
 
 V. Firemen's Ins. Co. 185, 448, 463 
 
 V. Niagara Fire Ins. Co. 479 
 
 Grand Lodge v. Belcham 299 
 
 u. Cliild 399 O 
 
 V. Wieting. 824 
 
 Grand Rapids Hydraulic Co. v. 
 
 American F. Ins. Co. 239 A 
 
 Grandin v. Ins. Co. 172 A, 175, 177, 
 
 287 C 
 
 Grange Mill Co. v. The People 452 A 
 
 0. Western Ass. Co. 87 A, 399 D, 
 
 469 
 
 Granger v. Howard In?. Co. 590 
 
 Granger's Life, &c. Ins. Co. v. 
 
 Brown 214 
 
 Grant v, iEtna Ins. Co. 424 
 
 u. Ala. Gold Life Ins. Co. 356 A, 
 
 399 A 
 
 V. Eliot, &c. Mut. Fire Ins. Co. 264, 
 
 266 
 
 V. Howard Ins. Co. 224, 225, 241 
 
 V. Lexington Fire, Life, & 
 
 Mar. Ins. 488, 505 
 
 V, Parlcinson 79 
 
 V. Reliance Ins. Co. 59, 67, 69 
 
 Grant's Adm'rs v. Kline ' 108 
 
 Grattan v. Met'n Ins. Co. 295, 303, 306 
 
 Graves v. American Live-stock 
 
 Ins. Co. 449 
 
 V. Boston Mar. Ins. Co. 566 
 
 V. Merchants' & Bankers' Ins. 
 
 Co. 138, 287 B, 469 C 
 
 V. Wasli. Mar. Ins. Co. 469, 488 
 
 Gray v. Germania F. Ins. Co. 345 E, 
 
 369, 497 
 
 V. Guardian Ass. Co. 465 
 
 ly. Harper 172 A 
 
 V. Murray 397 
 
 V. Nat. Ben. Ass. 591 A 
 
 V. Sims 567 
 
 K. Supreme Lodge K. of H. 563 A, 
 
 566 A 
 
 Great Falls Mut. Fire Ins. Co. v. 
 
 Harvey 552 
 
 Great Western Ins. Co. v. Staaden 465 
 Greaves v. Niagara Dist. Mut. 
 Fire Ass. Co. 476 
 
 xlii 
 
 Section 
 
 Greek v. Royal Ins. Co. 208 
 
 Greeley v. Iowa St. Ins. Co. 562 
 
 Green v. Brand 269 
 
 V. Green 448 
 
 V. Holway 25 
 
 V. Homestead Ins. Co. 292 
 
 u. Ingham 395 
 
 V. Liverpool, &c. Ins. Co. 21, 401 a, 
 
 420 
 
 V. Merchants' Ins. Co. 215 D 
 
 V. Nortliwestern Live Stock 
 
 Ins. Co. 360, 547 
 
 V. Republic Ins. Co. 386 
 
 Greene v. Lycoming, &c. Fire Ins. 
 
 Co. 126, 360 
 
 Greenfield v. Mass. Life Ass. Co. 344 c 
 Greenleaf v. St. Louis Ins. Co. 101 
 
 Greenlee v. Iowa State Ins. Co. 257, 
 
 294 E 
 V. North British and Mercan- 
 tile Ins. Co. 288, 405 
 Greenwald v. Ins. Co. 403, 413 
 Greenwich Ins. Co. v. Raab 408 
 v. Sabotnick 151, 365 
 V. Union Dredging Co. 349 B 
 V. Waterman 151, 678 a 
 Greenwood v N. Y. Life Ins. Co. 29 B, 
 
 137 A 
 Greenwood Ice Co. v. Georgia 
 
 Home Ins. Co. 137, 452 P 
 
 Gregg V. Wells 502 
 
 Grevemeyeri). Southern Mut. Ins. 
 
 Co. 93 
 
 Griffey v. N. Y. Central Ins. Co. 67 J, 
 
 379 
 
 GrifBn v. Ranney 25 
 
 V. Western Mut. Ass. 327 A 
 
 Griffith V. New York L. Ins. Co. 360, 
 
 399 D 
 Grim v. Phoenix Ins. Co. 411 A 
 
 Grimes v. Northwestern Legion of 
 
 Honor 156 
 
 Gristock v. Royal Ins. Co. 144 D, 
 
 294 E 
 
 Griswold v. Am. Cent. Ins. Co. 379 
 
 V. Sayer 399 D 
 
 V. Waddington 36, 37, 350 
 
 Gros 'c. Le Nord 366 
 
 Gross V. Milwaukee Mechanics' 
 
 Ins. Co. 222, 420 
 
 Grosvenor v. Atlantic Mut. Ins. 
 
 Co. 227, 379 
 
 Grove V. Bastard 568 
 
 Grubbs v. North Carolina Home 
 
 Ins. Co. 138, 369 
 
 Guardian Mut. Life Ins. Co. v. 
 
 Hogan 107, 398 
 
 Guernsey v. Am. Ins. Co. 446, 502 a, 
 
 508, 511 
 
 Guest V. Fire Ins. Co. 82, 285, 365 
 
TABLE OF CASES. 
 
 [The references are to the sections. 
 
 Section 
 Guggisberg v. Waterloo Mut. Ins. 
 
 Co. 67 
 
 Guiltinan v. Met'n L. Ins. Co. 306 
 
 Guinane v. Hope Mut. Life Ins. 
 
 Co. 181 
 
 Guiterman u. German-American 
 
 Ins. Co. 112, 459 E 
 
 Gulf City Ins. Co. u. Stephens 580 
 Gulnare, The 94 A 
 
 Gunther v. Liv., Lon., & Globe 
 
 Ins. Co. 227, 239 A 
 
 Guy V. Globe Ins. Co. 594 a 
 
 Gwinlock v. Manuf. & Mech. Mut. 
 
 Fire Ins. Co. 160 
 
 H 
 
 H. & B. Ins. Co. V. Garlington 421 a 
 Haas V. Montauk Fire Ins. Co. 136, 
 
 502 
 Hackney v. Alleghany County 
 
 Mut. Ins. Co. 133, 148, 5-52 
 
 Hadley v. N. H. Eire Ins. Co. 143, 372, 
 
 45S 
 Haenschen v. Franklin Ins. Co. 425 
 HaCE V. Mar. Ins. Co. 474 
 
 Hagan v. Scottish Union & Nat'l 
 
 Ins. Co. 177 
 
 Hagedorn v. Oliverson 447 B 
 
 Halin V. Corbett 417 A 
 
 V. Guardian Ass. Co. 151, 369, 405 
 
 Haider v. St. Paul F. & M. Ins. 
 
 Co. - 287 B 
 
 Haigh i: Brooks 452 F 
 
 V. De la Cour 30 
 
 Haight V. Continental Ins. Co. 249 I, 
 
 276 C 
 Haines v. Republic Fire Ins. Co. 373, 
 
 587 
 
 Haire v. Ohio Farmers' Ins. Co. 364 
 
 Halbrook v. Brown 420 A 
 
 Hale V. Continental Life Ins. Co. 352 A 
 
 V. Ins. Co. 378 A 
 
 V. Life Indemnity Co. 112, 325, 
 
 459 E 
 
 V. Mechanics' Mut. Ins. Co. 146/ 
 
 369, .382, 510 
 
 V. Union Mut. Fire Ins. Co. 388, 
 
 502 
 
 Haley v. Dorchester Mut. Fire 
 
 Ins. Co. 166, 207, 210, 239, 
 
 435, 438 
 
 V. Manuf. Fire Ins. Co. 424 
 
 Halford v. Kymer 103, 104, 105 
 
 Hall V. Association 452 J) 
 
 V. Concordia F. Ins. Co. 364 
 
 f. Dorchester Ins. Co. 386 
 
 V. Ins. Co. of N. A. 239 
 
 V. Nash. & Chat. R. B. Co. 454 
 
 Section 
 
 Hall w. Niagara F. Ins. Co. 83, 83 a, 
 
 285, 287 B, 291 A, 379 
 
 V. People's Mut. Fire Ins. Co. 191 
 
 200, 258, 259, 490, 501 
 
 Hallock V. Insurance Co. 58, 345 B 
 
 V. Jaudin 25 
 
 Halsey v. Adams 67 
 
 I'. Patterson 399 C 
 
 Hamberg v. St. Paul F. &, M. Ins. 
 
 Co, 469 C, 477 
 
 Hamblet v. City Ins. Co. 60, 213 
 
 Hambleton v. Home Ins. Co. 360 F, 508 
 Hambro v. Hull, &c. Ins. Co. 591 A 
 Hambrough v. Mutual L. Ins. Co. 158, 
 
 298 
 Hamilton v. Dwelling-House Ins. 
 
 Co. 287 B 
 
 V. Home Ins. Co. 133 A, 494 
 
 V. Liverpool, &c. Ins. Co. 494 
 
 V. Lycoming Mut. Ins. Co. 16, 19, 
 47, 53, 565 
 V. Mendes 115 
 
 u. Mutual Life Ins. Co. 39, 39 A, 
 40, 850, 360 
 V. Phcenix Ins. Co. 492 
 
 Hamilton Mut. Ins. Co. v. Hobart 552 
 V. Parker 560 
 
 Hamlyn v. Crown Ace. Ins. Co. 517 A 
 Hamm Realty Co. v. New Hamp- 
 shire F. Ins. Co. 126 
 Hammel v. Queen Ins. Co. 274, 446, 
 449, 566 
 Hammer v. Johnson 456 
 Hammond v. American Mut. Life 
 
 Ins. Co. 349 
 
 Hancock «. American Life Ins. 
 
 Co. 465, 585 
 
 V. New York Life Ins. Co. 30, 40, 
 
 350, 568 
 
 Hancox v. Fishing Ins. Co. 93 A, 179 A 
 
 Hand v. National Live-Stock Ins. 
 
 Co. 30, 589 
 
 V. Williamsburgh Ins. Co. 447 
 
 Handy v. Dobbin 459 F 
 
 Hanger v. Abbott 39 A, 350 
 
 Hankins v. Kockford Ins. Co. 294, 294 F 
 
 Hann v. National Union 187 
 
 Hanna v. Amer. Ins. Co. 469 C 
 
 V. Andes Ins. Co. 442 
 
 V. Conn. Mut. L. Ins. Co. 299, 465 
 
 Hannan v. Williamsburgh City F. 
 
 Ins. Co. 247 
 
 HanoTer F. Ins. Co. v. Bohn 72, 449 
 V. Brown 274, 276 C 
 
 V. Connor 270, 459 F 
 
 V. Crawford 263 A 
 
 V. Johnson 460 
 
 V. Lewis 279 
 
 V. Mannasson , 420 
 
 .V. Stoddard 30, 2-39 A 
 
 xiiii 
 
TABLE OF OASES. 
 
 [The references are to the sections.] 
 
 Section 
 Hanscom v. Home Ins. Co. 247 
 
 Hansen v. American Ins. Co. 133 B 
 Hanson v. Milwaukie, &o. Iiis. Co. 159 
 Hardie v. St. Louis iVIut. Life Ins. 
 
 Co. 65 
 
 Harding v. Carter 584 
 
 V. iforwich Union F. Ins. 
 
 Society 126, 151 
 
 V. Randall 185 
 
 11. Townshend 455 
 
 Hardwick v. State Ins. Co. 14 
 
 Hardy v. Lancashire Ins. Co. 177, 449 
 
 I'. Union Mut. Fire Ins. Co. 
 
 206, 258, 365, 365 B 
 Hare v. Barstow 420 
 
 Harkins v. Quincy Mut. Ins. Co. 474, 
 
 475 
 Harl u. Pottawattomie Co. Mut. 
 
 Fire Ins. Co. 502, 563 A 
 
 Harley n. Heist 399 N 
 
 Harman e. Kingston 350 
 
 V. Lewis 399 B 
 
 Harnden v. Milwaukee M. Ins. 
 
 Co. 126, 465, 469 D 
 
 Harniokel u. New Yorlc Life Ins. 
 
 Co. 53 
 
 Harp V. Granger Mut. Fire Ins. 
 
 Co. 43 H 
 
 Harper v. Albany Mut. Ins. Co. 239 
 
 V. City Ins. Co. 179, 239, 415, 416 
 
 u. Clark 25 
 
 V. Pliojnix Ins. Co. 327 
 
 Harriman v. Queen's Ins. Co. 421 a, 
 
 469 
 Harrington v. Fitchburg Ins. Co. 
 
 249 D, 452 D 
 0. Trader's Bank 390 
 
 Harris v. Columbian Mut. Ins. 
 
 Co. 239, 566 
 
 V. Eagle Ins. Co. 31 
 
 V. Eq., &c. Ass. Co. 362, 506, 573, 
 
 575 
 
 V. Gasper Fire &Mar. Ins. Co. 
 
 452 B 
 V. Ohio Ins. Co. 364, 365 
 
 V. Phcenix Ins. Co. 466, 468, 487 
 V. Prot. Ins. Co. 4-34, 476 
 
 V. Royal Canadian Ins. Co. 219, 
 401 a 
 V. Travellers' Ins. Co. 518 
 
 V. Waterloo Mut. Fire Ins. Co. 277 
 V. York Mut. Ins. Co. 81, 403 
 
 Harris's Case, In re Imperial 
 
 Land Co. 48 
 
 Harrison v. City Fire Ins. Co. 138, 248 
 „. Hartford F. Ins. Co. 126, 469 D, 
 494 
 V. Masonic Mut. Ben. Society 465 
 V. McConkey 388 
 
 V. Pepper 448 
 
 xliv 
 
 Section 
 
 Hart V. Achilles 548 
 
 V. British, &c. Ins. Co. 215 A 
 
 V. Citizens' Ins. Co. 478 
 
 V. Niagara F. Ins. Co. 177, 285 
 
 V. Standard Mut. Ins. Co. 420 A 
 
 u. Western R. R. Co. 94, 453, 464, 
 
 459 
 
 Hartford Fire Ins. Co. v. Bonner 
 
 Mercantile Co. 492 
 
 V. Davenport 192, 389, 446 
 
 V. Farrish 23 
 
 V. Kahn 589 
 
 V. Keating 72, 138, 276 C, 448 
 
 V. McLemore 368 
 
 V. Reynolds 122, 124 A 
 
 V. Ross 280 
 
 V. Walsh 70 a, 189, 190 
 
 V. Webster 129 
 
 Hartford Ins. Co. v. Haas 133 A, 144 B 
 
 V. Kansas 70 a, 577 
 
 V. Pennell 454 
 
 V. Reynolds 67 F 
 
 V. Wilcox 23 
 
 Hartford L. A. Ins. Co. v. Unsell 340 
 
 Hartford Life Ins. Co. v. Gray 159 
 
 Hartford Live Stock Ins. Co. v. 
 
 Mathews 477, 547, 575, 577 
 
 Hartford Prot. Ins. Co. o. Harmer 101, 
 285, 580, 582 
 Hartford Steam Boiler Insp. & 
 
 Ins. Co. V. Cartier 67, 200 
 
 V. Lasher Stocking Co. 55 A, 276, 
 
 412 
 
 Hartigan v. Int. Life Ass. Co. 298 
 
 Hartman v. Conn., &c. Ins. Co. 312, 
 
 325 
 Hartmann v. Keystone Ins. Co. 195, 
 212, 306, 317, 323, 580 
 Hartney v. North British Fire Ins. 
 
 Co. 263 D 
 
 Hartshorne v. Agricultural Ins. 
 
 Co. 294 A 
 
 Harvey v. Cherry 86 
 
 Haskell's Case 320 
 
 Haskins v. Hamilton Mut. Ins. 
 
 Co. 430, 591 
 
 Hastie v. De Peyster 10, 11 
 
 Hastings v. Brooklyn L. Ins. Co. 357 
 
 V. Westchester Fire Ins. Co. 369 
 
 Hastings Mut. Fire Ins. Co. v. 
 
 Shannon 143 
 
 Hatch V. Metropole Ins. Co. 447 A, 
 
 459 D 
 V. Mutual Life Ins. Co. 329 
 
 V. New Zealand Ins. Co. 420 A 
 Hathaway v. Mutual L. Ins. Co. 356 A 
 V. Nat. Life Ins. Co. 320 
 
 V. Sherman 392 
 
 V. State Ins. Co. 280 
 
 V. Trenton Mut. Life Ins. Co. 338 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Hathorn v. Germania Ins. Co. 67, 574 
 Hatton V. Beacon Ins. Co. 365, 384 
 V. Provincial Ins. Co. 479, 488 
 
 Haughton v. Ewbank 138 A 
 
 Haupt V. Piioenix Ins. Co. 340 
 
 Havens v. Germania F. Ins. Co. 30 
 V. Home Ins. Co. 247, 277 
 
 Haverliill Ins. Co. u. Prescott 555, 577 
 Haverstiek v. Penn. Twp. JUat. 
 
 F. Ins. Ass'n 557 
 
 Hawes v. N. E. Ins. Co. 580 
 
 Hawke v. Niagara Dist. Mut. Fire 
 
 Ins. Co. 58, 59 
 
 Hawkes v. Dodge Co. Mut. Ins. 
 
 Co. 249, 292 
 
 Hawkins v. Coulthurst 399 B 
 
 Hawley v. Liverpool, &c. Ins. Co. 67 L, 
 
 269 
 
 u. Michigan Mut. L. Ins. Co. 55 A, 
 
 357 
 
 Haws V. Fire Ass. 401 C 
 
 Hay V. Star Fire Ins. Co. 479, 566 
 
 Hayes u. Milford M. F. Ins. Co. 72, 
 
 365, 492 
 
 u. Un., &c. Ins. Co. 465, 477 
 
 Haynie v. Knigfits Templars' L. 
 
 Ind. Co. 327 
 
 Haynor v. American, &c. Ins. Co. 358 
 Hays V. Lycoming, &c. Ins. Co. 459 F, 
 
 550 
 Hayward v. Cain 455 
 
 ... Fulcher 592 
 
 «. Liverpool, &c. Ins. Co. 239, 415 
 V. National Ins. Co. 14.3, 370, 372 
 V. N. E. Mut. Ins. Co. 290, 292 B 
 V. Northwestern Ins. Co. 239, 415 
 Hazard v. Canada Agricultural 
 
 Ins. Co. 385, 456 
 
 u. Franklin Mut. Fire Ins. 
 
 Co. 264, 554 
 
 V. N. E. Mar. Ins. Co. 179 A 
 
 Hazen v. Mass. Mut. L. Ins. Co. 69 a, 
 
 399 Q 
 Hazle V. Council Bluffs Ins. Co. 349 B 
 Head v. Prov. Ins. Co. 27, 67 
 
 Healey v. Imperial Fire Ins. Co. 129, 
 
 369 
 Healy v. Penn Ins. Co. 360 
 
 Hearne v. Marine Ins. Co. 566 
 
 Heath v. Franklin Ins. Co. 465, 466, 
 468, 473, 474 
 Heaton v. Manhattan Fire Ins. Co. 275, 
 360, 501 
 Hebdon v. West 109. 440 
 
 Hebert v. Mut Life Ins. Co. 566 C 
 Heebner v. Eagle Ins. Co. 66, 66 A, 
 
 579 
 
 Heffron v. Kittanning Ins. Co. 233, 
 
 247, 402, 405, 465 
 
 Hegard v. Cal. Ins. Co. 433 A 
 
 Section 
 Heilmann u. Westchester Fire 
 
 Ins. Co. 432 
 
 Heiman v. Phoenix Mut. Life Ins. 
 
 Co. 43 H, 56 
 
 Heinlein v. Imperial L. Ins. Co. 69 A, 
 
 112 
 Helme v. Phila. Life Ins. Co. 346, 361, 
 
 582 
 Helmetag's Adm. v. Miller 110 
 
 Hemmenway v. Bradford 567 
 
 Hench v. Ins. Co. 291 A 
 
 Hencken v. U. S. Life Ins. Co. 591 
 
 Henderson v. Travelers' Ins. Co. 126 
 u. Western Mar. & Fire Ins. 
 
 Co. 410, 428 
 
 Hendrick v. Employers' L. Ass. 
 
 Co. 514 
 
 Hendrickson u. Queen Ins. Co. 365, 
 
 368 
 Heniker v. Brit. Am. Ins. Co. 226 
 
 Hening v. U. S. Ins. Co. 15, 23 D, 24 A 
 Hennessey v. Manhattan Fire Ins. 
 
 Co. 245, 270 
 
 Hennessy, Ex parte 137 
 
 V. Niagara Fire Ins. Co. 477 
 
 Henning v. Western Ass. Co. 74 
 
 Henschel v. Oregon F. & M. Ins. 
 
 Co. 359, 401 a 
 
 Henshaw v. Mut. Safety Ins. Co. 100 A 
 Henson v. Blackwell 115, 456 
 
 Herbert v. Champion 452 F 
 
 V. Mut. Life Ins. Co. 43 A 
 
 Herckenrath v. Am. Mut. Ins. Co. 10, 
 12, 594 a 
 Hercules Ins. Co. t. Hunter 496 a, 576. 
 
 583 
 Hercules Mut. Life Ass. Soc, In re 592 
 Herkimer v. Rice 80, 83, 445, 448 
 
 Herkimer Co. Mut. Ins. Co. v. 
 
 Fuller 557, .'^59 
 
 Herkins v. Prov. Ins. Co. 466 
 
 Hermann v. Niagara Fire Ins. Co. 67 G 
 u. Merchants' Ins. Co. 248 
 
 Hermany v. Fidelity M. L. Ass'n 156 
 Hernandez v. Sun Mutual Ins. Co. 177 
 Herndon v. Imperial Fire Ins. Co. 492 
 Heron v. Phajnix Mut. F. Ins. Co. 233, 
 
 242 
 
 Herriek v. Nat. Life Ins. Co. 390 
 
 V. Union Mut. Fire Ins. Co. 191 , 248 
 
 Herrmanu. Adriatic Fire Ins. Co. 249 A, 
 
 249 1 
 Herron v. Peoria Mar. & Fire Ins. 
 
 Co. 590 
 
 Hersey v. Merrimack Co. Mut. 
 
 Ins. Co. 373 
 
 Hervey v. Mut. Fire Ins. Co. 230 
 
 Hess V. Preferred Masonic M. 
 
 Ace. Ass'n , 306 
 
 Hesterberg v. Eq. Life Ins. Co. 341 
 
 xlv 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Heusinkveld i;. St. Paul F. & M. 
 
 Ins. Co. 465 
 
 Heutig V. Staniforth S67 
 
 Hewins i>. Baker 9i'i 
 
 Hewitt n. Watertown Fire Ins. Co. 425 
 Hews V. Atlas Ins. Co. 401 a 
 
 Hey V. Guarantors' Liability In- 
 demnity Co. 406 
 Hiatt V. Mut. Life Ins. Co. 320 
 Hibbard v. People 246 
 Hibbert v. Pigon 156 
 Hibernia Ins. Co. v. Blanks 572 
 V. Malevinsky 368 
 0. Meyer 468 
 0. O'Connor 65, 468 
 Hickerson v. Ins. Co. 494 
 Hickey v. Anchor Ass. Co. 478 
 V. British Am. Ins. Co. 14, 263 E 
 V. Empire Ins. Co. 239 
 V. Farmers' Ins. Co. 291 A 
 V. Newport R. R. Co. 455 
 V. National L. Ins. Co. 66, 83, 340 
 Hicks, Lightle & Co. v. McGehee 421 a 
 Hidden v. Slater Fire Ins. Co. 84, 446 
 Hide V. Bruce 178 
 Higbie v. Guardian Life Ins. Co. 192, 
 196, 210, 325, 581 
 Higgie V. Am. Lloyd's 186 
 V. National Lloyd's 186 
 Higgins V. Dewey 459 
 V. Phoenix Mut. Life Ins. Co. 212 
 V. Sargent 428 
 V. Windsor Co. Mar. Fire Ins. 
 
 Co. 478 
 
 Higginson r. Dall ^2 
 
 Highland v. Highland 399 F 
 
 Hight V. Continental, &c. Ins. Co. 356 
 Hildreth v. O'Brien 584 
 
 Hiles V. Hanover Fire Ins. Co. 579, 591 
 Hill V. Commercial Union Ass. Co. 177, 
 240, 247, 263 E 
 I/. Cumberland Valley Mut. 
 
 Prot. Co. 267 
 
 V. Eq. Mut. Fire Ins. Co. 158, 176, 
 180 a, 248 
 V. Hibernia Ins. Co. 179 C 
 
 u. Lafayette Inn. Co. 207. 210, 580 
 V. Middlesex iWut. Ass. Co. 240 
 V. Millville Mut. Mar. & Fire 
 
 Ins. Co. 566 A 
 
 V. Ohio Ins. Co. 248 
 
 V. Phcenix Ins. Co. 488 
 
 Hillier v. Alleghany Co. Ins. Co. 404, 
 
 412, 596 
 
 Hillock V. Traders' Ins. Co. 67 B, 67 K 
 
 Hillyard v. Mut. Ben. Life Ins. Co. 
 
 89 A, 352, 446, 486 
 Hilton V. Phoenix Ass. Co. 247, 469 C, 
 
 477 
 Hincken v. Mut. Ben. Life Ins. Co. 472 
 
 xlvi 
 
 Section 
 Hinckley v. Germania Ins. Co. 245 
 Hine v. Homestead Fire Ins. Co. 266, 
 
 452 
 
 0. Wool worth 276 A 
 
 Hines v. Mutual L. Ins. Co. 69 a 
 
 Hinman v. Hartford Fire Ins. Co. 189, 
 
 217, 277, 287 
 
 Hitchcock V. N. W. Ins. Co. 272, 273, 
 
 381 
 
 V. RoUo Ass. 595 
 
 V. Sawyer 25 
 
 Hoare v. Bremrirlge 573 
 
 Ho1)bs V. Guardian Fire Ins. Co. 413 
 
 (/. Iowa Mut. Ben. Ass'n 306 
 
 V. Manhattan Ins. Co. 569 A 
 
 0. Memphis Ins. Co. 278, 279, 
 
 281, 393 
 
 V. Northern Ass. Co. 413 
 
 Hobby V. Dana 218, 230, 580 
 
 Hobson V. Wellington Dist. Ins. Co. 247, 
 
 272 
 Hocking v. Ins. Co. 447 A 
 
 Hodge V. Ellis 349 A 
 
 V. Security Ins. Co. 54 B, 560 A 
 Hodge's Appeal 390 
 
 Hodges V. Tenn. Mar. & Fire Ins. 
 
 Co. 272 
 
 Hodgkins v. Montgomery Co. 
 
 Mut. Ins. Co. 143, 476 
 
 Hodgson V. Cerdgalon 349 A 
 
 Hodsdon v. Guardian Life Ins. Co. 136, 
 
 350, 862, 5( 2 
 
 Hoffecker v. N. C. C. M. Ins. Co. 218, 
 
 220, 227, 462, 488 
 
 HofiEnian v. ^tnaFire Ins. Co. 174, 279, 
 
 408, 428, 475 
 
 V. Banks 577 
 
 V. Hoke 398 
 
 13. John Hancock Mut. Life 
 
 Ins, Co. 134 
 
 V. Supreme Council of Am. 
 
 Leg. of Honor 295, 552 
 
 V. Travellers' Ins. Co. 530 
 
 V. West Mar. & Fire Ins. Co. 428, 
 
 477, 583 
 
 Hogan, Re 1, 547 a 
 
 V. Met'n Life Co. 156 
 
 Hogben v. Met'n L. Ins. Co. 358, 
 
 399 D 
 Hoge V Hoge 452 F 
 
 Tlogins V. Supreme Council, &c. 419 A 
 Hogle V. Guardian Life Ins. Co. 112, 
 20.3, 210, 215, 296, 446 
 Hogue V. Minnesota Packing Co. 88, 
 
 379 
 Hoit V. Hodge 75 A 
 
 Holabird v. Atlantic Mut. Life Ins. 
 
 Co. 112.305 
 
 Holbrook v. Am. Ins. Co. 270, 272, 
 
 365, 366, 595 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Holbrook v. Baloise Fire Ins. Co. 
 
 364 A, 449, 496 B 
 V. St. Paul Fire & Mar. Ins. 
 
 Co. 83 a, 219, 420 
 
 V. United States 457 
 
 Holcombe w. Riclimond, &c. R. Co. 454 
 
 HoUlen v. Putman Fire Ins. Co. 67, 
 
 569 A 
 Holdioli's Case 568, 594 a 
 
 Holdoni n. Ancient Order of 
 
 United Worlcmen 407 
 
 Holiday v. American Mut. Ace. 
 
 Ass'n 306 
 
 Holland ;;. Smith 449, 459 A 
 
 V. State 420 
 
 V. Taylor 399 M, 399 0, 563 A 
 Hollingswortli v. Germania Ins. Co. 67 
 Hollia V State Ins. Co, 138, 502 
 
 HoUister v. Quincy Mut. Ins. Co. 562 
 HoUoman v. Life Ins. Co. 296 
 
 HoUoway v. Dwelling-House Ins. 
 
 Co. 269 
 
 IloUowell V. Va. Ins. Co. 357 
 
 Holly V. Met Life Ins. Co. 344 I 
 
 Holman v. Cont. Life Ins. Co. 344 E 
 Holmes v. Brougliton 331 
 
 V. Charlestown Mut. Fire Ins. 
 
 Co. 29, 30, 145, 207, 420, 425, 
 566 
 u. Charter Oak Ins. Co. 344 a 
 
 V. Drew 172 A, 294 E 
 
 ,,. Oilman 109 a, 399 Q 
 
 V. Plienix Ins. Co. 79, 547 a 
 
 Holterhoff v. Mut. Ben. Life Ins. 
 
 Co. 299, 301 
 
 Holier Lumber Co. t. Fireman's 
 
 Fund Ins. Co. 420 
 
 Holtzman v. Frankhn Ins. Co. 404 
 
 Home Benefit Ass'n v. Sargent 322, 
 
 325 
 Home F. Ins. Co. v. Bean 465, 492 
 
 V. Bernstein 368 
 
 V. Deets 364 
 
 V. Fallon 144 A, 488 
 
 u. Garbacz 126 
 
 V. Gurney 126 
 
 t. Hammang 365, 469 C 
 
 V. Wood 368 
 
 Home Ins. Co. v. Adler 23 A, 43 B, 
 
 45 A 
 V. Baltimore Warehouse Co. 366, 
 421, 437 
 !), Bethel 287 B 
 
 V. Cohen 475 
 
 V. Connally 189 
 
 V Curtis 60, 134, 345 a 
 
 V. Daubenspeok 594 
 
 V. Davis 462 
 
 . u. Delta Bank 263 A 
 
 c. Duke 294 C, 589 
 
 Section 
 Home Ins. Co. v. Eakin .373 A 
 
 V. Favorite 59, 420, 421 
 
 V. Gibson 294, 469 D, 590 
 
 V. Oilman 359, 360 D, 447 A 
 
 u. Heck -574 
 
 u. Karn 345 E 
 
 V. Kinnier 244 
 
 V. Lindsey 381 a 
 
 V. Mears 345 E, 4b9 C 
 
 V. Mendenhall 248, 287 B, 
 
 294 E, 477 
 V. Myer 464, 488 
 
 V. Pierce 842, 345 a, 356 
 
 ■u. Scales 248 
 
 u. Sorsby 138 
 
 V. Stanchfield 573 
 
 V. Sylvester 469 C 
 
 V. Thompson 432 
 
 V. Winn 477 
 
 V. Wood 247, 368, 369, 566 
 
 Home Mut. Fire Ins. Co. v. Gar- 
 field 294 E, 430, 432, 501 
 I'. Hauslein 264, 379 
 Home Mut. Ins. Co. v. Oregon 
 
 Ky. & Nav. Co. 453 
 
 V. Roe 420 B 
 
 Home Mut. Life Ass. v. Gillespie 296 
 
 Home Protection Ins. Co, v. Avery 361 
 
 V. Caldwell Bros. 86 
 
 Homer v. Dorr 179 B 
 
 V. Guardian, &c. Ins. Co. 350 a, 362 
 
 Hone V. Allen 549 h, 694 
 
 V. Ballin 549 6 
 
 V. Folger 549 b 
 
 V. Mut. Saf. Ins. Co. 11, 11 A, 180 
 
 Hong Sling v. National Ass. Co. 404 
 
 V. Royal Ins. Co. 479 
 
 Honnick v. Phoenix Ins. Co. 190' 
 
 Honore v. Lamar Ins. Co. 424, 456, 457 
 
 Honour ti. Equitable L. Ass. Society .3 
 
 Hood V. Manhattan Fire Ins. Co. 420' 
 
 Hook w. Mut. F. Ins. Co. 368. 
 
 Hooker v. Sugg 399 L, 399 N 
 
 Hooksett V. Concord R. R. Co. 94 
 
 Hoop, The 86 
 
 Hooper v. Ace. Death Ins. Co. 522 
 
 V. California 578 a 
 
 V. Hudson R. Ins. Co. 101, 381 
 
 387,' 420 N 
 
 V. Robinson 100, 448 
 
 Hoose V. Prescott Ins. Co. 294, 294 b 
 
 Hope Ins. Co. v. Brolaskey 288 
 
 0. Weed 549, 551 
 
 Hope Mut. Life Ins. Co. v. Perkins 549, 
 
 551 
 Hope Mut., &c. Ins. Co. u. Beek- 
 
 man 552 
 
 Hopkins v. Hopkins 399 
 
 V. Northwestern L. Ass. Co. 324, 
 
 399 D 
 
 xlvii 
 
TABLE OF CASES. 
 
 [The references are to the sectioDB.] 
 
 Section 
 Hopkins v. Phoenix Ins. Co. 67 
 
 V. Provincial Ins. Co. 285 
 
 Horn V. Amicable Mut. Life Ins. 
 
 Co. 186, 2V4 
 
 V. Anglo-Australian & Uni- 
 versal Life Ins. Co. 323 
 Hornthal v. Ins. Co. 144 A 
 Horridge v, Dwelling-House Ins. 
 
 Co. 365 
 
 Horsch V. Dwelling-House Ins. Co. 81 
 
 Horst V. Ins. Co. 488 
 
 Horter v. Merchant's Mut. Ins. Co. 45 a 
 
 Horton i'. Equitable Life Ins. Co. 191, 
 
 299, 301 
 
 V. NevF York L. Ins. Co. 66 A 
 
 u. Sayer 494 
 
 V. Va. L. Ins. Co. 274 
 
 Horwitz V. Eq. Mut. Ins. Co. 144, 370 
 
 Hosford V. Germania Fire Ins. Co. 157, 
 
 159, 292 B 
 
 V. Hartford Fire Ins. Co. 292 A 
 
 Hotchkiss V. Germania Fire Ins. 
 
 Co. 151 
 
 V. Home Ins. Co. 249 I 
 
 v. Phcenix Ins. Co. 247 
 
 Hough V. Mtna Fire Ins. Co. 456 
 
 V. City Fire Ins. Co. 132, 164, 248, 
 
 283 288 
 
 V. People's Ins. Co. 366, 421,' 424, 
 
 427, 434, 436 
 
 Houghton u. Manufrs. Mut. Fire 
 
 Ins. Co. 158, 159, 164, 198, 199, 202, 
 
 218, 254 
 
 Hovey v. Am. Mut. Ins. Co. 250 
 
 V. Home Ins. Co. 595 
 
 How V. Union Mut. Life Ins. Co. 341 
 
 Howard v. Albany Ins. Co. 100, 101, 
 
 ■ ' 281 
 
 V. City Fire Ins. Co. 373, 587 
 
 V. Continental Life Ins. Co. 341 
 
 i: Franklin Mut. & Fire Ins. 
 
 Co. 478 
 
 V. Great Western Ins. Co. 179 C 
 V. Kentucky & Louisville 
 
 Mut. Ins. Co. 225, 490 
 
 V. Lancashire Ins. Co. 75 A, 
 
 100 A 
 
 Howard's (Sir K.) Case 400 
 
 Howard Fire & Mar. Ins, Co. v. 
 
 Cormick 156, 160, 178, 228,243, 590 
 Howard Fire Ins. Co. v. Norwich, 
 
 &c. Co. 417 
 
 Howard Ins. Co. v. Bruner, 142, 143, 
 
 144, 149, 269, 294 
 
 u. Owen 23 C, 151 
 
 V. Scribner 366, 434, 435 
 
 Howell V. Bait. Eq. Soc. 227 
 
 V. Gordon 40 
 
 V. Hartford Fire Ins. Co. 199, 428, 
 
 477, 583 
 
 xlviii 
 
 Section 
 Howell V. Knickerbocker Life Ins. 
 
 Go. 192, 346, 352 
 
 Howland v. Continental Ins. Co. 67, 
 
 349 
 
 V. Cuykendall 549 
 
 V. Edmonds 549 
 
 Howson V. Hancock 567 
 
 Hoxsie V. Prov. Mut. Fire Ins. Co. 
 
 376, 379, 501 
 Hoyt B. Oilman 567 
 
 V. Hartford Fire Ins. Co. 379 
 
 V. Mutual Benefit Life Ins. 
 
 Co. 55, 64 
 
 V. N. Y. Life Ins. Co. 106, 109 
 
 Hubbard v. Glover 188 D 
 
 V. Hartford Ins. Co. 23, 286, 365, 
 365 B, 477 
 v. Mutual Ace. Ass'n 515 a 
 
 V. Mutual Reserve Fund Life 
 
 Ass'n 303 
 
 V. Turner 399 D 
 
 Hubert v. Southern Live-Stock 
 
 Ins. Co. 547 
 
 Huchberger u. Merchant's Fire 
 
 Ins. Co. 583, 591 
 
 Huck V. Globe Ins. Co. 412 
 
 Huckberger v. Prov. Wash, Ins. 
 
 Co. 465 
 
 Huckins v. People's Mut. Ins. Co. 410, 
 
 425 
 Huckman v. Fernie 123, 212, 213, 
 
 304 
 Huey V. Ewell 447 A 
 
 Hugg 0. Augusta Marine Ins. Co. 
 
 421a 
 Hughes V. City Fire Ins. Co. 191 
 
 V. Ins. Co. of North America 365 
 V. London Ass. Co. 493 
 
 V. Mercantile Mut. Ins. 43 D 
 
 V. Mut. Fire Ins. Co. of New- 
 castle 386, 492 
 Huguenin v. Rayley 195, 215, 305 
 Hugus V. Strickler 25 
 Hull V. Equitable Ace. Ass. 524 A 
 V. Hull 399 G 
 V. North Western, &c. Ins. 
 
 Co. 344 a, 345 a 
 
 Humboldt Fire Ins. Co. v. Mears 241 
 Hume V. Prov. Washington Ins. 
 
 Co. 86 
 
 Humphrey v. Arabin 115, 456 
 
 V. Hartford Fire Ins. Co. 23, 379 
 
 Hunell V. BuUard 124 
 
 Hunt V. Hudson R. Fire Ins. Co. 590 
 
 V. Mercantile Ins. Co. 294 E 
 
 Hunter v. Cobb 25 
 
 V. Scott 399 Q 
 
 Huntley u. Merrill 66 
 
 V. Perry 555 
 
 Hurd V. Doty 112 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Hurd V. Masonic Mut. Ben. Soc. 165, 
 
 303 
 
 V. Missouri 214 
 
 V. St. Paul, &o. Ins. Co. 285 
 
 V. Williamsburg, &c. Ins. Co. 485 
 
 Hurlburt v. Carter 557, 594 
 
 Hurlbut V. Hurlbut 378, 391 B 
 
 Hurrell v. BuUard 154 A 
 
 Hurst V. Litchfield 492 
 
 Hustisford F. M. Ins. Co. <,. C. M. 
 
 & St. P. R. R. Co. 454 
 
 Hutchcraft's Exr. i^. Travellers' 
 
 Ins. Co. 520 A 
 
 Hutcheson v. Nat. Loan Fund 
 
 Life Ins. Co. 187 
 
 Hutehings v. Miner 459 B 
 
 V. Munger 360 F 
 
 Hutcliins V. Cleveland Mut. Ins. 
 
 Co. 291 
 
 V. Western Ins. Co. 370 
 
 Hutchison v. Bowker 172 A 
 
 V. Liverpool, &c. Ins. Co. 494 
 
 V. Nat. Loan Ins. Co. 156, 202, 
 
 295, 296 
 
 V. Niagara, &o. Ins. Co. 420, 468 
 
 o. Western Ins. Co. 361, 370, 372 
 
 Hutson V. Merrifield 390, 398 
 
 Hutton u. Beacon Ins. Co. 370 
 
 0. Waterloo Life Ins. Co. 212, 299, 
 
 304 
 
 Hyatt V. Wait 553 
 
 Hyde v. Goodnow 66 
 
 V. Lynde 555 
 
 Hygum u. Mtna, Ins. Co. 439 
 
 Hynds v. Schenectady County 
 
 Mut. Ins. Co. 242 
 
 I. 
 
 Idaho Forwarding Co. u. Fire- 
 man's Fund Ins. Co. 70 B 
 Ide i: Phcenix Ins. Co. 345 B, 504 
 Illinois Ins. Co. v. Archdeacon 488 
 V. Fix 379, 381 
 Illinois Mason's Soc. v. Winthrop 166, 
 
 296 
 Illinois Mut. Fire Ins. Co. v. O'Neile 
 
 579 B 
 0. Stanton 143, 282, 383, 387, 550 
 Illinois Mut. Ins. Co. v. Andes 
 
 Ins. Co. 11, 11 A 
 
 V. Marseilles Manuf. Co. 287, 5'JO 
 
 ^. Mette 263 A, 294 G 
 
 v. O'Neil 367 
 
 Illinois, &c. Soc. v. Baldwin 180 
 
 Imperial Fire Ins. Co. o. Coos 
 
 County 159, 175, 240 
 
 V. Dunbar 29 C 
 
 V. Dunham 287 C, 878, 386 
 
 VOL. I. — d 
 
 Section 
 Imperial Fire Ins. Co. o. Express 
 
 Co. 416 a 
 
 V. Kiernan 249 D 
 
 V. Murray 126, 151, 424 
 
 Imperial Ins. Co. v. Gunning 573 
 
 Imperial L. Ins. Co. v. Glass 360 
 
 Imperial Manuf. Co. v. American 
 
 Credit Ind. Co. 469 C 
 
 Improved-Match Co. u. Michigan 
 
 Mut. F. Ins. Co. 125 
 
 Inbusch V. North Western Nat. 
 
 Ins. Co. 191 
 
 Independent Ins. Co. v. Brehm 245, 
 
 292 B 
 V. Capehart 469 D, 478 A, 589 
 V. Hartwell 67, 71, 589 
 
 Independent Mut. Ins. Co. o. Ag- 
 
 new J 404 
 
 Indiana Ins. Co. u. Capehart 138 
 
 Indiana Mut. Fire Ins. Co. v. Co- 
 
 quellard 269, 553, 554 
 
 V. Routledge 491 
 
 Indiana Mut. Ins. Co. v. Cham- 
 berlain 266 
 V. Connor 554 
 Indiana, &c. Ins. Co. v. Connor 553, 554 
 IngersoU v. Knights of tlie Golden 
 
 Rule 323, 325 
 
 V. Mo. Valley Life Ins. Co. 597 
 
 Ingrams v. Mut. Ass. Soc. 555 
 
 Inland Ins. Co. v. Stauffer 368, 463 
 
 Inraan v. Globe Mut. Life Ins. Co. 
 
 186, 345, 346 
 
 V. Western Pire Ins. Co. 462 
 
 Innes v. Eq. Ass. Co. 104 
 
 In re Benham's Trust 465 
 
 Commonwealth Ins. Co. 594 a 
 
 Earl of Winchelsea Pol. Trusts 
 
 349 A 
 Magawley's Trust 391 B 
 
 Me Kinney 594 
 
 Security Life Ins. & Annuity 
 
 Co. 594 a 
 
 Turcan 399 A 
 
 Wm. Phillips' Insurance 399 F 
 Ins. Com'r u. People's F. las. Co. 67, 67 L 
 Insurance Co. v. Bailey 107 
 
 V. Baring 93 A 
 
 V. Barnes 126 
 
 V. Bennett 325 
 
 V. Bonner 345 a 
 
 V. Braden 425 B 
 
 V. Brecheisen 67 
 
 a. Brim 462 
 
 V. Camp 133 A 
 
 v. Chase 80, 122 A, 184 
 
 u. Colt 23, 45 a, 120, 360 B 
 
 V. Connor 468, 562 
 
 V. Crockett 287 C 
 
 V. Cusick 124 A, 144 C, 469 B 
 
 xlix 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 
 Insurance v. Dunham 2, 11 A 
 
 «. Easton 457 A 
 
 V. Eggleston 352, 358, 502 
 
 0. Express Co. 417 
 
 V. Fidelity, &c. Co. _ 454 
 
 V. Fogarty ' 421 a 
 
 V. Foley 299 
 
 V. Folsom 200 
 
 V. Garland 249 B 
 
 V. Gordon 272 
 
 V. Gridley 296 
 
 V. Hardie 345 E 
 
 V. Haven 287 
 
 V. Hogue 126 
 ii. Huglies 239 B, 241, 591 
 
 V. Ins. Co. 11, 22 
 
 V. Jarvis 557 
 
 V. Johnson 49, 58, 126 
 
 u. Lauderdale 299 
 
 0. Lee 124 A, 469 
 
 V. Leslie 30 
 
 V. Lyman 70 B 
 
 V. Mahone 499 
 
 V. McCluokin 373 A 
 
 V. Melvin 246 A 
 
 V. Morely 536 
 
 V. Morse 578 
 
 V. Mowry 192 
 
 o. Nat'l Bank 273 A 
 
 u. Newton 465 
 
 -. Pacaud 364 
 
 y. Pyle 185, 567 
 
 v. Raden 67 B, 67 G 
 
 V. Robinson 344 D 
 
 V. Roth 499 B 
 
 V. Seitz 590 
 
 c. Sherwood 408 
 
 u. Simpson 82 
 
 V. Slaughter 193 
 
 V. Starr 591 
 
 '.: Stinson 82, 93 
 V. Stockbower 354 A, 502, 504, 553 
 
 V. Transportation Co. 402 
 
 V. Trask 459 F 
 
 V. Tullidge 1-37 A 
 
 V. Tweed 415, 618 
 
 V. UpdegrafE 83 a, 424 
 
 u. Webster 57, 69 
 V. Weides 465, 466, 476, 477 
 
 V. Wells 249 F 
 
 ti. Whipple 577 
 
 V. Wilgus 287 
 
 V. Wilkinson 120, 145, 296 
 
 V. Williams 138 C, 144 A 
 
 V. Willis 459 G 
 
 V. Wolff 602 
 Insurance Cos. v. Thompson 81, 82, 95 
 Ins. Co. of North America v. 
 
 Bachler 30, 294 E 
 
 I/. Forcheimer 72 
 
 1 
 
 Section 
 Ins. Co. of North America v. 
 
 Hi hernia Ins. Co. 11 
 
 V. Hofing 277 
 
 V. Hope 469 B 
 
 V. Johnson 287 B 
 
 V. McDowell 101, 241, 245, 294a, 
 365 a, 374, 405,479 
 V. St. Louis, &c. Ry. Co, 457 A 
 Insurance Co. of PennsylTania v. 
 
 Smith 584 
 
 Internal Life Ass. Soc. and Her- 
 cules Soc, In n 597 
 International Fire Ins. Co. v. 
 
 Boardman 83 
 
 International Ins. Co. v. Franklin 
 
 Ins. Co. 67, 574 
 
 Int'l Nav. Co. v. Atlantic Mut. 
 
 Ins. Co. 453 
 
 International Trust Co. f. Board- 
 man 111 
 V. Norwich U. F. Ins. Co. 70 B 
 Ionia, &c. Farmers' Mut. F. Ins. 
 
 Co. V. Ionia Circuit Judge 557 
 V. Otto 557 
 
 Ionia County Sav. Bank v. Mc- 
 Lean 398, 459 E 
 lonides «. Universal Ins. Co. 417 
 Iowa L. Ins. Co. u. Eastern Mut. 
 
 L. Ins. Co. 11 
 
 Iowa State Mut. Ins. Co. v. Prosser 553 
 Irvin V. Sea Ins. Co. 188 B 
 
 Irving w. Excelsior Fire Ins. Co. 285, 
 288, 477 
 Isaacs H. Royal Ins. Co. 400, 401 
 
 Isett V. American Life Ins. Co. 317, 325 
 Isitt V. R. R. Pass. Ass. Co. 523 A 
 
 Jackson v. British America Ass. 
 
 Co. 177 
 
 V. Farmers' Mut. Fire Ins. 
 
 Co. 291, 292, 365, 447 
 
 u. Forster 324 
 
 u. Mass. Mut. Fire Ins. Co. 269, 
 
 365, 365 B, 555 
 
 V. Northwestern Mut. Rel. 
 
 Ass. 563 A 
 
 V. Roberts 557 
 
 t . St. Paul Fire & Mar. Ins. 
 
 Co. 11, 12B 
 
 V. "Van Slyke 549, 559 
 
 Jackson Bank a. Williams 399 E 
 
 Jackson Co. c. Boylston Ins. Co. 457 B 
 
 Jacob w. Cont. Ins. Co. 392 
 
 Jacobs V. Eagle Mut. Fire Ins. Co. 290 
 
 V. Eq. Ins. Co. 365, 368 
 
 V. Nat. Life Ins. Co. 322 
 
 V. New York L. Ins. Co. 159 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 
 Jacoway w. Ins. Co. 345 G 
 
 Jamea v. Jellison 75 B 
 
 u. Lycoming Eire Ins. Co. 224, 
 
 232, 239 
 
 V. Stookley 138 A 
 
 James River Ins. Co. v. Merritt 263 
 
 Jameson v. Hartford F. Ins. Co. 11 
 
 V. Royal Ins. Co. 408 
 
 Janneck v. Met'n L. Ins. Co. 175, 299 
 
 Jarman v. Knights Templars' L. 
 
 Ind. Co. 325, 327 
 
 V. St. Louis, &c. Ins. Co. 349 
 
 Jarvis v. Conn. Mut., &c. Ins. Co. 322 
 J. B. Ehrsam M. Co. c. Plienix 
 
 Ins. Co. 158 
 
 Jecker v. Montgomery 350 
 
 Jecks V. St. Louis, &c. Ins. Co. 269 a 
 JefEerson Ins. Co. v. Cotheal 159, 164, 
 239, 580 
 Jeffries v. Economical Life Ins. 
 
 Co. 185, 206 
 
 V. Union Mut. Life Ins. Co. 156 
 
 Jenkins v. Armour 596 
 
 V. Quincy Mut. Fire Ins. Co. 145, 
 
 287 
 
 Jennings o-. Chenango Co. Mut. 
 
 Ins. Co. 143, 157, 218, 258 
 
 V. Metropolitan Life Ins. Co. 511 
 Jerrett v, John Hancock M. L. 
 
 Ins. Co. 298 
 
 Jersey City Ins. Co. v. Carson 501 
 V. Nichol 365 B, 425, 477 
 
 Jessel V. Williamsburg Ins. Co. 446 
 Jewett V. Home Ins. Co. 507 
 
 Johannes v. Phenix Ins. Co. 12 
 
 V. Standard Fire Office 287 C 
 
 Johansen v. Home F. Ins. Co. 270 
 
 John Hancock, &c. Ins. Co. v. 
 
 Daly 299 
 
 u. Dick 465 
 
 „. Moore 320, 585 
 
 V. Schlink 360 
 
 Johns V. Northwestern Mut. Re- 
 lief Ass'n 325 
 Johnson v. Amer. Fire Ins. Co. 364 A, 
 
 496 a 
 V. Berkshire Mut. Fire Ins. 
 
 Co. 408 
 
 V. Campbell 421 
 
 V. Com. Fire Ins. Co. 70 B 
 
 «. Continental Ins. Co. 575 
 
 V. Dakota F. & M. Ins. Co. 144 D 
 V. H. Ins. Co. 479, 577 
 
 y. Humboldt Ins. Co. 421 «, 492 
 V. Knights of Honor 399 D 
 
 u. London Guaranty & Ac. 
 
 Co. 306, 531 A 
 
 (,. Mass. Benefit Ass'n 567 
 
 u. New York Bowery Fire 
 
 Ins. Co. 365 
 
 Section 
 Johnson v. North British L. M. 
 
 Ins. Co. 365 
 
 V. Norwalk F. Ins. Co. 248 
 
 V. Phcenix Ins. Co. 466 
 
 V. Southern Mut. Life Ins. 
 
 Co. 344 F, 345 E 
 
 V. Swire 391 B 
 
 V. Union, &c. Ins. Co. 246 
 
 V. Van Epps 899 E, 399 N, 399 
 Johnston v. Columbian Ins. Co. 469 
 V. Niagara Fire Ins. Co. 420 
 
 V. West of Scotland Ins. Co. 412 
 Johnstone v. Niagara Dist. Mut. 
 
 Fire Ins. Co. 140, 397 
 
 Johffe V. Madison Mut. Ins. Co. 67, 358, 
 
 502 a 
 Jolly's Adm'r v. Bait. Eq. Soc. 207, 224, 
 
 410 
 Jones V. Mtna Ins. Co, 134, 360 B 
 
 V. Cons. Investment & Ass. 
 
 Co. 324, 395 
 
 V. Dana 133, 552 
 
 V. Fireman's Fund Ins. Co. 232, 246 
 V. German Ins. Co. 401, 478 
 
 V. Gorham 823 
 
 0. Granite State F. Ins. Co. 247 
 V. Ins. Co. 4 
 
 V. Life Ass. Co. 358 
 
 V. Maine Mut. Fire Ins. Co. 367 
 V. Mechanics' Fire Ins. Co. 188 B, 
 469 B 
 u. New York Life Ins. Co. 
 
 55 A, 70 a, 177,379 
 „. Phoenix Ins. Co. 279 
 
 u. Preferred Bankers' L. Ass. 
 
 Co. 70 C 
 
 V. Provincial Ins. Co. 202, 210, 
 
 296, 573 
 
 V. Sisson 559, 562 
 
 V. Smith 577 
 
 V. Southern Ins. Co. 263 A 
 
 V. U. S. M. Aco. Ass'n 531 A 
 
 Jones et al. v. Keene 397 
 
 Jones Manuf. Co. v. Manufrs., &c. 
 
 Ins. Co. 250 
 
 Jordan v. State Ins. Co. 249 1, 502 
 
 Joshua Hendy Machine Works v. 
 
 American Steam-Boiler Ins. Co. 67 
 Joy V. Security F. Ins. Co. 80 
 
 Joyce V. Maine Ins. Co. 16 1 , 225, 247, 580 
 Joye V. South Carolina Mut. Ins. 
 
 Co. 452 F 
 
 Jube V. Brooklyn Fire Ins. Co. 465 
 Judah V. Randall 421 a 
 
 Judale V. American Ins. Co. 552 
 
 Judge V. Conn. Fire Ins. Co. 269 
 
 Judkins v. Un. Mut. Fire Ins. Co. 480 
 Juhel V. Delonguemere 567 
 
 Jurgens v. New York Life Ins. 
 Co. 399 D 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 K. 
 
 Section 
 
 Kahn v. Traders' Ins. Co. 368, 369, 
 
 469 D, 477, 494 
 
 Kalme v. Ins. Co. of N. A. 55 A 
 
 Kalmweiler v. Phenix Ins. Co. 465, 
 
 492, 494 
 
 Kaines v. Knightly 27 
 
 Kane v. Com. Ins. Co. 30 
 
 V. Hibernia Mut. Fire Ins. 
 
 Co. 276 C, 583 
 
 V. Reserve Mut. Life Ins. Co. 107 
 Kanody v. Gore Dist. 378 A 
 
 Kansal ». Minn. Life & Fire Ass. 
 
 124 A, 144 A 
 Kansas Farmers' F. Ins. Co. v. 
 
 Saindon 125, 257, 270 
 
 Kansas Ins. Co. v. Berry 456 
 
 V. Craft 428 
 
 Kansas Mill-owners' M. F. Ins. 
 
 Co. V. Central Nat. Bank 144 A 
 
 Karelsen v. Sun Fire Office 44, 67 G, 
 
 469 
 Karow v. Continental Ins. Co. 407 A 
 Kasten v. Interstate Cas. Co. 617 A 
 Keatley v Travellers' Ins. Co. 298 
 
 Keeler v. Niagara Ins. Co. 143, 184, 
 280, 384, 502 
 Keeley v. Ins. Co. 424 
 
 Keels V. Mut. Reserve Fund Ass. 307, 
 
 587 A 
 Keenan v. Dubuque Mut. Fire 
 
 Ins. Co. 502 
 
 </. Missouri State Mut. Ins. 
 
 Co. 132 
 
 Keene v. New England M. A. 
 
 Ass'n 617 A, 531 A 
 
 Keeney v. Home Ins. Co. 178, 276 A 
 Kebler ;;. New Orleans Ins. Co. 67 H 
 Keini v. Home Ins. Co. 478 
 
 V. Home Mut. Ins. Co. 45 a 
 
 Keith V. Globe Ins. Co. 95, 131, 207, 
 
 215 a 
 V. Protective Mar. Ins. Co. of 
 
 Paris 75 
 
 V. Quincy Mut. Fire Ins. Co. 249 
 
 Keller v. Eq. Fire Ins. Co. 133, 192, 
 
 216 
 
 V. Gaylor 390 
 
 V. Merchants' Ins. Co. 80 
 
 V. Travelers' Ins. Co. 825 
 
 Kelley v. Com. Ins. Co. 22, 62, 65 
 
 V. Home Ins. Co. 248 
 
 u. Ins. Co. 84 
 
 V. Liverpool, &c. Ins. Co. 269, 365 
 
 V. Solari 575 
 
 V. Troy Fire Ins. Co. 132, 143, 
 
 557, 560 
 
 Kellner v. Mutual L. Ins. Co. 69 a, 340 
 
 Kellogg V. Ch. & N. W. R. R. Co. 411, 
 
 518 
 
 lii 
 
 Section 
 Kells V. Northwestern Live-stock 
 
 Ins. Co. 287 B, 547 
 
 Kelly V. Com. Ins. Co. 22, 62, 65 
 
 V. Life Ins. Clearing Co. 303 
 
 V. Liverpool, &c. Ins. Co. 82 
 
 V. Norwich Union F. Ins. Co. 379 
 u. Worcester Mut. Fire Ins. 
 
 Co. 246 
 
 Kelsey v. Hochelaga Mut. Fire 
 
 Ins. Co. 208 
 
 V. Universal Life Ins. Co. 203, 214 
 Kempton v. State Ins. Co. 267 
 
 Kendall v. Equitable L. Ass. So- 
 ciety 379 
 V. Holland Purchase Ins. Co. 463 
 Kendrick v. Mutual Benefit L. 
 
 Ins. Co. 65 A, 359 
 
 Kennan v. Rundle 591 A 
 
 Kennebec Co. v. Augusta Ins. & 
 
 Banking Co. 23, 151, 154 
 
 Kennedy v. Agr. Ins. Co. 145 
 
 V. Home Ins. Co. 468 
 
 u. N. Y. Life Ins. Co. 117 
 
 V. St. Lawrence Co. Mut. Ins. 
 
 Co. 143, 206, 228, 258 
 
 KennistoD v, Merrimack Co. Mut. 
 
 Ins. Co. 406 
 
 Kenny v. Union Mar. Ins. Co. 425 
 
 Kensington, Ex parte 291 
 
 Kensington Nat. Bank v. Yerkes 158, 
 
 294 
 
 Kent V. Bird 27, 74 
 
 V. Liverpool & L. Ins. Co. 420 
 
 V. Manchester 566 
 
 Kenton Ins. Co. v. Shea 365 a, 372 
 
 V. Wiggintou 30, 287 B, 460 
 
 Kentucky v. Ins. Co. 648 
 
 Kentucky Ins. Co. v. R. R. Co. 454 
 
 Kentucky Life & Ac. Ins. Co. v. 
 
 Franklin 306 
 
 V. Hamilton 75 B, 112, 117, 398, 
 497, 690 
 Kentucky Masonic Ins. Co. v. Mil- 
 ler 560 a 
 Kentucky Mut. Ins. Co. v. Jenks 60, 
 347, 400, 566 
 Kentucky Mut. Life Ins. Co. v. 
 
 Calvert 174 
 
 Kentucky & Louisville Mut. Ins. 
 
 Co. V. Southard 159, 163, 164, 591 
 
 Kentucky, &c. Ins. Co. v. Mather 563 
 
 V. Yates 390 
 
 Kenyon v. Berthon 158 
 
 V. Knights Templar Ass'n 144 A, 
 
 306 
 
 Kepler v. Supreme Lodge 399 J 
 
 Kerlin v. National Ace. Ass'n 360 
 
 Kerraan v. Howard 391 
 
 Kern v. South St. Louis Mut. Fire 
 
 Ins. Co. 580 
 
TABLE OF CASES. 
 
 [The references are to the sections.]' 
 
 Section 
 Kernochan v. N. Y. Bowery Fire 
 
 Ins. Co. 1 IB, 215 a, 424, 456, 457, 504 
 Kerr v. Brit. Am. Ass. Co. 466 
 
 V. Gore Dist. Mut. Fire Ins. 
 
 Co. 283 
 
 V. Hastings Mut. Fire Ins. 
 
 Co. 282, 386 
 
 V. Minn. Mut. Ben. Ass'n 322, 
 
 324, 327 A 
 
 Kershaw v. Kelsey 42, 350 
 
 Ketcham v. American Mut. Aco. 
 
 Ass'n 513 
 
 Ketohum v. Prot. Ins. Co. 447, 466, 
 47a, 484, 488, 590, 591 
 Kettenring v. Northwestern Ma- 
 sonic Aid Ass'n 465 
 Key V. Des Moines Ins. Co. 133 A 
 0. National L. Ins. Co. 567 
 Keyser v. Hartford Fire Ins. Co. 365 B 
 Keystone Mut. Ben. Ass. v. Norris 
 
 102 A, 110, 483 
 Kibhe v. Hamilton Mut. Ins. Co. 145, 
 
 288 
 
 V. Travellers' Ins. Co. 501 
 
 Kidder v. Travelers' Ins. Co. 56 
 
 Kiesel ;;. Sun Ins. Office 412 
 
 Kill V. Hollister 492, 495 
 
 Killips V. Putnam Fire Ins. Co. 461, 
 
 468, 488 
 
 Kimball v. Mtna. Ins. Co. 182, 192, 
 
 194, 248 
 
 V. Hamilton Ins. Co. 476, 505 
 
 u. Howard Fire Ins. Co. 277, 368, 
 
 371,462, 
 
 V Lion Ins. Co. 43 F 
 
 V. Monarch Ins. Co. 249 A, 294 
 
 u. Springfield Fire & Mar. 
 
 Ins. Co. 182 
 
 Kincade v. Bradshaw 583 
 
 King V. Ace. Life Fund 597 
 
 V. MVna, Ins. Co. 67 
 
 V. Council Bluffs Ins. Co. 502 
 
 V. Enterprise Ins. Co. 589 
 
 u. Hekla Fire Ins. Co. 70 B, 100 A, 
 
 469 
 
 f. Joliffe 179 A 
 
 V. Preston 456 
 
 V. Prince Edward Ins Co. 425 
 
 V. State Mut. Fire Ins. Co. 74, 116, 
 
 456 
 
 V. Walker 421 a 
 
 !;. WatertownFirelns. Co. 479,488 
 
 King Brick M. Co. o. Phoenix Ins. 
 
 Co. 156, 250 
 
 Kings Co. Fire Ins. Co. v. Swigert 
 
 124 A, 1.33 A, 239 A 
 Kingsley v. N. E. Mut. Fire Ins 
 
 Co. 156, 158, 162, 229, 446, 462 
 
 Kingston v. JLtna Ins. Co. 144 A 
 
 V. South Aus. Ins. Co. 70 C 
 
 Section- 
 Kingston Bank y. Eltinge 575 
 Kinney v. Baltimore, &c. Relief 
 
 Ass'n 494 
 
 Kip V. Mut. Fire Ins> Co. 456, 561 
 
 Kircher v. Milwaukee M. M. Ins. 
 
 Co. 245 
 
 Kirk V. Dodge Co., &o. Ins. Co. 368 
 Kirkman v. I'armers' Ins. Co. 469 D 
 Kirkpatrick v. Knickerbocker Life 
 
 Ins. Co. 344 a 
 
 Kitchen v. Hartford Ins. Co. 372 A 
 Kittanning Ins. Co. v. Hebb 579 
 
 Kitts V. Massasoit Ins. Co. 273 , 
 
 Klein v. Liverpool, &c. Ins. Co. 21 
 
 V. Union Fire Ins. Co. 279, 452 B 
 Kleis V. Niagara Fire Ins. Co. 566 
 
 Kline v. Nat. Ben. Ass. 359, 399 L 
 Knapp V. Homoeopathic Life Ins. 
 
 Co. 344 a 
 
 V. Preferred Mut. Aco. Ass. 523 A 
 Knapp, &c. Co. o. Nat. Mut. Fire 
 
 Ins. Co. 577 
 
 Knarston v. Manhattan L. Ins. Co. 360 
 Knauer v. Globe, &c. Ins. Co. 566 
 
 Knecht v. Mut. Life Ins. Co. 188, 191, 
 
 299 
 Knickerbocker Ins. Co. v. Corn- 
 stock 592 
 u. Gould 401, 462, 465 
 V. McGinnis 462 
 Knickerbocker Life Ins. Co. v. 
 
 Heidel 159, 344 H 
 
 V. Pendleton 342 A, 469 
 
 w. Weitz 390,391 
 
 Knickerbocker, &c. Ins. Co. v. 
 
 Deitz 345 a 
 
 u. Harlem 345 a 
 
 V. Peters 312 
 
 Knight V. Eureka, &c. Ins. Co. 365 
 
 Knights of Maccabees v. Volkert 306 
 
 Knights of Pythias v. Beck 325 
 
 V. Cogbill 187, 303 
 
 V. Rosenfeld 298 
 
 V. Stein S25 
 
 «. Withers 124 A 
 
 Knights Templar Ind. Co. v. Berry 327 
 
 V. Jacobus 70 C 
 
 Knights Templars' Mut. Aid Ass'n 
 
 V. Greene 399 D 
 
 Knop V. National F. Ins. Co. 285, 477 
 Knorr v. Home Ins. Co. 569 A 
 
 Knowles v. Scribner 583 
 
 Knox V. Lycoming Ins. Co. 498 
 
 V. Turner 8, 449 
 
 Knoxville F. Ins. Co. v. Hird 263 A 
 Koehler v. Centennial Mut. Life 
 
 Ins. Co. 399 G 
 
 Kohen v. Mut. Reserve Fund Life 
 
 Ass. 55 A 
 
 Kohne v. Ins. Co. of North America 45 
 
 liii 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 
 Kolgers v. Guard. Life Ins. Co. 126 
 
 Konrad v. Union Cas. Co. 325 
 
 Kooistra v. Rocltford Ins. Co. 67 L 
 
 Koontz V. Hannibal Ins. Co. 172 A 
 
 r. Hannibal Sec. Ass. 189, 278 
 
 Korn V. iVlut. Ass. Co. of Va. 66 A 
 
 Kosliland v. Fire Ass'n 270, 590 
 
 V. Hartford Ins. Co. 269, 276, 285, 
 
 294 C 
 
 V. Home Ins. Co. 270 
 
 Kratzenstein v. Western Ass Co. 175, 
 
 177 
 •Krause v. Equitable L. Ass. So- 
 ciety 95 A, 360 
 Kreutz v. Niagara Dist. Mut. Fire 
 
 Ins. Co. 143, 189, 227, 502 
 
 Kronls «. Birmingham Ins. Co. 82, 285 
 Krug V. German F. Ins. Co. 230, 248 
 Kruger «. Western Fire & Mar. 
 
 Ins. Co. 501,511 
 
 Krumm t;. Ins. Co. 154 A 
 
 Kulen Kemp v. Vigne 2 
 
 Kuner v. Amazon Ins Co. 154 A 
 
 Kunzee v. Am. Exch. Fire Ins. Co. 70 u, 
 
 401a 
 
 Kynaston v. Liddell 496 B 
 
 Kyner v. Kyner 454 
 
 Kyte V. Com. Union- Ass. Co. 137 A, 
 
 245, 273 
 
 L. 
 
 Lackey i/. Georgia Home Ins. 
 
 Co. 365 
 
 Laclede Fire-Brick Manuf. Co. v. 
 
 Hartford, &c. Ins. Co. 239 
 
 La Compagnie D'Ass., &c. v. 
 
 Grammon 342, 342 A, 359 
 
 Ladd V. Mtnn Ins. Co. 253 
 
 Lafarge v. Liv., Lon., & Globe Ins. 
 
 Co. 465 
 
 Lafleur v. Citizens' Ass. Co. 59, 372 
 La Fonderie v. La Cour d'Ass. 504 A 
 L'Agricole c. Chaumiere 365 a 
 
 Lagrone i\ Timmerman 591 A 
 
 Laidlaw v. Liverpool, &o. Ins. Co. 207, 
 
 285 
 L'Aigle c. Aubry 356 
 
 Lake i'. Farmers' Ins. Co. 469 C, 469 D 
 Lake Erie & W. R Co. v. Falk 453 
 Lakings v. Phoenix Ins. Co. 401 a, 420 
 Lamar Ins. Co. v. McGlashen 428 
 
 Lamatt v. Hudson, &c. Ins. Co. 192 
 Lamb v. Council Bluffs Ins. Co. 188 C, 
 
 294 D 
 Lamberton v. Conn. Fire Ins. Co. 249 J 
 Lament v. Hotel Men's Mut. Ben. 
 
 Ass. 399 
 
 Lampkin ;■. Western Ass. Co. 488 
 
 liv 
 
 Section 
 
 Lamson Consolidated Store-Ser- 
 vice Co. V. Prudential F. Ins. 
 Co. 494 
 
 Lancashire Ins Co. v. Boardman 269 
 V. IS ill 67 F 
 
 Lancaster's Case 594 a 
 
 Lancaster Fire Ins. Co. v. Lenheim 233 
 Lancaster Mills v. Merchants' Cot- 
 ton Press Co. 72 
 Lancaster Silver Plate Co. v. Man- 
 chester Ass. Co. 239 A 
 V. National F. Ins. Co. 239 A 
 Laneey v. Phoenix Fire Ins. Co. 70 a, 
 
 190 
 Landis v. Home Mut. Fire & Mar. 
 
 Ins Co. 69 
 
 Landrum v. Knowles 391 
 
 Lane v. Maine Mut. Fire Ins Co. 101, 
 
 265, 272, 274, 278, 690 
 
 Lang V. Delaware Mut , &c. Ins. 
 
 Co. 572 
 
 u. Hawkeye Ins Co. 287 C, 291 
 
 Langan v Royal Ins. Co. 477 
 
 Langdale v. Mason 403 
 
 Langdon v. Minnesota Farmers' 
 
 Mutual Fire Ins. Ass'n 
 
 V. Minn. Mut. Ins. Co. 273 
 
 V. N. Y. Eq. Ins. Co. 191, 230, 
 
 242 
 
 i^. Union Mar. Life Ins. Co. 110, 
 
 154 A, 188 C 
 
 Langley v. Queen's Ins. Co. 91 
 
 Langston, Ex parte 291 
 
 Langworthy v. Oswego Ins. Co. 401 a 
 
 L'Anse Village v. Fire Ass'n of 
 
 Philadelphia 401 a 
 
 Lantalum o. Anchor Mar. Ins. Co. 493 
 Lantz 0. Vermont L. Ins. Co. 340 
 
 Lapeer Ins. Co. v. Doyle 172 A 
 
 Lappin v. Charter Oak Ins. Co. 266, 
 
 448 
 Larkin v. Interstate Cas. Co. 517 A 
 La Eocque v. Royal Ins. Co. 373 A 
 Laselle u. Ins. Co. 249 D, 249 E 
 
 Lasher v. N. W. Nat. Ins. Co. 447 A 
 V. St. Joseph Fire & Mar. Ins. 
 
 Co. 501 
 
 La Socie'te de Bienfaisance, &c. v. 
 Morris, &c. Agts. of Home Ins. 
 Co. 360 B, 469 
 
 Latham v. Smith 25 
 
 Latimore v. Dwelling-House Ins. 
 
 Co. 67, 566 
 
 Latoix u. Germania Ins. Co. 67B, 360B 
 
 Lattan v. Royal Ins. Co. 67 C, 67 F, 
 
 67 J, 425 
 
 Lattomius v. Farm. Mut. Fire 
 
 Ins. Co. 79 D, 221, 222 
 
 Laurent v. Chatham Fire Ins. Co. 30, 
 
 31, 81, 424 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 
 L'Automedon c. Isot 638 
 
 Lavabre v. Wilson 222 
 
 Law V. Hand-in-Hand Ins. Co. 602 
 
 V. London Indisputable Life 
 
 Policy Co. 8, 115 
 
 V. New England Mut. Aoc. 
 
 Ass'n 488 
 
 Lawe V. Hyde 170 
 
 Lawing v. Rintleo 462 A 
 
 Lawless u. Tenn. Mar. & Fire 
 
 Ins. Co. 245 
 
 Lawrence v. Ace. Ins. Co. 523 A 
 
 ... Holyoke Ins. Co. 379 
 
 V. McCready 59(i 
 
 V. Mut. Life Ins. Co. 326 
 
 V. Nat. Fire Ins. Co. 246 
 
 V, Nelson 596 
 
 V. Ocean Ins. Co. 474 
 
 V. Sebor 352 E 
 
 u. St. Mark's Fire Ins. Co. 84 
 
 V. Van Home 285 
 
 Lazarus v. Com. Ins. Co. 268, 379 
 
 Lea V. Hinton 469 A 
 
 Leach v. Republic Fire Ins. Co. 180 a, 
 
 373, 491, 492 
 
 Leadbetter v. jEtna Ins. Co. 466 
 
 Leathers v. Com. Ins. Co. 38, 287 
 
 Leavitt v. VT'estern Mar. & Fire 
 
 Ins. Co. 365 a, 445 
 
 Lebanon Mut. Ins. Co. w. Erb 263 B, 
 
 287 C, 349 B, 4B9 
 
 V. Hoover 360 A 
 
 V. Kepler 403, 434, 465, 601 
 
 .,■. Losch 221, 294 C 
 
 Ledyard v. Hartford Fire Ins. Co. 566 
 
 Lee, Ex parte 37 
 
 V. Abdy 379 
 
 V. Adsit 445 
 
 V. Guardian Life Ins. Co. 143 
 
 u. Howard Fire Ins. Co. 101, 145, 
 
 223, 237, 242, 277, 374, 424 
 
 V. Mutual Reserve Fund Life 
 
 Ass'n 557 
 
 V. Union Central L. Ins. Co. 340 
 
 Leeds y. Cheetham 6 
 
 0. Mechanics' Ins. Co. 70 B, 177 
 
 Lefavour v. Ins. Co. 44, 216, 363 
 
 Leggett V. Mtna, Ins. Co. 178, 228, 
 
 239, 241, 242, 243 
 
 Lehman v. Clark 667 
 
 0. Great Eastern Cas. & Ins. 
 
 Co. 631 A 
 
 V. Gunn 459 B 
 
 Leibrandt, &c. Co. v. Fireman's 
 
 Ins. Co. 365 C 
 
 Leinhauf v. Caiman 391 B 
 
 Leman v. Manhattan L. Ins. Co. 325, 
 
 465 
 Lemon v. Phoenix Mut. Life Ins. 
 Co. 395, 397 
 
 Section 
 Lenig V. Eisenhart 398 
 
 Lentz V. Teutonia Fire Ins. Co. 479 
 Leonard v. Eagle Life & Health 
 
 Ins. Co. 117 
 
 V. Washburn 567, 577 
 
 Leonarda v. Phoenix Ins. Co. 79, 81, 423 
 
 Le Pypre v. Farr 422 A 
 
 Lerow v. Wilmarth 88, 469 G 
 
 Le Roy v. Globe Ins. Co. 694 a 
 
 V. Market Ins. Co. 51, 159, 185 
 
 V. Park Fire Ins. Co. 159, 199 
 
 Leslie v. French 349 A 
 
 V. Knickerbocker Ins. Co. 497 
 
 Le Soleil v. Alby 83 a 
 
 V. Delord 67 
 
 Lester v. Webb 345 E 
 
 Lett V. Guardian Fire Ins. Co. 67, 279, 
 
 467 C 
 
 Levi V. N. 0. Ins. Ass. 411 
 
 Levie v. Met'n Life Ins. Co. 156, 298 
 
 Levine v. Lancashire Ins. Co. 263 A 
 
 Levy V. Baillie 477 
 
 V. Merrill 402 
 
 V. Peabody Ins. Co. 372, 589 
 
 V. Virginia Fire Ins. Co. 479 
 
 Lewis V. Atlas, &c. Ins Co. 576 
 
 V. Council Bluffs Ins. Co. 294 C 
 
 ti. Hudman 579 
 
 u. Monmouth Mut. Fire Ins. 
 
 Co. 464, 468, 504 
 
 V. Mut. Reserve Fund L. 
 
 Ass'n 358 
 
 V. N. E. Fire Ins. Co. 287 C 
 
 V. Phoenix Mut. Life Ins. Co. 107, 
 202, 341, 346, 356, 393, 668 
 0. Rucker 30 
 
 V. Springfield Fire & Mar. 
 
 Ins. Co. 404, 412 
 
 Lexington Ins. Co. v. Paver 188 C, 207 
 Libby v. Libby 399 M 
 
 Libenstein v. Mtna Ins. Co. 420 
 
 V. Baltic Ins. Co. 420 
 
 Liberty Hall Ass. v. Housatonic 
 
 Mut. Fire Ins. Co. 166, 501 
 
 Liberty Ins. Co. v. Boulden 287 B 
 
 License Tax Cases 25 
 
 Liddle u. Market Ins. Co. 132 190,371 
 Liebenstein v. Baltic Fire Ins. Co. 
 
 420 B 
 
 Lieber v. London, &c. Ins. Co. 414 
 
 Life Ass. V. Goode 465, 471 
 
 V. Lemke 563 A 
 
 Life Ass. Co. of Scotland v. Foster 200, 
 
 202, 296, 297 
 
 Life Ins. Co. v. Davidge 346 B, 359 
 
 V. Le Pert 345 D 
 
 V. M'Cram 398 
 
 V. Terry .307 
 
 Life Ins. Clearing Co. u. Altshuler 298, 
 
 360 
 
 Iv 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Life Ins. Clearing Co. v. Bullock 340 
 Lightboiiy v. N. A. Ins. Co. 43, 44, 00, 
 130, 216 a, 400 
 Ligon's Adm'rs v. Ins. Co. 4Ba B, 475 
 Limburg v. German F. Ins. Co. 240, 248 
 Limerick v. Gorham 345 H 
 
 Liudauer v. Del. Mut. Safety Ins. 16, 
 
 43 A 
 Linde v. Republic Fire Ins. Co. 4'i3 A 
 Liudeneau v. Desborough 123, 201, 20.3, 
 207, 213, 296 
 Linder v. Fidelity & Cas. Co. 379 
 
 Lindner v. St. Paul F. & M. Ir.s. 
 
 Co. 287 B, 421 a 
 
 Lindsey .;. Union Mut. Fire Ins, 
 
 Co. 160, 225 
 
 Linford v. Provincial Horse & 
 
 Cattle Ins. Co. 137 
 
 Lingenfelter v. Phoenix Ins. Co. 23 A 
 Lingley v. Queen Ins. Co. 373 
 
 Lipman v. Niagara Fire Ins. Co. 54 B 
 Lippincott v. Ins. Co. 566 A 
 
 Lippman v. jEtua Ins. Co. 369 
 
 Liscom V. Boston Mut. Fire Ins. 
 
 Co. 366, 423 
 
 Lisheman u. Northern, &c. Ins. 
 
 Co. 190 
 
 Litch V. N. British, &c. Ins. Co. 249 C 
 Little V. Eureka Ins. Co. 67, 67 K. 264, 
 
 ■ 273 
 V. Ins. Co. 260 A 
 
 V. North Western, &c. Ins. 
 
 Co. 344 a 
 
 V. O'Brien 23 D 
 
 V. Phoenix Ins. Co. 469 B, 488 
 
 Liverpool Ins. Co. v. Moss 578 A 
 
 V. Wyld 566 
 
 Liverpool, Lond., and Globe Ins. 
 
 Co. V. Sorsliy 511 
 
 Liverpool & Great Western Steam 
 
 Co. V. Phenix Ins. Co. 457 A 
 
 Liverpool, &c. Ins. Co. v. Buck- 
 staff 248 
 V. Cochran 287 B 
 0. Creighton 493 
 V. Ellington 263 A 
 V. Ende 133 A, 502 
 V. Farnsworth Lumber Co. 239 
 V. Gunther 227, 234 
 u. Kearney 175, 263 A 
 u. McGuire 247, 249 B, 283 
 !'. McNeill 420 
 V. Sheffy 363 A, 369 
 V. Van Os 144 F, 175, 177, 239 
 V. Verdier 365, 434, 439 
 Livings v. Domett .391 O 
 V. Home Mut. Fire Ins. Co. 423 B 
 Livingston v. Md. Ins. Co. 207 
 V. Stickles 170, 267 
 Livingstone v. Western Ins. Co. 379 
 
 Ivi 
 
 Section 
 
 Lloyd V. West Branch Bank 23 D 
 
 Locke V. N. A. Fire Ins. Co. 185 
 
 Lock wood V. Bishop 399 N 
 
 i;. Middlesex Mut. Ass. Co. 70 a, 
 
 249 B, 280, 286, 292, 292 A, 
 
 372 C 
 
 Lockyer v. Offley S52 
 
 Lodge !.•. Capital Ins. Co. 291 A 
 
 Loeb u. American Central Ins. 
 
 Co. 126 
 
 Loehner w. Home Mut. Ins. Co. 137, 
 
 189, 245 
 
 Logan V. Com. Union Ins. Co. 406 
 
 Lohiies V. Ins. Co. of N. A. 126, 129, 
 
 409 
 
 Lomas v. Brit. Am. Ass. Co. 221, 226 
 
 London Ass. Co. v. Drennen 240 
 
 V. Paterson 4.34 
 
 London Ass Soc. v. Mansel 212, 573 
 
 London, &c. Ins. Co. v. Fischer 175, 
 
 239 A, 294 E 
 
 V. Gerteson 250, 294 E 
 
 V. Honey 493 
 
 V. Monteflore 377 
 
 V. Sainsbury 453 
 
 V. Storrs 494 
 
 V, Turnbull 365 
 
 London, &c. Life Ins. Co. v. La- 
 
 pierre 109, 567 
 
 I,. Lycoming Ins. Co. 12 C 
 
 V. Turnbull 126 A 
 
 London R. E. Co. v. Glynn 424 
 
 Long V. Allen 173 
 
 V. Beeber 218, 227 
 
 V. North British & Merc. Ins. 
 
 Co. 70 B 
 
 V. Penn Ins. Co. 596 
 
 Longhurst v. Conway Fire Ins. 
 
 Co. 161, 256, 263, 288, 291, 
 
 293, 4G6, 479 
 
 V. Star Ins. Co. 9.3, 487, 503, 566 
 
 Longmaid et ux. v. Holliday 453 
 
 Longman v. Grand Junction Canal 
 
 Co. 454 
 
 Long Pond Ins. Co. v. Houghton 557, 
 
 559, 560 
 
 Longueville v. Western Ass. Co. 219, 
 
 420 
 
 Loomis V. Eagle L. & H. Ins. Co. 7, 
 
 106, 107, 117 
 
 •D. Rockford Ins. Co. 189 
 
 V. Shaw 79 
 
 Looney v. Looney 399 I 
 
 Loos V. John Hancock Mut. L. 
 
 Ins. Co. 399 D, 445 
 
 Lord V. Dall 71, 102, 105, 107, 117,246 
 Lorie v. Conn., &c. Ins. Co. 339 
 
 Lorillard Fire Ins. Co. r. McCul- 
 
 loch 166, 285, 497, 501 
 
 Loring v. Manuf. Ins. Co. 227, 379, 447 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Loring v. Proctor 55 A 
 
 V. Steinenian 465 
 
 Lothrop V. Greenfield Stock & 
 
 Mut. Fire Ins. Co. 35(3 A, 562 
 
 Loud V. Citizens' Mut. Ins. Co. 171, 
 219, 407 A 
 Louisiana Mut. Ins. Co. v. New 
 
 Orleans Ins. Co. 197 
 
 Louisville & N. R. Co. v. Manches- 
 ter Mills 45.3 
 Louisville Underwriters v. Pence 67, 
 
 360 
 Lounsbury v. Prot. Ins. Co. 239, 245, 
 465, 590 
 Loveioy v. Augusta Mut. Fire Ins. 
 
 Co. 189, 277 
 
 f. Hartford Fire Ins. Co. 459 F 
 Lovell V. St. Louis Mut. Life Ins. 
 
 Co. 13-3, 344 D 
 
 Loventhal v. Home Ins. Co. 83 a, 287 B 
 Levering a. Mercantile Mar. Ins. 
 
 Co. 422 A 
 
 Lovewell v. Westchester Ins. Co. 420 
 Lovick V. Providence L. Ass'n 70 C 
 Lowe V. United States Mut. Acci- 
 dent Ass'n 478 
 Lowell V. Accident Ins. Co. 530 
 (/. Middlesex Mut. Ins. Co. 290, 
 447 
 Lowell Manuf. Co. v. Safeguard 
 
 Fire Ins. Co. 434 
 
 Lowene v. American Fire Ins. Co. 594 a 
 
 Lowestone v. Royal Ass. Co. 81 
 
 Lowndes v. Stamford 493 
 
 Lowry V. Bourdieu 567 
 
 V. Ins. Co. of North America 449 
 
 V. Lancashire Ins. Co. 473 A 
 
 Loy V. Ins. Co. 269 a, 276 C 
 
 Lozano v. Palatine Ins. Co. 263 A 
 
 Lubelsky v. Royal Ins. Co. 249 I 
 
 Lucas V. Ins. Co. 424 
 
 V. Jeflerson Ins. Co. 13, 434 
 
 Luce V. Dorchester Ins. Co. 31, 248, 
 
 580, 582 
 
 V. Springfield Fire & Mar. Ins. 
 
 Co. 51 
 
 Lucena v. Craufurd 1, 73, 75, 77, 115 
 Luciani v. American Fire Ins. Co. 27 
 
 70 a 
 
 Ludlow V. Union Ins. Co. 579 
 
 Ludwig V. Jersey City Ins. Co. 70 a, 
 
 70 B, 190, 501 
 
 Lueder's Ex'rs v. Hartford Life & 
 
 An. Ins. Co. 303, 563 A 
 
 Luling V. Atlantic Mut. Ins. Co. 428, 
 
 571 
 Lum V. United States F. Ins. Co. 
 
 70 B, 469 C 
 Lumbermen's Mut. Ins. Co. v. 
 Bell 125, 144 A, 469 C 
 
 Section 
 Lumbermen's Mut. Ins. Co. v. 
 Kansas City, Ft. S. & M. R. Co. 66 A, 
 
 453 
 Lundy v. Luudy 407 
 
 Lungstrass v. German Ins. Co. 53 
 
 Lutlie V. Farmers' Mut. Fire Ins. 
 
 Co. 591 A 
 
 Lycoming Co. Mut. Ins. Co. v. 
 
 Langley 137 A 
 
 V. Mitchell 30 
 
 u. Roughts 560 B 
 
 V. SchoUenberger 126, 144 
 
 V. Schreffler 447, 504, 579 
 
 V. Stocklomn 502 
 
 V. Updegraflf 401 a, 475 
 
 Lycoming Fire Ins. Co. v. Kubin 
 
 373 A, 579 
 
 V. Schwenk 403 
 
 V. Storrs 352 A, 589 
 
 V. Ward 135 
 
 Lycoming Ins. Co. v. Barringer 372 C, 
 
 408 
 V. Dunmore 469, 469 B 
 
 V. Jackson 159 
 
 V. Sailer 401 a, 420 
 
 V. Schreffler 579 
 
 V. Woodworth 126, 497 
 
 Lycoming Mut. Fire Ins. Co. u. 
 
 Bedford 134 
 
 Lycoming Mut. Ins. Co.!;. Wright 560 A 
 
 Lyman v. State Mut. Fire Ins. Co. 67, 
 
 219, 226, 580 
 
 Lynch v. Burgoyne 345 E 
 
 V. Dalzell 6, 100, 377 
 
 V. Dunsford 122 
 
 V. Morse 25 
 
 Lynchburg Hose Fire Ins. Co. v. 
 
 Knox 41, .351, 486 
 
 Lynde v. Newark Ins. Co. 379, 385 A 
 Lynn v. Burgoyne 65, 154, 555 
 
 Lynn Gas & Electric Co. v. Meri- 
 
 den Ins. Co. 402 
 
 Lyon V. Commercial Ins. Co. 207, 212, 
 
 247 
 V. Dakota Ins. Co. 294 E 
 
 V. Railway Pass. Ass. Co. 522 
 
 V. Stadacona Ins. Co. 255 
 
 V. Travelers' Ins. Co. 175, 345 B 
 Lyons v. Globe Mut. Fire Ins. Co. 505 
 
 553 
 V. Prov. Wash. Ins. Co. 401 B 
 
 M. 
 
 McAUaster u. Niagara Fire Ins. 
 
 Co. 4.30 
 
 McAllister-w. Tenn. Ins. Co. 415 
 
 McAllister, Adm'x, v. N. E. Mut. 
 
 Life Ins. Co. 67, 342 
 
 Ivii 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 McAnally d. Somerset Co. Mut. 
 
 Ins. Co. 249 
 
 MeArthur x: Globe Mut. L. Ins. 
 
 Co. 144 B 
 
 V. Home Life Ass. 144 G 
 
 McBride v. Kepublic Fire Ins. Co. 
 
 209, 499, 505 
 McCabe v. Mtna. Ins. Co. 21, 70 B 
 McCall V. Flioenix M. Life Ins. 
 
 Co. 144 B, 305, 363 A 
 
 McCann v. Mtna. Ins. Co. 566 C 
 
 MeCartee v. Camel 465 
 
 McCartliy n. Catholic Knights 305 
 
 V. Met'n L. Ins. Co. 16, 
 
 399 D 
 
 V. Travellers' Ins. Co. 515 a. 618 
 
 McCartney v. Stafe Ins. Co. 67 B 
 
 Macarty v. Com. Ins. Co. 85, 264, 424 
 
 Macaulay v. Central Nat. Bank 399 N 
 
 McClave v. Mutual lieserve Fund 
 
 L. Ass'n 159 
 
 MoCluer V. Girard 219, 420 
 
 V. Home Ins. Co. 602 
 
 MoClure u. Lancashire Ins. Co. 
 
 401 a 
 
 V. Mut. Life Ins. Co. 325 
 
 V. Watertown Ins. Co. 248 
 
 McCluskey v. Prov. Ins. Co. 379 
 
 McCollum V. Liverpool, London 
 
 & Globe Ins. Co. 138 
 
 V. Mutual L. Ins. Co. 168 
 
 McComas v. Covenant Mut. Life 
 
 Ins. Co. 469 
 
 McConnell u. Delaware Ins. Co. 575, 
 
 583 
 
 V. Iowa Mut. Aid Ass'n 156 
 
 McCord V. Noyes 388, 447 
 
 McCormick v. Ferner 81 
 
 V. North British Ins. Co. 589 
 
 r. Royal Ins. Co. 239 
 
 McCoubrav v. St. Paul F. & M. 
 
 Ins. Co. " 469 D 
 
 McCoy V. Iowa State Ins. Co. 267, 
 287 B, 420, 497 
 V. Metropolitan Life Ins. Co. 
 
 145 A 
 u. Northwestern Mut. Relief 
 
 Ass'n 657 
 
 V. Roman Catholic Mut. Ins. 
 
 Co. 557 
 
 McCraig v. Quaker City Ins. Co. 424 
 McCraw v. Old North, &o. Ins. Co. 368 
 McCrea v. Waterloo Co. Mut. Ins. 
 
 Co. 369 
 
 McCullooh V. Eagle Ins. Co. 19, 46, 48 
 V. Gore, &c. Ins. Co. 425 
 
 V. Indiana Mut. Fire Ins. Co. 
 
 266, 269, 548, 554, 563 
 
 V. Norwood 287 C 
 
 McCuUough V. Talladega Ins. Co. 591 
 
 Iviii 
 
 Section 
 MacCuteheon v. Ingraham 87 A 
 
 MoCutcheon's Appl. 391 A, 459 B 
 
 McDermott u. Centennial Mut. 
 
 Life Ass. 399 G 
 
 McDonald v. Adm'r of Black 452 E 
 
 V. Bankers' L. Ass'n 327, 465 
 
 V. Black 452 B 
 
 f. Law Union Fire & Life 
 
 Ins. Co. 206 
 
 V. Loan, &c. Ins. Co. 185 
 
 !;. Phila. F. Ass'n 126 
 
 V. Triple Alliance 407 
 
 McDonell v. Beacon Fire & Life 
 
 Ins. Co. 207, 364 
 
 McDonnell v. Ala. Gold Life Ins. 
 
 Co. 344 I), 594 a 
 
 V. Carr 357 
 
 McDougal V. Provident Say. L. 
 
 Ass'n 356 A 
 
 McDowell V. Mtna, Ins. Co. 494 
 
 Mace !.-. Life Ass. 188 B 
 
 McElroy v. British America Ass. 
 
 Co. 137 A, 144 D, 294 E, 360, 
 368 
 V. Continental Ins. Co. 479 
 
 V. John Hancock Mut. L. Ins. 
 
 Co. 276 A, 379, 465 
 
 McElwee v. New York Life Ins. 
 
 Co. 399 N 
 
 McEvers v. Lawrence 462, 594 
 
 McEvoy V. Nebraska & Iowa Ins. 
 
 Co. 345 E 
 
 McEwan v. Western Ins. Co. 267 
 
 McEwen v. Montgomery Co. Mut. 
 
 Ins. Co. 152, 368 
 
 McFarland v. Creath 398 A 
 
 V. Kittanning Ins. Co. 294 E, 469 C 
 V. Peabody Ins. Co. 215 A, 502, 504 
 V. St. Paul F. & In.s. Co. 239 A 
 !i. U. S. Mut. Ace. Ass'n 465 
 
 McFetridge c. American F. Ins. 
 
 Co. 294 E, 434 
 
 V. Pheuix Ins. Co. 287 B 
 
 McGibbon v. Imp. Fire Ins. Co. 423 B 
 McGinley v. U. S. Life Ins. Co. 299 
 McGivney v. Plioenix Fire Ins. Co. 87 
 McGlinchey v. Fidelity and Cas- 
 ualty Co. 617 A 
 McGlother v. Provident Mut. Ace. 
 
 Co. 517 A 
 
 McGonigle u. Agricultural Ins. 
 
 Co. 294 E 
 
 V. Susquehanna Mut. F. Ins. 
 
 Co. 125, 161, 230, 294 E, 405, 
 465, 471 
 McGovern v. Hoesback 25 
 
 McGraw v. Germania Fire Ins. Co. 67 J, 
 124 A, 476 
 McGuire v. Hartford F. Ins. Co. 144 A 
 McGurk V. Metro. Life Ins. Co. 502 
 
TABLE OF CASES. 
 
 [The referencBB are to the Beetions.] 
 
 McHale r. McDonnell 83, 112, 379 
 
 Machette v. N. E. Ins. Co. 576 
 
 Machine Co. v. Ins. Co. 55 A, 360 
 
 McHoney v. German Ins. Co. 144 D 
 McHugli V. Imp. Fire Ins. Co. 56B 
 
 Mclntire v. J^'orwicli Fire Ins. Co. 269 a 
 V. Plaisted 449 
 
 V. Preston 649 
 
 Maclntyre v. Cotton States Life 
 
 Ins. Co. 566 C 
 
 Mclntyre v. Mich. State Ins. Co. 137 A, 
 
 345 E 
 Mack V. Lancashire Ins. Co. 424, 583 
 V. Rochester German Ins. Co. 240 
 McKean v. Com. Union Ins. Co. 471 
 McKee v. Plioenix Ins. Co. 107 6, 363 A, 
 429, 667, 568 
 McKelvy v. German- American 
 
 Ins. Co. 364 
 
 McKenna v. State Ins. Co. 356 A 
 
 McKenty v. Universal Life Ins. Co. 115 
 McKenzie v. Planters' Ins. Co. 591 
 
 V. Scottish Union & N. Ins. Co. 252 
 Mackenzie v. Whitworth 12 
 
 Mackie v. European Ins. Co. 58 
 
 McKinney v. German Mut. F. 
 
 Ins. Society 345 E 
 
 MacKinnon v. Mutual F. Ins. Co. 200 
 McKissickr. Mill Owners' Ins. Co. 269 a 
 McLachlin v. iEtna Ins. Co. 60, 365, 370 
 McLanahan v. Universal Ins. Co. 215 D 
 McLaren v. Hartford Fire Ins. Co. 264, 
 
 269 a 
 
 McLaughlin v. Atlantic Ins. Co. 29 A 
 
 V. Equitable L. Ass. Society 69 a 
 
 ... McLaughlin .399 
 
 V. Wash. Co. Mut. Ins. Co. 428, 475 
 
 McLean v. Piedmont, &c. Ins. Co. 356, 
 
 499 
 
 V. Republic Ins. Co. 67 L 
 
 McLeod V. Citizens' Ins. Co. 287,477 
 
 McLoon V. Com. Mut. Ins. Co. 156 
 
 McMalion v. Portsmouth Fire Ins. 
 
 Co. 366, 368 
 
 V. Trav. Ins. Co. 345 B 
 
 McManus v. iEtna Ins. Co. 468 
 
 McMaster v. Ins. Co. of N. A. 465, 477, 
 
 507 
 V. New York L. Ins. Co. 21, 144 D, 
 159, 356 A 
 McMasters i'. Westchester Co. 
 
 Mut. Ins. Co. 468 
 
 McMurrly v. Conn. Ins. Co. 578 
 
 McMurray v. Capital Ins. Co. 248, 294 E 
 McNally v. Phoenix Ins. Co. 247, 469 C 
 McNeilly v. Continental Life Ins. 
 
 Co. 126 
 
 McNierney v. Agr. Ins. Co. 253 B, 294 G 
 Macomber v. Cambridge Mut. F. 
 Ins. Co. 269 a 
 
 Section 
 Macomber v. Charter Oak Fire 
 
 Ins. Co. 238 
 
 V. Howard Fire Ins. Co. 233, 242 
 McPherson v. Proudfoot 456 
 
 McPike V. Western Assurance 
 
 Co. 138 
 
 McQueen v. Phcenix Mut. Ins. Co. 23, 
 
 264, 446 
 
 McQuitty u. Cont. Life Ins. Co. 29 A, 
 
 344 E, 345 E 
 
 MacRobbie v. Ace. Ins. Co. 531 
 
 McSwiney v. Royal Exch. Ass. Co. 83a 
 
 Mactier v. Frith 47 
 
 Macy V. Whaling Ins. Co. 179 A, 420 A 
 
 Madison Ins. Co. v. Fellowes 369, 483 
 
 Madsden v. Plioenix Ins. Co. 265, 468 
 
 Mahar v. Hibernia Ins. Co. 466, 477, 
 
 566, 579 
 
 Mahon v. Mut. Ins. Co. 287 
 
 Mahony ;;. Nat., &c. Life Ass. 497 
 
 Mahr v. Bartlett 379 
 
 V. Norwich Union F. Ins. 
 
 Society 379 
 
 Maier v. Fidelity M. L. Ass'n 298, 513 
 V. Railway Pass. Ins. Co. 531 
 
 Mailhoit v. Met'n L. Ins. Co. 667 
 
 Maine Benefit Ass. o. Parks 295 
 
 Maine Mut. Ins. Co. v. Scranton 549 
 Maine Mut. Mar. Ins. Co. v. Neal 5.59 
 V. Stockwell 345 G 
 
 Malicki v. Chicago Guaranty 
 
 Fund L. Society 299, 306 
 
 Malleable Iron Works v. Phoenix 
 
 Ins. Co. 120, 129 
 
 Malley v. Atlantic Ins. Co. 279 
 
 Mallory v. Farmers' Ins. Co. 291 
 
 V. Ohio Farmers' Ins. Co. 67 G 
 
 V. Travelers' Ins. Co. 202,20.3, 215, 
 
 296, 315, 322, 325, 419, 517 
 
 Maloy !'. Met'n L. Ins. Co. 360 
 
 Malt V. Rom. Cath. Mut., &c. Ins. 602 
 
 Manby v. Gresham Life Ins. Co. 496 
 
 Manchester F. Ass. Co. v. 
 
 Abrams 287 B 
 
 V. Feibelman 30, 287 B 
 
 V. Glenn 189, .379 
 
 V. Koerner 189, 452 F 
 
 Mandego v. Centennial Mut. Life 
 
 Ass. 860 F 
 
 Maneely v. Knights of B. 399 E 
 
 Manhattan Fire Ins. Co. v. Stein 264, 
 
 ■ 365 a, 505 
 
 V. Weill 287 
 
 Manhattan Ins. Co. u. Barker 287 
 
 V. Webster 99, 130, 131 
 
 Manhattan Life Ins. Co. v. Brough- 
 
 ton 307, 322, 325 
 
 V. Carder 187 
 
 V. Fields 465 
 
 V. Francisco 296 
 
 lix 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Manhattan Life Ins. Co. v. Hen- 
 
 nessy 83, 398 
 
 V. Hoelyle 345 a 
 
 V. Smitli . 356 A, 868, 399 P 
 
 V. Warwick 30, 39, 3y A, 40, 360, 
 
 ,360 
 
 V. Willis 181, 501 
 
 Manlove v. Com'l Mut. F. Ins. Co. 67 
 
 Mann v. Herkimer County Mut. 
 
 Ins. Co. 447 
 
 Mansfield v. Stevens 459 G 
 
 Manson v. Grand Lodge 560 B 
 
 Mansur v. N. E. Mut. Mar. Ins. 
 
 Co. 401 
 
 Manton v. Robinson 69 a 
 
 Manufacturers' Ace. I. Co. v. Dor- 
 
 gan 168, 298, 531 A 
 
 Manufacturers', &o. Ins. Co. v. 
 
 Armstrong 240 
 
 V. Gent 400 
 
 V. Kunkle 218 
 
 V. Western Ass. Co. 12 B 
 
 Manx V. Nat. Mar. Ins. Co. 45 a 
 
 Mapes V. Coffin 469 F 
 
 Marbleliead Mut. Fire Ins. Co. v. 
 
 Hayward 569 
 
 V. Underwood 145, 658 
 
 March v. Met'n L. Ins. Co. 156, 186, 
 
 187, 298 
 
 Marchesseau v. Merchants' Ins. 
 
 Co. 428, 477 
 
 Marcus v. St. Louis Fire Ins. Co. 129, 
 
 135, 136, 395, 396 
 
 Marden v. Hotel Owners' Ins. Co. 66 
 
 Mareck v. Mutual Eeserve Fund 
 
 L. Ass'n 327, 478 
 
 Maril v. Conn. F. Ins. Co. 177, 289, 
 
 2.39 A 
 Marine Ins. Co. «. St. Louis, &c. 
 
 Ry. Co. 453 
 
 V. Winemore 93 A 
 
 Marion v. Great Rep. Ins. Co. 477 
 
 V. Universal Life Ins. Co. 511 
 
 Mark v. jEtna Ins. Co. 413 
 
 V. Nat. Fire Ins. Co. 294 E, 492 
 
 Markey v. Mut. Ben. Life Ins. Co. 56, 
 
 126, 666 
 
 Markle v. Niagara Ins. Co. 476 
 
 Marks v. Cass Co. Mill, &c. Co. 179 D 
 
 V. Hamilton 92 
 
 V. Hope Mut. Ins. Co. 58 
 
 Marland v. Royal Ins. Co. 123 
 
 Marquis of Winchester's Case 320 
 
 Marsden v. City and Country 
 
 Ass. Co. 138 C, 404 
 
 Marsh a. Robinson 447 A 
 
 Marshall v. Columbia Mut. Ins. 
 
 Co. 143, 180 a, 287 
 
 V. Emperor Life Ass. Co. 591 
 
 V. Reading F. Ins. Co. 151 
 
 Section 
 Marshall v. Thames Fire Ins. Co. 583 
 Marshinson c. North British, &c. 
 
 Ins. Co. 447, 502 
 
 Marskey v. Turner 300 
 
 Marston v. Kennebec Mut. L. Ins. 
 
 Co. 186 
 
 V. Mass. Life Ins. Co. 504 A 
 
 Martin v. MXna. Life Ins. Co. 133, 399 G, 
 
 567 
 V. Capital Ins. Co. 30, 406 
 
 V. Farmers' Ins. Co. 151, 267 
 
 V. Fishing Ins. Co. 469, 469 C 
 
 'v. Franklin Fire Ins. Co. 378, 379, 
 447, 580 
 V. Home Ins. Co. 70 a 
 
 V. Jersey City Ins. Co. 133 E, 
 
 246 A, 372 B 
 V. Mut. Fire Ins. Co. 145 
 
 u. Penobscot Mut. Fire Ins. 
 
 Co. 491 
 
 V. State Ins. Co. 166, 287 C, 488 
 V. Stubbings 75 B, 399 E, 399 
 y. Tradesmen's Ins. Co. 122 
 
 V. Travellers' Ins. Co. 514 
 
 Martine v. International Life Ins. 
 
 Co. ' 40, 126, 345, 350 
 
 Martineau!). Kitching 436 
 
 Marts V. Cumberland Ins. Co. 276 C 
 Marvin v. Bossiere 29 A 
 
 V. Brooks 344 D 
 
 V. Stadacona Ins. Co. 67, 447 
 
 Marx V. Travelers' Ins. Co. 524 A 
 
 Maryland Fire Ins. Co. v. Jusdorf 502, 
 
 511 
 
 «. Stone 172 A 
 
 V. Universal Life Ins. Co. 137 A 
 
 V. Whiteford 198, 245, 253 B, 408 
 
 Maryland Home F. Ins. Co. v. 
 
 Kimmell 566 
 
 Maryland Ins. Co. v. Bathurst 469 
 
 Mason v. Agr., &c. Ass. Co. 292, 373, 477 
 
 V. Andes Ins. Co. 365, 466 
 
 V. Citizens', &c. Ins. Co. 341, 468 
 
 V. Franklin Ins. Co. 420 
 
 -V. Hamilton Ins. Co. 478 
 
 V. Hartford Fire Ins. Co. 239 
 
 V. Harvey 465 
 
 V. La. St. Mar. & Fire Ins. Co. 589 
 
 V. Mason 466 
 
 V. Sainsbury 453, 464, 455 
 
 Masonic Ben. Ass'n v. Buncli 399 
 
 Masonic Mut. B. Soc. u. Beck 502 
 
 V. Burkhart 399 M 
 
 Masons' Benevolent Soc. v. Win- 
 
 throp 550 a 
 
 Masons' Union L. Ins. Ass'n v. 
 
 Brockman 299 
 
 Mass. Benefit L. Ass'n v. Hale 478 
 
 V. Robinson 70 C, 175, 303, 827, 
 
 345 E, 478 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Mass. Benefit L. Ass'n v. Sibley 55 A 
 Massachusetts Cath. Order of 
 
 Foresters v. Callahan 399 H 
 
 Massachusetts Life Ins. Co. v. 
 
 Eshelman 144 D 
 
 Massasoit Mills v. Western Ass. 
 
 Co. 67 
 
 Massev w. Cotton States Life Ins. 
 
 Co. ' 560 
 
 Masten v. Araerraan 459 O 
 
 Master v. Miller 37 ( 
 
 Masters v. Madison Co. Mut. Ins. 
 
 Co. 140, 143, 210, 259, 267, 29 1 
 
 Mathewson v. Eoyal Ins. Co. 83 a 
 
 Matson v. F. .rm Buildings Ins. Co. 241 
 
 V. Travellers' Ins. Co. 520 A 
 
 Matt V. Roman Cath. Mut. Prot. 
 
 Soo. 170 
 
 Matter of Booth 345 B, 399 P 
 
 Matter of Nevvland 44H 
 
 Matter of People's Mut. Eq. Fire 
 
 Ins. Co. 67 
 
 Matter of Webb 395 
 
 Matthes v. Imperial Ace. Ass'n 531 A 
 Matthews v. American Central 
 
 Ins. Co. 465 
 
 V. Gen. Mut. Ins. Co. of N. Y. 452 F 
 
 V. Howard Ins. Co. 411 A, 417 
 
 V. Huntley 583 
 
 V. Ins. Co. 343 
 
 V. Queen City Ins. Co. 445 
 
 Matthewson v. Western Ass. Co. 424 
 
 Mattocks V. Des Moines Ins. Co. 285, 370 
 
 Mattoon Manuf. Co. v. Oshkosh 43 F 
 
 Mauger v. Holyoke Mut. Fire Ins. 
 
 Co. 172 A, 579 B 
 
 Mawhinney v. Southern Ins. Co. 401 a 
 
 May V. Buckeye Mut. Ins. Co. 132, 143, 
 
 159, 250 
 
 </. Standard Ins. Co. 180 a, 274 
 
 V. Western Ass. Co. 213 
 
 Mayall v. Mitford 178, 253 
 
 Mayer v. Att'y-Gen. 504 a 
 
 V. Equitable Life Ass. 552 
 
 V. Equit. Reserve Fund Life 
 
 Ass. 295 
 
 V. Legrand 456 
 
 V. Mut. Life Ins, Co. 154, 356, 361 
 
 Mayhew v. Phcenix Ins, Co. 452 F, 575 
 
 Maynard v. Johnson 26 
 
 V. Rhode 123, 212, 213, 304 
 
 Mayor v. Lord 459 
 
 Mayor of N. Y. v. Hamilton Ins. 
 
 Co. 246 A, 479 
 
 V. Hamilton Mut. Ins. Co. 219, 
 231, 242, 487 
 Mayor, &c. of N. Y. v. Brooklyn 
 
 Fire Ins. Co. 84, 85, 192 
 
 V. Exchange Fire Ins. Co. 85 
 
 246 A 
 
 Section 
 Meacham v. N. Y. State Mut. 
 
 Benefit Ass. 299, 325 
 
 Mead v. Davidson 45 a 
 
 V. Northwestern Ins. Co. 234, 245, 
 
 262 
 
 ■;. Phenix Ins. Co. 420 
 
 V. Westchester Fire Ins. Co. 506 
 
 Meadowcraft v. Standard Fire 
 
 Ins. Co. 142, 401 a 
 
 Meadows v. Hawkeye Ins. Co. 270 C 
 
 V. Pacific M. L. Ins. Co. 581 A 
 
 Mears v. Humboldt Ins. Co. 239 
 
 Mechanics', &c. Ins. Co. u. Floyd 242, 
 
 263 A, 305 
 
 V. Hodge 240 
 
 Mechanics', &c. Soc. o. Gore Dist. 
 
 Ins. Co. 378 
 
 Mechanics' Fire Ins. Co. v. Nichols 434, 
 
 465 
 Mechler v. Phoenix Ins. Co. 82, 501 
 Mecke v. Life Ins. Co. of N. Y. 567 
 .Medcalf «. Brooklyn Life Ins. Co. 576 
 Medina v. Builders' Mut. Fire 
 
 Ins. Co. 420 A 
 
 Medina Ins. Co. v. Palm 58 
 
 Meesraan v. State Ins. Co. 479 
 
 Meier v. Meier 349 A 
 
 Melin v. Ace. Ins. Co. 360 C 
 
 Mellen u. Eagle L. & H. Ins. Co. 504 
 V. Hamilton Fire Ins. Co. 152, 
 
 368, 370, 386 
 Mellows V. Mellows 399 O, 459 D 
 
 Melville Mut. Fire Ins. Co. v. 
 
 Wilgus 287 C 
 
 Menk u..Home Ins. Co. 144 A 
 
 Menneiley v. Employers' L. As. 
 
 Corp. 324, 517 A, 523 A 
 
 Mensing v. Amer. Ins. Co. 137 A, 469 
 Mentz V. American Fire Ins. Co. 495 
 V. Lancaster Fire Ins. Co. 126 
 
 Menzies v. North Brit. Ins. Co. 423 
 Mercantile Ins. Co. v. Holthaus 466, 
 
 468 
 Mercantile Mut. Ins. Co. v. 
 
 Calebs 467 B 
 
 Merchants' & Manuf. Ins. Co. v. 
 
 Curran 501 
 
 V. Wash. Mut. Ins. Co. 200, 207, 
 241, 591 
 Merchants' & Mechanics' Ins. Co. 
 
 V. Schroeder 162 
 
 Merchants' Cotton-press Co. o. 
 
 Ins. Co. of North America 95 A 
 
 Merchants' Ins. Co. u. Brown 274 
 
 </. Clapp 567 
 
 u. Davenport 172 A 
 
 V. Edmand 174 
 
 .,. Gibbs 466 
 
 u. New Mexico Lumber Co. 239 
 (/. La Croix 478, 489 
 
 Ixi 
 
TABLE OF CASES. 
 
 [The references are to the Eections.] 
 
 Section 
 Merchants' Ins. Co. v. Mazange 456 
 V. Prince 67 L 
 
 Merchants' Mut. Ins. Co. v. Bar- 
 ins; 93 
 V. Leeds 549 b 
 ■V. Lyman 22 
 V. N. O. Mut. Ins. Co. H 
 V. Key 549 6 
 V. WUson 579 
 Mercliants', &c. Ins. Co. v. Vin- 
 
 Ing 465, 469 
 
 Merchants', &c. Trans. Co. ?'. As- 
 sociated Firemen's Ins. Co. 421 a 
 Merrett v. Farmers' Ins. Co. 81 
 
 0. Preferred Masonic Mut. 
 
 Ace. Ass'n 325 
 
 Merriam v. Middlesex Mut. Fire 
 
 Ins. Co. 195, i20, 223, 580 
 
 Merricls v. Brainard 455 
 
 V. Germania Fire Ins. Co 13, 435, 
 
 436 
 
 !■. Provincial Ins. Co. 239 
 
 Merrill v. Agr. Ins. Co. 291, 292 
 
 u. Colonial M. F. Ins. Co. 83, 379, 
 
 463 
 
 f. Farmers' Ins. Co. 397 
 
 V. N. E. Mut. Life Ins. Co. 390 
 
 Merry v. Prince 10 
 
 Mers V. Franklin Ins. Co. 285, 288 
 
 Merserau v Phoenix Mut. Life 
 
 Ins. Co. 126, 138, 511 
 
 Mershon v. Nat. Ins. Co. 448 
 
 Messelback v. Norman 247 
 
 Mesterman v. Home M. Ins. Co. 368 
 Metallic, &c. Co. v. Fitchburg 
 
 R. R. Co. 459 
 
 Met'n Ac. Ass'n v. Froiland 324 
 
 Met'n Ins. Co. v. Rutherford 465 
 
 Met'n L. Ins. Co. i'. Anderson 16, 
 
 287 B 
 V. nempsey 298, 479 
 
 u. Drach 175, 424 A 
 
 V. McCormick 67 
 
 1). McNali 578 o 
 
 V. McTague 70 C, 178, 304 
 
 I'. Monahon 112, 399 Q 
 
 o. Mulleady 126 
 
 ti. O'Brien 379 
 
 V. Shaffer 399 K 
 
 V. Trende 112 
 
 Met'n Safety Fund Ace. Ass'n v. 
 
 Windover 488 
 
 Meyer !•. Queen Ins. Co. 222 
 
 Meyer-Bruns v. Penn. M. L. Ins. 
 
 Co. 187 
 
 Meyers w. Schumann 398 
 
 Miaghan u. Hartford Fire Ins. Co. 
 
 294 E, 465 
 Miall V. Western Ins. Co. 379 
 
 Miami, &c. Ins. Co. v. Stanhope 274 
 
 Ixii 
 
 Section 
 Michael v. Mut. Ins. Co. of Nash- 
 ville 143, 359 
 V. St. Louis Mut. Fire Ins. 
 
 Co. 87 A 
 
 Michenor v. Payson 594 
 
 Michigan Mut. L. Ins. Co. v. 
 
 Naugle 322 
 
 V. Reed 567 
 
 Michigan Pipe Co. v. Michigan 
 
 F. & M. Co. 125 
 
 Michigan Shingle Co. v. State 
 
 Inv. & Ins Co. 239, 401 B 
 
 Michigan St. Ins. Co. v. Lewis 272, 
 497, 499, 511 
 Michigan, &c. Ins. Co. v. Bowes 344 a 
 Mickey v. Burlington Ins. Co. 255, 
 408, 488 
 Mickles v. Rochester City Bank 
 
 459 A 
 Midland Ins. Co. v. Smith 407 A, 457 
 Mildmay v. Folgliam 6 
 
 Miles V. Conn. Mut! Life Ins. Co. 201, 
 204, 205, 340 
 Milkman v. United Mut. Ins. Co. 230 
 Millard v. Supr. Council of Am. 
 
 Leg of Honor 469, 502 
 
 Millaudon v. Atlantic Ins. Co. 424, 492 
 
 493 
 
 V. Orleans Ins. Co. 415, 416 
 
 u. West Mar. & Fire Ins. C. 13, 31 
 
 Miller v. Alliance Ins. Co. 87 A, 287 C, 
 
 373 C 
 
 V. Amazon Ins. Co. 287 C 
 
 V. Brooklyn Life Ins. Co. 359, 
 
 360 
 
 V. Campbell 66, 386, 399 Q 
 
 0. Confederation Life Ass. Co. 161 
 
 y. Eagle Life & H. Ins. Co. 7, 106, 
 
 109, 466, 475, 476 
 
 V. Fidelity & Cas. Co. 324 
 
 V. Germania Fire Ins. Co. 30, 250, 
 
 292 
 
 V. Hartford Ins. Co. 133 A, 133 B, 
 
 466, 479 
 
 V. Hillsboro' Mut. Fire Ins. 
 
 Co. 552 
 
 V. Lite Ins. Co. 360 B 
 
 V. Morrow 25 
 
 V Mut Ben. Life Ins. Co. 143, 141 
 
 144 G, 164, 183, 185, 186, 301, 
 
 419, 499, 681 
 
 V. Phoenix Mut. Life Ins. Co. 305 
 
 V. Scottish Union Ins. Co. 126 
 
 V. Travelers' Ins. Co. 524 A 
 
 ■J. Union Central Life Ins. Co. 353 
 
 V. Western, &c. Ins. Co. 244 
 
 Millers' National Ins. Co. c. Kin- 
 
 neard 452 F 
 
 Milligan v. Equitable Ins. Co. 87 
 
 V. Goddard 510 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Milliken v. Woodward 447 A 
 
 Mills V. Farmers' Ins. Co. 101, 219, 278, 
 401 a, 420 
 «. Rebstock 324 
 
 Milner v. Bowman 399 E 
 
 Miltenberger v. Beacom 85, 122 A, 456 
 Milwaukee v. Kellogg 417 A 
 
 Milwaukee Meclianius' Ins. Co. v. 
 
 Graliam 364 
 
 I'. Ketterlin 6, 273 
 
 V. Palatine Ins. Co. 566 
 
 Miner v. Judson 555 
 
 V. Mich. Mut. Ben. Ass. 175 
 
 <^. Phoenix Ins. Co. 136, 143, 452 A, 
 
 499 
 
 V. Tagert 30 
 
 Minneapolis Threshing Machine 
 
 Co. V. Firemen's Ins. Co. 2-30 
 
 Minn. Title Ins. Co. v. Dre.xel 67 
 
 Minnock v. Eureka F. & M. Ins. 
 
 Co. 364, 369 
 
 Minor, Ex parte 456 
 
 Minturn v. Manufactures' Ins. Co. 379 
 Miotke V. Milwaukee Mechanics' 
 
 Ins. Co. 287 B 
 
 Mispelhorn v. Farmers' Ins. Co. 475 
 Missell V. Globe Mat. Ins. Co. 356 
 
 Misselhorn c. Mut. Reserve Fund 
 
 Life Ass. 55 A 
 
 Miss. Mut. Ins. Co. v. Ingram 423 
 
 Mississippi, &c. Life Ins. Co. v. 
 
 Neyland 134 
 
 Missouri Valley Life Ins. Co. v. 
 
 Dunklee 360 D 
 
 Missouri, &c. Ins. Co. v. Sturges 398 
 Mitchell V. Grand Lodge, K. of L. 
 
 399 E 
 
 V. Home Ins. Co. 76, 84 
 
 W.Lycoming Mut. Ins. Co. 101, 
 
 15.3, 365, 552 
 
 V. Minnesota F. Ass'n 138 
 
 v. Mut. Life Ins. Co. of N. Y. .37, 
 
 333 
 
 V. Orient Ins. Co. 138 
 
 V. Union Life Ins. Co. 105, 107, 422 
 
 Mitchell, &c. Co. u. Imperial Fire 
 
 Ins. Co. 172 A 
 
 Mix V. Andes Ins. Co. 479 
 
 V. Royal Ins. Co. 469 C 
 
 Moadinger v. Mech. Fire Ins. Co. 420, 
 
 477 
 Moakley v. Riggs 156 
 
 Mobile Ins. Co. v. Brame 453 
 
 Mobile Life Ins. Co. v. Morris 214 
 
 V. Pruett 502 
 
 V. Walker 169 
 
 Mobile Mar. Dock v. Mut. Ins. 
 
 Co. 22 
 
 Mobile Mar. Dock & Mut. Ins. Co. 
 V. McMilInn 23 C, 400 
 
 Section 
 
 Mobile, &c. Ins. Co. v. Coleman 180 a 
 
 V. Miller 130 
 
 Mobile, &c. Ry. Co. v. Jurey 463, 457 A 
 
 Moch V. Virginia Fire, &o. Ins. 
 
 Co. 577 
 
 Modern Woodman Ace. Ass'n 
 
 V. Shryock 515 a 
 
 Modern Woodmen v. Jameson 159 
 
 Modern Woodmen Ace. Ass'n i'. 
 
 Rhine 55 A 
 
 Moehring v. Mitchell 391 
 
 Moeller c. American F. Ins. Co. 566 
 Moffit V. Plienix Ins. Co. 386 
 
 Mohr, &c. Distilling Co. v. Ins. 
 
 Co. 569 A 
 
 Moise V. Mutual Reserve Fund 
 
 L. Ass'n 386 
 
 Moliere v. Penn Fire Ins. Co. 129, 149, 
 262, 566 
 Monadnook R. R. Co. t-. Manuf. 
 
 Ins. Co. 94 
 
 Monaghan v. Agr. Fire Ins. Co. 35 A, 
 
 188 B, 277 
 
 Monitor Ins. Co. I'. Buif urn 122 A, 
 
 560 A 
 Monk V. Union Mut. Life Ins. Co. 212, 
 
 304 
 Monmouth Ins. Co. v. Hutchinson 454 
 Monmouth Mut. Fire Ins. Co. v. 
 
 Lovell 557 
 
 Monnica v. German Ins. Co. 4.59 D 
 Monroe y. Southern Mut. Ins. Co. 424 A 
 Montague v. Tidcombe 540 
 
 Monteleone v. Royal Ins, Co. 240, 421 a 
 Montgomery v. Charleston 453 
 
 V. Firemen's Ins. Co. 172 A, 415 
 V. Phoenix, &c. Ins. Co. 344 a 
 
 Montgomery County Farmers' 
 
 Mut. Ins. Co. V. Milner 557 
 
 Monticello v. MoUison 454, 455 
 
 Montreal Ins. Co. v. McGillivray 15, 
 
 20, 63; 
 Montrose v. Roger Williams Ins. 
 
 Co. 138 C 
 
 Moody V. jEtna Ins. Co. 466 
 
 o. Amazon Ins. Co. 247 
 
 V. Ins. Co, 247, 248 
 
 Mooney v. Howard Ins. Co. 579 B 
 
 Moore v. Charter Oak Life Ins. 
 
 Co. 66 
 
 V. Conn. Mut. Fire Ins. Co. 240, 
 296, 325 
 V. Hanover F. Ins. Co. 263 E, 449 
 V. Ins. Co. 249 G 
 
 V. Phoenix Ins. Co. 248 
 
 u. Prot. Ins, Co. 2.39, 542, 466, 477 
 V. Rockford Ins. Co. 126, 360 
 
 „. State Ins. Co. 478 
 
 V. Susquehanna Mut. F. Ins. 
 
 Co. 465 
 
 Ixiii 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Moore v. Union Fraternal Ace. 
 
 Ass'n 156 
 
 V. Virginia Fire, &c. Ins. Co. 189, 
 
 477 
 
 V. Woolsev 57, HI, 323, 324, 395, 
 
 465 
 
 Moosley v. Ins. Co. 184 
 
 More V. New York Bowery F. 
 
 Ins. Co. 3 
 
 Morel V. Miss. Val. Life Ins. Co. 409, 
 
 530 
 Morey v. N. Y. Life Ins. Co. 346 
 
 Morgan v. Matlier 25 
 
 V. Merchants' Ins. Ass'n 496 B 
 Moriarty v. Home Ins. Co. 248 
 
 Morland v. Isaac 449, 459 A 
 
 Morley v. Liverpool, &o. Ins. Co. 386 
 Morotock Ins. Co. v. Cheek 287 B, 465 
 V. Rodefer 202, 270, 285 
 
 Morrell v. Irving Fire Ins. Co. 423, 
 
 433 
 V. Trenton Mut. Life & Fire 
 
 Ins. Co. 109 
 
 Morris o. Farmers' Mut. F. Ins. 
 
 Co. 239 A 
 
 V. Imperial Ins. Co. 283, 285 
 
 V. Orient Ins. Co. 368 
 
 V. Penn., &c. Ins. Co. 344 a 
 
 V. Tenn., &c. Ins. Co. 290 
 
 Morrison v. Am. Pop. Life Ins. 
 
 Co. 69 a 
 
 V. Ins. Co. 370, 560 A 
 
 V. Muspratt 195, 212, 213 
 
 u. Scot. Emp. Life & Ace. 
 
 Ass. Co. (Lim.) 402 
 
 !>. Tenn. Mar. & Fire Ins. Co. 101, 
 
 269, 272, 285 
 
 V. Universal, &c. Ins. Co. 497 
 
 V. Wis. 0. F. Mut. Life Ins. 
 
 Co. 64 A, 295, 502 
 
 Morrow v. Des Moines L. Ins. Co. 345 e 
 Morse v. Buffalo Fire & Mar. Ins. 
 
 Co. 239 
 
 V. Minn., &c. Railway Co. 23 C 
 V. St. Paul's Fire & Mar. Ins. 
 
 Co. 126 
 
 Morville u. American Tract So- 
 ciety 496 B 
 Moser v. Brooklyn Life Ins. Co. 342 
 II. Phoenix, &c. Ins. Co. 341 
 Moses V. Delaware Ins. Co. 207 
 V. Pratt 567 
 Mosley v. Vt. Mut. Fire Ins. Co. 185, 
 2.39 A,239B, 465, 469, 583 
 Mosness v. German Ins. Co. 494 
 Motley V. Manfrs. Ins. Co. 116, 446 
 Motteux V. London Ass. Co. 566 A 
 Moulor V. Am. Life Ins. Co. 162, 296 
 V. Am. Pop. Life Ins. Co. 185, 186, 
 210, 296 
 
 Ixiv 
 
 Section 
 Moulthrop V. Farmers' Mut. Fire 
 
 Ins. Co. 282 A, 364 A 
 
 Mound City Ins. Co. «. Huth 346 
 
 Mound City Mut. Fire Ins. Co. ^. 
 
 Curran 63 
 
 Mound City, &c. Ins. Co. v. Twin- 
 ing 344 a 
 Mount V. Waite 71 
 Mount Vernon Manuf. Co. v. 
 
 Summit Co. Mut. Fire Ins. Co. 269 a 
 
 Mowry v. Home Ins. Co. 75, 299, 345, 
 
 360, 362 
 
 * V, Rosendale 143 
 
 V. Todd 378 
 
 MuUane v. Nat. Ins. Co. 158 
 
 Mullin V. Vt. Mut. Fire Ins. Co. 133 D, 
 
 249 G, 477, 587 B 
 
 MuUine v. Guardian Mut. Life 
 
 Ins. Co. 214 
 
 MuUins V. Thompson 399 H 
 
 Mulrey v. Shawm ut Mut. Fire 
 
 Ins. Co. 63, 145 
 
 Mulry V. Mohawk Valley Ins. 
 
 Co. 580, 591 
 
 Mulvey v. Gore Dist. Mut. Fire 
 
 Ins. Co. 475, 567 
 
 Mulville V. Adams 161 
 
 Muma V. Niagara, &c. Ins. Co. 292 
 
 Mumford v. Mumford 399 N 
 
 Mund V. Ins, Co. 399 A 
 
 Hunger v. Holyoke Ins. Co. 366 
 
 I'. People's Fire Ins. Co. 477 
 
 Murdock v. Chenango Co. Mut. 
 
 Ins. Co. 158, 220, 281 
 
 V. Franklin Ins. Co. 94 A 
 
 Murphey v. American Mut. Ac. 
 
 Ass'n 306 
 
 Murphrey «. Old Dominion Ins. 
 
 Co. 287 
 
 Murphy v. American Central Ins. 
 
 Co. 421 a 
 
 V. Harris 212, 305 
 
 V. Independent Order 465 
 
 V. Mut! Ben. Life Ins. Co. 585 
 V. People's Eq. Mut. Fire Ins. 
 
 Co. 294 G 
 
 V. Royal Ins. Co. 120, 263 A 
 
 Murray v. Hatch 421 a 
 
 V. N. Y. Life Ins. Co. 327 A 
 
 Murry v. Wells 390 
 
 Muse V. London Ass. Corp. 479 
 
 Mussey v. Atlas Mut. Ins. Co. 365 a, 
 
 Mut. Ass. Co. V. Holt 
 
 560 A 
 
 V. Korn 
 
 63 
 
 V. Mahon 
 
 567 
 
 V. Montgomery 
 
 399 M 
 
 V. Rolfe 399 F, 399 M 
 
 Mut. Benefit Ins. Co. v. Newton 465 
 i>. Ruse 355, 582 
 
TABLE OF CASES. 
 
 [The referencea are to the sections.] 
 
 Section 
 Mut. Benefit Ins. Co. «. Tisdale 465, 585 
 Mutual Benefit Life Ins. Co. v. 
 
 Cannon 297 
 
 V. Charles 577 
 
 V. Davies' Ex'rs 144 E, 307, 324 
 v: Daris 551 
 
 u. Dunn 399 D 
 
 ... French 342, .345, 502 a 
 
 i,. Hildyard 39 
 
 V. HolterhofE 299 
 
 I'. Jarvis 342, 556 
 
 V. Miller 195, 201 
 
 V. Robertson 200 
 
 V. Kobison 66 A, 67, 126, 181, 298 
 y. Ruse 29 B, 355, 582 
 
 V. Wise 186, 187, 202, 303 
 
 Mutual Benevolent Ass. v. Hoyt 398, 
 
 399 F 
 Mutual Endowment Asses. Ass. v. 
 
 Essender 562 
 
 Mutual F. Ins. Co. v. Alvord 364, 492, 
 
 494 
 (,-. Coatesville 176, 239 
 
 u. Coatesville Shoe Factory 245 
 u. Frey 479 
 
 V. Miller Lodge .345 a, 356 A 
 
 Mutual Hail Ins. Co. v. Wilde 402 
 
 Mutual Ins. Co. v. Deale 171, 184, 287 
 V. Mahon 567 
 
 V. Wilde 479, 547 a 
 
 Mutual Life Ins. Co. ^. Allen 398 A 
 i^. Arhelger 303 
 
 V. Armstrong 407 
 
 V. Blodgett 112, 187, 305, 399 D 
 V. Bratt 344 H 
 
 V. Dingley 66, 356 A 
 
 u. Elliott 358 
 
 y. Ferry 399 
 
 V. Girard Life Ins. Co. 345 a, 361 
 V. Hayward 325 
 
 V. Jarboe 69 a 
 
 V. Jeffries 185 
 
 V. Lawrence 307 
 
 V. Leubrie 322 
 
 V. Logan 360 
 
 V. Nichols 159, 803 
 
 V. Oliver 359 
 
 V. Phenix ^ps. Co. 465 
 
 V. Phinney 67 A 
 
 V. Schaefer 9 
 
 V. Schmidt 465 
 
 V. Sears 67 A 
 
 V. Selby 187 
 
 V. Simpson 186, 298 
 
 V. Snyder 296 
 
 V. Thomson 55 A, 159, 299 
 
 V. Tillman 325 
 
 V. Wager 117, 123, 575 
 
 V. Wiswell 323 
 
 V. Toung 50, 54 
 
 VOL. I. — e 
 
 Section 
 Mutual Life Ins. Co. of New York 
 
 V. Terry 320, 325 ' 
 
 Mutual Mill Ins. Co. v. Gordon 188 C, 
 
 292 B 
 Mutual Prot. Ins. Co. v. Hamilton 396 
 Mutual Reserve Fund L. Ass'n u. 
 
 Hamlin 70 C 
 
 Mutual Safety Ins. Co. v. Hone 12, 439 
 Myers u. Council Bluffs Ins. Co. 
 
 133 A, 469 B 
 V. Keystone Mut. Life Ins. Co. 53, 
 54, 58, 65, 151, 359 
 a. Knickerbocker Life Ins. 
 
 Co. 576 
 
 u. Lebanon Mut. Ins. Co. 188 C 
 
 V. Liverpool, &c. Ins. Co. 56 
 
 Mygatt V. N. Y. Prot. Ins. Co. 548 
 
 N. 
 
 Nally V. Nally 399 
 
 Names v. Dwelling-house Ins. Co. 189, 
 
 247 
 Nantes v. Thompson 590 
 
 Nappanee Furniture Co. v. Ver- 
 non Ins. Co. 222, 420 
 Nash V. Un. Mut. Ins. Co. 555 
 Nashua Fire Ins. Co. a. Moore 549 a, 
 552, 557 
 Nashville Ins. Co. u. Matthews 344 G, 
 
 344 H 
 Nashville Life Ins. Co. v. Ewing 136 A 
 Nassauer v. Ins. Co. 124 A, 373 A 
 
 National Ace. Society v. Dolph 514, 
 515 a, 517 A, 518 A, 520 A, 524, 531 A 
 Nat. Ass., &c. V. Best 399 B 
 
 National Bank v. Graham 15 
 
 V. Hartford Fire Ins. Co. 176 
 
 V. Ins. Co. 160, 250 
 
 u. Union Ins. Co. 269 
 
 V. Whitney 23 D 
 
 Nat. Ben. Ass. y. Jackson 345 B, 531 A 
 V. Jones 561 A 
 
 National Filtering Oil Co. v. Citi- 
 zens' Ins. Co. 94 A 
 Nat. Fire Ins. Co. v. Crane 384, 566 
 u. Grace 379 
 V, McLaren 464 
 V. U. S. Building & Loan 
 
 Ass'n's Assignee 245, 469 C 
 
 Nat. Guar. Ins. Co. v. Freeman 544 
 
 Nat. Ins. Co. o. Webster 408 
 
 Nat. Life Ins. Co. u. Barry 391 
 
 u. Egan 573 
 
 V. Haley 399 P 
 
 I/. Jones 575 
 
 u. Minch 133 B, 213, 442, 504, 575 
 
 c. Pingrey 566 C 
 
 Nat. Mut. Aid Soc. i^. Lupoid 385 A 
 
 Ixv 
 
TABLE OF CASES. 
 
 [The references are to the eectionfl.] 
 
 Section 
 Nat. Mut. Ins. Co. v. Home Ben- 
 efit Society 358 
 V. Purcell 677 
 f. Yeomans 557 
 Nat. Prot. Life Ass. Soc. In re 597 
 National Traders' Bk. o. Ocean 
 
 Ins. Co. 566 A 
 
 Naugliter v. Ottawa Agr. Ins. Co. 140, 
 
 186 
 Nave V. Home Mut. Ins. Co. 412, 418, 
 
 421a 
 Neal V. Ewing 138 A 
 
 V. Moiineux .395 
 
 Neale v. Albertson ■ 349 A 
 
 Neall V. JEtna Ins. Co. 276 B 
 
 Nease v. Mtna, Ins. Co. 386, 466 
 
 Nedrow v. Farmers' Ins. Co. 341 
 
 Neely o. Onondaga Co. Mut. Ins. 
 
 Co. 558 
 
 Neill V. Travellers' Ins. Co. 5.30, 531 A 
 
 Nelson v. Atlanta Home Ins. Co. 364 
 
 u. Bound Brook 457 
 
 V. National Protective Society 368 
 
 V. Nederland L. Ins. Co. 298 
 
 V. Sun Ins. Co. 400 
 
 Nepeau v. Doe 465 
 
 Neptune Ins. Co. a. Dorsey 454 
 
 Neskern i,-. N. W. Endowment & 
 
 Leg. Ass. 553 A 
 
 Nettleton o. St. Louis, &c. Ins. 
 
 Co. 344 a, 345 a 
 
 Neuendorf! v. World Mut. Life 
 
 Ins. Co. 65, 1.34 
 
 Neve V. Columbia Ins. Co. 365, 367, 
 
 420 
 Neville v. Mer. & Man. Ins. Co. 51, 566 
 Nevins v. Rockingham Fire Ins. 
 
 Co. 428, 447, 491, 596 
 
 New !'. German Ins. Co. 379 
 
 Newark Ins. Co. v. Sammons 67 G 
 
 Nevvby v. Reed 13 
 
 Newcastle Fire Ins. v. Macmorran 143, 
 
 156 
 
 Newcomb v. Almy 399 P, 596 
 
 u. Cin. Ins. Co. 466 n 
 
 V. Mut. Life Ins. Co. 390 
 
 V. Provident Fund Society 
 
 159, 360 
 New England Fire & Mar. Ins. 
 
 Co. 0. Robinson 60 
 
 ,.. Schettler 15, 62, 101, 131, 135, 
 
 162, 365 
 
 V. Wetmore 83, 190, 218, 245, 379, 
 
 502 
 
 New England Mut. Ins. Co. v. 
 
 Belknap 652, 568, 584 
 
 V. Butler 552, 554 
 
 V. VeWolt 15, 383 
 
 New England Mut. Life Ins. Co. 
 
 V. Hasbrook 342, 359 
 
 Ixvi 
 
 Section 
 New Era Life Ins. Co. i-. Musser 29 C 
 Newliall V. Union Mut. Fire Ins. 
 
 Co. 292 
 
 New Hampshire Mut. Fire Ins. 
 
 Co. V. Noyes 35 A 
 
 V. Rand 426, 555 
 
 V. Walker 590 
 
 New Hampshire, &c. Ins. Co. u. 
 
 Hunt 553 
 
 New Home Life Ins. Ass. c. Hag- 
 
 ler 307, 469 
 
 New Jersey Mut. Life Ins. Co. v. 
 
 Baker 144 
 
 Newman v. Cazalet 173 
 
 f. Covenant Mut. Ins. Ass. 419 A, 
 
 563 A 
 
 0. Springfield Fire & Mar. 
 
 Ins. Co. 151, 166, 167, 285, 
 2S6, 446, 591 
 Newmark v. Lon. & Lir. Fire & 
 
 Life Ins. Co. 404, 465 
 
 Newmarket Sav. Bank u. Royal 
 
 Ins. Co. 231, 247 
 
 New Orleans Ins. Ass'n v. Boniel 43 F 
 
 V. Griffin 368, 370 
 
 V. Holberg 279, 370, 379, 385 A 
 
 u. Matthews 138, 452 F, 469 C, 
 
 497, 511 
 
 Newport Ins. Co. u. Home Ins. 
 
 Co. 240 
 
 Newson v. Douglas 122, 462 E 
 
 Newton v. Gore, &c. Ins. Co. 373 
 
 V. Ins. Co. 325 
 
 u. Mut. Ben. Life Ins. Co. 296, 316, 
 325, 460, 465 
 New York Ace. Ins. Co. v. Clay- 
 ton 158 
 New York Bow. Fire Ins. Co. v. 
 
 New York Fire Ins. Co. 11, 98, 208 
 New York Central Ins. Co. v. Nat. 
 
 Protection Ins. Co. 125, 134, 
 345, 360, 462, 691 
 V. Watson 70 C, 369, 372 F, 507 
 New York Central R. R. v. Lock- 
 wood 410 
 New York Express Co. v. Traders' 
 
 Ins. Co. 417 A 
 
 New York Fire & Mar. Ins, Co. v. 
 
 Wetmore 245 
 
 New York Fire Ins. Co. v. Delavan 432 
 New York Firemen's Ins. Co. o. 
 
 Walden 200 
 
 New York Gas Light Co. v. Me- 
 chanics' Fire Ins. Co. 192, 423 
 New York Ice Co. v. N. W. Ins. 
 
 Co. 566 
 
 New York Ins. Co. v. Flack 295, 390 
 
 V. Thomas 372 F 
 
 New York L. Ins. Co. v. Babcock 3, 55 A 
 
 V. Baker 187 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 New York L. Ins. Co. v. Best 578 a 
 V. Boiteaux 302, 419 
 
 V. Clopton 37, 38, 39 A, 40, 69, 
 345 
 V. Davis 110, 407 
 
 V. Dingley 340 
 
 V. Eggleston 346 
 
 .;. Fletcher 126, 137, 145 A 
 
 u. Graham 183, 188 
 
 0. Hendren 333, 350 
 
 V. Ireland 399 Q 
 
 V. McGowan 1.33 
 
 V. McMaster 14, 566 
 
 V. Statham 341 a, 350 a, 352 A 
 V. White . 350 
 
 New York Lumber Co. v. People's 
 
 F. Ins. Co. 70 B 
 
 New York Mar. Ins. Co. u. Prot. 
 
 Ins. Co. 11, 12 
 
 New York Mut. Ins. Co. v. Johnson, 63, 
 
 145 
 New York Mut. Life Ins. Co. 
 
 V. Armstrong , 399 A 
 
 New York, &c. Ins. Co. o. Bangs 573 
 New Zealand Ins. Co. v. Maaz 360 
 
 Niagara Dist. Mut. Fire Ins. Co. 
 
 V. Lewis 471 
 
 Niagara Fire Ins. Co. v. Brown 511 
 
 V. De GrafE 246, 405 
 
 V. Drda 249 F 
 
 V. Forehand 263 A 
 
 u. Miller 200, 291, 504 
 
 V. Scammon 274, 364 
 
 Niagara Ins. Co. v. Elliott 401 C 
 
 Niblo V. N. A. Fire Ins. Co. 79, 81, 285, 
 
 423, 424 
 
 Nichols V. Baxter 452 C 
 
 V. Fayette Mut. Fire Ins. Co. 31, 
 
 290, 294 D, 365, 501 
 
 V. Nichols 496 B 
 
 V. Sun Mut. Ins. Co. 412 
 
 Nicholson v. Phoenix Ins. Co. 233 
 
 Nickell V. Phoenix Ins. Co. 126, 469 D 
 
 Nickerson v. Nickerson 459 G, 465 
 
 Nic6let V. Ins. Co. 427 
 
 NicoU V. Am. Ins. Co. 122, 181 
 
 Nightingale v. State Mut. Life Ins. 
 
 Co. 336, 496, 572 
 
 Nimick v. Mut. Ben. Life Ins. Co. 307 
 312, 316 
 Nims V. Ford 399 D, 459 E 
 
 Nippolt V Firemen's Ins. Co. 70 B 
 
 Nolan V. Colorado Cent. Cons. M. 
 
 Co. 496 B 
 
 Noonan v. Hartford Fire Ins. Co. 466 
 Noone v. Transatlantic F. Ins. 
 
 Co. 401 B 
 
 Norcross v. Franklin Ins, Co. 267, 268 
 
 Norman v. Ins. Co. 133, 1.S3 F 
 
 u. Wells 423 B 
 
 Section 
 Norris v. Hartford F. Ins. Co. 67 
 
 V. Ins. Co. of North America 169 
 North American Fire Ins. Co. v. 
 
 Throop 143, 185, 188, 203, 209, 
 212, 420, 498, 499 
 V. -Zaenger 249 F, 465 
 
 North American Ins. Co. v. Bur- 
 roughs 465, 466, 514, 532, 536 
 V. Whipple 566 A 
 
 North American Life Ins. Co. u. 
 
 Craigen 75 B 
 
 North Berwick Co. v. Crutchfield 
 
 124 A 
 y. N. E. Fire & Mar. Ins. Co, 126, 
 136, 220, 253, 502 
 North British & Mercantile Ins. 
 
 Co. V. Bohn 287 B 
 
 V. Moffatt 97 
 
 V. Stewart 442 
 
 North British Ins. Co. <;, Hallett 396 
 
 V. Lloyd 540 
 
 North British, &e. Ins. Co. o. Liv., 
 
 &c. Ins. Co. 436 a, 456 a 
 
 V. MoflFatt 436 
 
 V. Steiger 246 A, 372 C 
 
 V. Stewart 575 
 
 North Carolina, &c. Ins. Co. v. 
 
 Powell 559 
 
 Northern Ass. Co. v. Hamilton 67 L 
 
 u. Hanna 465, 478 
 
 V. Provost 373 A 
 
 North Lebanon E. R. v. McGrann 493 
 
 Northrup v. Miss. Valley Ins. Co. 23, 
 
 370 
 V. North Star Boot & Shoe 
 
 Co. 459 F 
 
 u. Phillips 452 A 
 
 V. Railway Pass. Ass. Co. 524 
 
 North Star Boot and Shoe Co. u. 
 
 Ladd 459 F 
 
 Northwestern Benev. & Mut. Aid 
 
 Ass. V. Bloom 325 
 
 V. Cain 162 
 
 V. Wanner 322, 352 
 
 Northwestern Ins. Co. v. Atkins 459 G 
 V. Elliott 575, 577 
 
 V. Muskegon Bank 299 
 
 V. Phoenix Oil & Candle Co, 478 
 V. Roth 442 
 
 Northwestern Iron Co. u. iEtna 
 
 Ins. Co. 23 A, 502 
 
 Northwestern Life Ins. Co. v. El- 
 liott 66, 477, 575, 577 
 Northwestern Masonic Aid Ass'n 
 
 V. Jones 2 
 
 Northwestern Mut. Life Ins, Co, 
 
 V. Amerman 502 
 
 V. Bank 23 D 
 
 V. Barbour 69 a, 344 a 
 
 V. Fort's Admr. 344 E, 560 B 
 
 Ixvii 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Northwestern Mut. Life liis. Co. 
 
 V. Gernmnia Fire Ins. Co. S99 K 
 V. Gridley 296 
 
 V. Hazelett 307, 419 A 
 
 V. Ross 175 
 
 Northwestern, &c. Ins. Co. v. Bon- 
 ner 344 a 
 Norton v. Phoenix Mut. Life Ins. 
 
 Co. 65, 359 
 
 V. Rensselaer & Saratoga Ins. 
 
 Co. 474, 475 
 
 Norwich & N. Y. Trans. Co. v. 
 
 Western Mass. Ins. Co. 417,469,505 
 Norwich Fire Ins. Co. v. Boomer 456 
 Norwich U. F. Ins. Co. v. Stand- 
 ard Oil Co. 453 
 'EovviooA, Ex parte 11 
 u. Guerdon 891 B 
 «. Resolute Fire Ins. Co. 11 
 Notman v. Anclior Ass. Co. 338 
 Noyes-ii. Hartford Fire Ins. Co. 287 
 V. N. W. Nat. Ins. Co. 401 V, 
 V. Wash. Co. Mut. Ins. Co. 470, 
 504 
 Nussbaum v. Northern Ins. Co. 82, 270 
 Nute V. Hamilton Mut. Ins. Co. 490 
 Nye V. Grand Lodge 112, 398 
 
 o. 
 
 Oakes r. Manuf. Ins. Co. 264 
 
 Oakland Home Ins. Co. v. Bank 
 
 of Commerce 449 
 
 Oakman v. Dorchester Mut. Fire 
 
 Ins. Co. 99 
 
 Obermeyer v. Globe Mut. Ins. Co. 101, 
 
 194, 364, 365, 365 B 
 
 O'Brien v. Com. Fire Ins. Co. 465 
 
 V. Home Ben. Soc. 144 A, 563 A 
 
 V. Home Ins. Co. 269 
 
 V. New Zealand Ins. Co. 126 
 
 V. Ohio Ins. Co. 29 A, 469 
 
 0. Phoenix Ins. Co. 462 
 
 V. Prescott Ins. Co. 247 
 
 V. Union Mut. Ins. Co. 360 B 
 
 Ocean Ins. Co. v. Carrington 52 
 
 V. Fields 566 C 
 
 V. PoUeys 246 
 
 Och V. Homestead, &c. Ins Co. 349 
 
 O'Connell v. Knights of Damon 186 
 
 O'Conneri'. Com. Un. Ins. Co. 466 
 
 )>. Hartford Ins. Co. 468 
 
 V. Towns 400 
 
 Odd Fellows Mut. Life Ins. Co. 
 
 !). Rohkoop 299, 419 A 
 
 Odlin V. Ins. Co. of Penn. 350 
 
 O'Donnell v. Cnnfed. Life Ins. Co. 65 
 
 Ogden V. East River Ins. Co. 3(i6, 435 
 
 V. Montreal Ins. Co. 82, 424 
 
 Section 
 O'Hara v. United Brethren Mut. 
 
 Aid Society 303 
 
 Ohde u. North Western, &c. Ins. 
 
 Co. 344 a, 345 a 
 
 Ohio Farmers' Ins. Co. v. Beris 287 B 
 Ohio Mut. Ins. Co. v. Marietta 
 
 Woollen Co. 548, 557 
 
 O'Keefe v. Liverpool, &c. Ins. 
 
 Co. 30, 421 a, 492 
 
 O'Key V. State Ins. Co. 511 
 
 O'Laughlin ti. Union Cent. Life 
 
 Ins. Co. 478 
 
 Oldman v. Bewicke 29 
 
 O'Leary v. German-American Ins. 
 
 Co. 126, 369, 469 D 
 
 V. Merchants' & B. M. Ins. 
 
 Co. 368, 369 
 
 Oliver v. Com. Mut. Mar. Ins. Co. 23, 
 
 566 
 
 V. Greene 94 A 
 
 V. Mut. L. Ins. Co. 55 A 
 
 Olmstead v. Benefit Soc. 399 
 
 V. Iowa Mut. Ins. Co. 291 
 
 V. Keyes 399 
 
 Olney v. German Ins. Co. 270 
 
 Olson V. St. Paul Fire & Mar. 
 
 Ins. Co. 175, 258 
 
 Omaha F. Ins. Co. v. Crighton 144 D 
 
 !■. Dierks 270, 460 
 
 u. Dufek 267 
 
 V. Hildebrand 469 C 
 
 Omaha Nat. Bank v. Mutual Ben. 
 
 Life Ins. Co. 344 a 
 
 O'Malia v. Home Ins. Co. 578 
 
 Omberg v. United States Mut. 
 
 A pf* A Q^Ti tilVA 
 
 O'Neil V. Buffalo Fire Ins. Co. 170, 191, 
 
 241, 242, 247, 468 
 
 V. Ottawa Agr. Ins. Co. 186, 271 
 
 Order of the Iron Hall v. Stein 552 
 
 Order of Mut. Comp. v. Griest 399 F 
 
 O'Reilly v. Corp. Lond. Ass. 70 B 
 
 V. Guardian, &c. Ins. Co. 460, 465 
 
 u. Kerns 493 
 
 V. Mut. Life Ins. Co. 568 
 
 Orient Ins. Co, u. Adams 417 A 
 
 V. Daggs 30 
 
 Orient Mut. Ins. Co. v. Wright 43 F 
 
 Oriental Bank v. Fremont Ins. 
 
 Co. 428 
 
 Oriental Ins. Ass. u. Glancey 563 A 
 Oriental Ins. Co. u. Adams 417 A 
 
 Ormond v. Ins. Co. 360 F 
 
 Orr V. Hanover F. Ins. Co. 269, 287 B, 
 
 379 
 
 Orrell u. Hampden Fire Ins. Co. 270, 
 
 272, 276 B 
 
 Ortie V. N. W. Ins. Co. 305 
 
 Osgood v. Chicago, &c. R. E. Co. 578 
 
 V. De Groot 595 
 
 Ixviii 
 
TABLE OF CASES. 
 
 [The references are to the sectiODB.] 
 
 Section 
 O'Shaughnessy v Working Wo- 
 men's Co-op. Ass'n 159 
 Oshkosh Gas Liglit Co. v. Ger- 
 
 raania Fire Ins. Co. 138, 422 B, 502 
 Oshkosh Packing Co. v. Mercan- 
 tile Ins. Co. 158 
 Osser V. Provincial Ins. Co. 368 
 Osterloh v. New Denmark M. H. 
 
 Fire Ins. Co. 502 
 
 Ottawa Agr. Ins. Co. v. Canada 
 
 Guarantee Ins. Co. 543 a 
 
 Ottawa lus. Co. u. Lon. & Liv. & 
 
 Globe Ins. Co. 219 
 
 Otterbein v. la. Ins. Co. 69 
 
 Ouachita, The 350 
 
 Overbeck v. Overbeck 287 B 
 
 Overby v. Fayetteville Band Life 
 
 Ass. 349 A 
 
 Overhiser v. Overhiser 399 D 
 
 Overton v. St. Louis, &c. Ins. Co. 327 
 
 Owen V. Farmers', &c. Ins. Co. 468 
 
 V. Howard Ins. Co. 479 
 
 Owens V. Bait. & O. R. Co. 457 B 
 
 V. Holland, &c. Ins. Co. 498 
 
 V. Owens 407 
 
 Owings V. Hull 122 A 
 
 P. 
 
 Pacaud v. Monarch Ins. Co. 365 
 
 Pacific Co. S. Co. v. Bancroft- 
 Whitney Co. 457 B 
 Pacific Ins. Co. v. Catlett 447 B 
 Pacific Mut. L. Ins. Co. i^. Frank 566 
 V. Guse 557 
 V. Snowden 158, 306 
 Packard v. Agawam Mut. F. Ins. 
 
 Co. 291 
 
 V. Dorchester Mut. Fire Ins. 
 
 Co. 138 A, 221 
 
 Padelford v. Prov. Mut. Fire Ins. 
 
 Co. 227 
 
 Page V. Bornstine 398 
 
 Paine v. Agricultural Ins. Co. 248 
 
 V. Meller 450 
 
 V. Pacific M. L. Ins. Co. 126, 159 
 
 Palatine Ins. Co. v. Ewing 177, 371 
 
 Palm V. Medina Ins. Co. 18, 48, 57, 58 
 
 Palmer i\ Com. Ass. 523 A 
 
 u. Cont. Lis. Co. 346 H 
 
 u. Hartford Ins. Co. 566 
 
 •V. Merrill 389, 395, 399 
 
 u. Northern Mut. Relief Ass'n 
 
 550 n, 557 
 V. Pratt 76 A 
 
 V. St. Paul Fire & Mar, Ins. 
 
 Co, 151, 464, 505 
 
 u. Warren Ins. Co. 175 
 
 Palmer, &c. v. Factors', &c. Ins. Co. 465 
 
 Section 
 Palmer Sav. Bank v. Ins. Co. of 
 
 North America 263 E, 449 
 
 Parish v. Wheeler 23 D 
 
 Park V. Phoenix Ins. Co. 365, 477 
 
 Parker v. Amazon Ins. Co. 144 B, 477 
 
 V. Arctic Ins. Co. 221 
 
 V. Bridgeport Ins. Co. 250 
 
 u. China Mut. Ins. Co. 177 
 
 u. Citizens' Ins. Co. 151 
 
 u. Eagle Ins. Co. 433 
 
 V. Otsego County Farmers' 
 
 Co-op. F. Ins. Co. 200 
 
 V. Rochester German Ins. Co. 126, 
 177 
 Parker & Young Manuf. Co. v. 
 
 Exchange F. Ins. Co. 126 
 
 Parkes v. Bott 391 
 
 Parks V. Conn. Ins. Co. 108, 469 B 
 
 V. Gen. Interest Ass. Co. 421, 424 
 
 Parmelee v. Hofimau Ins. Co. 247 
 
 Parrish v. Va. F. & M.Ins. Co. 159,252 
 
 Parsons v. Bignold 566 
 
 V. Charter Oak Life Ins, Co. 63 
 
 V. Citizens' Ins. Co. 207, 364, 373 
 
 V. Knoxville F. Ins. Co. 126, 
 
 263 A, 294 E 
 
 V. Queen's Ins. Co. 82, 180 a 
 
 263 D, 371 
 
 V. Standard Fire Ins. Co. 365, 372, 
 
 383, 384 
 
 V. Victoria Mut. Fire Ins. Co. 372 
 
 Partridge v. Phoenix Ins. Co. 576 
 
 Patch V. Phoenix Mut, Life Ins. 
 
 Co. 158, 341, 345 a 
 
 Patchin v. Astor Mut. Ins. Co. 580 
 
 Patrick v. Eames 422 A 
 
 V. Farmers' Ins. Co. 463, 464, 478 
 
 Patten v. Merchants' & Farmers' 
 
 Mut. Fire Ins. Co. 143, 290, 
 294 E 
 V. United Life & Ace. Ins. 
 
 Ass'n 303 
 
 Patterson v. Ben Franklin Ins. 
 
 Co. 50, 566 
 
 V. Natural Premium M. L. 
 
 Ins. Co. 187, 327 
 
 v. Powell 75 A 
 
 V. Royal Ins. Co. 58, 64, 67 
 
 V. Triumph Ins. Co. 469 B 
 
 Patton V. Employers' Liability 
 
 Ass. Corp, 465 
 
 Paul V. Travellers' Ins. Co. 523 A 
 
 V. Virginia 578 a 
 
 Paul Fire & Mar. Ins. Co. v. Mc- 
 Gregor 488 
 Pavey v. Am, Ins. Co. 284 
 Pawson V. Barnevelt 158 
 V. Watson 156, 158 
 Payne, Ex parte 494 
 V. Cave 46 
 
 Ixix 
 
TABLE OF CASES. 
 
 [The references are to the sectioua.] 
 
 Section 
 Payeou v. Withers 577, 594 
 
 Payson Ass. v. Stoever 594 
 
 Peabody v. Wash. Co. Mut. Ins. 
 
 Co. 448 
 
 Peacock v. N. Y. Life Ins. Co. 70 a, 
 
 295, 460 
 
 Pearman v. Gould 276 C, 285, 457 C 
 
 Pearson v. Com. Un. Ass. Co. 400 
 
 V. Lord 575 
 
 Peaseley v. Safety Deposit Co. 296 
 
 Peohner v. Phcenix Ins. Co. 143, 365, 
 
 371, 372 
 
 Peck V. Equit. Ace. Ass. 517 A, 563 A 
 
 V. Girard F. & M. Ins. Co. 269 
 
 w. New London Co. Mut. Fire 
 
 Ins. Co. 131, 139, 143, 152, 
 
 285 
 
 Peckham v. Grindlay 566 C 
 
 Peddie v. Quebec F^re Ins. Co. 423 
 
 Peepke v. Kesolute Fire Ins. Co. 379 
 
 Peet V. Dakota F. & M. Ins. Co. 270, 
 
 283, 401 B, 405 
 
 Pelican Ins. Co., In re 287 B 
 
 D.' Schwartz 477 
 
 V. Smith 287 B 
 
 V. Wilkerson 263 A 
 
 Pelkington v. Nat. Ins. Co. 370 
 
 Pell V. Ball 465 
 
 Pelly V. Royal Exch. Ass. Co. 175, 
 
 401 C 
 V Willson 399 C 
 
 Pelton u. Westchester Fire Ins. 
 
 Co. 87 A 
 
 Pelzer v. St. Paul Fire & Mar. Ins. 
 
 Co. 95 A, 215 A 
 
 Pelzer Manuf. Co, v. Sun Fire 
 
 Office 287 B, 453 
 
 Pence vi Makepeace 391, 395 
 
 Pendar v. Am. Mut. Ins. Co. 369 
 
 Pendleton v. Elliott 456 
 
 V. Knickerbocker, &e. Ins. Co. 347, 
 469 
 Penfold V. Universal Ins. Co. 321, 322 
 Penley v. Beacon Ass. Co. 487, 488 
 Pennebaker v. Tomlinson 274, 386 
 
 Pennell v. Lamar Fire Ins. Co. 487 
 Penn. Fire Ins. Co. v. Dougherty 285, 
 465, 469, 602, 589 
 V. Kittle 497 
 
 Penn Ins. Co. v. Bowman 385 A 
 
 V. Drackett 421 a 
 
 V. Gottsnian 291 
 
 V. Penn. Mut. Fire Ins. Co. 291 A 
 V. Telfair 11 
 
 Penn. Mut. L. Ins. Co. v. Me- 
 chanics' Sav. B. & T. Co. 156, 187 
 V. Union Trust Co. 67 
 
 Penn. Mut. Rel. Ass. v. Folmer 390 
 Penn Plate Glass Co. v. Spring 
 Garden Ins. Co. 401 
 
 Section 
 Penn. R. R. Co. v. Empire Mut. 
 
 Life Ins. Co. 358 
 
 V. Globe Mut. Life Ins. Co. 138 B, 
 
 358, 399 P 
 
 V. Hope 417 A 
 
 V. Kerr 417 A, 459 
 
 Penn. Training School v. Ind. 
 
 Ins. Co. 562 
 
 Pennypacker v. Capital Ins. Co. 462, 
 
 578 a 
 Peuson V. Lee 567 
 
 Penfz V. Mtiia Ins. Co. 403 
 
 People V. American Steam Boiler 
 
 Ins. Co. 2 
 
 V. Bartlett 350 
 
 V. Beigle 379 
 
 V. Golden Rule, &,c. lb B 
 
 (/. Knickerbocker Life Ins. 
 
 Co. 3441,594 a 
 
 V. Lewis 325 
 
 V. Liverpool, &c. Ins. Co. 207 
 
 V. McCall 594 a 
 
 V. Rose 2 
 
 V. Security, &c. Ass. Co. 594 a 
 V. Universal Life Ins. Co. 594 
 
 V. Van Cleave 578 a 
 
 People's Ace. Ass. v. Smith 462, 579 
 People's Eq. Mut. Fire Ins. Co. 
 
 Petitioners 595 
 
 V. Babbitt 559 
 
 People's Eq. Mut. Ins. Co. v. Ar- 
 thur 559, 560 
 People's Fire Ins. Co. v, Pulver 465, 
 
 469 B 
 People's Ice Co. v. Employers' L. 
 
 Ass. Co. 2 
 
 People's Ins. Co. v. Hartford Ins. 
 
 Co. 11 
 
 V. Kuln 238, 242 
 
 V. Paddon 23 A, 43 A, 125 
 
 V. Spencer 132, 150, 153, 371 
 
 V. Straehle 116, 454, 456 
 
 People's Mut. Ass. Fund v. 
 
 Boesse 12 
 
 People's Mut. Benefit Society v. 
 
 McKay 590 
 
 V. Templeton 103 a, 478 
 
 People's Mutual Fire Ins. Co. v. 
 
 Allen 559 
 
 People's Mutual Ins. Co. v. West- 
 
 cott 557 
 
 Peoria Fire & Mar. Ins. Co. v. 
 
 Botto 67, 574 
 
 Peoria Mar. & Fire Ins. Co. v. 
 
 Annapow 101, 278 
 
 0. Frost 454 
 
 V. Hall 130, 131, 143, 484 
 
 V. Hervey 70 a 
 
 V. Lewis 13, 171, 178, 420, 462 
 
 V. Perkins 261, 497 
 
TABLE OF CASES. 
 
 [XUe references are to the eections.] 
 
 Section 
 
 Peoria Mar. & Kre lus. Co. v. 
 
 Walser 507 
 
 V. 'iVhitehill 466, 469, 478 
 
 V. Wilson 423, 427 
 
 Peoria Sug. Ref. Co. v. People's 
 
 Fire Ins. Co. 215 A, 221 
 
 Peppit V. N. Brit. Ins. Co. 134 
 
 V. N. Brit, and Mer. Ins. Co. 360 A, 
 
 460 
 
 Percival v. Maine Mut. Ins. Co. 250 
 
 Perine v. Grand Lodge 465 
 
 Perkins v. Eq. Ins. Co. 680 
 
 V. Washington Ins. Co. 57, 135, 565 
 
 Perley v. Eastern R. R. Co. 94, 459 
 
 Perrin v. Protection Ins. Co. 408 
 
 V. Prudential Ins. Co. 306 
 
 Perrins v. Mar. & Gen. Trav. Ins. 
 
 Co. 212, 306 
 
 Perrott v. Shearer 455 
 
 Perry v. Dwelling-House Ins. Co. 66, 
 
 126, 138, 276 
 
 V. Faneuil Hall Ins. Co. 138 
 
 V. Lorillard Ins. Co. 264 
 
 V. Mechanics' Mut. Ins. Co. 87 A, 
 
 278, 407 A, 469 D 
 
 V. Merchants' Ins. Co. 386 
 
 V. Newcastle Dist. Mut. Fire 
 
 Ins. Co. 15, 566, 567 
 
 V. Phoenix Ass. Co. 589 
 
 V. Prov. Ins. Co. 401, 441, 585 
 
 Perry County Ins. Co. v. Stewart 143, 
 
 229, 256, 267, 420 
 
 Pervear v. Commonwealth 25 
 
 Peters v. U. S. Ind'l Ins. Co. 144 A 
 
 V. Warren Ins. Co. 417 
 
 Petersburg Savings & Ins. Co. v. 
 
 Manliattan Fire Ins. Co. 67 D 
 
 Peterson v. Miss. Valley Ins. Co. 219 
 Petit V. German Ins. Co. 289, 460 
 
 Petitpain v. Mut. Reserve Fund 
 
 L. Ass'u 298 
 
 Pettigrew v. Grand River Farm- 
 ers' Ass. 87, 88 
 PettingiU n. Hinks 471 
 Petty V. Mutual F. Ins. Co. 405 
 Pfister V. Gerwig 267, 276 
 Phadenhauer u. Germania Ins. 
 
 Co. 317, 320 
 
 Phelan d. N. W. Mut. Life Ins. 
 
 Co. 356 A 
 
 V. Phelan 399 L, 899 N 
 
 Phelps V. Gerhard Fire Ins. Co. 70 a 
 
 80, 190, 273, 381 
 
 Phenix, &c. (See Phoenix). 
 
 Philadelphia Fire & Life Ins. Co. 
 
 V. Mills 249, 274 
 
 Phila. Fire Ass'n v. Brown 430 
 
 u. Flournoy 287 B 
 
 Philadelphia Life Ins. Co. v. Am. 
 
 Life Ins. Co. 12 D, 400 
 
 Section 
 
 Philadelphia Life Ins. Co. v. 
 Wash. Ins. Co. 11 
 
 Phila. Tool Co. v. British Amer- 
 ican Ass. Co. 273 A 
 
 Philbrook v. N. E. Mut. Ins. Co. 365, 
 365 B, 371, 653 
 
 Philips V. Knox County Mut. Ins. 
 
 Co. 90, 287 
 
 V. Merrimack Mut. Fire Ins. 
 
 Co. 379, 383, 425, 446 
 
 Phillips V. Carpenter 399 D 
 
 0. Eastwood 115 
 
 o. Grand Eiver Mut. Fire Ins. 
 
 Co. 294 F 
 
 V. Louisiana Ins. Co. 320 
 
 V. Perry County Ins. Co. 434 
 
 V. Prot. Ins. Co. 462, 466, 470, 491 
 u. Union Cent. L. Co. 478 
 
 Phinney v. Mutual L. Ins. Co. 158 
 
 Phoenix Ass. Co. v. McAuthor 3, 55 A 
 V. Wachter 379 
 
 Plioenix Ins. Co. v. Allen 144 A 
 
 u. Angel 263 A, 287 B 
 
 V. Arnoldy 689 
 
 V. Asberry 269 
 
 a. Badger 493 A 
 
 u. Barnd 175 
 
 V. Batchelder 360 
 
 V. Benton 159, 590 
 
 V. Boulden 365 
 
 V. Bowdre 269 
 
 V. Boyer 247 
 
 V. Charleston Bridge Co. 406 
 
 V. Clay 245 
 
 ti. Cochran 408 
 
 V. Coombes 240, 269 
 
 V. Copeland 126, 294 E, 365 
 
 V. Covey 369 
 
 V. Dungan 360 
 
 V. Erie, &c. Trans. Co. 457, 457 A, 
 457 B 
 V. Favorite 420 
 
 V. First Nat. Bank 449, 456 
 
 V. Flemming 177, 283, 239, 239 A, 
 497 
 V. Frissell 67 L 
 
 V. Gurnee 566 
 
 ■!). Hale 44 
 
 V. Hamilton 99, .366 
 
 V. Hancock 95 A 
 
 u. Hart 294 E 
 
 V. Hoffheimer 566 
 
 V. Holcombe 279, 368, 420 
 
 V. Ireland 14, 21 
 
 V. Johnston 369 
 
 V. Lamar 365 C 
 
 V. Lansing 502 
 
 V. La Pointe 294 E 
 
 u. Lawrence 138, 189, 245, 264, 
 268, 270, 278, 591 
 
 Ixxi 
 
TABLE OF OASES. 
 
 [The references are to the sections.] 
 
 Section 
 
 Phoenix Ins. Co. v. Lebcher 478, 488 
 
 V. McKernan BO, 287 B, 513 
 
 V. MoLoon 30, 31 
 
 V. Martin 247, 4^0 
 
 V. Michigan, &(;. R. B. Co. 366 
 
 V. Minner 469 C 
 
 V. Mitchell 87 A 
 
 V. Moog 591 
 
 V. Munday 373 A, 591 
 
 V. Munger 161 
 
 ■/. Munger Manuf. Co. ' 67, 287B, 
 
 358 
 
 V. Parsons 456 
 
 V. Perkey 689, 590 
 
 V. Pickel 277, 291 A, 292 A 
 
 V. Had Bila Hora Lodge 126, 460, 
 
 488 
 
 V. Rollins 346 E 
 
 V. Ryland 23 D 
 
 V. Slaughter 239, 243 
 
 V. Spiers 23 A, 23 C, 24 A, 125, 
 
 126, 175, 372 B, 409 
 
 V. Stevenson 469, 497, 504 A, 507 
 
 V. Sullivan 408 
 
 u. Taylor 239, 242 
 
 v. Tucker 143 
 
 V. Union Mut. Life Ins. Co. 276 C 
 
 0. Walters 242 
 
 V. Ward 70 a 
 
 V. Warttemberg 294 E 
 
 V. Wilson 287 B 
 
 V. Zucker 248 
 
 Phcenix Life Ins. Co. v. Raddin 159, 
 
 162, 501 
 
 V. Sheridan 344 
 
 Phoenix Mut. Ins Co. t. Dunham 390 
 
 Phoenix Mut. Life Ins. Co. of 
 
 Hartford v. Bailey 117, 573 
 
 Pickard v. Sears 602 
 
 Pickell V. Phenix Ins. Co. 144 A, 277, 
 .373 A, 461 
 Pickett V. Ins. Co. 54 A 
 
 V. Pacific M. L. Ins. Co. 324, 
 
 523 A 
 Piedmont, &c. Life Ins. Co. v. Char- 
 ter Oak Ins. Co. 29 A, 345 B, 
 391 
 V Ewing 50, 51, 190, 590 
 
 V. Fitzgerald 363 A, 602 
 
 V. Young 511 
 
 Pierce v. Ooli asset Ins. Co. 587 A 
 
 V. E. L. A. Soc. 344 D 
 
 V. Nashua Eire Ins. Co. 279, 379 
 V. The People 124 A, 138 A 
 
 V. Travellers' Ins. Co. 322, 325 
 V. Young 611 
 
 Piggot V, Eastern Counties R. R. 
 
 Co. 454 
 
 Pilbrow V. Atmospheric R. R. Co. 28 
 Pilcher v. N. Y. Life Ins. Co. 358, 390 
 
 Ixxii 
 
 Section 
 
 Pim V. Reid 218, 221, 230 
 
 Pimm V. Lewis 207 
 
 Pindar v. Cont. Ins. Co. 234 
 
 V. King's County Fire Ins. Co. 233 
 
 V. Resolute Fire Ins. Co. 192, 232, 
 
 566 
 
 Pine V. Vanuxem 188 D 
 
 Pingree v. National Ins. Co. 399 E 
 
 Pingrey v. Nat. Life Ins. Co. 399 L 
 
 Pinkham v. Morang 287 
 
 Pinneo v. Goodspeed 459 B 
 
 PiBo V. Merchants' Mut. Ins. Co. 62 
 
 Pioneer Manuf. Co. v. Phoenix 
 
 Ass. Co. 421 a, 497 
 
 Pioneer Sav. & L. Co. v. Provi- 
 dence-Washington Ins. 
 Co. 276 C 
 
 i;. St. Paul F. & M. Ins. Co. 276 C 
 Piper V. Mercantile M. Ace. Ass'n 514 
 Pipon V. Coxe 411 A 
 
 Pitney v. Glens Falls Ins. Co. 126, 143, 
 365, 365 a, 366, 372, 446 
 Pitt V. Berkshire Life Ins. Co. 341, 345, 
 359, 584 
 Pittsburg Boat- Yard Co. v. Ins. 
 
 Co. 360 B 
 
 Pittsburg Ins. Co. v. Frazee 233, 287 C 
 Plahto V. Merchants' Mar. Ins. 
 
 Co. 420 B, 511 
 
 Planters' Ins. Co. v. Comfort 460, 465, 
 
 569 
 t. Diggs 579 
 
 V. Myers 140, 154 
 
 V. Sorrell 143, 247 
 
 V. Walker Lodge 67, 67 D 
 
 Planters' Mut. Ins. Ass'n v. 
 Southern Sav. Fund &Loan Co. 
 
 447 A 
 Planters' Mut. Ins. Co. u. Deford 148, 
 
 468 
 V. Engle 80, 401 a, 420 
 
 V. Lloyd 287 B, 497 
 
 V. Lyons 370, 372 B 
 
 V. Rowland 29 A, 223, 224, 276 A 
 Planters & Merchants' Ins. Co. v. 
 
 Thurston 96 A 
 
 Plath V. Minnesota, &c. Ins. Co. 189, 
 
 277, 294 a, .368 
 
 Piatt V. JEtna Ins. Co. 430 
 
 V. Continental Ins. Co. 594 
 
 V. Richmond, &c. R. Co. 467 B 
 
 Pleasants v. Maryland Ins. Co. 30 
 
 Plessinger v. Depuy 26 
 
 Plinsky v. Germania Fire & Mar. 
 
 Ins. Co. 177, 222, 233 
 
 Plumb V. Cattaraugus Mut. Ins. 
 
 Co. 132, 137, 142, 143, 144 G, 263, 
 
 498, 499 
 
 Plyer v. German-Am. Ins. Co. 252 
 
 Plympton v. Dunn 566 C 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Plymptoii V. Farmers' Mut. Fire 
 
 Ins. Co. 456 
 
 Poggensee v. Mutual Fire Light- 
 ning & Tornado Ins. Co. 402 
 Polglass V. Oliver 345 
 Pollard V. Phojnix Ins. Co. 35 A 
 V. Somerset Mut. Fire Ins. 
 
 Co. 2B9, 879 
 
 Pollock V. V. S. Mut. Ace. Ass. 307 
 Polsalski V. Mut. Ins. Co. 579 B 
 
 Pomeroy v. Manhattan Life Ins. 
 
 Co. S91, 399 
 
 Pontifex v. Bignold 570 
 
 Pool V. Hudson Ins. Co. 273 A 
 
 V. Milwaukee Mechanics' Ins. 
 
 Co. 239 A, 3B9, 407 
 
 Poole V, Adam 450, 466 
 
 Poor V. Hudson Ins. Co. 67, 69 B 
 
 V. Humboldt 248 
 
 Port V. Mtnn Ins. Co. 70 u 
 
 Portage County Mut. Ins. Co. v. 
 
 Stukey 491 
 
 V. West 478 
 
 Porter v. Mlna, Ins. Co. 75 A, 117, 288 
 
 V. Porter 459 D 
 
 i;. U. S. L. Ins. Co. 126,344 a 
 
 Portsmouth Ins. Co. v. Brinckley 238, 
 
 280 
 
 V. Reynolds 403, 445, 469, 504 A 
 
 Poss V. Western Ass. Co. 253, 
 
 253 A 
 Post V. JEtna, Ins. Co. 23, 126, 134, 151, 
 
 468 
 u. Hampshire Mut. Fire Ins. 
 
 Co. 32, 425 
 
 Potter D. Mar. Ins. Co. 365 a 
 
 V. Monmouth, &o. Ins. Co. 442 
 V. Ontario & Liv. Mut. Ins. 
 
 Co. 175,502 a 
 
 V. Phenix Ins. Co. 14, 126 
 
 V. Sanders 48 
 
 V. Union Central L. Ins. Co. 465 
 
 Potts V. Bell 350 
 
 Pottsville Mut. Fire Ins. Co. v. 
 
 Fromm 144 F 
 
 V. Horan 206, 225, 226 
 
 Poiighkeepsie Savings Bank v. 
 
 Manhattan Fire Ins. Co. 144 E 
 
 Pousset V. Insurance Co. of North 
 
 America 386 
 
 V. Minnequa Springs Ins. Co. 56, 
 124 A 
 Powell M. Dewey 109a, 398 
 
 Power V. City F. Ins. Co. 2.52 
 
 V. Ocean Ins. Co. 101, 265 
 
 Powers V. City Fire Ins. Co. 188 
 
 u. Guardian Ins. Co. 279 
 
 Powers Dry Goods Co. v. Impe- 
 rial F. Ins. Co. 492 
 Powles V. Innes 386 
 
 Section 
 Pratt V. Atlantic & St. Lawrence 
 
 R. R. Co. 94 
 
 V. Dwelling-House Mut. Fire 
 
 Ins. Co. 125, 137 
 
 V. N. Y. Central Ins. Co. 378 
 
 V. Travellers' Ins. Co. 530 
 
 Preferred Ace. Ins. Co. v. Bar- 
 ker 615 a 
 Preferred Mut. Ace. Ass. u. Bei- 
 
 delman 518 B 
 
 Prentice v. Achorn 308 
 
 V. Knickerbocker Ins. Co. 469 a 
 Presbyterian Mut. Ass. Fund v. 
 
 Allen 309 F 
 
 Pretzfelder v. Merchants' Ins. Co. 
 
 409C, 471, 494 
 
 Preuster v. Supreme Council 305, 557 
 
 Price V. Brady 459 F 
 
 V. Knights of Honor 398 
 
 V. Phoenix Mut. Life Ins Co. 165, 
 
 183, 185, 187, 205, 304 
 
 Prieger v. Exchange Ins. Co. 251, 253 
 
 Priest et al. u. Citizens' Mut. Fire 
 
 Ins. Co. 147, 504 
 
 Prince of Wales Ins. Co. v. Palmer 573 
 Prince of Wales Life & Ed. Ass. 
 
 Co. V. Harding 17 
 
 Pringle v. Des Moines Ins. Co. 287 B, 
 
 469 C 
 Pritchard v. Mer. & Tradesmen's 
 
 Mut. Life Ins. Co. 853 
 
 Pritchet v. Insurance Co. of North 
 
 America 74, 75 A 
 
 Prize Cases 38, 350 
 
 Propeller Monticello 453 
 
 Protection Ins. Co. v. Hall 80, 98, 145. 
 
 373 
 V. Harmer 143, 170, 184, 242, 470 
 V. Pherson 466 
 
 V. Wilson 448 
 
 Protection Life Ins. Co., In re 550a 
 I'. Palmer 562 
 
 Protective Union v. Gardner 133 A 
 u. Whitt 469, 563 A 
 
 Protector, The 38 
 
 Providence County Bk. ?>. Benson 452 A 
 Prov. Fire & Mar. Ins. Co. v. Mur- 
 phy 552 
 Prov. Ins. Co. v. iEtna Ins, Co. 481 
 Prov. L. Ass. Society u. Reutlin- 
 
 ger ■ 303 
 
 Prov. Life Ins. Co. v. Baum 398, 462, 
 535, 536 
 V. Fennell 532, 534 
 
 Providence Life Ins. & Invest- 
 ment Co. V. Martin 409, 530, 532, 534 
 Providence W. Ins. Co. r. Adler 413 
 V. Brummelkarap 566 
 
 Prov., &c. R. R. Co. n. Yonkers 
 Ins. Co. 401 a 
 
 Ixxiii 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Provident Life Ins. Co. of Chi- 
 cago V. Fennell 306, 359, 584 
 Provident S. L. Ass. Society v. 
 
 Llewellyn 158, 299 
 
 Provincial Ins. Co. v. Lapsley 577 
 
 Prows i: Ohio Val. Ins. Co. 379, 386 
 Prudential Ass. Co. <;. iEtna Life 
 
 Ins. Co. 182 
 
 Prudential Ins. Co. u. Hunn 112 
 
 y. Jenkins 103 A 
 
 V. Liersh 112 
 
 Prudliomnie v. Salamander Ins. 
 
 Co. 401 B 
 
 Pudritsky v. Knights of Honor 144 B, 
 
 298 
 Pugh V. London, &c. Ry. Co. 515 o 
 Puller V. Glover 27 
 
 Pulling V. Travelers' Ins. Co. 340 
 
 PuUis V. Robinson 390, .391 
 
 Pupke V. Resolute Fire Ins. Co. 379 
 Purcell V. St. Paul F. & M. Ins. 
 
 Co. 460 
 
 Purves V. Germania Ins. Co. 30 
 
 Putnam v. Com. Ins. Co. 239 
 
 V. Commonwealth Ins. Co. 372 C 
 
 V. Home Ins. Co. 23, 44, 59, 12B 
 
 V. Mercantile Ins. Co. 79 
 
 Putnam Tool Co. u. Fitchburg 
 
 Mut. Fire Ins. Co. 137 A, 507 
 
 Pym V. Great Northern R. R. Co. 455 
 
 Q. 
 
 Quarles v. Clayton 6, 452 A 
 
 Quarrier v. Ins. Co. 278, 287, 435 
 
 V. Peabody Ins. Co. 279 
 
 Quebec Fire Ins. Co. v. Molson 453 
 V. St. Louis 453, 454 
 
 Queen Ins. Co. v. Hudnut Co. 406 
 V. JefEerson Ice Co. 422 B, 578 a 
 V. Kline 247, 285 
 
 V. May 287 B 
 
 V. Young 200 
 
 Queen's Ins. Co. o. Harris 126 
 
 Quin V. Nat. Ass. Co. 197, 250, 680 
 Quinlan v. Providence Washing- 
 ton Ins. Co. 126, 144 D, 369 
 Quinn v. Capital Ins. Co. 479 
 Quinsigamond Lake S. Co. v. 
 
 Phoenix Ins. Co. 247 
 
 Quong Tue Sing v. Anglo-Nevada 
 Ass. Corp. 67 G 
 
 R. 
 
 Raher v. Jones 
 Rachal i: Smith 
 Racine v. Eq. Ins. Co. 
 
 564 
 453 
 466 
 
 Ixxiv 
 
 
 Section 
 Rafael v. Nashville Mar. & Fire 
 
 Ins. Co. 420 
 
 Rafferty v. New Brunswick Fire 
 
 Ins. Co. 191, 231, 242, 245 
 
 Rahr v. Manchester F. Ass. Co. 126 
 Railey v. Board of Assessors 578 a 
 
 Railway Conductors' Mut. Aid & 
 
 Ben. Ass'n w. Loomis 488 
 
 Railway Pass. Ass. Co. v. Burwell 536 
 Rainger v. Boston M. L. Ass'n 298, 
 
 299 
 Rajinsbarger v. Union Mut. Aid 
 
 Ass. 563 A 
 
 Rainsford v. Royal Ins. Co. 336 
 
 Ralli V. White 2 
 
 Ramsay et al. v. Mut. Fire Ins. Co. 277 
 Ramsay Woollen Cloth Manuf 
 Co. V. Mut. Fire Ins. Co. 365, 366, 
 
 591 
 Ramsey v. Phoenix Ins. Co. 86, 87 A, 
 273 A, 285, 287 
 Ramspeck r. Pattillo 125 
 
 Randall v. Phoenix Ins. Co. 494 
 
 Rankin v. Amazon Ins. Co. 252 
 
 V. Amer. Ins. Co. 179 D, 289 
 
 Rann v. Home Ins. Co. 170, 224 
 
 Ranney v. Mut. Ben. Life Ins. Co. 302 
 Uanspach v. Teutonia F. Ins. Co. 247 
 Rapid, The 350 
 
 Rasmuseu u. New York L. Ins. 
 
 Co. 567 
 
 Rathbone v. City Fire Ins. Co. 70 a, 
 
 190, 235, 502, 504 
 
 Rau V. Westchester F. Ins. Co. 239 A, 
 
 420 
 Raub V. Masonic Mut. Relief Ass. 
 
 399 
 Rawlins v. Desborough 123, 213 
 
 Rawlings v. Bell 188 D 
 
 Rawls V. Am. Mut. Life Ins. Co. 108, 
 109, 112, 117, 123, 192, 203, 207, 213, 
 214, 681 
 Rawson i>. Jones 390 
 
 Rayner v. Preston 450, 456 
 
 Real Estate Mut. Fire Ins. Co. t. 
 
 Roessle 61, 63, 560 A 
 
 Real Estate & Fire Ins. Co. v. 
 
 Cashaw 10, 386 
 
 Reaper City Fire Ins. Co. v. Jones 143, 
 
 239 
 Reardou v. F.aneuil Hall Ins. Co. 
 
 253 B 
 Receivers of Globe Ins. Co. 595 
 
 Reck V. Hatboro Mut. Live-Stock 
 
 & Protective Ins. Co. 401 a 
 
 Reddick v. Saugeen 185, 292 
 
 Redfield v. Holland 86 
 
 Redford v. Mut. Fire Ins. Co. 30 
 
 Redman v. Mtna Ins. Co. 590 
 
 V. Hartford Fire Ins. Co. 161, 250 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Redman v. Wilson 411 A 
 
 Kedmon v. Phoenix Ins. Co. 291 
 
 Redmond v. Industrial B. Ass'n 2a8, 
 
 465 
 Redstrake v. Cumberland Ins. Co. 
 
 133 E 
 Red Wing Mills v. Mercantile 
 
 Mut. Ins. Co. 420 B 
 
 Reed v. Equitable F. & M. Ins. Co. 369 
 V. Independent Ins. Co. 592 
 
 V. Meruliants' Mut. Ins. Co. 400 
 V. Royal Ex. Ass. Co. 107 b, 323 
 V. Union Cent. L. Ins. Co. 345 E 
 a. Washington Ins. Co. 423 B, 
 
 492, 494 
 V. Windsor Co. Mut. Fire Ins. 
 
 Co. 378 a 
 
 Rees V. Scottish, &c. Ass'n 590 
 
 Reese v. Mut. Ben. Life Ins. Co. 350 
 V. Smyth 597 
 
 Reeves v. White 494 
 
 Regnier v. La. Sp. Ins Co. 583 
 
 Reichard o. Manhattan Life Ins. 
 
 Co. 191, 299, 490, 569 A 
 
 Reid V. Gore Dist. Mut. Fire Ins. 
 
 Co. 220 
 
 V. Lan. Fire Ins. Co. 249 C 
 
 V. M'Crum 452 C 
 
 V. Piedmont, &c. Ins. Co. 804 
 
 Reif V. Union Mut. Life Ins. Co. 107 
 
 Reilly v. Chicago Guaranty Fund 
 
 L. Society 70 C, 298 
 
 V. Franklin Ins, Co. 422 B 
 
 Reitenbach o. Johnson 452 A 
 
 ReithmuUer v. Fire Ass. 287 A 
 
 Relfe V. Columbia Life Ins. Co. 594 a 
 Reliance Lumber Co. v Brown 594 
 Relief Fire Ins. Co. v. Shaw 23 
 
 Remington u. Westchester Fire 
 
 Ins. Co. 352 F 
 
 Renier v. Dwelling-House Ins. 
 
 Co. 144 C 
 
 Renninger y. Dwelling-House Ins. 
 
 Co. 291 A 
 
 Hens V. Northwestern Mut. Relief 
 
 Ass'n 322, 325 
 
 Renshaw v. Fireman's Ins. Co. 413 
 V. Missouri State Mut. F. & 
 
 M. Ins Co. 239 A, 242, 402 
 Replogle V. American Ins. Co. 369 
 
 Republic Ins. Co., In re 11 
 
 Reserve Lile Ins. Co. v. Kane 106 
 
 Residence Fire Ins. Co. u. Hanna- 
 
 wold 249 B 
 
 Revere Fire Ins. Co. u, Chamber- 
 
 lin 578 
 
 Rex V. Harborne 46 i 
 
 V. Ins. Companies 101, 116, 14.3, 
 
 278, 293, 424 
 
 Reynolds v. Accidental Ina. Co. 518 
 
 Section 
 
 Reynolds v. Com. Ins. Co. 236, 501 
 
 V. Continental Ins. Co. 129 
 
 V. London & L. F. Ins. Co. 447 A 
 
 V. Mut. Fire Ins. Co. 555 
 
 V. State Mut. Ins. Co. 288, 291 
 
 Rheims v. Standard F. Ins. Co. 465 
 
 Rhinehart v. Alleghany Co. Mut. 
 
 Ins. Co. 558 
 
 Rhode Island Underwriters' Ass'n 
 
 V. Monarch 269 
 
 Rhodes, In re 465 
 
 Rhodes v. Railway Pass. Ins. Co. 23, 
 
 523, 537, 565 
 
 Riach V. Niagara, &c. Ins. Co. 373 
 
 Rice V. Homer 402 
 
 V. N. E. Mar. Ins. Co. 188 D 
 
 ... N. E. Mut. Aid Soc. 561 A 
 
 V. Prov. Ins. Co. 477 
 
 V. Smith 399 D, 459 B 
 
 V. Tower 269, 270, 274 
 
 Richards v. Continental Ins. Co. 138, 
 
 248 
 u. Prot. Ins. Co. 232 
 
 V, Travelers' Ins. Co. 517 A 
 
 u. Wash. Fire & Mar. Ins. 
 
 Co. 133A, 133B, 207, 215C, 
 
 591 
 
 Richardson, Succession of 3991 
 
 V. Canada, &c., Ins. Co. 294 
 
 V. Home Ins. Co. 420 A, 456 
 
 t). Maine Ina. Co. 141, 277, 290 
 
 V. Marine Ins. Co. 71 
 
 V. Mutual L. Ins. Co. 340 
 
 V. Suffolk Ins. Co. 492 
 
 V. White 379 
 
 Richmond v. Niagara Falls Ins. 
 
 Co. 294 4, 365 a, 370, 372 C, 
 497 
 V. PhcEnix Ass. Co. 379 
 
 Richmondville v. Hamilton Mut. 
 
 Ins. Co. 485 
 
 Richmondville Union Seminary v. 
 
 Ham. Ins. Co. 200 
 
 Ricker v. Charter Oak Ins. Co. 390, 
 391, 399 L 
 Riddlesbarger v. Hartford Ins. 
 
 Co. 478, 483 
 
 Ridge V. Ins. Co. 249 C, 249 1 
 
 Ridley v. Ennis 452 C 
 
 Riegel v. American L. Ins. Co. 69 a, 
 70 C, 159, 566 
 Rife V. Lebanon Mnt. Ins. Co. 221 
 
 lliggin V. Patapseo Ins. Co. 172 A, 175 
 Riggs V. Com'l Mut. Ins. Co. 90 
 
 V. Palmer 407 
 
 Riley v. Commonwealth Mut. 
 
 Fire Ins. Co. .349 C 
 
 V. Hartford Ins. Co. 31, .322 
 
 Rindge v. N. E. Mut. Aid Soc. 399 H, 
 
 661 A 
 
 Ixxv 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 
 Rindskoff Bros. & Co. v. Lyman 287 
 
 Kines v. German Ins. Co. 379, 462 
 
 King V. Plioeni.x Ass. Co. 184 
 
 v. Windsor Co. JMut. JFire Ins. 
 
 Co. 144E, 292B, 502 
 
 Rinn v. Astor Fire Ins. Co. 594 
 
 Kintoul V. N. Y. Central, &c. R. R. 
 
 457 B 
 
 Ripley v. .Sltna Fire Ins. Co. 156, 170, 
 
 180, 251, 456, 478, 488 
 
 V. Astor Ins. Co. 251 
 
 Ripley, Adm'r, n. Maritime Pups. 
 
 Ass. Co. 620, 528 
 
 Kipstein v. St. Louis Ins. Co. 470 
 
 Rising Sun Ins. Co. v. Slaughter 365, 
 
 590 
 Rison v. Wilkerson 391 
 
 Rissler u. American Cent. Ins. 
 
 Co. 263 A, 421a 
 
 Ritt V. Washington M. and Fire 
 
 Ins. Co. 125 
 
 Ritter v. Mutual L. Ins. Co. 407 
 
 V. New York Mut. L. Ins. 
 
 Co. 323, 324, 325 
 
 !-. Smith 459 A, 4591) 
 
 V. Sun Mutual Ins. Co. 218, 263 C 
 
 Rivara v. Queen's Ins. Co. 126, 133 A, 
 
 144 E 
 Rivers, Adm'r, ?'. Gregg 108 
 
 Rix V. Mut. Ins. Co. 461, 557 
 
 Roach V. Ky. Mut. Security Fund 
 
 Co. 183 
 
 V. N. Y. & Erie Ins. Co. 478 
 
 Robbins v. People's Ins Co. 434 
 
 V. Springfield F. & M. Ins. 
 
 Co. 137A, 294E, 497 
 
 Robert v. N. Eng. Mut. Life Ins. 
 
 Co. 341, 342, 354, 3.56, 584 
 
 Roberts v. Chenango Co. Mut. 
 
 Ins. Co. 158 
 
 V. Continental Ins. Co. 371 
 
 t'. Firemen's Ins. Co. 72 
 
 u. Germania Fire Ins. Co. 70 B 
 0. Lane 23 D 
 
 V. Phcenix L. Ins. Co. 407 
 
 V. Roberts 399 F 
 
 V. Security Co. 360 
 
 Roberts, Adm'r, v. Cocke 469 
 
 Robertson v. French 173, 175, 177 
 
 0. Metr. Life Ins. Co. 360 C, 360 D 
 V. Money 172 A 
 
 V. State "ins. Co. 133 A 
 
 Robinson v. Mtna Ins. Co. 247, 248 
 V. Duvall 390 
 
 V. Fire Ass. 369 
 
 V. Georges Ins. Co. 492 
 
 V. Hurst 83 
 
 V. Ins. Co. 345 H 
 
 V. Int. Life Ass. Soc. of Lon- 
 don 39 A, 40, 134, 345 
 
 Ixxvi 
 
 Section 
 Robinson v. Mercer Co. Mut. Fire 
 
 Ins. Co. 152, 178, 224, 228, 
 
 230, 245, 410 
 
 V. Met'n L. Ins, Co. 144 A 
 
 u. Mut. Ben. Ins. Co. 391, 399 Q 
 
 V. N. Y. Ins. Co. 80 
 
 V. Pennsylvania F. Ins. Co. 247, 
 
 469 C 
 
 V. St. Louis, &c. Ins. Co. 356, 360 C 
 
 V. Tobin 27 
 
 u. U. S. Mut. Ace. Ass'n 112, 
 
 517 A 
 
 Robison </. Ohio Farmers' Ins. 
 
 Co. 294 E 
 
 Roby V. American Central Ins. 
 
 Co. 279 
 
 Rochester Ins. Co. r. Martin 567 
 
 Rochester Loan & B. Co. v. Lib- 
 erty Ins. Co. 72, 144 a, 247, 269, 469 C 
 Rockford Ins. Co. r. Farmers' 
 
 State Bank 294 E 
 
 V. Nelson 186, 284, 505, 513, 589 
 
 V. Travelstead 504 A 
 
 . V. Winfield 469 C 
 
 Rockingham Mut. Fire Ins. Co. v. 
 
 Bosher 453, 454 
 
 Rockwell V. Hartford Fire Ins. Co. 22 
 
 V. Mut. Life Ins. Co. 360, 362 
 
 Rodi V. Rutgers Ins. Co. 590 
 
 Roe p. Columbus Ins. Co. 415 
 
 V. Dwelling-House Ins. Co. 248, 
 
 469 C 
 
 Roebuck v. Hammerton 27, 75 A 
 
 Roehner v. Knickerbocker Life 
 
 Ins. Co. 342 A, 345 E 
 
 Rogers v. Charter Oak Life Ins. 
 
 Co. 51 
 
 Roger Williams Ins. Co. v. Car- 
 
 rington 24 A, 386 
 
 Rohrbach v. Germania Fire Ins. 
 
 Co. 83, 465 
 
 Rolirschneider v. Knickerbocker, 
 
 &c. Ins. Co. 356 
 
 Rokes V. Amazon Ins. Co. . 462 
 
 Roller V. Moore's Adm'rs 398 
 
 Rollins V. Columbian Miit. Fire 
 
 Ins. Co. 269, 447 
 
 Rombach u. Piedmont, &c. Lite 
 
 Ins. Co. 75 B, 102 A 
 
 Ronald v. Mut. Reserve Fund Life 
 
 Ass. 70 C, 504 A 
 
 Roos V. Merchants' Mut. Ins. Co. 95 
 Root V. Cincinnati Ins. Co. 365 
 
 Roper V. Lend on 465, 492, 494 
 
 Rose V. Star Ins. Co. 295 
 
 «. Wortham 399 D 
 
 Rosebud M. Co. v. Western Ass. 
 
 Co. 231 
 
 Rosenbaum v. Council Bluffs Ins. 
 
 Co. 566 
 
TABLE OF CASES. 
 
 [The references are to the sections.! 
 
 Section 
 Eosenbaum v. U. S. Credit Sys- 
 tem Co. 1 
 Rosenberger v. Ins. Co. 552, 559 
 Rosenwald ik Phoenix Ins. Co. 493 
 Ross V. Bradaiiaw 200, 295 
 V. Citizens' Ins. Co. 288 
 V. Com. Un. Ass. Co. 477 
 V. Hawlceye Ins. Co. 357 
 V. Star Ins. Co. 123 
 Rossiter v. Mina, L. Ins. Co. 159 
 V. Trafalgar Ass. Assoc. 126 
 Koth V. City Ins. Co. 132, 143 
 Rothscliild V. Am. Cent. Ins. Co. 138 
 Roumage v. Meclianics' Fire Ins. 
 
 Co. 152, 461, 466, 469 
 
 Rousseau c. La Confiance 424 
 
 Routli !'. Tiiompson 78 
 
 lioutledge v. Burrell 29 
 
 V. Grant 47 
 
 Rowe V. London, &c. Ins. Co. 166, 239, 
 
 247 
 
 Rowland v. Springfield 43 H 
 
 Rowley v. Empire Fire Ins. Co. 129, 
 
 143, 144, 152, 372, 499 
 
 Rowsell V. Equitable Aid Union 561 A 
 
 Roy V. Globe Ins. Co. 594 a 
 
 Royal Can. Ins. Co. v. Smith 207 
 
 Royal Ins. Co. v. Beatty 43 H 
 
 V. Byers 575 
 
 V. Clark 67 
 
 u. Lubelsky 249 I 
 
 V. McCrea, Maury & Co. 364 A 
 
 V. Mclntyre 421 a 
 
 V. Roedel 435, 436 a 
 
 V. Roodhouse 452 F 
 
 I). Stinson 456, 457 
 
 V. Vanderbilt Ins. Co. 12 
 
 V. Wight C7 G 
 
 Royal Neighbors of America ;;. 
 
 Boman 303 
 
 Royal Templars v. Curd 419 A 
 
 Royster v. Roanoke N. & B. S. B. 
 
 Co. 13 
 
 Ruggles V. Am. Cent. Ins. Co. 43 C, 
 
 126 
 Rumsey v. Phoenix Ins. Co. 283 
 
 Rundle v. Kennan 591 A 
 
 Eunkel v. Lloyd Plate Glass Ins. 
 
 Co. 515 a 
 
 Ranker v. Citizens' Ins. Co. 274, 574 
 
 Runkle v. Citizens' Ins. Co. 67 L, 292 A 
 
 u. Hartford Ins. Co. 279, 401 A 
 
 Ruppert V. Un. Mut. Ins. Co. 392 
 
 Ruse V. Mut. Ben. Life Ins. Co. 74, 75, 
 
 115, 355,400 
 
 V. Mut. Fire Ins. Co. 189, 266, 277 
 
 Russ V. Mut. Ins. Co. 267 
 
 V. Waldo Mut. Ins. Co. 215 C, 379 
 
 Russell V. Berry 560 A 
 
 V. Cedar Rapids Ins. Co. 270, 294 
 
 Section 
 Russell V. T)e Grand 567 
 
 V. Fidelity F. Ins. Co. 364 
 
 u. Manufacturers' & Builders' 
 
 F. Ins. Co. 177, 230 
 
 V. N. E. Mut. Ins. Co. 448, 457 
 V. Russell 399 G 
 
 V. State Ins. Co. 370 
 
 u. Union Ins. Co. 82 
 
 Russell's Policy Trust, In re .396 
 
 Russum V. St. Louis, &c. Ins. Co. 341, 
 
 345 a 
 Rustin V. Standard L. & Ace. Ins. 
 
 Co. 515 a 
 
 Ruth V. Katterman 398 
 
 Rutliven v. American F. Ins. Co. 469 D 
 
 Ryall V. Mut. Prot. Life Ass. Soc. 65 
 
 Ryan v. Adamson 452 B 
 
 V. N. Y. Cent. R. R. Co. 454, 459 
 
 V. Rand 359 
 
 V. Rothweiler 399 Q 
 
 v. Springfield, &c. Ins. Co. 184 
 
 ■;. World Mut. Life Ins. Co. 143, 
 
 566 
 
 Ryder v. Commonwealth Ins. Co. 4.32 
 
 V. Missouri St. Mut. Ins. Co. 505 
 
 V. Phoenix Ins. Co. 425 
 
 Sabin !>. Senate of the National 
 
 Union 322 
 
 Sadlers' Co. v. Badcock 6, 74, 81, 100, 
 
 378, 386 
 
 Safford v. WyckofE 16 
 
 St. John V. Am. Mut. Life Ins. Co. 7, 
 
 107 b, 114, 116, 117, 398, 399 Q, 
 
 447 
 
 V. Am. Mut. Mar. & Fire Ins. 
 
 Co. 415 
 
 St. Johns, The 453 
 
 St. Lawrence Mut. Ins. Co. u. 
 
 Paige 557 
 
 St. Louis A. & T. Ry. Co. v. Fire 
 
 Aas'n of Phila. 457 B 
 
 St. Louis Ins. Co. v. Kyle 462, 464, 468, 
 477, 491 
 St. Louis Mut. Fire Ins. Co. v. 
 
 Broeckler 555 
 
 St. Louis Mut. Ins. Co. v. Glasgow 248, 
 
 408 
 St. Louis Mut. Life Ins. Co. v. 
 
 Graves 312, 316, 325 
 
 V. Grigsby 341, 345 a 
 
 V. Kennedy 56 
 
 St. Nicholas Ins. Co. v. Mercantile 
 
 Ins. Co. 179 D 
 
 I'. Merchants', &c. Ins. Co. 218 
 St. Onge V. Westchester F. Ins. 
 Co. 285, 379 
 
 Ixxvii 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 
 St. Paul, &c. Ins. Co. v. Johnson 43.3 
 
 V. Kidd 453, 457 B 
 
 V. Parsons 120 
 
 -. Shaver 566 A 
 
 V. Wells 502 
 
 St. Paul's Ins. Co. v. Steamboat 454 
 
 St. Paul Title Ins. Co. v. Jolinsou 453 
 
 Salentine v. Mut. Ben. Life Ins. 
 
 Co. 322 
 
 Salisbury v. Hekla Fire Ins. Co. 23 
 Salmon v. Richardson 552, 570 
 
 Salter v. Bush 349 
 
 Salvin v. James 25, 356, 357 
 
 Samo V. Gore Dist. Mut. Fire Ins. 
 
 Co. 277 
 
 Sample v. London & Lancashire 
 
 F. Ins. Co. 478, 479 
 
 Sampson v. Grogan 448 
 
 Sanborn v. Fireman's Ins. Co, 18, 23 
 
 Sanders o. Cooper 144 F, 364 A, 372 C 
 
 V. Hillsborough Ins. Co. 425, 490 
 
 V. Watertown Fire Ins. Co. 365, 
 
 .365 B 
 
 Sanford v. Orient Ins. Co. 23 C, 151 
 
 Sands v. Hill 552, 553, 558, 594 
 
 U.N. Y. Life Ins. Co. 39, .39 A, 
 
 40, 345, 350 
 
 V. Sanders 558 
 
 V. St. John 549 
 
 V. Standard Ins. Co. 180 a, 269 
 
 I'. Sweet 559 
 
 Sandys v. Hodgson 502 
 
 Sanford v. Mechanics' Mut. Fire 
 
 Ins. Co. 227, 241, 408, 552 
 
 V. Trust Fire Ins. Co. 19, 54 
 
 Sanger v. Rothschild 399 H 
 
 I'. Upton 594 
 
 Sans, Receiver, v. Hill 555 
 
 Santa Clara Female Academy v. 
 
 Northwestern National Ins. Co. 95 A, 
 
 421 a 
 
 Sargent w. Nat. Fire Ins. Co. 23 B 
 
 Sarsfield v. Metropolitan Ins. Co. 247 
 
 Sater v. Henry County Farmers' 
 
 Ins. Co. 70 a 
 
 Satterthwaite v. Mut. Ben. Ins. Co. 207 
 
 Sauvey u. Isolated Ins. Co. 285 
 
 Savage «. Corn Ex., &c. Ins. Co. 94 A, 
 
 423 A, 469 B 
 
 V. Howard Ins. Co. 273, 445 
 
 V. Long Island Ins. Co. 272 
 
 V. Medbury 549, 557, 594 
 
 u. O'Neil 331 
 
 V. Phoenix Ins. Co. 67 D 
 
 Savannah F. & M. Ins. Co. v. Pel- 
 
 zer Manuf. Co. 453 
 
 Saveland v. Fidelity & Casualty Co. 523 
 Savings Institution v. Commercial 
 
 Ins. Co. 446 
 
 Sawyer v. Dodge Co. Mut. Ins. Co. 401 a 
 
 Ixxviii 
 
 Section 
 
 Sawyer ti. Equitable Ace. Ins. Co. 126 
 
 V Hoag 596 
 
 V. U. S. Casualty Co. 522 
 
 Sayles v. North Western Ins. Co. 156, 
 
 157, 158, 171, 258 
 
 Sayres v. Hartford Fire Ins. Co. 81 
 
 Scammell u. China Mutual Ins. Co. 14 
 
 Scammon v. Com. Un. Ins. Co. 269 a, 
 
 469 
 
 V. Germania Ins. Co. 462 
 
 V. Kimball 596 
 
 Scanlon v. Sceales 304 
 
 V. Union Fire Ins. Co. 276 B 
 
 Scarth v. Security Mut. Life Soc. 322 
 
 Sceales v. Scanlan 156, 170 
 
 Schaeffer v. Baltimore Mar. Ins. 
 
 Co. 420 B 
 
 V. Farmers' Ins. Co. 240, 294 E 
 
 Schaible v. Wash. Life Ins. Co. 585 
 
 Schefifer v. National Ins. Co. 320 
 
 Sclieiderer v. Travelers' Ins. Co. 461, 
 
 524 A 
 Schenck u. Mercer Co. Mut. Ins. 
 
 Co. 152, 365, 368, 462, 580 
 
 Scheu V. Grand Lodge, &c. Ind. 
 
 Foresters 561 A 
 
 Scliimp V. Cedar Rapids Ins. Co. 345 E, 
 345 H, 502 
 Schimpf D. Lehigh, &c. Ins. Co. 550 
 Schlect V. World Ins. Co. 672 
 
 Schmidt t;. American Mut. Ace. 
 
 Ass'n 566 
 
 «. Charter Oak Life Ins. Co. 327 A 
 
 i/. Home Life Ins. Co. 322 
 
 V. Mut. City, &c. Ins. Co. 373 B 
 
 V. N. Y. Un. Mut. Fire Ins. Co. 583 
 
 V. Peoria, &c. Ins. Co. 192, 218, 231, 
 
 255, 341 a 
 
 Schmurr v. State Ins. Co. 67, 401 B, 466 
 
 Schneider v. Prov. Life Ins. Co. 400, 
 
 530 
 V. U. S. Life Ins. Co. 399 P 
 
 Schoener v. Hekla Fire Ins. Co. 143 
 Schoep V. Bankers' Alliance Ins. 
 
 Co. 1-25, 399 D 
 
 Schofield v. Jones 400 
 
 V. Nav. B. Pat. Tanning Co. 452 B 
 Scholefield v. Eichelberger 42 A 
 
 Schoneman v. Ins. Co. 502 
 
 School Dist. V. Danelly 850 
 
 V. German Ins. Co. 241 
 
 School Dist. in Dresden v. JEtna, 
 
 Ins. Co. 270 B 
 
 Schouweiler r. Merchants' Mut. 
 
 Ins. Ass'n 494 
 
 Schroedel v. Humboldt F. Ins. Co. 287 B 
 Schroeder v. Farmers' Mut. Fire 
 
 Ins. Co. 557 
 
 V. Keystone Ins. Co. 488 
 
 V. Mut. Life Ins. Co. 419 A 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Schroeder v. Springfield F. & M. 
 
 Ins. Co. 345 B, 368 
 
 V. Stock and Mut. Ins. Co. 177 
 
 V. Trade Ins. Co. 175, 401 
 
 Schultz V. Citizens' Mut. L. Ins. 899 D 
 
 V. Hawkeye Ins. Co. 358 
 
 V. Ins. Co. 807 
 
 V. Merch. Ins. Co. 156, 249 B, 
 
 423 A, 589 
 
 ■0. Mut. Life Ins. Co. 296 
 
 V. Pacific Ins. Co. 583 
 
 Scliumaeher u. Manliattan Life 
 
 Ins. Co. 344 a 
 
 Sclmnck v. Gegenseitiger, Witten 
 
 und Waisen Fond 170 
 
 Sohunilscli o. American Ins. Co. 277, 
 
 290 
 Schurtz V. Germania Life Ins. Co. 55 
 Schuster v. Dutciiess Co. Ins. Co. 189 
 Schwabe v. Clift 308 
 
 Scliwartz v. Germania Ins. Co. 340, 
 
 347 
 
 Schwartzbach v. Prot. Union 144 U, 
 
 156, 162, 185, 429, 465, 501, 502, 679, 
 
 589 
 Schweiger v. Magee 7-3 
 
 Scoles V. Universal Life Ins. Co. 296, 
 
 304 
 Scott I'. Avery 492, 493, 494, 495 
 
 o. Bourdillon 420 A 
 
 t. Dickson 100 A, 108, 112, 114, 378 
 V. Home Ins. Co. 21, 583 
 
 V. Mercantile A. & G. Ins. Co. 494 
 V. Niagara, &c. Ins. Co. 505 
 
 V. Phoenix Ins. Co. 466, 492, 495 
 V. Quebec Ins. Co. 255 
 
 c. Security F. Ins. Co. 469 D 
 
 V. Sun Fire Office 67 G 
 
 Scottish Union, &c. Ins. Co. v. 
 
 Dangaix 67 
 
 V. Petty 289 
 
 Scripture v. Lowell Mut. Fire Ins. 
 
 Co. 402, 413, 416 
 
 Sea Ins. Co. u. Fowler 420 
 
 V. Hadden 454 
 
 Seal V. Farmers' Ins. Co. 285, 294 C 
 
 Seaman v. Enterprise, &c. Co. 90 
 
 V. Luring 452 E 
 
 V. West 452 B 
 
 Seamans v. North "Western Mut. 
 
 Life Ins. Co. 358, 502 o 
 
 Seamen's Fr. Soo. v. Hopper .320 
 
 Searle v. Dwelling-House Ins. Co. 138, 
 
 469 C 
 Searles v. Manhattan Elevated R. 
 
 Co. 517 A 
 
 Seavey v. Central Ins. Co. 420 
 
 Secor V. Dalton 391 
 
 Security Co. v. Panhandle Nat. 
 
 Bank 447 A 
 
 Section 
 Security Fire Ins. Co. v. Ken. 
 
 Mar. & Fire Ins. Co. 15, 18, 23 
 
 Security Ins. Co. v. Bronger 287, 292 
 
 V. Farrel 424 
 
 a. Fay 498, 507 
 
 u. Metle 263 A, 294 G 
 
 0. St. Paul's Ins. Co. 434 
 
 Security Life Ins. Co. v. Gober 341 
 
 Seiders v. Merchants' L. Ass'n 66 
 
 Seigrist v. Sclimoltz 117, 452 A 
 
 Seller v. Economic L. Ass'n 324 
 
 Selby V. Mutual L. Ins. Co. 158 
 
 Sellers v. Convnercial F. Ins. Co. 125, 
 
 600 
 Selvage o. John Hancock Mut. 
 
 Life Ins. Co. 360 C 
 
 Semmes v. City Fire Ins. Co. 39, 486 
 
 V. Hartford Ins. Co. 350 
 
 Sergent v. Liverpool, &c. Ins. Co. 465 
 
 Servoss v. Western Mut. Aid Soc. 
 
 561 A 
 Seutell V. Oswego Co. Farm. Ins. 
 
 Co. 249 I, 291 A, 294 E 
 
 Severance v. Continental Ins. Co. 566 B 
 
 Seward v. Rochester 494 
 
 Sexton V. Hawkeye Ins. Co. '249 C, 402 
 
 u. Montgomery County Mut. 
 
 Ins. Co. 143, 152, 228, 469 
 Seybert's Adm. v. Penn. JVIut. 
 
 Fire Ins. Co. 294 a 
 
 Seybold v, Garceau 433 A 
 
 Seyk V. Millers' Nat. Ins. Co. 30, 421 a, 
 
 660 B 
 Seyms v. N. Y. Life Ins. Co. 39 A 
 
 Seyton, In re 399 D 
 
 Shackelford v. Knights of Damon 55 A 
 Shackett v. People's Mut. Benefit 
 
 Society 479 
 
 Shackleton v. Sun Fire Office 249 D 
 Shader v. Railway, &c. Ins. Co. 299, 
 
 531 
 Shafer v. Phoenix Ins. Co. 274, 601 
 Sliaflter v. Spangler 83, 459 E 
 
 Shakey v. Hawkeye Ins. Co. 67 
 
 Shakman v. U. S. Credit System 
 
 Co. 1, 2, 544 
 
 Shank v. United Brethren, &c. 
 
 Soc. 325 
 
 Shannon v. Gore Dist. Ins. Co. 366, 420 
 
 V. Hastings Mut. Ins. Co. 180 a, 
 
 371, 466 
 
 V, Nugent 75 
 
 Sharland v. Washington L. Ins. 
 
 Co. 325, 465 
 
 Sliarpe v. Commercial Travelers' 
 
 Mut. Ace. Ass'n 465 
 
 Sliarpless v. Hartford F. Ins. Co. 401 a 
 
 Shattuck V. Mut. Life Ins. Co. 66 
 
 Shaughnessy v. Rensselaer Ins. 
 
 Co. 558, 594 
 
 Ixxix 
 
TABLE OF CASES. 
 
 [The references are to the sectiouB.] 
 
 Section 
 Shaw V. Mtna. Ins. Co. 78, 80 
 
 V. Berkshire Life Ins. Co. 341 
 
 V. riremen's Ins. Co. 578 a 
 
 V. Home Life Ins. Co. 576 
 
 V. Rep. Life Ins. Co. 61 
 
 V. Robberds 218, 230, 241, 408 
 V. Scottish Ins. Co. 477, 497 
 
 I. St. Lawrence County Mut. 
 
 Ins. Co. 287, 373 
 
 Shawe v. i'elton 30 
 
 Shawraut Mut. fire Ins. Co. v. 
 
 Stevens 133, 137, 140, 206 
 
 Shawmut Sugar Co. v. Hampden 
 ~ Ins. Co. 445 
 
 Shawmut Sugar Refining v. Peo- 
 ple's Mut. Fire Ins. Co. 465 
 Shay V. Nat. Ben. Society 340, 561 A 
 Shea V. Mass. Benefit Ass'n 75 B 
 Shearman v. Niagara Fire Ins. 
 
 Co. 381, 384, 385 A 
 
 Shedden i>. Heard 144 D, 345 E 
 
 Slieerer v. Manhattan L. Ins. Co, 344 E 
 Sheldon v. Atlantic Fire & Mar. 
 
 Ins. Co. 135, 359, 360, 501, 584 
 
 i;. Conn. Mut. Life Ins. Co. 134, 
 
 146, 360, 565 
 
 V. Hartford Fire Ins. Co. 159, 251 
 
 V. Helcla Fire Ins. Co. 43 F 
 
 Shellenberger v. Ransom 407 
 
 Shepherd v. Chewter 452 F 
 
 V. Union Mut. Fire Ins. Co. 170, 
 
 227, 269 
 
 Sherboneau v. Beaver Mut. Fire 
 
 Ins. Ass. 80, 87, 287 
 
 Sherman v. Madison Ins. Co. 435 
 
 Shertzer v. Mut. Fire Ins. Co. 17, 27 
 Slierwood v. Agr. Ins. Co. 266, 401 a 
 Shields v. Scot. Ass. Corp. 421 a, 591 
 V. Sharp 399 N 
 
 Shilling V. Ace. Death Ins. Co. 298 
 Shirley v. Mut. Ass. Soc. 663 
 
 Slioemaker v. Glens Falls Ins. Co. 159 
 Short V. Home Ins. Co. 249 I 
 
 Shotwell «. Jefferson Ins. Co. 267 
 
 Shrewsbury v. Blount 188 D 
 
 Shuggert v. Lycoming F. Ins. Co. 511 
 Shultz V. Hawkeye Ins. Co. 358 
 
 V. Pacific Ins. Co. 583 
 
 Shuman v. Knights of Honor 465 
 
 Shunk V. Gegenseitiger 550 a 
 
 Shurtleff v. Phoenix Ins. Co. 365 a 
 
 Sias V. Roger WiUiams Ins. Co. 379 
 Sibbald v. Hill 195, 196, 197,' 308 
 
 Sibley v. Prescott Ins. Co. Ill, 424 A 
 V. St. Paul, &c. Ins. Co. 443, 477, 
 583 
 Sickles V. Brabbitts 364 
 
 Sierra Milling, &c. Co. i'. Hart- 
 ford Fire Ins. Co. 199, 252 
 Sillem V. Thornton 158, 218, 230, 257 
 
 Ixxx 
 
 Section 
 Siltz V. Hawkeye Ins. Co. 133 A, 423 A 
 Silverberg v, Phenix Ins. Co. 504 A, 
 
 511 
 Simeral v. Dubuque Mut. Fire 
 
 Ins. Co. 377 
 
 Sirames v. Marine Ins. Co. 87 A 
 
 Simmons v. Ins. Co. 133 A, 583 
 
 Simon v. Boydell 26 
 
 Simons v. N. Y. Life Ins. Co. 133 
 
 Simonton v. Liverpool Life Ins. 
 
 Co. 23 D 
 
 Simpson v. Aco. Death Ins. Co. 353, 
 
 354 
 
 V. Venn. Fire Ins. Co. 371 
 
 V. Va. L. Ins. Co. 327, 478 
 
 Sims V. State Ins. Co. 239 
 
 Sinclair v. Canadian, &c. Ins. Co. 285 
 
 V. Mar. & Pass. Ins. Co. 519, 630 
 
 V. Plioenix, &c. Ins. Co. 168, 296, 297 
 
 Singleton v. Boone County Ins. 
 
 Co. 425 
 
 V. St. Louis Mut. Life Ins. Co. 107, 
 107 a, 398 
 Sinkler v. Indiana Turnpike Co. 549 
 Sinnissippi Ins. Co. v. Taft 669 
 
 Sisk V. Citizens' Ins. Co. 287 B, 369 
 Siter V. Morrs 424 
 
 Skarf V. Soulby 391 B 
 
 Skillings !). Mass. Ben. Ass. 459 D 
 Skipper v. Grant 496 B 
 
 Slater Mut. Ins. Co. v. Barstow 667 
 Slaughter's Case 577 
 
 Sleeper b. Ins. Co. 180 a, 248 
 
 V. New Hampshire Ins. Co. 477 
 Slim V. Croucher 673 
 
 Slinkard v. Manchester Fire Ass. 
 
 Co. 401 A 
 
 Sloat V. Royal Ins. Co. 13, 366, 366, 
 
 435,436 a 
 
 Slobodisky v. Phoenix Ins. Co. 368, 566 
 
 Sloman v. Mercantile Credit 
 
 Guarantee Co. 465 
 
 Small V. Jose 399 L 
 
 u. Westchester F. Ins. Co. 269, 279, 
 
 291A, 379, 479, 678 a 
 
 Smedley v. Felt 390 
 
 Smiley v. Citizens' Fire, Mar., & 
 
 Life Ins. Co. 415, 687 A 
 
 Smillie v. Quinn 391 A 
 
 Smith V. Ace. Ins. Co. 518 
 
 V. Mtna, Life Ins. Co. 123, 212, 296, 
 
 306 
 
 t;. Bell 560 A 
 
 V. Binder 593 
 
 V. Bowditch Ins. Co. 87, 287 
 
 V. BuUard 469 D 
 
 V. Cash. Mut. Fire Ins. Co. 149 
 
 V. Charter Oak, &c. Ins. Co. 40, 360 
 
 u. City of London Ins. Co. 43 F, 
 
 504 A 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 
 Smith v. Cologan V2i 
 
 V. Columbia Ins. Co. 293, 424, 45B 
 
 t;. Conn. Ins. Co. 294 6,37:^,497 
 
 u. Continental Ins. Co. 270, 344 a, 
 
 845 E, 365, 369, 409 C 
 
 V. Empire Ins. Co. 122, 189, 290 
 
 V. Farmers' Mut. Ins. Co. 145, 274 
 
 V. Ferris 507 
 
 V. German Ins. Co. 2.S9A 
 
 V. Glens Falls Ins. Co. 442, 575 
 
 V. Haverliill Mut. Fire Ins. Co. 147, 
 
 465, 471 
 
 V. Head 399 Q 
 
 u. Hill 595 
 
 c. Home Ins. Co. 124 A, 208, 
 
 373 A, 373 B 
 
 V. Hunterdon Co. Mut. Fire 
 
 Ins. Co. 12 C 
 
 V. Insurance Co. 131, 145 
 
 V. Knowlton 465 
 
 V. Lascelles 124 
 
 V. Mechanics' & Traders' Mut. 
 
 Fire Ins. Co. 157, 191, 231 
 V. Met'n L. Ins. Co. 187, 298, 303 
 V. Mo. Valley Ins. Co. 390 
 
 V. Monmouth Mut. Fire Ins. 
 
 Co. 267, 379 
 
 V. Mut. Life Ins. Co. 66, 344 a, 502 
 V. Nat. Ben. Soc. 307, 324, 459 E 
 V. National Credit Ins. Co. 2, 5, 67 
 V. Nat. Life Ins. Co. 344 E, 356 A 
 V. New England M. F. Ins. Co. 126, 
 340, 345 B 
 V. Niagara Fire Ins. Co. 292, 292 B, 
 469 D 
 V. Northwestern Mut. L. Ins. 
 
 Co. 298 
 
 V. Odlin 20 
 
 V. Phcenix Ins. Co. 273 A 
 
 V. Pinch 75 B 
 
 V. Preferred Masonic Mut. 
 
 •Ace. Ass'n 494, 531 A 
 
 ■V. Price 124 
 
 u. Provident Sav. L. Ass. So- 
 ciety 126, 360 
 V. Queen Ins. Co. 477 
 V. Koyal In.i. Co. 82 
 V. Saratoga County Mut. Ins. 
 
 Co. 381 a, .385, 5.53 
 
 u. State Ins. Co. 2.3, 469 C 
 
 V. St. Paul F. & M. Ins. Co. 288, 
 
 504 A 
 
 V. Whitbeck 342 
 
 Snell V. Atlantic Fire Ins. Co. 566 
 
 V. Delaware Ins. Co. 423 A 
 
 Snodgrass v. Gavit 493 
 
 Snow V. Carr 122 A 
 
 Snowden v. Kittanning 504 A 
 
 Snyder!). Dweliing-Houselns. Co. 126, 
 
 239A, 452F, 469D| 
 
 VOL. I. — / 
 
 Section 
 Snyder v. Farmers' Ins. & Loan 
 
 Co. 158, 164 
 
 V. Mut. Life Ins. Co. 312 
 
 Sofge V. Knights of Honor 399 
 
 Soliier v, Norwich Fire Ins. Co. 402 
 Soli V. Farmers' Mut. Ins. Co. 420 
 
 Solicitors' & General Liie Ins. Co. 
 
 V. Lamb 324 
 
 Solms V. Rutgers Fire Ins. Co. 129, 
 
 506 
 Solomon v. Continental F. Ins. Co. 460, 
 
 462 
 Solvency Mut. Guar. Ins. Co. -u. 
 
 'Freeman 544 
 
 V. York 540, 544 
 
 Somerfield v. Ins. Co. 365 C 
 
 V. State Ins, Co. 365 C 
 
 Somers v. Atheneum Fire Ins. Co. 148, 
 
 186 
 Somerset Co. Mar. Fire Ins. Co. 
 
 w. Usaw 247, 249, 583 
 
 Somerset Ins. Co. v. May 64 
 
 Soorholtz V. Marshall County Far- 
 mers' Mut. F. Ins. Co. 469 C 
 Souder v. Home Friendly Society 112, 
 
 398 
 Soupras v. Mut. Fire Ins. Co. 368 
 
 SourJon v. Ins. Co of N. A. 386 
 
 Southard v. Railway Passengers' 
 
 Ass. Co. 170, 615, 534 
 
 South Australian Ins. Co. v. Randall 421 
 South Bend Toy Manuf, Co, v. 
 
 Dakota F. & M. Ins. Co. 151 
 
 Southcombe v. Merriman 299 
 
 Southern Fertilizer Co. v. Reams 279 
 Southern Home Building & Loan 
 
 Ass'n V. Home Ins. Co. 469 C 
 
 Southern Ins. Co. u. Lewis 87, 244, 285 
 
 V. Parker 263 A 
 
 Southern Life Ins. Co. v. Booker 134, 
 
 214, 359, 360 
 
 V. Kempton 60, 191 
 
 V. McCain 126, 358, 502 
 
 V. Wilkinson 180a, 296 
 
 Southern Mut. Ins. Co. i^. Turnley 471 
 
 V. Yates 145 
 
 Southern Mut. Life Ins. Co. v. 
 
 Montague 188 F, 344 F 
 
 V. Taylor 341 
 
 Soutliside Fire Ins. Co. v. Mueller 67 
 South Staffordshire Tramways 
 
 V. Sickness Ass. Co. 514 
 
 Southwest Lead & Zinc Co. u. 
 
 Phcenix Ins. Co. 420 A 
 
 Southwick 0. Atl. Fire & Mar. Ins. 
 
 Co. 287 B 
 
 Sovereign Fire Ins. Co. v. Mpir 237 
 
 V. Peters 379 
 
 Soye V. Merchants' Ins. Co. 248 
 
 Spalding v. Miller 448 
 
 Ixxxi 
 
TABLE OF OASES. 
 
 [The references are to the sections.] 
 
 Section 
 
 Spare v. Home Mut. Ins. Co. 75 A, 83, 
 
 125, 386, 501 
 
 Sparrow v. Mut. Ben. Life Ins. Co. 366, 
 
 372, 500 
 
 V. Universal Fire Ins. Co. 462 
 
 Spaulding v. N. Y., &c. Ins. Co. 576 
 
 S|jeagle w. Dwelling-House Ins. Co. 247 
 
 Hpetru. PhoBnix Mut. Life Ins. Co. 569 
 
 Hjjenseley v. Lancastrian Ins. Co. 406 
 
 Sperry v. Del. Ins. Co. 468 
 
 V. Springfield Fire & Mut. 
 
 Ins. Co. 29 B, 239 B 
 
 Spies V. Greenwich Ins Co. 252 
 
 Spinning v. Ohio Life, &c. Co. 594 
 Spitzer u. St. Mark's Ins. Co. 63, 222 
 Splann v. Chew 399 L, 552 
 
 Spoeri v. Mass. Mut. Life Ins. Co. 361 
 Sprague u. Holland Purch. Ins. 
 
 Co. 365 
 
 Spratley v. Hartford Ins. Co. 420 
 
 Springer u. Anglo-Nevada Ass. 
 
 Corp. 21 
 
 Springfield Fire & Mar. Ins. Co. 
 
 V. Allen 267, 283 
 
 a Brown 458 
 
 V. McKinnon & Call 67 E 
 
 0. McLimans 159, 230, 248 
 
 V. Payne 494 
 
 Spring Garden Ins. Co. v. Scott 120, 
 
 145 
 Spring Garden Mut. Ins. Co. v. 
 
 Evans 465, 471, 505 
 
 Sprott V. Ross 200 
 
 Sproul V. Western Ass. Co. 23 C, 
 
 294 C, 294 E, 322 
 Spruill i,. N. C. Mut. Life Ins. Co. 326, 
 330, 403 
 Spurr V. Home Ins. Co. 566 
 
 Squier v. Hanover F. Ins. Co, 126 
 
 Stacey v. Franklin Fire Ins. Co. 1.3, 
 365, 365 B, 367 
 Staehe v. St. Paul, &c. Ins. Co. 442 
 Stackpole v. Simon 295 
 
 Stainbank !>. Penning 1)6 
 
 Stambaugh v. Blake 103 A 
 
 Stamps !.'. Commercial Ins. Co. 4.32 
 Standard Fire Ins. Co. v. Wren 423 A 
 Standard Ins. Co. v. Langston 531 A 
 Standard L. & Ace. Ins. Co. v. 
 
 D.ivis 144 A, 465 
 
 V. Martin 187, 202 
 
 V. Schmaltz 515 a 
 
 V. Thornton 325 
 
 V. Ward 306 
 
 Standard Oil Co. v. Triumph Ins. 
 
 Co. 123 
 
 Standard Sug. Refinery u. The 
 
 Centen'nial 165 A 
 
 Standley v. N. W. Mut. Life Ins. 
 Co. 669 
 
 Ixxxii 
 
 Section 
 Stanley v. Northwestern Life Ass. 562 
 V. Western Ins. Co. 404, 415, 416 
 Stannard v. Am. Pop. Life Ins. 
 
 Co. 260, 305 
 
 Starck v. Union Central L. Ins. Co. 478 
 Stark County Mut. Ins. Co. v. 
 
 Hurd 24, 369 
 
 Starkweather v. Cleveland Ins. Co. 264, 
 
 386 
 
 State V. Baltimore & 0. R. Co. 457 B 
 
 V. Doyle 578 
 
 V. Ins. Co. 548, 578 a 
 
 V. Manufacturers' Mut. Fire 
 
 Ass'n 657 
 
 V. Matthews 557 
 
 V. Merchants' Exch. Benev. 
 
 Soc. 550 a 
 
 V. Phipps 1, 578 a 
 
 V. Williams 420 
 
 State Board of Agri. v. R. R. Co. 15 
 State Fire & Mut. Ins. Co. v. Por- 
 ter 22 A, 402 
 State Ins. Co. v. Belford 465 
 I). Gray 144 A, 285 
 V. Hughes 241 
 V. Maackens 461, 465, 488 
 V. New Hampshire Trust Co. 
 
 188 C, 364 
 V. Oregon Ry. & Nav. Co. 453 
 
 V. Richmond 138 B 
 
 V. Stoffels 479 
 
 V. Taylor 247 
 
 V. Todd 294 b, 468 
 
 State Mut. F. Ins. Ass'n v. Brink- 
 ley Stave and Heading Co. 66, 67, 
 557, 578 a 
 State Mut. Fire Ins. Co. ^. Arthur 156 
 V. Roberts 227, 379, 382 
 
 Statham v. N. Y. Life Ins. Co. 39, 40 
 Stauffer v. Manheim M. F. Ins. Co. 240 
 V. Penn M. F. Ins. Ass'n 164, 368 
 Staunton v. West. Ass. Co. 345 a 
 
 Stearns v. Quincy Mut. Fire Ins. 
 
 Co. • 425 C 
 
 Stebbins v. Globe Ins. Co. 164, 180, 
 
 191, 225, 244 
 
 Steel V. Phenix Ins. Co. 479 
 
 Steele v. Franklin Fire Ins. Co. 420, 
 
 456 
 V. German Ins. Co. 369, 500 
 
 Steems v. Sovereign Fire Ins. Co. 591 
 Steen v. Niagara Fire Ins. Co. 249 H, 
 282 A, 292, 479 
 Steers v. Ins. Co. 242 
 
 Stehliek v. Milwaukee Mechan- 
 ics' Ins. Co. 14, 125 
 Steight, Ex parte 896 
 Stein V. National L. Ass'n 513 
 Steinbach v. Lafayette Fire Ins. 
 Co. 232, 239 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Steinbach v. Relief Ins. Co. 2-32, 566 
 Steinback v. Diepenbrock 110, 112 
 Steinle v. New York Life Ins. Co. 
 
 56 A, 340 
 
 Steinmetz v. Franklin Ins. Co. 227 
 
 Stennett v. Penn. Fire Ins. Co. 133 D 
 
 Stensgaard v. Nat. Fire Ins. Co. 249 A 
 
 V. St. Paul Real Estate Title 
 
 Ins. Co. 2 
 
 Stenhens v. Baird 502 
 
 \. Capital Ins. Co. 360 
 
 V. 111. Mut. Fire Ins. Co. 81, 82 
 
 Stephenson «. P. F. cSb M. Ins. Co. 492 
 
 V. Stephenson 399 
 
 Stepp V. National L. & M. Ass'n 465 
 
 Sterling v. Mer. Mut. Ins. Co. 552, 555, 
 
 591 
 Sternes v. Manhattan Life Ins. Co. 566 
 .;. Warner 398 
 
 Sternfield v. Park Fire Ins. Co. 477 
 Sternman v. Met'n L. Ins. Co. 298 
 
 Stetson V. Mass. Fire Ins. Co. 222, 225, 
 
 257 
 Stettiner v. Granite Ins. Co. 228, 
 
 263 B 
 Stevens v. Citizens' Ins. Co. 365 B, 464, 
 
 483 
 
 u. Lane 390 
 
 V. Phcenix Ins. Co. 569 A 
 
 V. Queen Ins. Co. 285 
 
 Stevens, Adm'r, v. Warren, Adm'r 110, 
 
 396, 398 
 
 Stevenson v. Phoenix Ins. Co. 365 C 
 
 0. Snow 4 
 
 Steward v. Phoenix Fire Ins. Co. 159, 
 
 423 
 Stewart v. Equitable Mut. L. 
 
 Ass'n 303 
 
 V. Helvetia-Swiss F. Ins. Co. 70 B, 
 
 126 
 
 V. Union Mut. L. Ins. Co. 345 E, 
 
 360 
 
 Stieglitz V. Belding 2 
 
 Stillwell V. Mut. Life Ins. Co. 390 
 
 V. Staples 424, 452 A, 456 
 
 Stimpson v. Monmouth Mut. Fire 
 
 Ins. Co. 447, 463 
 
 Stobart v. Dryden 214 
 
 Stockdale v. Dunlop 80, 96 
 
 Stocker v. Boston Mut. F. Ins. Co. 156 
 Stocks V. Dobson 396 
 
 Stockton C. H. & Agr'l Works v. 
 
 Glens Falls Ins. Co. 496 B 
 
 Stokell V. Heywood 21 
 
 Stokes V. Coffee 391 
 
 V. Cox 159, 218, 257 
 
 StoUe V. JEtna Ins. Co. 383 
 
 Stone V. Franklin Fire Ins. Co. 67 F, 
 
 67 K 
 V. Granite State F. Ins. Co. 248 
 
 Section 
 
 Stone V. Hawkeye Ins. Co. 133 A, 
 
 144 A, 465 
 
 V. Howard Ins. Co. 231, ^53 
 
 0. U. S. Casualty Co. 306 
 
 Stone, Adm'rs, u. U. S. Casualty 
 
 Co. 158, 531, 532, 533 
 
 Stoneham ik Ocean, &o. Ins. Co. 465 
 Storer v. Elliot Fire Ins. Co. 367 
 
 Stormont v. Waterloo Life & 
 
 Casualty Ins. Co. 312 
 
 Storms V. Canada Farmers' Mut. 
 
 Ins. Co. 553 
 
 Story V. Hope Ins. Co. 502 
 
 Stoughton V. Manufacturers' Nat- 
 ural Gas Co. 453 
 Stout V. City Fire Ins. Co. 93, 157, 248, 
 379, 478, 487, 566 
 V. Com. Union Ass. Co. 233 
 Stovall V. Fireman's Ins. Co. 239 
 Stow V. Wadley 557 
 Stowe V. Phinney 459 G 
 Straker v. Phenix Ins. Co. 177, 401 B, 
 
 566 
 Stratton v. North AmeriSan, &o. 
 
 Ins. Co. 317 
 
 Straus V. Eagle Ins. Co. 595 
 
 Strauss v. Imp. Fire Ins. Co. 403 
 
 u. Phenix Ins. Co. 369 
 
 Straw V. Truesdale 496 B 
 
 Street v. Eigby 495 
 
 Streeter v. Ins. Co. 307, 322 
 
 Strickland v. Council Bluffs 138 
 
 Stringham v. St. Nicholas Ins. Co. 132 
 
 Strohn v. Hartford Fire Ins. Co. 51, 448 
 
 Strong J!. Am. Cent. Ins. Co. 11 
 
 <,. Manuf. Ins. Co. 7, 81, 185, 269 o, 
 
 272, 274, 285, 424 
 
 V. Phoenix Ins. Co. ■ 11 
 
 V. Sun Mutual Co. 415 
 
 Strunk v. Firemen's Ins. Co. 247 
 
 Stuart V. Columbian Ins. Co. 83 a 
 
 V. Sutcliffe 112, 379 
 
 Stupetzki V. Transatlantic Fire 
 
 Ins. Co. 248 
 
 Sturm V. Atlantic Mut. Ins. Co. 80, 
 
 366, 373 
 
 V. Williams 423 A 
 
 Styan, In re 395 
 
 Stylow II. Wis. Odd Fellow's Mut. 
 
 Life Ins. Co. 561 A 
 
 Succession of Hearing 390, 391 
 
 Keegan 392 
 
 Reiley 396 
 
 Suckley v. Delafleld 188 B, 405 
 
 Suffolk Fire Ins. Co. u. Boyden 116, 
 
 456 
 
 Sugden v. Farmers' Ins. & Loan Co. 159 
 
 V. Mut. Life Ins. Co. 312 
 
 Suggs V. Ins. Co. 365 B, 478 
 
 V. Liverpool, &c. Ins. Co. 365 
 
 Ixxxiii 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Sullivan v. Cotton States Life Ins. 
 
 Co. 29 B 
 
 V. Hartford F. Ins. Co. 30 
 
 V. Mass. Mut. Fire Ins. Co. 555, 567 
 V. Phenix Ins. Co. 124 A, 144 A 
 V. V. Pacific R. R. Co. 453 
 
 Summerfield v. North Britisli & 
 
 JMerc. Ins. Co. 294 E, 494 
 
 Summers o. V. S. Ins. An. & Tr. 
 
 Co. 218 
 
 Sun Tire Office v. Clark 269, 364, 369, 
 
 S79 
 V. Ermentrout 67, 67 G, 126 
 
 V. Wright 79, 423 
 
 Sun Ins. Co. v. Greenville B. & L. 
 
 Ass'n 287 B, 566 
 
 V. Jones 263 A, 479 
 
 V. Varble 364 
 
 Sun Ins. Office v. Merz 11, 117 
 
 Sun L. Ins. Co. v. Tavlor 478 
 
 Sun Mut. Ins. Co. v. Crist 66, 70 a, 465 
 V. Dudley 263 A, 469 
 
 u. Holland 31 A, 460 
 
 u. Miss. Valley Trans. Co. 457 A, 
 457 B 
 V. Ocean Ins. Co. 11 
 
 V. Saginaw 349 B 
 
 V. Texarkana Foundry & Ma- 
 chine Co. 230 
 V. Wright 48 F 
 Sunbury Fire Ins. Co. v. Humble 
 
 345 G 
 Sunderland Mar. Ins. Co. v. Kear- 
 ney 589 
 Suppiger V. Covenant Mut. Ben. 
 
 Ass. 307, 469 
 
 Supple V. Cann 136, 502 
 
 Supreme Assembly v. Campbell 379 
 Supreme Commandery, &.c. v. 
 
 Ainsworth 64 A, 307 
 
 Supreme Conclave Roy Adelphia 
 
 V. Capella 399 M, 399 
 
 Supreme Council v. Brashears 325 
 
 V. Garrlgues 514, 563 A 
 
 V. Tracy 399 
 
 Supreme Lodge v. Knight 552, 563 A 
 
 V. La Malta 325 
 
 V. Schmidt 399 L 
 
 Susquehanna Ins. Co. i^. Perrine 149, 
 
 258, 552 
 
 Susquehanna Mut. Fire Ins. Co. r. 
 
 Elkins 349 B 
 
 V. Gackenbach 557, 559 
 
 V. Staats 287, 373 A, 369 C 
 
 V. Stauffer 260 A 
 
 V. Swank 560 A 
 
 V. Tunkhannock Toy Co. 461 
 
 Sussex County Mut. Fire Ins. 
 
 Co. V. Woodruff 82, 285, 287, 424, 457, 
 
 565, 584, 591 
 
 Ixxxiv ■ 
 
 Section 
 Sutherland v. Old Dominion, &c. 
 
 Ins. Co. 365 
 
 V. Pratt 80, 33 A 
 
 V. Sun Fire Office 430 
 
 Suydam v. Columbus Ins. Co. 566 
 
 Swain v. Security Live-Stock Ins. 
 
 Co. 67 L, 547 
 
 Swampscot Machine Co. v. Par- 
 tridge 553, 596 
 Swan i: Liverpool, &c. Ins. Co. 465, 
 
 469 B 
 
 V. Snow 391 
 
 'v. Watertown Fire Ins. Co. 167, 
 
 577 
 Swarthout v. Chicago R. E. Co. 464 
 Swartz V. Ins. Co. 511 
 
 Sweat u. Piscataqua Mut. Ins. 
 
 Co. 292 B 
 
 Sweeney v. Franklin Ins. Co. 89 
 
 V. Met'n L. Ins. Co. 186 
 
 V. Promoter Life Ins. Co. 501 
 
 Sweeting i'. Mutual F. Ins Co. 365 
 
 Sweetser v. Odd Fellows' Mut. 
 
 Aid Ass. 361 
 
 Swenson v. Sun Fire Office 378 A 
 
 Swete p. Fairlie 123, 200, 213 
 
 Swett V. Citizens' Mut. Relief Soc. 
 
 136 A, 305 
 
 Swick V. Home Ins. Co. 110, 170, 187, 
 
 299, 300, 393 
 
 Swift V. Mass. Mut. Life Ins. Co. 187, 
 
 200, 207, 214 
 
 V. Railway, &c. Conductors' 
 
 Mut. Aid, &c. Ass. 550a 
 
 u. Railway, &c. Ins. Co. 395 
 
 u, Vermont Mut. Fire Ins. 
 
 Co. 289 
 
 Swords t'. Blake 595 
 
 Sykes v. Perry Co. Mut. Ins. Co. 152, 
 
 371 
 Symonds f. Northwestern, &c. 
 
 Ins. Co. 344 a 
 
 Syndicate Ins. Co. u. Bohn 287 D 
 
 1,-. Catchings 126, 469 D 
 
 T. 
 
 Tabor v. Michigan, &c. Ins. Co. 397, 
 
 569 
 Tait V. N. Y. Life Ins. Co. 350 a 
 
 Talamon v. Home Ins. Co. 404 
 
 Talbott u. Fidelity & Casualty 
 
 Co. 578 a 
 
 Talcott V. Field 459 E 
 
 Tallman v. Atlantic Fire & Mar. 
 
 Ins. Co. 100, 268, 270, 279 
 
 Tanneret v. Merch. Mut. Ins. Co. 415 
 Tarbell v, Vermont Mut. F. Ins. 
 
 Co. 269 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Tarleton v. Staniforth 357 
 
 Tasker v. Kenton 478 
 
 Tate V. Citizens' Mut. Ins. Co. 138, 15.3 
 (/. Commercial Building Ass'n 110 
 V. Hyslop 215 A 
 
 Taunton v. Royal Ins. Co. 417 
 
 Tayloe v. Merchants' Fire Ins. 
 
 Co. 47, 134, 345, 4B2, 468, 469 
 
 Taylor v. ^tna Ins. Co. 338, 465, 466, 
 
 474, 582 
 
 !). BuUen )66 
 
 V. Charter Oak, &c. Ins. Co. 352 A, 
 
 566, 577 
 
 u. Germania Ins. Co. 23, 849 
 
 V. Gilleau 459 F 
 
 v. Life Ass. of America 592, 594 a 
 
 V. Lowell 101 
 
 V. Merchants' Ins. Co. 270, 479 
 
 V. Mutual Reserve Fund L. 
 
 Ass'n 578 a 
 
 V. North Star Mut. Ins. Co. 594 
 „. Plioenix Ins. Co. 70 B 
 
 u. Roger Williams Ins. Co. 466 
 V. State Ins. Co. 3, 126, 364, 368 
 Tebbetts v. Hamilton Mut. Ins. 
 
 Co. 258, 570, 591 
 
 Teerpenning v. Corn Ex. Ins. Co. 423 B 
 Tefft V. Providence-Washington 
 
 Ins. Co. 291 A 
 
 Tennant v. Travellers' Ins. Co. 360 B, 
 
 517 A 
 Tenness v. N. W. Mut. Life Ins. 
 
 Co. 4.52 
 
 Tennessee v. Davis 578 
 
 Tepper v. Supreme Council 399 O 
 
 Terry v. Imperial Ins. Co. 578 
 
 V. Mut. Life Ins. Co. 69 a. 316, 
 319, 325, 566 
 Terwilliger v. Royal Arcanum 579 A 
 Tesson v. Atlantic Mut. Ins. Co. 184 
 Teutonia Ins. Co. v. Boylston Mut. 
 
 Ins. Co. 175 
 
 V. Ewing 125 
 
 u. Howell 30, 126, 189 
 
 V. Mueller 359 
 
 V. Mund 424 A 
 
 Teutonia Life Ins. Co. v. Agr. 
 
 Ins. Co. 249 J 
 
 V. Anderson 502 a 
 
 V. Beck 206 
 
 Texas Banking Co. v. Hutchins 508 
 
 Texas Banking & Ins. Co. ;;. 
 
 Cohen 279 
 
 Texas & Pac. R. Co. v. Love 457 B 
 Thatch V. Metropole Ins. Co. 447 A 
 Thayer v. Middlesex Mut. Fire 
 
 Ins. Co. 48, 49 
 
 The Frank G. Fowler 454 
 
 The Manistee 454 
 
 The Orient 165 A 
 
 Section 
 The Schooner Reeside 179 D 
 
 The Sidney 452 E, 467 A 
 
 The Titania 66 A, 411 A 
 
 Thelluson v. Fletcher 579 
 
 Theobald v. Railway Pass. Ass. 
 
 Co. 521, 524, 530, 535 
 
 Thierolf v. Universal Fire Ins. Co. 465, 
 
 469 B, 477 
 
 Thomas v. Achilles 560 
 
 I). Builders Ins. Co. 365 
 
 V. Cochran 399 U 
 
 V. Commercial Union Ass. 
 
 Co. 189, 247 
 
 V. Fame Ins. Co. 156 
 
 V. Hartford F. Ins. Co. 247 
 
 V. Montauk Fire Ins. Co. 457 C 
 V. Wliallon 557, 594 
 
 Thomas, Adm'rs, v. Vankopff's 
 
 Ex'rs 452 C 
 
 Thompson v. Adams 43 A 
 
 u. American, &c. Ins. Co. 345 a, 394 
 
 ... Charnock 492, 495 
 
 V. Citizens' Ins. Co. 422 B 
 
 V. Hopper 224 
 
 V. Ins. Co. 352 A, 356 A 
 
 V. Knickerbocker, &c. Ins. Co. 342, 
 
 356 
 
 V. Montreal Ins. Co. 404, 423 
 
 .;. Phrenix Ins. Co. 133, 175, 479, 
 
 566 
 
 !). St. Louis Ins. Co. 301,863, .370 
 
 Thomson u. Soutliern Mut. Ins. 
 
 Co. , 247 
 
 V. Weems 158 
 
 Thorne v. Travellers' Ins. Co. 577 
 
 Thornton v. Enterprise Ins. Co. 424 
 
 V. Knight 573 
 
 V. Western Reserve Farm 
 
 Ins. Co. 66 A 
 
 Throop V. N. A. Fire Ins. Co. 589 
 
 Thropp V. Ins. Co. 560 A 
 
 Thurston v. Burnett, &c. Ins. Co. 175 
 V, Citizens' Mut. Fire Ins. Co. 147 
 0. Koch 4.34 
 
 Thurtell w. Beaumont 583 
 
 Tliwing V. Great Western Inp. Co. 66 
 Ticktin v. Fidelity & Cas. Co. 327 
 
 Tidmarsh v, Washington, &c. Ins. 
 
 Co. 188 E 
 
 Tidswell v. Ankerstein 96 
 
 Tiefenthal v. Citizens' Mut. Fire 
 
 Ins. Co. 249,249 a 
 
 Tiernay v. Ethrington 174 
 
 Tierney v. Phenix Ins. Co. 276 
 
 Tilley v. Conn. F. Ins. Co. 83, 379 
 
 Tillou V. Kingston Mut. Fire Ins. 
 
 Co. 279, 379 
 
 Tilly V. Tilly 465 
 
 Tilton V. Hamilton Fire Ins. Co. 404 
 Times Fire Ins. Co. v. Hawke 433 
 
 Ixxxv 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Times Life Ass. & Guarantee Soc, 
 
 In re 597 
 
 Tinnesa v. Northwestern, &c. Ins. 
 
 Co. 390 
 
 Tischler v. Cal. Farmers' Mut. 
 
 Fire Ins. Co. 239 B 
 
 Tisdale v. Conn. Mut. Life Ins. Co. 465 
 V. Mut. Ben. Ins. Co. 468 
 
 Tisdell V. New Hampshire F. Ins. 
 
 Co. 67 
 
 Titsworth v. Titsworth 399 O 
 
 Tittemore v. Vermont Mut. Fire 
 
 Ins. Co. 272, 276 A 
 
 Titus V. Glens Falls Ins. Co. 294 b, 
 366, 466, 497, 504 A 
 Tobey v. Chipman 25 
 
 Tobin V. Harford 422 A 
 
 y. Westerh Mut. Aid Soc. 602 
 
 Todd V. Liverpool, &c. Ins. Co. 83 a, 
 
 192 
 V. Piedmont, &c. Life Ins. Co. 359 
 Toledo, Peoria, & Wabash R. R. 
 
 Co. V. Pindar 411 
 
 Tolford V. Church 560 A 
 
 Tolman v. Manuf. Ins. Co. 426, 430, 
 
 447 
 Tome V. Parkersburg Br. E. E. Co. 64 
 Tompkins v. Levy 459 B 
 
 Tongue v. Nutwell 81, 456 
 
 Tooley v. Hartford, &o. Ass. Co. 428, 
 476, 479, 525 
 Toppan V. Atkinson 420 B 
 
 Topping V. Bickford 383, 584 
 
 Tough V. Provincial Ins. Co. 67 
 
 Touteng !>. Hubbard 350 
 
 ' Towle V. Nat. Guardian Ins. Co. 97, 
 
 543, 544 
 Towne v. Fire Ass. of Phila. 401 B 
 0. Fitchburg Ins. Co. 164, 185, 290 
 I). Springfield Fire & Mar. 
 
 Ins. Co. 465 
 
 Townsend v. North Western Ins. 
 
 Co. 219 
 
 Trabandt v. Conn. Mut. Life Ins. 
 
 Co. 568 
 
 Trabue v. Dwelling-House Ins. Co. 279 
 
 Trade Ins. Co. v. Barracliff 81, 285, 
 
 345 E, 424 A 
 
 Traders' Ins. Co. u. Newman 81 
 
 o. Paoaud 287 B, 399 D, 434 
 
 V. Propellor Manistee 454 
 
 V. Race 248, 456 
 
 V. Robert 379 
 
 Traders' Mut. Fire Ins. Co. v. 
 
 Stone 552 
 
 Trager v. Louisiana Eq. Life Ins. 
 
 Co. 67, 359 
 
 Trail v. Baring 190, 197, 573 
 
 Train v. Holland 69 a 
 
 V. Holland, &o. Ins. Co. 345 a 
 
 Ixxxvi 
 
 Section 
 Trainor v. Phoenix F. Ass." 494 
 
 Transatlantic Fire Ins. Co. v. 
 
 Dorsey 402, 416 
 
 Trask v. State Fire & Mar. Ins. Co. 462 
 Travellers' Ins. Co. v. California 
 
 Ins. Co. 12 
 
 V. Dunlap 324 
 
 V. Edwards 464 
 
 V. Jones 531 A 
 
 V. Lampkin 287 B 
 
 V. McConkey 322 
 
 V. Melick 325 
 
 - V. Murray 298 
 
 V. Myers 462 
 
 V. Nitterhouse 325 
 
 V. Seaver 518, 530 
 
 «. Selden 515 a, 518 A 
 
 V. Sheppard 465 
 
 Travis v. Cont. Ins. Co. 87 A, 469 B 
 V. Peabody Ins. Co. 43 D, 263 A 
 Treadway v. Hamilton Mut. Ins. 
 
 Co. 287, 291, 552 
 
 Tredegar v. Windus 566 
 
 Tredwen v. Holman 493 
 
 Trefz V. Knickerbocker Life Ins. 
 
 Co. 185, 296, 575, 591 B 
 
 Trench v. Chenango Co. Mut. Ins. 
 
 Co. 160, 162, 228, 243, 258 
 
 Trenton Mut. Life & Fire Ins. 
 
 Co. V. Johnson 7, 75, 109, 117 
 
 Trenton Passenger Ey. Co. v. 
 Guarantors' Liability Indem- 
 nity Co. 2 
 Trew V. Railway Pass. Ass. Co. 516, 
 
 530 
 Trinity College v. Travelers' Ins. 
 
 Co. 112 
 
 Triple Link Mut. Ind. Ass'n ti. 
 
 Williams 55 A, .306, 340 
 
 Tripp & Bailey v. Ins. Co. 361, 445, 589 
 V. Northwestern Live-Stock 
 
 Ins. Co. 547 
 
 Trippe v. Provident Fund Soci- 
 ety 465, 479 
 Tritschler v. Keystone Mut. Ben. 
 
 Ass'n 322 
 
 Troager v. La., &e. Ins. Co. 391 
 
 Troop ?;. Anchor Mar. Ins. Co. 379 
 
 V. .Tones 421 a 
 
 V. Mosier 452 B 
 
 Trott V. City Ins. Co. 493, 495 
 
 v. Woolwich M. F. Ins. Co. 81, 
 
 247, 287 B 
 
 Troy Fire Ins. Co. o. Carpenter 126, 
 
 241, 584, 590 
 
 Trudden v. Met'n L. Ins. Co. 465 
 
 True w. Manhattan Fire Ins. Co. 379 
 
 Trull V. Roxbury Mut. Ins. Co. 426 
 
 Trumbull v. Portage Mut. Fire 
 
 Ins. Co 267 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 
 Trustees of First Baptist Churcli 
 
 in Brooklyn v. Brooklyn Fire 
 
 Ins. Co. 15, 18, 21, 23 A 
 
 Tubb V. Liverpool, &o. Ins. Co. 2.39 
 
 Tuck V. Hartford Fire Ins. Co. 4;-)4, 
 
 435, 439 
 
 Tucker V. Mut. Ben. Life Co. 112, 
 
 409 A, 517 A 
 
 Tuckerman v. Bigler 558, 654 
 
 V. Home Ins. Co. 87 A 
 
 Turley v. N. A. Fire Ins. Co. 172, 466, 
 
 470, 504 
 
 Turner v. Burrows 27, 285, 447 B 
 
 V. Fidelity & Cas. Co. 469 C, 479 
 
 V. Meriden Ins. Co. 216, 365 C 
 
 V. Stetts 424, 456 
 
 Tuskar, The 584 
 
 Tusson V. Atlantic Mut. Ins. Co. 566 
 
 Tutt V. Covenant Mut. Life Ins. 
 
 Co. 344 E 
 
 Tuttle V. Robinson 291, 501, 553 
 
 V. Travellers' Ins. Co. 409 A 
 
 Twiss V. Guaranty Life Ass'n 11, 591 A 
 Twitcliell V. Commonwealth 25 
 
 Tyler u. ^tna Fire Ins. Co. 87, 184, 285 
 V, N. Amsterdam Fire Ins. Co. 27 
 Tyrie v. Fletcher 4, 567 
 
 u. 
 
 tr. B. Mut. Aid Soc. v. Miller 399 N 
 Uhlman v. N. Y. Life Ins. Co. 344 D 
 Uhrig V. Williamsburg City Fire 
 
 Ins. Co. 496 B 
 
 Uirich V. Reinoehl 83, 459 E 
 
 Underbill v. Agawam Mut. Ins. 
 
 Co. 198, 255, 423, 504 
 
 Underwood v. Greenwich Ins. Co. 44 
 V. la. Legion of Honor 560 B 
 
 Unger v. People's Fire Ins. Co. 591 
 Union Bank v. Gray 452 F 
 
 Union Building Ass'n v. Rockford 
 
 Ins. Co, 840 
 
 Union Casualty Co. v. Harroll 531 A 
 
 Union Central L. Ins. Co. v. Berlin 189 
 
 V. Buxer 345 E 
 
 V. Cheever 214, 579 A 
 
 V. Hook 144 D 
 
 V. Lee 299 
 
 V. Moreland 345 E 
 
 V. Wilkes 845 E 
 
 V. Woods 66, 379 
 
 Union Ins. Co. v. American F. 
 
 Ins. Co. 12 D 
 
 V. Chipp 123, 140, 294 6 
 
 V. Grant 345 a, 584 
 
 K.Hoge 548 
 
 V. McGookey 690 
 
 V. Beif 290 
 
 Section 
 
 Union L. Ins. Co. v. Haman 360 
 
 Union Mut. Ace. Ass'n v. Frohard 306 
 
 V. Miller 562 
 
 Union Mut. Fire Ins. Co. v. 
 
 Keyser 691 A 
 
 V. Spaulding 560 A 
 
 Union Mut. Ins. Co. u. Commer- 
 cial Mut. Ins. Co. 565 
 V. Wilkinson 126, 144, 144 G, 152, 
 175, 180 a, 499, 500 
 Union Mut. Life Ins. Co. v. Gil- 
 bert 566 C 
 V. McMillen 677 
 V. Mowrey 358, 511 
 o. Beif 299 
 V. Stevens 399 M 
 Union Nat. Bank v. German Ins. 
 
 Co. 369 
 
 V. Matthews 23 D 
 
 V. Sixth Nat. Bank 575 
 
 Union, &c. Ins. Co. v. Keyser 560 
 
 V. Pottker 356, 361, 429, 568 
 
 V. Thomas 577 
 
 United Brethren Mut. Aid Soc. 
 
 V. McDonald 102 A 
 
 V. O'Hara 419 A 
 
 V. White 188 A 
 
 United Firemen's Ins. Co. v. 
 
 Thomas 1.37 A, 364, 308, 369 
 
 United Kingdom Ins. Co. v. Dixon 395 
 United Life, Fire, & Mar. Ins. Co. 
 
 V. Foote 415, 416 
 
 V. Insurance Co. of North 
 
 America 65 
 
 United Security, &c. Co. v. Ritchey 70 C 
 
 United States v. Grossmayer 40 
 
 V. Wiley 39, 39 A 
 
 United States Express Co. v. 
 
 Haines 25 
 
 United States Fire & Mar. Ins. 
 
 Co. V. Kiuiberly 247 
 
 V. Tardy 358, 594 a 
 
 United States Life Ins. Co. v. Ad- 
 vance Co. 126 
 V. Hessberg 577 
 V. Kielgart 325 
 V. Smith 4, 125, 567 
 V. Wright 567 
 United States Mut. Ace. Ass. v. 
 
 Barry 515, 517 A 
 
 United States Trust Co. u. Mut. 
 
 Ben. Life Ins. Co. 399 N 
 
 Universal Fire Ins. Co. v. Block 360 A, 
 466, 469 B 
 V. Stewart 488 
 
 Universal Life Ins. Co. v. White- 
 head 353 
 Universal Ins. Co. i/. Weiss 30, 465, 
 478, 511 
 Universal Non-Tariff Fire Ins. Co. 143 
 
 Ixxxvii ' 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 
 Universal, &c. Ins. Co. v. Forbes 256 
 
 Untersinger v. Niagara Ins. Co. 442 
 
 Unthank v. Travellers' Ins. Co. 470 
 
 Upton V. Englehardt 594 
 
 V. Hansbrough 593 
 
 V. Jackson 594 
 
 V. Tribilcock 594 
 
 Utica Ins. Co. v. Am. Mut. Ins. Co. 479 
 
 V. Toledo Ins. Co. 125 
 
 Utter V. Insurance Co. 517 A 
 
 Uzielli V. Boston M. Ins. Co. 11 
 
 I/. Commercial, &o. Ins. Co. 208 
 
 Vale V. Plioenix Ins. Co. 215 A 
 
 Valton V. Nat. Fund Ins. Co. 109, 110, 
 
 112, 117, 196, 203, 215, 
 
 303, 398 
 
 Van Allen v. Farmers', &c. Ins. 
 
 Co. 137 A, 138 
 
 Van Alstyne v. Mtna. Ins. Co. 365 
 
 Van Bibber's Adm. n. Van Bibber 
 
 399 N 
 Van Bories v. United Life, Fire, & 
 
 Mar. Ins. Co. 370, 372 
 
 Van Buren v. St. Joseph Co. Vil- 
 lage Fire Ins. Co. 552 
 Vanderhoff «. Agricultural Ins. 
 
 Co. 249 H, 249 I 
 
 Vandervolgen v. Manchester F. 
 
 Ass. Co. 177 
 
 Van Deuzen v. Charter Oak Ins. 
 
 Co. 270, 381 
 
 Van Houten v. Pine 447 B, 560 B 
 
 Vankirk v. Citizens' Ins. Co. 269 
 
 Van Loan v. Farmers' Mut. Fire 
 
 Ins. Ass'n 23 A, 23 C, 43 C 
 
 Vanormer v. Hornberger 112, 398 
 
 Van Schoick v. Niagara Ins. Co, 238, 
 294 6,497 
 Van Sickle v. Keith 126 
 
 Van Slyke v. Trempealeau County, 
 
 &c. Ins. Co. 44, 552 
 
 Van Twyl v. West Chester Fire 
 
 Ins. Co. 566 
 
 Van Valkenburgh v. American 
 
 Pop. Life Ins. Co. 188 
 
 V. Lenox Ins. Co. 65 
 
 V. Lexington Ins. Co. 70 
 
 Van Zandt v. Mutual Ben. Life 
 
 Ins. Co. 316 
 
 Vanattav. N. J. Mut, Life Ins. Co. 594 a 
 Vance v. Foster 431 
 
 Varina v. N. Y. Life Ins. Co. 398 
 
 Vassar v. Camp 48 
 
 Veginan v. Morse 478 
 
 Velte V. Clinton Fire Ins. Co. 479 
 
 Vergeront v. German Ins. Co. 469 C 
 
 Ixxxviii 
 
 Section 
 Vezina v. N. Y. Life Ins, Co. 110 
 
 Viale V. Genesee Mut. Fire Ins. 
 
 Co. 379, 553 
 
 Viele V. Germania Ins. Co. 143, 370, 
 
 505, 507 
 
 Vilas V. N. Y. Central Ins. Co. 29 A, 
 
 159 
 
 Viney v. Bignold 494 
 
 Virginia, &c. Ins. Co. v. Feagin 269 
 
 V. Kloeber 164, 292 
 
 V. Morgan 158 
 
 V. Saunders 30 
 
 V. Thomas 230, 267 
 
 V. Vauglian 279 
 
 Vivar v. Knights of Pythias 305 
 
 Vogel V. People's Mut, Fire Ins. 
 
 Co. 242, 285 
 
 Von Genechtin v. Citizens' Ins. 
 
 Co. 589 
 
 Von Lindenau v. Desborough 200 
 
 Von Wein v. Scottish, &c. Ins. 
 
 Co. 67, 67F, 6,7 H, 67 K 
 
 Voorheis v. People's Mut. Ben. 
 
 Society 66 
 
 Vos V. Eobinson 469, 473 
 
 Vose V. Eagle Life & Health Ins. 
 
 Co. 201, 203, 204, 205, 298 
 
 V. Hamilton Mut. Ins. Co. 365 a, 
 
 366 
 
 V. Hawkeye Ins, Co. 479 
 
 Voss V. Conn. Mut, L. Ins. Co. 399 D 
 
 Vyse V. Wakefield 202 
 
 w. 
 
 Waddington v. Insurance Co. 567 
 
 Wadhanis v. Western Ass. Co. 126, 
 
 469 1) 
 Wadsworth v. Davis 555 
 
 Wager v. Providence Ins. Co. 453, 
 
 457 B 
 Wainer v. Milford Ins. Co. 96, 247 
 
 Wainewright v. Bland 109, 112, 181, 
 
 188 A 
 Wakefield v. Martin 459 F 
 
 V. Orient Ins. Co. 221, 369, 387, 
 502 a 
 Wakeman v. Met'n L. Ins, Co. 103 A 
 Walcott V. Met'n Ins. Co, 325 
 
 Waldeck v. Springfield Fire & 
 
 Mar. Ins. Co. 415, 587 A 
 
 Walden v. La, Ins. Co. 208 
 
 Waldman v. Nortli British & M. 
 
 Ins. Co. 369 
 
 Waldrom v. Waldrom 399 L 
 
 Wales V. N. Y. Bowery Fire Ins. 
 
 Co. 43 G 
 
 Walker v. American Central Ins. 
 
 Co. 70 a 
 
TABLE OF OASES. 
 
 [The references are to the sections.] 
 
 Section 
 
 Walker v. Farmers' Ins. Co. 58, 64 
 
 ^. Larkin 379 
 
 u. Lond. & Prov. Ins. Co. 407 A 
 
 V. Met. Ins. Co. 18, 23, 65 
 
 V. Northern Ass. Co. 294 G, 
 
 478, 567 
 
 V. Queen Ins. Co. 421 a 
 
 Wall V. East Kiver Mut. Ins. Co. 239, 
 
 247 
 V. Equitable Life Ass. Co. 66 A, 
 360 G 
 V. Home Ins. Co. 134, 340 
 
 I}. Howard Ins. Co. 159, 179, 239 
 V. Roberts 66 A 
 
 Wallace v. German-American Ins. 
 
 Co. 493 A, 495 
 
 V. Ins. Co. 31, 430, 5-52 
 
 V. Tellfair 124 
 
 Wallingford o. Home Mut. Eire 
 
 & Mar. Ins. Co. 51, 54 
 
 Walls V. Bailey 179 E 
 
 Walradt v. Phoenix Ins. Co. 274, 
 
 291 A 
 Walroth v. St. Lawrence Co. Mut. 
 
 Ins. Co. 287 
 
 Walsh V. iEtna Life Ins. Co. 136, 356, 
 370, 552 
 V. Eire Association 82 
 
 V. Hartford Eire Ins. Co. 249 H 
 V. Phila. Eire Ass. 285 
 
 V. Wash. Mar. & Fire Ins. 
 
 Co. 465 
 
 Walsh's Admr. u. Vt. Mut. Eire 
 
 Ins. Co. 373 B, 465, 469 
 
 Walter v. Northern Ass. Co. 287 A 
 
 Walther v. Mut. Life Ins. Co. 325 
 
 Walton V. Agr. Ins. Co. 282 B 
 
 V. La. St. Mar. & Fire Ins. 
 
 Co. 365 a, 366 
 
 Walworth v. Tubb 308 
 
 Want V. Blunt 353, 357 
 
 Warbasse v. Sussex County M. 
 
 Ins. Co. 449 
 
 Ward V. Met'n L. Ins. Co. 126, 156 
 «. National F. Ins. Co. 465 
 
 V. Smith 40 
 
 Warder v. Baker 459 F 
 
 Wardle v. Townsend 559 
 
 Ware v. Millville Fire Ins. Co. 362 
 Waring u. Indemnity Fire Ins. 
 
 Co. 6, 424, 445, 448 
 
 V. Loder 82, 449 
 
 Warner v. Middlesex Mut. Ass. 
 
 Co. 289, 292 
 
 u. National L. Ins. Co. 345 E 
 
 u. Peoria Mar. & Eire Ins. 
 
 Co. 129, 151, 370, 471, 472 
 
 V. U. S. Mut. Ace. Ass'n 325 
 
 Warnock v. Davis 83, 102 A, 110, 
 
 Section 
 Warren v. Davenport Fire Ins. 
 
 Co. 76, 90 
 
 V. Ocean Ins. Co. 179 A 
 
 Warwick v. Monmouth 368 
 
 Washburn v. Artisans' Ins. Co. 416 a 
 V. Great Western Ins. Co. 566 
 
 V. Ins. Cos. 416 a 
 
 u. Miami, &c. Ins. Co. 238, 415 
 V. Pa. Ins. Co. 416 a 
 
 Washburn-Halligan Coffee Co. v. 
 Merchants' Brick Mut. E. Ins. 
 Co. 364, 469 C 
 
 Washburn Mill Co. v. Phila. Eire 
 
 Ass'n 276 C 
 
 Washington County Mut. Ins. Co. 
 
 V. Dawes 577 
 
 V. Hastings 577 
 
 Washington Ins. Co. v. Davison 224, 
 365 a, 372, 420 
 V. Hayes 366 
 
 t). Kelly 116,267,285,287 
 
 V. Merchants' & Manuf. Mut. 
 
 Ins. Co. 237, 2.39 
 
 V. Wilson 323, 583 
 
 Washington Life Ins. Co. v. 
 
 Haney 169, 195, 214 
 
 V. Menefee 151, 360 
 
 V. Schaible 175 
 
 Washington Mills Emery Manuf. 
 Co. V. Comm. Eire Ins. 
 Co. 276 B, 423 A 
 
 V. Weymouth Ins. Co. 285 
 
 Washington Mut. Fire Ins. Co, u. 
 
 St. Mary's Seminary 445 
 
 Washington Mutual Ins. Co. v. 
 Merch. & Manuf. Mut. Ins. Co. 237, 
 
 239 
 Washoe Tool Manuf. Co. o. Hi- 
 
 bernia Eire Ins. Co. 360 A, 501 
 
 Wason V. Colburn 390, 445 
 
 Wass V. Maine Mut. Mar. Ins. Co. 126, 
 
 174 
 Watchorn v. Langford 420 
 
 Waterbury v. Dakota F. & M. Ins. 
 
 Co. 402 
 
 Waters v. Allen 567 
 
 V. Assurance Co. 95 A 
 
 c;. Conn. Mut. Life Ins. Co. 307 
 
 V. Merchants' Louisville Ins. 
 
 Co. 408, 41-3, 416 
 
 V. Monarch Fire & Life Ins. 
 
 Co. 80, 424 
 
 V. Supreme Conclave Knights 
 
 of Damon 299 
 
 Watertown Eire Ins. Co. v. Grover 292, 
 
 463 
 
 V. Grehan 429 
 
 V. Rust 67 L 
 
 V. Simons 161, 164, 287C, 577 
 
 Watkina v. Durand 122 A 
 
 Ixxxix 
 
TABLE OF CASES. 
 
 [Tlie references are to the sections.] 
 
 Section 
 
 Watson V. Bratton 6 
 
 V. Mainwaring 295, 296, 301 
 
 Watts V. Atlantic, &o. Ins. Co. 344 a 
 
 Way V. Abington Mut. F. Ins. 
 
 Co. 402 
 
 Wayman v. Torreyson 25 
 
 Waynesboro' Fire Ins. Co. i^. 
 
 Conover 488 
 
 V. Creaton 423 A 
 
 Weakley v. Northwestern Ben. & 
 
 Mut. Aid Ass. 562 
 
 Weaver v. Ward 309, 310 
 
 Webb V. Mut. Fire Ins. Co. 356 A, 
 
 660 A 
 
 V. Nat. Fire Ins. Co. 420 
 
 u. Prot. Ins. Co. 404 
 
 V. R. W. & 0. R. R. Co. 408, 454, 
 
 459 
 
 Webber v. E. R. R. Co. 580 
 
 Weber v. Morris & Essex R. R. 455, 
 
 457 
 
 Webster v. British, &c. Ins. Co. 428 
 
 V. Buffalo Ins. Co. 591 A 
 
 u. Dwelling-House lus. Co. 81, 
 
 287 B 
 
 V. Mut. Rel. Soc. 298 
 
 V. Phcenix Ins. Co. 372 
 
 Weed V. Hamburg-Bremen F. Ins. 
 
 Co. 43 D, 111 
 
 V. L. & L. Fire Ins. Co. 126, 133 E, 
 
 506 
 
 V. Mut. Ben. Life Ins. Co. 325 
 
 Weeks v. Hall 400 
 
 Weems v. Standard Life Ass. 
 
 Co. 145 A 
 
 Wehle V. U. S. Mut. Ace. Ass'n 517 A 
 Wehrlin v. Phenix Ins. Co. 356 
 
 Weil V. New York L. Ins. Co. 181 
 
 Weimer v. Economic L. Ass'n 187, 
 
 298 
 Weinaugh v. Provincial Ins. Co. 368 
 Weinfeld v. Mutual Reserve L. 
 
 Ass'n 55 A 
 
 Weingartner v. Charter Oak Life 
 
 Ins. Co. 63 
 
 Weir !!. Northern Counties, &c. 
 
 Ins. Co. 475 
 
 Weisenberger v. Harmony Ins. 
 
 Co. 420 
 
 Weisert v. Muehl 399 L 
 
 Welland Canal v. Hathaway 502 
 
 Welloome v. People's Eq. Mut. 
 
 Fire Ins. Co. 465 
 
 Welles V. Boston Ins. Co. 427 
 
 V. Yates 566 
 
 Wellington Mut. Ins. Co. v. Frey 180 a 
 
 Wells V. Archer 291 
 
 V. New England Mut. L. Ins. 
 
 Co. 430 
 
 V. Phila. Ins. Co. 13, 93 A 
 
 xc 
 
 Section 
 
 Welsh V. Continental Ins. Co. 54 C 
 
 V. ])es Moines Ins. Co. 467 
 
 V. London Ass. Corp. 448 
 
 Welts V. Conn. Mut. Lite Ins. Co. 332 
 
 Wemyss v. Med. Invalid & Gen. 
 
 Life Ins. Soc. 51, 190 
 
 Wendt V. la. Legion of Honor 399 O 
 Wentworth v. Tubb 308 
 
 Wenzel v. Com. Ins. Co. 252 
 
 West V. British America Ass. 
 
 Co. 477 
 
 V. Citizens' Ins. Co. 279 
 
 V. Norwich Union F. Ins. Co. 3C9 
 .;. Old Colony Ins. Co. 401 a 
 
 V. Reid 395 
 
 West Branch Ins. Co. v. Helfen- 
 
 stein 265, 272, 386, 462, 468 
 V. Smith 559 
 
 West Branch Lumberman's Ex- 
 change V. American Central 
 Ins. Co. 177, 364 
 
 Westchester F. Ins. Co. v. Cover- 
 dale 469 C, 577 
 V. Dodge 449, 478, 488 
 V. Earle 23, 24, 65, 502, 508 
 V. Foster 239, 4'46 
 V. McAdoo 401 a 
 V. Wagner 287 B, 294 E 
 f. Weaver 285, 287 
 West Coast Lumber Co. v. State 
 
 Inv. & Ins. Co. 273 A 
 
 West End Hotel & Land Co. v. 
 
 American F. Ins. Co. 67, 239 
 
 Western v. Genesee Mut. Ins. Co. 49, 
 
 66, 400, 420 B, 563 
 
 Western Ass. Co. v. Atwell 368 
 
 V. Eecker 494 
 
 V. DouU 369 
 
 V. Hall 492 
 
 V. McAlpin 21 
 
 V. McCarty 294 E, 379, 469 D 
 
 V. McGlathery 263 A 
 
 u. McPike 249 B 
 
 V. Mohlman Co. 412, 420 
 
 V. Phelps 308 
 
 V. Ray 30, 294 E, 589 
 
 V. Rector 144 A, 239 
 
 V. Williams 401 a 
 
 Western & Atlantic Pipe Lines 
 
 V. Home Ins. Co. 72, 287 B, 404 
 
 Western Commercial Travelers' 
 
 Ass'n V. Smith 617 A 
 
 Western Farmers' Mut. Ins. Co! 
 
 V. Miller 225, 244, 410 
 
 Western Home Ins. Co. v. Rich- 
 ardson 340, 430, 469 C 
 Western Ins. Co. v. Cropper 175 
 V. O'Neill 407 
 a. Putnam 496 B 
 V. Scheidle 602 
 
TABLE OF CASES. 
 
 [The references are to the sections.] 
 
 Section 
 Western Mass. Ins. Co. v. Duffey 23, 25 
 V. Riker 269 
 
 Westfall (/. Hudson River Fire 
 
 Ins. Co. 156, 162, 175, 234 
 
 Westfleld Cigar Co. v. Ins. Co. of 
 
 North America 125, 257, 261 
 
 West Jersey Title & G. Co. v. 
 
 Barber 456 
 
 West of England F. Ins. Co. j. 
 
 Isaacs 453 
 
 Westlalce u. St. Lawrence, &c. 
 
 Ins. Co. 309, 387, 464, 468, 505 
 
 Weston V. "Ernes 579 B 
 
 Westover v. jEtna Life Ins. Co. 296 
 West Rocltinghara, &c. Ins. Co. v. 
 
 Sheets 290, 469 
 
 Westropp V. Bruce 214, 305 
 
 Wetlierell v. City Fire Ins. Co. 233 
 V. Maine Ins. Co. 183 A, 502 
 
 Wetraore v. Mut., &c. Ins. Ass. 349 
 Wlieaton v. Nortli British & Mer. 
 
 Ins. Co. 144 A, 373 A, 373 B, 478 A 
 Wlieeler v. American, &o. Ins. 
 
 Co. 239 
 
 V. Conn. Life Ins. Co. 335, 345 a, 
 
 352, 465 
 
 V. Factory Ins. Co. 449 
 
 V. Ins. Co. 241, 452 C 
 
 V. Real Estate Title Ins. Co. 291 A 
 
 a. Traders' Ins. Co. 239 A 
 
 V. Watertown Fire Ins. Co. 126, 
 
 348, 368 
 
 Wheeling Ins. Co. v. Morrison 379 
 
 Wheelton v. Hardisty 123, 156, 159, 
 
 161, 213, 358 
 
 Whipple V. North Brit., &c. Ins. 
 
 Co. 440 
 
 Whitaker v. Farmers' Union Ins. 
 
 Co. 62, 400 
 
 Whitbread, Ex parte 291 
 
 Whitcomb v. Phcenix Ins. Co. 66, 126 
 
 White V. Agr. Mut. Ins. Co. 289 
 
 V. British Empire Mut. Life 
 
 Ass. Co. 312, 324 
 
 V. Brown 6, 456 
 
 V. Cora. Mut. Life Ins. Co. 180 a 
 V, Equitable Nuptial Benefit 
 
 Union 75 B, 547 B 
 
 V. Germania Fire Ins. Co. 511 
 
 V. Havens 548 
 
 V. Hudson Riv. Ins. Co. 83, 285, 
 424 
 V. Ins. Co. of New York 67 G, 67 H 
 ./. Madison 80, 124 
 
 V. Mann 465 
 
 V. Mut. Fire Ins Co. 241, 258, 
 420 
 V. Phoenix Ins. Co. 247 
 
 V. Provident S. L. Ass. Soci- 
 ety 156, 298, 303 
 
 Section 
 White V. Republic Fire Ins. Co. 404 
 u. Ross 560 
 
 u. Royal Ins. Co. 239 A 
 
 V. Smith 459 D 
 
 V. Walters 172 A 
 
 V. Weston Ass. Co. 245 
 
 Whitehead v. N. Y. Life Ins. Co. 
 
 399 P, 399 Q 
 
 V. Price 253 
 
 Whitehill V. Shickle 25 
 
 Whitehouse v. Travelers' Ins. Co. 516 
 
 Whitehurst v. Fayetteville Mut. 
 
 Ins. Co. 404 
 
 ly. North Carolina Mut. Ins. 
 
 Co. 462 
 
 Whiteman Bros. v. Amer. Cent. 
 
 Ins. Co. 69 B 
 
 Whiting V. Mass. Mut. Life Ins. 
 
 Co. 55, 340, 359 
 
 V. Miss. Valley Mut. Ins. Co. 359 
 
 V. Sun Mut. Ins. Co. 115 
 
 Whitlaw u. Phoenix Ins. Co. 250 
 
 Whitley i'. Piedmont, &c. Ins. Co. 190, 
 
 340 
 Whitmarsh o. Charter Oak Fire 
 
 Ins. Co. 238, 242 
 
 u. Conway Fire Ins. Co. 179, 2.S3, 
 
 288, 239, 420 
 
 Whitmore v. Supreme Lodge 75 B 
 
 Whitney v. Am. Ins. Co. 12, 294 E, 
 
 422 A 
 
 u. Black River Ins. Co. 248, 
 
 249 A 
 
 V. Haven 400 
 
 V. Ind. Mut. Ins. Co. 7 
 
 Whiton V. Albany, &c. Ins. Co. 156 
 
 V. Old Colony Ins. Co. 420 A 
 
 Whitridge v. Barry 391 
 
 Whittaker v. Farmers' Union Fire 
 
 Ins. Co. 135, 565 
 
 Whitten v. New England Live- 
 stock Ins. Co. 465 
 Whittle V. Farmville Ins., &c. 
 
 Co. 469 
 
 Whitwell V. Putnam Fire Ins. Co. 101, 
 277, 366 
 WhoUey v. Western Ass. Co. 138 
 
 Wiberg v. Minnesota S. R. Ass'n 305 
 Wicking v. Citizens' Mut. Fire Ins. 
 
 Co. 492 
 
 Wicksteed v. Munro 899 N 
 
 Wiestling v. Warthin 66 A 
 
 Wiggin !>. Mercantile Ins. Co. 420 A 
 V. Suffolk Ins. Co. 13, 434 
 
 Wightman v. West. Mut. & Fire 
 
 Ins. Co. 465, 583 
 
 Wilber v. Torgerson 594 a 
 
 Wilbur V. Bowditch Mut. Fire 
 
 Ins. Co. 287, 291, 873 
 
 V. N. E. Mut. Fire Ins. Co. 376 
 
 xci 
 
TABLE OF OASES. 
 
 The references are to the sections.] 
 
 Section 
 Wilburn v. Wilburn 399 D, 399 L 
 
 Wilcox V. Continental Ins. Co. 270 
 Wildey Casualty Co. v. Sheppard 465 
 V. Farm. Mut. Fire Ins. Co. 401 B 
 Wilkins v. Germania Fire Ins. 
 
 Co. 156 
 
 V. Mut. Reserve Fire Life Ass. 
 
 144 F 
 V. State Ins. Co. 126 
 
 V. Tobacco Ins. Co. 67, 101, 176 
 Wilkinson v. Connecticut Mut. 
 
 Life Ins. Co. 187 
 
 V. Coverdale 124 
 
 I'. Un. Mut. Ins. Co. 300 
 
 Willcuts 1^. N. W. Mut. Life Ins. 
 
 Co. 24 A, 345 C, 360 D 
 
 Willetts V. Sun Mut. Co. 452 F 
 
 Willey V. Robinson 25 
 
 Williams v. Albany City Ins. Co. 341 A 
 
 i;. Babcock 562 
 
 u. Buifalo German Ins. Co. 284 
 
 V. Canada Farmer's Mut. Ins. 
 
 Co. 64 
 
 V. Canada Fire Mut. Ins. Co. 143, 
 502 
 V. Cheney 577, 584, 590 
 
 V. Columbian Mut. Ins. Co. 491 
 V. Corson 391 
 
 V. Crescent Ins. Co. 365 
 
 V, Fireman's Fund Ins. Co. 242 
 V. German, &c. Ins. Co. 562 
 
 V. Hartford Fire Ins. Co. 421 a 
 V. Mechanics', &c. Ins. Co. 242 
 V. New Eng. Mut. Fire Ins. 
 
 Co. 241, 408, 425 
 
 V. New Orleans Ins. Ass. 144 A 
 u. Niagara Ins. Co. 143, 466 
 
 V. North German Ins. Co. 249 D, 
 566 A 
 V. Ocean Ins. Co 595 
 
 V. People's Ins. Co. 218, 221, 2-30, 
 242 
 V. Pew 133 
 
 v. Phoenix Ins. Co. 373, 443 
 
 u. Queen's Ins. Co. 466 
 
 V. Roger Williams Ins. Co. 83, 237 
 V. Smith 23 
 
 V. United Reserve Fund As- 
 sociates 594 
 V. V. S. Mut. Aco. Ass'n 325 
 c,'. Vermont Mut. Ins. Co. 478, 
 483 
 V. Warbasse 365 
 V. Washington Life Ins. Co. 106, 
 341 
 Williams' Appeal 391 A 
 Williamsburg City Fire Ins. Co. 
 
 V. Gary 401 a, 469, 488, 508 
 
 Williamson v. Hand-in-Hand iVIut. 
 Fire Ins. Co. 423 
 
 xcii 
 
 Section 
 Williamson v. Michigan F. & M. 
 
 Ins. Co. 379, 449 
 
 V. Orient Ins. Co. 269, 287 B 
 
 Willis V. Germania, &c. Ins. Co. 239 
 
 c. People 320 
 
 V. Poole 295 
 
 Willoughby v. St. Paul German 
 
 Ins. Co. 452 F 
 
 Willow Grove Creamery Co. v. 
 
 Planters' Mut. Ins. Co. 402 
 
 Wills V. Wells 399 B 
 
 Willyams v. Scottish Widows' 
 
 Fund L. A. Society 465 
 
 Wilmaser v. Cont. Life Ins. 
 
 Co. 399 L 
 
 Wilmot V. Charter Oak Ins. Co. 344 a 
 
 Wilson V. iEtna Ins. Co. 478, 483 
 
 V, Citizens' Ins. Co. 83 a 
 
 V. Conway Mut. Fire Ins. Co. 141, 
 
 145, 162,164,175, 185,566 
 
 u. Genesee Mut. Ins. Co. 129, 279, 
 
 384 
 
 u. Hampden Fire Ins. Co. 166, 
 
 175, 187 
 
 V. Herkimer Co. Mut. Ins. 
 
 Co. 228, 243, 258, 360 B 
 
 u. Hill 2, 6, 72, 264, 865, 378, 
 
 386, 391 
 V. Janes 90 
 
 V. Lawrence 399 Q 
 
 V. Life Association 214 
 
 V. Minn. Farmers' Mut. Ins. 
 
 Ass. 133 A 
 
 V. Montgomery County M. 
 
 F. Ins. Co. 368 
 
 V. National L. Ins. Co. 144 D, 
 566 
 V. Queen Ins. Co. 365 
 
 V. Standard Ins. Co. 160 
 
 V. State Fire Ins. Co. 478 
 
 V. Trumbull Co. Mut. Ins. 
 
 Co. 563, 555 
 
 Winans v. AUemaine Fire Ins. 
 
 Co. 143 
 
 Winchell v. John Hancock Life 
 
 Ins. Co. 344 o, 566 C 
 
 Winchester v. Stehbins 391 
 
 Windus V. Lord Tredegar 341 
 
 Wineland v. Security Ins. Co. 289 
 
 Wing V. Harvey 136, 339, 862, 502 
 
 Winne v. Niagara Fire Ins. Co. 43 B, 
 
 138 B 
 Winnesheik I!. Holzgrafe 43F, 54A 
 Winnesheik Ins. Co. v. Schueller 468, 
 
 476 
 Winsor v. Odd Fellows' Ass. 451 
 
 Winspear v. Accident Ins. Co. 516, 
 
 518 A 
 Winterhalteru. Workmen's Guar- 
 antee Fund Ass. 899 J 
 
TABLE OF CASES. 
 
 [The references are to tlie sections.] 
 
 Section 
 Witherell v. Maine Ins. Co. 70 a, 156, 
 404, 501 
 Witt V. Amis 395 
 
 Wittinghain w. Thornborough 691 
 
 Wolcott V. Eagle Ins. Co. 422 A 
 
 Wolf u. District Grand Lodge 305, 
 
 479 
 
 V. Dwelling-House Ins. Co. 137 
 
 Wolfe V. Homer 350 
 
 V. Howard Ins. Co. 424 
 
 V. Security Fire Ins. Co. 278, 381 
 
 Wolff V. Conn., &c. Ins. Co. 325 
 
 V. Horneastle 23 D 
 
 Wood V. American Pire Ins. Co. 
 
 137 A, 151, 274, 497 
 V. Dwarris 356 
 
 V. Firemen's Fire Ins. Co. 373 
 
 V. Hartford Fire Ins. Co. 281, 257 
 V. Ins. Co. 493 
 
 V. Mass. Mut. Ace. Ass'n 515 a 
 V. Nortli Western Ins. Co. 239, 
 456 
 V. Phoenix Mut. Life Ins. Co. 
 
 of Hartford 395 
 
 u. Pouglikeepsie Ins. Co. 360 
 
 V. Rutland & Addison Mut. 
 
 Fire Ins. Co. 24, 101, 281, 
 424, 448 
 V. Standard Mut. Live-Stoclc 
 
 Ins. Co. 594 
 
 Woodbury Savings Bank v. Char- 
 ter Oak Ins. Co. 27, 130, 144, 366, 
 478, 487, 499, 566 
 Wooddy V. Old Dominion Ins. Co. 59, 
 64, 134, 283 
 Woodfin 0. The Asheville Mut. 
 
 Ins. Co. 343, 465, 474 
 
 Woodruff V. Columbus Ins. Co. 420 B 
 V. Imperial Ins. Co. 247, 431 
 
 V. Sussex County Mutual Fire 
 
 Ins. Co. 82, 285, 287, 424, 
 
 457, 565, 584, 591 
 
 Woods V. Atlantic Mut. Ins. Co. 261 
 
 V. Edwards 350 
 
 V. N. W, Ins. Co. 232 
 
 V. Wilder 39 
 
 Woodward v. Republic Fire Ins. 
 
 Co. 253 B 
 
 Wooliver v. Boylston Ins. Co. 294 E 
 Woracher v. Denmark M. H. F. 
 
 Ins. Co. 189 
 
 Worcester v. Worcester Mutual 
 
 Fire Ins. Co. 255 
 
 Worcester Bank v. Hartford Fire 
 
 Ins. Co. 369 
 
 Worden v. Guardian, &c. Ins. Co. 352, 
 
 353 
 Work V. Merch. & Farmers' Mut. 
 
 Fire Ins. Co. 448 
 
 Workman v. Ins. Co. 420 
 
 Section 
 Works V. Farmers' Mut. Fire Ins. 
 
 Co. 469 B, 504 
 
 World Mut. Life Ins. Co. v. 
 
 Sclmltz 166, 186, 187, 295, 297 
 
 Worley v. State Ins. Co. 247, 248 
 
 Worsley v. Wood 29, 466 
 
 Worswiok v. Canada, &o. Ins. Co. 163, 
 
 2.50 
 
 Worthington v. Bearse 101, 268 
 
 V. Charter Oak Ins. Co. 344 c, 
 
 350 a 
 
 V. Curtis 390 
 
 Wray v. Man. Prov. Ass. Co. 212, 305 
 
 Wright V. Eq. Life Ass. Co. 156 
 
 V. Hartford Ins. Co. 466 
 
 V. London Life Ass. Co. 17 
 
 V. Mut. Benefit Ass'n 263 A, 478 
 
 V. Sun Mut. Life Ins. Co. 17, 27, 
 
 516, 530 
 
 u. Susquehanna Mut. F. Ins. 
 
 Co. 493 A 
 
 V. Vermont L. Ins. Co. 156, 306 
 
 V. Ward 493 
 
 Wright & Pole, In re 423 
 
 Wustum V. City Fire Ins. Co. 248 
 
 Wyche v. Greene ^ 566 
 
 Wyld V. Liverpool, &c. Ins. Co'. 59, 
 
 140, 143 
 
 Wylde V. Union Mar. Ins. Co. 566 A 
 
 Wyman v. Bank 23 D 
 
 V. People's Eq. Ins. Co. 287, 290, 
 
 461 
 
 V. Phoenix Mut. Life Ins. Co. 
 
 356 A, .362 
 0. Prosser 447 B 
 
 V. Wyman 452 A 
 
 Wynkoop u. Niagara Fire Ins. 
 
 Co. 433 A 
 
 Wynne v. Liverpool, &c. Ins. Co. 250, 
 
 424 
 Wytheville Ins. Co. u. Stultz 230 
 
 X. 
 
 Xenos V. Wickham 
 
 44,60 
 
 Yancey v. Mina L. Ins. Co. 531 A 
 Yard v. Pacific, &c. Ins. Co. 562 
 
 Yates V. Whyte 453, 454, 455 
 
 Yeager, In re 391 
 
 Yeaton v. Frye 26 
 
 Yeomans v. Girard Fire Ins. Co. 495 
 Yonge V. Equitable Life Ins. 
 
 Co. 360 B 
 
 Yonkers Ins. Co. u. Hoff Ins. Co. 11 
 Yore V. Booth 399 D 
 
 xciii 
 
TABLE 01 CASES. 
 
 f The references are to the sections.] 
 
 Section 
 York, &o. Ins. Co. v. Bowden 559 
 
 York Co. Mut. Fire Ins. Co. v. 
 
 Knight 662 
 
 V. Turner 555 
 
 Yost V. American Ins. Co. 341 a 
 
 V. McKee 287 B, 492 
 
 Young V. Eagle Fire Ins. Co. 264 
 
 V. Hartford Fire Ins. Co. 151 
 
 V. Madison Co. Mut. Ins. Co. 225 
 V. Mut. Life Ins. Co. of N. Y. 508 
 V. Padfie Mut. Ins. Co. 421 a 
 
 V. Travelers' Ins. Co. 144 A, 523 
 V. Turing 30 
 
 V. Washington Ins. Co. 408 
 
 xciv 
 
 Section 
 
 z. 
 
 Zalesky v. Iowa State Ins. Co. 430 
 
 Zallee v. Conn. Mut. Life Ins. Co. 566 
 
 V. Laclede Mut. Fire & Mar. 
 
 Ins. Co.- 496 B 
 
 Zielke v. Lond. Ass. Co. 469 B 
 
 Zigler V. Phoenix Ins. Co. 70 B 
 
 Zimmerman v. Dwelling-House 
 
 Ins. Co. 137 
 
 V. Farmers' Ins. Co. 448 
 
 V. Home Ins. Co. 372 D 
 
 Zinck V. Phoenix Ins. Co. 365 C 
 
 Zummers v. U. S. Ins. Ann. Co. 218 
 
INSURANCE: 
 
 FIRE, LIFE, ACCIDENT, ETC. 
 
 Analysis. 
 
 CHAPTER I. 
 
 op the nature op the contract. 
 
 Eeinsurance. — Double Insurance. 
 1. The Contract Generally. 
 
 § 1. Definition. A promise upon coDsideration to pay a contingent loss 
 
 on the implied condition that the consideration shall he returned 
 if the risk never attaches (see § 4). 
 According to the subject-matter and the peril insured against it is 
 called fire, life, accident, marine, &c., insurance. 
 
 §§ 2-3. It is essentially a contract for indemnity, not profit (see also §§ 11, 
 
 7, 8). 
 Its object is to relieve individuals from the crushing weight of losses 
 that come upon them without their own fault by distributing the 
 burden over the community. It is governed by the same general 
 principles as other contracts, but has special characteristics, and 
 must be in terpreted in the light of its purposes and history. 
 
 § 4. If the subject-matter is not put at risk, the insurer cannot, in the 
 
 absence of fraud, retain the premium. Italian writers contra. 
 
 § 5. It is an aleatory contract, an exchange of risks. 
 
 § 6. It is personal and does not run with the title to the subject-matter, 
 
 except by express provision ; see § 72. 
 
 §§ 7-8. An effort has been made to show that life-insurance does not involve 
 
 the principle of indemnity, but in truth the purpose always is 
 indemnity for the loss of a valuable interest. It is this which 
 distinguishes insurance from a mere wager (see §§ 33, 74). What 
 the interest shall be, provided it is valuable, and whether the 
 amount of its value shall be estimated after loss, or beforehand, as 
 in life policies, and in valued policies fire and marine, are merely 
 incidental questions. 
 
 VOL. I. — 1 1 
 
§ 1] INSUEANCE: FIRE, LIFE, ACCIDENT, ETC. [CH. I. 
 
 2. Reinsueanoe. 
 
 §§ 9-12 C. Reinsurance is the contract one insurer makes with another to protect 
 
 the first from a risk he has already assumed (see also § 98). 
 The contract between reinsurer and reinsured is in general subject to 
 
 like rights and liabilities as that between reinsured and the person 
 
 originally insured. It is a contract for indemnity, no more. The 
 
 insolvency of the reinsured does not affect the liability of the 
 
 reinsurer (§ 11 et seq.). 
 The extent of the reinsurer's liability is determined, subject of course 
 
 to the express terms of the agreement, by the amount the insurer 
 
 has paid, if he has settled with the assured, and by what the 
 
 insurer is liable to pay the assured where a final settlement has 
 
 not been reached, and without any reference to the ability of the 
 
 original insurer to pay in full (§11 A). 
 Settlement with the assured in violation of promise to reinsurer 
 
 releases the latter (§ 12 A). 
 The partj' first insured acquires no rights against the reinsurer, nor 
 
 any special claim on the money paid the reinsured unless so agreed 
 
 (see § 12, note). 
 The contract is not within the statute of frauds (§ 12 A). 
 Conditions of the original policy do not always affect the reinsurance, 
 
 but the reinsurer is bound by the insurer's waiver, 
 waiver of the insurer or his assent to an assignment (§ 12 B). 
 Reinsurance of risks in Wew York does not include policies issued in 
 
 New York on property elsewhere (§ 12 C). 
 Parol is admissible to show that a policy is one of reinsurance 
 
 (§ 12 D). 
 The beginning of the risk is the same as that of the original one 
 
 unless otherwise expressed (§ 12 D). 
 Usage, costs of suit against reinsured, concealment, representation, 
 
 notice, and proof of loss, reinsurance of all risks, surplus fund, &c., 
 
 see Index. 
 In Massachusetts the freedom of reinsurance is limited. Pub. Stats. 
 
 703, 716. 
 
 3. Double Insttrance. 
 
 § 13. Double insurance is more that one insurance of the same interest. 
 
 The insured can recover no more than his loss. Proportional 
 liability of the insurers and contribution among them. 
 
 § 1. Definition. — Insurance is a contract whereby one, for 
 a consideration, undertakes to compensate another if he 
 shall suffer loss. Such, in its most general terms, is the 
 definition of the contract which is to constitute the subject 
 of the following chapters. It is substantially the definition 
 given long ago by Roccus, and is recommended alike by its 
 brevity and its comprehensiveness, — qualities upon which 
 subsequent writers have scarcely been able to improve. 
 2 
 
CH. I.] OF THE NATURE OF THE CONTRACT. [§ 1 
 
 " Assecuratio," says that early writer, "est contractus quo quis 
 alienee rei periculum in se suscepit, ohligando se, sub certo 
 pretio, ad earn compensandam, si ilia perierit. " ^ Neither the 
 times and amounts of payments by the insured, nor the 
 modes of estimating or securing the payment of the sum to 
 be paid by the insurer, affect the question whether the agree- 
 ment between them is a contract of insurance. All that is 
 requisite to constitute such a contract is the payment of con- 
 sideration by the one, and the promise of the other to pay 
 the amount of loss agreed upon in the contract, or to be de- 
 termined upon investigation, to the person entitled to claim 
 it, upon the happening of the contingency contemplated in 
 the contract.^ (a) 
 
 1 De Asseour. not. 1. See also Bynkershoeck's Laws of "War, Du Ponceau's 
 ed. 164. "Insurance is a contract by which the one party, in consideration of 
 a price paid to him, adequate to the risk, becomes security to the other, that he 
 shall not suffer loss, prejudice, or damage by the happening of the perils specified 
 to certain things which may be exposed to them." Per Mr. Justice Lawrence in 
 Lucena v. Craufurd, 2 Bos. & Pul. New Rep. 269, 300, after citing the definitions 
 of Valin, Roocus, and others. 
 
 2 Commonwealth v. Wetherbee, 105 Mass. 149. See aXso post, §§ 6, 650 a. 
 
 (a) The Massachusetts statute of 1897, time for a fixed price, it is not insurance, 
 
 ch. 66, §1, defined an insurance con- Attorney-General's Report (1898), p. 28. 
 
 tract to be ' ' an agreement by which one The guaranteeing of a realty revenue 
 
 party for a consideration proniises to from farming lands is insurance, such a, 
 
 pay money or its equivalent or to do revenue being subject to many contin- 
 
 sorae act of value to the assured upon gencies, as winds, hail, frost, drought, 
 
 the destruction, loss or injury of some- ravages of insects, etc. Ee Hogan (N. 
 
 thing in which the other party has an D.), 78 N. W. 1051. So an agreement 
 
 interest." This statutory definition is by which a corporation, in considera- 
 
 probably nothing more than a declara- tion of a sum paid, is to purchase at -a 
 
 tion of the common-law definition of fixed price the accounts which during 
 
 insui-ance, as given by Mr. Justice Gray, one year a business firm shall have 
 
 in Commonwealth v. "Wetherbee, 105 against ascertained insolvent debtors, 
 
 Mass. 160. See Claflin v. U. S. Credit or judgment creditors against whom 
 
 System Co., 165 Mass. 501. On May execution shall be returned unsatisfied, 
 
 11, 1898, the Attorney-General of Massa- was a contract of insurance within the 
 
 chusetts, in an opinion addressed to the Massachusetts act of 1887, ch. 214, 
 
 Insurance Commissioner, ruled that the which, by limiting insurance to what 
 
 essential element of insurance is that was authorized by that Act, excluded 
 
 the insured receives indemnity from loss credit insurance. Claflin v. U. S. Credit 
 
 by reason of the happening of events System Co., 165 Mass. 501 ; Eosen- 
 
 without his control or the control of baum v. U. S. Credit System Co. (N. J. 
 
 the insurer; and that, if a physician L.), 44 Atl. 986. And, in general, a 
 
 contracts for his services for a fixed contract to indemnify, wholly or par- 
 
 3 
 
§ 2] INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. I. 
 
 § 2. Contract of Indemnity. — It had its Origin in the ne- 
 cessities of commerce ;i it has kept pace with its progress, 
 expanded to meet its rising wants and to cover its ever- 
 widening fields ; and, under the guidance of tlie spirit of 
 modern enterprise tempered by a prudent forecast, it has 
 from time to time, with wonderful facility, adapted itself to 
 the new interests of an advancing civilization. It is appli- 
 cable to every form of possible loss. Wherever danger is 
 apprehended or protection required, it holds out its foster- 
 ing hand, and promises indemnity. ^ This principle under- 
 lies the contract, and it can never, without violence to its 
 essence and spirit, be made by the assured a source of profit, 
 its sole purpose being to guaranty against loss or damage.^ 
 "Though based upon self-interest," says De Morgan,* "yet 
 it is the most enlightened and benevolent form which the 
 projects of self-interest ever took. It is, in fact, in a limited 
 sense and a practicable method, the agreement of a commu- 
 nity to consider the goods of its individual members as com- 
 mon. It is an agreement that those whose fortune it shall 
 be to have more than average success shall resign the over- 
 plus in favor of those who have. less. And though it has as 
 
 1 Insurance Co. v. Duuliam, 11 Wall. (U. S.) 1. 
 
 ^ [Insurance contracts are fundamentally for indemnity, and will be liberally 
 construed to that end. Insurance Co. i;. Hughes, 10 Lea (Tenn.), 461.] 
 
 8 Wilson V. Hill, 3 Met. (Mass.) 66 ; Kulen Kemp w. Vigne, 1 T. R. 304, per 
 BuUer, J. ; Franklin Fire Ins. Co. v. Hamill, 6 Gill (Md.) 87 ; post, §§ 7, 116. 
 L'assurance, nous I'avons dit, a pour objet de reparer une perte soufferte par 
 I'assure, jamais de lui procurer un benefice. Alauzet, Traite General des Assu- 
 rances, 1 par. 108. II est de I'essence du contrat d'assurance de ne garantir que 
 les pertes souffertes et les depenses faites ; et, sauf conventions contraires, il est 
 de sa nature de les garantir toutes. Ibid., par. 112. On ne peut faire assurer 
 que ce qu'on court risque de perdre ; Tassuraniie ne doit jamais pouvoir donner 
 un benefice k I'assure. Ce principe, que nous avons dejJi eu I'occasion d'etablir, 
 doit etre maintenu avec le plus extreme severity. Ibid., par. 146. Assecuratus 
 Don quEerit lucrum, sed agit ne in damno sit. Straecha, de Assecurationibua, 
 pt. 20, No. 4 ; Pardessus, Cours de Droit Commercial, 1 § 589, 4. 
 
 * An Essay on Probabilities, and on their application to Life Contingencies and 
 Insurance Offices. Pref. p. xv. 
 
 tially, a merchant against the peril of citizens of the same state, but it is not 
 
 loss by the insurance of customers, is a a transaction of "commerce" as between 
 
 valid insurance agreement. Shakman citizens of different states. State v. 
 
 V. U. S. Credit System Co., 92 Wis. 366. Phipps, 50 Kansas, 609 
 Insurance is a "trade" as between 
 
 4 
 
CH. I.] 
 
 OF THE NATUEE OF THE CONTEACT. 
 
 [§3 
 
 yet been applied only to the reparation of the evils arising 
 from storm, fire, premature death, disease, and old age, yet 
 there is no placing a limit to the extensions which its appli- 
 cation might receive, if the public vrere fully aware of its 
 principles and of the safety with which they may be put in 
 practice." {a) 
 
 § 3. Amongst the early writers the peculiar nature .of this 
 contract has been the subject of much discussion. The Ital- 
 ian doctors, in particular, have been fruitful in dissertations 
 better adapted, says Boulay-Paty,^ to fatigue the mind than 
 to throw light upon the subject. With them insurance is 
 now a nudum pactum, and now a contractus innominatus ; 
 
 1 Cours de Droit Conimercial et Maritime, tome ii. p. 3. 
 
 (a) The range of insurance has been 
 considerably extended in recent years, 
 including insurance, e. g., against bur- 
 glary and liouse-breaking : see In re 
 George and Goldsmiths and Genera] Bur- 
 glary Ins. Ass'n, Lim'd, [1898] 2 Q B. 
 136 ; of credits, and against losses from 
 the insolvency of debtors: see American 
 Credit Indemnity Co. v. Carrolton F. M. 
 Co., 95 Fed. Rep. Ill ; Same v. Athens 
 Woolen Mills,'34 C. C. A. 161, 165, and 
 note; Smiths. National Credit Ins. Co., 
 65 Minn. 283 ; Goodman v. Mercantile 
 Credit Guarantee Co., 45 N. Y. S. 508 ; 
 Shakman v. U. S. Credit System Co., 
 92 Wis. 366 ; by benevolent and char- 
 itable associations making contracts by 
 certificates in the nature of life insur- 
 ance : see, e. g.. Golden Star Fraternity 
 V. Martin, 59 N. J. L. 207 ; Brierly v. 
 Equitable Aid Union, 170 Mass. 218 ; 
 Fisher v. Donovan, 57 Neb. 361 ; of 
 titles : see Stensgaard o. St. Paul Real 
 Estate Title Ins. Co., 50 Minn. 429; 
 Northwestern Masonic Aid Ass'n v. 
 Jones, 154 Penn. St. 99 ; Lloyds' pol- 
 icies, by which suits are to be brought 
 only against the attorney or general 
 managers of the underwriters, or against 
 certain of the underwriters: see, e, g., 
 Biggert v. Hicks, 42 N. Y. S. 236 ; 
 Compton V. Beecher, 44 id. 887 ; Stieg- 
 
 litz V. Belding, 45 id. 670 ; Ralli ^. 
 White, 47 id. 197 ; of employers against 
 loss from damages for injuries received 
 by their employes: see, e. g., Embler 
 V. Hartford Steam Boiler Inspection 
 & Ins. Co., 158 N. Y. 431 ; People v. 
 American Steam Boiler Ins. Co. , 41 
 N. Y. S. 631 ; Glens Falls Portland 
 Cement Co. v. Travellers' Ins. Co., 162 
 N. Y. 399 ; Anoka Lumber Co. v. Fidel- 
 ity & Casualty Co., 63 Minn. 286 ; Chi- 
 cago Sugar Ref. Co. v. American S. 
 B. Co., 48 Fed. Rep. 198 ; 57 id. 294 ; 
 Employers' L. Ass. Co. v. Merrill, 155 
 Mass. 404 ; People's Ice Co. u. Em- 
 ployers' L. Ass. Co., 161 Mass. 122 ; 
 of fidelity on the part of persons hold- 
 ing public or private po.sitions of trust 
 and of employees : see People v. Rose, 
 174 111. 310 ; Fidelity & Casualty Co. v. 
 Eickhoff, 53 Minn. 170; infra, ch. 30 ; 
 of growing crops from injury : infra, 
 § 79 ; against losses by common carriers 
 from injuries sustained by their passen- 
 gers : see Trenton Passenger Ry. Co. 
 V. Guarantors' Liability Indemnity Co., 
 60 N. J. L. 246. Such new forms of 
 insurance are properly treated as within 
 a statute of general insurance, though 
 the new forms were unknown when 
 such statute was enacted. People o. 
 Rose, 174 111. 310, 315. 
 
§ 3] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. I. 
 
 now a wager and now a stipulation, a security, a sale, a let- 
 ting to hire, a partnership, a mandate, and the like; and 
 their several conflicting claims can only be settled by a deep 
 plunge into the theory of the Roman law upon the subject of 
 these several pacts, where we might perhaps lose ourselves 
 in the subtleties of interpretation. But these different char- 
 acters have been attributed to it according to the point of 
 view occupied by each different writer, and with reference 
 to some special application to a particular subject-matter, 
 rather than in accordance with considerations drawn from 
 the nature of the contract itself. But it is a contract 
 governed by the same principles which govern other con- 
 tracts.^ (a) Like all other contracts it must have its recip- 
 rocal consent, and a consideration therefor. "The consent 
 of the contracting parties in all things which constitute the 
 substance of the contract," says Pothier,^ "is of the essence 
 of the contract of insurance as of all other contracts." It 
 is, however, a peculiar contract, distinguished by special 
 characteristics, and requiring for its proper elucidation to 
 be interpreted in the light of the circumstances in the midst 
 
 1 Gornfoot v. Fowke, 6 M. & W. 358. 
 
 2 Traite de Cont. d'Ass. No. 87. 
 
 (a) As in other contractual cases, accepted ; but when it is accepted, and 
 the contract must he definite and cer- nothing remains for the applicant to 
 tain, and such as to hind both par- do, the contract is complete and hind- 
 ties, — the one to insure, the other ing, actual delivery of the policy to the 
 to pay the premium ; and the parties insured not being essential to its valid- 
 must also have agreed upon all essential ity, unless expressly made so by its 
 terms. If their minds have not met, terms. New York L. Ins. Co. v. Bab- 
 there is no liability for a loss ; as where cook, 104 Ga. 67, 70 ; 69 Am. St. Eep. 
 the rate of premium is left undeter- 134, 143, and note ; Phoenix Ass. Co., 
 mined, or the time when the policy !>. McAuthor, 116 Ala. 659; Dibble v. 
 shall attach, or the apportionment of Northern Ass. Co., 70 Mich. 1. The 
 the risk, has not been agreed upon, or insurer's failure to respond to an appli- 
 the insured retains control over the pre- cation implies a rejection and not an 
 mium note or over any papers the de- acceptance of the risk. More v. New 
 livery of which is a condition precedent ; York Bowery F. Ins. Co., 130 N. Y. 
 or if anything remains to be done by 637- 
 
 the insured as a condition precedent. In life insurance, the courts will not 
 
 Croft !). Hanover F. Ins. Co., 40 W. decide upon the validity of a policy dur- 
 
 Va. 508, 513 ; Taylor t). State Ins. Co., ing the assured's lifetime. Honour v. 
 
 107 Iowa, 275. The contract is not Equitable L. Ass. Society [1900], W. N. 
 
 consummated until the application is 67. 
 
 6 
 
CH. I.] OF THE NATURE OF THE CONTRACT. [§ 4 
 
 of which it has grown up and with a just appreciation of the 
 purposes which it is designed to effect.^ 
 
 § 4. A Conditional Contract. — It is, moreover, a condi- 
 tional contract ; for when no risk attaches no premium is to 
 be paid, or if paid, must, in the absence of fraud, be re- 
 turned to the assured.^ (a) In point of fact, the contract is 
 to pay the premium on condition that the risk is run, and 
 the refunding a premium is of frequent occurrence in mari- 
 time insurance ; and that, too, in cases where it is entirely 
 optional with the assured whether the property insured shall 
 be put at hazard or not, as where the ship is never de- 
 spatched by the owner on the projected voyage. The lan- 
 guage of Lord Mansfield in Tyrie v. Fletcher, above cited, 
 is explicit. " When the risk has not been run, whether its 
 not having been run was owing to the fault, pleasure, or 
 will of the insured, or to any other cause, the premium shall 
 be returned." And this principle is alike applicable to all 
 policies of insurance. The language of the continental 
 writers, generally, is in accordance with this doctrine. It 
 would seem, therefore, says Alauzet,^ that the engagement 
 of the assured is not absolute, but conditional, like that of 
 the insurer ; that of the latter depending upon the condition 
 that an accident happen, and that of the former upon the 
 condition that the subject-matter of insurance be put at risk. 
 The Italian writers, however, maintain with great unanimity 
 that when once the contract has been signed, the premium 
 is absolutely due to the insurer, and is irrevocable; and, 
 reasoning according to the analogies of the contract of sale, 
 which will not permit the purchaser to recant at pleasure, 
 and demand back the purchase-money, ask, with some sig- 
 nificance, why the insurer should be made the victim of an 
 act to which he is a total stranger, for which he is in no 
 
 1 Emerigon, Traite des Assurances, u. 1, § 2. 
 
 2 Stevenson u. Snow, 3 Burr. 1237 ; Tyrie v. Fletcher, Cowp. 666 ; Pothier, 
 Du Cont. d'Ass. 4 ; Pardessus, Droit Commercial, 596, 3 ; 2 Marsh. 663 ; post, 
 §§ 567, 569. 
 
 5 Traite Gen. des Assurances, 179. 
 
 (a) This applies to both fire and life 60i ; United States Life Ins. Co. v. 
 insurance. Jones u. Ins. Co., 90 Tenn. Smith, 92 Fed Kep. 503, 509. 
 
 7 
 
§ 6] INSUEANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. I. 
 
 way responsible, and to which the assured himself is in no 
 way compelled.^ But this strictness of interpretation has 
 not obtained in other and more mercantile communities, 
 where the doctrines of insurance have been developed under 
 the influence of a liberal purpose, so far as consistent with 
 general principles, to foster the spirit of commercial enter- 
 prise. In such communities the law is jealous of any hin- 
 drance in the way of the complete abandonment of an adven- 
 ture which may have been determined upon and insured, but 
 which, subsequent information may show, would be impru- 
 dent or disastrous ; and it takes care that the fact of having 
 paid the premium shall have no influence upon the delibera- 
 tion whether to proceed or abandon. 
 
 § 5. An Aleatory Contract. — It is also what the French 
 writers term an aleatory ^ contract, or one in which the 
 equivalent consists in the chances for gain or loss, to the 
 respective parties, depending upon an uncertain event, in 
 contradistinction from a commutative contract, in which the 
 thing given or act done by one party is regarded as the exact 
 equivalent of the money paid or act done by the other. ^ 
 Bach party runs his risks. The insurer will gain the pre- 
 mium if no loss happens ; and will be obliged to make repa- 
 ration if it does, (a) On the other hand, the insured will, in 
 the former case, have paid his premium to no purpose; 
 while,' in the latter, he will be indemnified for his loss by 
 the insurer.* 
 
 § 6. A Personal Contract. — It is also a personal contract 
 
 1 Alauzet, ubi supra. 
 
 2 From alea, a die, dice, or throw of the dice ; a word for which our adjec- 
 tives, "gaming" and "hazardous," are not exact equivalents. 
 
 8 Code Civil, 1104. 
 
 * Rogron, Code de Commerce Explique, title x. ; Des. Ass. Int. 
 
 (a) Even when the insured suffers premium for the balance of the time 
 
 no loss, yet if the insurer becomes in- named in the policy subsequent to the 
 
 solvent and makes an assignment for assignment. Smith v. National Credit 
 
 the benefit of its creditors, the policy is Ins. Co., 65 Minn. 283. See infra, § 358, 
 
 thereby cancelled and the insured is note, 
 entitled to recover back the unearned 
 
CH. I.] OF THE NATURE OE THE CONTRACT. [§ 6 
 
 and does not run with the title to the property.^ (a) Whether 
 the subject-matter of insurance be a ship or a building or a 
 life, or whatever else it may be, although in popular lan- 
 guage it may be called an insurance upon the ship or build- 
 ing or life, or some other thing, yet it is strictly an 
 agreement with some person interested in the preservation 
 of the subject-matter, to pay him a sum which shall amount 
 to an indemnity, or a certain sum agreed upon as an indem- 
 nity, in case his interest in the subject-matter shall suffer 
 diminution of value, from certain specified causes, or in cer- 
 tain specified contingencies.^ It is a mere special agreement 
 with a party seeking to secure himself against apprehended 
 loss on account of his interest in a particular subject-matter, 
 and not at all incidental to or transferable with the subject- 
 matter. ^ The contract of insurance does not run with the 
 subject-matter of insurance, unless by special stipulations 
 wholly foreign to itself, either interpolated in the contract, 
 or in addition thereto. Satisfaction is to be made to the 
 person insured for the loss he may have sustained ; for it 
 cannot properly be called insuring the thing, since there is 
 no possibility of doing it, and therefore must mean insuring 
 the person from damage.* And it is because of this person- 
 ality of the contract that it has been held that if a mortgagee 
 in possession for condition broken insure his interest in the 
 premises without any agreement therefor between him and 
 the mortgagor, and a loss happens for which the mortgagee 
 is indemnified by the insurers, the mortgagor, on a bill to 
 redeem and for an account, is not entitled to have the 
 amount paid to the mortgagee deducted from the amount of 
 
 ■ [Quarles v. Clayton, 87 Tenn. 308.] 
 
 " Wilson V. Hill, 3 Met. (Mass.) 66 ; Disbrow v. Jones, Harr. (Mich.) Ch. 48. 
 8 Carpenter v. Providence Wash. Ins. Co., 16 Pet. (U. S.) 496. 
 * Sadlers' Company v. Badcocic, 2 Atk. 554 ; Lynch v. Dalzell, 4 Bro. Par. 
 Cas. 431. See also post, §§ 379, 456. 
 
 (a) As an insurance contract is a and reasonable. Farmers & Merchants 
 personal one between the insured and Ins. Co. v. Jensen, 56 Neb. 284, 286 ; 
 the insurer, a provision in the policy Milwaukee Mechanics' Mutual Ins. Co. 
 that it shall cease to be in force if a v. Ketterlin, 24 111. App. 188 ; Lang- 
 change takes place in the insured's title don v. Minnesota Farmers' Mutual Fire 
 without the insurei''s consent, is valid Ins. Ass'n, 22 Minn. 193 ; infra, § 264. 
 
§ 7] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. I. 
 
 his charges for repairs. ^ A contract may, however, be so 
 framed as to secure successive owners of the same property.^ 
 § 7. Purpose. — A distinction has sometimes been taken 
 between marine and other insurances, and life insurance, on 
 the ground that while the former have for their object to 
 indemnify for loss, the latter is an absolute engagement to 
 pay a fixed sum on the happening of a certain event, with- 
 out reference to any damage in fact, suffered by the insured 
 in consequence.^ But this distinction is superficial, and 
 rests rather upon the mode of applying the principles and 
 of determining the amount of indemnity, than upon any 
 difference in the principles themselves. Insurance upon a 
 ship or a house at a fixed valuation, and at an annual pre- 
 mium, until one is lost or the other is burned, is in no way 
 different in principle from the insurance of a life at a fixed 
 valuation and at an annual premium, until death. And 
 there may be between the vigor of manhood and the decrepi- 
 tude of old age the same change in value that the house or 
 the ship may undergo. In the one case, the insurance is 
 against the loss of capital, which produces income; in the 
 other, it is against the loss of faculties, which produce in- 
 come. There is the same difference, having reference to 
 the question of indemnity, between valued and open policies 
 in both fire and marine insurance that there is between an 
 open policy in either and a policy of life insurance. In open 
 policies the question of the amount of the indemnity is left 
 to be determined when the contingency upon which it be- 
 comes due shall have happened, while in valued policies and 
 policies on lives the value of the interest which the insured 
 seeks to protect is agreed upon by the parties and inserted 
 in the policy, and so the amount of indemnity which shall 
 
 1 White 1). Brown, 2 Cush. (Mass.) 412; Gushing v. Thompson, 4 Red. (Me.) 
 496. See also Leeds !>. Cheetham, 1 Sim. 146 ; Mildmay v. Folgham, 3 Ves, Jr. 
 472 ; Watson i;. Bratton, in Eq. 1830, cited by Ellis, Fire and Life Insurance 
 and Annuities, 155 ; Adams v. Rockingham Mut. Fire Ins. Co., 29 Me. 292. 
 See also post, § 72. 
 
 2 Waring v. Indemnity Fire Ins. Co., 45 N. Y. 606. 
 
 ^ Babbage's " Comparative View of the Various Institutions for the Assur- 
 ance of Lives," 154 ; Dalby v. India & London Life Assurance Co., 15 0. B. 365 ; 
 s. c. 28 Eng. L. & Eq. 312. 
 10 
 
CH. I.] OF THE NATURE OP THE CONTKACT. [§ 8 
 
 become due on the happening of the given contingency is 
 predetermined. The purpose in all cases is alike, — indem- 
 nity for the loss of a valuable interest. That in some cases 
 the value is fixed with great precision, while in others it is 
 of such a speculative character as to admit of the greatest 
 latitude of estimate, not to say of conjecture, does not make 
 it the less a valuable interest. There must be this interest 
 to support the contract. This is essential. What it shall 
 be, provided it be valuable, and how its value shall be ar- 
 rived at, are simply incidental questions; and, however they 
 naay be answered, do not change the nature of the contract 
 from one of indemnity based upon an interest to be pro- 
 tected, to a mere wager based upon no interest whatever. 
 The analogies between life and marine policies have been 
 matters of frequent judicial observation. ^ When it is said 
 that fire, life, and other insurances, where valued policies 
 obtain, are contracts of indemnity, it is simply intended 
 that to support them the insured must have some interest in 
 the thing insured. The amount of this interest, and the 
 amount to be paid in case of loss, may be fixed by arbitrary 
 agreement, even before the loss, according to the modern 
 practice, if not strictly according to the ancient doctrine, of 
 insurance.^ 
 
 § 8. In one case, after much consideration, it was said 
 that the contract commonly called life insurance, when 
 properly considered, is a mere contract to pay a certain sum 
 of money on the death of a person in consideration of the 
 due payment of a certain annuity for his life, the amount of 
 the annuity being calculated in the first instance according 
 to the probable duration of the life, and, when once fixed, 
 it is constant and invariable. The stipulated amount of 
 
 1 See further upon this subject, post, §§ 116, 117. 
 
 2 Whiting V. Ind. Mut. Ins. Co., 15 Md. 297 ; Strong v. Manufacturers' Ins. 
 Co., 10 Pick. (Mass.) 40; Borden v. Hingham Mut. Fire Ins. Co., 18 Pick. 
 (Mass.) 523 ; Miller v. Eagle Life and Health Ins. Co., 2 B. D. Smith (IST. Y. C. 
 P.), 268 ; Loomis Adm. v. Eagle Life and Health Ins. Co., 6 Gray (Mass.), 396 ; 
 Bevin v. Conn. Mut. Life Ins. Co., 23 Conn. 244 ; Trenton Mut. Life & Fire Ins. 
 Co, V. Johnson, 4 Zabr. (N. J.) 676 ; St. John v. Am. Mut. Life Ins. Co., 13 N. 
 Y. 31. 
 
 11 
 
§ 8] INSUEAKCE : FIKE, LIFE, ACCIDENT, ETC. [CH. I. 
 
 annuity is to be uniformly paid on one side, and the sum to 
 be paid in the event of death is always (except when boun- 
 ties have been paid by prosperous offices) the same on the 
 other. This species of insurance, it was also said, in no 
 way resembles a contract of indemnity, and in this respect 
 differs from policies against fire and against marine risks, 
 which are both properly contracts of indemnity, — the in- 
 surer engaging to make good, within certain limited amounts, 
 the losses sustained by the assured in their buildings, ships, 
 and effects. In life insurance the loss is sure to come when 
 the insurance is for the whole life, while in marine and fire 
 insurance the loss may not happen within the time covered 
 by the insurance, as is the case under a simple life policy 
 for a limited time. And the case of Godsall v. Boldero,^ as 
 to so much of the decision as held that there must be an 
 insurable interest at the time of the death, was declared to 
 have been decided upon a mistaken analogy between life 
 insurance and marine insurance.^ And where a policy is 
 effected by a creditor on the life of his debtor, in pursuance 
 of a contract with his debtor, who, however, is no party to 
 the policy, but supplies the money to pay the premiums, in 
 such case, said Stuart, V. C, referring to the case of Dalby 
 V. India and London Life Assurance Company,^ although it 
 may be true that the contract is not one of indemnity as 
 between the parties to the policy, it is, ne^^ertheless, one as 
 between the debtor and creditor; so that after the debt is 
 discharged, and the creditor's interest has ceased, the debtor 
 is entitled to any advantages derivable from the policy.* 
 The case of Dalby v. India and London Assurance Company ^ 
 
 1 9 East, 72. ' 
 
 2 Dalby v. India & London Life Assurance Co., 15 C. B. (6 J. Scott) 364 
 determined in the Exchequer Chamber. And see also Law v. London Indis- 
 putable Life Policy Co., 1 Kay & Johns. 223. And the general doctrine of these 
 cases has been adopted by the Supreme Court of the United States. Conn. 
 Mut. Life Ins. Co. «. Schaefer, i Otto (U. S.), 457 ; m. c. and note, A. L. Eeg. 16, 
 N. s. 392. In this case it was unsuccessfully contended that, a divorce a vinculo 
 having terminated the wife's interest in the life of her husband, she could not 
 recover. 
 
 8 15 C. B. (6 J. Scott). 
 
 4 Knox V. Turner, 21 L. T. N. s. 701 ; s. c. L. E. 9 Ch. 155. » Vbi supra. 
 12 
 
CH. I.] OF THE NATDEE OF THE CONTRACT. [§10 
 
 turned upon the question, not whether there should be an 
 insurable interest, which was admitted, but whether that 
 interest should subsist as well at the time of the death as 
 at the time of entering into the contract. That a valuable 
 interest, for the loss of which indemnity might be claimed, 
 must exist at some time, as the support of the policy, was 
 conceded. This case will be further considered when we 
 come to treat of insurable interest. ^ 
 
 § 9. Reinsurance. — Reinsurance is merely insurance ap- 
 plied in a special way and to cover, in whole or in part, a 
 particular risk already assumed. When an insurer finds it 
 prudent or convenient to protect himself from loss by reason 
 of any liability he has assumed under a policy, he may con- 
 tract with another to relieve him from that liability, and 
 take it upon himself. This is to reinsure; and by the con- 
 tract the reinsurer, except as to the matter of premium, 
 which may be more or less than that paid on the original 
 policy, as the parties may agree, undertakes with reference 
 to the first insurer what the first insurer underta,kes with 
 reference to the insured, and subject to like rights, duties, 
 and obligations. 2 
 
 § 10. Formerly prohibited. — Reinsurance was formerly 
 prohibited in England by statute 19 Geo. II. c. 371 ; but 
 this prohibition was peculiar to England, and was made not 
 from any objection to the practice when confined to its legiti- 
 mate purpose, — to save the party procuring the reinsurance 
 from the consequences of an imprudent contract, — but from 
 the fact that it came to be perverted into a mode of speculat- 
 ing in the rise and fall of premiums, and might, therefore, 
 be made a cover for wager policies.^ But now, by the law 
 and pi'actice of every country, not excepting England, the 
 underwriter may have the entire sum he has insured rein- 
 sured to him by some other underwriter. It is a common 
 practice in this country.* 
 
 1 Post, §115 etseq. 
 
 2 Canada Mut. Fire Ins. Co. v. Northern Ins. Co., 2 Ct. of App. (Ont. ) 373. 
 
 8 Arnould, Ins. 1, 290 ; Andrde v. Fletcher, 2 T. R. 161 ; 3 Law Mag. (3d 
 series) 579. 
 
 * Phil. Ins. u. 3, § 13 ; Merry v. Prince, 2 Mass. 176 ; Hastie u.De Peyster, 
 
 13 
 
§ 11] insurance: fiee, life, accident, etc. [CH. I. 
 
 § 11. Reinsurance defined. — It is a contract of indemnity 
 to the reinsured, whatever be the subject-matter, and binds 
 the reinsurer to pay to the reinsured the loss sustained in 
 respect to the subject insured, to the extent for which he is 
 reinsurer, 1 and not necessarily differing in form from an 
 original insurance.^ (a) [Reinsurance may be for a less risk 
 than the original insurance but not for more.^ If upon loss 
 the insurer pays a less sum than the original insurance 
 agreed on, the sura so paid will •^be taken as the amount of 
 damage sustained, and the measure of indemnity to be re- 
 covered from the reinsuring company, provided such sum is 
 within the amount of the reinsurance and does not exceed 
 the loss, and there is no provision in the policy of reinsur- 
 ance for prorating or limiting liability.*] The reinsured, in 
 order to recover against the reinsurer, must prove his risk 
 
 3 Caines (N. Y.), 190 5; Herckenrath v. Am. Mut. Ins. Co., 3 Barb. (N. Y.) Ch. 
 63 ; Arnould, Ins. 1, 290 ; Consolidated Keal Estate & Fire Ins. Co. v. Cashow, 
 41 Md. 59. It seems that 19 Geo. II. c. 371 applied only to marine insurance, 
 and, .so far as this is concerned, it was in force in Maryland in 1874. 
 
 1 Hone V. Mut. Saf. Ins. Co., 1 Sand. Superior Ct. Kep. (K Y.) 137. [The 
 reinsuring company need pay no more than is paid by the first insming company. 
 The contract of reinsurance is one of indemnity, not of profit. 111. Mut. Ins. Co. 
 V. Andes Ins. Co., 67 111. 362, 365.] 
 
 2 New York Bow. Ins. Co. v. New York Fire Ins. Co., 17 Wend. (N. Y.) 359. 
 8 [Philadelphia Ins. Co. v. Wash. Ins. Co., 23 Penn. St. 250, 263,] 
 
 * [Insurance Co. v. Insurance Co., 38 Ohio St. 11.] 
 
 {a) The object being indemnity tract of insurance ; hence while valid as 
 against the insurer's own act, he may to policies already existing, reinsurance 
 have the entire sum insured by him re- is void as a wager as to policies there- 
 assured by some other insurer. Ins. Co, after to be written. Sun Ins. Office v. 
 of North America v. Hibernia Ins. Co., Merz (N. J. L.), 43 Atl. 693. This does 
 140 U. S. 565. This, however, is rarely not, however, invalidate reinsurance on 
 done, the original insurer usually re- marine fire risks, so far as fire is treated 
 taining part of the risk, in which case as a part of the marine risk. Boston 
 he looks to the reinsurer for indemnity Ins. Co. u. Globe F. Ins. Co., 174 Mass. 
 up to the full amount reinsured. See 229 ; Continental Ins. Co. v. ^Etua Ins. 
 Chalaron v. Ins. Co. of North America, Co., 138 N. Y. 16. See Iowa L. Ins. Co. 
 48 La. An. 1582, 1585, 1589. That v. Eastern Mut. L. Ins. Co. (N. J.), 45 
 reinsurance by a corjioratiou may be Atl. 762. As reinsurance is not always 
 ultra vires, see Twiss v. Guaranty Life upon the same risk as the original insur-, 
 Ass'n, 87 Iowa, 733 ; Jameson v. Hart- ance, and as there is no general form of 
 ford F. Ins. Co., 44 N. Y. S. 15. The marine policy, there is no presumption 
 right to procure contracts of fire rein- that a reinsured marine risk is the same 
 surance is founded upon the insurable as that originally insured. Penn. Ins. 
 intere,st arising out of the original con- Co. v. Telfair, 61 N. Y. S. 322. 
 
 14 
 
CH. I.J OF THE NATURE OF THE CONTEA.CT. [§11 
 
 or interest in the subject-matter, and the fact and amount 
 of loss, in the same manner as the original insured must 
 have proved them against him ; ^ and the reinsurer is entitled 
 to make the same defence to an action brought against him 
 on the second policy as the original insurer might have done 
 on the first policy.^ (z) It is not necessary for the reinsured 
 to pay the loss to the first insured before proceeding against 
 the reinsurer,^ nor is the liability of the latter affected by 
 the insolvency of the reinsured, or his inability to fulfil his 
 own contract with the original insured. Nor is it compe- 
 tent, unless so agreed, to limit the liability on a contract of 
 reinsurance by proof of a usage in the place where the con- 
 tract is made, by which the reinsurer pays the same propor- 
 tion of the entire loss sustained by the original insured that 
 the sum reinsured bears to the first insurance written by the 
 reinsured.* Under an agreement, however, that the rein- 
 surer shall be liable pro rata, and only in the same manner 
 and at the same time as the reinsured, the liability of the 
 reinsurer is limited to indemnity. And the provision as to 
 time means, that payment shall be made by the reinsurer 
 in point of time, as the reinsured had contracted to make 
 it.^ [A clause in a reinsurance policy that the reinsurer 
 shall only pay pro rata at and in the same time as the assured 
 has no reference to insolvency of the reinsured.^] The lia- 
 bility of the reinsurer, unless specially limited by agreement, 
 is coextensive with that of the reinsured. When, by the 
 terms of the reinsurer's policy, suit may be brought directly 
 
 1 3 Kent, Com. 279 ; Yonlcers Ins. Co. v. Hoff. Ins. Co., 6 Rob. (N. Y.) 316. 
 
 2 New York Mar. Ins. Co. v. Prot. Ins. Co., 1 Story, C. Ct. 458 ; Eagle Ins. 
 Co. V. Lafayette Ins. Co., 9 Ind. 443. [Merchant's Mut. Ins. Co. v. New Orleans 
 Mut. Ins. Co., 24 La. An. 305 at 307.] 
 
 " [Gantt V. American Cent. Ins. Co., 68 Mo. 503, 534.] 
 
 * Hone V. Mut. Saf. Ins. Co., 1 Sand. Superior Ct. Rep. (N. Y.) 137. And see 
 s. c. affirmed, 2 Comst. (N. Y.) 235. 
 
 6 Blackstone v. Alemannia Ins. Co., 56 N. Y. 104; 111. Mut. Ins. Co. v. Andes 
 Ins. Co., 67 III. 362 ; Republic Ins. Co., In re (U. S. Dist. Ct.), 8 Nat. Bank. 
 Reg. 197 ; s. 0. 3 Ins. L. J. 390 ; Norwood v. Resolute Fire Ins. Co., 4 J. & Sp. 
 (N. Y.) 552 ; Consolidated, &o. Fire Ins. v. Cashow, 41 Md. 59; Cashau v. N. 
 W. N. Ins. Co., 5 Biss. (U. S. Dist. Ct.) 476 ; Norwood, Ex parte, 3 Biss. C. Ct. 
 504. 
 
 « [Cashau v. North "Western Nat. Ina. Co., 5 Biss. 476, 479.] 
 
 15 
 
§ 11] insurance: fire, life, accident, etc. [ch. I. 
 
 by the original insured against the reinsurer, the latter can- 
 not defend on the ground that the first insurer has been paid 
 on other policies of reinsurance upon the same risk of life. 
 That, however, may be a matter for adjustment between the 
 reinsurer and the reinsured.^ (zi) Where the reinsurer has 
 notice from the reinsured that a suit has been commenced 
 against the latter, and that the former will be looked to for 
 the costs and expenses of defence, and no objection is made 
 by the reinsurer, and the reinsured has just grounds for con- 
 testing the claim, the reinsurer will be holden to pay to the 
 reinsured the costs and expenses of such defence in addition 
 to the actual loss. But costs and expenses, wantonly and 
 unnecessarily so incurred, when there is no reasonable 
 ground of defence, and when there is no express or implied 
 sanction of the defence by the reinsurer, cannot be recov- 
 ered by the reinsured. ^ A party obtaining a policy of re- 
 insurance is bound to communicate all facts within his 
 knowledge, and to conceal none material to the risk ; and if 
 he fail in this behalf, whether from design or misapprehen- 
 sion of their materiality, as in cases of original insurance, 
 the policy of reinsurance will be void.^ [For example, 
 underwriters applying for reinsurance are bound to tell what 
 they know of the character of the assured. ■* So where M 
 had double insurance on his ship and its earnings. This 
 fact was known to the Ocean Company, and was not com- 
 municated to the Sun Company when the latter issued a pol- 
 icy to reinsure the Ocean Company, on its risk for M. 
 Knowledge of the circumstance was manifestly material. 
 It was a flagrant case of overinsnrance, that made it the 
 pecuniary interest of the master to disregard the safety of 
 the ship. The assured will not be allowed to protect himself 
 
 1 Glen V. Hope Mut. Life Ins. Co., 56 N. Y. 379. 
 
 2 New York Mar. Ins. Co. a. Prot. Ins. Co., 1 Story, C. Ct. 458 ; Hastie v. 
 De Peyster, 3 Gaines (N. Y.), 190 6 ; Strong v. Phrenix Ins. Co., 62 Mo. 289 ; 
 Strong V. Am. Central Ins. Co., 4 Mo. App. 7 ; Gantt v. Am. Central Ins. Co., 
 Sup. Ct. Mo., 9 Ins. L. J. 664. 
 
 8 New York Bowery Fire Ins. Co. v. New York Fire Ins. Co., 17 Went!. (N. Y.) 
 359 ; People's Ins. Co. v. Hartford Ins. Co. (U. S. C. Ct., Nortli Dist. Cal.), 1 Ins. 
 L. J. 875 ; 68 Mo. 503. 
 
 « [New York Bowery F. Ins. Co. v. New York Ins. Co., 17 Wend. 359, 367.] 
 16 
 
CH. I.] OF THE NATURE OF THE CONTEAOT. [§ 11 
 
 against the charge of undue concealment by affirming that 
 he had disclosed the truth in general terms. Where his in- 
 formation is specific it must be communicated specifically. 
 He must see to it that the insurer's knowledge is substan- 
 tially as full and particular as his own.^ Justices Miller, 
 Waite, and Bradley dissented, holding that a reinsurer was 
 not to be looked at in the same light as a joint insurer or 
 an original insurer, — that in point of fact, the Sun Com- 
 pany insured the risk the Ocean Company had taken, and 
 unless there were misrepresentation, fraud, or intentional 
 concealment, the Sun ought to pay the loss the Ocean had 
 incurred. There had been a course of dealing between the 
 companies in which the Sun had been in the habit of rein- 
 suring the Ocean, without inquiry into the particulars.^] 
 As the reinsurer merely substitutes himself for the original 
 insurer, he can make no defence that the latter could not. 
 Hence a representation which was true when the original 
 policy was made, but was false when the reinsurance was 
 made, is of no avail to the reinsurer.^ [Neither can a mis- 
 representation in the description of the property in the 
 original application be taken advantage of by the reinsurer. 
 The risk of the insurer is the object of reinsurance, and if 
 this was correctly stated and the insurer has been found 
 legally liable for a loss, the reinsurer must pay.*] The 
 notice of loss from the original insured to the reinsured, if 
 sufficient, and it be immediately forwarded to the reinsurer, 
 will be sufficient notice to the latter.^ [Upon a constructive 
 total loss, notice of the abandonment of the ship need not 
 be given to the reinsurers.^] Where the reinsurer stipu- 
 lates that the reinsured policy is subject to the conditions 
 of settlement as set forth in the latter, no preliminary proof 
 need be furnished by the latter to the former. ? [In a con- 
 
 1 [Sun Mut. Ins. Co. v. Ocean Ins. Co., 107 U. S. 485, 605, 510.] 
 
 2 [Id. 511.] 
 
 8 Cahen v. Continental Life Ins. Co., 69 K. Y. 300. 
 * [Jackson v. St. Paul F. & M. Ins. Co., 99 N. Y. 124.] 
 5 See cases in note 3, preceding page (p. 16), 
 « [UzielH V. Boston M. Ins. Co., 15 Q. B. D. 11.] 
 
 ' Consolidated, &c. Fire Ins. Co. v. Cashow, 41 Md. 59 ; s. o. 3 Ins. L. J. 757. 
 VOL. I. — 2 Yl 
 
§ 11 A] insurance: fire, life/ accident, etc [ch. i. 
 
 tract of reinsurance which follows the original policy, except 
 that " reinsurance " is substituted for " insurance, " and which 
 provides for proofs of loss, &c., attested by "their oath," it 
 is sufficient if the oath of the original assured without that 
 of the original insurers, is procured.^ Where the insurer 
 agreed with the reinsurer to defend against the suit of the 
 insured, the insurer to act in the matter as agent of the 
 reinsurer, and the insurer, instead of contesting the action, 
 without the knowledge of the reinsurer settled it and had it 
 dismissed, it was held that the insurer could not recover of 
 the reinsurer.^ 
 
 [§ 11 A. Extent of the Reinsurer's Liability ; Insolvency. — 
 It has already been noted that the contract of reinsurance is 
 one of indemnity and that only. The cases and text books 
 are saturated with that doctrine in respect to all varieties of 
 insurance. It is sometimes, however, a very interesting 
 question, what constitutes indemnity. For example, where 
 the original insurer settles with the assured for less than the 
 loss for which it was liable, or where it is insolvent and 
 cannot pay in full, then how much shall the reinsurer be 
 required to pay? Wood on page 818 says that New York, 
 Indiana, Maryland, and the United States Circuit Court 
 give the reinsurer the benefit of the compromise in case of 
 insolvency, &c., while Illinois does not. It appears, how- 
 ever, that the former authorities refuse to allow the rein- 
 surer to say anything about the insolvency of the insurer^ 
 and rnake the liability not the ability of the latter the meas- 
 ure of the liability of the insurer, and that Illinois in a very 
 clear case gives the reinsurer the benefit of an actual settle- 
 ment by the insurer. Before examining the cases it may be 
 remarked that on principle the matter seems perfectly clear. 
 If the insurer (A) sues the reinsurer (B) before A has reached 
 a final settlement with the assured (C), then the reinsurer 
 must be liable to pay A as much as and no more than A is 
 liable to pay C, unless otherwise clearly agreed, and after B 
 has paid A, the latter may settle as best he can. But if A 
 
 1 [N. Y. Bowevy F. Ins. Co. v. N. Y. F. Ins. Co., 17 "Wend. 359, 365.] 
 " LCommercial TJnion Ass. Co. v. Amer. Cent. Ins. Co., 68 Cal. 430.] 
 
 18 
 
CH. I.] OF THE NATURE OP THE CONTRACT. [§ 11 A 
 
 sues B after C has been paid all he is to he paid, then A 
 ought to recover no more from B than he paid to C, other- 
 wise he would be getting not indemnity but a profit. If A 
 becomes insolvent and makes a final settlement and is dis- 
 charged, it ought to recover no more from B than was paid 
 to C, or it would in a sense make money by its own care- 
 lessness in failing. When C is paid off, the other creditors 
 can have no claim on what is due from B on C's loss, unless 
 the reinsurance was taken into account in making the cal- 
 culation of dividends under which C was paid. 
 
 The Cases. 
 
 Where the reinsured was insolvent and had paid a divi- 
 dend of 20 per cent before bringing suit against the rein- 
 surer, it was held that the full loss could be recovered, and 
 that "the original assured has no claim in respect of the 
 money so paid.''^ This last sentence seems too sweeping. 
 The assured had no distinctive claim on those funds, no 
 claim different from that of any other creditor of the insol- 
 vent company, but in common with the other creditors he 
 did have a claim, and it was that fact that made the deci- 
 sion right. The claim against the reinsurer was part of the 
 assets in the hands of the receiver to be administered for 
 the benefit of all the creditors. 
 
 It was objected in one case that the reinsurer could not be 
 liable to pay the reinsured any more than the assets of the 
 latter would pay to the insured. But the court held this 
 proposition manifestly unsound, and said that the liability 
 not the ability of the insurer was the measure of the liability 
 of the reinsurer. 2 In a subsequent case, the facts as stated 
 were a little different in that a dividend of 44 per cent had 
 been declared, and that " was all that has been or will be 
 paid to the original assured upon their policy." The court 
 decided the question as to the measure of the reinsurer's lia- 
 bility in the same way as in the last case, simply referring 
 to that for reasons. Now, if the dividend had been calcu- 
 lated and paid without reference to this claim against the 
 
 1 [Consolidated Real Estate & F. Ins. Co. v. Cashow, 41 Md. 74.] 
 
 2 [Hone V. Mut. Safety Ins. Co., 1 Sandf. (Super. Ct.) 137, 152.] 
 
 19 
 
§12] INSUEANCE: FIRE, LIFE, ACCIDENT, ETC. [CH. I. 
 
 reinsurer, then the case materially differed from the former, 
 and the decision is not well based, but, if, as is possible, 
 though not stated, this claim was one of the things that 
 entered into the calculation of that dividend, the ruling is 
 sound. ^ 
 
 If the original assured cannot sue the insurer, because, 
 for example, the period of limitation has run against him, 
 then, as there is no liability on the part of the insurer, he 
 cannot recover of the reinsurer.* 
 
 In Illinois the true doctrine has been clearly announced. 
 The original insurer became liable to pay to the assured the 
 sum of $6000, but actually paid $600 in full discharge of the 
 whole liability. The court held that only $600 could be re- 
 covered from the reinsurer. The cases above cited in this 
 section are noticed, and the court clearly makes the distinc- 
 tion between cases in which the insurer has actually settled, 
 and those in which full settlement has not been made; and 
 in the latter cases, although not able to pay in full, the in- 
 surer, the judge remarks, may with some show of reason 
 recover in full of the reinsurer. But to do so in the former 
 cases would enable it to realize a clear gain above what the 
 fire or other loss has caused it.^ 
 
 The United States Circuit Court holds that the reinsurer 
 may be sued by the receiver of the insolvent insui-ing com- 
 pany, for the full amount of the liability of the latter, with- 
 out reference to its assets,^ In both cases the matter was 
 still open, no final settlement had been made.] 
 
 § 12. "The original contract," says Emerigon, "subsists 
 precisely as it was made, without renewal or alteration. 
 The reinsurance is absolutely foreign to the first insured, 
 with whom the reinsurer contracts no sort of obligation. 
 The risks which the insurer has assumed constitute between 
 him and the reinsurer the subject-matter of the contract of 
 reinsurance, which is a new contract, totally distinct from 
 
 1 [Bkckstone v. Alemannia F. Ins. Co., 56 IS. Y. 104.] 
 
 2 [Eagle Ins. Co. u. Lafayette Ins. Co., 9 Ind. 446.] 
 
 3 [111.' Mut. F. Ins. Co. V. Andes Ins. Co., 67 111. 362.] 
 
 4 [Cashau u. N. W. Ins. Co., 5 Biss. 476 ; Ex parte Norwood, 3 id. 504.] 
 
 20 
 
CH. I. J OF THE NATURE OF THE CONTRACT. [§12 
 
 the first.^ (a) It cannot, therefore, in the strict sense, be 
 made with the party first insured, for this would be a simple 
 rescission of the contract;^ nor does the latter by it acquire 
 
 1 Emerigon, Traite des Assurances, c. 8, § 14; Herokenrath v. Am. Mut. Ins. 
 Co., 3 Barb. (N. Y.) Ch. 63. 
 
 2 [Sometimes however the word "reinsurance" is used to denote a contract 
 by wliich an old company sells out to a new one, or becomes consolidated with it, 
 so that the new company becomes liable directly to the insured. And it is always 
 competent for the reinsuring company to agree to be directly liable. Where a 
 London company sold out to an American company which reinsured all policies 
 in the former company held in this country, it was held that such a policy-holder 
 could sue the Americau company for a loss arising under his policy. Johannes 
 V. Phenix Ins. Co., 66 Wis. 60. An agreement by a reinsuring company to 
 pay to the holders of policies "all such sums" as the first company "may by 
 force of such policies become liable to pay," includes a policy-holder who is seek- 
 ing compensation in damages for a failure of the first company to keep alive its 
 contract by receiving payment of premiums when tendered. Fischer v. Hope 
 Mut. L. Ins. Co., 69 N. Y. 161, 164. In one case a company insured a man 
 for 115,000, and afterward reinsured $10,000 of the risk in two other companies. 
 A fourth company subsequently reinsured all the outstanding risks of the first 
 company, after which the insured died. An arbitration then took place between 
 the several companies, as the result of wliich it was decided that the fourth com- 
 pany was liable only for $5,000, the two original reinsuring companies being 
 liable for $10,000 which they had after the loss paid to the first company. On 
 this state of facts it was held that the fourth company was liable to the original 
 
 (a) There is no privity between the privies, and the insured risk be merely 
 
 reinsurer and the person originally in- transferred. See, e. ff., People's Mut. 
 
 sured ; the company reinsured has an Ass. Fund v. Boesse, 92 Ky. 290. An 
 
 insurable interest in the insured prop- agreement by one insurance company to 
 
 erty, hut as an "owner" he. has no pay the losses of another company like 
 
 other relation to it than as the insurer its own losses, is not reinsurance; under 
 
 under the original policy, the provisions the statutes of California, the first of 
 
 of which are not always applicable to these companies is liable directly to the 
 
 the new contract. If, for instance, that insured under policies issued by the 
 
 policy fixes a limited period for suits, second company. Whitney o. Ameri- 
 
 this period does not apply to an action can Ins. Co. (Cal.), 56 Pac. 50. See 
 
 upon the policy of reinsurance, and, Barnes t). Hekla F. Ins. Co., 56 Minn, 
 
 under a provision against assignment 38 ; Travellers' Ins. Co. i>. California 
 
 without the in.surer's consent, the Ins. Co., 1 No. Dak. 151. In general, 
 
 original insurer may give such consent however, under an agreement by one 
 
 as against the reinsurer, if he does not company to give a limited free insurance 
 
 thereby increase the risk. Faneuil tothepolicy holders of another company, 
 
 Hall Ins. Co. v. Liverpool, &c., Ins. which is insolvent, the substituted poli- 
 
 Co., 153 Mass. 63; Eoyal Ins. Co. v. oies need not conform to, and are not 
 
 Vanderbilt Ins. Co., 102 Tenn. 264 ; controlled hj, the original policy issued 
 
 Barnes v. Hekla F. Ins. Co., 56 Minn, by the second company. Brown v. 
 
 38; infra, § 12 B. The insured and U. S. Casualty Co., 88 Fed. Eep. 38 ; 
 
 reinsurer may, however, so contract, 90 id. 829. 
 through new papers, as to make them 
 
 21 
 
§ 12 A] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. I. 
 
 any rights against the reinsurer, in case of the insolvency of 
 the reinsured, or any claim upon the money to be paid to 
 the latter.^ If the insurer be not liable, he cannot recover 
 of the reinsurer, for the reason that the insurer has no in- 
 surable interest, and can suffer no loss, where there is no 
 liability.^ Where, in a policy of insurance there is a stipu- 
 lation that the reinsurer is to be liable only for his propor- 
 tion of the loss, if there shall be other insurance, other 
 insurance means other insurance of a like kind, that is, 
 other reinsurance.^ And an agreement by the reinsured to 
 retain an amount of the original insurance at least equal to 
 the amount of reinsurance is practically an agreement not 
 to further reinsure, and is not violated by allowing the 
 amount originally insured to be reduced by the lapse of a 
 policy to an amount slightly (from |2,800 to |2,500) less 
 than the amount reinsured.* That the interest sought to be 
 covered is an insurer's interest need not be stated, as this 
 is not material.* 
 
 [§ 12 A. An agreement of reinsurance is not within the 
 statute of frauds as a contract to answer for the debt or default 
 of another.^ When a charter of an insurance company does 
 not expressly give power to reinsure, but is made subject to 
 a General Insurance Act which does, a contract of reinsui'- 
 ance is not ultra vires.''] 
 
 assured for the full amount of |15,000 ; tliat the assured had accepted the agree- 
 ment for reinsurance made by them, and was not affected by the arbitration. 
 Glenn v. Hope Mut. L. Ins. Co., 1 N. Y. Supr. Ct. 463. 
 
 1 Alauzet, Traite General des Assurances. 152. 
 
 2 Eagle Ins. Co. v. Lafayette Ins. Co., 9 Ind. US ; New York Mar. Ins. Co. 
 V. Prot. Ins. Co., 1 Story, C. Ct. 458 ; Carpenter v. Providence Ins. Co., 16 Pet. 
 (U. S.) 495 ; Del. Ins. Co. v. Quaker City Ins. Co., 3 Grant's Cases (Penn.), 71. 
 
 3 Mut. Saf. Ins. Co. v. Hone, 2 Comst. (N. Y.) 235. 
 
 * Canada Fire & Mar. Ins. Co. v. Northern Ins. Co., 2 Ont. App. R. 873. 
 
 6 Mackenzie v. Whitworth, L. R. 1 Ex. D. 36 ; s. c. 2 Central Law J. 493 and 
 note ; s. o. affirmed 3 App. Cas. 281. The insured, in a policy of reinsurance, 
 means the reinsured. Carrington v. Com. Fire & Mar. Ins. Co., 1 Bosw. (N. Y. 
 Sup'r. Ct.) 152. 
 
 " [Bartlett v. Fireman's Fund Ins. Co., 77 la. 155. The contract of reinsur- 
 ance has been held to be within the Statute of Frauds, as a promise to pay the 
 debt of another. Egan v. Fireman's Ins. Co., 27 La. An. 368. But this cannot be 
 good law. Com. Mut. Mar. Ins. Co. v. Union Mut. Ins. Co., 19 How. (U. S.) 318.] 
 
 ' [Fame Ins. Co.'s Appeal, 83 Pa. St. 396, 406.] 
 22 
 
CH. I. J OF THE NATURE OF THE CONTEA.CT. [§ 12 D 
 
 [§ 12 B. In an ordinary policy used in making a contract 
 of reinsurance, the conditions that no action shall be main- 
 tained until after an award shall have determined the 
 amount oi the claim, nor unless begun within twelve months 
 after loss, do not affect the reinsurance. ^ Where a policy 
 of reinsurance provides that it is to be subject to the same 
 risks, conditions, privileges, assignments, mode of settle- 
 ment, &c., as are, or may he assumed or adopted by the in- 
 surer, the reinsurer is bound by the action of the insurer in 
 assenting to an assignment of the original policy to a pur- 
 chaser at a foreclosure sale.^ Such an assent ought not to 
 release the reinsurer even in the absence of express provi- 
 sion. A waiver of condition made by the insurer in good 
 faith, and not increasing the burden of the reinsurer, does 
 not release the latter.^] 
 
 [§ 12 0. Where a mutual company reinsures all its risks, 
 and has a surplus in the treasury consisting of cash pay- 
 ments by present and past policy-holders, with interest from 
 the investment of the same, this fund is not properly dis- 
 tributed among the policy-holders at the time of reinsurance, 
 but must go to all policy-holders past and present in such 
 proportion as they contributed to create the said fund, i. e. 
 according to the amount of their respective payments.* A 
 contract of reinsurance " on risks in the State of New York 
 and not elsewhere " does not include policies issued in New 
 York on property situated in Canada, or elsewhere out of 
 the State of New York, although such policies are sched- 
 uled, and the reinsurance policy refers to "the property 
 hereinafter described as per schedule annexed " as that 
 which is insured.^] 
 
 [§ 12 D. Where the defendant company made a contract 
 to reinsure the plaintiff, the policy purporting to be for a 
 year, without stating when the year began, and the original 
 
 1 [Jackson v. St. Paul F. & M. Ins. Co., 99 N. Y. 124.] 
 
 2 [Manufacturers' F. & M. Ins. Co. v. Western Ass. Co., 145 Mass. 419, 424.] 
 ' [Fire Ins. Ass. v. Can. F, & M. Ins. Co., 2 Ont. E. 481 (assent of insurer to 
 
 mortgage) ] 
 
 * [Smith V. Hunterdon County Mut. F. Ins. Co., 41 N. J. Eq. 473.] 
 ' [London, &c. Ins. Co. v. Lycoming Ins. Co., 105 Pa. St. 424.] 
 
 23 
 
§ 13] insurance: fiee, life, accident, etc. [ch. i. 
 
 policy issued some weeks before the reinsurance was for a 
 year from February 24, it was held that the reinsurance 
 covered the same period, and the defendant was held for a 
 loss within the original policy although occurring before the 
 date and issue of the reinsuring policy, and although the 
 latter did not show on its face that it was a policy of rein- 
 surance. Parol evidence of the facts of the case is admis- 
 sible to show that the contract is really one of reinsurance, 
 and so fix the date of the beginning of the risk.^ (a)] 
 
 § 13. Double Insurance. — When two or more policies are 
 taken out upon the same interest,^ it is called double insur- 
 ance. Policies usually contain a clause that in case of other 
 insurance, that is, double insurance, the several insurers 
 shall be liable, each for such a proportion of the loss as the 
 several amounts insured bear to each other. This prevents 
 the recovery of more than the whole loss by the insured. 
 And if there were no such provision, since the insured is 
 only entitled to an indemnity, he can recover no more than 
 this, however much may be the amount. He has his elec- 
 tion of two courses.^ He may sue each company for its 
 proportion, or he may resort to any one of the insurers to 
 recover his whole loss ; and in that case, the insurer paying 
 the loss will have claims over against the other insurers for 
 their respective proportions, the several concurrent insurers 
 being regarded as identical in interest.* This question of 
 
 1 [Phil. L. Ins. Co. v. Am. L. & Health Ins. Co., 23 Pa. St. 65.] 
 
 ^ [Insurance on the interests of different persons, though on the same goods, 
 is not double insurance. Wells v. Philadelphia Ins. Co.', 9 S. & E. 103, 107. 
 Insurance by the shipper and by the carrier is not double insurance, and does not 
 entitle one company to contribution from the other. Koyster v. Roanoke N. & B. 
 S. B. Co., 26 Fed. Rep. 492 (N. C), 1886.] 
 
 ' [The assured may consider each debtor as liable for a proportional share of 
 the loss, or he may require any one to pay the whole. Wiggin v. Suffolk Ins. 
 Co., 18 Pick. 145, 153.] 
 
 * Gordon v. London Assurance Co., 1 Burr. 492 ; Lucas v. Jefferson Ins. Co., 
 6 Cow. (N. y.) 635 ; Stacey v. Franklin Fire Ins. Co., 2 W. & S. (Penn.) 506 ; 
 
 (a) Under a usage by which reinsnr- knowledge, when there is nothing to 
 
 ance begins from the date of the rein- show the insxirer's intention to give a 
 
 surance contract, the reinsurer is not retrospective effect to the reinsurance, 
 
 liable for a loss which has already oc- Union Ins. Co. o. American F. Ins. Co., 
 
 curred at that date without either party's 107 Cal. 327, 
 
 24 
 
CH. I.J OF THE NATURE OF THE CONTRACT. [§13 
 
 double insurance will be further and more particularly con- 
 sidered when we come to speak hereafter of conditions with 
 reference to other insurance.^ 
 
 Newby v. Reed, 1 W. Black. 416 ; Peoria Mar. & Fire Ins. Co. v. Lewis, 18 111. 
 553 ; Baltimore Fire Ins. Co. v. Loney, 20 Md. 20 ; Sloat v. Koyal Ins. Co., 49 
 Pa. St. 14 ; Merrick v. Germauia Fire Ins. Co., 54 id. 277 ; Millaudou v. West, 
 ilar. & Fire Ins. Co., 9 La. 27. 
 1 Post, § 364. 
 
 25 
 
INSUKANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. 11. 
 
 CHAPTEE 11. 
 
 OP THE FORM OP THE CONTRACT AND THE PARTIES THERETO. 
 
 Analysis. 
 
 1. Parol Contracts (see eh. v. anal. C). 
 
 §§ 14-25. The eoutraot may be "by parol so as to bind the company, although 
 usage requires writing (§§ 14, 18), and even although the charter 
 (§§ 14, 15, 23) speaks of no other than written agreements. If 
 the charter expressly prohibits parol it becomes a question in the 
 law of ultra vires whether such a contract would be good (see also 
 eh. iv. anal. 5, and §§ 128, 129, 151). 
 
 § 22 A. The parol insurance usually made contemporaneously with the agree- 
 ment to issue a policy remains in force until the policy is issued in 
 proper form, and the condition in the policy that the premium must 
 be paid before liability attaches does not apply to the preliminary 
 parol contract. 
 If no policy is executed suit will lie on the memorandum. 
 
 § 23. The terms of a parol agreement for a policy are, in the absence of 
 
 specification, presumed to be the same as those of the ordinary 
 policies issued by the company on similar risks. 
 
 § 23 A. A jjarol contract for a policy will be specifically enforced. The 
 company will have to pay for a loss occurring after the agreement 
 to give a policy and before its issue, unless it is specially agreed 
 otherwise. 
 
 § 23 B. Sometimes doubtful whether the agreement is one of insurance final, 
 or for the issue of a policy, and custom is competent evidence. The 
 facts may show only a personal agreement of the agent to procure 
 insurance. 
 
 § 23 C. The statute of frauds does not affect fire-insurance contracts even 
 though they cover several years ; and though a peril within the 
 statute is included in a fire contract, it is good as a fire risk. 
 
 § 23 D. On principle an oral contract of insurance intended to be final is good, 
 as well as a contract looking to the issue of a policy, when the 
 insurer is a private party and no statute intervenes. Corporations, 
 however, have only such powers as are granted to them, and not, 
 as with individuals, all that were not taken away from them. The 
 first question is. How far does the law under which the company 
 exists authorize it to make oral contracts ? The second is. If it 
 has exceeded its powers, is the contract void ? And this depends 
 on the legislative intent which, when not expressed, is to be judged 
 in the light of the purpose of the law, the persons for whose benefit 
 it was made, the injustice of allowing a person to repudiate a con- 
 tract and retain the benefit of it, the propriety of protecting an 
 
 26 
 
CH. II.J FORM OF CONTRACT AND PARTIES THERETO. 
 
 innocent person who has given value, and the equitable principle 
 that substance, not form, is to be looked to. Mere informality 
 should not vitiate the contract unless the legislative intent to that 
 effect is very clear. 
 
 § 24. A parol agreement to extend or modify a policy is good even though 
 
 it is under seal, and the authority of agents to make such oral agree- 
 ments may be inferred from the course of dealing. 
 
 § 25. The rule in England is doubtful. It is also a question whether 
 
 Congress can declare unstamped contracts void, so as to affect them 
 in any other than the Federal courts. 
 
 2. The Form. 
 
 § 26. Policies are usually very lax and informal, but a long course of de- 
 
 cisions has fixed the meaning of the terms in general use. 
 
 § 27. The form is unessential, but the terms must be specified or fixed by 
 
 previous dealings or in some other way. Signature of de facto 
 officers sufficient. Seal not necessary unless positively required by 
 the charter (see §§ 16, 17). A contract executed without seal by 
 mutual mistake will be reformed. A policy may be left blank and 
 the names of the insured filled in at any time. The policy must 
 be headed with the company's name (Pub. Stats. 720), and if varying 
 from the standard form the slips, ridei's, &o., must be signed by the 
 officer or agent (Jd. 713). 
 
 § 28. Sometimes the wording is so loose that it is doubtful if the instrument 
 
 contains any promise. 
 
 § 29. The Policy. It is universal custom to embody the terms of the con- 
 
 tract in a policy, specifying the names of the parties, the premium, 
 risk, time, subject-matter, conditions, and limitations. 
 
 § 29 A. What is part of the Policy. The application, if in writing, is made a 
 
 part of the policy by reference to it as such in the policy, if there is 
 no statute to the contrary. (See also §§ 29, 29 C, 31.) Indorse- 
 ments and marginal notes are part of the policy, or not, according 
 to the justice of the case and the proper evidence of the intent of 
 the parties. 
 
 § 29 B. Parol transactions prior to or contemporaneous with the policy and 
 not referred to in it as part of it are superseded by it, and avail only 
 to make a case of misrepresentation (see also § 29 C), reformation, 
 or non-delivery. Prospectus. 
 
 § 29 C. Statutes sometimes require annexation of the application to the policy. 
 
 3. Kinds of Policies. 
 
 § 30. Valued and open (see also §§ 31, 32); wager and interest (§ 33); 
 
 time and voyage (§ 34). 
 § 31. Sometimes not easy to determine whether a policy is valued or not. 
 
 A valuation in the application referred to in tlie policy is sufficient. 
 
 The contract is not less a valued one because the rule fixed on by 
 
 the parties admits of variation day by day. 
 § 31 A. Statutes declaring that policies on real estate shall be deemed valued 
 
 policies in case of total loss. 
 § 32. The same policy may be open as to one article and valued as to 
 
 another. 
 
 21 
 
§ 14] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [ CH. II. 
 
 § 33. Wager and interest policies (see § 74). 
 
 § 34. Time and voyage policies. 
 
 4. Parties and their Disabilities. (See also next chapter. ) 
 
 § 35. Private parties able to contract generally, and corporations established 
 
 for the purpose may be parties to the contract of insurance. 
 § 35 A. Infants. Unlicensed merchants. Parties joining. 
 
 § 14. Contract may be by Parol. — However great may be 
 the inconvenience to the parties, and however injudicious it 
 may be to leave the terms of the "contract to the uncertain- 
 ties of even the most accurate and retentive memory, 't 
 seems, nevertheless, that a contract of insurance, the terms 
 of which are not in writing, is sufficient to bind the parties, 
 when there is no statute law to the contrary, {a) 
 
 A learned writer, ^ indeed, doubts whether an action upon 
 a contract merely oral would be now sustained, since the 
 usage of written contracts has become so ancient and so uni- 
 versal that it may be considered to have acquired the force 
 of law. And this view seems to have been adopted to its 
 full extent by the Supreme Court of Ohio,^ as well upon the 
 ground of (what was said to be) universal commercial usage 
 and the authority of the books, as upon the ground that the 
 charter required the policy to be in writing, — the question 
 being whether a policy, which had become void by the sale 
 
 1 1 Dner, Ins. 60. 
 
 2 Cockerill v. Cincinnati Mut. Ins. Co., 16 Ohio, 148. See § 18. 
 
 (ffi) Brown w. Franklin Mut. F. Ins. Mass. 341. An oral agreement to insure 
 
 Co., 165 Mass. 565 ; Stehliok v. Mil- for a longer period than that stated in 
 
 waukee Mechanics' Ins. Co., 87 Wis. the contract will not be enforced in the 
 
 322; Hicks v. British Am. Ins. Co., absence of a consideration; and if the 
 
 43 N. Y. S. 623 ; Phoenix Ins. Co. v. intention is to contract in writing upon 
 
 Ireland (Kans. App.), 58 Pac. 1024; payment of the premium, negotiations 
 
 Fidelity & Cas. Ins. Co. o. Ballard for insurance do not constitute a con- 
 
 (Ky.), 28 Ins. L. J. 227. In order that tract. New York L. Ins. Co. v. McMas- 
 
 a contract of insurance may bind the ter, 87 Fed. Eep. 63 ; 90 id. 40. See 
 
 parties, all the essential elements of the Bankers' Ace. Ins. Co. v. Rogers, 73 
 
 contract must be agreed upon ; but, Minn. 12. Parol insurance with an au- 
 
 when it is impossible at the time to thorized agent is valid and becomes at 
 
 obtain important facts affecting the sub- once effective when there is no definite 
 
 ject of their dealings, the parties may agreement as to date. Potter v. Phenix 
 
 make a general agreement to accomplish Ins. Co., 63 Fed. Rep. 382 ; Hardwick 
 
 their purpose as well as they can. v. State Ins. Cq., 20 Oregon, 547, 551. 
 Scammell v. China Mutual Ins. Co., 164 
 
 28 
 
OH. II.] FORM OF CONTRACT AND PARTIES THERETO. [§15 
 
 of the property insured, could be revived by a parol agree- 
 ment. But upon neither ground is the decision supported 
 by the authorities. Indeed, it seems to be no longer an 
 authority in Ohio itself. ^ 
 
 § 15. Special Provisions of Charter as to Form. ■ — It is 
 doubtless generally true that a corporation cannot by its 
 own act enlarge its own capacities, powers, or rights; but 
 it would be strange to say that it cannot thus voluntarily 
 incur liabilities. If a corporation by a corporate act appoints 
 an agent under any name or title whatever, for the purpose 
 of making, in its own behalf, any contract which it has a 
 right to make, can the corporation itself impeach such a 
 contract, made in its name by that agent, by alleging its 
 own want of power to make such an appointment, or to con- 
 tract by such an agent? Such a doctrine is in violation of 
 all principle.^ 
 
 Even an express provision in the act of incorporation that 
 policies subscribed by the president and countersigned by 
 the secretary, or however else, shall be binding on the cor- 
 poration, merely specifies one sufficient mode of making the 
 contract, and affords no just inference that this mode is 
 exclusive of others, or that contracts not in writing are 
 invalid.^ 
 
 ^ Dayton Ins. Co. v. Kelly, 24 Ohio St. 345. This case holds that the pro- 
 visions of a charter requiring "all policies and contracts " for insurance to be 
 signed by the president does not have reference to intermediary contracts for 
 policies, but only to, the finaLcontract. or policy. 
 
 2 Bulkley v. The Derby Fishing Co., 2 Conn. 252, 254. And see also Fuller v. 
 Boston Mut. Fire Ins. Co., 4 Met. (Mass.) 206 ; State Beard of Agriculture v. R. 
 E. Co., 47 Ind. 407; Angell on Corp. (10th ed.) 243 ; National Bank v. Graham, 
 100 U. S. 699 ; New England Fire & Mar. Ins. Co. v. Schettler, 38 111. 166. 
 
 3 Trustees of First Baptist Church in Brooklyn u. Brooklyn Fire Ins. Co., 
 19 N. y. (5 Smith) 30o ; Constant v. The Alleghany Ins. Co., 3 Wall. (U. S. 
 C. C.) 313 ; s. 0. Am. Law Reg. N. s, 1, 116. See also New England Mut. Ins. 
 Co. d. De Wolf, 8 Pick. (Ma.ss. ) 56, 62 ; City of Davenport v. Peoria Mar. & Fire 
 Ins. Co., 17 Iowa, 276; Franklin F. Ins. Co. w. Colt, 20 Wall. (U. S.) 560 ; s. o. 
 4 Ins. L. J. 367 and note, which holds that an agent may, after loss, fill upon 
 demand a policy in accordance with the agent's parol agreement ; New Eng- 
 land. Fire & Mar. Ins. Co. v. Schettler, 38 111. 166 ; Security Fire Ins. Co. v. 
 Kentucky Mar. & Fire Ins. Co., 7 Bush (Ky.), 81 ; Hening v. United States Ins. 
 Co., 2 Dillon, C. Ct. 26, denying s. o. 47 Mo. 430 ; post, §§ 16, 23. But see contra, 
 post, § 63. That the current of foreign authorities is in the same direction, see 
 post, §§20, 21, In Lower Canada it has been held that the mode specified in 
 
 29 
 
§ 17] INSURANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. II. 
 
 § 16. The ancient stringency of the common law required 
 that corporations should execute their contracts under their 
 corporate seal, and held, that they could only thus con- 
 tract. But this doctrine is now exploded. ^ (a) The statu- 
 tory provisions referred to would seem to intend rather to 
 give to the modern doctrine the force of legislative sanction, 
 than to preclude the corporation from the right to contract 
 under the corporate seal, if they please, or to designate any 
 particular mode which alone shall be binding upon them.^ 
 (s) The insured is also thereby relieved from the necessity 
 of proving affirmatively that the particular officers are 
 clothed with power which authorizes them to contract for 
 the corporation.^ 
 
 § 17. And such, no doubt, is the spirit of the later Eng- 
 lish cases. In Prince of Wales Life and Educational Assur- 
 ance Company v. Harding,* which was a case where the 
 charter provided that the seal of the company should not be 
 affixed to policies except by the written order of three direc- 
 
 the charter is exclusive. Montreal Ins. Co. «. McGillivray, 9 L. C. 488, revers- 
 ing s. 0. 8 id. 401 ; while in Upper Canada it was held that, although under a 
 clause in the charter which provided that " any policy signed hy the president 
 and countersigned by the secretary, but not otherwise, shall be deemed valid and 
 binding on the company,"" policy issued without the signatures was invalid, 
 and the company would not be liable in a suit upon such a policy, yet they 
 could be compelled to execute a valid policy as of the date when this invalid 
 policy was issued. Perry v. Newcastle Dist. Mut. Fire Ins. Co., 8 U. C. (Q. B.) 
 363. See also post, § 23 et seq. 
 
 1 2 Kent's Com. 288 ; Bank of Columbia v. Patterson, 7 Cranc.h, 299 ; Hamil- 
 ton V. Lycoming Mut. Ins. Co., 5 Barr (Pa.), 339 ; s. c. 10 Law Eeporter, 448 ; 
 Copper Miners v. Fox, 3 Eng. Law & Eq. 420. 
 
 ^ [When the charter of a company provides that all policies shall be under 
 seal, a policy not under seal cannot be produced as evidence in a suit by the 
 company to recover the premium on it. ■ Lindauer v. Delaware Mut. Safety Ina. 
 Co., 13 Ark. 461, 470.] 
 
 8 Safford V. Wyckotr, 4 Hill, 442, 446, "Walworth, Ch. 
 
 4 1 E., B. & E. 183. 
 
 (a) In England it was early held the insurer's corporate seal, an emblem 
 
 that a policy of insurance is not a or symbol printed there by the printer, 
 
 specialty. 2 Saund. 202 a,, n. (15). Met'n L. Ins. Co. v. Anderson, 79 Md. 
 
 Policies not declared on as sealed 375, 379. In Massachusetts the fac- 
 
 instruments, and merely reciting that simile of a seal printed on a blank 
 
 they were signed and delivered by the policy form does not make the policy a 
 
 officers, will not be treated as specialties sealed instrument. McCarthy v. Met'n 
 
 simply because they have, iu place of L. Ins. Co., 162 Mass. 254. 
 
 30 
 
CH. II.] POEM OF CONTRACT AND PARTIES THERETO. [§19 
 
 tors, a policy issued under seal, but without any order of 
 the directors, was held to be valid and binding upon the 
 company, for reasons substantially the same as those given 
 in the American decisions. The object of the legislature 
 was said to be to impose upon the directors the duty towards 
 them of observing certain formalities, for the better protec- 
 tion of the stockholders. If they failed in that duty, they 
 would be liable for their negligence to the stockholders, but 
 the absence of the prescribed formality would not render the 
 contract void as against the company.^ So, where the policy 
 is by the charter required to be under seal, a policy issued 
 without a seal may be construed as an interim receipt.- An 
 indorsement not under seal on a policy under seal is a new 
 contract.^ 
 
 § 18. But corporations are not the only underwriters. 
 Private individuals may insure ; and if a party, for a good 
 consideration, should take upon himself the risk of theft 
 upon a quantity of specie in its passage from one port to 
 another, and it should be stolen, a court of justice would 
 doubtless hesitate long before it would sustain the defend- 
 ant's refusal to indemnify, on the ground that the contract 
 was merely oral, against the irresistible equity of the plain- 
 tiff's claim. Usage, it is said, requires it. But, aside from 
 the fact that usage may be waived by the consent of parties, 
 its requisitions cannot be said to be so inexorable as virtu- 
 ally to import a new clause into the Statute of Frauds. ^ 
 
 § 19. It is not denied that by the principles of the com- 
 
 1 See also CoUett v. Morrison, 9 Hare, 162. 
 
 2 "Wright V. London Life Ass. Co., Wright v. Sun Mut. Life Ins. Co., 29 U. C. 
 (C. P.) 221, carried to the Supreme Court on appeal, 
 
 3 Shertzer v. Mut. Fire Ins. Co., 46 Md. 506 ; s. c. 8 Ins. L. J. 72. 
 
 * Even the Supreme Court of Ohio, although it has several times referred to 
 the case of Cockerill v. Cincinnati Mut. Ins. Co., 16 Ohio, 148, with apparent 
 approval, has, in a later case (Palm v. Medina Ins. Co., 20 Ohio, 529), apparently- 
 taken it for granted that a contract to insure need not be in writing. See also 
 ante, § 15 n. A contract for parol insurance for a year, or from year to year, is 
 not within the Statutes of Frauds. Walker v. Metropolitan Ins. Co., 66 Me. 371 ; 
 Trustees of First Baptist Church in Brooklyn v. Brooklyn Fire Ins. Co., 19 N. Y. 
 (5 Smith) 305, 308 ; Sanborn v. Fireman's Ins. Co., 16 Gray (Mass.), 448; Fishti. 
 Cottenet, 5 Hand. (N. Y.) 638 ; Security Fire Ins. Co. v. Kentucky Mar. & Fire 
 Ins. Co,, 7 Bush (Ky.), 81. 
 
 31 
 
§ 20] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. II. 
 
 mon law a verbal agreement would be sufficient; and it 
 seems difficult to see why a party, in the absence of any 
 statutory regulations to the contrary, may not be heard in a 
 court which administers the law to which he appeals, and 
 which can find nothing in its principles adverse to his claim. 
 It was accordingly said, in McCulloch v. The Eagle Insur- 
 ance Company,! ^q \^q certain that if a contract be made, the 
 mere want of a policy will not prevent the plaintiff from 
 recovering. And more recently, Mr. Chancellor Walworth, 
 after remarking that the Stamp Laws in England, and the 
 respective Codes of France and Spain, require that the con- 
 tract be in writing, observed,^ that the assertion of Millar^ 
 that the importance of the contract of insurance, and the 
 singularity of those obligations which it is intended to cre- 
 ate, have in all commercial coimtries rendered a deed in 
 writing essential to its validity, is unsupported by authority, 
 and that he has been unable to find anything in the common 
 law which requires the contract to be in writing, though the 
 term "policy" undoubtedly imported a written instrument. 
 
 § 20. Nor even in Prance, although the Code de Commerce 
 requires that the contract be reduced to writing, would a 
 verbal agreement be ipso facto null and void. Any written 
 evidence that an agreement has been made will let in the 
 plaintiff to show what the contract is; and even this is not 
 necessary unless the defendant deny that there ever was any 
 agreement of any kind.* And if he do deny, the better 
 opinion is that he may be put upon his oath ; ^ which, how- 
 ever, Emerigon does not admit. ^ ^ 
 
 1 1 Pick. (Mass.) 278. 
 
 2 Sandford v. Trust Fire Ins. Co., 11 Paige (N. Y.), 547. See also Hamilton 
 V, Lycoming Mut. Ins. Co., 5 Barr (Pa.), 339, s. c. 10 Law Reporter, 498, where 
 Gibson, C. J., said that a few years before a case was tried before him on a 
 parol agreement, and though the case was defended by one of the soundest 
 lawj-ers at the Philadelphia bar, the point that the contract should be in writing 
 was not made. As to the effect of the Stamp Laws, see post, § 25. 
 
 8 Ins. 30. ♦ 
 
 * Rogron, Code de Commerce Expliqu^, art. 332, note ; Alauzet, Traits G^n. 
 des Assurances, 181, 401, who cites Potior, Merlin, and others. 
 
 6 Ibid. 
 
 8 Traits des Assurances, o. 2, §. 1. In Holland the doctrines of fire, marine, 
 and other insurance have been incorporated into the Commercial Code. The 
 32 
 
CH. II.] FOEM OF CONTRACT AND PAETIES THEEETO. [§ 21 
 
 "Writing cannot be regarded," says Alauzet,^ "as neces- 
 sary to the validity of the contract of insurance." "This 
 form," says Pothier, "is absolutely foreign to the substance 
 of the contract." And Merlin afterwards held it to be clear 
 that writing was only necessary to establish the existence of 
 the contract against those who would deny it. The law, in 
 truth, cannot change the essence of a contract which it has 
 not created, and which exists independently of it, because it 
 is of the law of nations. But it is entirely competent to 
 our law to regulate the conditions necessary to the proof of 
 the contract; and under this relation it becomes a contract 
 subject thereto. To say, however, that insurance itself shall 
 have no existence except under these conditions, and that 
 one of the parties may admit all the allegations of the other, 
 and yet refuse to comply with the terms of the contract be- 
 cause it is not in writing, would be to establish an abuse 
 against truth and the nature of things. The Code de Com- 
 merce is far from containing any such provision; and always 
 when it has made any requirement on pain of nullity, it has 
 expressly said so. It is well known what chaos has been 
 introduced into another branch of the law by the technical 
 distinction between forms which are substantial and those 
 which are not ; between those prescribed on pain of nullity 
 and those which are only directory. Nothing of the like 
 exists in commercial law. If the Code does not pronounce 
 nullity expressly, clearly, and in a peremptory manner, it 
 cannot be invoked. In such caseg equivalents may be sub- 
 stituted for its prescriptions. 
 
 § 21. It was said, in the Trustees of the First Baptist 
 
 twelfth article of Title 9, the 257th of the Code, is as follows : " The contract of 
 insurance subsists as soon as the agreement has been determined between the 
 parties, and the reciprocal rights and obligations of the insurers and the insured 
 commence from that moment, even before the signature of the policy. The 
 contract imports the obligation of the insurers to sign the policy within the time 
 agreed upon and deliver it to the insured." *Eogron, Code de Commerce Ex- 
 pliqu^, p. 245. Le Guidon, art. 11, c. 1, speaks of parol agreements to insure, 
 and prohibits them. 
 
 1 Ubi supra. The whole subject is discussed with great ability, and all the 
 learning up to that time, in Montreal Ins. Co. v. McGillivray, 9 L. C. (Q. B.) 
 488, reversing s. c. 8 id. 401. 
 
 VOL. I. — 3 33 
 
21] 
 
 insurance: fire, life, accident, etc. 
 
 .[CIJ. II. 
 
 Society in Brooklyn v. Brooklyn Fire Insurance Company, 
 that an agreement that an existing policy for a year should 
 be in existence from year to year after its expiration may 
 be by parol, and yet be valid, as the reasons which require 
 policies to be in writing do not apply to such an agree- 
 ment. ^ (a) What these reasons are do not appear in the 
 opinion of the court, and it may well be doubted if any dis- 
 tinction like that so intimated does in fact exist. And the 
 New York Court of Appeals, ^ altlrough the case before it was 
 rather one of the renewal of a contract, the terms of which 
 were fixed in writing, than the making of a new one, has 
 recently broadly asserted, that "to deny that parol agree- 
 ments to insure are valid would be simply to afiBrm the in- 
 capacity of parties to contract, when no such incapacity 
 exists according to any known rule of reason or of law." 
 
 1 18 Barb. (N. Y.) 69. 
 
 2 Trustees of the First Baptist Church w. Brooklyn Fire Ins. Co., 19 N. Y. 305. 
 
 (a) An existing policy may also he 
 renewed by parol. Springer v. Anglo- 
 Nevada Ass. Corp., 11 ST. Y. S. 533 ; 
 Scott V. Home Ins. Co., 53 Wis. 238 ; 
 McCahe v. Mtaa. Ins. Co. (No. Dak.), 
 81 N. W. T. 26 ; Baldwin v. Phcenix 
 Ies. Co. (Ky.), 54 S. W. 13 ; Western 
 Ass. Co. V. McAlpin (Ind. App.), 55 
 N. E. 119. In an oral contract "tore- 
 new his insurance for one year," by 
 force of the term "renew," "the com- 
 pany, as well as the property to be in- 
 sured, and the terms of the policy, jfere 
 sufficiently designated." Abel «. Phce- 
 nix Ins. Co., 62 N. Y. S. 218. A parol 
 agreement, terminable at any time upon 
 notice to either party, that a fire insur- 
 ance policy shall be renewed from year to 
 year, is not within the statute of frauds. 
 Phcenix Ins. Co. v. Ireland (Kans. App.), 
 58 Pac. 1024. In England it has recently 
 been held that an accident policy which 
 provides for the payment of a preTnium 
 for one year, and which is capable of 
 renewal only by the insurer's consent, 
 is not a continuing policy for all pm'- 
 poses, but, upon each renewal, there is 
 a new contract year by year. Stok"ll 
 
 34 
 
 V. Heywood, 74 L. T. 781. In this 
 country it has been held that a policy 
 of life insurance providing for the pay- 
 ment of annual premiums by the as- 
 sured is not a contract for one year, with 
 the privilege of renewal from year to 
 year by the payment of the premiums, 
 but a contract for the life of the as- 
 sured, subject to forfeiture and ter- 
 mination for non-performance of its 
 conditions ; and it is incumbent on 
 the party pleading such forfeiture to 
 clearly establish the defence. McMas- 
 ter V. New York L. Ins. Co., 90 Fed. 
 Kep. 40. See Klein v. Liverpool, ka. 
 Ins. Co. (Ky.), 67 S. AV. 250. A lapsed 
 policy is not revived, if a warranty con- 
 tained in the application for revival is 
 untrue. Bottomley v. Met'n L. Ins. 
 Co., 170 Mass. 274. See Burson v. 
 Phila. Fire Ass'n, 136 Penn. St. 267. 
 
 A new substituted policy which is 
 void for non-compliance with a statute 
 cannot be validated by relying upon the 
 preliminary oral agreement, which is 
 presumed to be similar thereto. Green 
 V. Liverpool, &c. Ins. Co., 91 Iowa, 
 615. 
 
CH. II.] FOEM OF CONTEACT AND PAETIES THERETO. [§ 22 A 
 
 The distinction above referred to, suggested by the court 
 below in the same case, seems to have been disregarded. 
 
 § 22. The cases already cited are strictly cases of agree- 
 ments looking to the issue of a policy ; and most of the terms 
 of the several agreements are in some form in writing. But 
 the case of the Mobile Marine Dock and Mutual Insurance 
 Company ^ was less embarrassed by written evidence of any 
 kind. In this case there was a simple memorandum in fig- 
 ures,^ alleged to be in the handwriting of the secretary of 
 the insurance company, and the offer was to show by this 
 and oral evidence that a contract of insurance against fire 
 was made between the parties. The insurers objected that 
 both the memorandum and the oral evidence were inadmis- 
 sible, on the ground that it was not competent by parol evi- 
 dence to establish a contract of insurance. But the court 
 held that an oral agreement for insurance against loss on 
 goods by fire was valid. 
 
 § 22 A. A parol agreement may be made by an agent, and 
 takes effect forthwith, although entered into contemporane- 
 ously with an agreement by the insurers to deliver, and the , 
 insured to accept and pay for, as a substitute therefor, a 
 policy in writing in the usual form, and remains in force till 
 the delivery or tender of such policy. Until then the condi- 
 tion usually inserted in such policies, making prepayment of 
 the premium necessary to the validity of the contract, has 
 been held to have no operation by implication. ^ Nor will a 
 mere demand of the premium, without a tender of the pol- 
 icy, relieve the insurers from responsibility under such parol 
 agreement;* and under it the insured may recover, although 
 he may have received a policy, in pursuance of the agree- 
 ment, if by its terms such policy becomes valid only on 
 
 1 31 Ala. 711. 
 
 
 
 2 This memorandum was as follows : - 
 
 - 
 
 
 "5250 . . 7d'ys . 
 
 . 1-8 . 
 
 . 6.56 
 
 4650 . . 2 " 
 
 . l-2'O . 
 
 . 2.32 
 
 9900. 3-16 to N. 0. 18.. 56 —$27.44." 
 
 8 Kelly V. Com. Ins. Co., 10 Bosw. (N. Y.) 82; Dayton Ins. Co. ^. Kelly, 24 
 Ohio St. 345. See also post, §§ 23, 44, 340. 
 
 * Kelly V. Com. Ins. Co., svpra. 
 
 35 
 
§ 23] liNSURANCE : FIRE, LIFK, ACCIDENT, ETC. [CH. II. 
 
 being countersigned by the agent, and in fact bas not been 
 so countersigned. 1 [If no policy is executed a suit can be 
 maintained on the memorandum. ^ A parol contract of in- 
 surance is good though nothing is said about the premium, 
 where the parties have dealt togethei- for several years and 
 know the rate of premium, and the agents have been in the 
 habit of giving the plaintiff credit for the premium.^] And 
 the rule of damages is the same as under a written policy.^ 
 But if a policy has once been delivered which proves to be 
 invalid by the fault of the insured, he cannot disregard that, 
 and fall back upon the verbal agreement.^ 
 
 § 23. In the case of Sanborn et al. v. Fireman's Insurance 
 Company,^ the point was again distinctly made that the con- 
 tract of insurance is required to be in writing, and that a 
 suit at law is not maintainable on an oral agreement. After 
 elaborate consideration, in which all the authorities were 
 reviewed, the conclusion to which the court arrived was, 
 that no principle of the common law requires that this con- 
 tract, any more than any other simple contract, made by 
 competent persons upon a sufficient consideration, should be 
 evidenced by a writing. And the oral agreement was up- 
 held, although the charter of the defendant company pro- 
 vided that they should have a right to make contracts by 
 the signature of the president for the time being, or by the 
 
 1 Kelly V. Cnm. Ins. Co., supra. 
 
 2 [State F. & M. Ins. Co. w. Porter, 3 Grant's Gas. 123.] 
 8 [Boice V. Thames, &c. Marine Ins. Co., 38 Hun, 246.] 
 
 4 Rockwell V. Hartford Fire Ins. Co., 4 Abb. Pr. Rep. (N. Y.) 179 ; Ins. Co. 
 V. Ins. Co., 19 How. (U. S.) 318; Ellis u. Ins. Co., 50 N. Y. 402. In Ela v. 
 French, 11 N. H. Zf>&, an action against a consignee on a parol agreement to in- 
 sure certain books, without any agreement as to the amount, was sustained, the 
 rule of damages being the value of the books, on the presumption that the in- 
 surance was to be for that value, 
 
 5 Merchants' Mut. Ins. Co. v. Lj'man, 15 Wall. (P. S.) 664. 
 
 6 16 Gray (Mass.), 448, decided in 1860, but not published till 1871. Ap- 
 proved and followed in Relief Fire Ins. Co. v. Shaw, 4 Otto (U. S.), 574. See also, 
 to the same point, AVestchester Fire Ins. Co. v. Earle, 33 Mich. 143; Humphrey 
 ». Hartford Fire Ins. Co., Dist. Ct., 9 Reptr. 106 ; Alabama Gold Life Ins. Co. v. 
 Mayes (Ala.), 9 Reptr. 75 ; Taylor v. Germania Ins. Co., 2 Dill. C. Ct. 282 ; 
 Baubie v. jEtna Ins. Co., id. I.'i6 ; Hartford Fire Ins. Co. o. Farrish, 73 111. 166 ; 
 Franklin Fire Ins. Co. v. Taj'lor, 52 Miss. 441 ; Northrup v. Mississippi Valley 
 Ins Co., 47 Mo. 435. 
 
 36 
 
CH. II.] FOEM OF CONTRACT AND PARTIES THERETO. [§ 23 
 
 signatures of such other persons, and in such form and with 
 such ceremonies of authentica.tion as they may by their rules 
 and by-laws direct, the court regarding this provision of 
 their charter as merely enabling,' and not restrictive of the 
 general power to effect contracts in any other lawful and 
 convenient mode, — a view which must now be considered as 
 the well-settled doctrine by the nearly universal concurrence 
 of the authorities. The distinction between a contract to 
 insure or to issue a policy of insurance, and the policy itself, 
 is obvious, and constantly recognized by the courts. The 
 former may be by parol or in any form. The latter may be 
 regulated and controlled by statutes or by the by-laws of the 
 company issuing it.^ The terms of the agreement for a pol- 
 icy not specified are presumed to be those of the ordinary 
 policies issued by the same insurers on similar risks. ^ It 
 is obvious, however, that conditions as to indorsement can- 
 not be complied with. In such cases notice will be suffi- 
 cient.^ And perhaps not even that is necessary, as the 
 contract may be one for a policy upon which shall be made 
 the indorsements and the notices required by the conditions.* 
 
 ' Rhodes v. Railway Passenger Ins. Co., 5 Lans. (N. Y.), 71 ; Walker v. Metro- 
 politan Ins. Co., 56 Me. 371 ; Post v. Mtna. Ins. Co., 43 Barb. (N. Y.) 351 ; Ken- 
 nebec Co. 1!. Augusta Ins. & Banking Co., 6 Gray (Mass.), 204; Baxter v. 
 Massasoit Ins. (^o., 13 Allen (Mass.), 320 ; Audubon v. Excelsior Ins. Co., 27 
 N. Y. 216 ; Western Massachusetts Ins. Co. a. Duffey, 2 Kan. 347 ; Union Mut. 
 lus. Co. V. Commercial Mut. Mar. Ins. Co., 2 Curtis, C. Ct. 524 ; s. c. affirmed 
 in the United States Supreme Court, 19 How. 318 ; Security Fire Ins. Co. v. 
 Kentucky Mar. & Fire Ins. Co., 7 Bush (Ky.), 81 ; Hartford Ins. Co. v. Wilcox, 
 57 111. 180 ; Insurance Co. v. Colt, 20 Wall. (U. S.) 560 ; ante, § 15 ; Putnam v. 
 Home Ins. Co., 123 Mass. 324, 328. 
 
 2 Eureka Ins. Co. v. Robinson, 56 Pa. St. 256 ; Hubbard u. Hartford Fire 
 Ins. Co., 33 Iowa, 325; Oliver v. Mut. Com. Mar. Ins. Co., 2 Curtis, C. Ct. 277 ; 
 Fuller V. Madison Ins. Co., 36 Wis. 509 ; (F. P.) Barre v. Council Bluff's Ins. 
 Co., 76 la. 609 ; Smith v. State Ins. Co., 64 la. 716. A company will be pre- 
 sumed to intend to issue its customary kind of policy in the absence of any aver- 
 ment and proof to the contrary. De Grove v. Metropolitan Ins. Co., 61 N. Y. 
 594, 602. But although the conditions of an oral contract upon whicli a policy 
 is to be issued are prima facie those of the ordinary policy applicable to the case, 
 parol evidence is admissible to show any particular condition that was agreed on. 
 Salisbury v. Hekla F. Ins. Co., 32 Minn. 458. 
 
 3 Eureka Ins. Co. c. Robinson, 56 Pa. St. 256 ; McQueen v. Phoenix Mut. 
 Ins. Co., Sup. Ct. Canada, 3 Legal News, 336 ; De Grove v. Metropolitan Ins. 
 Co., 61 N. Y. 594. 
 
 * Dayton Ins. Co. v. Kelly, 24 Ohio St. 345. See also ante, § 22. 
 
 37 
 
§ 23 C] INSUKANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. II. 
 
 [§ 23 A. Recent decisions are to the same effect as those 
 of earlier date. There can be no doubt in this country of 
 the validity of a parol contract of insurance,^ and it may be 
 enforced specifically, or by action for its breach. ^ A valid 
 parol insurance may be made in a mutual company formed 
 under the New York laws of 1857, ch. 739. The company 
 may bind itself by parol to issue a policy, and will have to 
 pay a loss occurring before the actual issue. ^] 
 
 [§ 23 B. When it is doubtful from the evidence whether 
 an agent of an insurance company and the plaintiff had 
 entered into a parol agreement of insurance or a parol agree- 
 ment for the issue of a written policy, evidence should be 
 admitted of the custom of other insurance companies as to 
 matters of this kind.* The facts may show that the parol 
 agreement was not a contract of insurance but merely an 
 agreement on the part of the agent that he would insure the 
 property and keep it insured for the plaintiff. In such case 
 the matter lies entirely between the plaintiff and the agent 
 personally.^] 
 
 [§ 23 C. The Statute of Frauds does not make a writing 
 necessary to insurance.^ It has been held that a parol con- 
 tract to insure for three years or more is not within the 
 Statute of Frauds, for the contingency may happen and the 
 contract end within a year.'' (a) And in another case a 
 
 ^ [Commercial Union Ass. Co. v. State, 113 Ind. 331 ; Lingenfelter v. Phoenix 
 Ins. Co., 19 Mo. App. 252 ; Phcenix Ins. Co. v. Spiere, 87 Ky. 286 ; People's Ins. 
 Co. V. Paddon, 8 Brad. 447 ; Home Iiis. Co. v. Adler, 71 Ala. 516 ; Trustees, &c. 
 V. Brooklyn F. Ins. Co., 19 N. Y. 305, 307 ; N. W. Iron Co. u. Mtaa. Ins. Co., 23 
 "Wis. 160.J 
 
 2 [Gold V. Sun Ins. Co., 73 Cal. 216.] 
 
 8 [Van Loan v. Farmers' Mat. F. Us. Ass'n, 90 N. Y. 280.] 
 
 < [iEtna Ins. Co. v. N. W. Iron Co., 21 Wis. '464, 471.] 
 
 5 [Sargent v. National F. Ins. Co., 86 N. Y. 626.] 
 
 6 [Phrenix Ins. Co. v. Spiers, 87 Ky. 286.] 
 
 ' [Wiebeler v. Milwaukee Mechanics' Mut. Ins. Co., 30 Minn. 464.] 
 
 (a) A contract to insure need not be Franklin Ins. Co. v. Colt, 20 Wall, 
 
 in writing : Emery v. Boston Marine 560 ; Sanford v. Orient Ins. Co., 174 
 
 Ins. Co., 138 Mass. 398; and when it Mass. 416, 420; Commercial F. Ins. 
 
 may be completely performed within a Co. v, Morris, 105 Ala. 498 ; Croft v. 
 
 year upon, the happening of a contin- Hanover F. Ins. Co., 40 W. Va. 508 ; 
 
 gency, it is not within the statute of Howard Ins. Co. v. Owen, 94 Ky. 197. 
 
 frauds. Browne, St. of Frauds, § 275 ; Upon such contract to insure, there 
 
 38 
 
CH. II.] FORM OF CONTRACT AND PARTIES THERETO. [§ 23 D 
 
 parol agreement for insurance was held not void under the 
 Statute of Frauds, even though the applicant expected a five 
 years' policy. ^ A verbal agreement to insure goods, not 
 only against fire, but against other perils within the Stat- 
 ute of Frauds, is valid as to the former and void as to the 
 latter. 2] 
 
 [§ 23 D. On Principle it would seem that at common law 
 there could be no objection to an oral contract to make an 
 insurance in future; or to issue a policy at a time named or 
 within a reasonable time, holding the applicant insured 
 meanwhile (this is the usual agreement) ; or to insure now, 
 making the full contract by parol, without any expectation 
 of a policy. So far the law is clear when the contracting 
 parties are natural persons, and there is no statute in the 
 way. But when a corporation makes the contract, or a stat- 
 ute enters the question, the problem is not so simple. Un- 
 less prevented by the charter a company may make valid 
 oral insurance "policies."^ But we may ask, may not the 
 prevention be by implied exclusion as well as by express 
 prohibition? And will a positive prohibition make the con- 
 tract void as between the parties, or only lay the company 
 open to forfeiture for the violation of the law under which it 
 exists? Corporations are creatures of limited powers, and 
 if the charter of an insurance company gives it the power to 
 issue policies of insurance, it is a serious question whether a 
 parol contract of insurance, intended to be final without any 
 looking forward to a policy, would be good. It is clear that 
 a provision in the charter of a company requiring all con- 
 tracts of insurance to be in writing, does not apply to the 
 preliminary contracts to make insurance, and these, although 
 in parol, will be specifically enforced even after loss.* In 
 such cases it is very proper to hold the contract good. It is 
 
 1 [Van Loan v. Farmers' Mut. F. Ins. Ass'n, 24 Hun, 132.] 
 
 2 [Mobile, &c. Ins, Co. v. McMillan, 31 Ala. 711.] 
 8 [Henning v. United States Ins. Co., 47 Mo. 425.] 
 * [Phcenix Ins. Co. <.. Eyland, 69 Md. 437.] 
 
 being no evidence what the terms of ordinarily issued by the company, 
 the policy would be, the policy con- Sproul v. Western Ass. Co., 33 Ore- 
 templated is presumed to be the policy gon, 98. 
 
 39 
 
§ 23 D] INSUEANCE : riKE, LIFE, ACCIDENT, ETC. [CH. II. 
 
 incidental to the conferred power of issuing policies; but 
 when there is no agreement contemplating the issue of a 
 policy, the parol contract being meant as a finality, there is- 
 no pretence of conforming to the power. If the charter or 
 statute provision is actually known to the person dealing 
 with the company, he should not be allowed to say that the 
 contract is good. If he acts without such knowledge, it has 
 been held that even where a statute requires a contract to be 
 in writing, equity will relieve if the person complaining has 
 acted on a parol agreement, so that it would be a fraud on 
 him to permit the other to take advantage of the statute.^ 
 In another case it was held that a mere parol promise, which 
 does not involve the execution of a policy, is not within the 
 general authority of an officer or agent, and cannot be en- 
 forced. ^ The company of course cannot be heard to say that 
 it did not know its own charter. 
 
 In all cases of the kind we are discussing, the first ques- 
 tion is whether the organic law of the company gives the 
 right to make parol contracts, and if not, the question is 
 whether the parol contract, although ultra vires, is not after 
 all sustainable. The general principles of the matter are 
 these : (1) The legislative intent governs so far as it can be 
 determined.^ If it is expressed or clearly implied that when 
 the law is not conformed to, the consequences shall fall upon 
 the company alone, and the contract shall be good in favor 
 of third persons, the company cannot plead ultra vires. If 
 the law expressly declares the contract void it will be so 
 held. Subject to this rule of legislative intent, or rather as 
 aids to determine it where it is otherwise doubtful, the fol- 
 lowing principles are invoked. (2) One who has received 
 and retained the benefit of a transaction will not be per- 
 
 1 [Simonton, &c. v. Liverpool, &c. Ins. Co., 51 Ga. 76, 81.] 
 
 2 [Constant v. Insurance Co., 3 Wall. 31 3 (Pa.), 1881 ; 1 Am. L. Reg. N. s. 116.] 
 8 [Wyman o. Bank, 29 Fed. Rep. 734 ; Gold Mining Co. v. National Bank, 
 
 96 U. S. 6i0. Sometimes holding a contract void because not made according 
 to charter would punish the very persons the legislature meant to protect. 
 Roberts v. Lane, 64 Me. 108; Farmington Bank v. Fall, 71 Me. 49. If a penalty- 
 is provided in the statute, that is often deemed sufficient to show that the legis- 
 lature meant to confine the effects of its violation to the specified consequence. 
 Farmers' & Mechanics' Bank v. Dearing, 91 U. S. 29 
 
 40 
 
CH. 11.] FOEM OF COKTBACT AND PARTIES THERETO. [§ 23 D 
 
 mitted to plead ultra vires in his own hehalf.'^ (3) The plea 
 will not be allowed as against one innocently giving value 
 in good faith without knowing that the contract was ultra 
 vires.^ And under this rule it is a question Avhether the 
 general public is to be held to know the provisions of the 
 corporate charter. My own opinion favors the negative.^ 
 The presumption of knowledge of the law should not be 
 stretched beyond the bounds of common sense, and the rea- 
 son behind it. Business men of prudence continually deal 
 with corporations without examining their charters, and the 
 certainty of business transactions would be greatly impaired 
 by subjecting their validity to the provisions of chartei's and 
 statutes made for the government of the company, and which 
 could not be known by the business world in general with- 
 out the expenditure of an immense amount of time, thus 
 hampering commerce. Suppose one buying a railroad ticket 
 had to examine the company's charter to find out that it was 
 not acting ultra vires, in order to be sure he could recover in 
 case of accident or breach of contract ! What a mess things 
 would be in !* If a man in dealing with a company does all 
 that men of ordinary prudence do under like circumstances, 
 he should be treated as innocent and allowed to recover on 
 his policy. If, however, he actually knows his contract is 
 in violation of law, or fails of due prudence, which, if exer- 
 cised, would have led him to such knowledge, then the law 
 should not protect its own violation, and he must not be 
 allowed to sue on his contract, but only be refunded his pre- 
 miums at the most. 
 
 Where a substantial effort is made to conform to the law, 
 an informality ought not to vitiate the policy unless such is 
 
 i [Pariah v. Wheeler, 22 N. Y. 494 ; Norton v. Bank, 61 N. H. 592 and cases 
 cited ; National Bank o. Whitney, 103 U. S. 99 ; Bank v. Bank, 9 Heisk. 408 ; 
 Little V. O'Brien, 9 Mass. 426 ; Union National Bank v. Mathews, 98 U. S. 621 ; 
 Cliester Glass Co. v. Dewey, 16 Mass. 94 ; Allen v. Freedman's S. & T. Co., 14 
 Fla. 418.] 
 
 2 [Credit Co. v. Howe Machine Co., 54 Conn. 387-389.] 
 
 ' [Lloyd V. West Branch Bank, 15 Pa. St. 172. Individuals cannot he ex- 
 pected to carry in their pockets the charters of all the corporations they deal 
 with.] 
 
 ^ [Bissell y. Michigan Southern Railroad Co., 22 N. Y. 258.] 
 
 41 
 
§ 24 A] INSUKANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. II. 
 
 clearly the intention of the legislature. A mere technical 
 non-compliance with a statute by the assured through failure 
 to inserb "names and style" of all persons interested, -will 
 not avoid the policy.^] 
 
 § 24. Subsequent Modification by Parol. — The certificate 
 of the secretary of an insurance company given to a policy- 
 holder, setting forth the consent of the directors that the 
 policy already issued shall cover property not originally em- 
 braced by the policy, is evidence of a contract of insurance 
 upon the property mentioned in the certificate ; ^ unless by 
 charter, or by law, such consent is restricted to specific 
 persons.^ 
 
 And for reasons already stated in considering the ques- 
 tion of the validity of parol contracts of insurance, there 
 seems to be no doubt that a verbal agreement to extend the 
 terms of an existing policy, so that it shall cover property 
 not originally within the scope of the contract, or otherwise 
 modify the terms, would be valid.* 
 
 [§ 24 A. Subsequent oral Change of a Policy, continued. — 
 A new and distinct oral agreement on sufficient considera- 
 tion may modify the policy in any desired manner.^ Poli- 
 cies are not required by law to be in writing, and outside 
 the Statute of Frauds there is no rule preventing the change 
 of a written contract by parol. ^ A contract of insurance is 
 not within the Statute of Frauds, and although in writing 
 it may be changed by parol, though the policy says it shall 
 only be changed by writing.^ The authority of the agents 
 of the company to make such subsequent oral agreements 
 may be inferred from the course of dealing with the insured 
 and the recognition of such acts by the company.^ Even 
 
 1 [Wolff V. Horncaste, 1 B. & P. 319, 323.1 
 
 2 Goodall V. New England Fire Ins. Co., 5 Foster (N. H.), 169. 
 
 8 Stark County Mut. Ins. Co. v. Hurd, 19 Ohio, 149. But seepost, §§ 369, 370. 
 
 * "Wood 0. Rutland & Addison Mut. Fire Ins. Co., 31 Vt. (2 Shaw) 552; 
 "Westchester Fire Ins. Co. v. Earle, 33 Mich. 143. 
 
 5 [Willcuts V. Northwestern Mut. L. Ins. Co., 81 Ind. 300 ; Cummings v. 
 Arnold, 3 Met. (Mass.) 486, 489 ; Bunce v. Beck, 43 Mo. 266, 280.] 
 
 8 [Roger Williams Ins. Co. t. Carrington, 43 Mich. 252.] 
 
 ' [Phcenix Ins. Co. v. Spiers, 87 Ky. 286.] 
 
 8 [Day V. Mechanic' & Traders' Ins. Co., 88 Mo. 325.] 
 42 
 
CH. II.J FOKM OF CONTEACT AND PAETIES THERETO. [§ 25 
 
 though the contract is under seal the strict performance of 
 the instrument may be waived by parol. •* Evidence of a 
 subsequent oral agreement altering the written policy, con- 
 sented to and acted upon by both parties, is not admissible 
 to avoid a variance in a written policy declared upon. A 
 subsequent oral agreement on sufficient consideration is 
 good, but it must be distinctly set forth in the declaration. ^J 
 § 25. Parol Contracts in England. — Whether it would not 
 be too much to say that, in England, a parol agreement for 
 insurance would be void, may at least be doubted. '^ In Mor- 
 gan V. Mather,* it was indeed held that a contract of insur- 
 ance, not in writing, would be void as an evasion of the 
 stamp-duty. But cases may be easily conceived where no 
 such evasion is intended; as, for instance, a verbal agree- 
 ment upon the terms, and a loss before the terms agreed 
 upon are committed to writing, with a refusal on the part of 
 the insurer to execute and deliver the policy. The stamp 
 laws, moreover, do not go to the validity of the contract. 
 They do not require any description of contract to be re- 
 duced to writing for the purpose of . being stamped; they 
 simpy provide that, when expressed in writing, this paper, 
 parchment, or vellum, upon which the contract is written, 
 shall not be received in evidence, or have any legal force or 
 validity, unless a stamp of a specific value and amount has 
 been affixed to it.^ But it may happen, in a variety of 
 cases, that the transaction is such that it may be proved by 
 other evidence than the written instrument ; and the objec- 
 tions arising from the stamp acts may be avoided by a re- 
 sort to another species of proof. ^ The doubt expressed in 
 Western Massachusetts Insurance Company v. Duffey,^ as 
 to whether the stamp act does not require that the contract 
 
 1 [Deai-born v. Cross, 7 Cowen, 48, 50.] 
 
 '^ [Henning v. United States Ins. Co., 47 Mo. 425.] 
 
 5 Salvin v. James, 6 East, 571. 
 « 2 Ves. Jr. 18. 
 
 6 Addison on Contracts, 119. 
 
 * Comyn on Cont. pt. 1, c. 3, p. 45 ; Phillips on Evidence, c. 9 ; Chitty on 
 Cont. 115. 
 
 ' 2 Kan. 347 ; Eish v. Cottenet, 5 Hand. (N. Y.) 538. 
 
 43 
 
§ 26] INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. II. 
 
 be in writing, seems not to be well founded. It may be here 
 stated that the State courts do not recognize the constitu- 
 tional right of the general government to determine the rules 
 of evidence by which the former shall be governed, and hold, 
 pretty uniformly, that the law of Congress declaring that 
 no instrument shall be admitted or used as evidence ill any 
 court without being duly stamped applies only to the courts 
 of the United States. ^ Whether it is within the power of 
 Congress to declare unstamped contracts wholly void is a 
 question of some doubt. That it is not has been declared 
 in Illinois^ and in Kentucky.^ But it is doubtful if this 
 will become the settled view of the law upon mature consid- 
 eration.* It is also very generally held that under United 
 States Statutes, 1864, c. 173, § 163, and 1865, c. 78, only 
 those unstamped instruments can be said to be void where 
 the stamp has been omitted with intent to defraud the 
 revenue.^ And such is the law under the statute of 1866, 
 c. 184, § 9.6 
 
 § 26. The laxity and informality of a policy of insurance 
 have been frequently the subject of judicial animadversion. 
 
 1 Carpenter ^. Snelling, 97 Mass. 452 ; Hitchcock v. Sawyer, 39 Vt. 412 ; 
 Dudley u. Wells, 55 Me. 145 ; McGovernu. Hoesback, 53 Pa. St. 176, 177; Griffin 
 1). Eanney, 35 Conn. 239 ; Craig v. Dimock, 47 111. 308 ; Bunker v. Green, 48 
 111. 243 ; United States Express Co. y. Haines, id. 248 ; Twitchell v. Common- 
 wealth, 7 Wall. (U. S. ) 321 ; Green v. Holway, 101 Mass. 243. Oonira, in Penn- 
 sylvania, by a divided court, Chartiers & Rob. Turnpike Co. v. McNamara, 72 
 Pa. St. 228. See the cases collected and commented upon, 7 Alb. L. J. 49. In 
 Edeck d. Banner, 2 Johns. (N. Y.) 423, and Plessinger v. Depuy, 25 Ind. 419, 
 where unstamped instruments were excluded, the question of constitutional 
 competency was not raised. 
 
 2 Latham v. Smith, 45 111. 29. 
 
 3 Hunter v. Cobb, 1 Bush (Ky.), 239. 
 
 * License Tax Cases, 5 Wall. (U. S.) 462 ; Pervear v. Commonwealth, id. 
 475 ; Green v. Holway, 101 Mass. 243. 
 
 5 Tobcy V. Chipman, 13 Allen (Mass.), 123 ; Willey u. Robinson, id. 128 ; 
 Govern o. Littlefield, id. 127; Lynch a. Morse, 97 Mass. 458; Whitehill v. 
 Shickle, 43 Mo. 537; Hallock v. Jaudin, 34 Cal. 167 ; Harper v. Clark, 17 Ohio 
 St. 190. See also cases in Maine, Vermont, and Pennsylvania, before cited 
 in this section. Contra, Hugus v. Strickler, 19 lowa, 413 ; Miller v. Morrow, 
 3 Coldw. (Tenn.) 587; Maynard u. Johnson, 2 ¥ev. 16; Wayman v. Torrey- 
 son, 4 id. 124, which hold that unstamped instruments, without such intent, 
 are void. 
 
 6 Green v. Holway, 101 Mass. 243. This case contains a valuable summary 
 of the stamp laws, and of the adjudications thereon. 
 
 44 
 
CH. II.] FOKM OF CONTRACT AND rARTIES THERETO. [ § 27 
 
 "Courts of law," said Mr. Justice Buller,^ "have always 
 considered a policy of insurance as an absurd and incoherent 
 instrument." "Policies of insurance," said Chief Justice 
 Marshall, 2 "are generally the most informal instruments 
 which are brought into courts of justice." But length of 
 time and a multitude of judicial decisions, embracing almost 
 every important word in the ancient though inaccurate form, 
 have at length so settled the force and meaning of its differ- 
 ent parts, that any serious attempt to alter or reconstruct 
 with reference to greater' certainty or symmetry would 
 doubtless lead to new doubts and new litigation, and should 
 be admitted only after the most careful'consideration.^ Lord 
 Mansfield said he did not recollect an addition which had 
 not created doubts upon its construction; and in this coun- 
 try it would seem that attempts to reform have been attended 
 with no better success.* 
 
 § 27. The Form unessential. — No particular form is abso- 
 lutely necessary. A policy may be in the form of a bond, 
 or in any other form, provided its scope and meaning import 
 an insurance.^ Policies ai'e sometimes executed both in this 
 country and in England, under seal, though this practice is 
 chiefly confined to companies of long standing, which can 
 trace their existence back to the time when it was held that 
 corporations could only contract in that manner. But poli- 
 cies are now common in England signed by three of the 
 directors of the company, and with us it is the very general 
 practice to provide, in acts of incorporation, that policies 
 signed by the president and countersigned by the secretary 
 shall be binding. And the signatures of de facto directors 
 or officers will give effect to the policy in the hands of a 
 stranger. He need not inquire into the regularity of their 
 appointment.® In fact, any person may engage in the busi- 
 
 1 Brough V. Whitmore, 4 T. R. 206. 
 
 2 Yeaton v. Fry, 5 Crancli, 335. 
 
 8 PerLd. Mansfield, Simond v. Boydell, Doug. 268. 
 * Phillips on Insurance, vol. i. c. 1, § 2. 
 
 6 Kent V. Bird, Covvp. 583 ; Fuller v. Glover, 12 East, 124 ; Roebuck v. Ham- 
 merton, Cowp. 737. 
 
 8 County Life Ass. Co., In re, L. R. 6 Oh. App. 288. 
 
 45 
 
§ 27] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. II. 
 
 ness of insurance, and his contracts relative thereto, whether 
 in writing, or, as we have just seen, by parol, will be valid. 
 [A parol contract, however, must have all the requisites of 
 a written contract, viz.: subject-matter; the risks insured 
 against; the amount insured; the duration of the risk, and 
 the premium of insurance. A want of any one of these is 
 fatal. 1 It is. sufficient, however, if the items are fixed by a 
 previous course of dealing; for example, a parol contract of 
 insurance is good, though nothicg is said about the pre- 
 mium, where the parties have dealt together for years, and 
 know the rate of premium, and the agents have been in the 
 habit of giving the plaintiff credit for the premium.^] It is 
 well, though perhaps not necessary, when policies are under 
 seal, and contracts by the parties thereto are made to vary 
 or continue the original contract, that these also should be 
 under seal, whether indorsed upon the back of the policy or 
 not.^ If the indorsement be without seal, it may be a new 
 contract, in which assumpsit will lie.* If the policy under 
 seal provides for its continuance from year to year, there is 
 no new contract at the expiration of the year, and covenant 
 must be brought.^ If the charter requires policies to be 
 under seal, and a policy be issued and accepted by mutual 
 mistake without a seal, the court will reform the contract.^ 
 [A policy may be left blank and filled up by the insertion 
 of "whom it may concern," or with the names of the parties 
 for whom it was issued, where such a custom is shown. ^] 
 
 A modern policy of fire insurance, it has been well said, 
 is a very complicated contract. Before executing almost 
 any other instrument of equal perplexity, the parties would 
 
 1 [Tyler v. New Amsterdam Fire Ins. Co., 4 Rott. (N. Y.) 151, 155.] 
 
 2 [Boioe V. Thames, &c. Marine Ins. Co., 88 Hun, 246.] 
 
 8 Kaines v. Knightly, Skinner (Eng. folio), 54 ; Luciani v. Am. Fire Ins. Co., 
 2 Whart. (Pa.) 167 ; Head v. Frov. Ins. Co., 2 Cranch, 127 ; Robinson v. Tohin, 
 
 1 Stark. 336. 
 
 * Shertzer v. Mut. Fire Ins. Co., 46 Md. 506 ; Frost i;. Liverpool, &c. Ins. Co., 
 
 2 Hannay (N. B.), 278. 
 
 ' Baltimore Fire Ins. Co. v. McGowan, 16 Md. 47. 
 
 6 Wright V. Sun Mut. Ins. Co., 29 U. 0. (C. P.) 821, carried to Supreme 
 Court of Canada on appeal. 
 
 ' [Turner v. BuiTows, 8 Wend. 144, 151,] 
 
 46 
 
CH. II.J FOEM OF CONTRACT AND PARTIES THERETO. [§ 28 
 
 deem it necessary to take the advice of counsel. Questions 
 frequently arise as to the proper construction of the terms 
 used, which divide the opinions of the most learned jurists.^ 
 And it may be added that the indifference, not to say cul- 
 pable negligence, of too confiding applicants, who often 
 enter into contracts of this kind as they would into no 
 others, without being aware, except in the most general 
 way, of their terms and conditions, has produced, and is 
 producing the most serious disappointments in the shape of 
 litigation, always expensive and vexatious, and not unfre- 
 quently fruitless and disastrous. Yet such disappointments 
 are but the natural results of a want of care and foresight; 
 and by the exercise of these they may be, to a very great 
 extent, avoided. No one is safe in accepting a policy, with- 
 out the most careful examination of its contents. 
 
 § 28. Policies have sometimes been so loosely worded as 
 to leave it doubtful whether the obligatory clause imported 
 a promise. In Alchorne v. Saville,^ a question arose whether 
 a clause in the policy declaring that "the trustees and direc- 
 tors of the company, whose names are hereunto subscribed, 
 do order, direct, and appoint the directors for the time being 
 of the said company to raise and pay," &c., was sufficient 
 upon which to found an action of covenant ; and it was held 
 that the words imported merely an order to pay, by which 
 neither the parties who executed the policy, nor those to 
 whom it was directed, were bound. Where, however, it 
 was declared by the policy, that, in case of loss, the society 
 was to pay, and it was further stipulated and declared that 
 the directors should not be liable except under the articles 
 establishing the society, one of which was that losses were 
 to be made good within ninety days, the court refused the 
 defendant's motion to arrest judgment on the ground tha,t 
 there was no agreement, and held that the action would lie.^ 
 
 A covenant to pay a certain amount, in case of loss or 
 damage, out of the money raised by the first instalments, or 
 
 1 'Woodbuty Savinga Bank v. Charter Oak Ins. Co., 31 Conn. 517. 
 
 2 6 J. B. Moore, 202, n. 
 
 3 Andrews v. Ellison, 6 Moore, 199. 
 
 47 
 
§ 29] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. 11. 
 
 calls on shares in the company, is a simple covenant to pay, 
 not limited or qualified by the condition precedent that there 
 should be funds in hand arising from calls or shares suffi- 
 cient for that purpose. The liability of the company does 
 not at all depend upon the question from what source the 
 funds to discharge it are to come, or on the question whether 
 or not there are any funds. ^ 
 
 § 29. The Policy. — But although it may now be consid- 
 ered as settled that a verbal agreement would be valid, and 
 that the particular form of the contract is of secondary im- 
 portance, yet it is the almost universal practice to embody 
 the terms of the contract in a written instrument called a 
 Policy. 2 This should contain the names of the contracting 
 parties ; of the insurer, who signs or underwrites the policy, 
 and hence is frequently termed the underwriter, whereby he 
 obligates himself, in consideration of a certain sum, called 
 the premium, to him paid by the other party, to take upon 
 himself the hazard, called the risTc, and to make good to him 
 the particular loss he may sustain ; and of the insured, who 
 pays the premium to secure this indemnity against loss. It 
 should also contain the precise time from which the risk 
 commences and at which it terminates ; a description of the 
 property, or life, or other subject-matter of insurance; the 
 conditions to which the contract is subject; the limitations 
 iapon the risk ; and, in short, all such facts and data about 
 which disputes may arise, as are not susceptible of settle- 
 ment by resort to the general principles which govern the 
 contract. In practice the description of the subject-matter, 
 except in a general way, and the conditions, are not usually 
 incorporated into the body of the policy proper. The former 
 is contained in a separate paper termed the application or 
 declaration, deposited with the underwriter by the party 
 applying for insurance, while the latter are indorsed upon 
 the back of the policy. They are both, however, made com- 
 ponent parts of the policy by reference,^ and constitute its 
 
 ' Pilbrow V. Atmospheric Railway Co., 5 C. B. 440. 
 
 " For form, see Appendix. 
 
 8 Worsley v. Wood (in error), 6 T. E. 710 ; Routledge v. Burrell, 1 H. Bl. 
 
 48 
 
CH. II.J FOKM OF COKTKACT AND PARTIES THERETO. [§ 29 A 
 
 most essential features, requiring the especial consideration 
 of the party seeking protection. It is not unusual to insert 
 in the policy a special clause called the memorandum, ex- 
 empting the insurer, either wholly or partially, from liability 
 for loss or damage to certain specified articles, or on account 
 of certain specified causes, or containing some particular 
 condition, limitation, or exemption not contained in the 
 usual form, and which arises out of the circumstances of 
 the particular case. 
 
 [§ 29 A. What constitutes Part of the Policy. — We have 
 already noted in the preceding section that an application re- 
 ferred to in the policy as a part of it, becomes part of it in legal 
 contemplation, and there is an unbroken current of authority 
 to that effect.^ But the rule that an application, survey, de- 
 scription, &c., referred to in the policy, shall be a part of it, 
 does not apply where the application, &c., is not in writing.^ 
 
 How far marginal notations and indorsements are to be 
 considered as part of the contract, depends upon what seems 
 to be justice, and the intent of the parties on all the facts of 
 the case that are properly in evidence. Words and figures 
 in the margin of a policy and connected with it in sense are 
 a part of it.^ In general, memoranda on the margin of a 
 policy are a part of the contract of insurance, and are as 
 binding as though in the body of the policy.* But it has 
 been held that the clause, "Non-forfeiture endowment policy 
 with profits, " in the margin of a policy, cannot be read as a 
 part of it.° An indorsement proved to have been made upon 
 an instrument before it is executed may be parcel of the 
 obligation.^ But in the absence of such proof, an indorse- 
 
 254 ; Oldmau v. Bewioke, 2 id. 577, note ; Holmes v. Charlestown Mut. Fire 
 Ins. Co., 10 Met. (Mass.) 211. 
 
 1 [Egan V. Mutual Ins. Co., 5 Denio (N. Y.), 326, 327 ; Md. Ins. Co. ■;. Bos- 
 siere, 9 G. & J. 121, 155 ; Bobbitt v. Liv. & Lon., &c. Ins. Co., 66 N. C. 70; 
 Byers v. Farmers' Ins. Co., 35 Ohio St. 606 ; Carson v. Jersey City lus. Co., 43 
 K J. 300.] 
 
 2 [O'Brien v. Ohio Ins. Co., 52 Mich. 131.] 
 
 * [Pierce v. Charter Oak Ins. Co., 138 Mass. 151.] 
 
 * [McLaughlin v. Atlantic Ins. Co., 67 Me. 170, 173.] 
 5 [McQuitty V. Continental L. Ins. Co., 15 E. I. 573.] 
 ^ [Emerson v. Murray, 4 N. H. 171.] 
 
 VOL.]. — 4 49 
 
§ 29 C] INSUKANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. II. 
 
 ment on the policy not referred to in the policy or in the 
 by-laws, will be deemed the act of the insurer and not bind- 
 ing on the assured.^ A diagram of the buildings insured 
 on the back of an application does not bind the assured in 
 the absence of proof that he had something to do with it, 
 although by printed directions the agents were required to 
 draw the same. 2] 
 
 [§ 29 B. Negotiations and agreements prior ^ to or con- 
 temporaneous with the policy are merged in it, and unless 
 in writing and referred to in the policy, or by law made a 
 part of it, are of no avail after the issue of a valid policy 
 except to show misrepresentation, or to establish a case for 
 the reformation of the policy, or to show that the delivery 
 was not absolute. 
 
 No oral agreement at the time of insurance that is not 
 incorporated in the policy can overcome a prohibition of the 
 policy.* Statements of an insurance agent prior to the exe- 
 cution of the policy are not admissible against the company 
 to vary the terms of the written contract.^ A memorandum 
 or slip ofPered to show the intention of the parties as opposed 
 to a written policy of insurance between them, is inadmis- 
 sible. In law, it is only evidence to prove a misrepresen- 
 tation; in equity, to correct the policy.^ When a policy 
 contained no reference to a published prospectus from which 
 it materially differed, in an action on the former, the latter 
 was held inadmissible, to extend and enlarge the terms of 
 the policy.'''] 
 
 [§ 29 C. Statutes requiring Annexation of the Application 
 to the Policy. — By the Iowa statute a copy of the application 
 must be indorsed on or attached to the policy, in order to 
 enable the company to rely on false statements in the appli- 
 
 1 [Planters' Mat. Ins. Co. v. Rowland, 66 Md. 236.] 
 
 2 [Vilas V. N. Y. Central Ins. Co., 72 KT. Y. 590, 593.] 
 
 2 [Greenwood v. N. Y. L. Ins. Co., 27 Mo. App. 401, 411; Insurance Co. v. 
 Mowry, 96 U. S. 644.] 
 
 * [Sperry v. Springfield F. & M. Ins. Co., 26 Fed. Rep. 234 (Col.), 1886.] 
 6 [Sullivan v. Cotton States L. Ins. Co., 43 Ga. 423, 427.] 
 6 [Daw V. Wlietten, 8 "Wend. (N. Y.) 160, 166.] 
 ' [Mut. Ben. L. Sus. Co. v. Ruse, 8 Ga. 534, 539.] 
 50 
 
CH. II.] FOEM OF CONTRACT AND PARTIES THERETO. [§ 30 
 
 cation as matter of defence. ^ So in Iowa, if a company fails 
 to attach a copy of the application, signature and all, to the 
 policy of which it is declared to be a part, every statement 
 in the application is conclusively presumed to be true as 
 against the company.^ And in Pennsylvania, unless a copy 
 of the application is attached to the policy, it constitutes no 
 part thereof, and is not receivable in evidence.^ But a stat- 
 ute that merely prohibits the use of an application for the 
 purpose of qualifying the policy unless attached to it, does 
 not interfere with the use of the application to show fraud 
 in obtaining the policy.*] 
 
 § 30. Kinds of Policies. — Policies are divided into valued 
 and open, wager and interest,^ time and voyage.^ A valued 
 policy is one in which the sum to be paid as an indemnity 
 in case of loss is fixed by the terms of the contract ; ^ an open 
 policy is one in which the sum so to be paid is not fixed, 
 but is left open to be proved by the claimant in case of loss, 
 or to be determined by the parties,* and the determination 
 is called the adjustment of the loss. The difference between 
 a valued and open policy, in point of form, is this, that the 
 blank which is intended to be filled up by the sum at which 
 the parties agree to fix the value of the property insured, 
 and the amount of damages to be recovered in case of loss, 
 as between themselves, is filled up in the former, while it is 
 not filled in the latter, or, at least, is not stated as an agreed 
 valuation, or sum to be recovered in case of loss. The dif- 
 ference between them in point of effect is, that under an open 
 policy, in case of loss, the insured must prove the true value 
 of the property insured, while under a valued policy he need 
 
 1 [Cook V. Federal L. Ass., 74 Iowa, 746.] 
 
 2 [Dunbar v. Phenix Ins. Co., 72 Wis. 492 ; R. S. § 1945 a.] 
 
 3 [Act of May 11, 1881, P. L. 20 ; Imperial F. Ins. Co. v. Dunham, 117 Pa. 
 St. 460, 473 ; New Era L. Ins. Co. v. Musser, 120 Pa. St. 384.] 
 
 ■« [Carrigan v. Mass. Ben. Ass., 26 Fed. Rep. 230 (Pa.), 1884.] 
 
 6 [See § 33.] 
 
 6 [See § 34.] 
 
 ' [A policy is valued only when a valuation is fixed by way of liquidated dam- 
 ages to avoid making a valuation after loss. Universal Ins. Co. v. Weiss, 106 
 Pa. St. 20, 27.] 
 
 8. [Fire Ins. Ass. v. Miller, 2 Tex. Civ. Cas. § 332.] 
 
 51 
 
§ 30] INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. II. 
 
 never do so, the sum agreed upon being taken as conclusive 
 both at law and in equity, unless in cases of fraud, or of 
 such excessive overvaluation as to raise a presumption of 
 fraud.^(«) ^nd the overvaluation, in the expressive lan- 
 
 1 Haigh V. De \;i Cour, 3 Camp. 319 ; 1 Arnould on Insurance, 304 ; Alsop v. 
 Com. Ins. Co., 1 Sumner, 451 ; Feise v. Aguilar, 3 Taunt. 506 ; Carson v. Marine 
 Ins. Co., 2 Wash. C. C. 468 ; Lewis v. Eucker, 2 Burr. 1167 ; Sliawe v. Feltou, 2 
 East, 109 ; Forbes v. Aspinall, 13 id. 323, 326 ; Holmes v. Chavlestown Mut. Fire 
 Ins. Co., 10 Met. (Mass.) 211 ; Young v. Turing, 2 Seott, N. R. 752 ; Coolidge 
 V. Gloucester Mar. Ins. Co., 15 Mass. 341 ; "Lycoming County Mut. Ins. Co. v. 
 Mitchell, 48 Pa. St. (12 Wright) 367, 372 ; Laurent b. Chatham Fire Ins. Co., 1 
 Hall (N. Y. Superior Ct.), 41 ; Cushman v. North Western Ins. Co., 34 Me. 487; 
 Borden v. Hingham Mut. Fire Ins. Co., 18 Pick. 623 ; Phrenix Ins. Co. a. Mo- 
 Loon, 100 Mass. 475 ; Miller v. Germania Fire Ins. Co., C. P. (Pa.) 6 Ins. L. J. 
 873. By the French law, the valuation is not conclusive if it exceeds "reason- 
 able limits." Decree of the Court of Aix, March 24, 1830, cited in Eogron, Code 
 de Commerce Explique, art. 336, n. ; Pardessus, Cours de Droit Com. 593, 6 and 
 7 ; Alauzet, Traite General des Assurances, 221 et seq. ; 3 Kent's Com. 273, 
 n. (d), and cases there cited. Boulay-Paty is, however, incorrectly cited. He 
 agrees with the other authors. Cours de Droit Com. Mar. tit. 10, § 20. And 
 ■ what are "reasonable limits " is to be determined by the circumstances of each 
 particular case. Probably they would not differ much from the "grossly enor- 
 mous" overvaluation of Mr. Justice Yeates, or that excessive overvaluation 
 which raises a pres)imption of fraud, of the other authorities. 
 
 (n) The question of fraud in valua- 452. See Hand v. National Live-Stock 
 
 tion is one of fact for the jury ; such Ins. Co., 57 Minn. 519 ; Purves v. 
 
 fraud need uot be pi-oved beyond a rea- Germania Ins. Co., 44 La. An. 123. 
 sonalile doubt, and must have been in- The valued policy statutes of Missouri 
 
 tended. F. Dohmen Co. v. Niagara F. and other States, prohibiting the in- 
 
 Ins. Co., 96 Wis. 38 ; Commercial Ins. surer from denying that the amount 
 
 Co. V. Friedlander, 156 111. 595 ; West- in.sured, less any depreciation, repre- 
 
 ern Ass. Co. v. Ray (Ky.), 49 S.W. 326 ; sents the value of the insured property, 
 
 Phcenix Ins. Co. v, McKernan (Ky.), in effect change open policies to valued 
 
 46 id. 10 ; Kenton Ins. Co. v. Wiggin- policies; though making no contract 
 
 ton, 89 Ky. 330 ; Teutonia F. Ins. Co. for the parties, they estop them, after 
 
 V. Howell (Ky.), 54 S. W. 852 ; German they have voluntarily fixed the valua- 
 
 Ins. Co. V. Read (Ky.), 13 S. W. 1080 ; tion, from denying that valuation when 
 
 Hanover F. Ins. Co. v. Stoddard, '52 there is no fraud; they do not create 
 
 Neb. 745 ; Virginia F. & M. Ins. Co. v. wagers, and are constitutional. Orient 
 
 Saunders, 86 Va. 969. Under an open Ins. Co. u. Daggs, 172 U. S. 557. See 
 
 policy, the jury, being bound to ascer- also as to such statutes, Havens v. 
 
 tain whether the loss was total or Germania F, Ins. Co., 123 Mo. 403; 
 
 partial, and the market value of the O'Keefe v. Liverpool, &c. Ins. Co., 140 
 
 property, cannot find for the plaintiff if Mo. 558 ; Ins. Co. v. Leslie, 47 Ohio 
 
 the evidence as to such value is too in- St. 409, 416 ; British America Ass. Co. 
 
 definite for them to determine it. Man- v. Bradford, 60 Kansas, 82 ; Ins. Co. 
 
 Chester F. Ass. Co. v. Feibelman, 118 of North America v. Bachler, 44 Neb. 
 
 Ala. 308, 329 ; Cascade F. & M. Ins. 549 ; Gibson v. Conn. F. Ins. Co., 
 
 Co. u. Journal Pub. Co., 1 Wash. St. 77 Fed. Rep. 561 ; Seyk v. Millers' 
 52 
 
CH. II.] FOEM OF CONTRACT AND PARTIES THERETO. [§31 
 
 guage of Mr. Justice Yeates,^ must be "grossly enormous" 
 to admit of any dispute. The statement as to value of prop- 
 erty insured is not a warranty but matter of opinion, which, 
 if honestly entertained, does not vitiate the policy.^ The 
 agreed value does not, however, admit an insurable interest, 
 and this must be proved to some extent.^ And the insured 
 is concluded by the valuation as well as the insurer.* 
 
 § 31. Valued and Open Policies. — Whether the policy is 
 an open or valued one is not unfrequently a question of 
 some difficulty. The words "valued at," as qualifying the 
 property insured, are frequently used; but any form of 
 words showing the intention of the parties to fix the value 
 of the property is sufficient. If the property insured con- 
 sists of a single article, or of separate and distinctly differ- 
 ent articles, either in character or value, and the insurance 
 is in a gross sum upon all, as, for instance, $10,000 on one 
 brick house, or upon one brick and two wooden houses, 
 nothing being said of the value, this is not a valued policy. 
 The sum here neither fixes the total value of all, nor the 
 proportionate value of either, and in case of loss of either or 
 all, the question is open for proof as to the amount of the 
 loss.-'" But where there is a total loss of an article distinctly 
 valued in the policy, the loss is to be estimated according 
 to the valuation. And if the insurance be upon numerous 
 articles of equal value, under a valuation of the whole, the 
 insured will recover of the whole valuation the proportion 
 which the number lost bears to the whole number insured ; 
 as, where ten hogsheads of tobacco, specified to be worth 
 
 1 Miner v. Tagert, 3 Biiin. (Pa.) 204, 205. And see post, § 373. 
 
 2 Bedford v. Mut. Fire Ins. Co., 38 U. C. (Q. B.).538. 
 
 8 Feise v. Aguilar, 3 Taunt. 508 ; s. 0. Hildyard on Marine Insurance, 264 ; 
 Kane v. Com. Ins. Co., 8 Johns. (N. Y.) 176 ; Pleasants v. Maryland Ins. Co., 8 
 Cranch, 55 ; Clark v. Ocean Ins. Co., 16 Pick. (Mass.) 289, 295. 
 
 * Holmes v. Charlestown Mut. Fire Ins. Co., 10 Met. (Mass.) 211. 
 
 ^ Laurent v. Chatham Fire Ins. Co., 1 Hall (N. Y. Superior Ct. ), 41 ; Wallace 
 V. Insurance Co., 4 La. 289 ; Luce t-. Springfield Fire & Mar. Ins. Co., Cir. Ct. 
 (West. Dist. Mich. ), 2 Ins. L. J. 443 ; post, § 425. 
 
 National Ins. Co. , 74 Wis. 67 ; Sullivan the value of personal property. Joy v. 
 
 u. Hartford F. Ins. Co., 89 Texas, 665. Security F. Ins. Co., 83 Iowa, 12; 
 
 In Iowa, the amount stated in the Martin v. Capital Ins. Co., 85 id. 643. 
 policy is not prima facie evidence of 
 
 53 
 
§31] insurance: fire, life, accident, etc. [ch. ii. 
 
 $1,000, are insured, the loss of one will give the right to 
 recover ilOO, or the same proportion of the amount insured.' 
 (s) A valuation in the application referred to in the policy 
 has the same effect as if stated distinctly in the policy. 
 Thus, a policy having this clause: "The amount insured 
 being not more than three-fourths the value of said property, 
 as appears by the proposal of the said insured, " is a valued 
 policy.^ So where, while there was a printed stipulation 
 in the policy that the loss or damage was to be estimated 
 according to the true and actual cash value of the property 
 at the time of loss, it was written in that the plaintiff was 
 insured "to the amount of $2,000; viz., on the building and 
 fixed machinery, f 1,700; on movable machinery therein, 
 $150 ; on stock, raw and wrought, $150, — said insured be- 
 ing the lessee of said mill for one year, from Nov. 1, 1850, 
 and having paid the rent therefor of $2,171.01, which inter- 
 est, diminishing day by day, in proportion for the whole rent 
 for a year, is hereby insured," the court held that the policy 
 was a valued one as to the first two items. If an open pol- 
 icy, neither the plaintiff nor defendant could be benefited in 
 any degree by the insertion therein particularly of the rent 
 paid by the insured to the lessor; it was wholly immaterial 
 and unnecessary; nor, if it was an open policy, was there 
 any occasion to recite that the interest was one diminishing 
 day by day. This was one element in the value of the loss, 
 and one so obvious, especially if the policy was near its ex- 
 piration, or had run any considei-able time, that it could not 
 be expected to be overlooked. And although it was agreed 
 that the k)ss or damage should be estimated according to the 
 actual cash value at the time of the loss or damage, still the 
 parties could fix upon a rule, and did, in this case, fix upon 
 a rule by which the cash value was to be determined, not 
 the less a rule, because it permitted of variation day by 
 day.^ (t) But where the application stated the property to 
 
 1 Harris v. Eagle Ins. Co., 6 Johns. (N. Y.) 368. 
 
 2 Nichols V. Fayette Mut. Fire Ins. Co., 1 Allen (Mass.), 63 ; Fuller v. Boston 
 Fire Ins. Co., 4 Met. (Mass.), 206 ; Phoenix Ins. Co. v. McLoon, 100 Mass. 475. 
 
 2 Cushman v. North Western Ins. Co., 34 Me. 487. The policy in this cast 
 
 54 
 
CH. II.] FORM OF CONTRACT AND PARTIES THERETO. [§ 32 
 
 be worth $1,200, and it was insured for 1800, "being not 
 more than three-fourths of the value of the property de- 
 scribed in the application," and the policy also contained 
 the provision that "this company shall in no event be liable 
 beyond the sum insured, nor beyond three-fourths of the 
 actual cash value of the property insured at the time of loss 
 or damage, nor beyond such sum as will enable the insured 
 to replace or restore the property lost or damaged," this 
 latter clause was held to control the former, and to open 
 the question as to value, which otherwise would have been 
 fixed. ^ But a clause, providing that the "company shall 
 not be held to pay any greater portion of the loss or damage 
 sustained than the amount hereby insured shall bear to the 
 whole amount insured on said property," is operative only 
 when there is other insurance ; and, in the absence of other 
 insurance, does not convert a valued policy, like the one in 
 the case last cited, into an open one ; ^ nor, where there is a 
 subsequent valued policy indorsed upon the first, is the first 
 thereby converted into a valued one.^ [A policy for |2,000 
 on freight is an open one.*] 
 
 [§ 31 A. Statute Valuation. — In Texas, "a fire insurance 
 policy in case of total loss becomes a liquidated demand 
 against the company for the full amount of the policy, 
 provided that this article shall not apply to personal 
 property. " *] 
 
 § 32. The same policy may be open as to one article in- 
 sured and valued as to another. This was the case in Post 
 
 was dated Nov. 8, 1850 ; and the fire took place Nov. 23, 1850. The jury re- 
 turned a verdict assessing the damages, including interest, at |1, 872.12, with a 
 special finding that the loss on movable machinery was |151.79, and included in 
 the verdict. 
 
 1 Brown v. Quincy Mut. Fire Ins. Co., 105 Mass. 396. [The same point was 
 decided in Ohio, where it was held that a policy for $800 on a house worth 
 $2, 400, with an agreement to pay all loss up to the sum named, is an open not 
 a valued policy. Farmers' Ins. Co. v. Butler, 38 Ohio St. 128.] 
 
 2 Luce V. Dorchester Ins. Co., 105 Mass. 297, 298. 
 
 8 Millaudon v. Western Mar. & Fire Ins. Co., 9 La, 27. 
 4 [Riley v. Hartford Ins. Co., 2 Conn. 368, 370.] 
 
 » [Sun Mut. Ins. Co. «. Holland, 2 Tex. Civ. Cas. 448, substance of R. S. art. 
 2971.] 
 
 55 
 
§ 34] insueance: fike, life, accident, etc. [ch. II. 
 
 V. Hampshire Mutual Insurance Company, ^ where there was 
 an insurance of $500 on a house valued at 1750, and also of 
 $500 on furniture, to which no value was fixed. But as the 
 by-laws reserved to the company in this case the right to 
 'have a valuation made anew, without regard to the valuation 
 fixed in the policy, they were not concluded by that fixed 
 valuation. It was also the case in Cushman v. Northwestern 
 Insurance Company. ^ 
 
 § 33. Wager and Interest Policies. — A wager policy is one 
 in which it appears by its terms that the insured has no 
 interest, or, in other words, runs no risk. It is a mere bet, 
 and is known by the insertion of certain clauses, — such as, 
 " without further proof of interest than the policy" '■''interest 
 or no interest" and their equivalents, — having for their ob- 
 ject to relieve the insured from the necessity of proving his 
 interest in case of loss. In England, such policies are pro- 
 hibited, and such clauses are proof conclusive that the con- 
 tract is a wager. In this country, however, they are only 
 •prima facie evidence, and may be explained.^ An interest 
 policy is one in which it appears by its terms that the in- 
 sured is interested in the thing insured, or, in other words, 
 runs a risk. He has something at stake, and, in case of 
 loss, something to be indemnified for. Policies are usually 
 in this form, and import, unless otherwise expressed, that 
 the assured is interested in the subject-matter.* 
 
 § 34. Time and Voyage Policies. — A time policy is one in 
 which the duration of the risk is fixed by definite periods of 
 time, as from January 1st, M., 1852, to January 1st, M., 
 1853, or for one year from a specified date. A voyage policy 
 is one in which the duration of the risk is determined by 
 geographical limits, as from New York to Liverpool, and is 
 applicable to cases of transportation by land as well as by 
 water. ^ 
 
 1 12 Met. (Mass. ) 555. 
 
 2 Ubi supra. 
 
 8 Alsop V. Com. Ins. Co., 1 Sumner, 451, 467. See § 74. 
 1 'Williams v. Smith, 2 Gaines {N. Y.), 1, 13; Cousins v. Nantes, 3 Taunt. 
 513. 
 
 6 Boehm v. Combe, 2 M. & S. 172. 
 
 56 
 
CH. II.] FOKM OF CONTEACT AND PARTIES THERETO. [§ 35 A 
 
 § 35. Who may be Parties. — Parties competent to con- 
 tract generally may be parties to a contract of insurance. 
 The insurers may be private individuals, or companies of 
 associated individuals, and so may the insured. In this 
 country, the business, though previously to the commence- 
 ment of the present century mostly in private hands, is now 
 almost exclusively in the hands of incorporated companies; 
 and there is a large and increasing class of these based upon 
 the mutual principle, in which the members are at once the 
 insurers and the insured, and whose business is limited to 
 such risks as are authorized by their charters, while indi- 
 viduals may assume any lawful risk.^ In England, private 
 underwriting in mercantile insurance is largely carried on 
 by a society of capitalists, who meet daily for the transac- 
 tion of business at Lloyd's Subscription Rooms, and are 
 hence called members of "Lloyd's." Each member under- 
 writes his name to the policy offered, if he chooses to take 
 any portion of the risk, and against it the amount for which 
 he will be liable in case of loss, with the date of his sub- 
 scription. Formerly, private underwriting was extensively 
 carried on on the continent of Europe ; but there, as well as 
 in England, the superior advantages of public companies are 
 gradually leading to an abandonment of the ancient practice. 
 
 [§ 35 A. Infants, Unlicensed Merchant, Parties joining. — 
 A contract of insurance is not a contract for necessaries 
 which will absolutely bind an infant. ^ It is voidable by the 
 infant, but not by the company. ^ 
 
 In Mississippi if a merchant makes a contract of insurance 
 on his business while he is unlicensed, he cannot recover on 
 the policy.* 
 
 Several parties interested in the same property may take 
 out joint insurance upon it, and a joint policy may be taken' 
 on property owned in severalty.^] 
 
 ^ Andrews v. Union Mut. Fire Ins. Co., 37 Me. 256. 
 2 [N. H. M. F. Ins. Co. v. Noyes, 32 N. H. 345, 352.] 
 8 [Mouaghan v. Agri. F. Ins. Co., 53 Mich. 238, 243.] 
 * [Pollard V. Phoenix Ins. Co., 63 Miss. 244.] 
 ' [Castner v. Farmers' Mnt. F. Ins. Co., 46 Mich. 15.] 
 
 57 
 
INSUKANCE : riRE, LIFE, ACCIDENT, ETC. [CH. HL 
 
 CHAPTER TIL 
 
 THE EFFECT OF WAR. 
 
 Analysis. 
 
 .. The thought at the basis of the subject (§ 42 A). 
 
 Private interests must yield to public, but are to be interfered with 
 
 only so far as the public purposes positively require (§ 42 A). 
 No subject can do anything detrimental to the interests of hjs 
 country (§ 36), — voluntary submission to the enemy, receiving 
 his protection, or any act or contract which tends to increase 
 his resources, as transmission of money or goods or any kind of 
 trading or commercial dealing between the two countries, is 
 unlawful (§ 42). 
 I. During the war 
 
 a contract of insurance cannot be made across the line of hostilities 
 (§36). 
 such a contract is void (§ 37). 
 an enemy's property in general cannot be insured, and the disability 
 extends to subjects dealing in enemy's property (§ 37). 
 and insurance of the life or health of one in the enemy's service 
 is void (§ 37 s.). 
 the life and property of an alien enemy domiciled here may be in- 
 sured {§ 42 s. ). 
 i. A contract made before the war 
 
 is only suspended until the conflict is over (§ 37), and then revives 
 (§§ 39, 41, 43). 
 except that no recovery can be had for loss of property by cap- 
 ture or otherwise, in consequence of the fight (§ 36), unless the 
 property was exempt from hostilities (§ 39 s.). 
 nor for any loss of life or health in the enemy's service (§ 7 s.). 
 is good as to property and lives exempt from belligerent power 
 (§§39s., 42 s.). 
 e. g. the life of a neutral domiciled in the enemy's country 
 (§ 39 s.). 
 may be kept alive by paying premiums to resident agent (§ 40). 
 . Domicil of the owner in the enemy's country is the general test as to 
 property (§§ 38, 42 s.)._ 
 and the line of demarcation is that claimed and held by the belli- 
 ' gerent power (§ 38). 
 if the United States were at war with Spain, a Spaniard domiciled 
 
 hei'e could contract and sue here like a citizen (§ 42 s.). 
 in respect to life, hostile nationality must be combined with domicile 
 in the enemy's country to avoid the insurance (§ 39 s.). 
 
 58 
 
en. III.J THE EFFECT OF WAR. [§ 36 
 
 5. Conditions of the policy 
 
 as to premium and forfeiture for non-payment of it do not apply to 
 
 war (§ 39 A.), 
 payment to agent here good (§§ 39 A., 40). 
 payment to agent in South, in Confederate money, good (?) 
 
 (§ 39 A.), 
 tender and refusal of one premium makes tender of subsequent dues 
 
 unnecessary (§ 40 n.). 
 notice and proof after the war sufficient (§ 39 A.), limitation of suit 
 
 extended by war (§ 39 A.). 
 
 6. An agency in a hostile country (Spain, for example) of a company 
 
 located hero, 
 could not he created during a war between the countries (§§ 36, 
 
 42 s.). 
 but, if previously created, it would not be revoked or suspended, 
 
 except as to the taking of new risks and the transmission ot 
 
 premiums (§ 40). 
 premiums accruing on contracts made before the war could be 
 
 and must he received by the agent, but not forwarded till after 
 
 the conflict (§§ 40 n., 42 s.). 
 of an English company would be neutral, although he was a sub- 
 agent appointed by an .agent of the English company who 
 
 was resident here (§ 40). 
 
 7. When war begins so as to affect insurance (§ 38). 
 In civil war the rules are the same (§ 38). 
 Mutual companies same rules (§ 39 s.). 
 
 § 36. 'War. — The subjects of two hostile states cannot 
 make a valid contract of insurance, while the war continues. ^ 
 And it has even been held that an English underwriter on 
 French property in time of peace is not liable for a loss 
 occasioned by capture by British ships during hostilities 
 which commenced between Great Britain and Prance subse- 
 quent to the time when the policy was made, and terminated 
 prior to the bringing of the action.^, And it was said, in 
 Brandon v. Curling,^ that every insurance on alien property, 
 by a British subject, must be understood with this implied 
 exception, that it shall not extend to cover any loss happen- 
 ing during the existence of hostilities between the respective 
 countries of the insured and the insurer. In such a case, 
 though the contract is legal at the time the risk commences, 
 
 1 The Hoop, 1 Robinson (Eng. Adm.), 196 ; The Emulous, 1 Gallison, 562, 
 571 ; Griswold v. Waddington, 16 Johns. (N. Y.) 438. 
 
 2 Gamba v. Le Mesurier, 4 East, 407. 
 8 4 East, 410. 
 
 59 
 
§ 37] INSUKANCE : FIEE, LIFE, ACCIDENT, ETC. [OH. III. 
 
 and the insured cannot therefore claim a return of the pre- 
 mium, yet considerations of public policy are so stringent 
 as to vitiate a once valid contract, by importing into it an 
 implied condition which becomes operative upon a contin- 
 gency beyond the control of either of the parties.^ This 
 last case was decided in the face of a practice which had 
 grown up under the patronage of Lord Mansfield, who went 
 so far as to try causes in which the same question arose, and 
 permitted foreigners in their owii names and for their own 
 benefit, during the war, to recover on policies of insurance 
 on foreign goods against British capture. Yet Lord Alvan- 
 ley, though he could not help animadverting upon the im- 
 morality of the defence, felt bound to sustain it, on the 
 ground that no subject can be permitted to enter into a con- 
 tract to do anything which may be detrimental to the inter- 
 ests of his own country ; and that such a contract is as much 
 prohibited as if expressly forbidden by an act of Parliament. 
 When hostilities commence between the countries of the 
 underwriter and the insured, the former is forbidden to ful- 
 fil his contract. 
 
 § 37. Effect of War. — That a subject may not enter into 
 such a contract is probably more than was meant to be said; 
 for such a contract is certainly legal in its inception, and 
 its invalidity supervenes upon a contingency which he could 
 not foresee. But that he is absolved from any legal obliga- 
 tion to fulfil it, and will not be compelled by the courts so 
 to do, from the moment when it proves to be detrimental to 
 the interest of the state, is now the established law.^ In 
 Bell V. Gilson,^the judges undertook to relax somewhat the 
 severity of the rule in favor of contracts entered into be- 
 tween British subjects about property purchased of the 
 enemy by a British subject during the war, and held that 
 property so purchased should not be considered as enemy's 
 
 1 Furtado v. Rodgers, 3 Bos. & Pul. 191. 
 
 2 See 3 Kent's Com. 255 ; and Griswold v. Waddington, 16 Johns. 438, where 
 the whole subject of contracts between alien enemies is discussed with great 
 ability and research. See also Mr. Du Ponceau's note to his translation of 
 Bynkershoeck on the Laws of War, p. 165. 
 
 8 1 Bos. & Pul. 345. 
 60 
 
CH. III.] THE EFFECT OF WAE. [§ 38 
 
 property. But tins case was afterwards overruled, and the 
 disability to contract now extends alike to alien enemies 
 and to subjects dealing in enemy's property. And it ap- 
 pears now to be the law of England, that war between the 
 two countries to which two contracting parties respectively 
 belong suspends a contract entered into before the breaking 
 out of hostilities, and annuls it if entered into while hostili- 
 ties continue. 1 
 
 (s) It seems also that the law will not permit an insur- 
 ance company to indemnify a policy-holder who has lost his 
 health, life, or property in the service of the enemy, whether 
 loss from such cause be excepted in the policy or not.^ [If 
 the assured joins in active hostilities his life policy becomes 
 void.'^] This was also the doctrine in another case in this 
 country,* where there was a provision in the policy which 
 exempted the company from liability if the insured entered 
 the military service, and it appeared that he was upon the 
 staff of several Confederate generals, though he had no com- 
 mission. The court thought this entering the military ser- 
 vice within the meaning of the policy; but put the case upon 
 the broader ground of public law, which forbids the insur- 
 ance of the life of a person who enters into the service of 
 the enemy, and avoids a policy for that reason, without any 
 stipulation to that effect, and even though the policy ex- 
 pressly agreed to pay if the death occurred in such service.^ 
 
 § 38. Effects of the Civil War. — The question of the 
 effect of the late civil war in this country upon the relations 
 of parties to contracts generally, though not strictly a ques- 
 tion of insurance, has been discussed in several insurance 
 cases, which it may be useful to note in this connection. 
 The general doctrines applicable to the subjects of belliger- 
 
 1 Ex parte. Boussmaker, 13 Vea. Jr. 71. 
 
 2 Ex parte Lee, 13 Ves. Jr. 64. 
 
 8 [Sands v. N. Y. L. Ins. Co., 50 N. Y. 626; Hamilton x,. Mut. L. Ins. Co., 9 
 Blatchf. 234.] 
 
 * Mitchell \\ Mut. Life Ins. Co. of New York, not reported, but cited in Bliss 
 on Life Insurance, 643. 
 
 6 See also New York Life Ins. Co. v. Clopton, 7 Bush (Ky.), 179, and fost, 
 § 39. 
 
 61 
 
§ 39] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. Ill 
 
 ent nations have been declared by the Supreme Court of the 
 United States to be also applicable to the hostile parties in 
 the late civil war ; ^ and by the same court the commence- 
 ment of the period of belligerency was declared to be the 
 date of President Lincoln's first proclamation for troops, 
 though elsewhere ^ it was held to be the 16th of August, 
 1861, the date of the proclamation issued by the President 
 in pursuance of the non-intercourse act passed by Congress 
 on the thirteenth day of July preceding; and domicile in 
 the enemy's territory, without regard to personal sympathy, 
 is the test as to the hostile status of the particular individ- 
 ual. ^ And the line of demarcation is that claimed and held 
 by the belligerent power.* 
 
 § 39. The civil war had not the effect to dissolve a con- 
 tract of life insurance entered into prior to its commence- 
 ment by parties belonging to the respective belligerents, and 
 kept in force until the breaking out of the war. While in 
 such cases as partnership and affreightment, where the per- 
 formance is continuous and unremitting until the end of the 
 contract shall have been consummated, and therefore super- 
 vening war between the parties disables them from perform- 
 ing any of the incumbent duties, and defeats the object of 
 the contract, a dissolution of the contract is the natural and 
 legal effect of the war, neither the principle nor policy of 
 the law will avoid a pre-existing and valid contract which 
 may be performed by a single act, or by periodical acts, be- 
 tween which there is nothing to be done and no continuity 
 of performance, such as the payment of a debt or the pay- 
 ment of premiums. In such a case the suspension of the 
 remedy during the war is the consistent and only legitimate 
 effect of the war. Belligerent policy interdicts the payment, 
 because it might aid the enemy in the prosecution of hostili- 
 
 1 Prize Cases, 2 Black (IT. S.), 635. 
 
 2 Leathers v. Com. In.'S. Co., 2 Bush (Ky.), 296, 298. In the cases of The 
 Protector, 12 "Wall. (U. S ) 700, April 27, 1861, the date of the proclamation of 
 intended blockade was fixed as the day. 
 
 8 Mrs. Alexander'.'! Cotton, 2 "Wall. (IT. S.) 404 ; New York Life Ins. Co. v. 
 Clopton, 7 Bush (Ky.), 179. 
 
 * Prize Cases, 2 Black (U. S.), 635. 
 
 62 
 
CH. III.] THE EFFECT OF WAR. [§ 39 
 
 ties. Suspension of the performance, therefore, until the 
 restoration of peace, will effectuate the whole aim of the 
 law without dissolving the contract, which may be ultimately 
 enforced in perfect consistency with the principle and end 
 of the temporary interdict. In such a case it is the con- 
 tract, and not the performance, which is continuing; and 
 the suspension of the remedy, and not a dissolution of the 
 contract, is all that is necessary, befitting, or just.^ [Con- 
 trary views have, however, been asserted with considerable 
 force, though without any reasons at all comparable in 
 weight with those favoring the ordinary opinion that the 
 contract is only suspended, not avoided by war.^] 
 
 (s) The ordinary contract of insurance does not belong to 
 the class of contracts of continuing performance. It is sui 
 generis, governed by a peculiar and rather arbitrary code of 
 the modern common law, but recently moulded, and not yet 
 stamped in all respects with conclusive authority. Its char- 
 acter, however, is so far matured and established as to dis- 
 tinguish it essentially from ordinary commercial contracts, 
 and especially in the effect of war on its pre-existing valid- 
 ity, which the war as a general rule destroys, whether the 
 contract belongs to the category of continuing performance 
 or not. 2 The rule is the same where the insurers are a 
 mutual company. The relation of insurer to insured is not 
 one of partnership.* 
 
 1 [Insurance is not ipso facto terminated by hostilities which make the in- 
 sured and insurer public enemies. Statbam v. N. Y. L. Itis. Co., 45 Miss. 581 ; 
 Cohen v. Mut. L. Ins. Co., 50 N. Y. 610; 2 Ins. Law Jour. 426 ; Manhattan L. 
 Ins. Co. V. Warwick, 20 Grat. 614 ; Hancock v. N. Y. L. Ins. Co. , 2 Ins. Law 
 Jour. 903, U. S. C. C, East. Dist. Va. If the continuance of the contract implied 
 commercial intercourse it would be void. But it does not. Sands v. N. Y. L. 
 Ins. Co., 50 N. Y. 626 ; 2 Ins. L. Jour. 372 ; Woods v. Wilder, 43 N. Y. 164; 
 Buchanan v. Curry, 19 Johns. 137; Bell v. Chapman, 19 Johns. 183 ; United 
 States V. Wiley, 11 Wall. 508.] 
 
 2 [Tait V. N. Y. L. Ins. Co., MSS. U. S. C. C, West. Dist. of Tenn., cited by 
 Bliss, § 392 ; also Dillard v. Manhattan L. Ins. Co., .44 Ga. 119.] 
 
 3 New York Life Ins. Co. v. Clopton, 7 Bush (Ky.), 179. Sec also post, § 350. 
 « Hamilton v. Mut. Life Ins. Co., 9 Blatch. C. Ct. 234, affirmed by an equally 
 
 divided court in the United States Supreme Court ; Mutual Benefit Life Ins. Co. 
 V. Hillyard, 37 N. J. 444 ; Cohen v. Mut. L. Ins. Co., 50 N. Y. 610. Referring 
 to the cases of Furtado v. Rodgers and Brandon . Curling, ante, § 36, where it 
 was said by the court, — the question arising under a policy of marine insurance, — 
 
 63 
 
§ 39 A] insdeance: fire, liee, accident, etc. [ch. hi. 
 
 [§ 39 A. AWar and the Conditions of the Policy. Premiums, 
 notice, and proof. Limitation of suit. — The condition of 
 forfeiture for non-payment of premiums does not contem- 
 plate war. If within a reasonable time after hostilities have 
 ceased the assured pays or tenders the premiums due, no 
 forfeiture takes place. ^ If there is an agent of the company 
 in the country of the assured, a tender of the premium to 
 him will at least save forfeiture.^ If the company fail to 
 keep an agent in the hostile territory, payment of the pre- 
 miums is excused till after the war.^ Payment to the agent 
 made in Confederate money is good.* If loss occurs during 
 the war the assured may recover on giving notice and proof 
 within a reasonable time after the war.^ War extends the 
 
 that policies entered into prior to the war hecarae void by the supervention of 
 war, as in every such policy there was an implied condition that the insurance 
 should not extend to cover any loss happening during the existence of hostilities 
 between the respective countries of the insured and the insurer, the court, in the 
 above Kentucky case, observe : "It may be a grave question whether the implied 
 condition as to tlie perils of war should be extended beyond the belligerent right of 
 capture or destruction by the government of the insurer,. and to that extent only, 
 we may admit that the continuation of the policy during the war would be illegal, 
 and its pre-existing obligation become avoided. But the principle of this conces- 
 sion would not avoid a policy insuring property which is exempted by law from 
 belligerent power; and while it would avoid a policy insuring the life of one 
 who becomes an actual enemy of the government of the insurer, which had the 
 right to destroy that life, it would not affect the validity of the insurance of the 
 life of a neutral or passive non-combatant, over whose life there is no belligerent 
 power ; for though the domicile makes him a technical enemy, whose property 
 may be lawfully captured as enemy's propertj', yet as such nominal hostility does 
 not subject his life, like his estate, to peril, no belligerent right is affected by the 
 continued validity of the insurance; and, consequently, in such a case neither 
 authority nor principle would avoid a policy any more than if it had insured the 
 life of a child in the cradle, or insured property exempt from capture or confisca- 
 tion." See also Manhattan Life Ins. Co. v. Warwick, 20 Grat. (Va.) 614; Semmes 
 V. City Fire Ins. Co., 6 Blatch. (C. Ct. U. S.) 445 ; s. o. in the Supreme Court of 
 the United States, 13 Wall. (U. S.) 158, 159. See also post, § 350. 
 
 1 [Cohen v. Mut. L. Ins. Co., 50 N. Y. 610.] 
 
 2 [Hamilton v. Mut. L. Ins. Co., 9 Blatch. 234.] 
 
 8 [Id. ; Manhattan Ins. Co. v. Warwick, 20 Grat. 614.] 
 
 * [Sands v. N. Y. L. Ins. Co., 50 N. Y., 626 ; Eobinson v. International Ass. 
 Soc, 42 N. Y. 54. Contra, Manhattan L. Ins. Co. v. Warwick, 20 Grat. 614 
 (company may refuse payment in Confederate money).] 
 
 6 [N. Y. L. Ins. Co. v. Clopton, 7 Bush, 179 ; Cohen v. Mut. L. Ins. Co., 50 
 N. Y. 610 ; Hillyard v. Mut. Ben. L. Ins. Co., 35 S. J. 415 ; Seyms v. N. Y. L. 
 Ins. Co., U. S. C. C. South. Dist. Miss. (MSS.). Contra, Dillard v. Manhattan 
 L. Ins. Co., 44 Ga. 119.] 
 64 
 
CH. IILJ THE EFFECT OF WAE. [§ 40 
 
 statute of limitations/ and the effect upon an agreed limita- 
 tion would no doubt be the same. J 
 
 § 40. Agency as affected by War. — Nor does the occur 
 rence of war revoke the powers of an agent, domiciled in the 
 enemy's country, of a foreign insurance company, having a 
 general agency managed by a board of directors in the coun- 
 try of the other belligerent, by whom the first-mentioned 
 agent is appointed. The Virginia agent appointed by the 
 resident New York agency of a London office is the agent of 
 a neutral, and the contract of insurance effected by the Vir- 
 ginia agent with a citizen of that State in behalf of the com- 
 pany is a contract between a neutral and a belligerent, and 
 the agent's powers are not revoked by the breaking out of 
 war. 2 And even the agent, resident in one belligerent's ter- 
 ritory, of a company established in the territory of the other 
 belligerent, may (or rather musf)^ receive payments of pre- 
 miums as they fall due, and thus keep alive the policy, 
 though he may not remit them,* and his power may be so 
 far suspended that he cannot negotiate policies.^ 
 
 1 [Semmes v. Hartford Ins. Co., 13 Wall. 158 ; Hanger v. Abbott, 6 "Wall. 
 532 ; The Protector, 9 Wall. 687, — even against the United States, see United 
 States V. Wiley, 11 Wall. 508.] 
 
 ^ Robinson v. International Life Assurance Society of London, 42 N. Y. 54 ; 
 Martine o. International Life Assurance Society of London, 62 Barb. (N. Y.) 
 181. See also post, § 350. 
 
 3 [It is the agent's duty to receive the premiums, and if he refuses, the as- 
 sured may, after the war, bring suit for the breach of the contract, .and recover 
 the valae of the policy at the time of the refusal. Hancock v. N". Y. L. Ins. Co., 
 2 Ins. Law Jour. 903 ; Smith v. Charter Oak L. Ins. Co., Gent. L. Jour., Feb. 12, 
 1874 (Mo.). After one tender and refusal it is not necessary to tender the sub- 
 sequently accruing premiums. Id. ; and Sands v. N. Y. L. Ins. Co., 50 N. Y. 
 625 ; Hamilton v. Mnt. L. Ins. Co., 9 Blatch. 234 ; N. Y. L. Ins. Co. v. Clopton, 
 7 Bush, 179 ; Manhattan L. Ins. Co. v. Warwick, 20 Grat. 614 ; Statham v. N. Y. 
 L. Ins. Co., 45 Miss. 581.] 
 
 < New York Life Ins. Co. v. Clopton, 7 Bush (Ky.), 179; Sands v. New York 
 Life Ins. Co., 59 Barb. (N. Y.) 556; Manhattan Life Ins. Co. i/. Warwick, 20 
 Grat. (Va.) 614. And see post, § 350. 
 
 6 Ward!). Smith, 7 Wall. (U. S.) 447, 452 ; [N. Y. L. Ins. Co. i;. Clopton, 
 7 Bush, 179.] In Dillarda. Manhattan Life Ins. Co., 44 Ga. 119, it was held that 
 the insured had no right to pay the premiums to the resident agent in Georgia 
 after the war broke out, nor he to receive; and her failure to pay them according 
 to the stipulations of the policy prevented her recovery, not on the ground of for- 
 feiture by reason of the failure, which the court said would be excusable, because 
 to pay would be illegal, but because the company having contracted, if the pre- 
 voL. I. — .5 65 
 
§ 42] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH/ III. 
 
 § 41. The Lynchburg Hose ,Fire Insurance Company v. 
 Knox was a case where the company sued to recover on a 
 premium note, and the defence was that war had abrogated 
 the contract. But it was held that the war merely sus- 
 pended the contract.^ 
 
 § 42. In Kershaw v. Kelsey,^ Mr. Justice Gray, after a 
 learned and exhaustive review of the authorities upon the 
 effect of war upon contracts between belligerents, comes to 
 the conclusion that the law of nations, as judicially declared, 
 prohibits all intercourse between citizens of the two bellig- 
 erents which is inconsistent with the state of war between 
 their countries, and that this includes any act of voluntary 
 submission to the enemy, or receiving his protection, as well 
 as any act or contract which tends to increase his resources, 
 and every kind of trading or commercial dealing or inter- 
 course, whether by transmission of money or goods, or orders 
 for the delivery of either, between the two countries, directly 
 or indirectly, or through the intervention of third persons 
 or partnerships, or by contracts in any form looking to or 
 involving such transmission, or by insurances upon trade 
 with or by the enemy. Beyond the principle of these cases 
 the prohibition has not been carried by judicial decision, 
 and the more sweeping statements of the text-books rest 
 upon the authority of dicta which are shown to be unsup- 
 ported by the facts under consideration.^ 
 
 miums are paid as stipulated, to pay a certain sum, the premiums not having 
 been so made, no liability had been incurred. But this case is against the current 
 of authorities on both points. The condition in this case was the usual one, that 
 if the premium was not paid as stipulated the policy was to be void. In Howell 
 V. Gordon, in the same State (40 Ga. 302), it is said obiter that the war revoked 
 the powers of an af;ent in Georgia appointed by a citizen of Massachusetts to take 
 care of certain lands in Georgia. 
 
 ' Superior court of the city of Baltimore, reported in the Baltimore Law Tran- 
 script, vol. i. Oct. 24, 1868. The opinion is given in extenso in the first edition 
 of this work, p. 37, note. 
 
 2 100 Mass. 561. 
 
 2 The learned judge continues : "At this age of the world, when all the ten- 
 dencies of the law of nations are to exempt individuals and private contracts from 
 injury or restraint, in consequence of war between their governments, we are not 
 disposed to declare such contracts unlawful as have not been heretofore adjudged 
 to be inconsistent with a state of war. 
 
 (s) "The trading or transmission of property or money which is prohibited 
 
 66 
 
CH. III.J THE EFFECT OF WAE. [§ 42 A 
 
 [§ 42 A. The substance of the whole matter is that public 
 interests overrule private, but that the latter should be in- 
 terfered with no further than is necessary for the public 
 purposes. 
 
 The tendency of international law is to impair private 
 concerns as little as possible by national disputes and war- 
 fare.^ This principle evidently requires that contracts of 
 insurance should be left intact except so far as cut down by 
 these two principles : (1) No aid or support must go to the 
 enemy during hostilities; (2) Citizens of this country shall 
 not contract to indemnify citizens of another country against 
 loss by acts of war by the United States. Such liabilities if 
 allowed would interest our citizens in the success of the 
 enemy. This is the common sense and justice of the mat- 
 ter, and the thought at the heart of the law of it, underlying 
 and justifying the principal authorities above cited. J 
 
 by international law is from, or to, one of the countries at war. An alien enemy 
 residing in tMs country may contract and sue like a citizen. "When a creditor, 
 although a subject of the enemy, remains in the country of the debtor, or has 
 a known agent there, authorized to receive the amount of the debt throughout the 
 war, payment there to such creditor or his agent can in no respect be construed 
 into a violation of the duties imposed by a state of war upon the debtor ; it is not 
 made to an enemy in contemplation of international or municipal law ; and it is 
 no objection that the agent may possibly remit the money to his principal in the 
 enemy's country ; if he should do so, the offence would be imputable to him, and 
 not to the person paying him the money." [A citizen of this country may fulfil 
 a contract with an alien enemy during war time, by a delivery of goods to the 
 alien enemy's U. S. agent. Buchanan v. Curry, 19 Johns. 137, 141. But the 
 agent must have been appointed before the war. United States v. Grossmayer, 
 9 Wall. 72, 75.] [The law does not presume that a debt will be paid over to an 
 enemy during war, even though paid to his agent. Buchanan v. Curry, 19 Johns. 
 137 ; Denniston v. Imbric, 3 "Wash. C. C. 396.] 
 
 1 [Clarke v. Moray, 10 Johns. 69 ; Soholefield v. Eichelberger, 7 Peters, 686 ; 
 Bradwell v, "Weeks, 13 Johns. 1.] 
 
 67 
 
INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH, IV. 
 
 Analysis. 
 
 CHAPTER IV. 
 
 CONSUMMATION OP THE CONTRACT. 
 
 1. 
 
 §§ 43, 43 A. The contract is not complete until the parties arrive at an under- 
 standing of its terms, the proposals of one party being accepted 
 by the other, and the risk does not attach until all conditions 
 precedent are fulfilled. An accepted application or a renewal 
 receipt imports an agreement to issue a policy (§ 43 ; see also 
 § 44). Witness may state facts, but not his opinion that the 
 contract "was complete (§ 43 A). 
 
 § 43 B. Terms may be fixed by past dealing. 
 
 § 43 C. The contract may be complete without payment of premium, or 
 
 giving bond to pay assessments ; 
 
 § 43 D. and in spite of mistake in the name of the vessel or of the agent 
 
 as to the identity of the assured (§ 43 D), or in charging a less 
 premium than he ought (§ 43 E). 
 
 § 43 E. An agreement to give a policy on a certain contingency is good and 
 
 enforceable when the contingency happens. 
 
 2. 
 
 § 43 F. The contract is not complete if the minds of the parties have not 
 
 met on the terms and subject-matter, as on account of writing so 
 bad that board is taken for Iriclc, or because the negotiations 
 are indeterminate as to the apportionment of the insurance, the 
 amount of premium original or additional, the company or the 
 property to be covered, or because the necessary approval has not 
 • been given. 
 
 § 43 G. A loss or alteration known to the assured before completion of the 
 
 contract, and undisclosed, is fatal. 
 
 § 43 H. An application and delay in acting on it is not suiEcient to make 
 
 a contract. The application is a mere proposal. 
 
 § 44. " Binding-book." Unorganized company. 
 
 §§ 45, 45 a. Execution of Policy after loss. If nothing remains to be done but 
 to execute what has been agreed upon, the company is bound, 
 though a loss happen before the policy is made. Recovery may 
 be had on a policy issued after loss, and the unpaid premium is 
 a credit on the amount. 
 
 §§ 46-49. Negotiations by Mail. Some cases hold the contract incomplete 
 
 until the letter of acceptance is received; but it is impossible to 
 make any rule in the premises that shall secure a certain meeting 
 of minds at the same moment. If the receipt is fixed upon, the 
 
 68 
 
CH. IT.] CONSUMMATION OF THE CONTRACT. 
 
 insured may change his mind between the mailing and the de- 
 livery of his acceptance. If the time of mailing governs, still the 
 company may change their minds before that time, or even be- 
 fore their offer reaches the insured. A mathematically consis- 
 tent solution being impossible, convenience and practicality must 
 shape the rule, and to hold the contract completed by mailing 
 the acceptance within a reasonable time and before notice of 
 withdrawal is best for the despatch and definiteness of business. 
 It saves a prolonged series of manoeuvres and uncertainties that 
 could result in no good. This is the rule adopted by the United 
 States Supreme Court, and by the great weight of authority 
 (Mass. ? § 48). The letter must be properly addressed and 
 stamped (§ 48 n.). 
 
 §§ 50-52. Until the parties have agreed on the terms there is no contract, even 
 
 though the premium be paid or the agent of the company tell 
 the applicant that he may hold himself insured (see § 54). 
 §§ 54, 54 C. Agreement with agent subject to approval of the priucipal. 
 
 Where the agent insures subject to disapproval, reasonable no- 
 tice must be given of the disapproval (§ 54 B). An applica- 
 tion once approved cannot be arbitrarily rejected afterward 
 (§54C). 
 § 53. Acceptance. Unconditional or conditional with fulfilment of the 
 
 condition is necessary to a complete contract. A mere mental 
 assent indicated by no outward expression, silence even though 
 long continued, or a letter still in the possession of the writer, 
 are insuflcient, but anything which amounts to a manifestation 
 of a formal determination to accept, communicated or put in the 
 usual and proper way to be communicated to the party making 
 the offer, completes the contract. Indorsing shipments on the 
 policy though required by the contract is a mere form, which 
 the company cannot refuse after loss. 
 
 4. 
 
 § 55. Policy may be held for payment of premium if so agreed, the appli- 
 
 cant having the option to take or refuse the policy. In this case 
 the contract is not complete until such choice is exercised, and 
 payment of the premium by a stranger without knowledge of the 
 applicant is not sufficient. 
 
 Life, Neither illness nor death of the applicant will authorize the agent 
 
 to refuse to deliver the policy on tender of the premium. 
 
 §§ 55 A, 56. Delivery and payment. Unless made so by law or agreement, de- 
 livery is not a condition precedent to a complete contract {§§ 43, 
 55 A). 'Bnt prima facie the contract is incomplete if there has 
 been neither delivery of the policy nor payment of premium. 
 On the other hand, even delivery and payment combined are not 
 conclusive of a valid contract. Posses.sion of the policy by the 
 insured makes a. prima facie case for him, subject to proof that 
 it was not delivered to him with consent of the insurers or that 
 it is void for fraud or error, &c. Possession by the insurers 
 leaves the presumption with them, and the burden is on the 
 
 69 
 
INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. IV. 
 
 insured to show that the parties intended the contract to be 
 
 valid without further action. * 
 
 What constitutes delivery of the policy is a question of intention 
 
 on the facts. No formal transfer and acceptance is necessary. 
 
 The agreement on all the terms and the transmission of a policy 
 
 to the agent, to be delivered without conditions or further act 
 
 on the part of the insured, is equivalent to delivery (§ 60). 
 
 delivery may he made by mail, but the policy must be such as 
 
 the applicant is bound to accept, 
 deliveiy of the policy does not waive the condition as to prepay- 
 ment of the premium, § 56. 
 §§ 57, 58. Contract with agent, payment of premium and receipt subject to 
 approval of company. Cases not entirely consistent. It is held 
 that the company cannot be allowed to reject a fair contract 
 merely because loss has intervened, and also that where a pre- 
 mium is paid and an application made " if not approved money 
 to be refunded " there is no contract, but merely a proposal for- 
 warded by the agent. It is sometimes agreed that the insurance 
 shall be good for thirty days or until notice of disapproval. 
 Neglect of the agent to forward the application, or other neglect in 
 the scope of his business will not prejudice the insured, § 58; 
 (see also § 64). 
 § 59. Interim receipts bind the parties by the conditions of the policy ordi- 
 
 narily used by the company, except as to conditions of which 
 the insured is ignorant by fault of the company. If the receipt 
 is broader than the policy, the former governs. 
 
 § 61. Obligations mutual. If the applicant may demand a policy, the 
 
 company may demand the premium. This is clear on principle, 
 though there are decisions to the contrary. 
 § 62-64 A. Charter and By-laws (see ch. 2 and 1). 
 
 the time and manner of contract must conform to chai'ter, § 63. 
 if a deposit note is required by, to complete the contract it is 
 
 essential) § 63. 
 all who take out policies are bound by existing charter, by-laws, 
 
 and statutes, § 63 n. 
 are notice to all dealing with the company, § 63, e. g., of the 
 
 powers of agents, § 63 n. 
 cannot be waived by the oiBcers, § 63. 
 contra, in favor of one asking for by-laws when dealing with 
 
 agent and not receiving them, § 62. 
 company may however be bound, though the charter conditions 
 
 are not fulfilled before loss, § 64. 
 an agreement to issue a policy failing of fulfilment before loss 
 
 only by neglect of the officer binds the company, § 64. 
 subsequent change of charter or by-law, no effect on policy unless 
 
 so agreed, § 64 A. 
 by-law repugnant to policy is excluded, 64 A. 
 mutual company policy-holder becomes a member of the company, 
 
 and is bound as such, §§ 62-64 A. 
 
 70 
 
OH. IV.] CONSUMMATION OF THE CONTRACT. [§ 43 
 
 by-laws not part of contract in Massachusetts unless incorpo- 
 rated in full into the policy. Pub. Stats. 712. 
 
 § 65. Countersignature, of the agent is necessary, if required by the terms 
 
 of the policy or by the charter. A waiver or equivalent of the 
 ceremony is however possible ; for example, by delivery of tJie 
 policy without the signature, but proof of proper delivery is 
 essential. 
 
 §§66, 66 A. The place of contract, by the law of which its validity is determined, 
 is the location of the home office if accepted and completed there, 
 but if countersigning by the agent is necessary, or the policy is 
 to be delivered only on receipt of the premium, the contract is 
 completed at the place of the agency. 
 
 § 66 A. Interpretation may be governed by another law than the validity. 
 
 Division of a State does not affect existing contracts. 
 
 § 43. Contract, when completed. — Prom the extent and 
 peculiar character of the operations of insurance companies 
 and their agencies questions frequently arise, sometimes of 
 great difficulty, as to the fact whether any contract has been 
 made. Negotiations have been had, but have they resulted 
 in a contract? This, of course, depends upon the question, 
 whether the respective parties have come to an understand- 
 ing upon all the elements of the contract, —the parties 
 thereto; the subject-matter of insurance; the amount for 
 which it is to be insured; the limits of the risk, including 
 its duration in point of time, and extent in point of hazards 
 assumed ; the rate of premium ; and, generally, upon all the 
 circumstances which are peculiar to the contract and dis- 
 tinguish it from every other, so that nothing remains to be 
 done but to fill up the policy and deliver it on the one hand, 
 and pay the premium on the other. If, upon all these points, 
 an agreement has been arrived at, and no stipulation is made 
 that the delivery of the policy shall be the test of the con- 
 summation of the contract, and no law makes such delivery 
 a condition precedent to its validity from that time, unless 
 another time is fixed, the contract is complete, and binds 
 the parties. The policy, as we have seen,i is not essential 
 to its validity. It is but the form and embodiment, the 
 expression and evidence, of what has already been agreed 
 upon, adding nothing thereto and detracting nothing there- 
 from. And whether issued immediately upon the arrival at 
 
 1 Ante, ch. ii. 
 
 71 
 
§ 43 A] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. IV. 
 
 a mutual understanding, or subsequently, before the loss or 
 after the loss, with or without knowledge, or not issued at 
 all, the obligations of the parties are not affected. If the 
 insurers refuse under such circumstances to issue a policy 
 because a loss has intervened, or any other change has taken 
 place which would not be a, defence under the policy if that 
 had been delivered, they will not be allowed by the law to 
 take advantage of the fact that no policy has been issued, 
 but in divers modes, stated in another place, ^ will be com- 
 pelled to recognize their obligations just as fully as if a pol- 
 icy had been issued. An accepted application imports an 
 agreement to issue the policy used by the insurers in exe- 
 cution of the contract ; and this policy, when issued, becomes 
 the evidence of the contract,^ In Lightbody v. North Amer- 
 ican Insurance Company, the premium having been paid 
 and a receipt taken, it was held that insurance related back 
 to the date of the receipt, though the policy was not deliv- 
 ered till some three weeks after, and after the fire.^ If the 
 terms of the policy transmitted for delivery be changed by 
 an authorized agent upon further negotiation with the in- 
 sured, the insurance will take effect from the change, and 
 not from the date of the policy.* 
 
 [§ 43 A. The Contract is Complete when the terms are 
 fixed, and everything which by law or agreement was made 
 a condition precedent to liability, has been done. All the 
 terms must be agreed on and everything be done but filling 
 up and delivery of the policy, on one side, and paying the 
 premium on the other ;^ and^ as we shall see, payment of 
 the premium is usually made a condition precedent, and de- 
 livery may be also. A slip of policy containing the terms 
 of insurance is a binding contract, and puts the risk on the 
 company.^ A contract to insure the life of the applicant for 
 115,000, payable to his wife, according to the form of policy 
 
 1 Post, §§ 565, 566. 
 
 2 Fuller V. Madison Mut. Ins. Co., 36 Wis. 599 ; ante, § 23. 
 8 23 Wend. (N. Y.) 18. And see post, § 130. 
 
 * Gloucester Manuf. Co. v. Howard Ins. Co., 5 Gray (Mass.), 497. 
 " [People's Ins. Co. ;;. Paddon, 8 Brad. 447.] 
 » [Thompson v. Adams, 23 Q. B. D. 361.] 
 72 
 
CH. IV. J CONSUMMATION OF THE CONTRACT. [§ 43 C 
 
 in use by the company, is sufficiently certain to be enforced.^ 
 It is incompetent for a witness to say that in his opinion 
 insurance is effected and completed by the acceptance of 
 the order. ^] 
 
 [§ 43 B. Terms fixed hy Past Dealings. — If the agreement 
 is silent as to the rate of premium, duration of policy, or 
 other essential matter, standing alone it is void for uncer- 
 tainty, but it may be aided by past transactions between the 
 same parties, these elements being presumed to continue the 
 same in the new contract.^ Where F., an insurance agent, 
 had for several years insured the property of W., each time 
 for a year, and a new contract of insurance is made, no pre- 
 mium or duration of risk being specified, and the property 
 burns before delivery of the policy, it will be presumed that 
 the premium and duration were intended to be the same as 
 in the past, and the minds of the parties will be held to have 
 met in a complete contract.*] 
 
 [§ 43 C. Contract may be complete without Premium, or 
 Bond to pay Assessm,ents. — Where all the details of the in- 
 surance were agreed on between a broker and the company's 
 agent, and the premium fixed, and there was evidence of a 
 usage to give the broker credit on premiums to the end of 
 the month, the contract was held complete.^ Where the 
 plaintiff asks the agent for insurance, and he examines the 
 property and agrees with the plaintiff as to the amount of 
 insurance on each parcel, the preliminary survey is complete 
 except the plaintiff's given name, the survey is handed to 
 the secretary and approved by him, the record is made in 
 the books of the company, the secretary's fee for the policy 
 is paid, and the agent tells the plaintiff her insurance is all 
 right, and the policy will be along in due time, the contract 
 is complete although the plaintiff had not executed the bond 
 to pay all assessments, it being customary to execute that 
 
 1 [Hebert u. Mut. L. Ins. Co., 12 Fed. Rep. 807 (Or.), 1882, 14 Eepr. 198, 
 8 Sawy. 198 ; s. 0. sub nom. Herbert v. Mut. L. Ins. Co., 11 Ins. L. J. 567.] 
 
 2 [Lindauer v. Delaware Ins. Co., 13 Ark. 461, 470.] 
 s [Home Ins. Co. v. Adler, 71 Ala. 516.] 
 
 * [Winne v. Niagara F. Ins. Co., 91 N. Y. 190.] 
 6 [Ruggles V. Am. Cent. Ins. Co., 114 N. Y. 418.] 
 
 73 
 
§ 43 E] INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. IV. 
 
 when the policy was delivered. There is nothing doubtful 
 about such a contract. The record on the company's books 
 is the basis of, and substantially the same as the policy, and 
 it is evident that the company intended to insure the plain- 
 tiff; the minds of the parties had met. ^] 
 
 [§ 43 D. Contract complete in spite of Mistake in Name of 
 Vessel, or in regard to the Identity of the Assured. — There 
 can be no contract of insurance, and hence no liability, 
 where the parties' minds do not meet as to the object of in- 
 surance.^ But a mere mistake in the name of the vessel is 
 of no moment if, in fact, both parties had in mind the same 
 ship. An instruction that if the insurance agent making a 
 policy to J. B. Travis, at the instance of Dr. Joseph Travis, 
 agent of J. B. Travis, supposed that the doctor was the per- 
 son being insured, then the policy is not a contract with J. 
 E. Travis, is error. If there was fraud, on the part of the 
 insured, if he knew the mistake under which the insurer 
 was laboring, and failed to remove his error, he could not 
 hold the company; but where there has been no misrepre- 
 sentation or suppression of truth by the Insured in such a 
 case of mistaken identity, the policy is good. ^ (a)] 
 
 [§ 43 B. Agreement to give a Policy on a certain Contin- 
 gency good. — An agreement to insure a cargo to be laden, 
 if the vessel sail within a given time, which provides means 
 for ascertaining the amount to be covered, and the rate of 
 premium, when lading is done and the vessel's sailing day 
 fixed, though these are contingent, is valid, and the insurers 
 are bound to give a policy on the vessel's sailing within the 
 given time, and the insured is bound to pay the premium 
 accordingly ; and the Issuing of a policy on such an agree- 
 ment, with material errors resulting from the agent's mis- 
 take, and the agent's further error in charging a less 
 premium than is usually charged, or than he had authority 
 
 ' [Van Loan v. Farmers' Mut. F. Ins. Co., 24 Hun, 132.] 
 
 2 [Hughes V. Mercantile Mut. Ins., 55 N. Y. 265, 268.] 
 
 3 [Travis v. Peabody Ins. Co., 28 W. Va. 583, 698.] 
 
 (a) An insurance policy is not in- v. Hamburg-Bremen F. Ins. Co., IZ'6 
 valid because no particular person is N. Y. 394. 
 therein named as the assured. Weed 
 
 74 
 
CH. IV.] CONSUMMATION OT THE CONTRACT. [§ 43 'Gr 
 
 to charge, do not impair the policy, and the plaintiff may 
 recover after deducting the balance of unpaid premium.^] 
 
 [§ 43 F. When the Contract is not complete. — If the 
 minds of the parties have not met on all the essential terms 
 there is no contract.^ Where the applicant writes "board " 
 so poorly that the company take it for "brick," and issue a 
 policy on a brick building, the minds of the parties did not 
 meet. 2 Where there is to be some apportionment of the in- 
 surance between mill and machinery, and what the division 
 shall be has not been agreed on, the contract is not com- 
 plete.* Where an additional premium is left undetermined, 
 and it is a condition precedent to recovery, it must be fixed 
 and paid to make the company liable.^ Clifford, J., dis- 
 sented to both cases on the ground that the premium was 
 left to be fixed according "to the established rate at the 
 time of shipping, &c.," which was determinate, and if by 
 the company's fault in demanding a rate above the one in- 
 dicated the premium was not paid, the company was not 
 freed. Where the terms are decided upon by the agent and 
 the insured, but no company designated, and no company 
 agrees to take the risk on the said terms, there is no con- 
 tract.^ If the agent acts for several companies, and no par- 
 ticular company is named in the negotiations, or fixed by 
 prior dealings, the contract is not complete. '^ The contract 
 is not complete until the property to be covered has been 
 specifically designated.^ When anything remains to be 
 done before the insurance takes effect, for example, ap- 
 proval, it is absolutely void if that precedent condition is 
 not performed.^] 
 
 [§ 43 G. Completion after Loss or Alteration undisclosed is 
 
 1 [Biinteu V. Orient Mut. Ins. Co., 8 Bosw. 448.] 
 
 2 [Bishop of C. V. Western Ass. Co., 22 N. B. R. 242.] 
 
 3 [Smitli V. City of London Ins. Co., 11 Ont. E. 38, 50.] 
 
 * [Kimball v. Lion Ins. Co., 17 F. Eep. 625 (R. I.), 1883.] 
 6 [Orient Mut. Ins. Co. „. Wright, 23 How. 401 ; Sun Mutual v. Wright, 23 
 How. 412, 413.] 
 
 " [Sheldon v. Hekla F. Ins. Co., 65 Wis. 436.] 
 ' [New Orleans Ins. Ass. v. Boniel, 20 Fla. 815.] 
 
 8 [Matoon Manuf. Co. v. Oshkosh Mut. F. Ins. Co., 69 Wis. 564.] 
 
 9 [Winnesheili: v. Holzgrafe, 53 111. 516. See §§ 55, 57-58.] 
 
 75 
 
§ 44] INSOKANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. IV. 
 
 insufficient. — A contract not completed till after loss, and 
 when the insured knew of the loss, is bad, although the 
 policy is antedated.^ If there is a material alteration be- 
 tween the acceptance of the proposal and the tender of the 
 premium, the company is not bound to accept it.^] 
 
 [§ 43 H. Application, and Delay in acting on it, insuffi- 
 cient. — An application is not a contract but a mere offer, 
 or proposal, which may be rejected,^ and it cannot be con- 
 verted into a contract by delay in acting upon it.* An ap- 
 plication to a mutual company was sent August 9. At the 
 next regular meeting of the company, September 25, it was 
 rejected. This was held a reasonable time, and the com- 
 pany was not accounted liable for a loss in the mean time.^ 
 Silence after a proposal is not consent unless there is a duty 
 to speak. Where the insured applied to have the policy 
 continued in force temporarily, and received no reply, no 
 liability of the company was created.^] 
 
 § 44. " Binding-book. " Unorganized Company. — The agree- 
 ment for insurance is complete when the terms thereof have 
 been agreed upon between the parties, and the reciprocal 
 rights and obligations of the insurer and the insured date 
 from that moment, without reference to the execution and 
 delivery of the policy, unless these two elements are em- 
 braced within the terms agreed upon. The contract imports 
 an obligation on the part of the insurer to execute and de- 
 liver a policy to the insured. Thus, where a renewal receipt 
 was taken for a policy payable to a mortgagee to the extent 
 of his interest, and a policy was issued by mistake directly 
 to the mortgagee as the insured, and after loss the mort- 
 gagee was paid with the assent of the mortgagor, it was held 
 that the latter might maintain an action for the balance of 
 
 1 [Wales V. N". Y. Bowery F. Ins. Co., 37 Minn. 106.] 
 
 2 [Canning v. Farquhar, 16 Q. B. D. 727.] 
 
 8 [Covenant Mnt. Ben. Ass. v. Conway, 10 Brad. 348 ; Rowland v. Spring- 
 field F. & M. Ins. Co., 18 Brad. 601. (The company must act promptly, how- 
 ever, and return the premium).] 
 
 4 [Heiman v. Phcenix Mut. L. Ins. Co., 17 Minn. 153.] 
 
 6 [Harp 0. Grangers' Mut. F. Ins. Co., 49 Md. 307, 309.] 
 
 6 [Royal Ins. Go. v. Beatty, 119 Pa. St. 6.] 
 76 
 
CH. IV.J CONSCMMATION OF THE CONTRACT, [§ 45 
 
 the amount insured, on the agreement for a policy as by his 
 receipt appeared. ^ So, liability was enforced in the follow- 
 ing somewhat anomalous case: A mutual company, whose 
 charter provided that it might organize and proceed to busi- 
 ness when fifty applications had been procured, and that any 
 person might become a member by subscribing to an appli- 
 cation and paying a certain sum stated, but that there should 
 be no liability until fifty applicants had been obtained, hav- 
 ing procured the requisite number, organized and voted to 
 issue policies. Before any policy was issued the loss oc- 
 curred. The directors refused to issue a policy or to recog- 
 nize the claim.2 And on the completion of the negotiations, 
 the policy, executed in accordance therewith, and dated on 
 the day of the completion, though not actually delivered till 
 afterwards, or at all, or if antedated when executed and 
 delivered, will take effect from its date, unless some other 
 terms are expressly agreed upon.^ It is a customary thing 
 for an insurance agent to bind his principal by an oral 
 agreement, a memorandum of which he inserts in his " bind- 
 ing-book," so called.* (a) 
 
 § 45. Distinction betiveen Policy and Agreement to insure. 
 — There is at least a technical distinction between a con- 
 tract of insurance or policy and an agreement to insure. 
 The latter may, and in point of fact does, exist prior to 
 
 1 Akin V. Liverpool, &c. Ins. Co., C. Ct. (Ark.), 6 Ins. L. J. 341. 
 
 2 Van Slyke v. Trempealeau County, &c. Ins. Co. (Wis.), 9 Ins. L. J. 633. 
 
 s Lightbody v. North Am. Ins. Co., 23 Wend. (N. Y.) 18 ; Hallock v. Com- 
 mercial Ins. Co., 2 Dutch. (N. J.) 268 ; s. c. affirmed, 3 id. 645 ; Flint v. Ohio 
 Ins. Co., 8 Ohio, 501 ; Xenos v. Wickham, 2 Law Eepts. (H. L.) 296 ; Ameri- 
 can Horse Ins. Co. v. Patterson, 28 Ir;d. 17; Lefavour v. Insurance Co., 1 Phila. 
 558 ; Baldwin v. Chouteau Ins. Co., 56 Mo. 151 ; post, § 45 a. 
 
 * Putnam v. Home Ins. Co., 123 Mass. 324 ; ante, §§ 22, 23. 
 
 (a) Where, upon brokers applying for to the brokers about four o'clock, it was 
 insurance from the defendant, which was held, the fire occurring shortly after three 
 agreed to, a binding slip was given until o'clock, that the slip must be construed 
 the regular policy could be made out, as if it expressed that the insurance 
 and later in the day the defendant sent was under the conditions of the ordinary 
 a messenger to notify the brokers that policy. Karelsen v. Sun Fire Office, 
 it declined the risk, hut their office being 122 IST. Y. 545. See infra, §59; Un- 
 closed, the notice was duly given the denvood v. Greenwich Ins. Co., 161 
 next day, according to the defendant N. Y. 413, 659 ; Phcenix Ins. Co. v. 
 not later than half-past one, according Hale (Ark.), 55 S. W. 486. 
 
 77 
 
§ 45 a] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. IV. 
 
 the drawing up and the delivery of the policy, and contem- 
 plates the delivery of the policy as the consummation of the 
 agreement. And upon this distinction much important and 
 interesting litigation has arisen. It being settled that in 
 surers may now become liable for a loss although they may 
 not have issued a policy, the question often arises, when 
 that liability is fixed ; in other words, when the negotiations 
 have reached such a point that if the insurers refuse to issue 
 a policy the courts will interpose 'to compel them to issue 
 one, or to indemnify the insured to the same extent and in 
 like manner as if they had issued a policy. This interposi- 
 tion will usually be successfully invoked when the negotia- 
 tions have reached such a point that nothing remains to be 
 done by either party but to execute what has been agreed 
 upon. Thus, in Kohne v. Insurance Company of North 
 America,! tj-,e plaintiff's agent applied for insurance, and 
 agreed upon all the terms, but left the office before the pol- 
 icy was filled out. This, however, was filled out within a 
 few hours, and notice thereof given by the company, accom- 
 panied, however, by notice that the company had received 
 information that a loss had happened. On calling for the 
 policy and tendering the premium, the agent was refused, 
 on the ground that a loss had happened before the delivery, 
 and the contract was not complete. But the court held 
 otherwise, as everything had been agreed on, and nothing 
 remained to be done but to carry out the terms already 
 agreed on; and the plaintiff had a verdict.^ 
 
 § 45 a. Policy executed after Loss. — As another practical 
 illustration of the doctrine that where the parties have come 
 to an agreement upon all the terms, and nothing remains 
 but to execute what has already been agreed upon, a policy 
 must issue, may be stated the case of Mead v. Davidson, ^ 
 where it appeared, in an action on a policy on a ship, "lost 
 
 1 1 Wash. (U. S. C. C.) 93. 
 
 2 This case was trover for the policy. The amount of damages is not stated 
 in the case as reported, but it was undoubtedly the same as if the plaintiff had 
 sued and recovered on the policy, had it been delivered. See also Goodall v. 
 New England Mut. Fire Ins. Co., 5 Fost. (N. H.) 169. 
 
 8 4 Ad. & Ell. 303, in the K. B. ; ante, § 44. 
 78 
 
CH. IV.] CONSUMMATION OF THE CONTRACT. [§ 46 
 
 or not lost," that the risk had been accepted and the pre- 
 mium paid before loss; but before the delivery of the policy 
 — what was not known to either party at the time the agree- 
 ment was made and the premium paid — it came to the 
 knowledge of both parties that a loss had happened, not- 
 withstanding which the company, recogni'zing their obliga- 
 tion under the agreement, executed and delivered a policy in 
 accordance therewith. And the question was whether such 
 a policy, so executed after knowledge on the part of both 
 parties of the loss, could be upheld. Upon this point the 
 court had no doubt. The delivery was only in execution of 
 what the company had agreed to do upon sufificient consider- 
 ation.^ So, also, where a policy was renewed by payment 
 of premium to an agent of the company, who gave a receipt 
 therefor, but the general agent declined to renew, but paid 
 the money, October 16, to the defendants, who on the same 
 day issued a policy, based on the application to the former 
 insurance company, covering the premises for one year from 
 October 2d. The property was destroyed on the 13th Octo- 
 ber. The plaintiff did not know of the last transaction till 
 he received the policy. It was held that the plaintiff might 
 recover, there being no fraud; that the statements in the 
 application were to be taken as of October 2d, and that the 
 insurance was in effect " burnt or not burnt. " ^ [Recovery 
 may be had on a policy, issued after loss in pursuance of a 
 prior parol agreement, and the unpaid premium is a credit 
 on the amount recoverable on the policy.^] 
 
 § 46. Negotiation by Correspondence. — When the nego- 
 tiations are carried on by correspondence through the mail, 
 
 1 Excelsior Fire Ins. Co. v. Royal Ins. Co., 5.5 N. Y. 343 ; Marx v. National 
 Mar. Ins. Co , 25 La. An. 39 ; City of Davenport v. Peoria Fire Ins. Co., 17 Iowa, 
 276 ; Baldwin v. Chouteau Ins. Co., 56 Mo. 151 ; Insurance Co. o. Colt, 20 Wall. 
 (U. S.) 560 — the last two cases where credit was given for the premium, which 
 was paid after the loss, the insurers not knowing of the loss, — and Keim «. 
 Home Mut. Ins. Co., 42 Mo. 38, where the facts were similar, and the policy, 
 delivered after the loss, provided that it should not take effect till the premium 
 was paid. 
 
 2 Giffard v. Queen Ins. Co., 1 Hannay (N. B.), 432. See also Horter v. Mer- 
 chants' Mut. Ins. Co., 28 La. An. 730. 
 
 8 [Home Ins. Co. v. Adler, 71 Ala. 516.] 
 
 79 
 
§ 47] INSURAKCE : FIRE, LIFE, ACCIDENT, ETC. [CH. IV. 
 
 the precise point at which the contract becomes binding' on 
 both parties has been the subject of diverse opinions held by 
 equally distinguished tribunals. On the one hand, it has 
 been held that when a party applies for insurance by letter, 
 and receives, a reply stating the terms upon which the insur- 
 ance can be had, to which the applicant replies accepting 
 the terms, the contract does not become binding until the 
 letter of acceptance is received, or, at all events, the fact of 
 acceptance has in some way come to the knowledge of the 
 insurers.^ 
 
 On the other hand, at about the same time the Court of 
 King's Bench, in Adams v. Lindsell,^ where the defendants 
 offered, by letter, to sell the plaintiff a lot of wool upon cer- 
 tain terms, requesting an answer by due course of mail, to 
 which letter the plaintiff, as soon as he received it, replied, 
 accepting the offer, held that the contract was complete 
 when the plaintiff mailed the letter accepting the offer, as 
 otherwise no contract could ever be completed by the post.^ 
 
 § 47. Contract by Letter (continued). — The same question 
 has been before the Court of Errors of New York,* the 
 Supreme Court of Pennsylvania,® and the Supreme Court of 
 the United States. ^ In the first of these cases, the letter of 
 acceptance, after much correspondence, was mailed before 
 
 1 McCuUoch V. Eagle Ins. Co., 1 Pick. (Mass.) 270. The court cited Cooke 
 V. Oxley, 3 D. & E. 653, which was a case where the defendant offered to sell 
 tobacco to the plaintiff npon certain terms, and at the plaintiffs request gave 
 him till a certain time to accept or reject, before the arrival of which time notice 
 of acceptance was given, and the court held that there was no contract ; and 
 Payne v. Cave, 3 D. & E. 148, which was a case where the court held that a 
 bidder at an auction had a right to withdraw his bid at any time before the 
 hammer was down ; that is, at any time before the acceptance of the bid. The 
 doctrine of this last case is fully sustained by Pothier, Traite du Contrat de 
 Vente, p. 1, § 2, art. 3, no. 32. 
 
 2 1 Barn. & Aid. 681. 
 
 3 The cases of Payne i'. Cave and Coote v. Oxley, ubi s^ipra, were cited in 
 this case by the defendants' counsel, but the court did not regard them as 
 authoritative. During the delay which intervened between the forwarding of 
 the offer, which by misdirection did not reach the plaintiff in the usual season, 
 the defendants had sold the wool to another purchaser. 
 
 « Mactier v. Frith, 6 Wend. (N. Y.) 103. 
 6 Hamilton v. Lycoming Mut. Ins. Co., 5 Barr (Pa.), 339. 
 « Tayloe v. Merchants' Fire Ins. Co., 9 How. (U. S.) 390. 
 80 
 
CH. IV.j CONSUMMATIOiT OF THE CONTEACT. [§ 47 
 
 the death of the party to whom it was addressed, but did 
 not arrive at its destination till after the death ; and the 
 court approved and adopted the doctrine of the English case, 
 as well upon the reason of the thing, as upon the apparent 
 approval of the same by the Court of Common Pleas, in 
 Eoutledge v. Grant. ^ — The case in Pennsylvania was a 
 little more complex in its facts, which were substantially as 
 follows : The plaintiff applied to the agent of an insurance 
 company by written application for insurance upon an acad- 
 emy building, agreed upon the terms, and paid the pre- 
 mium, and received a certificate from the agent that the 
 property would be insured from the date of the application, 
 if the company approved. On transmitting the papers to 
 the company, without approving the application they wrote 
 to the agent that the plaintiff must make certain changes ; 
 and when the company were duly certified that these requi- 
 sites were complied with a policy would be sent. These 
 requisites were complied with, and the agent duly notified 
 thereof, and requested to call and examine for himself; 
 which however he, from press of business, neglected to do 
 until the building insured was burned. On a refusal by the 
 company to pay the loss on the ground that no contract had 
 been perfected, the court, adopting the principle of the 
 English case, held that the contract was completed by notice 
 given to the agent of his compliance with the requisitions 
 of the company. He had performed that in consideration of 
 which a policy had been promised, and he was therefore en- 
 titled to his policy. In the case in the Supreme Court of 
 the United States, the facts were that the plaintiff applied 
 for insurance to the company's agent, who, after communi- 
 cation with his principal, wrote the plaintiff stating the 
 terms, and added, that if he wished to insure he could send 
 his check for the premium, " and the business is concluded. " 
 This letter was delayed by misdirection; but as soon as re- 
 ceived and before any loss, the plaintiff replied, accepting 
 the terms, and enclosing his check. The letter of accep- 
 tance, however, did not reach the agent till the property in- 
 
 1 4 Bing. 653. 
 VOL. I. —6 81 
 
§ 48] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. IV. 
 
 sured had been destroyed. In this case also it was claimed 
 by the insurers that no contract had been completed. But 
 the court held that the contract was complete by the accep- 
 tance transmitted in due course of mail.^ 
 
 § 48. And the doctrine of this latter case must now be 
 considered as the one which is supported by the great pre- 
 ponderance of authority, and as recommended, if not by the 
 better reason, at least by its greater practicability, — a con- 
 sideration which seems to have had controlling influence in 
 leading to its adoption. ^ 
 
 1 " If the contract," say the court, " hecame complete, as we think it did, on 
 the acceptance of the offer by the applicant, on the 21st December, 1844, the 
 company, of course, could have no knowledge of it until the letter of acceptance 
 reached the agent, on the 31st of the month ; and, on the other hand, upon the 
 hypothesis it was not complete until notice of the acceptance, and then became so, 
 the applicant could have no knowledge of it at the time it took effect. In either 
 aspect, and, indeed, in any aspect in which the case can be presented, one of the 
 parties must be unadvised of the time when the contract takes effect, as its con- 
 summation must depend upon the act of one of them in the absence of the other. 
 
 " The negotiation being carried on through the mail, the offer and acceptance 
 cannot occur at the same moment of time ; nor, for the same reason, can the 
 meeting of the minds of the parties on the subject be known by each at the 
 moment of concurrence ; the acceptance must succeed the offer after the lapse of 
 some interval of time ; and, if the process is to be carried farther in order to com- 
 plete the bargain, and notice of the acceptance must be received, the only effect is 
 to reverse the position of the parties, changing the knowledge of the completion 
 from the one party to the other. 
 
 " It is obviously imijossible, therefore, under the circumstances stated, ever to 
 perfect a contract by correspondence, if a knowledge of both parties at the mo- 
 ment they became bound is an essential element in making out the obligation. 
 And as it must take effect, if effect is given at all to an endeavor to enter into a 
 contract by correspondence, in the absence of the knowledge of one of the parties 
 at the time of its consummation, it seems to us more consistent with the acts and 
 declarations of the parties to consider it complete on the transmission of the 
 acceptance of the offer in the way they themselves contemplated, instead of 
 postponing its completion till notice of such acceptance has been received and 
 assented to by the company. 
 
 "For why make the offer, unless intended that an assent to its terms should 
 bind them? And why require any further assent on their part, after an uncondi- 
 tional acceptance by the party to whom it is addressed ?" 
 
 2 Palm V. Medina Ins. Co., 20 Ohio, 529, and cases cited, ^osi, § 49 ; Eames v. 
 Home Ins. Co., 94 IT. S. 621. [A contract is accepted when the letter declaring 
 its acceptance is posted. Dnnlop v. Higgins, 1 H. L. Cns. 381, 399 ; Potter v. 
 Sanders, 6 Hare, 1, 9. And this is so although the letter declares in effect 
 that the writer will not be bound until he receives an answer from the other party, 
 with a duplicate of the contract executed by him. Vassar v. Camp, 14 Barb. 
 (N. Y. ) 341, 355. The letter must, however, be properly started, and must, 
 among other things, be stamped. Blake v. Ins. Co., 67 Tex. 160.] 
 
 82 
 
CH. IV .J CONSUMMATION OF THE CONTKACT. [§ 50 
 
 And, indeed, it may be inferred from what fell from the 
 court in a later case,^ that even in Massachusetts, it is by 
 no means certain that the case of McCulloch v. Eagle In- 
 surance Company would now be followed except in a case 
 exactly coinciding with it in its facts, the court there ob- 
 serving that it may well be conceded that when notice of 
 acceptance is to be given by mail a notice actually put into 
 the mail, especially if forwarded, and beyond the control or 
 revocation of the party making it, may be good notice. 
 
 § 49. Acceptance. — An offer of insurance by mail is, 
 therefore, a continuing offer, and becomes binding upon 
 acceptance, before notice of withdrawal, in due course of 
 mail; and the unqualified acceptance by one party of the 
 terms proposed by the other, transmitted by due course of 
 mail, is to be regarded as closing the bargain from the time 
 of the transmission of the acceptance. The concurrence of 
 knowledge in point of time with the act of completion is 
 wholly impracticable in contracts by correspondence, since 
 the consummation must depend upon the act of one party in 
 the absence of the other. ^ 
 
 But the acceptance must be within reasonable time. And 
 where a reply would naturally be expected by the next return 
 mail after the receipt of the offer, a delay covering the de- 
 parture of one or more mails would seem to be unreasonable, 
 and the party making the offer would have a right to pre- 
 sume that the offer was rejected.^ 
 
 § .50. No Contract unless all the Terms are agreed upon. — 
 But it is to be carefully noted that, unless the parties have 
 come to an agreement upon all the terms of the contract, so 
 
 1 Thayer v. Middlesex Mut. Fire Ins. Co., 10 Pick. (Mass.) 326, 332. In 
 British and Am. Tel. Co. v. Colson, L. R. 6 Ex. 108, it was held that if the ac- 
 ceptance was never received there was no contract. But this is hardly con- 
 sistent with still later authorities. See Harris's Case, /» re Imperial Land Co., 
 L. R. 7 Oh. 587. See also 2 Kent, Com. *477, 12th ed. ; 5 Alb. L. J. 272. 
 
 2 Western v. Genessee Mut. Ins. Co., 2 Kernan (IST. Y.), 258 ; Hallock v. Com. 
 Ins. Co., 2 Dutch. (IST. J.) 268 ; s. 0. affirmed, 3 id. 645 ; Duncan v. Topham, 
 8 C. B. 225. In the last case the letter of acceptance never reached its 
 destination. 
 
 3 Thayer o. Middlesex Mut Fire Ins. Co., 10 Pick. (Mass.) 326. See also 
 Insurance Co. v. Johnson, 23 Pa. St. 72 ; post, §§ 53, 56. 
 
 83 
 
§ 51] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. IV. 
 
 that so far as the terms are concerned nothing remains open, 
 and nothing remains to be done but to execute what has been 
 agreed upon, the contract is still incomplete, and of no bind- 
 ing force upon either party, even though the secretary of the 
 company inform the applicant that he may "hold himself 
 insured,"^ or part of the premium be accepted. ^ An offer 
 by one party imposes no obligation upon another until ac- 
 cepted by him according to the terms in which the offer is 
 made. The offer must be accepted' as it is. If not, and any 
 qualification of or departure from its terms is made, it must 
 be referred back to the party making the original offer for 
 his acceptance of the qualification before he can be bound. ^ 
 Hence, when the defendant offered to purchase flour at a 
 certain price, and required the answer to be sent to a cer- 
 tain place, an answer accepting the offer, but addressed to 
 the defendant at another place than that by him designated, 
 was held not to be an acceptance which would bind the de- 
 fendant, although the defendant received it. The terms of 
 the offer had not been complied with.* 
 
 § 51. And to the same effect is the following case : On 
 the 18th day of the month the plaintiff wrote to the defend- 
 ant that he would sell him oil-cake at a certain price. On 
 the 19th the defendant replied that he would take a certain 
 amount, "but it must be put on board directly." On the 22d 
 of the same month the plaintiff replied, "I shall ship to- 
 morrow." This last letter never reached the applicant. 
 Upon the facts, the court held that " directly " meant, in 
 point of time, something less than "within a reasonable 
 time," and that an acceptance which might have been made 
 on the 20th, made and posted on the 22d, coupled with a 
 day's 'further delay in shipping, was not an acceptance 
 according to the terms of the defendant's offer.^ So where 
 
 1 Christie v. North British Ins. Co., 3 Ct. of Sess. Cas. (Scotch) 519. 
 
 2 Piedmont, &c. Life Ins. Co. v. Ewing, 92 U. S. 377; Patterson v. Ben 
 Franklin Ins. Co. (Pa.), 5 Ins. L. J. 376, 377. 
 
 8 Chase v. Hamilton Mut. Ins. Co., 22 Barb. (N. Y.) 527 ; Mut. Life Ins. Co, 
 V. Young, 23 Wall. (U. S.) 85-106. 
 
 4 Eliason v. Henshaw, 4 Wheat. (IT. S.) 225, 228 ; post, § 54. 
 s Duncan v. Topham, 8 C. B. 225. 
 84 
 
CH. IV. ] CONSUMMATION OF THE GONTEACT. [§ 52 
 
 a proposal was made for insurance, in which the rate of pre- 
 mium was not fixed, and the company transmitted to their 
 agent a letter accepting the proposal, and stating that a pol- 
 icy would be issued on the payment of a certain premium, 
 which letter, however, owing to an unfavorable change in 
 the health of the applicant, the agent did not make known 
 to him, it was held that the terms of the contract were never 
 agreed upon, the rate of premium not having been stated 
 and accepted. 1 So, if no time is agreed upon." The time, 
 however, will be inferred from slight circumstances.^ So, 
 where there is a misapprehension as to the property insured,* 
 or as to the paper referred to as containing the description 
 of the property.^ 
 
 So, where the insured agrees to take the policy at any rate 
 of premium fixed by the company, and the agent forwards 
 the application and fixes the rate of premium which he 
 thinks the principal should accept; but the principal, op- 
 posing the application, fixes a larger rate, with the right of 
 the applicant to decline, and forwards the policy to the 
 agent, which, through his neglect, is lost, and not brought 
 to the notice of the applicant till after a loss, the contract 
 was held incomplete, as the parties had come to no under- 
 standing as to the rate of premium.^ So if the insured keeps 
 the matter open to see if the policy is in accordance with the 
 agreement, where premium was to be paid or policy returned.'' 
 
 § 62. So, where an action was brought for the recovery of 
 a premium note given by the defendant, on a policy executed 
 by the company, and the question was, whether the policy 
 corresponded with the previous agreement, so that the de- 
 fendant was bound to accept it. It appeared that Carring- 
 
 1 "Wemyss o. Med. Ins. & Gen. Life Ins. Soc, 11 Ct. of Sess. Cas. (Scotch) 
 2d series, 151, 345 ; s. 0. 20 Scotch Jur. 534; Piedmont, &c. Ins. Co. v. Ewing, 
 92 U. S. 377 ; Christie v. North British Ins. Co., 3 Ct. of Sess. Cas. (Scotch) 
 519. See also Neville v. Mer. & Manuf. Ins. Co., 19 Ohio, 452 ; post, §§ 56, 67. 
 
 2 Strohn v. Hartford Fire Ins. Co., 37 Wis. 625. 
 8 Eames v. Home Ins. Co., 94 U. S. 621. 
 
 * Goddard v. Monitor Mut. Fire Ins. Co., 108 Mass. 56, 57. 
 6 Le Roy v. Market Fire Ins. Co., 45 N. Y. 80. 
 
 6 Wallingford v. Home Mut. Fire & Mar. Ins. Co., 30 Mo. 46. 
 
 7 Rogers v. Charter Oak Life Ins. Co., 41 Conn. 97. 
 
 85 
 
§ 52] INSUKANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. IV. 
 
 ton wrote to the company to inquire upon what terms they 
 would malce an insurance " on twenty-six horses and twenty 
 oxen, on board the toig ' Gleaner, ' from Saybrook to the 
 West Indies," saying nothing as to the valuation of the 
 property, or the sum he desired to be insured. The com- 
 pany replied in these words: "The office will take the risk 
 at fifteen per cent, or at ten per cent with a warranty that 
 the property was safe on the 7th of December last, but no 
 partial loss is to be paid under ten per cent." By the mail 
 of the next day Carrington replied, " We accept your terms 
 with a policy filled, on twenty-six horses valued at 12,200, 
 and on twenty oxen, valued at $800," and in this letter 
 enclosed the premium note. The company, on the following 
 day, forwarded by mail a policy "for f3,000 on stock, on 
 the deck of the brig ' Gleaner, ' " with this note in the mar- 
 gin, "Forty-six head of horses and oxen, valued at f3,000. " 
 This policy the defendant refused to accept, and immediately 
 returned it to the company. The ground of this refusal 
 was, that the horses and oxen were included in one gross 
 valuation, instead of being separately valued, according to 
 the terms in which he had accepted the offer. In delivering 
 the judgment of the court, and commenting on the defend- 
 ant's second letter. Chief Justice Hosmer said : " This was 
 a new proposal, which Carrington might presume the com- 
 pany would accept, but could not know it. The office had 
 assumed no such obligation, as the office had not agreed to 
 underwrite a valued policy ; neither had the defendant agreed 
 to receive an open policy. The minds of the parties had not 
 met. It would be plainly an unjustifiable stress upon the 
 first words of the letter ' we accept, ' to consider this expres- 
 sion as concluding the contract. The underwriters, by the 
 valued policy which they transmitted, recognized the new 
 proposal in part, and if they had attended to their import, 
 the same words would have convinced them that a separate 
 valuation of the horses and oxen was proposed. The policy 
 transmitted was not conformable to the proposition. The 
 parties never did agree. "^ 
 
 1 Ocean Ins. Co. v. Carrington, 3 Conn. 357. 
 86 
 
OH. IV.] CONSUMMATION OS THE CONTEAOT. [§ 53 
 
 § 53. Acceptance. — Where the proposition is by letter, 
 the usual mode of acceptance is by letter announcing the 
 acceptance. When it is made by a messenger, a determina- 
 tion to accept returned through him, or by another, would 
 seem to be all the law requires. But there are other modes 
 of acceptance equally conclusive upon the parties. Any- 
 thing that amounts to a manifestation of a formal determin- 
 ation to accept, communicated, or put in the proper way to 
 be communicated, to the party making the offer, would 
 doubtless complete the contract. An acceptance is the dis- 
 tinct act of one party to the contract, as much as the offer 
 is of the other. What will constitute an acceptance depends 
 in a great measure upon the circumstances of the case. It 
 seems that the charging up to himself in his monthly 
 account, by an agent, of the premium fixed by his principals, 
 in a policy sent by them to him on his own property, would 
 be a sufficient acceptance, as nothing more would naturally 
 be contemplated.! g^j; ^ mere mental assent, not indicated 
 by any outward expression, has nowhere been held to be 
 sufficient. Nor is mere silence or neglect to respond suffi- 
 cient, even when the applicant, having done all that is re- 
 quired of him, is to receive his policy if the directors 
 approve, or a return of the premium paid if they do not. 
 And this is so although neither the money is refunded nor 
 a reply made within six months.^ And a letter of accep- 
 tance written, but still in the possession of the writer, or 
 under his control, would not probably be regarded as any- 
 thing more than a mere mental assent. The unpublished or 
 undelivered letter would perhaps be considered as but little 
 better as matter of evidence than the unspoken intent. 
 What seems to be necessary is, that the acceptance should 
 be manifested by some act which is open to the observation 
 of others, and of such a character as naturally to give rise 
 to the presumption of acceptance, in contradistinction to an 
 equivocal act, which might, or might not, be connected with 
 
 ' Lungstrass v. German Ins. Co., 48 Mo. 201. 
 
 2 Few York Union Mat. Ins. Co. v. Johnson, 23 Pa. St. 72 ; Myers v. Key- 
 stone Mut. Life Ins. Co., 27 id. 268. See also post, §§ 54, 58. 
 
 87 
 
§ 53] insurance: fieb, life, accident, etc. [ch. iv 
 
 an acceptance, but would not naturally suggest it. The 
 observation of the late Mr. Chief Justice Gibson in Hamil- 
 ton V. Lycoming Mutual Insurance Company,^ that an actual 
 concurrence of assent at any particular moment is the ruling 
 circumstance, must be taken with the qualification that the 
 assent, though not brought to the knowledge of the other 
 party, must have taken some outward form of expression. 
 Nothing further than this was called for by the case. The 
 meeting of two minds, the aggregdtio mentium necessary to 
 the constitution of every contract, must take place eo in- 
 stanti with the doing of any overt act intended to signify to 
 the other party the acceptance of the proposition, without 
 regard to when that act comes to the knowledge of the other 
 party. The overt act may vary with the form and nature of 
 the contract. It may be by the fall of the hammer, by words 
 spoken, by letter, by telegraph, by remitting the article sent 
 for, by mutual signing, or by delivery of papers; and the 
 delivery may be by any act intended to signify that the in- 
 strument shall have a present vitality. Whatever the form, 
 the act done is the irrevocable evidence of the aggregatio 
 mentium; and at that instant the bargain is struck. The 
 acceptor can no more overtake and countermand by telegraph 
 his letter mailed, than he can his words of acceptance 
 after they have issued from his lips on their way to the 
 hearer.^- 
 
 [A provision in a policy that the agent has no power to 
 modify the contract, refers to the policies after they have 
 become executed between the parties; and where A. took 
 out a life policy, giving his note for the premium, on con- 
 dition that if a satisfactory surrender of other policies could 
 not be effected A. could return the last policy to the agent 
 and demand his note, it was held that, as there was only a 
 conditional acceptance of the policy by A., and not an abso- 
 lute one, he could demand his note on the non-fulfilment of 
 the condition. Even if the agent had no right to make a 
 conditional delivery, still the full acceptance necessary to a 
 
 1 5 Barr (Pa.), 339. 
 
 2 Hallock V. Com. Ins. Co., 2 Dutch. (N. J.) 268 ; s. c. 3 id. 645. 
 
CH. IT.] CONSUMMATION OF THE CONTRACT. [§ 54 
 
 complete contract was lacking.^ There was an open policy 
 on goods, " lost or not, on board of any steamei', at and from 
 New York to New Orleans, all sums placed at risk under 
 this policy to be indorsed thereon." The assured shipped 
 goods, but before he could, acting with reasonable diligence, 
 inform the company, the goods were lost, and the company 
 refused to indorse the amount. It was held, however, that 
 the company was liable ; the indorsehient was not necessary 
 to create liability, but was a form which the company could 
 not refuse when the insured acted in good faith and with 
 proper diligence. ^ 
 
 § 54. Agreement ■with Agent subject to Approval of Prin- 
 cipal. — If an agent agrees with the applicant upon the terms 
 of insurance subject to the approval of his principal, and his 
 principal returns a policy containing a modification of the 
 terms, which the agent forwards to the applicant, with a 
 request that he will return it if he does not comply with the 
 terms, and the applicant neither returns the policy nor com- 
 plies with the modified terms, — the payment of additional 
 cash premiums, — the delivery is only conditional, and the 
 contract is not complete till the compliance with the new 
 terms. '^ So, where all the terms are agreed upon, and the 
 assured is told that he may regard himself as insured, but 
 pending the issue of tlie policy the assured notifies the in- 
 surers that he desires a change, the particulars of which he 
 does not state, and neglects to attend to the modification, 
 though requested, and notified by the insui'ers that unless 
 he call and make known the desired change they will not be 
 held responsible, the contract is still incomplete.* And the 
 plaintiff will be in no better position if he inquire for his 
 policy, and being told by the agent that he could not tell 
 whether he had received it or not, but thought he delivered 
 it to the plaintiff, neglects further inquiry. He must accept 
 
 1 [Harnickell v. N. Y. L. Ins. Co., Ill N. Y. 390.] 
 
 2 [Carver Co. v. Maufa Ins. Co., 6 Gray (Mass.), 214, 219.] 
 
 3 Myers v. Keystone Mut. Life Ins. Co., 27 Pa. St. 268 ; Mut. Life Ins. Co. 
 V. Young, 23 Wall. (U. S. ) 85, 106. 
 
 * Sandford v. Trust Fire Ins. Co., 11 Paige (N. Y. Ch.), 547; ante, §50. 
 
 89 
 
§ 54 B] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. IV 
 
 the contract as modified, or there is no contract, and the 
 negligence of the agent will not excuse his non-acceptance. ^ 
 
 [§ 54 A. Contract subject to Appioval. — Where an appli- 
 cation provides that a policy is to take effect on the day the 
 application is approved, and it is never approved, there is 
 no contract.^ An application and premium sent to the com- 
 pany on approval but never received by it, nothing more 
 being done, constitute no contract. ^ "Approval" means 
 approval by the home office. If'an application is sent on 
 approval, a lapse of eighteen days without word from the 
 company will not authorize the conclusion that the risk is 
 accepted.* Where a policy is given by the agent to a third 
 party until he could learn if the company would accept the 
 risk, there is no delivery or consummation of contract.^ 
 Where an agent agreed to write a policy to take effect at a 
 given time, but remarked that he did not know whether his 
 company would carry the risk after he had written and re- 
 ported it to them, and he never wrote or reported it, the 
 company was held to pay for a loss. It was the agent's duty 
 to have reported the risk, and the agreement would have 
 held until notice from the company to cancel it. Such being 
 the law, the neglect of the agent to write the policy cannot 
 make the company's liability any less than it would have 
 been if the agent had done his duty.^J 
 
 [§ 54 B. When the Company must give Notice of Disap- 
 proval. — Where the insured receives a " binding-slip " or 
 memorandum that a policy will be issued to him, the com- 
 pany if it concludes not to write the risk must give reason- 
 able notice, and a notice at noon of the day on which a fire 
 occurs at three o'clock is not reasonable, as sufficient time 
 had not elapsed in which to obtain new insurance.'' If a 
 
 1 "WalliDgford v. Home Mut. Fire Ins. Co., 30 Mo. 46. 
 
 2 [Winnesheik Ins. Co. v. Holzgrafe, 53 111. 516 ; Pickett v. Insurance Co., 
 39 Kans. 697.] 
 
 8 [Atkinson v. Hawkeye Ins. Co., 71 la. 340.] 
 
 * [Winnesheik Ins. Co. u. Holzgrafe, 53 111. 516.] 
 
 5 [Brown v. Amer. Central Ins. Co., 70 la. 390] 
 
 6 [Campbell v. Amer. F. Ins. Co., 73 Wis. 100, 107.] 
 ' [Lipman v. Niagara F. Ins. Co., 48 Hun, 503.] 
 
 90 
 
CH. IV.] CONSDMMATION OF THE CONTEACT. [§ 55 
 
 policy is negotiated through several parties, and is delivered 
 to B. by the insurance agent conditionally, that is, subject 
 to approval of the company, and B. delivers to C. and C. to 
 the insured without naming any condition, and the premises 
 burn before actual notice to the insured that the company 
 disapproves and cancels the policy, the company is liable for 
 the loss.^] 
 
 [§ 54 C. Application once approved cannot he rejected hy 
 Company because of Loss before Policy. — If an application 
 sent on approval is actually accepted by the company, at its 
 home office, though no notice of acceptance is given to the 
 insured, and afterward rejected only because the premises 
 burned before a policy was made out, the company is bound, 
 and this question of fact is for the jury.^] 
 
 § 55. Agreement -with Agent ; Payment of Premium. — And 
 although the policy be made out and forwarded to the agent 
 to be delivered to the applicant on payment of the premium, 
 the applicant, by an understanding with the agent, having 
 still the option to take or reject the policy, as it still re- 
 mains for the applicant to declare his option and pay the 
 premium, he will not be entitled to a delivery thereof until 
 such a payment. And if, on being called upon by the agent 
 and tendered the policy on payment of the premium, he re- 
 fers him to a third person, who, he says, will pay the pre- 
 mium, and the agent agrees to call upon that person, this is 
 not the equivalent of payment. Perhaps it would be other- 
 wise if the third person had agreed to pay the premium.^ 
 Such a case is to be distinguished from those where the 
 party claiming the policy has done everything which is re- 
 quired of him. There the policy is held merely as a deposit, 
 and for delivery ; while here it is held for payment of the 
 premium. And if the option be not exercised till after loss, 
 it will then be too late, as then there is nothing to which 
 the risk can attach.^ Payment by a stranger without the 
 
 1 [Hodge V. Security Ins. Co., 33 Hun, 583.] 
 
 2 [Welsh V. Continental Ins. Co., 47 Hun, 598.] 
 
 8 Hoyt V. Mutual*^enefit Life Ins. Co., 98 Mass. 539. 
 * Bradley v. Potomac Fire Ins. Co., 32 Md. 108. 
 
 91 
 
§ 55 A] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. IV, 
 
 knowledge of the applicant binds neither the applicant nor 
 the insurer. 1 But if the policy be held merely for delivery 
 on payment of the premium, the agent has no right to refuse 
 to deliver on tender of the premium, unless his authority is 
 limited to delivery to applicants still in good health, al- 
 though the applicant be dangerously ill at the time of the 
 tender of the premium. ^ So where a wife applied to an 
 agent for a policy on the life of her husband, and, in accord- 
 ance with the company's rules, paid fifty dollars, which was 
 to be applied to the first year's premium if the risk was 
 taken, and a policy was made out and sent to the agent for 
 delivery but not delivered, it was held that a tender of the 
 balance of the first year's premium after the death of the 
 insured gave a valid claim upon the company for the amount 
 insured.^ 
 
 [§ 55 A. Delivery not essential unless so Agreed. — A pol- 
 icy may be binding although never delivered between the 
 parties.^ (a) Everything depends on the intention of the 
 
 1 Whiting V. Mass. Mut. Life Ins. Co. (Mass.), 11 Reptr. 13. 
 
 2 Schwartz v. Germania Life Ins. Co., 18 Minn. 448 ; s. 0. 21 id. 215. 
 
 8 Cooper V. Pacific Mut. Life Ins. Co., 7 Nev. 116 ; Fried v. Royal Ins. Co. of 
 Liverpool, 47 Barb. (N. Y.) 127 ; s. c. 50 N. Y. 243. 
 * [Loring v. Proctor, 26 Me. 18, 29.] 
 
 (a) The insurer's unconditional Co. of New York v. Thomson, 94 Ey. 
 
 written acceptance of an application 253 ; Machine Co. v. Ins. Co., 50 Ohio 
 
 for life insurance consummates the con- St. 549 ; 22 L. R. A. 768, and note, 
 
 tract, if actual delivery to the insured There must, however, be clear evidence 
 
 is not expressly stipulated for ; and the that the application has been accepted, 
 
 unconditional sending and delivery of and if the applicant dies before such 
 
 the policy to the insurance agent, who acceptance, the insurer is not liable, 
 
 retains it, amounts to a delivery to the Steinle v. New York Life Ins. Co., 81 
 
 insured, although the policy purports Fed. Rep. 489 ; Oliver v. Mut. L. Ins. 
 
 to make actual delivery to the insured Co., 97 Va. 134. A policy is delivered 
 
 essential to its validity. New York when deposited in the post-office by the 
 
 Life Ins. Co. v. Babcock, 104 Ga. 67 ; insurer, directed to the insured at his 
 
 Phoenix Ass. Co. v. McAuthor, 116 Ala. place of residence. Ti'ijde Link Mut. 
 
 659. See Conn. Ind. Ass'n v. Grogan Ind. Ass'n v. Williams (Ala.), 26 So. 
 
 (Ky.), 28 Ins. L. J. 1031 ; Shackelford 19 ; Galloway v. Standard F. Ins, Co., 
 
 «. Knights of Damon, 98 Ga. 29.5. 31 S. E. 969; Hartford S. B. & Ins. Co. 
 
 This is true whenever the applicant's v. Lasher Stocking Co., 66 Vt. 439. In 
 
 right to the posses.sion of the policj' is general, possession of the policy by the 
 
 complete, though it may not be actually insured, or by the beneficiary, is pri7na 
 
 delivered by the agent until after the facie proof of delivery. Ibid. ; Mass. 
 
 death of the insured. Mutual Life Ins. Benefit Life Ass'n D.Sibley, 158 111. 
 
 92 
 
CH. I Y.J CONSUMMATION OF THE CONTEACT. [§56 
 
 parties. They may agree that the evidence of their contract 
 shall remain in the hands of one or the other party or a 
 third person, as they choose. An agreement to pay the pre- 
 mium is a sufficient consideration to make an agreement to 
 insure valid', although the property is destroyed before de- 
 livery of the policy.^ When a policy of fire insurance has 
 in fact been executed and notice of such execution been 
 given the assured, its actual delivery is not essential to the 
 completion of the contract.^ Delivery of the policy may be 
 made essential by a provision in it.^] 
 
 § 56. Contract prima facie incomplete if no Delivery and no 
 Payment of Premium. — If there has been no payment of the 
 premium, and no delivery in fact of the policy, the contract 
 is, prima facie, incomplete, and he who claims under it must 
 show that it was the intention of the pai'ties that it should 
 be operative notwithstanding these facts.* The presumption 
 
 1 [Filt I'. Fire Ins. Ass., 20 Fed. Rep. 766, 2d Cir. (Vt) 1884.] 
 
 2 [Bragdou v. Appleton Mut. F. Ins. Co., 42 Me. 259, 262 ; citing Kahne 
 V. Ins. Co. of N. A., 1 Wash. C. C. R. 93.] 
 
 3 [Misselhorn v. Mut. Reserve Fund L. Ass., 30 Fed. Rep. 545 (Mo.), 1887 ; 
 Kohen v. Mut. Reserve Fund L. Ass., 28 Fed. Rep. 705 (Mo.).] 
 
 * [When there is nothing to show any tran.sfer of the manual pos.session of 
 the policy, the contract is frima facie incomplete, and the burden is on him who 
 asserts it to show that the real intention and understanding was to pass the 
 
 411 ; Kendrick v. Mutual Benefit L. ery of a policy on the promise of a 
 
 Ins. Co., 124 N. C. 315. Where the future payment of premium was a 
 
 insurance agent testified that he had waiver of premium payment in cash, in 
 
 ordered the policy on his own responsi- the absence of a provision making such 
 
 bility and simply handed it to the in- payment a condition precedent. Jones 
 
 sured, telling him that, if he accepted it, u. New York Life Ins. Co., 168 Mass. 
 
 he should sign his name to it and send 245. The presumption is against a 
 
 a check for the premiums, otherwise to completed contract when the policy has 
 
 return it, and no premium was ever not been delivered, and no premium 
 
 paid, and the policy was found among has been paid. Equitable L. Ass. 
 
 the papers of the insured, it was held Society v. McElroy, 83 Fed. Eep. 631 ; 
 
 that subsequent statements of the Modern Woodmen Ace. Ass'n v. Ebine, 
 
 agent to other parties that he had in- 50 Neb. 345 ; Easley u. New Zealand 
 
 sured the deceased were admissible to Ins. Co. (Idaho), 27 Ins. L. .1. 289 ; 
 
 contradict the agent's evidence that the Hawley o. Michigan Mut. L. Ins. Co., 
 
 policy was never delivered to the in- 92 Iowa, 593 ; Dailey v. Preferred 
 
 sured as a binding contract; that the Masonic Mut. Ace. Ass'n, 102 Mich, 
 
 finding of the policy among the papers 289 ; Weinfeld v. Mutual Reserve L. 
 
 of insured was evidence for the jury as Ass'n, 63 Fed. Rep. 208. 
 to a valid delivery ; and that the deliv- 
 
 93 
 
§56] insukance: firh, life, accident, etc. [CH. IV. 
 
 of law is, that the delivery of the policy and the payment of 
 the premium are dependent upon each other. But this pre- 
 sumption may be rebutted by showing a waiver of the pay- 
 ment, or such other facts as go to show the intention and 
 understanding of both parties that the policy shall be valid 
 as if delivered, notwithstanding the non-payment of the pre- 
 mium.^ An actual delivery, obtained by misrepresentation, 
 is no delivery to give effect to the contract. The mere maur 
 ual possession of the policy is of little consequence, whether 
 it be in the hands of the insurers or the insured. Its pos- 
 session by the insured makes a prima facie case for him, 
 subject to be met by proof that it was never delivered with 
 the consent of the insurers ; while its possession by the in- 
 surers makes a prima facie case for them, subject to be met 
 by proof that, though not transferred, it was intended by the 
 parties to be a valid contract, without further action by 
 either, and so in legal contemplation there was a delivery.^ 
 
 (s) In Markey V. Mutual Benefit Life Insurance Company,^ 
 there had been an actual manual possession of the policy by 
 the assured, but under such circumstances that in the opin- 
 ion of the court it was for inspection only, according to the 
 intention and understanding of both parties, it having been 
 returned to the agent, who, it was understood, would call 
 upon a third party, referred to by the insured, to see if he 
 would pay the premium. In Collins v. Insurance Company 
 of Philadelphia,* the policy was sent to the agent for de- 
 
 legal title and possession of the policy, without, or before the payment of the 
 premium, and without delivery in fact. Heiman o. Phoenix Mut. L. Ins. Co., 
 17 Minn. 153, 169.] 
 
 1 Faunce v. State Mut. Life Assurance Co., 101 Mass. 279 ; Heiman v. Phoenix 
 Mut. Life Ins. Co., 17 Minn. 153 ; Giddings v. North Western Mut. Life Ins. Co. 
 (Sup. Ct. U. S.), 10 Ins. L. J. 39 ; De Camp v. New Jersey Mut. Life Ins. Co. 
 (C. Ct. N. Y.), 3 Ins. L. J. 89 ; Cooper v. Pacific Mut. Life Ins. Co., 7 Nev. 
 116; Myers v. Liverpool, &c. Ins. Co., 121 Mass. 338; Dinning v. Phoenix 
 Insurance Co., 68 111. 414, 415; City Insurance Co. v. Zoller (Pa.), 4 Ins. 
 L. J. 480 ; Berthoud v. Atlantic Fire Insurance Co., 13 La. 639 ; post, §§ 134, 
 191, 360, 501. 
 
 2 See also § 45a, and cases there cited. Davis v. Mass. Mut. Life Ins. Co., 
 13 Blatch. C. Ct. 462. 
 
 8 103 Mass. 78. 
 
 4 7 Phila. Rep. 201. See also Kidder v. Travellers' Ins. Co. (N. Y. Sup. Ct), 
 6 Alb. L. J. 127. 
 94 
 
OH. IV.J CONSUMMATION OF THE CONTRACT. [§ 5(5 
 
 livery, on payment of the premium, which, however, was 
 neither tendered, though requested, before the death, nor 
 was there any waiver of the payment. In St. Louis Mutual 
 Life Insurance Company v. Kennedy, ^ the applicant for- 
 warded with his application one note due in one year from 
 the date of the application, and one note, being for the 
 amount of the cash premium, payable on the delivery of the 
 policy. It was a mere memorandum of the cash premium, 
 and it was understood by the parties that, while the payment 
 of the premium in cash would make the insurance take effect 
 from that date, the promise, by this note, to pay it when the 
 policy should be delivered, would have the effect to keep the 
 contract open until delivery on the one hand, and the pay- 
 ment of the premium on the other. And it was said that 
 even if the note was presumptively to be taken as in place of 
 the cash premium, parol testimony going to show that it was 
 not so regarded by the parties was admissible to rebut the 
 presumption. In Faunce v. State Mutual Life Insurance 
 Company,'-^ the new policy was deliverable as a substitute for 
 and upon surrender of a prior policy, which surrender was 
 never made or tendered, but, on the contrary, enforced and 
 paid by the company. In Bidwell v. St. Louis Floating 
 Dock and Insurance Company, ^ the insured was to execute 
 his note to the company with the indorser, which was never 
 done. [If the policy is not to go into effect until the pre- 
 mium is paid, delivery of the policy does not waive this pro- 
 vision, and if the policy states that waiver of its terms must 
 be in writing, even an agreement by the agent to waive the 
 payment of the premium as a condition precedent would be 
 of no avail.*] 
 
 (t) Even the delivery of the policy and the payment of the 
 premium are not conclusive of a valid policy. There may 
 have been a failure to agree, — a want of that aggregatio 
 mentium which is necessary to the completion of the con- 
 
 1 6 Bush (Ky.), 450. 
 
 2 101 Mass. 279. 
 8 40 Mo. 42. 
 
 * [Pottsville Mut. F. Ins. Co. v. Minneaua Springs Imp. Co., 100 Pa. St. 137.] 
 
 95 
 
§ 57] INStTEANOE : FIRE, LIFE, ACCIDENT, ETC [CH. IV. 
 
 tract. Thus, where insurance is procured upon what is de- 
 scribed as a machine-shop, but is in reality an organ 
 factory, the description being given by one who applied in 
 the owner's name, a policy issued upon such application will 
 not cover the organ factory, although the owner may have 
 received it and paid the premium, and the representation 
 was made without his knowledge. ^ 
 
 § 57. Acceptance subject to Approval ; Interim Receipt. — 
 But a company which has informed its agent that they will 
 be liable for a loss after the payment of t^e premium to him, 
 and pending its receipt by tliem, subject, however, to their 
 right to reject the risk^. if from the rafe'of premium or other- 
 wise it be not satisfactory, will not be allowed arbitrarily to 
 reject it and refuse a policy, or to reject it merely because a 
 fire has intervened.^ Nor will the agent's neglect to for- 
 ward the application release the insurers.^ 
 
 (s) So, where an agent is merely authorized to receive 
 and forward applications on which the company are to issue 
 policies, if approved, as of the date of the application. And 
 this rule was applied where the loss occurred before the 
 company had received, or, in due course of mail, would 
 regularly receive, the application and premium forwarded 
 by their agent, and therefore had no opportunity to disap- 
 prove; and where there was no agreement for intermediate 
 insurance, except what is to be inferred from the fact that 
 if approved the policy was to bear the date of the applica- 
 tion. The contract was held to be consummated on the day 
 when the premium was paid ; and it was said that the 
 reservation of the right of approval did not give to the in- 
 surers the arbitrary right to set aside any contract, however 
 fair, made by their agent, but only in cases where the agent had 
 been imposed upon, or where the contract made by the agent 
 would operate as a fraud upon the right of the company.* 
 
 1 Goddard v. Monitor Ins. Co., 108 Mass. 57. And see post, § 566. 
 
 2 Perkins v. Washington Ins. Co., 4 Cowen (N. Y.), 645 ; Insurance Co. v. 
 Webster, 6 Wall. (U. S.) 129. See also Moore v. Woolsey, 4 El. & B. 243; 
 post, § 496. 
 
 ' 8 Fish V. Cottenet, 5 Hand. (N. Y.) 538. And seei;os<, §69. 
 * Palm V. Medina Ins. Co., 20 Ohio, 529. 
 
 96 
 
CH. IV. J CONSUMMATION OF THE CONTEACT. [§58 
 
 § 58. The cases, however, upon the effect of a failure to 
 disapprove are not entirely consistent. Thus, in a late case 
 in Pennsylvania, the agent was authorized to receive and 
 forward applications, the insurance to take effect on all 
 approvable applications the day they were taken. The agent 
 gave a receipt for the premium, and forwarded the same 
 with the application to the company, "if not approved by 
 directors, money to be refunded." It appeared, however, 
 that no notice was taken of the application by the company, 
 nor was the money refunded ; and in point of fact the com- 
 pany denied that they ever received the application or the 
 premium. Upon these facts it was held that there was no 
 contract to insure, but simply a proposal forwarded by the 
 agent; and delay under such circumstances to forward a 
 policy or refund the money, even if the company received 
 the application, was rather ground for inference that they 
 rejected than accepted the proposal. A proposal not an- 
 swered remains a proposal for a reasonable time, and then 
 is regarded as withdrawn. It is only a delay or neglect that 
 has a tendency to mislead, and which is incompatible with 
 honesty, which can be alleged as a ground of liability ; as 
 where one knows that another is acting as his agent in a 
 particular matter without or beyond his authority, and does 
 not promptly disavow his acts.^ In such cases, if the agent 
 neglects to forward the proposal, the company will be liable 
 for the agent's neglect.^ For a stronger reason, there will 
 be no contract if it be agreed that, if no notice of approval 
 or disapproval be given, the insurance shall cease in thirty 
 days. Thus, a receipt setting forth that the insurance shall 
 cease on notice of disapproval of the application ; that it 
 shall be good for thirty days, unless sooner determined by 
 notice ; and that if no notice of approval or disapproval be 
 
 1 Insurance Co. ti. Johnson 23 Pa. St. 72, Woodward, J., disaentinf;; Hallock 
 V. Insurance Co., 26 N. J. L. 268 ; Alabama Gold Life Ins. Co. v. Mayes (Ala.), 
 9 Reptr. 75. And see also Myers v. Keystone Mut. Life Ins. Co., 27 Pa. St. 268; 
 Bennett v. City Ins. Co., 115 Mass. 241. In Medina Ins. Co. v. Palm, 5 Ohio 
 St. 107, the court intimate that the decision in Palm v. Medina Ins. Co. (ante, 
 § 57) is not entirely satisfactory. 
 
 2 Walker K. Farmers' Ins Co., 51 Iowa, 679 ; post, § 64. 
 
 VOL. I. — 7 97 
 
§ 58] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [OH. IV. 
 
 given it shall cease in thirty days, has no binding force after 
 the expiration of thirty days, there being no notice of ap- 
 proval or disapproval.^ On the other hand, it has been held 
 that, where a general agent gave a receipt for the premium, 
 setting forth that if the application was approved a policy 
 was to be furnished in thirty days, or, if the application was 
 declined, the premium was to be returned on demand and 
 return of the receipt, and that no liability was to be in- 
 curred unless the risk was approved and a policy issued at 
 the home ofSce, and the policy was sent to the agent within 
 thirty days, but before delivery the applicant died, the re- 
 ceipt did not operate as a present insurance, either for the 
 thirty days or till a policy was issued.^ 
 
 (s) In an English case the facts were that the plaintiff, 
 through an agent, insured in a certain office. The agent 
 then left the service of this office, and became agent for 
 another. The plaintiff, not knowing the fact, on applica- 
 tion for further insurance, received from the agent a receipt 
 for a certain sum of money deposited in part payment of 
 premium and duty, in consideration of which the property 
 was to be insured for one month, or until notice that the 
 proposal was declined, pending the negotiations on behalf, of 
 the new company. Upon the plaintiff's observing this, he 
 wrote to the agent that he knew nothing of the new com- 
 pany, and wished to be satisfied of its standing before giv- 
 ing them all the sums. Before any policy was made out the 
 fire happened. Amongst other grounds of defence was this, 
 that when the plaintiff first received his receipt he supposed 
 he was contracting with the first company, and therefore 
 there was no agreement with the second. But the court said 
 that when the receipt was given the contract was complete, 
 there being no repudiation by the plaintiff, and that the de- 
 fence set up on the other ground was contemptible and ridic- 
 ulous.^ And so the company was held to be bound under 
 the following state of facts : The plaintiff applied to the 
 
 1 Barr v. Insurance Co. of N"ortli America, 61 Ind. 488. 
 
 2 Marks v. Hope Mut. lus. Co., 117 Mass. 528. 
 
 8 Mackie v. European Ins. Co., 21 Law Times, N. s. 102. 
 
CH. IT.] CONSUMMATION OF THE OONTKACT. [§59 
 
 agents of the defendants to effect an insurance on certain 
 buildings. The agent accepted the risk, and gave to the 
 plaintiff the usual interim receipt, which stated "the said 
 party and property to be considered insured until otherwise 
 notified, either by notice mailed from the head office, or by 
 me, to the insurer's address within one month from the date 
 hereof, when, if declined, this receipt shall become void and 
 be surrendered. N. B. — Should applicant not receive a 
 policy in conformity with his application within twenty days 
 from the date hereof, he must communicate with the secre- 
 tary direct, as after one month from this date the receipt 
 becomes void." The agent omitted to transmit the applica- 
 tion to the company, and the plaintiff, not having been noti- 
 fied, applied personally to the agent, who stated such an 
 occurrence was not unfrequent, and by way of satisfying the 
 plaintiff granted a fresh interim receipt, repeating this on 
 four several occasions. It was held (1) that such renewed 
 interim receipts were valueless, there being in fact no new 
 insurance effected; (2) that the neglect of the agent to do 
 his duty by forwarding the application to the company, could 
 not operate to the prejudice of the plaintiff; and (3) that 
 the mere lapse of a month without any notice to the assured 
 did not render the receipt void, but the stipulation gave the 
 company a month during which to consider the application, 
 and enabled them to terminate the risk within that period; 
 but in such a case, if the company does not intimate an in- 
 tention of terminating the risk, then there is a contract for 
 insurance for the year binding on the company, on the 
 same terms and conditions as the ordinary policies of the 
 company. 1 
 
 § 59. Interim Receipts. — Both insurer and insured under 
 an interim j'eceipt are bound by the conditions of the policy 
 ordinarily issued by the company; as, for instance, the in- 
 sured, to give notice of a change of title to the insured 
 property, and the insurer, bound till he gives notice to the 
 contrary, must give ten days' notice, if such are the require- 
 
 1 Hawke v. Niagara District Mut. Fire Ins. Co., 23 U. C. (Ch.) 139. See also 
 Patterson v. Royal Ins. Co.. li id. 169. 
 
 99 
 
§ 60] INSUPvANOE : FIRE, LIFE, ACCIDENT, ETC. [CH. IV. 
 
 ments of the policy.^ But where insurance was obtained for 
 one month, and a receipt taken, setting forth that the insur- 
 ance was subject to the conditions contained in the ordinary 
 policies of the company, and a policy, though requested, 
 was refused, on the ground that it was not usual for so short 
 a term, it was held that the insurer was not bound by a con- 
 dition which he had never seen, requiring notice of, and in- 
 dorsement of consent to, subsequent insurance.^ If an agent 
 forwards an application, which distinctly states that only 
 the home officers have authority to determine whether a pol- 
 icy shall issue, his receipt for the premium, setting forth 
 that it is binding on the insurers till the policy is received, 
 is not binding after the insurers give notice that they reject 
 the application.^ If the receipt covers goods not covered by 
 the policy subsequently issued, the contract may be enforced, 
 according to the terms of the receipt.* 
 
 Agents not unfrequently make minutes of their contracts 
 in what are called "binding-books," and in this way may 
 bind several companies to one insured, each for its propor- 
 tion of the total insurance required ; and this though the in- 
 surance be placed at the discretion of the agent, the insured 
 not knowing where or how much is severally placed.^ 
 
 § 60. 'What constitutes Delivery of Policy. — To constitute 
 a delivery of a policy, it is not necessary that there should 
 be an actual manual transfer from one party to the other. 
 The agreement upon all the terms, and the issue and trans- 
 mission to the agent of a policy in accordance therewith, for 
 delivery without conditions, is tantamount to a delivery to 
 the insured.^ A fortiori if it be delivered by the agent to 
 
 1 Grant v. Reliauce Ins. Co., 44 U. C. (Q. B.) 229 ; Hawkei). Niagara District 
 Mut. Fire Ins. Co., 23 U. C. (Ch.) 139; Home Ins. Co. v. Favorite, 46 111. 263 ; 
 Gauthier v. "Waterloo Ins. Co., 44 tJ. C. (Q. B.) 490. 
 
 2 Lafleur v. Citizens' Ins. Co., Q. B. 22 L. C. Jnr. 247 ; "Wooddy v. Old Do- 
 minion Ins. Co. (Va.), 9 Ins. L. J. 276. See also ante, §§ 21, 23. 
 
 3 Cotton, &c. Life Ins. Co. v. Scurry, 50 Ga. 48. 
 
 4 Wyld V, Liverpool, &c. Ins. Co., 23 U. C. (Ch.) 442. 
 
 5 Ellis Ti. Albany City Fire Ins. Co., 50 N. Y. 402 ; s. c. 4 Lans. 443 ; Putnam 
 V. Home Ins. Co., 123 Mass. 324, 
 
 * See cases cited in the last section ; also New England Fire & Mar. Ins. Co. 
 V. Robinson, 25 Ind. 536, 637 ; Whitaker v. Farmers' Union Ins. Co., 29 Barb 
 (N. Y.) 312; Southern Life Ins. Co. v. Kemptou, 56 Ga. 339. 
 100 
 
CH. IV.] CONSUMMATION OF THE CONTRACT. [§ 60 
 
 the broker ; ^ or if the applicant agrees that the agent of the 
 insurers shall be his agent for the "execution of the con- 
 tract.'"* The delivery may be by any act^ intended to sig- 
 nify that the instrument shall have present vitality,* as when 
 it is held by the agent of the insurers at the request of the 
 insured, subject to the order and control of a mortgagee 
 whose interest is covered by it.^ A policy purporting to be 
 "signed, sealed, and delivered," as required by the charter, 
 is complete and binding as against the party executing it, 
 though, in fact, it remain in his possession, unless some 
 further ■ particular act be required to be done by the other 
 party to declare his adoption of it. No formal acceptance 
 is necessary to complete the delivery. Whether there is a 
 delivery or not is often a question of intention. There is a 
 delivery if the intention of both parties is, that from and 
 after a certain act the policy shall become operative.^ And 
 the rule thus laid down has been applied in a case where 
 application was made on the 27th of September, the first 
 year's premium to be paid in advertising the insurers' 
 agency. The application was approved, a policy duly exe- 
 cuted, and, on the 2d of October, mailed to the agent of the 
 insurer who had forwarded the application. On the 4th of 
 October the insurer died. On the 5th of October the policy 
 came to the hands of the agent, and he immediately re- 
 turned it to the insurers. The agency was advertised as 
 agreed. Upon these facts it was held that the contract was 
 complete when the policy was mailed to the agent. If 
 
 1 MoLacWin v. Mina. Ins. Co., 4 Allen (N. B.), 173. 
 
 2 Alabama Gold Life Ins. Co. v. Herron (Miss.), 10 Ins. L. J. 68. 
 
 3 [Delivery may be made by mailing the policy. But where the minds of the 
 parties never met, tlie company does not become bound by mailing a policy 
 which the applicant is not bound to accept. Hamblet v. City Ins. Co., 36 Fed. 
 Kc'p. 118 (Pa.) 1888.] 
 
 4 Hallock V. Com. Ins. Co., 2 Dutch. (N. J.) 268 ; s. o. Sid. 645. 
 
 5 Home Ins. Co. v. Curtis, 32 Mich. 402. 
 
 8 Xenos V. Wickham, L. R. 2 H. of L. 296, reversing same case in the Ex- 
 chequer Chamber. " Delivery is either actual, i. e. by doing something and say- 
 ing nothing; or else verbal, i. e. by saying something and doing nothing ; or it may 
 be by both ; and either of these may make a good delivery and a perfect deed.' 
 1 Sheppard, Touchstone, 57. See also Doe v. Knight, 5 B. & C. 632. 
 
 101 
 
§ 61] INSURANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. IV, 
 
 the premium was not paid in full it was the fault of the 
 company.^ 
 
 § 61. Obligations Reciprocal ; The Company may demand 
 the Premium if the Applicant can demand a Policy. — The 
 
 cases we have been considering have been cases where the 
 insured was seeking to enforce his rights against the in- 
 surers. But the insurers may have occasion to enforce their 
 rights against the insured ; as was the case where a defend- 
 ant made written application for insurance to a mutual in- 
 surance company. The rate of premium was agreed upon by 
 the parties and the policy was made out, and the defendant 
 requested to take it and sign the premium note and pay the 
 premium. He, however, refused, and the policies were never 
 delivered. In an action brought to recover the amount of 
 the premium and certain assessments, the court held that 
 the plaintiff must fail, for the very obvious reason that no 
 contract was ever completed between the parties. The pro- 
 ceedings on the part of the defendant were merely the initia- 
 tory steps to a contract. The plaintiffs, pursuant to the 
 defendant's request, had prepared a policy which would 
 take effect as a contract on being delivered, and not before. 
 By the plaintiffs' by-laws the policy was not to be delivered 
 until the payment of the premium and the signature of the 
 deposit note, neither of which had taken place. If a loss 
 had occurred, under the circumstances the plaintiffs would 
 not have been liable, because there was no delivery of the 
 policy.^ But if the case had taken the form of a bill in 
 equity to enforce a performance of the contract, the payment 
 of the premium and assessments, and the execution of the 
 deposit note, upon the general doctrine, which is so familiar 
 and so well established, that, when all the terms of the con- 
 tract are agreed on, and nothing remains to be done by 
 either party but to execute, the court will compel execution, 
 it is yet to be decided that such a bill would not be sus- 
 tained. The rights and obligations of the parties are recip- 
 
 1 Kentucky Mut. Ins. Co. v. Jeiiks, 5 Ind. 96 ; post, § 135. 
 
 2 Real Estate Mut. Fire Ins. Co. c*. Eoessle, 1 Gray (Mass.), 336. 
 102 
 
CH. IT.] CONSUMMATION OF THE CONTEACT. [§ 62 
 
 rocal, and if, as we shall hereafter see,^ the defendant, in 
 this case, upon tender of performance on his part, could 
 have compelled the execution and delivery of a policy, it 
 would seem to follow that the plaintiffs, on tender of per- 
 formance on their part, could equally compel payment of the 
 premium, and the execution and delivery of the deposit note. 
 If the insurers, after the completion of the contract, refuse 
 to accept payment of a premium in the manner agreed upon, 
 or to execute the contract by delivery of the policy, the in- 
 sured, without the tender of intermediate premiums, may 
 after loss sue and recover as if the policy had issued, less 
 the premium.^ 
 
 § 62. Effect of the Provisions of the Charter or Policy on 
 Rights of Parties. — The relation of the delivery of a policy 
 by a mutual insurance company to the consummation of the 
 contract was considered under the following interesting cir- 
 cumstances : The general and local agents of the defendants, 
 together, called upon the plaintiff on the 7th of October, and 
 after negotiations with him applications were prepared by 
 the general agent, upon request to be insured from that 
 time, and signed by the plaintiff in a manner satisfactory to 
 the general agent, who said the policies would be made out 
 without delay. The local agent at the same time told the 
 plaintiff that it made no difference to him whether the plain- 
 tiff paid the cash premium at that time, or when he should 
 take the policies; and he did not then pay it. The plaintiff 
 then asked the agents for a copy of the by-laws of the com- 
 pany, and was told that they had none with them, but he 
 would be furnished with a copy on the policies. No rules or 
 regulations of the company were made known to the plaintiff. 
 It was also understood between the agents and the plaintiff 
 that the policies should be made out at once, and left with 
 M. and F., M. being the local agent and F. his partner, no 
 time being fixed when the plaintiff should call for them. 
 The policies were accordingly executed and left with F. 
 before the loss. F. was afterwards told by the president of 
 
 ^ See post, § 565 et seq. 
 
 2 Shaw V. Rep. Life Ins. Co., 69 K'. Y. 286, 287. 
 
 103 
 
§ 63] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. IT. 
 
 the company to put them in the safe and take care of them, 
 but was afterwards directed by the company not to deliver 
 them, and they were subsequently taken back by the com- 
 pany. On the 10th October the plaintiff tendered the pre- 
 mium to F. , while the policies were yet in his keeping, but 
 after he had been instructed not to deliver them, who de- 
 clined to receive it for the company, but consented to hold 
 it as a deposit till suit was brought, when it was paid into 
 court. F. at the same time declined to deliver the policies. 
 The policies provided that each person should pay upon the 
 execution of his policy, and before its delivery, the pre- 
 mium thereon; that no insurance should take effect until 
 the cash premium was paid; and that no insurance agent, 
 or broker, forwarding applications, was authorized to bind 
 the company in any case whatever. And it was held that, 
 upon these facts, a jury might find a waiver of the right to 
 receive the cash premiums before the delivery of the policies, 
 and if they should find such waiver, the policies were effect- 
 ual from the time when they were left with P. for delivery.^ 
 § 63. Effect of Charter and By-Laws (continued}. — On the 
 other hand, there are numerous and most respectable author- 
 ities, that insurance companies whose charters and by-laws 
 define the mode in which they may contract, and the time 
 and circumstances under which their contracts shall become 
 binding upon them, cannot be held otherwise than in con- 
 formity with such provisions.^ 
 
 1 Bragdon v. Appleton Mut. Ins. Co., 42 Me. 259. Cutting, J., dissented, on 
 the ground that mutual insurance companies cannot waive a compliance with the 
 terms and conditions upon which they may by their charter contract, as to which 
 it was the duty of the plaintiff to have informed himself, adopting the rule laid 
 down in the cases cited in the following section. See also, to the same point with 
 the case above cited from the Maine reports, Pino v. Merchants' Mut. Ins. Co., 
 19 La. An. 214 ; New England Fire & Mar. Ins. Co. v. Schettler, 38 111. 166, 167. 
 And see also Kelly o. Com. Ins. Co., 10 Bosw. (N. Y. Superior Ct.) 82 ; ante, 
 § 22 ; post, § 65. 
 
 ^ [All who take out policies are bound by the charter and the laws of the State 
 under which the company is formed. Such laws are a part of the contract ; for 
 example, the provisions in regard to insolvency. If the proceedings provided for 
 by the charter and laws of the home State are adequate, they must be followed. 
 Fry V. Charter Oak L. Ins. Co., 31 Fed. Kep. 197 (Mo.) 1887 ; Parsons v. Same, 
 id. 305 ; Weingartner v. Same, 32 id. 314. Persons dealing with the officers of a 
 corporation are charged with notice of the extent of their powers as laid down in 
 
 104 
 
CH. IV.] CONSUMMATION OF THE CONTRACT. [§ 63 
 
 In the case of Belleville Mutual Insurance Company v. 
 Van Winkle,^ it appeared that all the terms of the contract 
 had been agreed upon, and that a policy was to be issued 
 dated as of the day of the agreement, it being distinctly 
 stated by the secretary of the company that the applicant 
 was thenceforth insured, and that the policy should be made 
 out and sent right away. The policy was executed upon the 
 eighteenth day of April. On the twentieth day the secretary 
 wrote to the applicant, requesting him to sign the enclosed 
 premium note and forward by return mail. On the twenty- 
 second day, and before the note could be returned, a fire 
 occurred. The applicant then tendei'ed his note and de- 
 manded his policy, which the company refused, and placed 
 their refusal on the ground that no deposit note had been 
 received at the time of the loss; whereas, it was provided 
 by the charter of the company that " every person who shall 
 become a member by effecting insurance shall, before he 
 receives the policy, deposit his promissory note for such a 
 sum of money as shall be determined by the directors, " thus 
 making the deposit note a condition precedent to the mem- 
 bership. And the court, upon bill in equity for relief, 
 sustained this view, reversing the decree of the court below. 
 The applicant, said the court, was bound to know the terms 
 of the charter and by-laws, and it was his duty to see that 
 the premium note was duly made and deposited, and if he 
 chose to wait till it could be sent to him by the secretary 
 and returned, it was at his own peril. The by-laws ex- 
 pressly forbade any person becoming a member until the 
 premium note was deposited. No officer had any right to 
 dispense with this condition, and no one had any right to 
 rely upon his assurances that it could be dispensed with, or 
 
 the charter and by-lawa. Adriance v. Eoome, 52 Barb. 399, 411. A stranger 
 dealing with the company is presumed to have read the statutes under which it is 
 incorporated, and the articles of association, but where he has no notice to the 
 contrary, he has a right to assume that all matters of internal arrangement have 
 been dialy complied with. Ee County L. Ass. Co., L. R. 5 Ch. 288 ; 39 L. J. 
 Ch. 471. Members of a mutual insurance company are bound by its by-laws, so 
 far as they are consistent with the nature of the institution. Mut. Ass. Soc. v, 
 Koru, 7 Craneh, 396, 399.] 
 1 1 Beas. (N. J.) 333. 
 
 105 
 
64] INSUEANCB : FIEE, LIFE, ACCIDENT, ETC. [CH. IT, 
 
 that the insurance should take effect before the deposit of 
 the note.* 
 
 § 64. Effect of Charter and By-Laws (^continued); Neglect 
 of Officer. — But though mutual insurance companies and 
 others may be inhibited by the terms of their charter from 
 issuing policies except upon certain conditions, it does not 
 follow that they are inhibited from agreeing to issue a policy 
 in conformity with those conditions.^ This was what was 
 done in the New Jersey case just cited. And although the 
 secretary may have transcended his power when he under- 
 took to say that the insurance should take effect from and 
 after the time of the conference, it was not beyond his right 
 to promise that the policy should be sent right away. Had 
 this been done, the policy would have been delivered at the 
 time of the loss as a valid and binding policy. It was be- 
 cause he did not forward the note to be signed "right away," 
 as he had agreed to do, that the policy was not issued before 
 the fire. The secretary had a right to make this promise on 
 behalf of the company, and the applicant had a right to rely 
 upon it, and, it seems, did rely upon it. He was lulled into 
 security by it; and by the fault of the secretary, that is, the 
 company, he was without his promised policy when the fire 
 occurred. If the fire had not occurred, can it be doubted 
 that on a tender of the deposit note in response to the secre- 
 tary's note enclosing it for signature, and refusal of the com- 
 pany to issue the policy thereupon, a bill in equity to enforce 
 the delivery of the policy would have. been sustained? If so, 
 
 ■■ Barrett v. Union Mut. Fire Ins. Co., 7 Cush. (Mass.) 175 ; Real Estate Mut. 
 Fire Ins. Co. v. Roessle, 1 Gray (Mass.), 336 ; Montreal Ins. Co. v. MoGilivray, 
 9 L. C. (Q. B.) 488 ; Spitzer v. St. Mark's Ins. Co., 6 Duer (N. Y. Superior Ct.), 
 6 ; Mound City Mut. Fire Ins. Co. o. Curran, 42 Mo. 374. See also Flint v. 
 Ohio Ins. Co., 8 Ohio, 501. This ground of defence would doubtless have been 
 sufficient had it been answered to an action at law on the policy. A promise by 
 the treasurer to see that the premium is paid is not the equivalent nor a waiver 
 of the payment. Buffum v. Fayette Mut. Fire Ins. Co., 3 Allen (Mass.), 360. 
 And see also Mulrey v. Shawmut Mut. Fire Ins. Co., 4 Allen (Mas."!.), 116, 
 which was a case where the policy had been delivered, but the premium had 
 not been paid to the company, though it had been paid to the agent, with whom 
 they settled monthly. The payment of the premium was a condition precedent to 
 the validity of this policy. 
 
 2 See cases cited ante, §§ 22, 23. 
 
 106 
 
CH. IV.] CONSUMMATION OF THE CONTRACT. [§ 65 
 
 bow can the interTention of the fire change the obligations 
 of the parties already previously entered into ? It would 
 seem that the company ought to be liable in such case for 
 all damages resulting from their agent's failure to forward.^ 
 The neglect in such case was the neglect of the company, 
 and differs, therefore, from the neglect of the agent in Hoyt 
 V. Mutual Benefit Life Insurance Company,^ who, after ten- 
 dering the policy, and requesting payment of the premium, 
 promised to call on a third person, to whom the applicant 
 had referred him for the premium, but did not. This was 
 held to be a merely personal undertaking on the part of the 
 agent, in no way binding upon the company, and the facts 
 and circumstances were not the equivalent of the actual 
 delivery of the policy and payment of the premium. 
 
 [§ 64 A. A subsequent alteration of the charter or by-laws 
 cannot in general affect the contract of the assured. ^ But 
 the future by-laws of a society may by agreement be made 
 part of the policy issued by the society.* If the policy is 
 inconsistent with a by-law the latter is waived.^ A by-law 
 excluded by the terms of the contract does not affect it.^] 
 
 § 65. Countersigning by Agent. — In general, when the 
 policy provides that the counter-signature of an agent is 
 requisite to the validity of the policy, this counter-signature 
 must be had.^ But this stipulation in a policy may doubt- 
 less be waived.^ Countersigning by the agent is evidence 
 
 1 Walker v. Farmers' Ins. Co., 51 Iowa, 679 ; Christie v. North British Ass. 
 Co., 3 Ct. of Sess. Cas. (Scotch) 360 ; Somerset Ins. Co. v. May (Pa.), 2 W. 
 N. C. 43 ; Tome o. Parkersburg Br. R. R. Co., 39 M(3. 36 ; Williams v. Canada 
 Farmers' Mut. Ins. Co., 27 U. C. (C. P.) 119 ; post, § 69 ; Patterson v. Royal 
 Ins. Co., 14 U. C. (Ch.) 169 ; Fish v. Cottenet, 5 Hand. (N. Y.) 138 ; Franklin 
 Fire Ins. Co. v. Taylor, 52 Miss. 441 ; Wooddy u. Old Dominion Ins. Co. (Va.), 
 9 Ins. L. J. 276 ; post, § 67. 
 
 2 98 Mass. 539 ; ante, § 55. 
 
 3 [Morrison v. Wis. 0. F. Mxit. Life Ins. Co., 59 Wis. 162.] 
 * [Supreme Commandery, &c. v. Ainsworth, 71 Ala. 436.] 
 
 5 [Davidson v. Old People's Mut. Ben. Ass., 39 Minn. 303.] 
 
 6 [Doane v. Millville Ins. Co., 45 IS. J. Eq. 274.] 
 
 ' Hardie v. St. Louis Mut. Life Ins. Co., 26 La. An. 242. 
 
 ^ [Countersigning may be waived by delivery, but proof of proper delivery is essen- 
 tial. Although a policy declares that it shall not be valid until countersigned by 
 R. this condition may be waived by R., by receiving the premium and delivering 
 the policy without such signature. Chapman v. Delaware M. Ins. Co., 23 N. B. 
 
 107 
 
§ 65] INSUKANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. IV. 
 
 of the completion and delivery of the contract. Yet if this 
 evidence be wanting, other evidence may be equivalent; as, 
 for instance, a delivery by letter from the agent. ^ And the 
 counter-signature, at all events, is only necessary when a 
 policy is issued. Though the charter of the company, or 
 general statute law, or instructions to the agent, require the 
 counter-signature of agents to policies, companies may, by 
 themselves or their agents, agree to issue policies, and be 
 bound thereby. 2 The fact, however, that a policy is issued 
 to its own agent upon his life does not dispense with his 
 counter-signature in order to make the policy valid, if the 
 policy itself provides that it shall have no force until coun- 
 tersigned by such agent. Though the agent receive the pol- 
 icy, and place it amongst his private papers, it is no valid 
 contract till it is countersigned by him.^ Nor can an agent 
 renew a policy on his own life by charging the premium in 
 his account with the company, if by the terms of the policy 
 the payment is not to be binding unless acknowledged by a 
 receipt signed by the president or secretary.* The delivery 
 
 E. 121. The Wank for the counter-signature, " This policy is not valid unless coun- 
 tersigned by agent at . Countersigned this day of 187 
 
 agent," is only a meaningless form, and a policy delivered without such signature 
 is valid. O'Donnell v. Confederation L. Ins. Co., 2 Russ. & Geld. (Nova Sco.) 
 231. In this case the policy was executed as fully as the charter required, the 
 counter-signature being an addition to charter requisites. Where a policy which 
 by its conditions is not valid till countersigned and delivered, is sent to the agent 
 to be so signed and delivered when the premium was paid, and there is evidence that 
 the premium was paid but the policy was never signed and delivered, it was held 
 that the company was not liable ; the policy was not completed. Confederation 
 L. Ass. V. O'Donnell, 10 Can. S. C. R. 92 ; 13 Can. S. C. R. 218 (a great variety of 
 opinion among the judges). Mere possession by the assignee of the assured of a 
 policy stating on its face that it is not to take effect until signed by the agent, 
 and which is not so countersigned, is no evidence that the policy was ever deliv- 
 ered to the insured. Prall v. Mut. Protection L. Ass. Soc, 5 Daly (N. Y. ), 298, 299.] 
 
 1 Myers v. Keystone Mut. Life Ins. Co., 27 Pa. St. 268 ; United Life, Fire, 
 & Mar. Ins. Co. «. Insurance Co. of N. A., 42 Ind. 688 ; Westchester Fire Ins. 
 Co. V. Earle, 33 Mich. Ii3 ; Hibernia Ins. Co. v. O'Connor, 29 Mich. 241. 
 
 2 Walker v. Met. Ins. Co., 66 Me. 371 ; Kelly v. Com. Ins. Co., 10 Bosw. 
 (N. Y. Superior Ct.) 82 ; Ellis v. Albany City Fire Ins. Co., 4 Lans. (N. Y.) 
 433; s. 0. 50 N. Y. 402. 
 
 8 Badger v. The American Popular Life Ins. Co., 103 Mass. 244. But see 
 Norton v. Phoenix Mut. Life Ins. Co., 36 Conn. 503. 
 
 * Donald v. Life Ins. Co., 4 S. C. (Richardson) 321. See also Neuendorff v. 
 World Mut. Life Ins. Co., 69 N. Y. 389. 
 108 
 
CH. IV.J CONSUMMATION OF THE CONTRACT. [§ 66 
 
 by an unauthorized person of a policy requiring the counter- 
 signature of a particular local agent to make it valid, is of 
 no effect if the counter-signature of the agent be wanting.^ 
 
 § 66. Place of Contract. — It follows from the rule that 
 the contract is completed when the proposals of the one 
 party have been accepted by the other by some appropriate 
 act signifying the acceptance, that the place of contract is 
 the place of the acceptance. And if an agent, resident in 
 one State, of an insurance company resident in another, for- 
 wards the requisite papers to the home office, and a policy 
 is thereupon issued and mailed directly to the applicant, the 
 contract is a contract made in the State where the home 
 oifice is situated ; and, since the acceptance is the test of 
 completion, it would seem that a transmission of the policy 
 by mail to the agent, to be delivered by him to the appli- 
 cant, would have the like effect. ^ (a) And upon this ground 
 
 1 Lynn v. Burgoyne, 13 B. Hon. (Ky.) 400. 
 
 2 [Policies signed and sealed in Ontario, and sent to an agent in New York 
 who fills them up and issues them there, are Ontario contracts. Clarke v. Union 
 F. Ins. Co., 6 Ont. R. 223.] 
 
 (a) Where application is sent hy an another State. Hicks v. National L. 
 
 applicant or his agent from one State to Ins. Co., 60 Fed. Rep. 690. See Brei- 
 
 an insurance company of another, and tung's Estate, 78 Wis. 33 ; Mutual L. 
 
 there accepted, and a policy of insurance Ins. Co. v. Diugley, 100 Fed. Rep. 408; 
 
 is there issued, it is a contract of the Seiders v. Merchants' L. Ass'n (Texas), 
 
 State where issued, as the place of the 54 S. W. 753. A policy written in 
 
 acceptance of a proposal is in general Massachusetts by a company resident 
 
 the place of contract ; hut a polic}' of there, and sent to its agent in New 
 
 insurance providing that it shall not be Hampshire, becomes a New Hampshire 
 
 valid until countersigned by its agent contract upon delivery to the insured, 
 
 at a certain place, is a contract of the and the rights of parties under it are to 
 
 State where so countersigned. Gallo- he determined by New Hampshire laws, 
 
 way V. Standard F. Ins. Co., 45 W. Va. Perry c. Dwelling-Housa Ins. Co., 67 
 
 237. See Equitable L. Ass. Society v. N. H. 291. If an application for life 
 
 Trimble, 83 Fed. Rep. 85 ; State Mnt. insurance is made, and the policy is de- 
 
 F. Ins. Ass'n v. Brinkley Stave Co., 61 livered, and the premium is paid in 
 
 Ark. 1; Curnow a. Phcenix Ins. Co., Maryland, the courts of that State have 
 
 37 S. C. 406 ; Voorheisw. People's Mut. jurisdiction, and the policy of a Penn- 
 
 Ben. Society, 91 Mich. 469. A policy .sylvania company, although sued on in 
 
 applied for in New York and delivered Maryland, is to be construed by Penn- 
 
 there, if the premiums are paid there, sylvania statutes, and conditions of the 
 
 is a New York contract, notwith- policy, which might otherwise be valid 
 
 standing it is issued and signed in an- in Maryland, are invalid so far as they 
 
 other State by a company resident in conflict with the statutes of the State 
 
 109 
 
§ 66 A] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. IV. 
 
 it was held that a New York company which had accepted 
 proposals forwarded by its agent from Ohio did not come 
 within the statute of Ohio which prohibits foreign insurance 
 companies to insure in Ohio without license.^ If, however, 
 by the terms of the policy, it is not to be binding unless 
 countersigned by an agent resident at a designated place, 
 that place must be regarded as the place where the contract 
 is made, and the laws and usages of that place must govern 
 in the interpretation of the contract. ^ And if the policy be 
 sent to the agent for delivery on receipt of the premium, the 
 contract is completed at the agency. ^ 
 
 [§ 66 A. And the contract may be subject to the laws of 
 the State of the assured, although the premium is made pay- 
 able at the home office. Where an application was made in 
 Missouri and sent to New York, and the policy was executed 
 
 1 Hyde v. Goodnow, 3 Comst. (N. Y.) 266 ; Huntley v. Merrill, 32 Barb. 
 (N. Y.) 626 ; Western v. Genesee Mut. Ins. Co., 12 N. Y. 258 ; Bowser v. Lamb, 
 C. Ct. (Ind.) 6 Ins. L. J. 375 ; Whitcomb v. Phcenix Ins. Co., C. Gt. (Mass.) 8 id. 
 624 ; post, § 863 ; Shattuck v. Mut. Life Ins. Go., C. Gt. (Mass.) 7 Ins. L. J. 937. 
 
 2 Daniels v. Hudson River Fire Ins. Co., 12 Gush. (Mass.) 416; Moore v. Charter 
 Oak Life Ins. Co., Sup. Gt. (Cincinnati) 8 Ins. L. J. 78 ; [Heebner v. Eagle Ins. 
 Co., 10 Gray, 131, 143. The law of the State in which the policy is counter- 
 signed determines its validity. Northwestern Mut. L. Ins. Co. v. Elliott, 5 Fed. 
 Rep. 225; 11 Eepr. 325; 6 Sawy. 17. Contra, Whitcomb v. Phoenix Mut. Ins. 
 Co., 8 Repr. 642 (Mass.), 1879; Smith ^. Mut. L. Ins. Co., 5 Fed. Rep. 582, 
 10 Ins. L. J. 180 (1881).] 
 
 » Thwing V. Great Western Ins. Co., Ill Mass. 93. 
 
 from which the company comes. Fidelity an assignment thereof heing governed 
 
 Mut. L. Ass'n v. Ficklin, 74 Md. 172. by the laws of another State. Union Cen- 
 
 Where the insured requested by letter tral L. Ins. Co. v. Woods, 11 Ind. App. 
 
 a policy from an agent living in an- 335 ; Miller v. Campbell, 140 N. Y. 457. 
 
 other county, by whom it was issued, If an application for insurance is 
 
 the transaction was held to have taken mailed from one State to the home office 
 
 place in the county of the agent, within of a company in another State, which 
 
 the meaning of a statute requiring suit is not authorized to do business in the 
 
 to be brought where the transaction took former State, and there accepted, and 
 
 place. Sun Mut. Ins. Co. «. Crist (Ky.), the policy is sent by mail, the contract 
 
 26 Ins. L. J. 695. The laws of the is one which the resident of the iirst 
 
 place of contract are, in the absence of State is entitled to make ; and the in- 
 
 evidence, presumed to be the same as surer's adjuster has a constitutional 
 
 those where action is brought. Good- right to come there, and to follow his 
 
 win V. Provident Savings L. Ass'n, 97 business in any State where his employ. 
 
 Iowa, 226. ment calls him. F]-ench v. People, 6 
 
 The fact that a policy is governed by Col. App. 311; see Marden v. Hotel 
 
 the laws of one State does not prevent Owners' Ins. Co., 85 Iowa, 584. 
 
 110 
 
CH. IV.] 
 
 CONSUMMATION OF THE CONTRACT. 
 
 [§ 66 A 
 
 in New York and sent by mail to Missouri, and the pre- 
 miums made payable in New York, it was held that the 
 policy was subject to the Missouri statute.^ (a) Suit on a 
 premium note given in P. state to the agent of a company 
 chartered in B. state is subject to the laws of P. state. ^ A 
 contract must be governed by the law of the country where it 
 was made.3 Where a contract of insurance is finally exe 
 cuted and delivered is the lex loci contractus.^ The interpre- 
 
 1 [Wall V. Equitable L. Ass. Co., 32 Fed. Rep. 273 (Mo.), 1887.] 
 
 2 [Thornton v. Western Reserve Farmers' Ins. Co., 31 Pa. St. 529, 532. 
 
 3 [Wall V. Roberts, 3 Esp. 163, 164,] 
 
 * [Heebner u. Eagle Ins. Co., 10 Gray, 131, 143. As to enforcing and ex- 
 pounding the contract, see Cox v. United States, 6 Peters, 172, 203 ; Duncan v. 
 United States, 7 Peters, 435, 449.] 
 
 (a) Where the insured in Missouri 
 applied to a New York company for a 
 twenty-payment distribution policy stip- 
 ulated in the application, which was 
 part of the policy to be governed by the 
 New York statute, such policies being a 
 class by themselves in which the profits 
 are divided among the holders, in which 
 the first two annual premiums are paid 
 together in advance ; and the agent 
 by receipt acknowledged payment of a 
 sum less than the regular amount as 
 a payment for two years, provided that if 
 the application was not accepted by the 
 company the note was to be returned ; 
 and a policy was duly transmitted to the 
 insured, through the local agent, to be 
 delivered on payment of premium ; and 
 the third annual premium was not paid 
 when due, and the insured died soon 
 after ; and under the statute of Mis- 
 souri it continued in force, though under 
 the statute of New York it was void, it 
 was held to be a Missouri contract, and 
 governed by the law of that State, not- 
 withstanding the stipulation of the par- 
 ties. Horton v. New York L. Ins. Co., 
 151 Mo. 604. See Gibson v. Conn. F. 
 Ins. Co., 77 Fed. Rep. 561 ; Equitable 
 L. Ass. Society v. Winning, 58 id. 541 ; 
 Mutual Benefit L. Ins. Co. v. Robison, 
 id. 723 ; Equitable L. Ass. Society v. 
 Clements, 140 U. S. 226 ; Wiestling v. 
 Warthin, 1 Ind. App. 217. In an ac- 
 
 tion in Missouri by the insurer against 
 a railroad for causing a fire, where the 
 former was not authorized to do busi- 
 ness in the State, but the insurance was 
 first effected in Illinois by the president 
 of the lumber corporation, and the pre- 
 miums, though paid by him, were ulti- 
 mately paid by the corporation itself, it 
 was held that Illinois was the place of 
 contract, and that the laws of Missouri 
 did not apply. Lumbermen's Mut. Ins. 
 Co. 0. Kansas City, Ft. S. & M. R. Co., 
 149 Mo. 165. Where an industrial 
 policy in a New York company, insuring 
 the life of C, a resident of Rhode Island, 
 payable to one of certain persons whose 
 relationship was described, was taken 
 out by an aunt )the plaintiff), living in 
 Rhode Island, whose name did not ap- 
 pear in connection with the contract ; 
 and, the policy having lapsed, a revival 
 application was sent from Massachusetts, 
 where she had moved, by the aunt, and 
 the policy was stamped, revived, and re- 
 turned to Massachusetts; and the insured 
 continued to reside in Rhode Island, it 
 was held that both the original and re- 
 vived policies were Rhode Island and 
 not Massachusetts contracts, and that 
 the place of performance was the place 
 of contract, unless otherwise intended. 
 Bottomley v. Met'n L. Ins. Co., 170 
 Mass. 274. 
 
 Ill 
 
66 A] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. IV. 
 
 tation of contracts, however, is not always governed by the 
 same law that decides its validity. Usage and all other aids 
 to the discovery of the real intent of the parties must be 
 taken into account. The standard of seaworthiness is that 
 supplied by the custom of the port and country to which the 
 vessel belongs, not that of the place where the insurance is 
 made.^ The separation of a city from a State has no effect 
 upon existing contracts of insurance, though subsequent 
 ones might be thus prohibited,^ as where a company ccTuld 
 only insure houses in the state (Va.) from which the city 
 went.] 
 
 1 [The Titania, 19 Fed. Rep. 101 S. P. S. Dist. of N. Y. 1883.] 
 
 2 [Korn V. Mut. Ass. Co. of Va., 6 Cr. 192, 199 (U. S.).] 
 
 112 
 
TERMINATION AND EEVIVAL. [CH. V. 
 
 CHAPTER V. 
 
 termination and revival. 
 
 Cancellation. — Surrender. — Renewal. — Reviter. 
 
 Analysis. 
 
 A. Cancellation : 
 
 requires agreement, reserved right, or some fact on which equity can 
 act, §§ 67, 67 A, 67 M. 
 abandonment by the assured not assented to, no effect, § 67. 
 
 1. By agi'eement distinct from the policy. 
 
 a compromise involving surrender and cancellation terminates the 
 
 contract, § 67 A. 
 a receipt acknowledging, may be rebutted if without considera- 
 tion, § 67 A. 
 member of a mutual company cannot escape assessments by can- 
 cellation after the company is insolvent, § 67 A. 
 may be effected by agent of assured, § 67 B. 
 
 partner's assent to, conclusive on firm, § 67 B. 
 agent cannot keep such policy alive for himself, §.67 B. 
 an agent to procure insurance does not necessarily have au- 
 thority to consent to cancellation, § 67 B. 
 assent of beneficiary necessary, §§ 67, 67 C. 
 
 2. Under conditions named in the contract. 
 
 construction of Qiese is strict, §§ 67, 69. 
 the right must be exercised before loss, § 67. 
 by bringing suit, § 67. 
 
 Notice : 
 
 must be reasonable, §§ 67 D, 67 L. 
 
 must be unconditional demand, not a mere expression of de- 
 sire, § 67 D. 
 must be in present tense, §§ 67, 67 D. 
 length of time before cancellation, § 68. 
 to the company's agent to cancel is operative as soon as 
 
 the assured knows of it, § 67 E, 
 and a subsequent agreement with the agent to continue the 
 
 policy is void, § 67 E. 
 by mail, § 67. 
 by bringing suit, § 67. 
 mistake in, not fatal, § 68. 
 8. To whom notice must be given, 
 
 assured or his authorized agent, § 67 F. 
 
 finding notice among assured's papers after his death not suffi- 
 cient, § 67 F. 
 VOL. I. — 8 113 
 
insurance: fiee, life, accident, etc. [ch. v., 
 
 notice to general agent of assured sufficient, § 67 F. 
 
 although same person was agent for company, § 67 F. 
 notice to special agent for procuring the insurance not good, 
 §67G. 
 e. g. broker, §§ 67 H, 67 L. 
 unless custom makes broker agent to receive notice, §§ 67, 
 67 I ; see § 67 L. 
 or the policy declares he shall be deemed the agent of as- 
 sured (?) §§ 67 I, 67 H. 
 to one of two persons severally interested does not affect the 
 other, § 67. 
 
 4. Return of the unearned premium is also usually a condition of cancel- 
 
 lation, §§ 67, 67 J. 
 if a premium was paid to the company, actual tender of the 
 
 return premium is necessary, § 67 J. 
 except where the cancellation is by agreement, § 67 K. 
 a credit unassented to is insufficient, § 67 J. 
 but if no premium was paid, as where credit was given, no re- 
 turn is necessary, § 67 K. 
 if only a note was given the return premium is a credit on it, 
 
 §67 K. 
 agent retaining premium after notice of disapproval, with as- 
 sent of assured, will not save the insurance, § 69. 
 For non-payment of premium must be before tender of the premium ; 
 
 Canada statute, § 67. 
 For refusal to pay assessment, means legal assessment. 
 
 5. The company versus its agent, § 67. 
 
 where the time to be allowed the assured to get new insurance is 
 left to the agent and he allows three days, there is no such abuse 
 of discretion as will make him liable to the company, § 67 L. 
 
 but delay of five days in communicating with assured, agent 
 responsible, § 67 L. 
 
 agent cannot delegate discretion of cancellation, § 67 L. 
 
 agent is responsible to company if he gives notice to broker, in- 
 stead of assured, and so fails to cancel, § 67 L. 
 and evidence of a custom to do so, will not be received in 
 
 his favor, § 67 L. 
 agent has commission only on premiums earned, § 67 L. 
 
 6. Of policy will be decreed in equity, 
 
 where the assured had no interest, § 67 M. 
 
 where the policy was obtained by fraud, § 67 M. 
 
 but not for intemperance, § 67 M, the assured may reform. 
 
 7. Mistake of agent in notice in designating date of cancellation not ma- 
 
 terial, § 68. 
 neglect of agent not prejudice assured, § 67. 
 
 cancellation of interim receipt, or contract, subject to approval, § 69. 
 agi'eement with agent after notice of disapproval to the assured, 
 will not save the contract, though the agent retains the pre- 
 mium, § 69. 
 an agreement without consideration, subsequent to delivery of 
 a policy, will not turn it into a contract, taking effect only 
 on approval, § 69. 
 
 114 
 
CH. v.] TERMINATION AND REVIVAL. 
 
 B. Sumnder : 
 
 meeting of minds, and delivery of policy, with intent to surrender it, 
 
 terminates it, §§ e9, 69 B. 
 if in a mutual company the member is no longer liable for assessments, 
 §69 B. 
 unless the company was insolvent at time of surrender, § 67 A. 
 re-delivery by the agent after knowledge of a loss cannot revive the 
 
 policy, § 69 B. 
 on condition, is incomplete until condition is fulfilled, § 69 B. 
 after forfeiture, assured can recover no premiums, § 69 B. 
 
 C. Renewal : 
 
 What constitutes. 
 
 Parol renewal good even though the original policy stipulates 
 
 otherwise, § 70 B. 
 but a policy under seal cannot be continued in force by parol, 
 §70B. 
 the suit would have to be on the parol contract, not on the 
 policy of, § 70 B. 
 if a parol agreement to renew is indeterminate, or a mere agree- 
 ment with the agent that when the time comes he will make a 
 renewal, it is very well not to hold the company, § 70 B. 
 but a present parol contract uf renewal or revival, or a contract 
 to issue a policy in renewal at the proper time ought to be 
 binding under similar circumstances and to the same extent, as 
 a parol agreement with the same agent for an original policy, 
 and the authorities countenance this view, § 70 B. 
 ' Care must be taken as to the form of the suit. If there is any doubt 
 about the renewal, suit should not be on the old policy but on the 
 parol agreement to renew. Attention to this point, and to the 
 special facts of each case, brings the decisions all into harmony. 
 (See Oh. ii. Anal. 1.) 
 
 Terms of ; 
 
 same as original contract, if not modified by a new application, 
 or by circumstances, § 70 a, and notes. 
 
 Period covered. Parol not admissible to show receipt abso- 
 lute on face is conditional. 
 
 Renewal to one of two original parties in a gross sum destroys 
 apportioned insurance of first policy. 
 
 removal of property with consent or knowledge of agent at 
 time of renewal binds the company and modifies the con- 
 tract, § 70 a, and notes. 
 
 D. Revival : 
 
 only by new contract or by estoppel, § 70 ; see § 69 B. 
 retaining overpayment applied by law to revive by estoppel, § 70 B. 
 representations in revival certificate part of contract, § 70 C. 
 re-delivery of surrendered policy after agent knows of loss cannot re- 
 vive it, § 69 B. 
 
 115 
 
§ 67] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. T. 
 
 § 67. Cancellation. — It need hardly be said that when the 
 contract has been once entered into and become binding 
 upon the parties, it cannot be cancelled by either, unless 
 the right be reserved; nor can either party withdraw himself 
 from its obligations without the consent of the other. And 
 when the life of one is insured for the benefit of another, the 
 consent of the beneficiary must be obtained.^ When nego- 
 tiations are had between the parties with reference to the 
 abrogation of the contract, the same rules apply as in the 
 making the contract. An agreement to abrogate, cancel, or 
 rescind can no more be made or executed without mutual 
 consent at some moment of time, and compliance with all 
 the conditions, than could the original agreement have been 
 made without that consent.2(a) The right of cancellation 
 on notice, reserved by the terms of the policy to either 
 party, should be exercised with care that the notice be ex- 
 plicit, and the conditions strictly complied with. A mere 
 notice of a desire or intention to cancel is not such an exer- 
 cise of the right of cancellation as will relieve a company 
 from the obligations of the policy. ^ In Atlantic Insurance 
 
 1 Forsyth v. National Life Ins. Co., Superior Ct. Cook Co. 111., 1873 ; Trager 
 V. Louisiana Eq. Life Ins. Co., 9 Ins- L. J. 817 ; Marrin v. Stadacona Ins. Co., 
 4 U. C. (App. R.) 330 ; Chase v. Ins. Co., 67 Me. 85. See § 67 C. 
 
 2 Alliance Mat. Ins. Co. v. Swift, 10 Cash. (Mass.) 433 ; Head v. Providence 
 Ins. Co., 2 Cranch (U. S. ), 127 ; Sands v. Hill, 42 Barb. (N. Y.) 651 ; Fabyan v. 
 Union Mat. Fire Ins. Co., 33 N. H. 203 ; Bennett v. City Ins. Co., 115 Mass. 241 ; 
 Howland v. Continental Ins. Co., 121 Mass. 499; Massasoit Mills v. Western 
 Ass. Co., 125 Mass. 110; Poor </. Hudson Ins. Co., C. Ct. (N. H.) 9 Ins. L. J. 
 428 ; Wilkins v. Tobacco Ins. Co. (Ohio), 30 Ohio St. 317. 
 
 8 Goit V. National Protection Ins. Co., 25 Barb. (N. Y.) 189 ; Grace v. Am. 
 
 (a) See Barrus v. Va. L. Ins. Co., 82 ; Von Wien v. Scottish Union & 
 124 N. C. 9 ; German Ins. Co. v. Rounds, Nat'l Ins. Co., 118 N. Y. 94. The in- 
 35 Neb. 752 ; Penn. Mut. L. Ins. Co. surer may be estopped to claim a for- 
 V. Union Trust Co., 83 Fed. Rep. 891 ; feiture if it allows the policy to remain 
 State Mat. F. Ins. Ass'n v. Brinkley uncancelled after notice of an increase 
 Stave Co., 61 Ark. 1 ; Minn. Title Ins. of risk. See Schmurr v. State Ins. Co., 
 Co. V. Drexel, 70 Fed. Rep. 194 ; Ins. 30 Oregon, 29 ; West End Hotel & 
 Co. V. Brecheisen, 50 Ohio St. 542 ; Land Co. v. American F. Ins. Co., 74 
 Louisville Underwriters v. Pence, 93 Fed. Rep. 114 ; Latimore u. Dwelling- 
 Ky. 96 ; Mut. Benefit L. Ins. Co. u. House Ins. Co., 153 Penn. St. 324. 
 Eobison, 58 Fed. Rep. 723 ; Joshua The insurer has the burden of proof to 
 Bendy Machine Works v. American show compliance with conditions re- 
 Steam-Boiler Ins. Co., 86 Cal. 248 ; quisite to cancellation. American F. 
 Lett V. Guardian F. Ins. Co., 125 N. Y. Ins. Co. v. Brooks, 83 Md. 22. 
 116 
 
OH. v.] TERMINATION AND REVIVAL. [§ 67 
 
 Company v. Goodall, it was held that the cancellation took 
 effect in that particular case before it had been assented to 
 by the other party interested. But this was because it was 
 agreed between the parties litigant that, as between them, 
 only one of whom was interested in, or a party to, the can- 
 celled contract, the cancellation should be deemed to take 
 effect before that time. The insurers under a new policy 
 agreed that a surrender of the old policy should protect the 
 newly assured from any danger by reason of a stipulation in 
 the new policy that other insurance not indorsed upon the 
 new policy should render the new policy void.^ If the policy 
 be terminable on notice merely, for forfeiture for non-pay- 
 ment of premium or otherwise, the notice may be peremp- 
 tory or conditional,^ and even after a loss.^ [By the law of 
 Canada, where power is given to cancel a policy for non- 
 payment of premium, the power must be exercised before 
 tender of the amount due.^] Where the policy had once 
 taken effect, although the insured declared that he would 
 have nothing further to do with the insurers, and that he 
 abandoned the whole thing, but still retained the policy, 
 while the insurers retained the note, and nothing appeared 
 to show that they assented to the abandonment, the plaintiff 
 was afterwards allowed to recover. ^ And the exercise of the 
 right will also be confined strictly within the terms under 
 which it is allowable by the provisions of the contract. If 
 the contract be made terminable on a refusal to pay an 
 
 Central Ins. Co., C. Ct. (Mo. )8 Ins. L. J. 95; Cain v. Lancasliire Ins. Co., 27 
 U. C. (Q. B.) 217, 453 ; Lyman v. State Mut. Ins. Co., 14 Allen (Mass.), 329; 
 Peoria Fire & Mar. Ins. Co. v. Botto, 47 111. .516 ; jEtna Ins. Co. v. McGuire, 51 
 111. 342; Hathorn o. Germania Ins. Co., 55 Barb. (N. Y.) 28 ; Trager v. Louisi- 
 ana Eq. Life Ins. Co. (La.), 9 Ins. L. J. 817 ; American Ins. Co. v. Woodruff, 
 34 Mich. 6; Grant v. Reliance Mut. Ins. Co., 44 U. C. (Q B.) 229 ; Joliffe o. 
 Madison Mut. Ins. Co., 39 Wis. 111. An equivocal notice, if accepted and 
 acted upon by the other party, will be good against the party giving it. Colum- 
 bia Ins. Co. V. Masonheimer, 76 Pa. St. 138. 
 
 1 35 N. H. 328. 
 
 2 Bergson u. Builders' Ins. Co., 38 Cal. 541 ; Southside Fire Ins. Co. v. 
 Mueller (Pa.), 8 Ins. L. J. 260. 
 
 8 Bruce v. Gore Dist. Mut. Ins. Co., 20 U. C. (C. P.) 207. 
 * [Vennor v. L. Ass. of Scot., 30 L. C. Jur. 303.] 
 
 6 McAllister, Adm'x, u. New England Mut. Life Ins. Co., 101 Mass. 558. 
 
 117 
 
§ 67] INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. V. 
 
 assessment on demand, an illegal assessment, or one not 
 laid according to the rules by which the insurers are gov- 
 erned, is in point of law no assessment, and the refusal, on 
 demand, of payment of such an assessment gives no right to 
 terminate the contract. ^ If the insurance be terminable " on 
 giving notice to that effect, and refunding a ratable propor- 
 tion of the premium," it is not cancelled by a notice that 
 the insurers will cancel the policy and return the fro rata 
 premium, but will give the insured till a certain day to 
 effect insurance elsewhere. The notice should be that the 
 policy is then and there cancelled, and the pro rata pre- 
 mium, sufficient in amount, should be at the same time paid 
 or tendered to the insured. The acceptance of the return 
 premium by the insured, after such insufficient notice, 
 might, indeed, cancel the policy ; but the cancellation must 
 be taken to be as of the date of the payment and acceptance 
 of the return premium. Hence, if a fire intervene between 
 the date of the notice and the acceptance of the return pre- 
 mium, unknown to the insured, he will not lose his right to 
 recover for the loss. ^ (a) Surrender of the policy before, and 
 payment of return premium after the loss, neither party at 
 
 1 Matter of People's Mut. Eq^uitable Fire Ins. Co., 9 Allen (Mass.), 319. 
 See also fost, § 574. 
 
 2 Van Valkenburgh v. Lenox Ins. Co., 61 N. Y. 465 ; Lyman v. State Mut. 
 Fire Ins. Co., 14 Allen (Mass.), 329; Little v. Eureka Ins. Co., Superior Ct. 
 (Cincinnati) 5 Ins. L. J. 154 ; Peoria Fire & Mar. Ins. Co. v. Botto, 47 111. 516 ; 
 Planters' Ins. Co. v. Walker Lodge (Texas), 11 Reptr. 142. 
 
 (a) As to return of unearned pre- a life policy containing no stipulations 
 miums, see Manlove v. Coral Mut. F. as to return of premiums does not en- 
 Ins. Co., 47 Kansas, 309 ; Phoenix Ass. title the insured to recover back the 
 Co. V. Munger Improved Cotton M. M. premiums paid, his remedy being to 
 Co., 92 Texas, 297 ; Davison v. London compel reinstatement, or by an action for 
 & L. F. Ins. Co., 189 Penn. St. 132; damages, of which the measure would be 
 Tisdell V. New Hampshire F. Ins. Co., the cash surrender value of the policy; 
 155 N. Y. 163; Norris v. Hartford F. but ifthe risk had not attached, such re- 
 Ins. Co., 55 S. C. 450 ; Colby v. Cedar covery can be had. In order to sustain 
 Piapids Ins. Co., 66 Iowa, 577 ; East an action for such return of premiums, 
 Texas F. Ins. Co. u. Flippin, 4 Tex. Civ. the complaint must show the terms of 
 App. 576 ; Hartford Steam Boiler Insp. the contract, performance of its condi- 
 & Ins. Co. V. Cartier, 89 Mich. 41 ; tions, and a refusal of the other party to 
 Smith V. National Credit Ins. Co., 65 perform. Met'n L. Ins. Co. o. McCor- 
 Minn. 283. A wrongful cancellation of miok, 19 Ind. App. 49. 
 
 118 
 
CH. v.] TEKMINATION AND KEVIVAL. [§ 67 
 
 the time knowing of the loss, does not cancel. ^ And where 
 the right is to cancel a contract within thirty days, by causing 
 a notice to that effect to be mailed to the insured, a notice 
 mailed within thirty days, but not reaching the insured by 
 due course of mail till after the fire, will not cancel the con- 
 tract. ^ (a) When an insurance company has the right to con 
 tinue or cancel the policy upon certain contingencies, they must 
 exercise that right within reasonable time and before a loss, 
 or they will be held bound by the policy.^ And the neglect 
 of an agent of the insurers charged with the negotiations 
 will be imputable to his principal, and will not prejudice the 
 rights of the insured under his contract.^ (6) And where two 
 parties are severally interested, notice to one does not affect 
 the other. ^ It is competent for the parties to agree that a 
 particular act, such, for instance, as the bringing a suit on 
 an overdue note, shall cancel the policy.^ When, after speci- 
 fying certain cases in which the insurers shall have the right 
 to terminate the risk, the policy adds, " Or if for any other 
 cause the company shall so elect, it shall be optional with 
 the company to terminate the insurance," the right is ab- 
 solute in the insurers on performing the condition's, and is 
 not restricted to causes like those previously enumerated.''' 
 
 ^ HoUingsworth w. Germania Ins. Co., 45 Ga. 294. 
 
 2 Tough V. Provincial Ins. Co., 20 L. C. Jour. (Q. B.) 168 ; Goodwin v. Lan- 
 cashire Fire & Life Ins. Co., 18 id. 1. 
 
 8 Le Soliel v. Delord, Dalloz, Jur. G&., Ct. of Cass. 1868, 1, 335. 
 
 * Franklin Fire Ins. Co. v. Massey, 33 Pa. St. 221 ; Patterson o. Royal Ins. 
 Co., 14 U. C. (Ch.) 169. See also ante, §§ 57, 64. 
 
 5 Guggisberg v. "Waterloo Mat. Ins. Co., 24 U. C. (Ch.) 350. 
 
 ^ Shakey v. Hawkeye Ins. Co., 44 Iowa, 540. 
 
 ' International Ins. Co. v. Franklin Ins. Co., 66 N. Y. 119. 
 
 (a) Notice of cancellation by mail is of a receiver. Ins. Com'r v. People's F. 
 
 not effectual unless received. American Ins. Co., 68 N. H. 51 ; see Scottish Union 
 
 F. Ins. Co. V. Brooks, 83 Md. 22 ; Far- &Nat'IIns.Co.D.Dangaix, 103 Ala. 388. 
 num V. Phenix Ins. Co., 83 Cal. 246. An agent, who receives orders to can- 
 
 (6) See British Ins. Co. v. Lambert, eel a policy, and delays their execution 
 
 26 Oregon, 109; Royal Ins. Co. v. Clark, until the property insured is destroyed 
 
 61 Minn. 476. When the policy pro- by fire, is liable to the company for 
 
 vides for its termination at any time loss that may occur in consequence of 
 
 upon the insured's request, delivery for such violation of orders. Sun Fire 
 
 cancellation to an agent terminates it Office v. Ermen trout (Penn., Berks. Co.), 
 
 immediately ; and such right to termin- 21 Ins. L. J. 1055. See Halsey u. Adams 
 
 ate is not affected by the appointment (N. J. L.), 43 Atl, 708. 
 
 119 
 
§ 67 B] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. V- 
 
 [§ 67 A. Cancellation by Agreement. — If a compromise is 
 made which involves the surrender and cancellation of the 
 policy as one of its terms, the risk is ended by the compro- 
 mise agreement, and the company is not liable for an after 
 occurring loss.^ {a) The agent notified the insured that the 
 company had determined to cancel, and the insured brought 
 the policy to their own place of business to surrender it, 
 but the agent failed to call, so that it was not surrendered. 
 The insured, however, regarding it as cancelled, began nego- 
 tiations for other insurance. It was held that the evidence 
 was sufficient to justify the finding of a cancellation. ^ An 
 agreement to receive a certain sum as return premium to 
 cancel the policy, and the payment of the said sum before 
 loss is a good cancellation, although the sum agreed on is 
 not exactly the ratable part of the premium referred to in 
 the policy.^ A receipt signed by an insured person, acknowl- 
 edging the cancellation of the policy (signed under the mis- 
 apprehension that a policy in another company had been 
 prepared by the agent, who brought the receipt for signature, 
 which was a false statement, though made bona fide by the 
 agent), does not estop him from suing on the policy when no 
 consideration for the receipt appears.* After a mutual com- 
 pany has become, in fact, insolvent, though perhaps not yet 
 declared so, it is impossible for a member by agreement 
 with the company to have his policy cancelled, and so escape 
 future liability.^ A member of a mutual company stands in 
 the position of a stockholder.] 
 
 [§ 67 B. Cancellation by Agent of Assured ; Agent to pro- 
 cure Insurance not necessarily Agent to cancel. — Where W. 
 insured for M. several times, taking out a new policy as the 
 old one was cancelled, but finally, after receiving notice to 
 
 1 [King V. ^tiia Ins. Co., 36 Mo. App. 128 ; King v. Ins. Co., id. 142.] 
 
 2 [Hopkins v. Phcenix Ins. Co., 19 Ins. L. J. 90 (Iowa), Oct. 1889.] 
 8 [iEtna Ids. Co. v. "WeissiDger, 91 Ind. 297.] 
 
 4 [Holden v. Putnam Y. Ins. Co., 46 N. Y. 1.] 
 
 s [Doaue v. Millville Mut. Ins. Co., 43 N. J. Eq. 522.] 
 
 (a) See Mutual L. Ins. Co. of New York v. Phinney, 20 Sup. Ct. Eep. 906 j 
 Same v. Sears, id. 912. 
 
 120 
 
CH. T.J TEEMINATION AND EEVIVAL. [§ 67 C 
 
 cancel a policy, and doing so, by returning it to the home 
 office and receiving the unearned premium for M., failed to 
 obtain any further insurance, the facts tended to show that 
 W. was M. 's agent for cancellation, and should go to the 
 jury.i A partner's assent to the cancellation of a firm pol- 
 icy is conclusive on the firm.^ An agent employed by a 
 policy-holder to cancel a policy cannot keep it in force for 
 his own benefit,^ and any advantage (as funds paid on the 
 policy) he may gain by deviating from the instructions of 
 his principal, can be claimed by the latter. When a policy 
 was issued at the instance of the assured's agent, who, when 
 called upon to pay the premium, referred the company to the 
 assured, who in turn declined to pay, on the ground that the 
 agent must have paid it; and when the agent then advised 
 the company to cancel the policy, which they did, it was 
 held that the company was still liable, the agent having no 
 authority to order a cancellation, and that the inference was 
 that the assured had been given credit for the payment of 
 the premium, and that it was not at the company's option 
 to cancel the policy or dissolve the contract without putting 
 the plaintiff in mora.* An agency to procure insurance ends 
 when it is procured, and the agent cannot afterwards con- 
 sent to a cancellation.^] 
 
 [§ 67 C. Beneficiary's Assent necessary. — Where the life 
 of a husband is insured for the sole use of the wife, payable 
 to her, if living, in thirty days after proof of his death, a 
 cancellation of the policy in consequence of the fraudulent 
 representation of the husband that his wife was dead, can 
 have no effect upon her rights.® A policy "payable to F, 
 L. and A. L., mortgagees," though it may be defeated by 
 breach of conditions by the insured, cannot be cancelled by 
 him without the consent of these payees.'^] 
 
 1 [McCartney v. State Ins. Co., RS Mo. App. 652.] 
 
 2 [Hillock V. Traders' Ins. Co., 54 Mich. 532.] 
 8 [Button V. Willner, 62 N. Y. 312.] 
 
 * [Latoix V. Germania Ins. Co., 27 La. An. 113.] 
 
 5 [Insurance Cos. v. Kaden, 87 Ala. 311. See § 67 G.] 
 
 6 [Knapp V. Homeopathic Mat. L. Ins. Co., 117 U. S. 411, 413.] 
 ' [Lattan v. Eoyal Ins. Co., 45 N. J. 453.] 
 
 121 
 
§ 67 G] INSURANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. V. 
 
 [§ 67 D, Notice, Character of it. — Reasonable notice of 
 cancellation must be given by the company, and what is 
 reasonable is a question for the jury. Only where there is 
 fraud, actual or constructive, will cancellation without notice 
 be lawful. 1 To effect a cancellation the notice must reach 
 the assured in the shape of an unconditional demand for 
 cancellation, not a mere expression of desire.'' The right 
 in the company to cancel is strictly construed. The notice 
 must be that the policy is cancelled, not will be, and the 
 unearned premium must be tendered.^ (a)] 
 
 [§ 67 E. Notice to Company's Agent operative vrben assured 
 knovs-s of it. — When the company has a right to terminate 
 the policy by notice, a notice sent to the agent is effectual 
 from the time the insured knows that the agent has received 
 it, and a subsequent agreement with the agent to continue 
 the policy cannot bind the company.*] 
 
 [§ 67 F. To Whom notice is to be Given. — The notice 
 must be given to assured or his authorized agent. ^ Finding 
 the notice of cancellation among the papers of the insured 
 after death, the fire having occurred in his life, is not suffi- 
 cient proof of service for cancellation before loss.^ Notice 
 of cancellation given to the general agent of the insured is 
 sufficient When one person is at the same time an agent 
 for the assured and for the insurer, notice of cancellation of 
 the policy to him will be notice to the policy-holder.^] 
 
 [§ 67 G. Notice to Procuring Agent not sufficient. — A pol- 
 icy cannot be terminated by notice to a special agent who 
 
 1 [Chadbourne «. Germ. Amer. Ins. Co., 31 Fed. Rep. 533, 24 Blatch. 492 
 (N. Y.) 1887.] 
 
 2 [Petersburg Savgii. & Ins. Co. v. Manhattan F. Ins. Co., 66 Ga. 446.] 
 " [Planters' Ins. Co. v. Walker Lodge No. 19, 1 Tex. Civ. Cas. § 758.] 
 * [Springfield F. & M. Ins. Co. v. McKinnon & Call, 59 Tex. 507.] 
 
 ° [Von "Wein v. Scottish, &c. Ins. Co., 52 N. Y. Super. 490 ; 54 N. Y. Super. 
 276 ; Lancashire Ins. Co. o. Nill, 114 Pa. St. 248.] 
 
 6 [Lattan v. Eoyal Ins. Co., 45 N. J. 453.] 
 
 7 [Stone V. Franklin F. Ins. Co., 105 N. Y. 543.] 
 
 8 [Hartford Ins. Co. v. Reynolds, 36 Mich. 502, 507 ; Newark Ins. Co. v. 
 Sammons, 11 111. Ap. 230, 237.] 
 
 (a) A notice to the insured, directing clause in the policy, is not a notice of 
 attention to the effect of failure to pay cancellation within the policy. Savage 
 the nremium, and to the cancellation v. Phoenix Ins. Co., 12 Mont. 458. 
 
 122 
 
CH. v.] TERMINATION AND REVIVAL. [§ 67 H 
 
 was entrusted only with authority to procure insurance for 
 the plaintiff. 1(a) Where a policy provides for its own ter- 
 mination by notice and refunding a ratable part of the pre- 
 mium, and declares that the person procuring the insurance 
 shall be deemed the agent of the assured, and not of the in- 
 surers, "under any circumstances whatever, or in any trans- 
 actions relating to this insurance," yet notice of termination 
 to the person procuring the insurance is not notice to the 
 insured. And parol evidence of a custom of insurance men 
 to give such notice to such person cannot be received to vary 
 the terms of the contract.^ One who was agent to procure 
 insurance is not necessarily authorized to receive notice of 
 cancellation.^ Even though the policy provides that notice 
 of cancellation may be given to the person who procured 
 the insurance, the provision will not apply where the same 
 person acted for both parties in procuring and issuing the 
 policy,*] 
 
 [§ 67 H. A broker employed to procure insurance has 
 no authority to give or receive notice of cancellation. 
 When he procures the insurance his agency ends.^ The 
 employment of a broker to effect insurance does not 
 
 1 [Hermann v. Niagara F. Ins. Co., 100 N. Y. 411.] 
 
 2 [Grace v. Amer. Cent. Ins. Co., 109 U. S. 278, 283.] 
 
 s [Body V. Hartford F. Ins. Co., 63 Wis. 157 ; Broadwater v. Lion F. Ins. Co., 
 34 Minn. 466.] 
 
 * [Insurance Cos. v. Raden, 87 Ala. 311.] 
 
 6 [Von Wein v. Scottish, &c. Ins. Co., 52 N. Y. Super. 490.] 
 
 (a) See Karelsen v. Sun Fire Office, of the insured to receive notice of can- 
 122 N. Y. 545 ; Quong Tue Sing v. cellation. A tender of premium to the 
 Anglo-Nevada Ass. Corp., 86 Cal. 566 ; agent, and his advice to let the matter 
 Sun Fire Office y. Ermentrout (Penn.), restuntilthe company decides about can- 
 21 Ins. L. J. 1055 ; British- America celling, amount to an indefinite extension 
 Ass. Co. V. Cooper, 6 Col. App. 25 ; of time, and a waiver of non-payment. 
 White 11. Ins. Co. of New York, 93 Fed. Mallory o. Ohio Farmers' Ins. Co., 
 Eep. 161 ; Anifeld v. Guardian Ass. 90 Mich. 112. Where the policy pro- 
 Co., 172 Penn. St. 605 ; Buick v. vided that it might be terminated by 
 Mechanics' Ins. Co., 103 Mich. 75 ; notice to the insured or his representa- 
 Scott V. Sun Fire Office, 133 Penn. St. tives, notice of cancellation served on 
 322 ; East Texas F. Ins. Co. v. Blum, the brokers who procured the insurance, 
 76 Texas, 653. A surrender of the where the residence of the principal was 
 policy to the agent to replace in case of unknown, was held sufficient, in Royal 
 cancellation does not make him the agent Ins. Co. v. Wight, 55 Fed. Eep. 455. 
 
 123 
 
§ 67 K] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. V. 
 
 make him the agent of the assured to receive notice of 
 cancellation.^ (a)] 
 
 [§ 67 I. Evidence of a general custom of the fire insurance 
 business, making notice of cancellation to the broker em- 
 ployed by the insured to procure the policy a sufficient notice 
 to the insured, is inadmissible.^ In Illinois it is held 
 that where the policy provides that a broker effecting insur- 
 ance shall be deemed the agent of the insured, notice to the 
 broker to cancel the policy is notice* to the assured.^] 
 
 [§ 67 J. Return of Premium. — If a policy provides for its 
 termination by giving notice and refunding a ratable pro- 
 portion of the premium, a notice of the company's wish to 
 cancel and a request to return the policy upon which the 
 premium would be remitted is not sufficient. Nothing short 
 of notice and actual tender of the premium will do.* It 
 has been held that the exclusion of evidence with reference 
 to what was done about cancelling a policy where the pre- 
 mium was not returned until the loss actually occurred, was 
 proper,^ Eepayment, or tender of the ratable proportion of 
 the premium, or waiver of it, is necessary to cancel the 
 policy, as well as notice, and a credit given the assured on 
 a debt due from him, that credit not being assented to by 
 him, is insufficient.^] 
 
 [§ 67 K. When no Return of Premium is necessary. — But 
 where no premium has actually been paid, a charge on 
 account being all that has transpired in that matter, notice 
 alone without tender of premium is sufficient to cancel the 
 
 1 [Adams v. Manufacturers', &o. F. Ins. Co., 17 Fed. Rep. 630, R. I. 1883. 
 Eehler v. New Or Ins. Co., 23 Fed. Rep. 709 Mo. 1885; lud. Ins. Co. v. Hart- 
 well, 100 Ind. 566. This case follows 109 U. S. 278, in ruling that a broker 
 " employed to procure insurance " is not the agent of the assured after the 
 procurement is complete, for receiving notice of cancellation, or anything else, 
 even though the policy declares that the broker shall be deemed the agent of 
 the assured for matters connected with the insurance.] 
 
 2 [Grace v. American Central Ins. Co., 109 U. S. 278.] 
 
 s [Newark F. Ins. Co. v. Sammons, 11 Brad. 230 ; contra, 100 Ind. 566, and 
 109 U. S. 278 supra.] 
 
 < [Grififey v. N. Y. Central Ins. Co., 100 N. Y. 417.] 
 
 5 [McGraw v. Germania F. Ins. Co., 54 Mich. 146.] 
 
 6 Lattan v. Royal Ins. Co., 45 N. J. 453.] 
 
 (a) Such authority may be inferred White v. Ins. Co. of New York, 93 Fed. 
 from their previous course of dealing. Rep. 161. 
 
 124 
 
CH. v.] TERMINATION AND REVIVAL. [§ 67 L 
 
 policy.^ If a note has been given for the premium, the pro 
 rata amount to be returned in case of cancellation need not 
 be tendered; the note is subject to that credit.^ When 
 credit in any shape has been given for the premium the 
 company does not have to return anything upon cancella- 
 tion.'' And tender of the unearned premium is unnecessary 
 to complete a cancellation if the minds of the parties have 
 met on a rescission.*] 
 
 [§ 67 L. The Company versus its Agent. — When a com- 
 pany intrusts to its agent the duty of cancellation of a spe- 
 cific policy, without definite instructions as to time to be 
 allowed, nothing short of abuse of discretion or fraud on 
 the part of the agent relieves the principal from liability 
 before actual cancellation. The insured is entitled to rea- 
 sonable notice of intent to cancel, and if the company does 
 not prescribe the time within which the cancellation shall 
 be completed, nothing but an absolute abuse of the discre- 
 tion so left to the agent, or fraud on his part, will relieve 
 the principal.^ (a) In this case the agent receiving the pol- 
 icy from the office with instructions to cancel gave the appli- 
 cant three days to get other insurance, and a fire occurring 
 within the three days the company was held. But unreason- 
 able delay in communicating with the assured will make the 
 agent responsible, as where an agent could have notified the 
 insured that his policy was cancelled within half an hour 
 after receiving word to that effect from the company, but 
 delayed till the property was burned five days afterward, the 
 finding of negligence on the part of the agent in a suit 
 against him by the company was held proper.^ Agents of 
 an insurance company cannot delegate the discretion of can- 
 
 1 [Stone V. Franklin F. Ins. Co., 105 N. Y. .')43.] 
 
 2 [Little V. Insurance Co., 38 Ohio St. 110.] 
 
 Von Wein v. Scottish, &c. Ins. Co., 52 N. Y. Super. 490.] 
 Hillock V. Traders' Ins. Co., 54 Mich. 531.] 
 
 5 [McLean v. Republic Ins. Co., 3 Lansing, 421.] 
 
 6 [Phcenix Ins. Co. v. Fris.sell, 142 Mass. 513.] 
 
 (a) Instructions to the agent to can- Watertown Fire Ins. Co. v. Rust, 141 
 eel, in the absence of knowledge by the 111. 85. 
 insured, does not affect the latter. 
 
 125 
 
§ 68] INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. V. 
 
 celling a policy, but it is not necessary that they should per- 
 sonally give notice or tender the return premium, i If a 
 company orders its agent to cancel a policy and by his 
 neglect or disobedience it suffers loss, he is liable,^ and can- 
 not shield himself by showing that he had directed the 
 broker who placed the insurance with him to cancel the 
 policy. Evidence of a custom to procure cancellation in 
 this way is inadmissible in the agent's defence. ^ (a) It 
 seems that on the cancellation of a policy the agent is only 
 entitled to commissions on the premiums earned before 
 cancellation.* (J)] 
 
 [§ 67 M. Cancellation of Void Policy in Equity. — When 
 the policy is void for lack of interest in the assured,^ or for 
 fraud in effecting it,^(c) equity will order a cancellation of 
 it. The fact that the insured has become intemperate will 
 not induce equity to cancel the policy, for he may reform.'?] 
 
 § 68. Cancellation ; Notice. — If the policy provide the 
 length of the notice to be given, it does not seem to be 
 material that the notice itself makes a mistake in the desig- 
 
 1 [Ennkle v. Citizens' Ins. Co., 6 Fed. Rep. 143 (Ohio), 1881.] 
 
 2 [Washington F. & M. Ins. Co. v. Chesebro, 35 Fed. Rep. 477 (Conn.), 1887.] 
 8 [Franklin Ins. Co. v. Sears, 21 Fed. Eep. 290 (Ohio), 1884.] 
 
 * [Devereux v. Insurance Co., 98 N. C. 6.] 
 
 6 [Goddart v. Garrett, 2 Vern. 269.] 
 
 e [Fenn v. Craig, 3 H. C. 216, 222.] 
 
 ' [Connecticut Mut. L. Ins. Co. v. Bear, 26 Fed. Eep. 582 (N. C), 1886.] 
 
 (a) A local custom that insurance Hamilton, 50 Neb. 248 ; Eooistra v. 
 agents, after the termination of their Rockford Ins. Co. (Mich.), 81 N. W. 
 agency, may cancel any of the policies 568. 
 
 issued through them, is unreasonable, (c) See Swain a. Security Live-Stock 
 
 contrary to the rules of law applicable to Ins. Co., 165 Mass. 321. The cancella- 
 
 principal and agent, and is void. Mer- tion of a policy may also be set aside 
 
 chants' Ins. Co. o. Prince, 50 Minn. 50. when made under a mistake of fact. 
 
 (b) The compensation of agents is Duncan v. New York Mut. Ins. Co., 
 determined by their contracts, express 138 N. Y. 88. Where prior insurance 
 or implied ; the general course of busi- on the property had been cancelled be- 
 ness is evidence, and the fact that fall cause the insurer was retiring from 
 premiums, less commissions, have been business, and the application denied 
 allowed on cancelled policies in some prior refusal or cancellation of a policy, 
 circumstances, as a matter of expediency, this was held not to be a material mis- 
 does not establish such allowance as a representation, as the cancellation was 
 matter of law. Ins. Com'r v. People's not for a cause affecting the risk. 
 Fire Ins. Co., 68 N. H. 51. See also Hawley v. Liverpool, &c. Ins. Co., 102 
 on this section, Northern Ass. Co. v. Cal. 651. 
 
 126 
 
CH. V.J TERMINATION AND EEVIVAL. [§ 69 
 
 nation of the date when the policy will become cancelled, 
 provided the required time shall have elapsed between the 
 time when the notice is given and loss shall have happened. 
 Thus, where it was provided that after seven days' notice of 
 intention to cancel, the insurance should terminate, a notice 
 dated the 13th of February, and deposited on that day in the 
 post-office, but not till after the oflEice was closed for the day, 
 which notice was received by the insured on the next day 
 in due course of mail, and informed him that his insurance 
 would terminate on the 20th, the loss not having occurred 
 till the 22d, it was held that the notice was sufficient both 
 within the letter and the spirit of the contract.^ But this 
 case is a departure from the usual strictness. 
 
 § 69. Cancellation ; Intermediary Receipt. — So, too, a con- 
 tract of insurance made by what is sometimes called an in- 
 termediary receipt given by an agent, that is, a receipt for 
 the premium, containing a statement that the receipt is sub- 
 ject to the approval of the insurers, to be notified to the in- 
 sured, and certifying that meanwhile the applicant is insured 
 for a specified time, may be cancelled within the time speci- 
 fied, and at any period prior to that time, if notice of disap- 
 proval be given. In other words, the certificate of insurance 
 for a specified time pending the negotiation for a policy does 
 not constitute an absolute contract for that time, but only a 
 conditional contract that the insurance shall extend for the 
 specified time, unless the insurers, having the option to de- 
 cline the risk, shall sooner signify their determination to 
 decline.^ Here, however, as in other cases, the right to 
 cancel will be strictly construed,^ and notice and an offer 
 to refund must be previously given, if required.* [Although 
 by payment of the premium, &c., a provisional contract may 
 be created, yet the company may reject the application and 
 annul the contract, and it will not be held, because the 
 
 1 Emmott V. Slater Mut. Fire Ins. Co., 7 E. I. 562. 
 
 ■^ Goodfellow V. Times & Beacon Ass. Co., 17 U. C. (Q. B.) 411. 
 
 ^ [When the policy presorites the conditions on which cancellation by the 
 company can be made, they must be strictly complied with or the company will 
 be liable. Landis v. Home Mut. F. & M. Ins. Co., 66 Mo. 691, 598.] 
 
 * Grant v. Reliance Mut. Sire Ins. Co., 44 U. C. (Q. B.) 229. 
 
 127 
 
§ 69 B] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. V. 
 
 agent, by arrangement with the assured, retained the pre- 
 mium while attempting to get the company to reconsider its 
 rejection. 1 Where a policy, duly signed, was given A. by 
 the company's duly authorized agent, the company was 
 liable, although immediately after the delivery of the policy 
 the agent got A. to sign a formal application containing a 
 memorandum stating that the policy was not to go into 
 effect until approved by the general agent, who subsequently 
 gave the local agent notice to cancel the policy, which, 
 however, was not done before loss. The effect of the mem- 
 orandum could be no more than to reserve a right of can- 
 cellation, and until the policy was actually cancelled the 
 company would be held. 2] 
 
 § 69 a. Surrender ; Paid-up Policy. — Not SO much strict- 
 ness seems to be required on the surrender of one policy in 
 order to obtain another. Here a desire expressed within the 
 term, to which no dissent is expressed, and a completion of 
 the requisite acts, delivery of the .old policy, &c., after the 
 expiration of the term, were held sufficient in equity. ^ {a) 
 
 [§ 69 B. An agreement in good faith between the parties 
 
 1 [Otterbein v. Iowa Ins. Co., 57 Iowa, 274.] 
 
 2 Insurance Co. u. Webster, 6 Wall. 129.] 
 
 ' Morrison v. American Popular Life Ins. Co., C. Ct. (E". H.) 5 Ins. L. J. 
 752. See also Farmers' Mut. Ins. Co. v. Wenger (Pa.), 8 Ins. L. J. 712; Train 
 V. Holland, &c. Ins. Co., 68 N. Y. 208. As to policies for a term of years, void 
 or voidable for non-payment of annual premium, see post, § 342. 
 
 (a) As to surrender to obtain a new failure to apply and surrender the policy 
 
 policy, usually to obtain a paid-up within the period stipulated, the assured 
 
 policy, see Heinlein v. Imperial L. Ins. does not lose his right to a paid-up 
 
 Co., 101 Mich. 250 ; Terry v. Mutual policy ; nor need a policy which has 
 
 L. Ins. Co., 116 Ala. 242 ; McLaughlin lapsed be suiTendered in order to a right 
 
 w. Equitable L. Ass. Society, 38 Neb. of action. Mutual Life Ins. Co. v. Jar. 
 
 725 ; Manton v. Robinson, 19 E. I. 405 ; boe (Kj'.), 42 S. W. 1097. As to sur- 
 
 Eiegel v. American L. Ins. Co., 153 render under the lex loci, see Equitable 
 
 Penn. St. 134 ; Crown Point Iron Co. L. Ass. Society v. Clements, 140 U. S. 
 
 V. Mtna Ins. Co., 127 N. Y. 608; 226. 
 
 North-Western Mut. L. Ins. Co. o. Surrender value in a mutual company, 
 
 Barbour (Ky.), 15 L. R. Ann. 449, and when allowed by a policy, is determined 
 
 note. If a policy stipulates for a paid- by deducting the amount due on the 
 
 up policy after certain payments have notes from what has been paid in cash, 
 
 been made, provided the policy be sur- Hines f. Mutual L. Ins. Co. (Ky. ), 25 
 
 rendered within a stated time, and such Ins. L. J. 555 ; see Hazen v. Mass. Mut. 
 
 payments have been fully made in cash, L. Ins. Co., 170 Mass. 254 ; Kellner v. 
 
 time is not of the essence, and by a Mutual L. Ins. Co., 43 Fed. Eeji. 623. 
 
 128 
 
CH. V.j . TERMINATION AND REVIVAL. [§ 70 
 
 to a policy to annul it is valid, and when the insured sur- 
 renders his policy and it is agreed that it shall be cancelled, 
 the insured ceases to be a member, and is not liable for sub- 
 sequent assessments.^ If the policy permits the assured to 
 cancel, a delivery of the policy to an agent authorized to 
 cancel policies, with the statement that the surrender is 
 made for cancellation, terminates the policy, and a subse- 
 quent redelivery by the agent with knowledge of an inter- 
 vening loss will not revive it.^ Where a policy was delivered 
 up to be cancelled on condition that the risk be placed in an- 
 other company, and a loss occurred after the agent had writ- 
 ten " cancelled " across the old policy, but before the new 
 policy had been applied for, it was held that the company 
 was liable, as the condition on which the cancellation was 
 to be made had not been fulfilled. ^ If a policy under which 
 the assured may cancel is not tendered for cancellation until 
 after it has been forfeited by other insurance, the unearned 
 premiums cannot be recovered, for the policy and all its 
 terms were dead in law before the tender.* The assent of 
 a partner to receive an offered substitution of a policy in 
 another company will bind the substituted company to the 
 firm, though loss occurs before the old policy is surrendered 
 or the new one delivered.^] 
 
 § 70. Accident Insurance ; Insurance Ticket. — In some 
 branches of accident insurance — railway passengers, for in- 
 stance — it is the practice to issue tickets, the nature of the 
 business being such that there is not the time to follow the 
 routine usual in other kinds of insurance. These tickets^ 
 
 1 [Akers v. Hite, 94 Pa. St. 394.] 
 
 2 [Crown Point Iron Co. v. Mtim Ins. Co., 53 Hun, 220.] 
 
 8 [Poor V. Hudson Ins. Co., 2 Fed. Rep. 432 ; 9 Ins. L. J. 428 ; (N. H.), 1880.] 
 
 * [Colby V. Cedar Eapids Ins. Co., 66 Iowa, 577.] 
 
 6 [Whiteman Bros. v. Amer. Cent. Ins. Co., 14 Lea (Tenn.), 327.] 
 
 ^ The following is a sample of such tickets, styled a " General Accident 
 
 Ticket:" "The company of will pay the owner of this ticket 
 
 dollars per week in case of personal injury causing total disability, for a period 
 
 not exceeding weeks, or the sum of dollars to his legal representatives 
 
 in the event of his death, from personal injury, ensuing within months 
 
 from the happening thereof, when caused by any accident while travelling by 
 public or private conveyance, provided for the transportation of passengers in 
 
 the , it being understood that the policy covers no description of war risk." 
 
 VOL. I.— 9 129 
 
§ 70 a] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. V. 
 
 are made out and signed at the company's ofiSce, and trans- 
 mitted to their agents to be sold indifferently to all who 
 apply for them. The sale and delivery by an agent, or by 
 any one In his employ, and the payment of the price, give 
 the owner a valid claim against the company, subject to the 
 conditions set forth in the ticket.^ 
 
 § 70 a. Renewals. Removals. — As to the effect of a re- 
 newal of a policy there is some confusion, if not disagree- 
 ment, amongst the authorities. It is generally held to be a 
 new contract, upon the terms and conditions stated in the 
 policy expired, — the old application, in the absence of evi- 
 dence to the contrary, serving as the basis of the new con- 
 tract, and as if made at the date of the renewal. ^ (a) But 
 the renewal may be upon different interests, or interests 
 held in different rights and by different parties, or in other 
 ways the contract may be changed by the circumstances. 
 In such cases the old contract must necessarily be modified, 
 though the conditions may remain the same.^ Consent to 
 the removal of property already insured to another locality, 
 where it is to continue insured, is also a new contract.* [A 
 
 1 Brown v. Railway Passenger Ass. Co., 45 Mo. 221. 
 
 " Peacock v. New York Life Ins. Co., 1 Bosw. (N. Y.) 338 ; affirmed, 20 N. Y. 
 293; Martin v. Home Ins. Co., 20 U. C. (C. P.) 447 ; Hartford Fire Ins. Co. o. 
 Walsh, 54 111. 164 ; Brady v. North Western Ins. Co., 11 Mich. 425 ; Post i/. 
 Mtna. Ins. Co., 43 Barb. (N. Y.) 351. See also post, § 190. [The renewal of a 
 policy without any new application stands upon the same grounds as the ori- 
 ginal. Witherell v. Maine Ins. Co., 49 Me. 200, 203.] 
 
 8 Phelps V. Gebhard Fire Ins. Co., 9 Bosw. (N. Y.) 404, 409 ; Lancey v. Phce- 
 nix Fire Ins. Co., 56 Me. 562 ; Luciani v. Am. Fire Ins. Co., 2 Whart. (Pa.) 167 ; 
 Peoria Mar. & Fire Ins. Co. o. Hervey, 34 111. 46. See also post, § 190. 
 
 * Rathbone v. City Fire Ins. Co., 31 Conn. 193 ; Kunzze v. Am. Exch. Fire 
 Ins. Co., 41 N. Y. 412. 
 
 (a) See Walker w. American Central years, for a different amount and period, 
 
 Ins. Co., 143 N. Y. 167; Dover Glass in another company, it was held that 
 
 Works Co. V. American F. Ins. Co., such claim could not be allowed, nor could 
 
 1 Marvel (Del.) 32 ; Bole v. New the application be admitted as evidence. 
 
 Hampshire F. Ins. Co., 159 Penn. St. Sun Mutual Ins. Co. o. Crist (Ky.), 26 
 
 53. See Jones t>. New York L. Ins. Co., Ins. L. J. 695. And although a verbal 
 
 168 Mass. 245 ; Phcenix Ins. Co. v. renewal is valid, yet such parol agree- 
 
 Ward (Tex. Civ. App.), 23 Ins. L. J. ment is not binding if it does not fix the 
 
 702. Where it was claimed that the amount of the insurance. Sater v. 
 
 insurance was a renewal of a previous Henry County Farmers' Ins. Co., 92 
 
 policy under an application for two Iowa, 579. 
 
 130 
 
CH. v.] TERMINATION AND REVIVAL. [§ 70 B 
 
 change of location of the goods or other alteration known to 
 the agent at the time of renewal, binds the company, and 
 the description of position in the original contract is no 
 longer operative. It will be presumed that the company in- 
 tended to modify the original agreement so as to make it 
 cover the goods where it knew they were, and not to impose 
 on the assured by inducing him to believe that his property 
 was insured, when in fact it was not.^ A renewal receipt 
 given June 19, 1878, for one year, to wit, from June 10 (the 
 time the original policy expired) to June 10, 1879, does not 
 cover a loss occui-ring June 16, 1879.^ Parol is inadmis- 
 sible to show that a renewal receipt absolute on its face was 
 a conditional contract.^ A policy running to two persons 
 may be renewed to one of them where the whole interest has 
 centred in that one.* Where a policy for il,800 on a mill 
 and $700 on the machinery was renewed in general terms 
 for $2,500, it was held that the intent was not to distribute 
 the risk thereafter.^] 
 
 [§ 70 B. What constitutes a Good Renewal. — A parol 
 agreement for renewal fixing all terms, and nothing remain- 
 ing to be done except making a renewal receipt and payment 
 of the premium, binds the company.® In a prior case^ a 
 renewal was held insufficient though all the terms were 
 agreed on and the agent said he would make the renewal, 
 but neglected to do so. In 58 Wis. the court distinguished 
 the early case by remarking that the suit there was on the 
 old policy, while in the case before it, the action was on the 
 parol agreement to renew, which was as certainly sustain- 
 able as the other form of suit would not be. A policy may 
 be renewed by parol, ^ even though it stipulates that it shall 
 not be.^ But a policy imder seal cannot be continued from 
 
 1 [Ludwig V. Jersey City Ins. Co., 48 N. Y. 379. ] 
 
 2 [Fuchs V. Germantown F. M. Ins. Co., 60 Wis. 286.] 
 
 3 [Baum V. ParkliuTst, 26 Brad. 127.] 
 
 * [Lockwood V. Middlesex Mut. Ass. Co., 47 Conn. 553.] 
 
 * [Driggs V. Albany Ins. Co., 10 Barb. 440, 444.] 
 « [King V. Hekla F. Ins. Co., 58 Wis. 508.] 
 
 ' [Taylor v. Phcenix Ins. Co., 47 Wis. 365.] 
 
 8 [Ludwig V. Jersey City Ins. Co., 48 N. Y. 379.] 
 
 s [Cohen v. Ins. Co., 67 Tex. 325.] 
 
 131 
 
§ 70 B] INSURANCE : riRE, LIFE, ACCIDENT, ETC. [CH. V. 
 
 year to year by a mere parol contract such as a renewal 
 receipt not under seal, such receipts, however, evidence new 
 parol contracts under conditions the same as in the policy. ^ 
 In Georgia a suit on a parol renewal of a policy is demur- 
 rable.^ A naked oral promise of an insurance company's 
 agent to renew a policy when it runs out, is not actionable 
 on the agent's failure to do so.^ {a) It must be alleged that 
 the premium was paid or tendered at the time the old policy 
 expired. If this is done, however, damages may be recov 
 ered for failure to renew in accordance with an oral promise. 
 Where A. told the agent of several companies in which he 
 had policies, that he wished insurance for the coming year 
 in a certain amount, and by mistake the agent only renewed 
 policies enough to give him half what he wanted, no claim 
 could be made on the companies whose policies were not 
 renewed. A contract for renewal must be complete, and if 
 anything is left to be determined, as in this case, it is not 
 so.* A conversation with the agent requesting him to re- 
 new, and a promise on his part to renew the policy, do not 
 constitute a renewal where no renewal receipt is given, no 
 renewal endorsed on the policy or entered by the agent, or 
 notified to the company, and no premium paid, tendered, or 
 credit arranged.^ (&) The policy in this case provided for 
 
 1 [Firemen's Ins. Co. v. Floss & Co., 67 Md. 403.] 
 
 2 [Roberts v. Germania F. Ins. Co., 71 Ga. 480 ; Code, § 2794.] 
 
 ^ [Croghan v. N. Y. Underwriters' Agency, 53 Ga. 109, 111. Dinning v. 
 Phcenix Ins. Co., 68 111. 414, 418. In this case also no preminm was paid, and 
 the court said that there was no completed contract, oral or otherwise. ] 
 4 [Johnson v. Com. F. Ins. Co., 84 Ky. 470.] 
 ^ [O'Eeilly v. Corp. London Assurance, 101 N. Y. 575, 579.] 
 
 (a) See Stewart v, Helvetia-Swiss F. North British & Merc. Ins. Co., 137 
 
 Ins. Co., 102 Cal. 218. The insured Penn. St. 335; Fidelity & Cas. Co. v. 
 
 cannot have the advantage of a custom, Willey, 80 Fed. Rep. 497 ; Baker v. 
 
 as to renewals by agents, of which he Commercial Union Ass. Co., 162 Mass. 
 
 has no knowledge or notice. Nippolt 858 ; New York Lumber Co. w. People's 
 
 V. Firemen's Ins. Co., 57 Minn. 275. F. Ins. Co., 96 Mich. 20. Au agent, in 
 
 In McCabe v. jEtna Ins. Co. (No. Dak.), renewing a fire policy, may himself care 
 
 81 N. "W. 426, 430, evidence of a custom for the renewal premium, and retain the 
 
 on the agent's part, to extend credit for policy until it is paid ; in which case 
 
 premiums, was held admissible. the policy is binding upon the insurer. 
 
 (J) These questions are usually mat- Fireman's Fund Ins. Co. w. Pekor, 106 
 
 ter of fact for the jury. See Long v. Ga. 1 ; Baker v. Commercial Union Ass. 
 
 132 
 
CH. v.] TERMINATION AND EEVIVAL, [§ 70 B 
 
 the manner of its own renewal, making payment of the pre- 
 mium an element, and this was not done. Parol proof that 
 a contract of insurance was actually made before a loss 
 occurred, though executed and delivered and paid for after- 
 wards, is inadmissible.^ The plaintiff claimed that he could 
 abandon the written contract and rely on the prior verbal 
 agreement of renewal, which was made before loss, but the 
 court held otherwise. The parol agreement that precedes 
 the issuance of a policy in the first place fixes the terms of 
 the contract, and is held to be a valid insurance covering a 
 loss that may occur before issue of the policy, and a con- 
 tract of renewal should be put on the same basis ; but in this 
 case the evidence of a parol contract does not seem good, and 
 the policy merging the contract only took effect by its terms 
 from its date. Moreover, in this case there was little doubt 
 that the assured knew of the loss at the time he applied for 
 the policy, and that his attempt to prove a prior oral agree- 
 ment was a mere makeshift to consummate his fraud, (a) 
 The doctrine of the case, however, is too broad if we quote 
 it without remembering the peculiar facts. There is no 
 
 1 [Insurance Co. v. Lyman, 15 Wall. 664, 670.] 
 
 Co., 162 Mass. 358. Where the agent man's Fund Ins. Co., 8 Utah, 41, 43 ; 
 
 who had issued the former policy signed Zigler v. Phoenix Ins. Co., 82 Iowa, 
 
 a renewal policy and authorized it to be 669. When the agents of an insur- 
 
 iilled, and afterwards forwarded it as a ance company are duly authorized to 
 
 valid contract to the general agent with- solicit and make contracts of insur- 
 
 out calling for the renewal premium, ance, and deliberately represent to the 
 
 and the agent of the insured, on applying assured that a given policy issued by 
 
 for a renewal at the expiration of the the company has been renewed, and 
 
 first policy, was informed what had been subsequently receive and appropriate 
 
 done, the renewal contract was hel'd money which they have good reason to 
 
 binding on the company. I;um v. believe is paid to cover the cost of such 
 
 United States F. Ins. Co., 104 Mich, extended insurance, the company is es- 
 
 397. But where the cashier of the in- topped to allege, after a loss has oc- 
 
 sured was also agent of the insurer, with curred, that the policy in question was 
 
 authority to issue policies, and was not renewed. Int'l Trust Co. v. Norwich 
 
 directed by the manager of the insured U. F. Ins. Co., 71 Fed. Eep. 81, 86 ; 
 
 to renew the policy, which he promised Long v. North British, &c. Ins. Co., 
 
 but failed to do, and the cashier testi- 137 Penn. St. 335 ; American F. Ins. 
 
 fied that he intended to renew, and Co. o. Brooks, 83 Md. 22. 
 supposed he had done so, it was held (a) See Dodd v. Home Mut. Ins. Co., 
 
 that there was no valid contract of re- 22 Oregon, 3, 
 newal. Idaho Forwarding Co. ii. Fire- 
 
 133 
 
§ 70 C] INSURANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. V. 
 
 doubt that in a proper case good evidence of a prior oral 
 agreement would be received. When an agent of an insur- 
 ance company has authority to make applications binding 
 until disapproved by the company and communication of the 
 disapproval to the assured, an agreement by him to extend 
 an expired policy is valid until disapproved, and if the prop- 
 erty burns before notice of disapproval reaches the assured, 
 the company is liable.^ All negotiations and contracts are 
 deemed to be merged in the policy, and any parol agreement 
 with the agent before issue of the policy, that he shall keep 
 the policy renewed from year to year, giving the plaintiff 
 time with the premiums, does not bind the company, but a 
 definite parol agreement of renewal inpresenti would be sus- 
 tained. ^ On the facts there is really no conflict in the cases. 
 A parol agreement of or for renewal may be made with the 
 same freedom and certainty as a parol agreement of original 
 insurance. ] 
 
 [§ 70 C. Revival. — Nothing can revive a void contract 
 short of a new contract on valid consideration, or conduct 
 amounting to estoppel. ^ {a) Where the plaintiffs as agents 
 paid in more money than they owed the company and the 
 
 1 [Leeds v. Mechanics' Ins. Co., 8 N. Y. 351, 357.] 
 
 2 [Giddings v. Phoenix Ins. Co., 90 Mo. 272, 277.] 
 
 s [N. Y. Cent. Ins. Co. v. Watson, 23 Mioh. 486, 488.] 
 
 (a) See Dale v. Continental Ins. Co., Fund L. Ass'n, 132 N. Y. 378 ; Jones v. 
 
 95 Tenn. 38 ; Com'th v. Provident L. Preferred Banker,?' L. Ass. Co. (Micli.), 
 
 As.s'n, 163 Penn. St. 874 ; Bottomley v. 79 N. W. 284 ; United Security, &o. Co. 
 
 Met'n L. Ins. Co., 170 Mass. 274 ; Mu- v. Ritchey, 187 Penn. St. 173. Upon 
 
 tual Reserve Fund L. Ass'n v. Hamlin, default in paying a premium, when the 
 
 139 U. S. 297 ; Equitable L. Ass. Soci- policy allows opportunity for reinstate- 
 
 ety V. McElroy, 83 Fed. Rep. 631. As to ment, the assured, If in good health, 
 
 reinstatement, upon failure to duly pay and acting promptly, is entitled to be 
 
 premiums or assessments for life insnr- reinstated, though then past the age 
 
 ance, see French v. Hartfoi-d L. Ins. Co., for insuring new members. Lovick v. 
 
 169 Mass. 510; Colby I!. Life Indemnity Providence L. Ass'n, 110 N. C. 93, 
 
 Co., 57 Minn. 510 ; Riegel v. Amei-- The policy continues lapsed if the re- 
 
 ican L. Ins. Co., 153 Penn. St. 134 ; instatement is obtained by fraud, and 
 
 Eeilly v. Chicago Guaranty Fund L. this is not waived by the insurer. Mass. 
 
 i^ociety, 75 Minn. 377 ; Knights Tem- Benefit L. Ass'n ». Robinson, 104 Ga. 
 
 plars' L. Ind. Co. o. Jacobus, 80 Fed. 256 ; see French v. Mutual Reserve 
 
 Rep. 202 ; Coburn v. Life Indemnity Co., Fund L. Ass'n, 1 11 N. C. 391. 
 52 Minn. 424; Ronald y. Mutual Reserve 
 
 134 
 
CH. v.] TEEMINATION AND REVIVAL. [§ 70 C 
 
 surplus was retained, it was held that the company must be 
 treated as having applied the surplus to revive certain lapsed 
 policies of the plaintiffs which were at the time the subject 
 of negotiations for revivor.^ Representations in a revival 
 certificate warranted to be true as a condition of revival, 
 become part of the contract upon assent to the revival.^] 
 
 1 [Kirkpatrick v. South Aus. Ins. Co. (J. C), 11 App. Cas. 177.] 
 
 2 [Metropolitan L. Ins. Co. v. McTague, 49 N. J. 587.] 
 
 135 
 
INSUEANOE : FIEE, LIFE, ACCIDENT, ETC. [CH. VI, 
 
 CHAPTER VI. 
 
 ^ SUBJECT-MATTER. — INSURABLE INTEREST. 
 
 Analysis. 
 
 1. Subject-matter : 
 
 any lawful interest, § 71. 
 
 having an appreciable pecuniary value, § 72. 
 
 though no market value, § 72. 
 
 nor even actual existence, § 72. 
 the thing or life is not iusured, but some person in respect to it, § 72. 
 life, health, liberty, solvability, fidelity, property, profits, &c., § 73. 
 
 2. Insurable interest : 
 
 1. Necessity of, § 74. 
 
 wager policies (i. e. policies without interest) not now sustained, 
 
 §75. 
 but reprobated, § 75 A. 
 "interest or no interest," § 75. 
 
 a policy that is to " he proof of-interest " is a wager, § 75. 
 bets on sex, § 75 A. 
 on life, § 75 B. 
 on marriage, § 75 B. 
 
 policy of $3000 to cover a debt of |70, §§ 75 B, 108. 
 policy taken out by a man on his own life, payable to any one 
 
 he may desire, is not a wager, § 75 B. 
 
 2. What constitutes. 
 
 The test : 
 
 So that insurance does not aim at the protection of any 
 one in the violation of law, or the forwarding of any ille- 
 gal purpose, 
 
 A has an insurable interest 
 
 (1) in his own life and health, 
 
 (2) in the life, health, solvability, liberty, fidelity, care, &c., of 
 
 another, when its failure would bring upon him a loss of 
 money or other thing of a nature regarded by the law as 
 a good consideration for a contract, to the enjoyment of 
 which money or thing he has a right, or will have it in 
 the natural and not unlawful course of things. 
 Blood relationship alone, if very close and of a kind usu- 
 ally resulting in pecuniary advantage, is sufficient, 
 especially if there is a legal liability of support. 
 Generally relationship must be aided by special circum- 
 stances (see below). 
 Marriage or an agreement to marry is suficient (see below). 
 
 136 
 
CH. VI.] SUBJECT-MATTER. — INSURABLE INTEREST. 
 
 (3) In respect to property, present or future, the destruction 
 of which would render him liable to reimburse others, 
 or in relation to which he has any legal or equitable 
 right, great or small, vested or contingent, which in 
 the ordinary and natural course of things would result 
 in advantage to him, so that he has a personal inter- 
 est in the preservation of the property in regard to 
 which the insurance is made, 
 "interest" does not imply "property' in the thing insured, 
 
 § 74, n. 
 interest in a life need not he capable of pecuniary estimate, 
 
 § 102 A. 
 strong ties of blood, § 102 A. 
 marriage, § 102 A. 
 
 any reasonable probability of present or future pecuniary ad- 
 vantage is enough, § 76. 
 that one may suffer loss of something they have some claim to 
 
 look for in the natural course of things is sufficient, § 80. 
 contingent right sufficient, § 77. 
 profits or advantages that would come in the ordinary course 
 
 of things may be insured, §§ 76, 79, 80. 
 but a mere hope without a scintilla of present interest is not 
 enough. One has no right to indemnity because he does 
 not receive a gift he expects, § 78. 
 A present interest in the property or enterprise out of which the 
 
 profit is to come is necessary, § 77. 
 and when the interest in the goods ceases the policy decays, 
 
 §79. 
 any benefit reasonably certain to come from the continued ex- 
 istence of the property or life is sufficient, §§ 80 (life), 
 102 A. 
 liability for loss of the property if destroyed is sufficient, com- 
 mon carrier, &c., §§ 83, 94, 94 A, 95. 
 even though a debt is that of an infant or the statute of 
 limitations has run on it the creditor may insure it, 
 § 108. 
 interest of an insurer, § 98. 
 possession under a claim of ownership sufficient, §§ 80, 84, 87 A. 
 possession under contract of purchase, § 87. 
 possession under contract that may ripen into ownership is suf- 
 ficient, whether purchase-money is paid or not, § 87 A. 
 possession under contract of purchase is sufficient though the 
 vendee is in default, and even after an agreement to re- 
 scind the contract of purchase, § 87 A. 
 defect in title will not avail the company, § 87 A. 
 possession under a deed voidable for fraud is sufficient, § 87 A. 
 
 or voidable for want of title in grantor, § 87 A. 
 equitable title sufficient, § 86. 
 3. What is not an insurable interest. (See wager policies above, in 1 ) 
 in life. (See below at the end of 5.) 
 in property 
 
 unlawful enterprise, § 71. 
 
 137 
 
INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VI, 
 
 lotteries, § 71. 
 
 prohibited voyage, § 71. 
 
 goods intended for illegal sale, § 71. 
 
 mere hope, § 78. 
 
 expectation of a gift, § 78. 
 
 donor or voluntary contributor no insurable interest in 
 the object, § 76 A. 
 
 voluntary repairs on vessel give none, § 76 A. 
 
 no insurance of bills payable on a contingency, 76 A. 
 
 possession under a married woman's agreement to convey is 
 not sufficient to create an insurable interest in a State 
 where such agreement is void, § 87 A. 
 
 possession by vendor after delivery of goods not sufficient, §97. 
 
 a claim of title under a fictitious deed, without actual pos- 
 session is not sufficient, § 87 A. 
 
 mere intrusion on land, § 89. 
 
 right under contract not enforceable is not insurable, § 96. 
 vendee's interest under a contract void by statute of 
 
 frauds, § 96. 
 verbal contract for purchase of real estate, § 96. 
 mortgage by one having no right to give it, § 96. 
 . Who may have an insurable interest. 
 In property : 
 
 any one who is charged with the protection of the prop- 
 erty, § 80. 
 
 or has a right to protect it, § 80. 
 
 or will receive a benefit from its continued existence, § 80. 
 
 or be liable to loss by its destruction, §§ 83, 94, 94 A, 95. 
 
 son none in father's property, § 76 A. 
 
 administrators, § 80. 
 
 bailee, § 95. 
 
 a bailee if interested or responsible for loss may insure 
 in his own name, and if not he may stiU insure 
 for whom it may concern, § 95 A. 
 bailee will hold the funds in trust for owner, § 95 A. 
 
 builder under contract, §§ 93, 95 A. 
 
 captors, § 80. 
 
 cestui que trust, § 82. 
 
 common carriers, §§ 80, 94, 94 A. 
 
 though using vessel of another, § 94 A. 
 
 commission merchant, § 95 A. 
 
 consignees, §§ 80, 95 A. 
 
 contractor, §§ 93, 95 A. 
 
 creditor, §§ 83, 95. 
 
 debtor in property attached, § 95. 
 
 disseizor has, § 81. 
 
 executors, § 80. 
 
 factor, §§ 80, 95 A. 
 
 guarantor, §§ 82, 97. 
 
 hirer, § 82. 
 
 indorser, § 82. 
 
 holder of note, § 97. 
 138 
 
CH. VI.] SUBJECT-MATTEK. — INSUEABLE INTEEBST. 
 
 husband in wife's property, § 81. 
 
 husband in homestead, § 81. 
 
 innkeeper, § 80. 
 
 insolvent has, even in goods concealed from creditors, 
 
 §§ 81, 92, n. 
 intruder, § 89. 
 
 landlord in goods of tenant liable to distress for rent, § 84. 
 lessee, § 84. 
 lessor, §§ 84, 85. 
 master of ship, § 94 A. 
 mortgagee, §§ 80, 82, 83, 96. 
 
 mortgagor has, though property mortgaged to full value, 
 if he is liable for the debt, even after he has sold the 
 equity of redemption, § 82. 
 forfeiture of the property for violation of law or unlawful 
 
 foreclosure will not avail the company, § 82, n. 
 one having a lien for advances or otherwise, §§ 82, 93. 
 one having a claim in the nature of a lien, § 93. 
 one having an er^uitable lien with possession, § 93 A. 
 one having an equitable interest, §§ 86, 93 A. 
 one having possession under claim of title, §§ 87, 87 A. 
 part owner responsible for whole, § 94 A. 
 pledgee, §§ 80, 82, 93 A. 
 pledgor, § 82. 
 
 railroad liable for destruction by sparks, § 94. 
 stockholder, § 90. 
 surety, § 82. 
 tenant in common, § 81. 
 trustee, §§ 80, 83. 
 
 vendee in possession, §§ 83 a, 87, 88, 96. 
 vendor before delivery or complete sale has, §§ 83 a, 88, 97. 
 vendor may insure in name of vendee though the goods 
 
 are not separated, § 83 a, note, 
 warehouseman, §§ 80, 95 A. 
 wharfinger, §§ 80, 95 A. 
 6. In life: 
 
 betrothed girl in life of future husband, § 107 a. 
 creditor may insure life of debtor, §§ 102 A, 108, 109. 
 
 only entitled to indemnity, § 108. 
 
 but he has been allowed to hold the excess, § 108. 
 
 has interest even when debtor is an infant, § 108. 
 
 or statute of limitations has run against the debt, § 108. 
 
 insurance far beyond the debt will be void, § 108. 
 employee in employer's life, § 109 o. 
 father, in life of son or daughter, §§ 104-107. 
 husband in wife's life, § 107 C. 
 master in servant's life, § 109 c. 
 mother in life of son, § 107 t. 
 
 one having reasonable expectation of pecuniary advantage 
 from the continuance of the life, § 102 A. 
 
 as in case of one contracting to do work, § 109 b. 
 parent in life of child, §§ 102 A, 103-107. 
 
 139 
 
INSUEANCE ; FIRE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 partner in copartner, § 109 a. 
 sister in brother {in loco parentis), §§ 103-107. 
 surety, § 102 A. 
 trustee, § 111. 
 
 wife in life of husband, § 107 b. 
 one related by strong ties of blood, §§ 102 A-107. 
 relationship not sufficient. 
 
 brother in life of brother as such, no, § 107 s. 
 daughter in life of mother, no, § 103 A. 
 granddaughter in life of grandfather, no, 
 
 § 103 A. 
 nephew in uncle, no, § 107 s. 
 
 in aunt, no, § 103 A. 
 son-in-law in life of mother-in-law, no, § 103 A. 
 . Duration : 
 
 general rule, an interest at time of insurance and at loss both 
 
 necessary, §§ 100, 100 A. 
 cessation of interest before loss generally destroys the right of 
 recovery, §§ 79, 100, 100 A. 
 but there may be cases where the company should be held 
 and the insured treated as a trustee for the one who 
 has really experienced a loss, § 100 A. 
 this is especially likely to happen in case of life insurance, 
 as where a creditor insures the life of the debtor, and 
 the debt 'is paid before the debtor dies. Here the 
 creditor should recover on the policy, otherwise he 
 will lose his premiums and the company escape a risk 
 fairly undertaken. But he should hold the excess of 
 funds above indemnity in trust for the estate of the 
 debtor, §§ ICfO A, 108, 115-117. 
 in England, if the insured has an interest at the time of the 
 contract of insurance it is sufficient to sustain the policy, 
 though his interest may cease before death of the party 
 whose life is the risk. At common law a life policy was 
 good without any interest, and the statute (li Geo. III. 
 c. 48) only requires an interest at the inception of the con- 
 tract. The rule is certainly just, that, in the case of a 
 valued life policy, holds the parties to the original agree- 
 ment made upon a fair estimate of the interest of the 
 insured at that time. The insured continues to pay pre- 
 miums upon the basis of that interest, and the insurer 
 should be liable on the same basis. If a debtor whose life 
 was insui'ed by paying the debt terminated the creditor's 
 policy, the latter might lose as much or more than the 
 debt in premiums and interest. Under such a, rule the 
 creditor must lose either the original debt or his pre- 
 miums, i. e. he must be a loser any way, §§ 115-116, 108, 
 100 A. 
 in Massachusetts, if the interest in the insured life tenninates 
 after payment of two annual premiums, the policy be- 
 comes payable at a fair surrender value. Public Statutes, 
 §719. 
 
 140 
 
CH. VI.J SUBJEOT-MATTEK. — INSURABLE INTEEEST. [§ 71 
 
 interest acquired after insurance, but before loss, should sustain 
 policy if company treats it as valid after knowing facts, 
 § 100 A, authority contra, § 100 A. 
 
 subsequently acquired goods, may certainly be covered, §§ 100, 
 101. 
 
 7. Continuity of interest is not necessary. In the absence of express 
 
 stipulation an interruption that ends before loss is not fatal, but 
 only suspends the policy, like a temporary breach of condition, 
 §101. 
 
 8. Miscellaneous : 
 
 insurance of good and bad interests or interest, and no interest, 
 in same policy good pro tanto, § 74. 
 unless the contract is e.xpressly or by its nature entire, 
 §74. 
 
 insurable interest a question of law, on the facts proved, § 76, n. 
 
 company's knowledge of no interest immaterial, § 81, n. 
 
 assignee of life policy, § 110. 
 
 beneficiary, §112; his name must appear on the policy in 
 England, § 113. 
 one without interest cannot take out a policy on the life of 
 another, but a man may take out a policy on his own 
 life and make it payable to whom he pleases, or assign 
 it to any one. A man's care for his own life is suffi- 
 cient guarantee that he will not jeopardize it, and if 
 his activity and consent is required to make a good 
 policy, the reason of the law is satisfied whoever pays 
 the premiums. There is some dispute about this, but 
 it is plain common sense, and there is good authority 
 for it, §§ 110, notes, 112 ; contra, § 110, n. 
 
 life policy usually a valued one, § 114. 
 
 § 71. What may be Insured. — One may insure that in 
 which he has an interest, and which the law does not forbid 
 to be insured. There are certain unlawful enterprises in 
 which property may be embarked, but, being unlawful, the 
 law will not uphold any contract of insurance or other con- 
 tract in favor of them, which has for its purpose to aid or in 
 any way promote the success of such enterprises by protect- 
 ing the property embarked therein. * Of this kind of enter- 
 
 1 [Insurance on a voyage prohibited by the home sovereign is void : Richard- 
 son V. Marine Ins. Co., 6 Mass. 101, 111 ; but not one merely in violation of 
 foreign trade laws or the law of nations in respect to contraband of war. In- 
 surance will not be supported to forward an illegal purpose. Goods intended for 
 illegal sale cannot be insured. But if nothing illegal appears in the purpose of 
 the contract, mere collateral acts, as illegal selling of liquor, will not avoid the 
 policy. The nature and purpose of the insurance, whether collateral to or in aid 
 of a violation of the law, is to be submitted to the jury. Carrigan v. Insurance 
 Co., 53 Vt. 418.] 
 
 141 
 
§ 72] INSURANCE : WEE, LIFE, ACCIDENT, ETC. [CH. TI. 
 
 prises the slave-trade is an example. The same may be said 
 of lotteries, where lotteries are unlawful. Neither will in- 
 surance protect property which it is unlawful to have. 
 Whatever the law discourages and disapproves of, whether 
 by special statute or upon general principles enforced by the 
 common law in the interest of good morals, good order, and 
 general public policy, will not be fostered or encouraged by 
 insurance. ^ 
 
 § 72. Subject to the limitation stated in the preceding 
 section, whatever has an appreciable pecuniary value, and 
 is subject to loss or deterioration, or of which one may be 
 deprived, or which he may fail to realize, whereby his pecu- 
 niary interest is or may be prejudiced, may properly constitute 
 the subject-matter of insurance.^ (a) It may have neither a 
 corporeal existence, nor marketable value, nor an actual but 
 only a potential being; for it is not so much the right, 
 thing, or expectancy which is insured, as the possessor him- 
 self, against the loss or damage which unforeseen events may 
 bring thereto. When, therefore, the subject-matter of in- 
 surance is termed, as it frequently is, the aliment of the 
 contract, it is not to be understood that this aliment is 
 something upon which the contract fastens and feeds, to 
 
 1 Boulay-Paty, Cours de Droit Com. tit. x. § 5, who cites Kuricke, Diatr. Assec. 
 Assecurari possunt omnia quse assecurari nee de jure, nee de consuetudine, quse 
 vim juris habet, prohibentur. Mount et al. v. Waite, 7 Johns. (F. Y.) 434 ; 
 Lord V. Dall, 12 Mass. 115 ; ante, § 7. 
 
 2 Pardessus, Cours de Droit Com., 589, 2 & 4. 
 
 (a) An insurable interest need not sure his interest in the profits on such 
 he persona], or founded on an absolute risks in another company. Hayes v, 
 title ; it may exist in favor of a trustee, Milford M. F. Ins. Co., 170 Mass. 492. 
 administrator, agent, mortgagee, &o. See Graham v. American F. Ins. Co., 48 
 It must be such an interest that pecu- S. C. 195. Agents, commission mer- 
 niary loss will result to the assured chants, carriers, and the like, who have 
 from the destruction of the property, the custody of personalty, and are re- 
 Eochester Loan Co. v. Liberty Ins. Co., sponsible therefor, may insure it in their 
 44 Neb. 637 ; Hanover F. Ins. Co. v. own names, and are entitled to recover 
 Bohn, 48 Neb. 743 ; Ha)-tford F. Ins. the full value of the property. "West- 
 Co. V. Keating, 86 Md. 130. An agent, ern & Atlantic Pipe Lines v. Home Ins. 
 who is by contract entitled to a percent- Co. , 145 Penn. St. 346 ; Lancaster Mills 
 age of the receipts and profits of the v. Merchants' Cotton Press Co., 89 Tenn. 
 insurance business written by him, has 1 ; Koberts v. Firemen's InK, Co., 165 
 an insurable interest in the risks writ- Penn. St. 65; Ins. Co. of North Amer- 
 ten by him as such agent, and may in- ica v. Forcheimer, 86 Ala. 541. 
 142 
 
CH. VI.J SUBJECT-MA.TTEE. — INSUEABLE INTEREST. [§ 73 
 
 which it clings, and from which it is inseparable. In popu- 
 lar language, a house is said to be insured ; but in point of 
 fact the owner is insured on, or in respect of, the house, or, 
 in other words, against any loss which may happen to him 
 while he is owner, and because of his ownership, absolute 
 or qualified. When this ownership ceases, the property also 
 ceases to furnish aliment for the contract, and it dies. It is 
 the union between the two — between the person with whom 
 the contract is made and the subject-matter about which it 
 is made, in the relation of the possessor to the thing pos- 
 sessed — that keeps alive the contract. And when this 
 union is permanently sundered before loss or the event in- 
 sured against happens, the contract loses its vitality. A 
 transfer of the property and an assignment of the policy is 
 not a prolongation of the life of the contract, but a new 
 contract with another person about the same subject-matter. 
 So in life insurance the aliment of the contract is the in- 
 terest which the insured has in the preservation of the life 
 insured, and the protection is against loss to the insurer in 
 case of cessation of the life.^ 
 
 § 73. Under these qualifications the contract may em- 
 brace not only personal property and real estate, but the 
 lives of animals, among which slaves are included for this 
 purpose ; the life, health, and personal liberty of man ; the 
 solvability of a debtor ; the payment of a note at maturity ; ^ 
 the fidelity of a servant; expected profits; the damages to 
 which growing crops are exposed from frosts and storms; 
 the risk of death or injury by accident to the person in 
 travelling or otherwise; lottery tickets, where lotteries are 
 permitted ; the risk of loss of property by the capture of a 
 fort by an enemy ;3 the danger of loss by dishonesty, fraud, 
 and theft, or by the nonpayment of rent, interest, or income, 
 or by the invalidity of titles, or by the death of one upon 
 whom depends the continuance of pecuniary support or 
 
 1 "Wilson V. Hill, 3 Met. (Mass.) 66 ; Carpenters. Prov. "Wash. Ins. Co., 16 
 Peters (U. S. ), 495. See also ante, § 6. 
 
 2 Ellicott V. United States Ins. Co., 8 GiU & Johns. (Md.) 166. 
 s Carter v. Boehm, 3 Burr. 1905, 
 
 143 
 
§ 74] IKSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 assistance; and, in general, "it is applicable," to use the 
 language of Mr. Justice Lawrence,^ "to protect men against 
 uncertain events which may in any wise be of disadvantage 
 to them." In most of these instances the contract has been 
 successfully applied. Of their respective peculiarities we 
 shall have occasion to treat more at length hereafter. The 
 practice of insuring crops is much in vogue in France ; ^ and 
 guaranty insurance, as it is called, instituted as a substitute 
 for private suretyship, to aid persons in obtaining places of 
 trust and responsibility, and to protect employers from the 
 unfaithfulness of employes, has met with some success in 
 England. 
 
 § 74. Insured must have a La^wful Interest. — When there 
 is no interest at all to be protected, a policy of insurance 
 will be invalid, as counter to the spirit and purpose of the 
 contract, as well as against public policy.^ Insurance is 
 made for the benefit and protection of legitimate business 
 and purposes, and not that persons unconcerned therein, and 
 without any interest in the property or event, should profit 
 thereby. And although innocent wagers were once sus- 
 tained, the courts will not now waste their time in discuss- 
 ing the question whether what is substantially a wager ought 
 or ought not to be upheld upon any grounds. Under the in- 
 fluence of a healthy public sentiment they have become im- 
 patient of investigating disputes founded upon any species of 
 gambling, and almost without exception refuse to enforce a 
 contract supported by such a subject-matter.* Insurance of 
 interests prohibited by law, and insurance without interest, 
 if included in the same policy with interests which may be 
 lawfully insured, do not vitiate the policy, except as to the 
 
 1 Lucetia v. Cranford, 2 B. & P. New Eep. 269, 301. 
 
 2 Pardessus, Droit Com., 589. 
 
 8 [G-. cannot insure tlie property of H. ; Henuing v. Western Ass. Co., 77 Iowa, 
 319.] 
 
 < Sadler Co. v. Badcock, 2 Atk. 554 ; 19 Geo. II. c. 37 ; Kent v. Bird, Cowp. 
 583|; Amory v. Oilman, 2 Mass. 1 ; King v. State Mut. Fire Ins. Co., 7 Gush. 
 (Mass.) 1, 10; Pritchet v. Insurance Co. of North America, 3 Yeates (Pa.), 458, 
 464 ; 3 Kent, Com. 278; Ruse v. Mutual Beneiit Life Ins. Co., 23 N. Y. 516 ; 
 Fowler v. New York Indemnity Ins. Co., 26 N. Y. 422 ; Freeman v. Fulton Fire 
 lus. Co., 38 Barb. (N. Y.) 247 ; s. o. 14 Abbott, Pr. Cases, 898. 
 144 
 
en. tl] subject-matter. — iksueable interest. [§75 
 
 prohibited oi* non-existent interests. It remains valid for 
 so much as constitutes a legitimate insurable interest. If, 
 however, where several parcels of property, separately val- 
 ued, the premium being a single sum, are insured by a pol- 
 icy by its terms made void if the true title be not stated, 
 the title of either parcel be untruly stated, there can be no 
 recovery for the loss of either parcel, since the contract is 
 an entire one.^ [The term "interest" does not necessarily 
 imply property in the subject of the insurance.^] 
 
 § 75. 'Wager Policy (coniitiued). — Although policies of 
 insurance made for the benefit of parties who have no in- 
 terest in the property or event which constitutes the subject- 
 matter of insurance are inconsistent with the true principles 
 of insurance, yet the courts, in the early history of the con- 
 tract, in cases of marine insurance, "interest or no interest," 
 looking upon such policies as in the nature of an innocent 
 wager, and therefore sustainable at common law, manifested 
 a disposition to uphold them.^ But both in England and in 
 some of the States of this country the legislative powers have 
 intervened and expressly declared the invalidity of policies 
 without interest. And even when this intervention has not 
 taken place the courts now, nearly without exception,* hold 
 such policies void, not only because in contravention of the 
 fundamental object of the contract, — indemnity, since where 
 
 1 Day V. Chartei' Oak Fire & Mar. Ins. Co., 51 Me. 91. See also post, § 189. 
 
 2 [Buck V. Che-^apeake Ins. Co., 1 Pet. 151, 163.] 
 
 ^ " There is some strange language," says Lord Eldon — Lucena v. Crauford, 
 2 New Rep. (5 Bos. & Pul.) 322, — " to be found in our books respecting wager- 
 ing and valued policies, the latter of which, though frequently in effect wagering 
 policies, have been permitted because it has been supposed that the convenience 
 of them is greater than would result from the prohibition of them." [When there 
 is insurance, " interest, or no interest," the company is not permitted to prove no 
 interest in the assured. Depaba v. Ludlaw, 2 Com. Rep. 361.] 
 
 * In New Jersey, in 1854, it was said, though the case did not require the 
 point to be decided, that a life policy without interest is an innocent wager and 
 good at common law. Trenton Mut. Life & Fire Ins. Co. v. Johnson, i Zabr. 
 (N. J.) 576 ; Ruse v. Mutual Benefit Life Ins. Co., 23 N. Y. (9 Smith) 616. And 
 jierhaps the same would be held in Rhode Island. Mowry v. Home Ins. Co., 
 9 R. I. 346. See also Chisholm <;. National Capitol Life Ins. Co., 52 Mo. 213 ; 
 and post, § 107. In Ireland, wagering policies are valid. Shannon v. Nugent, 
 Hayes, 536 ; Schweiger v. Magee, Cooke & Al. 182. [Wager policies are not 
 illegal in Ireland. Keith v. Protection Marine Ins. Co. of Paris, Ir. L. R. 10 
 Ex. 51.] 
 
 VOL. I. — 10 145 
 
§ 75 A] INSUKANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 there is no interest there can be no loss, and where there is 
 no loss there can be no indemnity, — but because, when the 
 insured has nothing to lose, but everything to gain, by the 
 happening of the event insured against, it would be danger- 
 ous and demoralizing to subject the insured to so great a 
 temptation to destroy the property or the life upon which 
 the insurance is effected. A sound public policy will not 
 sanction any such temptation. And, indeed, the nearer the 
 insured is brought by the terms of the contract into such a 
 position that he can in no event be the gainer, the more 
 nearly will the contract conform to the true principles of 
 insurance. In accordance with this view, the better class 
 of insurers not only take the smallest risks in proportion to 
 the total value of the thing insured, but exercise the great- 
 est caution lest the total valuation should be fixed at so high 
 a rate as practically to offer to the insured a margin of profit 
 beyond the actual indemnity, in case of loss. [A policy pro- 
 viding that no further proof of interest than the policy shall 
 be required is a wager contract.^ But exactly to the con- 
 trary, it has been held that the words, " policy to be proof 
 of interest," are not of themselves evidence of a wager 
 policy. 2] 
 
 [§ 75 A. y^ager Fire Policies ; Bets on Sex. — Insurance, 
 made by one without an interest in the subject-matter, is 
 void.^ Every species of gaming contracts, wherein the in- 
 sured has no interest, or a colorable one only, or having a 
 small interest much overvalues it in a valued policy, are 
 reprobated both by our law and usage.* By English law an 
 engagement to pay £100 in case Brazilian shares should be 
 done at a certain sum on a certain day, all in consideration 
 
 1 [Keith V. Protection Mar. Ins. Co. of Paris, 10 Ir. L. R. (Ex.) 51.] 
 
 2 [Clendining v. Church, 3 Gaines, 141, 144.] 
 
 ' [Goddart v. Garrett, 2 Vern. 269 ; Howard v. Lancashire Ins. Co., 5 Russ. 
 & Geld. (Nova Sco.) 172, 173, 178. A contract to insure one who cannot sus- 
 tain any pecuniary loss by the event insured against is a mere wager policy, 
 and is discouraged by the law. Spare v. Home Mut. Ins. Co. , 1.5 Fed. Eep. 707 ; 
 22 Am. L. Eeg. n. s. 409 ; 12 Ins. L. J. 365, 9th Cir. (Or.) 1883 4 American Bas- 
 .ket Co. V. Farniville Ins. Co., 8 Eep. 744, 4th Cir. (Va.) 1879.] 
 
 < [Pritchet M, Ins. Co. of N. A., 3 Yeates (Penu.), 458, 464 ; Hoit v. Hodge, 
 6 N. H. 104, 105.] 
 146 
 
CH. VI.] SUBJECT-MATTER. — INSURABLE INTEREST. [§ 72 B 
 
 of forty guineas, is a policy of insurance void under the stat- 
 ute, since plaintiff has no interest in the event, i Where the 
 policy provided that it should be void, if the interest of the 
 assured was other than the sole, entire, and unconditional 
 ownership, unless so stated, it was held avoided when the 
 assured described the property as "his," but in reality a 
 third party had bought it under a mechanic's lien and placed 
 it in the assured's name (which proceeding was void), and 
 later the third party procured another title by sheriff's exe- 
 cution, and himself acted as agent of assui'ed to place the 
 insurance. The assured had no interest.^ A policy upon 
 the sex of a person is a wagering contract within the stat- 
 ute of 14 Geo. III. cap. 48, and void. 2] 
 
 [§ 75 B. Wagering Policies on the event of Death or Mar- 
 riage void. — Wager policies are void on grounds of public 
 policy.* A policy procured on life of another without in- 
 terest in it is void.^ One cannot himself effect insurance on 
 the life of another in which he has no interest.^ B. may 
 insure his own life for C, but C. cannot insure B. 's life 
 unless he has a pecuniary interest in it.^ One who has no 
 insurable interest in the life of another cannot obtain mem- 
 bership for the latter in a mutual company so as to gain in- 
 surance upon his life.^ In Mutual Life Ins. Co. v. Allen, ^ 
 Judge Allen said, " To prevent this from being void, as a mere 
 wager upon the continuance of a life in which the parties have 
 no interest except that created by the wager itself, it is neces- 
 sary that the assured should have some pecuniary interest in 
 the continuance of the life insured." To procure a policy for 
 $3,000 to cover a debt of |70 is of itself a mere wager, i" Aij 
 
 1 [Patterson v. Pawell, 9 Bing. 320.] 
 
 2 [Porter v. Rtna Ins. Co., 2 Flip. {U. S.) 100, 102.] 
 
 * [Roebuck v. Hammerton, Cowp. 736.] 
 
 * [White V. Equitable Nuptial Benefit Union, 76 Ala. 2.51.] 
 
 5 [Rombach v. Piedmont, &c. L. Ins. Co., 35 La. An. 233.] 
 
 6 [Amick V. Butler, 111 Ind. 578.] 
 
 ' [Bloomington Mut. Ben. Ass. v. Blue, 120 111. 121 ; Martin v. Stubbings, 126 
 111. 387.] 
 
 8 [Elkhart Mut. Aid, &c. Ass. v. Houghton, 98 Ind. 149.] 
 [138 Mass. 27.] 
 10 [Cammack v. Lewis, 16 Wall. 643, 647, 648.] 
 
 147 
 
§ 76] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 agreement to give defendant the exclusive right of carrying 
 marriage benefit insurance on the plaintiff is a wagering con- 
 tract and void.^ A policy payable to the one who holds the 
 next number to the deceased is a wager and illegal. ^ A 
 policy taken out by a man on Ms own life and payable to any 
 one else he may desire, is not a wagering policy, nor within 
 the condemnation of 14 Geo. III. cap. 48.^ (a)] 
 
 § 76. What constitutes an Insurable Interest. — As to what 
 amounts to an insurable interest there has been much dis- 
 cussion in the courts, without hitherto arriving at any satis- 
 factory definition. It may be said generally, however, that 
 while the earlier cases show a disposition to restrict it to a 
 clear, substantial, vested pecuniary interest, and to deny its 
 applicability to a mere expectancy without any vested right, 
 the tendency of modern decisions is to relax the stringency 
 of the earlier cases, and to admit to the protection of the 
 contract whatever act, event, or property bears such a rela- 
 tion to the person seeking insurance that it can be said with 
 a reasonable degree of probability to have a bearing upon his 
 prospective pecuniary condition.* An insurable interest is 
 
 1 [James v. Jellison, 94 Ind. 294.] 
 
 2 [People „. The Golden Rule, &c., 114 111. 34; Golden Kule v. The People, 
 118 111. 492. 
 
 3 [North Amer. L. Ass. Co. v. Craigeii, 13 Can. S. C. R. 278.] 
 
 * It was said in Mitchell v. Home Ins. Co., 32 Iowa, 421, 424, that whether 
 there is an insurable interest is a question for the jury, under proper instruc- 
 tions. But this, in view of the universal current of authorities, can only mean 
 that the court are to say that if certain facts are found to be true, then there is, 
 or is not, as the case may be, an insurable interest. In other words, the facts 
 being proved, it is a question of law whether there arises out of them an insurable 
 interest. 
 
 (a) This statute is declaratory of the a beneficiary therein, the policy will not 
 
 common law, and insurance secured by be treated as a wager, if not so intended, 
 
 one who has no interest in the life of Campbell v. New England Mut. L. Ins. 
 
 the person assured is void as ». wager Co., 98 Mass. 381 ; Shea v. Mass. Bene- 
 
 policy. Whitmore v. Supreme Lodge, fit Ass'n, 160 Mass. 289 ; Kentucky L. 
 
 100 Mo. 36, 46 ; Smith v. Pinch, 80 & A. Ins. Co. v. Hamilton, 63 Fed. Rep. 
 
 Mich. 332. When, however, it is made 93. And to an action on a policy brought 
 
 to appear that the person obtaining the by the insured's administrator, the fact 
 
 policy did so in good faith, and not for that the policy was issued to a benefi- 
 
 the mere purpose of speculating on the ciary who paid the premiums, but had 
 
 hazard of a life in which he has no in- no insurable interest, is not a defence, 
 
 terest, or when one who takes out a Brennan r. Prudential Ins. Co., 148 
 
 bona-fide policy on his own life, names Penn. St. 199. 
 
 148 
 
CH. VI.] SUBJECT-MATTER. — INSUEABLE INTEREST. [§ 77 
 
 sui generis, and peculiar in its texture and operation. It 
 sometimes exists where there is not any present property, 
 — any jus in re or jus ad rem. Yet such a connection must 
 be established between the subject-matter insured and the 
 party in whose behalf the insurance has been effected as may 
 be sufficient for the purpose of deducing the existence of a 
 loss to him from the occurrence of an injury to it.^ 
 
 [§ 76 A. No Insurable Interest. — The fact that a turnpike 
 company contributes to the erection of a county bridge, gives 
 it no insurable interest therein in the absence of proof that 
 the contribution was legally compulsory. ^ The owner of the 
 cargo of a vessel who voluntarily makes repairs on the ves- 
 sel, has not an insurable interest in the vessel.^ Voluntary 
 repairs belong to the vessel and vest in its owner. If a son 
 takes a policy on the property of his father upon a verbal 
 understanding with the father that the money is to be for 
 his benefit, the idea being to protect the proceeds from the 
 father's creditors, there can be no recovery on the policy. 
 The sou cannot sue, for he had no insurable interest, and 
 the father cannot, for the policy is limited to the son, and 
 it is not competent to prove the parol agreement that the 
 insurance was to be for the father's benefit.* When the 
 policy purported to insure bills of exchange, which were in 
 reality but rights to obtain money on the contingency of the 
 arrival of a ship at a certain place, and not true bills, the 
 policy was held of no avail, the subject-matter not being 
 open to insurance.^] 
 
 § 77. Insurable Interest {continued). — The question, what 
 constitutes an insurable interest, was much discussed, but 
 not decided, as long ago as 1806, in a noted case in which 
 the several judges who gave their opinions seem to have 
 given the matter their careful consideration. Their con- 
 flicting views very well illustrate the difficulties of the ques- 
 tion. The facts in the case were as follows: Certain ships, 
 
 1 "Warren v. Davenport Fire Tiis. Co., 31 Iowa, 464, 465. 
 
 2 [Farmers' Mut. Ins. Co. o. Turnpike Co., 122 Pa. St. 37, 44.] 
 
 3 [Buchanan v. Ocean Ins. Co., 6 Can. 318, 329.] 
 * [Baldwin v. State Ins. Co., 60 Iowa, 497.] 
 
 s [Palmer v. Pratt, 9 Moore, 358, 366.] 
 
 149 
 
§ 77] INSUKANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 with their cargoes, belonging to subjects of the United Prov- 
 inces, by direction of the admiralty had been seized by a 
 British man-of-war and ordered home. The defendants in 
 error were by statute made commissioners, with authority to 
 take into their possession and under their care, and to man- 
 age, sell, or otherwise dispose of to the best advantage, all 
 such ships and cargoes as had then been or might thereafter 
 be detained in or brought into the ports of the United King- 
 dom, and had accordingly insured these ships and cargoes ; 
 but before arriving at any port of the United Kingdom they 
 were lost. The question was whether the defendants in 
 error had an insurable interest. And it was said on the 
 one side, that though it were conceded that the commis- 
 sioners had no scintilla of right in possession or reversion, 
 yet they had a contingent interest founded on the statute, 
 their commission, and the seizure, which made it their duty 
 by all lawful means to provide for the preservation of the 
 property till they should come into possession; that a con- 
 tingent interest is sufficient,^ and a vested interest is not 
 necessary; that nothing stood between the commissioners 
 and the vesting of the contingent interest but the perils in- 
 sured against, and, in fact, they lost by the perils of the sea 
 what, but for those perils, would have vested in them abso- 
 lutely ; that though an interest may be prevented from vest- 
 ing by other events than the perils insured against, as by 
 the countermand of a consignor, yet this possibility of coun- 
 termand will not take away the right from the consignee to 
 insure, and that where there is an expectancy coupled with 
 a present existing title, there is an insurable interest; that 
 inchoate rights, such as freight, respondentia, and bottomry, 
 and wages (though the insurance of the latter is universally 
 prohibited on grounds of public policy), founded on subsist- 
 ing titles, lands, charter-parties, and agreements, are insur- 
 able ; that the object of insurance is to protect men against 
 uncertain events which may in any wise be of disadvantage, 
 
 1 [Though the assured's interest in personal property is slight or contingent 
 yet if it was fairly represented to the insurance company at the time of the con- 
 tract, he may recover. Fenn v. New Orleans Mut. Ins. Co., .53 Ga 578, 579.] 
 
 150 
 
CH. VI.] SUBJECT-MATTEE. — INSURABLE INTEREST. [§ 78 
 
 not only those persons to whom positive loss may come by 
 such events, occasioning the deprivation of that which they 
 may possess, but those also who, in consequence of such 
 events, may have intercepted from them the advantage or 
 profit which, but for such events, they would acquire 
 according to the ordinary and probable course of things; 
 that though a man must somehow or other be interested in 
 the preservation of the subject-matter exposed to perils, yet 
 to confine the contract to the protection of the interest which 
 arises out of property is adding a restriction to the contract 
 which does not arise out of its nature ; that a man is inter- 
 ested in a thing, to whom advantage may accrue or preju- 
 dice may happen from the circumstances which may attend 
 it, and whom it concerneth that its condition as to safety or 
 other quality should continue; that interest does not neces- 
 sarily imply a right to the whole or a part of a thing, nor 
 necessarily and exclusively that which may be the subject of 
 privation, but the having some relation to or concern in the 
 subject-matter of insurance, which relation or concern, by 
 the happening of the perils insured against, may be so 
 affected as to produce damage, detriment, or prejudice to 
 the person insuring; and when a man is so circumstanced 
 with respect to matters exposed to risks or dangers as to 
 have a moral certainty of advantage or benefit but for those 
 risks or dangers, he may be said to be interested in the 
 safety of the thing ; that to be interested in the preservation 
 of a thing is to be so circumstanced with respect to it as to 
 have benefit from its existence or prejudice from its destruc- 
 tion; and that the property of a thing and the interest deriv- 
 able from it may be very different, the price being generally 
 the measure of the first, while by interest in a thing every 
 benefit and advantage arising out of or depending on such 
 thing may be considered as being comprehended.^ 
 
 § 78. On the other hand, it was said that the mere naked 
 expectation of acquiring a trust or charge respecting prop- 
 erty without a scintilla of present interest, either absolute 
 
 1 Craufurd v. Hunter, 8 T. R. 13 ; Lucena v. Craufurd, 3 Bos. & Pul. 75 ; 
 8. c. H. of L. 2 New Rep. (5 Bos. & Pul.) 299 ; s. o. 1 Taunt. 324. 
 
 151 
 
§ 79] INSURANCE: FIRE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 or contingent, in possession, reversion, or expectancy, in 
 the proper legal sense of the word, can be no foundation for 
 an insurable interest ; that that intermediate thing between 
 a strict right, or a right derived under a contract, and a 
 mere expectation or hope, which is said to constitute an in- 
 surable interest, and which is sometimes termed a moral 
 certainty, is so shadowy as to be totally incapable of legal 
 definition; that what is the difference between a moral cer- 
 tainty and an expectation no one can tell; and that in point 
 of fact there can be no insurable interest where there is no 
 right in the property, or a right derivable out of the prop- 
 erty by virtue of a contract relative thereto, which, in either 
 case, may be lost upon some contingency affecting the pos- 
 session or the enjoyment of the party having the property or 
 right; and that an expectation of a grant or trust or posses- 
 sion, founded upon great probability, is not an insurable in- 
 terest, nor would it be, whatever might be the chances in 
 favor of the expectation. In other words, as was tersely 
 said by Lord Ellenborough in a subsequent case while dis- 
 cussing the same question, "a man has no right to an 
 indemnity because he has lost the chance to receive a 
 gift."i 
 
 § 79. Expected Profits. — Expected profits may be insured ^ 
 both in this country and England, though the rule in France 
 is different, where only an acquired profit may be insured. 
 But the insured must have an interest in the property out of 
 which the profits are expected to proceed, and the profits 
 
 1 Ibid. ; Routh v. Thompson, 11 East, 428. In this discussion were engaged 
 on one side or on the other, most of the judges of the different courts, and 
 amongst them some of the ablest that ever adorned the British judiciary ; and' 
 in its different stages the cause will be found to be an invaluable storehouse oi 
 learning upon this rauch-ve.xed question of insurance law, which will abundantly 
 reward the most careful perusal. See also De Forest v. Fulton Fire Ins. Co., 
 1 Hall (N. y. Superior Ct.), 84. The question was also much discussed in the 
 recent English case of Ebsworth v. Alliance Ins. Co., 8 L. R. (0. P.) 596, in 
 which the court unanimously agreed that a consignee might insure and recover 
 to the amount of his advances ; but were equally divided upon the point whether, 
 insuring for himself and other parties in interest, he could recover beyond his 
 interest, — upon which latter point the authorities in this country are decidedly 
 in the affii-mative. Shaw v. .ffitna Ins. Co., 49 Mo. 578 ; post, § 424. 
 
 ^ [Eyre i>. Glover, 16 East, 218, 220.] 
 152 
 
CH. VI.] SUBJECT-MATTER. — INSUEABLE INTEREST. [§ 80 
 
 must be insured as profits.^ "It is not necessary," says 
 Alauzet,2 "to the validity -of the contract that the thing 
 exist, and that the interest be born at the moment of the 
 making of the contract. Thus crops may be validly insured 
 against hail and frost or any other risk, even before they are 
 sown; but from the moment when the crop begins to take 
 root or branch, the contract will be perfect and suscep- 
 tible of execution. Until then it is only a conditional in- 
 surance. " ^ (a) And such expected profits are still insurable 
 though the insured may have no absolute ownership in the 
 property out of which the profits are expected to arise, but 
 merely a right, if he should so elect, to take it on certain 
 terms and conditions, in a certain event; as where one pur- 
 chases for a consideration, then paid, the right to take a 
 portion of a cargo expected to arrive, on the payment of a 
 certain further sum, if on the arrival he shall so elect.* But 
 though there be an ownership in the property, if before it 
 comes to the possession of the purchaser he becomes insol- 
 vent, and the goods are intercepted by the vendor by right 
 of stoppage in transitu, there being no longer either property 
 or any expectation of profits thereon, there can be no recov- 
 ery under the policy.^ 
 
 § 80. Insurable Interest, who may have. — Whoever may 
 fairly be said to have a reasonable expectation of deriving 
 pecuniary "advantage from the preservation of the subject- 
 matter of insurance, whether that advantage inures to him 
 personally or as the representative of the rights or interests 
 of another, has an insurable interest. Thus a mortgagee, 
 being the owner of a limited interest in the estate, has in 
 
 1 Siin Fire Office v. 'Wright, 3 N. & M. 819 ; s. c. 1 A. & E. 621 ; Barclay v. 
 Cousins, 2 East, 544 ; Grant v. Parkinson, Park, 402 ; s. c. Marsh. Ins. 95; Put- 
 nam V. Mercantile Ins. Co., 5 Met. 386, 391 ; Loomis v. Shaw, 2 Johns. Cas. 36 ; 
 Niblo V. N. A. Fire Ins. Co., 1 Sandf. (N. Y. Superior Ct.) 551 ; Leonarda v. Phcenix 
 Assurance Co., 2 Rob. (La.) 131. [Abbott v. Sebor, 3 Johns. Cas. (N. Y. 39, 44.]) 
 
 ^ Traite Gen. des Assurances, 153 ; Pardessus, Droit Com., 589. 
 
 » Grant v. Parkinson, 3 Bos. & Pul. 85 n. 
 
 * French v. Hope Ins. Co., 16 Pick. 397. 
 
 s Clay v. Harrison, 10 B. & C. 99. 
 
 (a) See Barry v. Farmers Mut. Hail Ins. Ass'n (Iowa), 81 N. W. 690 ; Holmes 
 u. Phenix Ins. Co., 98 Fed. Rep. 240. 
 
 153 
 
§ 80] INSUEAKCE : FIEE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 his own right an insurable interest to the amount of the 
 mortgage debt.^ So have executors an insurable interest in 
 the property of the testator which the executor is bound to 
 protect;^ and administrators in the like property of the in- 
 testate,^ even though, it seems, the personal assets are suffi- 
 cient to pay the debts ; * and trustees in property under their 
 charge;^ and sheriffs in property attached.® So also have 
 consignees, common carriers, and supercargoes, under instruc- 
 tions to land the goods and wait for*a market,^ or when com- 
 pensation depends upon the safety of the cargo ;^ captors, 
 having a well-founded expectation that their claim will be 
 allowed ; ^ and pledgees, innkeepers, factors, common carriers, 
 wharfingers, pawnbrokers, warehousemen, and, generally, per- 
 sons charged either specially, by law, custom, or contract, 
 with the duty of caring for and protecting property in be- 
 half of others, or having a right so to protect such property, 
 though not bound thereto by law, or who will receive benefit 
 from the continued existence of the property, whether they 
 have or have not any title to estate in lien upon or posses- 
 sion of it, have an insurable interest.^" That the person may 
 suffer loss is a sufficient foundation for his claim to an in- 
 surable interest." Indeed, the law has gone very near to 
 
 1 Carpenter v. Prov. "Washington Ins. Co., 16 Pet. (U. S.) 495 ; Kellar v. 
 Merchants' Ins. Co., 7 La. An. 29 ; Addison v. Kentucky, &c. Ins. Co., 7 B. 
 ,Mon. (Ky.) 470. 
 
 2 Phelps V. Gebhard Fire Ins. Co., 9 Bosw. (N. Y. Superior Ct.) 404. 
 
 3 Herkimer v. Rice, 27 N. Y. 163. See a\so post, § 448. 
 ^ Globe Ins. Co. </. Boyle, 21 Ohio St. 119. 
 
 5 Insurance Co. w. Chase, 5 Wall. (U. S.) 509; Babson v. Thomaston Mut. 
 Fire Ins. Co., C. Ct. (Me.), Shepley, J., 4 Ins. L. J. 50. 
 
 6 White V. Madi.son, 26 N. Y. 117. 
 
 ' De Forest v. Fulton Fire Ins. Co., 1 Hall (N. Y.), 84, a case full of learning. 
 Waters v. Monarch Fire & Life Ins. Co., 5 El. & Bl. 870; Mtns. Ins. Co. v. 
 Jackson, 16 B. Mon. (Ky.) 242 ; Planters' Mut. Ins. Co. v. Engle (Md.), 9 Ins. 
 L. J. 71. 
 
 8 Robinson v. New York Ins. Co., 2 Caines (N. Y.), 357 ; ante, §78, note. 
 
 s Stockdale v. Dunlop, 6 Mees. & Wels. 224 ; Protection Ins. Co. v. Hall, 15 
 B. ilon. (Ky.) 411. 
 
 w Eastern K. R. Co. v. Relief Fire Ins. Co., 98 Mass. 420 ; Shaw v. Mtna. 
 Ins. Co., 49 Mo. 578 ; Commonwealth v. Hide & Leather Ins. Co., 112 Mass, 
 136 ; Sturm v. Atlantic Mut. Ins. Co., 63 N. Y. 77. And see post, §§ 89, 90. 
 
 u Cone V. Niagara Ins. Co.. 60 N. Y. 619. 
 154 
 
CH. VI.J SUBJECT-MATTER. — INSURABLE INTEREST. [§ 81 
 
 holding a lawful possession to be an adequate interest to 
 support the contract.^ 
 
 § 81. Divers Interests in same Subject-matter. — Many are 
 the rights giving an insurable interest which different par- 
 ties may have in the same subject-matter. Of course the 
 owner in fee of real estate may insure, and his interest not 
 only continues after a mortgage, but it even survives a sale 
 of the equity of redemption on execution until his right to 
 redeem under that sale expires.^ In personal as well as real 
 property there is an insurable interest while there is any 
 right to redeem.^ So may the owner of a leasehold estate 
 insure,* especially if he own the building;^ so may a hus- 
 band as tenant by the curtesy, after issue born alive, though 
 the wife be only a joint tenant;^ and so, too, if he lives with 
 his wife, and shares with her the use of her own separate 
 personal or real property.'^ [In some states, however, the 
 husband cannot insure his wife's property, having no inter- 
 
 1 Sutherland v. Pratt, 11 Mees. & "Wels. 296 ; Barclay u. Cousins, 2 East, 
 544; Wilson, ,T., Sherboneau v. Beaver Mat. Fire Ins. Ass., 30 U.' C. (Q. B.) 
 472. See also post, §§ 89, 97 ; Durand v. Thouron, 1 Port. (Ala.) .238, 251". 
 
 2 Strong u. Manufacturers' Ins. Co., 10 Pick. (Mass.) 40 ; Columbian Ins. 
 Co. V. Lawrence, 2 Pet. (U. S.) 25 ; Stephens v. Illinois Mat. Pire Ins. Co., 43 
 111. 327 ; post, § 82. 
 
 8 Allen V. Franklin Fire Ins. Co., 9 How. Pr. (N. Y. ) 501 ; Franklin Ins. Co. 
 .;. Findlay,'6 Whart. (Pa.) 483. 
 
 * Sadlers' Co. u. Badcoek, 1 Wil. 10 ; s. c. 2 Atk. 554 ; Niblo v. North Ameri- 
 can Ins. Co., 1 Sandf. (N. Y. Superior Ct.) 551. 
 
 5 Fletcher v. Commonwealth Ins. Co., 18 Pick. (Mass.) 419; Laurent v. Chat- 
 ham Fire Ins. Co., 1 Hall (N. Y.), 41 ; Tongue v. Nutwell, 31 Md. 302. 
 
 8 Franklin Mar. & Fire Ins. Co. v. Drake, 2 B. Mon. (Ky.) 47 ; Abbott v. 
 Hampden Mut. Fire Ins. Co., 30 Me. 414; Harris v. York Mut. Ins. Co., 60 Pa. 
 St. 341. And see also Curry v. Commonwealth Ins. Co., 10 Pick. (Mass.) 635. 
 [A husband who has curte.=iy in property has an insurable interest therein. 
 Franklin Ins. Co. v. Drake, 2 B. Mon. (Ky.) 47, 50.] 
 
 ^ Goulstone v. Royal Insurance Co., 1 Fost. & Fin. (N. P.) 276 ; Clarke u. 
 Fireman's Insurance Co., 18 La. 431 ; American Central Insurance Co. v. Mc- 
 Lanathan, 11 Kaus. 533. [A husband who with his wife is in the possession 
 and enjoyment of her personal property, and has real estate in which he has 
 an inchoate curtesy, has an insurable interest in the same. Trade Insurance 
 Co. o. Barracliff, 45 N. J. 543. Also, an insolvent retain.s an insurable interest 
 in goods concealed from his creditors. Goulstone v. Eoyal Insurance Co., 1 F. & 
 F. 276, 279. When a husband insures his wife's separate property as his own, 
 he must in his declaration aver loss of his right to use, or he cannot recover, and 
 his policy must insure his interest and not the property which was not his. 
 Cohn V. Virginia F. & M. Insurance Co., 3 Hughes (U, S.), 272, 273.] 
 
 155 
 
§ 81] INSUEANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 est in it. ^ (a)] A tenant in dower may doubtless insure. [A 
 homestead may be insured by the head of the family. ^{i)] 
 So the assignee of a bond for a deed of real estate upon 
 which the obligee has made improvements has an insurable 
 interest.^ A disseisor may be considered as the owner, so 
 far as to give him an insurable interest, especially if the 
 disseisee's right of entry is tolled ; for if the disseisee has 
 no right to enter, but only a right of action, he is not the 
 absolute owner of the land, — th^ disseisor is the owner 
 under a title which is defeasible.* Rent is itself a distinct 
 insurable interest, and is not a proper item of loss to en- 
 hance the damages under a policy insuring the building.^ 
 [A tenant in common may insure his own interest, and is 
 not accountable to his co-tenants for any portion of the in- 
 
 ^ [A husband lias no insurable interest in property of his wife conveyed to 
 her by him. Clark v. Dwelliug-House Ins. Co., 81 Me. 373. So in Indiana the 
 law has deprived a husband of all right to the possession or control of his 
 wife's separate estate, and he therefore has no insurable interest in her prop- 
 erty. Traders' Ins. Co. u. Newman, 120 Ind. 554. And in Michigan a hu-sband 
 cannot insure in his own name the personal property of his wife, and the policy 
 will be void even though the company knew the facts at its inception. Agri- 
 cultural Ins. Co. V. Montague, 38 Mich. 548, 551. The doctrine of waiver 
 cannot apply. It is fundamental that the assured must have an insurable inter- 
 est, and it is immaterial that he acted in good faith.] 
 
 2 [German-Amer. Ins. Co. v. Davidson, 67 Ga. 11. The husband has an in- 
 surable interest in a homestead occupied by himself and his wife, owned by her 
 and on land in which she has a life estate. MeiTett v. Fanners' Ins. Co., 42 
 Iowa, 11, 14. Where a husband orally gave a homestead to his wife, on leav- 
 ing her, and she occupied the same and with her own money erected buildings 
 thereon, she has an insurable interest in the homestead. Rockford Ins. Co. v. 
 Nelson, 65 Ilh 415, 420.] 
 
 ' Ayres v. Hartford Fire Ins. Co., 17 Iowa, 176. 
 
 * Curry v. Commonwealth Ins. Co., 10 Pick. (Mass.) 535. 
 
 ^ Leonarda v. Pho3nix Assurance Co. of London, 2 Kob. (La.) 131. In Mc- 
 Cormick v. Ferrier, Hayes & J. (Irish Exch.) 12, a verdict was upheld for the 
 whole amount claimed, where suit was brought by two parties holding distinct 
 interests in the same subject-matter, alleging generally that they had an interest, 
 but not alleging it to be either sole or joint. But see Ebsworth v. Alliance Mar. 
 Ins. Co., 8 L. R. (C. P.) 596. 
 
 (a) See Trott v. Woolwich F. Ins. wholly in the wife, the husband's inter- 
 Co., 83 Maine, 362 ; Horsch v. Dwell- est therein is sufficient to support an 
 ing-House Ins. Co., 77 Wis. 4 ; Diffen- action by them jointly on a fire policy 
 baugh V. Union F. Ins. Co., 150 Penn. issued to them both. Webster ». 
 St. 270. Dwelling-House Ins. Co., 53 Ohio St. 
 
 (6) When the title to a dwelling 558. See Glaze v. Three Elvers Far- 
 occupied as a family homestead is mers' M. F. Ins. Co., 87 Mich. 349. 
 
 156 
 
CH. VI.] SUBJECT-MATTER. — INSHEABLE INTEREST. [§ 82 
 
 surance money. ^] The same person may hold several inter- 
 ests by distinct rights. ^ Thus he may have co-existing 
 interests as owner, as trustee, as executor, as legatee, and 
 as surety. And the failure of one interest does not affect 
 the others.^ 
 
 § 82. Mortgagor and Mortgagee; Pledgor; Pledgee ; Guar- 
 antor ; Surety; Hirer. — A pledgor of goods as collateral has 
 an insurable interest.* So has a cestui que trust ;° and so 
 has a mortgagor,^ even though his equity has been foreclosed, 
 so long as the mortgage debt remains unpaid, on account of 
 
 1 [Annely v. DeSanssure, 26 S. Car. i505. In this case the whole of the insur- 
 ance money was applied in repairing the property.] 
 
 2 [A person having several interests in the same cargo may protect them all 
 under one policy without expressing their different natures. Carruthers v. 
 Sheddon, 6 Taunt. 14, 18.] 
 
 2 Insurance Cos. v. Thompson, 95 U. S. 547 ; 7 Ins. L. J. 1. 
 
 * [If a pledgor of property is in possession, and its loss would leave him still 
 liable on the debt, he has an insurable interest to the full value of the property. 
 Nussbaum v. Northern Ins. Co., 37 Fed. Rep. 524 (Ga.) 1889.] 
 
 6 Butler V. Standard Fire Ins. Co., 4 U. C. (App.) 391. 
 
 5 [A mortgagor to full value has still an insurable interest. Higginson v. 
 Dall, 13 Mass. 96, 101. As the loss of mortgaged property diminishes the 
 mortgagor's means of payment, it cannot be said that a mortgage lessens his in- 
 surable interest. Guest v. Fire Ins. Co., 66 Mich. 98. The owner of the equity 
 of redemption has an insurable interest equal to the value of the property, even 
 though the mortgage would absorb the whole of it. The embarrassment of a 
 man's affairs may be such as to cover all he owns with debts, but he has not 
 therefore lost interest in his property. Insurance Co. v. Stinson, 103 U. S. 25, 
 29 (1880). If the property were destroyed the debts would remain, and the 
 debtor would be poorer by just the value of the property lost. It has been held 
 that a mortgage large enough to absorb the value of the buildings does not destroy 
 the insurable interest of the owner, even tbongh he is not personally liable on the 
 mortgage debt. The interest arises from his ownership and his right to redeem. 
 Insurance Co. v. Stinson, 103 U. S. 25, 29. But it is a little difficult to see what 
 substantial interest the mortgagor can have in the preservation of the property 
 under such circumstances, and that is the true test. A mortgagor who has given 
 a bond with the mortgage, and afterward sold the property, has still an insurable 
 interest in its preservation, in order that the debt may be paid out of it. Waring 
 V. Loder, 53 N. Y. 581, 585. An equity of redemption before foreclosure is an 
 insurable interest. Creighton v. Homestead F. Ins. Co., 17 Hun, 78, 80. The 
 mortgagor of a vessel, who has warranted to keep her insured for the mortgagee, 
 has an insurable interest therein which is not destroyed by a subsequent forfeiture 
 for violation of a coasting act. Wilkes v. People's F. Ins. Co., 19 TS. Y. 184, 187. 
 The insurable interest of a mortgagor is not divested by an unauthorized fore- 
 closure sale and confirmation which is afterwards set aside. Even though the 
 loss occur after the confirmation, and before it is vacated, the mortgagor may re- 
 cover. Insurance Co. v. Sampson, 38 Ohio St. 672.] 
 
 157 
 
§ 82] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 his liability therefor,^ and so long as there are facts and 
 equities in the case which might give a right of redemption 
 notwithstanding the foreclosure.^ And one who has con- 
 veyed away his property to protect another against loss by 
 reason of liability on account of the pledgor or guarantor 
 has an insurable interest certainly before any claim on the 
 liability has accrued, and, no doubt, if such claim has not 
 accrued, as he stands substantially in the position of a mort- 
 gagor.^ So where one indorses a note for the accommoda- 
 tion of the maker, with the agreement that the proceeds of 
 the goods for which the note was given shall be paid to him, 
 the indorser, with which to pay the note, he has an insurable 
 interest.* So where one becomes liable on a bond for the 
 payment of taxes on the property insiired.^ So where the 
 plaintiff hg,d made advances from time to time for building 
 a vessel, under a parol agreement that he might hold and 
 sell the vessel to pay his advances, paying a surplus to the 
 borrower, though he never had possession of the vessel, nor 
 any bill of sale or transfer, he was held to have an insurable 
 interest.^ So the holder of a mortgage as collateral secur- 
 ity for a debt has an insurable interest in the mortgaged 
 property, while the debt for which the mortgage is pledged 
 as collateral remains unpaid.^ Successive mortgagees, hold- 
 ing claims upon the same property at the same time, may 
 
 1 Buffalo Steam-Eiigine Works v. Sun Mut. Ins. Co., 17 N. Y. 401 ; ante, 
 § 81 ; Parsons v. Queen Ins. Co., 29 U. C. (C. P.) 188. As to the law in Iowa, 
 Bee post, § 286. 
 
 * Stephens v. Illinois Mut. Eire Ins. Co., 43 111. 327 ; Cone v. Niagara Fire 
 Ins. Co., 60 N. Y. 619. 
 
 3 Smith V. Eoyal Ins. Co., 27 U. C. (Q. B.) 54 ; Kronk v. Birmingham Ins. 
 Co. (Pa.), 9 Ins. L. J. 26; Walsh v. Fire Association, 127 Mass. 383 ; Kelly v. 
 Liverpool, &o. Ins. Co., 2 Hannay (N. B.), 266. 
 
 ' Davies v. Home Ins. Co., 3 U. C. (App.) 269, reversing s. c. 24 TJ. G. (Q. B.) 
 364. [A surety for the payment of the value of the cargo of a vessel in case of 
 condemnation of the ship, to whom the cargo had been delivered as indemnity, 
 has an insurable interest in the cargo, just as a factor who has a lien on goods in 
 his possession has. Russel v. Union Ins. Co., 1 Wash. 409, 412.] 
 
 * Insurance Co. v. Thompson, 95 U. S. 547. 
 
 8 Clark V. Scottish Imp. Ins. Co., 4 Can. Sup. Ct. Eep. 192, reversing s. o. 2 
 P. & B. (N. B.) 241. See § 93. 
 
 ' Sussex County Mut. Fire Ins. Co. u. Woodruff, 2 Dutch. (N. J.) 541 ; 
 Mechler v. Phcenix Ins. Co., 38 Wis. 665 ; ante, § 80. 
 
 158 
 
CH. VI.] SUBJECT-MATTEE. — INSURABLE INTEREST. [§ 83 
 
 each insure their respective interests. ^ [The hirer of a ves- 
 sel may insure her.^] 
 
 § 83. Mortgagee ; Creditor. — The amount of interest or 
 its character is not material in determining the question 
 whether a party who attempts to recover under a policy has 
 an insurable interest. A mortgagee's interest, as we have 
 already seen, in the protection of the property as a fund out 
 of which to pay the debt, is undoubtedly insurable ;2 and he 
 does not lose that insurable interest, although he sell and 
 assign the mortgage and the note thereby secured, if he in- 
 dorse the note. His responsibility for the debt remaining, 
 he is still interested in the preservation of the property, out 
 of which to pay what has ceased to be a debt due him in- 
 deed, but nevertheless a debt due another, which he has 
 assumed in a certain contingency to pay.* [A trustee under 
 a deed of trust in the nature of a mortgage has an insurable 
 interest distinct from that of the mortgagor.^ When the 
 assured described the premises as "my house, &c.," — when, 
 in fact, the owner had assigned the property to him in trust 
 to sell and pay the creditors, the assured being one of the 
 latter, it was held that the beneficial interest of the assured 
 entitled him to recover the whole insurance,® at least where 
 his beneficial interest is enough to cover it all.] And a 
 creditor has an insurable interest in the real estate of his 
 insolvent or intestate debtor if the personal assets are insuf- 
 ficient to pay the debts.' [A judgment creditor may insure 
 property he has attached, and apply the proceeds to his own 
 use.^ He has also a general insurable interest in the prop- 
 
 1 Fox V. Phenix Fire Ins. Co., 52 Me. 333. 
 
 2 [Bartlet v. Walter, 13 Mass. 267, 269.] 
 
 s [Under the act of ]881, 44 & 45 Vict. c. 41, a mortgagee may, after the date 
 of the mortgage, insure any part or the whole of the mortgaged property, and the 
 premiums shall he a charge on the property in addition to the mortgage, with the 
 same priority, and with interest at the same rate.] 
 
 * New England Fire & Mar. Ins. Co. v. V?etmore et al., 32 111. 221 ; "Williams 
 V. Roger Williams Ins. Co., 107 Mass. 377. 
 
 ^ [Dick V. Franklin F. Ins. Co., 81 Mo. 103.] 
 
 ^ [White V. Hudson Riv. Ins. Co., 7 How. Pr. 341, 350.] 
 
 ' Rohrbach v. Germania Fire Ins. Co., 62 N. Y. 47 ; Herkimer v. Rice, 27 id. 
 163. 
 
 8 [International Trust Co. v. Boardman, 149 Mass. 158.] 
 
 159 
 
§ 83 a] INSURANCE : fiee, life, accident, etc. [cii. VI. 
 
 erty of his debtor, but he cannot recover from the insurer 
 unless he shows that the debtor has not sufficient property 
 left out of which the judgment can be satisfied. ^ (a)] 
 
 § 83 a. Vendor and Vendee ; Without Delivery. — The pur- 
 chaser of a number of barrels of oil stored with others, but 
 not separated or identified, has an insurable interest to the 
 amount of goods of the character claimed shown to have 
 been in the building at the time of the fire.^ So has the 
 
 1 [Spare v. Home Mut. Ins. Co., 15 Fed. Rep. 707 ; 8 Sawy. 618 ; 16 Cent. 
 L. J. -352 ; 12 Ins. L. J. 365, 9th Cir. (Or.) ; see contra, § 93.] 
 
 2 Mathewson v. Eoyal lus. Co., 16 L. C. Jur. (Q. B.) 45 ; Wilson v. Citizens' 
 Ins. Co., 19 id. 175 ; Clark v. Western Ass. Co., 25 U. 0. (Q. B.) 209. The con- 
 trary was held, by a divided court, as to the purchaser of an unseparated lot of 
 wheat in another court. Box u. Provincial Ins. Co., 15 Grant, Ch. 337, 652, 
 
 (a) See Burlingame v. Goodspeed, 
 153 Mass. 24 ; Tilley v. Conn. F. Ins. 
 Co., 86 Va. 811. When a creditor in- 
 sures his debtor's life to secure his debt, 
 the amount of his insurable interest is 
 the amount of the debt ; the proof of 
 indebtedness must be distinct and satis- 
 factory, but if there is a close or even 
 rea.souable equality between the amount 
 due the creditor, including premiums 
 and expenses paid, and the face of the 
 policy, it is not a wager or speculative 
 ri.ik. Waruock v. Davis, 104 U. S. 
 775 ; Grotty v. Union Mut. L. Ins. Co., 
 144 U. S. 621 ; Givens v. Veeder (N. 
 Mex.), 50 Pac. 316. In determining 
 whether such insurance is -"■ wager, the 
 debtor's expectancy of life, according to 
 the Carlisle Tables, may properly be 
 considered. Ulrich u. Reinoehl, 143 
 Penn. St. 238 ; Shaffers). Spangler, 144 
 id. 223 ; McHale v. McDonnell, 175 id. 
 632. In Ulrich v. Eeinoehl, supra, it was 
 held that a policy for |3000 to cover a 
 debt of §100, may, as matter of law, be 
 declared a wager, when no explanation 
 is given for such apparent disproportion. 
 
 A creditor's insurable interest in his 
 debtor's life is only for indemnity and 
 cannot exceed the indebtedness secured, 
 including, if so agreed, the expenses of 
 the insurance. Exchange Bank v. Loh, 
 104 Ga. 446. But such insurable inter- 
 est supports the policy, though the 
 
 160 
 
 creditor's claim is satisfied before the 
 debtor's death. Manhattan L. Ins. Co. 
 V. Hennes.sy, 99 Fed. Rep. 64. But 
 such interest is only vital to the insurer, 
 and if it does not object, its absence is 
 by estoppel not fatal as between the as- 
 signor and the 'assignee, or between dif- 
 ferent claimants. Robinson v. Hurst, 
 78 Md. 59 ; Hewins v. Baker, 161 Mass. 
 320; Hall v. Niagara F. Ins. Co., 93 
 Mich. 184 ; Hogue v. Minnesota Packing 
 Co., 59 Minn. 39 ; Blackburn v. St. 
 Paul F. & M. Ins. Co., 116 N. C. 821 ; 
 Dixon V. National L. Ins. Co., 168 
 Mass. 48 ; Merrill v. Colonial M. F. Ins. 
 Co., 169 Mass. 10. An insured cred- 
 itor's interest ceases when his claim is 
 paid, and the policy then belongs to 
 the insured's estate. Crotty v. Union 
 M. L. Ins. Co., 144 U. S. 621 ; see 
 Hicks V. National L. Ins. Co., 60 Fed. 
 Rep. 690. A policy for the benefit of a 
 creditor, " as his interest may appear," 
 relates to his interest as creditor, and 
 not in the insured property ; if that 
 interest is equal to or exceeds the amount 
 insured, he can sue upon the policy in 
 his own name, even though he ceases to 
 have an insurable interest. Donaldson 
 V. Ins. Co., 95 Tenn. 280. Creditors 
 have no interest in a fraternal benefit 
 certificate the proceeds of which belong 
 wholly to the designated beneficiary. 
 Fisher v. Donovan, 57 Neb. 361. 
 
CH. VI.] SUBJECT-MATTER. —INSUEABLE INTEREST. [§ 83 a 
 
 transferee for value of a warehouseman's receipt for a cer- 
 tain amount of wheat not separated from a larger amount. ^ 
 A vendor of personal or real property, though he may have 
 contracted to sell the same, has also an insurable interest.^ 
 So has a vendee in possession, under a contract that the 
 property shall be his when the note given for the property 
 is paid, and until then shall remain the property of the 
 vendor, before the note is paid.^ When a vendee institutes 
 proceedings for abrogating a contract of sale, and insures 
 pending those proceedings, he has an insurable interest, and 
 may recover although the loss does not happen till the con- 
 tract is abrogated. Before the abrogation, it is his interest 
 to protect for himself, and after the abrogation it is both 
 his interest and duty to protect, so that he may restore and 
 place the vendor in substantially the same position as he 
 was in before the sale. The effect of the abrogation of the 
 contract was to subrogate the vendor to the assured's right 
 
 citing, Sutherland v. Pratt, 11 M. & W. 296, where it was held that the vendee 
 of goods under a verbal contract could not insure. See also post, § 97. 
 
 1 Todd V. Liverpool, &c. Ins. Co.,, 18 U. C. (0. P.) 192. Though this case 
 was reversed afterwards on appeal, four to three, it was for reasons drawn from, 
 statutory considerations, which do not seem to affect the soundness of the general: 
 principle decided in the case reversed. 
 
 2 McSwiney v. Royal Exch. Ass. Co., 14 Q. B. 634 ; Acer v. Merchants' Ins. 
 Co., 57 Barb. (N. Y. ) 68 ; Brewer v. Herbert, 30 Md. 301. [A vendor who has 
 agreed to sell for full value has, pending the contract of sale, a right to insure the 
 premises. Gill v. Can. F. & M. Ins. Co., 1 Ont. R. 347. The owner of a vessel, 
 who has contracted to sell her, has still an insurable interest in her, to her full' 
 value : Stuart v. Columbian Ins. Co., 2 Cranch C. C. 442, 443 ; and not merely 
 to the price agreed on. A vendor, V., who has supplied T. with goods under an 
 agreement, reserving to V. a special property in them, has an insurable interest, 
 and a verdict in his favor will not he set aside because he said on cross-examina- 
 tion that if the goods had been destroyed without insurance the loss would have 
 fallen on T. Such an answer is only V.'s idea of the legal effect of the agreement. 
 Eumsey v. Merch. M. Ins. Co., 4 Russ. & Geld. (Nova Sco.) 220. An executory 
 contract to sell 40,000 hams, to be paid for oil delivery, does not change the 
 property, and the vendor by a policy insuring the stock of which the hams were 
 a part, insures them also, and may recover therefor upon loss, ^tna Ins. Co. v. 
 Jackson, 16 B. Mon. 242, 267. The vendor of good.s, having received the price 
 therefor, and agreed to store them free of charge and to procure insurance in the 
 name of the vendee, stating all the facts to the underwriters, may so insure, 
 although the goods have not been separated from other.<! of the kind in the vendor's 
 stock. Cumberland Bone Co. v. Andes Ins. Co.', 64 Me. 466, 470.] 
 
 3 Holbrook v. St. Paul Fire & Mar. Ins. Co., 25 Minn. 229. See also Bick- 
 nell V. Lancaster Fire Ins. Co., 58 N. Y. 677. 
 
 VOL.L — 11 161 
 
§ 84] INSURANCE : 5IRE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 to the proceeds.^ A vendor of real estate, after articles of 
 agreement and before conveyance, may also insure the full 
 value; and when the policy is upon the buildings and not 
 upon the debt, the insurance is prima facie upon the whole 
 legal and equitable interest, and upon the balance of the 
 unpaid consideration.^ (a) 
 
 § 84. Lessor and Lessee. — The interest of a lessee is based 
 upon his right to the possession and use, his liability to re- 
 pair or for waste, or his covenant or parol agreement^ to 
 keep insured, and may exist whether he be tenant for years 
 or at will. But the lessee cannot insure lessor's interest, 
 unless under obligation so to do.* In England the incum- 
 bent of a benefice, and generally the tenants of ecclesiastical 
 property, whether in possession or not, and other persons 
 bound by custom or otherwise to repair, are considered to 
 have an insurable interest.^ A sub-lessee by parol, who 
 rents a building on the leased land, has an insurable inter- 
 est in the building.^ [The lessee of a homestead who has 
 erected improvements has an insurable interest.'^] 
 
 And it seems that a possession under such circumstances 
 that the tenant may be liable as a wrong-doer gives an in- 
 surable interest, as appears by the following interesting 
 
 1 Le Soleil v. Alby, Dalloz, Jur. Gen., Ct. of Cass. 1868, 1, 38. See also post, 
 §89. 
 
 " Insurance Co. v. TJpdegraff, 21 Pa. St. 513. 
 
 8 Lawrence v. St. Mark's Fire Ins. Co., 43 Barb. (N. Y.) 479. 
 
 4 Hidden v. Slater Fire Ins. Co., 2 Clifford (C. Ct.), 266, 268. 
 
 6 Bunyon, Fire Ins., 17. 
 
 8 Mitchell V. Home Ins. Co., 32 Iowa, 421 ; Fowle v. Springfield, &c. Ins. Co., 
 122 Mass. 191. In Kelley v. Insurance Co., Dist. Ct., Phila., 3 Bennett Fire Ins. 
 Cases, Sharswood, J. , held that property held by a tenant was in trust, so that 
 if the policy required property held in trust to be insured as such, an insurance 
 by the tenant in his own name would be invalid. The case does not show what 
 the subject-matter of insurance was. 
 
 7 [Creech v. Richards, 76 Ga. 36.] 
 
 (a) One who is in possession of realty Phoenix Ins. Co., Ill Cal. 409 ; Baker 
 
 under a contract to buy it, and who, v. State Ins. Co., 31 Oregon, 41 ; Lov- 
 
 having made part payments, is entitled enthal v. Home Ins. Co., 112 Ala. 108. 
 
 to a conveyance upon full payment, has He has also an insurable interest in any 
 
 an insurable interest to the extent of building or structures he may be ereot- 
 
 the payments made up to the time when ing on the land. Hall v. Niagara F. 
 
 the insurance was effected. Davis v. Ins. Co., 93 Mich. 184. 
 
 162 
 
CH. VI.] SUBJECT-MATTEK. — INSURABLE INTEREST. [§85 
 
 case : The City of New York had leased a plot of ground for 
 the Crystal Palace building to an association which failed, 
 and a receiver was appointed by the court under the statute 
 relating to the dissolution of corporations. The receiver 
 held possession of the property some year and a half after 
 the lease expired, when the plaintiffs -entered by force and 
 took possession, and then procured this insurance. The 
 court observed that if the building was to be considered as 
 the property of the lessee at the termination of the lease, the 
 plaintiffs were liable to be ■ charged for its value as wrong- 
 doers, at the suit of the receiver, after they had forcibly 
 ejected him and taken possession thereof. The plaintiffs 
 were in possession under a claim of ownership. The re- 
 ceiver can maintain no action to recover the actual posses- 
 sion of the building since its destruction, and a recovery 
 against the plaintiffs for the value, by way of damages, 
 would vest the ownership in them, even though they acquired 
 no title in it by the conditions of the lease and the expira- 
 tion of the term. And so on this ground there was an in- 
 surable interest.^ So, too, a landlord has an insurable 
 interest in the goods of his tenant liable to distress for 
 rent.^ 
 
 § 85. Lessor ; Buildings erected by Lessee. — Of course, 
 when a building is erected by the lessee, and reverts to the 
 lessor at the expiration of the lease, an insurable interest 
 exists in the lessor from the time of the reversion.^ So if 
 the lessee has a right to remove the buildings at the expira- 
 tion of the lease, as their destruction will diminish the les- 
 sor's security for rent, he may insure for his protection.* 
 
 1 Mayor, &o. of New York v. Brooklyn Fire Ins. Co., 41 Barb. (N. Y.) 231. 
 
 ^ Columbia Ins. Co. b. Cooper, 50 Pa. St. 381. 
 
 3 Mayor, &a. of New York v. Exchange Fire Ins. Co., 9 Bosw. (N. Y.) 424 ; 
 s. 0. affirmed, 3 Abb. App. Dec. (N. Y.) 261 ; Mayor, &c. of New York o. Brook- 
 lyn Ins. Co., 41 Barb. (N. Y.) 231. 
 
 * Miltenberger v. Beacom, 9 Pa. St. 198. In Macarty . Commercial Ins. 
 Co., 17 La. 365, it is said that a donor who has given a deed of his property inter 
 vivos, and at the delivery of the deed has by parol agreed with the donees that 
 he shall retain the estate during his life, and does in fact retain it, taking the 
 profits and paying taxes and making repairs, has no insurable interest. But 
 the reasoning of the court is wholly unsatisfactory, and the decision is against 
 the universal cuiTent of the modem authorities. 
 
 163 
 
§ 87] INSUKANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 § 86. Equitable Title. — There can be no doubt that one 
 who has a title enforceable in equity has an insurable inter- 
 est.i So where the plaintiff advanced money to a builder, 
 and took his notes, secured by a deed in trust to a third 
 party, in payment, and, the maker of the notes being unable 
 to pay them at maturity, it was agreed that the plaintiff 
 should surrender the notes and take possession of tlie prop- 
 erty, which he accordingly did, with the assent of the trus- 
 tee, who delivered to him the deed of trust, which at the 
 time insurance was effected he had so held for about two 
 years, it was held that he had an insurable interest. ^ 
 
 § 87. Possession; Incomplete Title ; Claim in Litigation. — 
 But insurable interest does not at all depend upon the com- 
 pleteaess or validity of the title by which the insured prop- 
 erty is held. Thus possession under a contract of sale, upon 
 which partial payment has been made, may give an insur- 
 able interest, although the conditions of the contract have 
 been so far violated that, if the breach be insisted on, the 
 contract cannot be enforced, since the contract, notwith- 
 standing the breach of its conditions, may be carried into 
 effect by the parties in interest. ^ And this is true, though 
 the vendor, availing himself of the violation of the condi- 
 tions by the vendee, has resold the property, and is resist- 
 ing a proceeding in equity brought by the vendee to compel 
 
 1 Ramsey v. Phoenix Ins. Co., 2 Fed. Eep. 429 ; Eedfield v. Holland, &c. Ins. 
 Co., 56 N.y. 354 ; Franklin Fire Ins. Co. v. Martin (Md.), 8 Ins. L.J. 134 ; Acer 
 V. Merchants' Ins. Co., 57 Barb. (N. Y.) 68. See also post, §§ 87, 88, 96 ; Brewer 
 u. Herbert, 30 Md. 301. [An equitable interest is a proper subject of insur- 
 ance. Hume V. Providence Washington Ins. Co., 23 S. Car. 190 ; Home Protec- 
 tion Ins. Co. V. Caldwell Bros. , 85 Ala. 607. One who has an equitable interest 
 in property may insure the same in the name of the legal holder, the proceeds 
 to be payable to himself as his interest may appear, and on loss he may recover 
 the amount of his damage, not exceeding the amount of his insurance. Harvey v. 
 Chen-y, 12 Hun, 354, 356. An equitable title or interest such as possession 
 under a contract of purchase is sufficient. Oilman v. Dwelling-House Ins. Co., 
 81 Me. 488. See next section.] 
 
 2 Coursin r Pa. Ins. Co., 46 Pa. St. 323. 
 
 8 Tyler v. Mtna, Fire Ins. Co., 16 Wend. (N. Y.) 385 ; s. c. 12 id. 507 ; Co- 
 lumbian Ins. Co. V. Lawrence, 2 Pet. (U. S.) 25 ; s. o. 10 id. 507 ; McGivney v. 
 Phoenix Fire Ins. Co., 1 Wend. (N. Y.) 85 ; Smith v. Bowditch Ins. Co., 6 Cush. 
 (Mass) 448 ; Southern Ins. & Tr. Co. v. Lewis, 42 Ga. 587 ; Pettigrew u. grand 
 River Farmers' Ass., 28 U. C. (C. P.) 70. 
 
 164 
 
OH. VI.] SUBJECT-1VU.TTEE. — INSUEABLE INTEREST. [§ 87 A 
 
 a conveyance. If this were not so, the property might be 
 destroyed pending the litigation, to the prejudice of the 
 vendee should he ultimately prevail. ^ 
 
 [§ 87 A. Contract of Purchase ; Claim of Title ; Defect in 
 Title. — The holder of an assigned title bond has an insur- 
 able interest in the premises. ^ "Possession of property 
 under a subsisting executory contract that may ripen into 
 ownership constitutes an insurable interest, whether the 
 purchase-money is paid or not, and will justify a recovery 
 to the extent of injury sustained." One who has a bond of 
 conveyance of a ship, from the builders, on payment of the 
 balance of the cost, and who has the sole use of her, may in- 
 sure freight in her, and may represent himself as the sole 
 owner to the underwriters.^ One who holds goods under 
 contract of purchase has an insurable interest to the amount 
 already paid by him.* One in possession of land under a 
 contract of purchase, having made a part payment, has an 
 insurable interest.^ And more broadly, a person in posses- 
 sion of land, as owner, under a valid and subsisting contract 
 for the purchase, has an insurable interest therein.^ And 
 further, one in possession of lands under a contract to pur- 
 chase may describe them as his, in a policy ; and this is not 
 affected by th& fact that he was at the time in default 
 through the breach of a condition, if the vendor had not 
 taken advantage of the same and declared the contract for- 
 feited.' Even after an agreement to rescind the contract of 
 purchase, the insurable interest remains until the rescission 
 is consummated.^ One in possession under a bona fide claim 
 of title is not affected as to insurance by a defect in the 
 
 1 Milligan v. Equitable Ins. Co., 16 C C. (Q. B. ) 314. See also Sherboneau 
 u. Beaver Mut. Ins. Ass., 30 id. 472 ; ante, § 83 a. 
 
 2 [Ayres v. Hartford Ins. Co., 17 Iowa, 176, 181.] 
 
 8 [Simmes v. Marine Ins. Co., 2 Cranch C. C. 618, 620.] 
 
 * [Michael v. St. Louis Mut. Fire Ins. Co., 17 Mo. Ajjp. 23.] 
 
 6 [Grange Mill Co. v. Western Ass. Co., 118 111. 396 ; iEtna Ins. Co. v. Tyler, 
 
 16 Wend. 385, 396.] 
 
 ^ [Tuckerman u. Home Ins. Co., 9 E. I. 414, 417 ; Eamsey v. Phcenix Ins. 
 
 Co., 2 Fed. Rep. 429 ; 17 Blatch. 527, 2d Cir. (N. Y.) 1880.] 
 ' [Felton V. Westchester Fire Ins. Co., 77 N. Y. 605, 608.] 
 8 [MacCutcbeon v. Ingraham, 19 Ins. L. J. 32 (W. Va.), 1889.] 
 
 165 
 
§ 88] msuEANCE: fire, life, accident, etc. [ch. VI. 
 
 title. ^ When the assured got his title to the property in- 
 sured by a fraud as to the consideration of the deed, it was 
 held that he nevertheless had an insurable interest, as the 
 conveyance to him was not void but only voidable.'^ Where 
 the assured produced a deed conveying to him "a certain 
 mill site and all the buildings thereunto belonging," it was 
 held that the insurer could not show that the grantors of the 
 assured had only a right of easement in the property. ^ One 
 in possession under claim of right, no adverse interest hav- 
 ing been asserted, is the owner. But where the insured 
 holds only under a parol agreement of a married woman to 
 convey, which, by the law of the State is invalid, he has no 
 insurable interest.^ One not in possession, claiming by 
 conveyances to and by a fictitious person, has no insurable 
 interest. Such a deed is not sufficient to raise a presump- 
 tion of possession.^] 
 
 § 88. Purchase at Auction before Payment ; Fraudulent Con- 
 veyance. — And it has. been held in Tennessee that this in- 
 terest exists under the following state of facts: The plaintiff 
 had purchased the property at a sale on execution. He had 
 neither paid the purchase- money nor any part thereof, nor 
 had he received or been tendered a deed. Some arrange- 
 ment was made with the creditors for time, and there was 
 some understanding with the execution debtor that he was 
 to hold the property as security for the amount bid, and 
 other debts for which the plaintiff was liable to him. After 
 the loss, the plaintiff being still delinquent in the payment 
 of the purchase-money, the property was re -sold to another 
 person.^ So both the vendor and vendee, under a convey- 
 ance which is fraudulent as against creditors, have insurable 
 interests.^ 
 
 1 [Travis v. Continental Ins. Co., 32 Mo. App. 198.] 
 
 2 [Phceiiix Ins. Co. o. Mitchell, 67 111. 43, 45.] 
 
 s fMiller v. Alliance Ins. Co., 19 Blatch. (U. S.) 308, 311.] 
 
 « [Perry v. Mechanics' Mut. lus. Co., 11 Fed. Eep. 478 ; 11 Ins. L. J. 409, 1st 
 Civ. (R. I.) 1882.] 
 
 s [David v. Williamsburgh City Fire Ins. Co., 7 Abb. N. C. 47.] 
 
 6 ^tna Ins. Co. v. Miers, 5 Sneed (Tenn.), 139. 
 
 "I Lei'ow V. Wilmarth, 9 Allen (Mass.), 382 j Pettigrew v. Grand Eiver, &c., 
 28 U. G. (C. P.) 70. 
 
 166 
 
CH. VI.] SUBJECT-MA.TTEE. — INSURABLE INTEREST. [§90 
 
 § 89. Intruder. — It has been held, however, that when a 
 person is a mere intruder, and has no license or permission 
 to occupy land belonging to another, he can have no insur- 
 able interest in buildings which he may erect thereon. 
 Thus, certain parties jointly agreed to build a hotel on the 
 beach on land belonging to the State, without lease or other 
 permission. The plaintiff, one of the corporation, con- 
 tracted with the rest to build the house, and by virtue of 
 the contract became a creditor of the company. After it 
 was built, several of the joint proprietors being unable to 
 pay, their interest was transferred to the plaintiff, who 
 thenceforth for two or three years used and occupied the 
 premises, and at length procured insurance thereon. But 
 the court said they had no rights individually or collec- 
 tively ; they were rhere intruders, and had no interest which 
 the law could in any way recognize. ^ 
 
 § 90. Stockholder in Corporate Property. — Philips V. Knox 
 County Mutual Insurance Company ^ has been regarded as an 
 authority that the stockholder of an incorporated company 
 has no insurable interest, though he own all the stock of 
 the company ; though the real question in this case seems to 
 have been whether the stockholder truly represented the title 
 when he stated that the property was his, the insurers by 
 their charter being entitled to a lien, and whether the in- 
 sured was the owner in fee, in which case only the insurance 
 was to be binding, (a) But in Warren v. Davenport Fire 
 Insurance Company, ^ the point was distinctly made, and de- 
 cided in the affirmative.* Upon full consideration the court 
 
 1 Sweeny v. Franklin Ins. Co., 20 Pa. St. 337. 
 
 2 20 Ohio, 174, 178. 
 s 31 Iowa, 464. 
 
 * [A stockholder in a private company has an insurable interest in the cor- 
 porate property. Seaman v. Enterprise, &c. Co., 18 Fed. Rep. 250, 8th Cir. (Mo.) 
 
 (a) In New York a stockholder in a creditor and stockholder of the insured 
 
 corporation i.9 held to have an insurable company, "as his interest may appear," 
 
 interest in the corporate property. Biggs this clause refers, not to the appointee's 
 
 V. Commercial Mut. Ins. Co., 125 N. Y. interest in the property, but to his in- 
 
 7. When the property insured belongs terest as such creditor and stockholder. 
 
 to a corporation, but the loss is made Donaldson v. Ins. Co., 95 Tenn. 280. 
 payable to a third person, who is a 
 
 167 
 
§ 92] INSUEANOE : FIRE, LIFE, ACCIDENT, ETC. [CH. TL 
 
 held that a stockholder is clearly interested in the preserva- 
 tion of the property which gives value to his stock, and out 
 of which come the dividends, and that the interest is of such 
 a nature as to be insurable. The court refer to the Ohio 
 case just cited, and, after pointing out the fact that the case 
 turned upon the provision of the charter making the policy 
 void if the true title be not stated, well observe that a mort- 
 gagee who had represented the property as his own would 
 have failed in the same case, and for the same reason. 
 
 § 91. Administratrix. — An administratrix was held to 
 have an insurable interest under the following state of facts: 
 The husband before his death agreed with the defendants for 
 a policy upon his building and machinery. Before, how- 
 ever, the policy was issued he died, and the policy was 
 afterwards issued insuring his "estate." In a suit brought 
 on the policy assigned after the loss, and brought by the 
 assignee, it was contended, on the part of the defendants, 
 that the " estate " of the husband meant his administratrix, 
 and that she as such administratrix had no interest in the 
 realty. But the court said it was apparent that both par- 
 ties intended that the building as well as the machinery 
 should be insured, for so expressly said the policy ; and as 
 the heirs had the chief interest in the real estate, it might 
 fairly be presumed, without the aid of extraneous evidence, 
 that such insurance was effected for their benefit. If, how- 
 ever, this were doubtful, extraneous evidence might be ad- 
 duced to ascertain in all cases of ambiguity in this respect 
 what interests were intended to be insured.^ So a widow 
 who is in possession of her deceased husband's house built 
 on land of which he was tenant for years, and had paid the 
 ground rent, has an insurable interest both as presumptive 
 owner of the house and as administratrix de son tort.^ 
 
 § 92. Insolvent. — Insolvent debtors and bankrupts may 
 
 1883. A shareholder in the Atlantic Telegraph Co., whose shares were dependent 
 upon the success of the cable to England, had an insurable interest in the venture. 
 Wilson V. Janes, 2 L. R. Exch. Div. 139, 148.] 
 
 1 Clinton v. Hope Ins. Co., 51 Barb. (N. Y.) 647 ; s. c. affirmed, 45 N. Y. S44. 
 See also post, § 445. 
 
 2 Lingley v. Queen's Ins. Co., 1 Hannay (N. B.), 280. 
 
 168 
 
CH. VI.] SUBJECT-MATTEE, — INSURABLE INTEREST. [§93 
 
 also have an insurable interest. Thus, an insolvent, having 
 obtained his discharge, acquired property and insured it. 
 Subsequently, and after the loss, the creditors discover that 
 the discharge was obtained by fraud, and upon proper pro- 
 ceedings had in court the discharge was revoked. Under 
 the English insolvent law all the property which the insol- 
 vent has at the time of filing his petition, and all which he 
 shall acquire before he becomes entitled to his discharge, 
 vests in his assignee.-' It was contended that as the order 
 for the insolvent's discharge had been annulled, he was in 
 the same position as if the discharge had never been granted, 
 and consequently the assignee was entitled to the property 
 in question, and might compel the insurance company to pay 
 the loss to him. A party who insures, it was contended, 
 must have a real and tangible, and not a merely speculative, 
 interest in the property insured. But by Pollock, C. B. : 
 "It is enough if he is responsible to some person for the 
 property. There are many cases on marine policies which 
 show that if a person can be called upon to account for prop- 
 erty he has an insurable interest in it. " And per Alderson, 
 B. : " The insolvent having possession of the property is 
 responsible for it to his assignee. Then why may he not 
 insure it ? " After advisement, it was held that, as the in- 
 solvent was in possession as the apparent owner, responsible 
 to those who were the real owners, he might insure. ^ And 
 the insurable interest remains even though the insolvent has 
 concealed his goods from his creditors.^ 
 
 § 93. Lien. — Where by statute the mechanic has a lien 
 for labor and materials furnished in the erection of a build- 
 ing, he has an insurable interest in the building.* The lien 
 attaches from the commencement of the labor and the fur- 
 nishing the materials. Nor is it necessary that the validity 
 of the lien should have in any way been brought to judicial 
 cognizance. Before judgment, and even before filing the 
 
 1 1 & 2 Vict. o. no, § 37. 
 
 a Marks v. Hamilton, 7 Wels. Hurl. & Gor. (Exch.) 323. 
 8 Goulstone v. Royal Ins. Co., 1 F. & F. (N. P.) 276. 
 * [Insurance Co. v. Stinson, 103 U. S. 25.] 
 
 169 
 
§ 93 A] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 claim, if the period within which the claim must he filed 
 has not transpired, the interest subsists.^ And it has been 
 intimated that a contractor would have an insurable interest 
 in the house he was engaged in building, irrespective of his 
 statutory lien, if his compensation in any way depended 
 upon the completion of the house ; or, in other words, if by 
 contract or custom he was not to be paid till the house was 
 finished.^ So the lien given for money advanced for repairs 
 and supplies to a ship constitutes an insurable interest.^ 
 But a general lien, like that of a judgment in some States, 
 where by law it is a lien first upon the personal estate of 
 the judgment debtor, and then upon his real indiscrimi- 
 nately, does not give an insurable interest in the whole or 
 any part of the debtor's property to the judgment creditor, 
 and in this respect is to be distinguished from a mortgage, 
 which is a specific pledge of definite property, and gives the 
 mortgagee an insurable interest.* 
 
 [§ 93 A. A Lien or Interest in nature of a Lien is insurable.^ 
 — One having a lien on a vessel has an insurable interest in 
 it.® One having goods consigned to him as part security 
 for a debt, has an insurable interest therein. ^ An equitable 
 lien for advances based on an agreement to put the property 
 in my hands for sale, so that I may reimburse myself out of 
 the proceeds, is an insurable interest, and though the vessel 
 burns before it is finished and put in my possession, yet I 
 can recover.* Advances made in a foreign port to equip a 
 vessel and procure for her a cargo are a lien, and constitute 
 an insurable interest in the ship.^ One in possession of real 
 
 1 Franklin Fire Ins. Co. v. Coates, 14 Md. 285 ; Carter v. Humboldt Fire Ins. 
 Co., 12 Iowa, 287; Stout v. City Fire In.s. Co., id. 371 ; Longhurst v. Star Ins. 
 Co., 19 id. 364. 
 
 2 Protection Ins. Co. v. Hall, 15 B. Hon. (Ky.) 411. 
 
 3 Merchants' Mutual Ins. Co. v. Baring, 20 Wall. (U. S.) 159. 
 
 * Grevemeyer v. Southern Mut. Ins. Co., 62 Pa. St. (P. F. Smith, 12) 340. 
 See contra, § 83, note. 
 
 6 [Hancox v. Fishing Ins. Co., 3 Sum. (U. S.) 132, 139.] 
 8 [Marine Ins. Co. v. Winsmore, 124 Pa. St. 61.] 
 ' [Wells V. Phila. Ins. Co., 9 S. & E. 103, 108.] 
 
 8 [Clarke v. Scottish Imp. F. Ins. Co., 4 Can. Supr. Ct. R. 192.] 
 
 9 [Insurance Co. v. Baring, 20 Wall. 159, 162.] 
 
 170 
 
CH. VI.] SUBJECT-MATTER. — INSURABLE INTEREST. [§ 94 A 
 
 estate under a power of attorney to sell it to cover advances 
 made to the owner may insure it.^] 
 
 § 94. LiabUity for Loss. — In Maine, . Massachusetts, and 
 probably other States, railroads are by statute given an in- 
 surable interest in buildings and other property along the 
 line of the road, for the loss of which by fire communicated 
 from the engine they would be responsible. ^ The interest 
 here is analogous to that of the common carrier, who is an 
 insurer by the common law, or to that of an underwriter, 
 who is an insurer by contract;'^ and being a different inter- 
 est from that of ownership, should be so insured.* Such 
 insurable interest has been held to exist in growing timber 
 located at a distance of three hundred feet from the line of 
 the road,^ or even half a mile distant, where the fire start- 
 ing in the grass adjacent to the road extends continuously to 
 the wood.s 
 
 [§ 94 A. — Neither legal nor equitable interest in property 
 is necessary to support insurance upon it; "it is enough if 
 the assured is so situated as to be liable to loss from its 
 destruction."^ In this case the C. Company insured N. 
 against loss of royalties on patents that might occur by the 
 stoppage of the manufactories of B. & Co., who paid to N. 
 royalties on certain goods made by them. If a diminution 
 of the royalties was caused by fire damage to the factories, 
 the C. Company was to pay the amount of such diminution 
 to N. The facts of the case do not seem to warrant the 
 principle announced by the court, that no legal or equitable 
 interest is necessary to support insurance. The insurance 
 was not upon the factories hut upon the royalties. It was 
 against loss of the royalties by a particular cause. A fire 
 might greatly damage the factories, yet if it did not result 
 
 1 [Brugger v. State Investment & Ins. Co., 7 Eep. 616; 5 Sawyer, 304.] 
 
 ■-' Chapman v. Atlantic & St. Lawrence R. R. Co., 37 Me. 92 ; Hart v. 
 "Western R. E. Co., 13 Met. (Mass.) 99 ; Hooksett v. Concord R. E. Co., 38 
 TS. H. -242. 
 
 3 Eastern E. E. Co. v. Relief Fire Ins. Co., 98 Mass. 420. 
 
 ^ Monadnock R. H. Co. v. Manufacturer.s' Ins. Co., 113 Mass. 77. 
 
 6 Pratt V. Atlantic & St. Lawrence R. R. Co., 42 Me. 579. 
 
 6 Perley v. Eastern R. R. Co., 98 Mass. 414. 
 
 ' [Nat. Filtering Oil Co. v. Citizens' Ins. Co., 106 N. Y. 535.] 
 
 171 
 
§ 95] INSUEANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. VL 
 
 in diminishing the royalties the policy did not attach. One 
 who owns half of a vessel and charters the other half, agree- 
 ing to pay for the whole ii lost, may insure the whole as his 
 property. ^ (a) A common carrier may insure goods in his 
 possession to the extent of their fair value, ^ even though 
 they are shipped on a third party's vessel ; and the carriers 
 and not the third party are the proper ones to insure ; nor 
 will the omission of the owner of the vessel vitiate the policy 
 unless it affects the risk. ^ An insurance " on goods " is suf- 
 ficient to cover the interest of carriers in property under 
 their charge.* The master of a vessel to whom property on 
 board is to be consigned, in the absence of proof that the 
 owner of the property had not given authority to order in- 
 surance, has an insurable interest therein, and may recover 
 in case of loss.^] 
 
 § 95. Debtor in Property attached; Bailee; Surety. — Where 
 the goods of an assured were levied upon by the sheriff by 
 virtue of an execution against him, and the sheriff took 
 actual possession of the goods, and left them in the store of - 
 the assured, the doors of which he fastened and the windows 
 of which he nailed up, and the sheriff went out of town and 
 took the key of the store with him, and during his absence 
 a fire took place, which destroyed the store with its con- 
 tents, it was held that the insured was nevertheless entitled 
 to recover.® In this case it was urged by the counsel for the 
 plaintiffs in error that the question was not one of an insur- 
 able interest, but of a change of interest and risk produced 
 by extrinsic circumstances. But the court, per Kennedy, 
 J., did not acquiesce in this view of the case. They held 
 that the position that the assured could not recover on his 
 
 1 [Oliver 17. Greene, 3 Mass. 133, 137, 138.] 
 
 2 [Savage v. Com Exchange, &c. Ins. Co., 36 N. Y. 655, 658.] 
 
 3 [Chase «. Washington, &c. Ins. Co., 12 Barb. 595.] 
 « [Crowley v. Cohen, 3 B. & Ad. 478, 488.] 
 
 6 [Buck V. Chesapeake Ins. Co., 1 Pet. 151, 163.] 
 
 6 The Franklin Fire Ins. Co. v. Fiudlay, 6 Whart. (Pa.) 483 ; Keith v. Globe 
 Ins. Co., 52 111. 518. 
 
 (o) The charterer of a vessel may in- 861 ; Murdock v. Franklin Ins. Co., 33 
 sure her. The GuLaare, 42 Fed. Rep. "W. Va. 407. 
 
 172 
 
CH. VI.] SUBJEGT-MATTEK. — INSUEABLE INTEREST. [§ 95 A 
 
 policy for tlie loss of a diminished interest was untenable ; 
 nor did they admit that the interest in this case was a 
 diminished interest ; for the loss must fall upon the defend- 
 ant in error, neither the sheriff nor the plaintiffs in the exe- 
 cution being in default, unless he could obtain remuneration 
 from the insurers upon the policy; and he Avas still liable 
 on the judgment obtained against him to pay the debt for 
 which his goods were taken on execution, A bailee, who 
 has given a bond to dissolve an attachment, and is under 
 obligation to produce the property to respond to the judg- 
 ment, has an insurable interest. ^ So has a creditor in a, 
 stock of goods he has sold to his debtor.^ And so has one 
 who is liable on a warehouse bond to pay a tax or duties on 
 the property insured.^ 
 
 [§ 95 A. Bailee ; Warehouseman ; Consignees ; Commission 
 Merchants ; Builder. — A bailee, though without pecuniary 
 interest or responsibility for safe keeping, may insure and 
 sue in his own name " for account of whom it may concern, " 
 and the insurance will inure to the owners who may adopt 
 the bailee's act even after loss.* A wharfinger may insure 
 the full value of goods in his charge without the owner's 
 knowledge, and recover the entire proceeds as a trust fund 
 for the said owners.® Warehousemen may insure, and re- 
 cover the full value of goods stored with them, the policy 
 covering goods that were "their own or held by them in 
 trust," &C.'' Consignees who also advance money on account 
 of the cargo and charges have an insurable interest in the 
 ship.^ A commission merchant has an insurable interest in 
 grain deposited with him, although the contract with the 
 depositor stipulates that it is at owner's risk of fire.^ Where 
 one operating a grain elevator had wheat stored with him 
 
 1 Fireman's Ins. Co. v. Powell, 13 B. Mon. (Ky.) 312. 
 " Rods v. Merchants' Mut. Ins. Co., 27 La. An. 409. 
 " Insurance Cos. v. Thompson, 95 U. S. 647. 
 * [Fire Ina. Ass. v. Merchants', &c. Trans. Co., 66 Md. 339.] 
 s [Waters v. Assurance Co., 5 E. & B. 870, 880.] 
 
 6 [Pelzer, &c. Co. u. St. Paul F. & M.Ins. Co., 41 Fed. Rep. 271 (S. C), 1890.] 
 ^ [Aldrich v. Equitable Safety Ins. Co., 1 "W. & M. (U. S.) 272, 275.] 
 8 [Baxteru. Hartford Fire Ins. Co., 12 Fed. Rep. 481 ; 11 Biss. 306 ; 16 Cent. 
 L. J. 50 ; 14 Rep. 106, 1882.] 
 
 173 
 
§ 96] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 for which he gave a receipt, "fire at owner's risk," it was 
 nevertheless held that he had an insurable interest therein. 
 In this case the wheat belonged to him. He was not to re- 
 deliver the identical wheat deposited, but an equal quan- 
 tity.^ (a) A builder constructing a house on contract, and 
 receiving the price in instalments, has the property in the 
 house until it is delivered, or at least until it is ready 
 for delivery and is approved, and he may insure the 
 building. 2 (5)] 
 
 § 96. Vendee without Title ; Shifting Interest. — It has been 
 said that an interest in goods under a contract which can- 
 not be enforced as being in contravention of the Statute of 
 Frauds, is not an insurable interest. Thus, where by verbal 
 agreement the plaintiff had agreed to purchase oil to arrive, 
 and to be paid for it if it arrived, but not otherwise, and it 
 was lost, it appearing that the contract was one which by 
 the Statute of Frauds is required to be in writing it was held 
 that he had no insurable interest. ^ And so where the plain- 
 
 1 [Baxter v. Hartford Fire Ins. Co., 11 Bias. 306, 308.] 
 
 ^ [Commercial Fire Ins. Co. v. Cap. City Ins. Co., 81 Ala. 320.] 
 
 ' Stookdale v. Dunlop, 6 Mees. & Wels. 224. 
 
 (a) Such a bailee as a cotton-com- of construction by a contractor, even 
 
 press company may insure all the cot- though he has as yet supplied no money 
 
 ton placed in its hands for compression therefor, and is fully indemnified against 
 
 by different owners, as being held in loss throiigh his contracts. Foley v. 
 
 trust; and it can recover the entire Manufacturers' F. Ins. Co., 152 N. Y. 
 
 value in case of loss, holding the excess 131 ; 43 L. E. Ann. 664, and note, 
 
 over its own interest for the benefit of Such owner and the contractor may 
 
 those who have entrusted the goods to each insure and recover for, independ- 
 
 it. California Ins. Co. v. Union Com- ently of the other, the full amount of 
 
 press Co., 133 U. S. 387, 409 ; Mer- his interest. Santa Clara Female Acad- 
 
 chants' Cotton-press Co. v. Ins. Co. of emy v. Northwestern National Ins. Co., 
 
 North America, 151 U. S. 368. See 98 Wis. 257. 
 
 Berry u. American Central Ins. Co., Insurance upon a decedent's "es- 
 
 132 N. Y. 49, 56. tate" by only one of the heirs, the ad- 
 
 (S) A house-mover has an insurable ministrator not assenting, is valid as to 
 
 interest in the house to the extent of his the insured's interest. Phoenix Ins. Co. 
 
 compensation and expenses ; but in- «. Hancock, 123 Cal. 222 ; see Krjuseu. 
 
 surance thereof does not include his tools Eq^uitable L. Ass. Society, 105 Mich, 
 
 destroyed in the house. Planters & 329. A creditor of such estate has an 
 
 Merchants' Ins. Co. v. Thurston, 93 insurable interest in the realty when the 
 
 Ala. 255. The owner in fee of an un- personal estate is insufficient to pay the 
 
 finished building has an insurable in- debts. Creed v. Sun Fire Office, 101 
 
 terest therein while it is in process Ala. 522. 
 174 
 
CH. VI. J SUBJECT-MATTER. — INSUEABLE INTEREST. [§97 
 
 tiff held an instrument made by the captain of a vessel, in 
 the nature of a mortgage, to secure the plaintiff for money 
 loaned with which to pay for repairs on the vessel, as the 
 instrument was one which the captain of the vessel had no 
 right to make, and was therefore void, the court said it did 
 not give to the plaintiff an insurable interest.^ Upon the 
 doctrine of these cases it has been stated, as a general prop- 
 osition, that a right under a contract not enforceable at 
 law or equity will not support a policy of insurance; and 
 among such contracts would be included a verbal contract 
 for the purchase of real estate, when it is not aided by part 
 performance.^ (a) 
 
 § 97. Vendor in Possession, but without Title. — In North 
 British and Mercantile Insurance Company v. Moffatt,^ 
 goods on a wharf were insured as "the assured's own, in 
 trust or on commission, for which the assured was respon- 
 sible." The assured had sold a portion of the goods de- 
 stroyed and received the pay therefor, but still held the 
 wharfinger's delivery-warrant for the goods on behalf of the 
 purchaser, though merely for the convenience of paying 
 the charges necessary to clear the goods; and it was held 
 that the goods had passed to the purchaser, so that the 
 vendor, the assured, had no longer, at the time of the fire, 
 any interest in the goods, or any responsibility therefor. 
 
 1 Stainbank v. Fenning, 6 Eng. L. & Eq. 412. 
 
 2 Angell, Ins. § 69. The learned author cites Tidswell v. Ankerstein, Peake, 
 151, and Fletcher v. Commonwealth Ins. Co., 18 Pick. (Mass.) 419, neither of 
 which seems to give the least support to the doctrine, or even to discuss the point 
 in any way. The former merely decides that an executor has an insurable 
 interest in the life of one who has granted an annuity to his testator, and the 
 latter that a person having a house on the land of another, for which he pays 
 rent under a verbal agreement, is not guilty of concealment in not stating this 
 fact as to his title, not being interrogated thereupon. There is doubtless some 
 mistake in the citation. And see ante, §§ 89, 90. It is doubtful if either of the 
 cases cited in this section would now be regarded as law in this country. See 
 post, § 108, and ante, § 87. 
 
 8 41 L. J. N. s. C. p. 1. 
 
 (a) A vendee has an insurable in- 153 Mass. 335, 341 ; Amsinck v. Amer- 
 
 torest in personal "property, although ican Ins. Co., 129 id. 185 ; Bohn 
 
 the title remains in the vendor until Manuf. Co. v. Sawyer, 169 id. 477. 
 delivery. "Wainer v. Milford Ins. Co., 
 
 175 
 
§ 99] INSUEANCE : FIUE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 Holder of Promissory Note. — The holder of a note may 
 insure its prompt payment, and the assignee of the policy, 
 that being negotiable, has an insurable interest. ^ And so 
 a surety for the fidelity of an employ^ may insure against 
 his default. 2 
 
 § 98. Reinsurance. — The risk which one insurer has as- 
 sumed with reference to any subject-matter of insurance 
 constitutes an insurable interest, which the insurer may pro- 
 tect, to the extent of his liability; by effecting an insurance 
 in his own favor against the risk he has assumed. This 
 procuring insurance to cover a risk already assumed is 
 called reinsurance. The subject-matter of the insurance in 
 each case is the same, but the interests are different. In 
 the first case, the owner's interest is that which is pro- 
 tected ; in the latter, it is the insurer's interest in the pres- 
 ervation of the property by reason of the fact that he is 
 under obligation to pay for it in case of loss. As the prac- 
 tice came to be a mode of speculating in the rise and fall of 
 premiums, and there was danger that it might become a 
 cover for wager policies, it was prohibited in England by 
 statute ** except in certain cases.* But it is a contract en- 
 tirely within the general purposes and objects of insurance, 
 and comes within the scope of the powers usually conferred 
 by charters, and has, it is believed, been very generally, if 
 not universally, England alone excepted, upheld.^ 
 
 § 99. Copartner. — A partner has an insurable interest to 
 the amount of the value of the entire stock ;8 and in a house 
 purchased with partnership funds,- but standing upon land 
 of the other partner by his consent.^ Upon settlement of 
 the joint account, the building must be treated as joint 
 
 1 Ellicott V. United States Ins. Co., 8 Gill & Johns. (Md. ) 166. 
 
 2 Towie V. National Guardian Ins. Co., 5 L. T. R. n. s. 193; s. c. 30 L. J. 
 Oh. 900 ; 7 Jur. N. s. 1109. See j>ost, chapter on Guarantee Insurance. 
 
 8 19 Geo. II. 0. 27. 
 
 4 1 Arnould, Ins. 287. 
 
 6 New York Bowery Fire Ins. Co. v. New York Fire Ins. Co., 17 Wend. 
 (N. Y.) 359 ; Eastern Railroad Co. v. Relief Fire Ins. Co., 98 Mass. 425. See 
 also ante, §§ 9-12. 
 
 6 Manhattan Ins. Co. v. Webster, 59 Pa. St. 227. 
 
 ' Converse v. Citizens' Mut. Ins. Co., 10 Gush. (Mass.) 37. 
 
 176 
 
CH. VI.J SUBJECT-MATTER. — INSUEABLE INTEREST. [§ 100 
 
 property, and his equitable interest in its preservation is an 
 insurable one.^(a!) When a partner retires from the firm, 
 but no notice of a dissolution is given, and the firm name is 
 used by the remaining partner, the retired but nominal part- 
 ner has an insurable interest, so that insurance in the name 
 of the firm is valid to the full amount. The legal interest 
 is in the firm, though the beneficial interest is in the re- 
 maining partner.-^ 
 
 § 100. Duration of Interest. — In general, it is essential 
 that the insured shall be possessed of an interest, both at 
 the time when the insurance is effected and at the time of 
 the loss;^ and so strictly is this principle adhered to, that 
 no recovery can be had even where by the terms of the pol- 
 icy the loss is payable to a third person, though that third 
 person have at the time of the loss an interest in the prop- 
 erty insured.* This doctrine was early applied to life as 
 well as to marine and fire policies ; ^ but we shall see here- 
 after that, as to life policies, it has undergone some modifi- 
 cation; and in marine insurance the policy is often made to 
 attach to after-acquired property.^ There seems to be no 
 sufficient reason why the same principle should not apply in 
 fire policies. Indeed, it has been frequently held that a policy 
 on a stock of goods covers after-acquired and substituted 
 goods. '• And a joint policy on the lives of a husband and wife, 
 payable to the survivor, is not avoided by the cessation of 
 interest after a divorce and a decree of alimony to the wife.^ 
 
 1 Ibid. See also Oakman v. Dorchester Mut. Fire Ins. Co., 98 Mass. 57. 
 
 2 Plioenix Ins. Co. «. Hamilton, 14 Wall. (U. S. ) 504. 
 
 8 Lynch v. Dalzell, 4 Bro. P. C. 431 ; Sadlers' Go. v. Badcock, 2 Atk. 554 ; 
 s. c. 1 Wil. 10 ; Howard v. Albany Ins. Co., 3 Denio (N. Y.), 301 ; Fowler v. 
 Indemnity Ins. Co., 26 N. Y. 422 ; French v. Hope Ins. Co., 16 Pick. (Mass.) 397. 
 
 * Tallnian v. Atlantic Fire & Mar. Ins. Co., 29 How. (N. Y. Pr.) 71. 
 
 5 Godsall V. Boldero, 9 East, 72. 
 
 •* Hooper v. Robinson (Sup. Ct. U. S.), 8 Ins. L. J. 497 ; 1 Arnould, Ins. 
 (Perk, ed.) 238. 
 
 ' Butler V. Standard Ins. Co., 4 U. C. (App.) 391. See also post, § 101. 
 
 8 Connecticut Mut. Life Ins. Co. v. Schaefcr, 94 U. S. 457. 
 
 (a) If property Is insured under the he can recover the full amount of the loss 
 
 name of the general partner, whose name and not merely of his interest. Clement 
 
 is used to represent a special partnership v. British American Ass. Co., 141 Mass. 
 
 formed under the Massachusetts statute, 298. 
 
 VOL. I. — 12 177 
 
§ 100 A] INSURANCE: FIRE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 [§ 100 A. The general rule undoubtedly is that the in- 
 sured must have an insurable interest both at the time of 
 insurance and at the time of loss.^ , But there are many 
 exceptions.^ An interest either at the time of loss or of 
 insurance may be sufficient, and I do not think that the rea- 
 sons of the exceptions are entirely confined to life insurance. 
 Where the interest is known to be of such a nature that in 
 the natural course of affairs and without fault of the assured 
 it may cease before the event insured against transpires, it 
 is veiy proper to hold the company, after cessation of the 
 interest, to save the assured the loss of his premiums. But 
 the insured should never be allowed to retain more than in- 
 demnity, otherwise he would have an interest in the destruc- 
 tion of the subject insured, and the evil at the heart of wager 
 policies would creep in by a back door. Any funds recov- 
 ered from the company beyond indemnity should go to the 
 owner of the subject-matter or his representatives. This 
 doctrine, however, is not uniformly recognized.^ Pennsyl- 
 vania holds that if there is an insurable interest at the time 
 of insurance, its cessation before loss will not deprive the 
 assured of the right to the funds as against the representa- 
 tives of the life.* The grantee of an annuity who has in- 
 sured the life of the grantor, is not bound to deliver up the 
 policy of assurance to the grantor on the redemption of the 
 annuity. In the absence of agreement or special circum- 
 stances, the policy belongs to the grantee of the annuity." 
 A nephew insuring the life of an aunt who owed him money 
 may recover, although the debt was paid before his aunt 
 died. The view that a life policy is a contract of indemnity 
 has been abandoned (as between the company and the as- 
 sured). It is enough if the insured had an interest at the 
 inception of the contract, and this without regard to the 
 amount of it, unless the estimate was in bad faith.^ If 
 
 1 [Chrisman v. State Ins. Co., 16 Or. 288.] 
 
 2 [See §115.] 
 8 [See ch. 24.] 
 
 « [Appl- of Corson, 113 Pa. St. 438 ; Scott v. Dickson, 108 Pa. St. 6.] 
 
 5 [Gotlieb V. Crancli, 4 De G. M. & G. 440.] 
 
 6 [Coreon V. Garnier, 17 Phil. 341 ; affirmed, 113 Pa. St. 438, 1880; citing 
 
 178 
 
CH. VI. J SUBJECT-MATTER. — INSURABLE INTEREST. [§101 
 
 the declaration aver that the assured was intei'ested at the 
 time of loss, it need not aver that he was at the time of in- 
 surance.^ The court thought there was much reason to be- 
 lieve that oiie having an interest at the time of loss, though 
 none at the time of insurance, ought to be protected even 
 without an express stipulation to that effect, and certainly 
 if such was the agreement. On the contrary, it has been 
 held in Canada that if the assured had no interest in the 
 property at the time of insurance, a subsequently acquired 
 interest will not save the policy, and a renewal, after the 
 interest is gained, being a mere continuation of the void 
 policy, is itself void.^ This case puts technicalities before 
 substance. Where there is no interest at the time of insur- 
 ance, one of the necessary elements of the contract does not 
 exist; but if afterwards and before loss the insured acquires 
 an interest in the subject insured, whether it be life or 
 property, that element comes into being, and if, knowing the 
 facts, the company thereafter recognizes the policy as valid or 
 executes a renewal, there could be no clearer case of a meet- 
 ing of minds with all necessary elements existent, and the 
 company should be held. In this case indeed, there is an 
 interest at the time of contract as well as at the time of 
 loss. The opinion goes on the ground that the renewal is 
 a mere continuation of the old policy and not a new con- 
 tract, but this is not the best view.^ The renewal is a new 
 contract, and if at the time it is made the elements of a con- 
 tract exist, it is sufScient. If, however, the original con- 
 tract was defective, suit should be brought on the renewal 
 receipt, not on the old policy.*] 
 
 § 101. Continuity of Interest. — It has also been said that 
 the interest should remain an uninterrupted interest from 
 the time of the insurance to the time of the loss, so that if 
 the insured, at any time after the policy is taken out, parts 
 
 Phcenix Mut. Life Ins. Co. u. Baily, 13 Wall. 616 ; Conn. Mut. Life Ins. Co. 
 V. Luchs, 108 TJ. S. 498.] 
 
 1 [Henshawr. Mut. Safety Ins. Co., 2 Blatch. 99, 104.] 
 
 2 [Howard v. Lancashire Ins. Co., 11 Can. Supr. Ct. 92.] 
 ' [Firemen's Ins. Co. v. Fldss & Co., 67 Md. 404.] 
 
 * [See King v. Hekla Fire Ins. Co., 58 Wis. 508.] 
 
 179 
 
§ 101] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 with his title, though afterwards, and before the loss, he 
 repurchase, yet the policy will not attafch, and the insured 
 will be without remedy.^ But in the absence of any condi- 
 tion against alienation which avoids the policy, it is not 
 easy to see how the insurers can be prejudiced by such an 
 interruption of title, since for so long a period at least as is 
 occupied by the interruption they are without risk, and at 
 no time do they incur any greater hazard than they agree to 
 assume, whether we regard the property upon which the risk 
 is taken, or the person in behalf of whom it is taken. The 
 insured has violated no stipulation of the contract, the in- 
 surer has not been prejudiced, and that there is nothing in- 
 compatible with the true principles of insurance in holding 
 the insurer responsible after such an interruption, is shown 
 by the familiar practice of insuring stocks in trade, under 
 which the right of the insured to sell and repurchase the 
 same stock, or a substitute, cannot be questioned. ^ In Rex 
 V. Insurance Companies,^ it was held that, where a mort- 
 gagee insured his interest, which was based upon present 
 and contemplated advances, to the mortgagor, and during 
 the currency of the policy the earlier advances were repaid 
 and new ones made, the policy was a valid security for such 
 advances, within the amount insured, as remained unpaid 
 at the time of the loss.* And quite recently, in a case in 
 Massachusetts, the case of Cockerill v. Cincinnati Insurance 
 Company was cited in argument, and its doctrine insisted 
 upon as the law. The facts were not such as to require a 
 direct ruling on the point, but if they had been, there can 
 be no doubt that the court would have sustained the validity 
 of the policy.^ 
 
 1 Cockerill v. Cincinnati Ins. Co., 16 Oliio, 148. 
 
 2 Lane v. Maine Mut. Fire Ins. Co., 3 Fairf. (Me.) 44 ; Wood v. Rutland & 
 Addison Miit. Fire Ins. Co., 31 Vt. (2 Shaw) 552 ; Lee & Howard Ins. Co., 11 
 Gush. (Mass.) 324 ; City Fire Ins. Co. v. Mark, 45 111. 482 ; Peoria Mar. & Fire 
 Ins. Co. V. Anapow, 51 111. 283 ; Whitwell v. Putnam Fire Ins. Co., 6 Lans. 
 (N. Y.) 166 ; Mills v. Farmers' Ins. Co., 37 Iowa, 400, 404 ; Crozier v. PhcEiiix 
 Ins. Co., 2 Hannay (N. B.), 200; ante, § 100 ; post, §§ 374, 381. 
 
 8 2 PMla. (Pa.) 357. 
 
 ^ See also 2 Am. Leading Cases, 463. 
 
 ' Worthington v. Bearse, 12 Allen (Mass.), 382. The observations of the court 
 
 180 
 
CH. VI.] SUBJECT-MATTEK. — INSURABLE INTEREST. [§ 101 
 
 So a violation of the conditions against over-insurance or 
 sale, and upon principle any like condition, non-existent at 
 
 in the case are so pertinent, and witlial so weighty, that we make no apology for 
 giving them in full. " But if it were otherwise," says Bigelow, C. J., who gave 
 the opinion, " and it appeared that the sale of the vessel was complete and 
 ahsolnte, so that for a time the insured had parted with his insurable interest, 
 his right to recover on the policy was not gone forever. It was only suspended 
 during the time that the title to the vessel was vested in the vendee, and was 
 revived again on the reconveyance to the insured during the term specified in 
 the policy. The insurance was for one year. There was no stipulation or con- 
 dition in the policy that the insured should not convey or assign his interest in 
 the vessel during this period. The contract of insurance was absolute to insure 
 the interest of a person named in a particular subject for a specified time ; for this 
 entire risk an adequate premium was paid, and the policy duly attached, because 
 the as.sured at the inception of the risk had an insurable interest in the policy. 
 So, too, at the time of the loss, all the facts necessary to establish a valid claim 
 under the policy existed. The execution of the policy, the interest of the assured 
 in the vessel, the due inception of the risk, a compliance with all warranties ex- 
 pressed and implied, and the loss by a peril insured against, are all either admitted 
 or proved. Upon what legal ground, then, can it be maintained that the policy 
 has become extinct ? No fact is shown from which any inference can be made 
 that by the alienation of the title to the vessel during the time named in the 
 policy the risk of the insurers upon the subsequent retransfer of the vessel to the 
 assured was in any degree increased or affected, or that any loss, injury, or preju- 
 dice to the underwriter was occasioned by the fact that the absolute title to the 
 vessel was temporarily vested in a third person. On the contrary, such temporary 
 traiisfer'of title would seem rather to have inured to the benefit of the insurers 
 because they have received a premium for a risk from which they were exempted 
 during a portion of the time designated in the policy. In the absence of any 
 express stipulation, as in the policy declared on, no return premium could be 
 claimed by the assured by reason of any temporary suspension of the work or 
 withdrawal of the subject insured. The policy had attached, and the risk was 
 entire. During the time that the vessel was owned by a person other than the 
 assured, no loss could happen which could be covered by the policv. The in- 
 sured, having no interest, could sustain no loss. If a total loss occurred during 
 the period, the insurable interest would become extinct. Upon a retransfer of 
 title to the insured, the policy would revive only to secure the renewed interest 
 thereby acquired, and not to render the insurers liable for losses which may have 
 happened during the intermediate period. The sole effect would be to suspend the 
 risk for the time during which, by reason of the transfer, the assured had no in- 
 terest in the subject insured, and to revive it as soon as the original interest was 
 vested in him. The transfer of the vessel rendered the policy inoperative and not 
 void. It could have no effect while the insured had no interest in the subject 
 insured. But when this interest was revived or restored during the time desig- 
 nated in the policy, witliout any increase or change of risk or other prejudice 
 to the underwriter, there seems to be no valid reason for holding that the policy 
 has become extinct. Inasmuch as neither the subject nor the person insured is 
 changed, and the risk remains the same, the intermediate transfer is an immaterial 
 fact which can in no way affect the claim under the policy. 
 
 "This doctrine is not only consistent with sound reason, but it is in accordance 
 with the analogies of the law of marine insurance. Eisks may be temporarily sus- 
 
 181 
 
§ 102] insurance: fire, life, accident, etc. [ch. vt 
 
 the time of the loss, does not work a forfeiture, but only a sus- 
 pension of the insurance during the violation.^ So navigation 
 in excepted or non-permitted waters may suspend but does not 
 terminate the policy, unless explicitly so provided. ^ So a policy 
 suspended during repairs may revive after their completion. ^ 
 § 102. Life. — Within the present century it was made a 
 serious question in one of the most learned courts of this 
 country, in a case of novel impression, whether one person 
 can have such an interest in the preservation of the life of 
 another as to make it the valid basis of a contract of insur- 
 ance. But as upon well-settled principles of law all con- 
 tracts, fairly made, upon a valuable consideration, which 
 infringe no law, and are not repugnant to the general policy 
 of the law, or to good morals, are valid and may be en- 
 forced, or damages recovered for the breach of them, it saw 
 no reason to except the contract of insurance out of this gen- 
 eral rule. Prior to this decision, the insurance of lives was 
 prohibited in several of the countries of Europe, though it 
 
 pended, and subsequently revived, without invalidating the right of the assured 
 to claim under the policy. Unseaworthiness, after the policy has attached, if im- 
 putable to the neglect or other fault of the assured, will suspend, but not destroy, 
 the risk. Restoration of the navigability of the vessel will revive the right of 
 the assured to claim under his policy. Taylor v. Lowell, 3 Mass. 331 ; 1 Phil. 
 Ins. § 734. So goods insured for a voyage which, by the terms of the policy, are 
 covered only when water-borne, may be withdrawn from the risk while tempo- 
 rarily placed on land ; but the policy upon them will revive when, without in- 
 crease of risk, they are again put on board the vessel. In these and like cases the 
 principle adopted is, that the contract of insurance is not violated, or the right of 
 the assured to claim an indemnity affected, bj' the existence of a state of facts 
 which does not contravene any stipulation in the policy, or in any way change or 
 affect the risk, or otherwise work any injury or prejudice to the rights of the in- 
 surer." The learned judge cites also Carroll v. Boston Mar. Ins. Co., 8 Mass. 61.5; 
 Power?;. Oc.ean Ins. Co., 19 La. 28 ; Howard v. Albany Ins. Co., 3 Denio (N.Y.), 
 301 ; 1 Phil. Ins. § 89. And see also Hartford Protection Ins. Co. v. Harmei-, 2 
 Ohio, N. o. 452; and Hooper u. Hudson River Ins. Co., 15 Barb. (F. Y.) 413 ; 
 s. c. affirmed in Court of Appeals, 117 N. Y. 424. 
 
 1 New England Fire & Mar. Ins. Co. v. Schettler, 38 111. 166 ; Obermeycr v. 
 Globe Mut. Ins. Co., 43 Mo. 573 ; Mitchell v. Lycoming Mut. Ins. Co., 61 Pa. St. 
 402 ; Power v. Ocean Ins. Co., 19 La. 28; Lane v. Maine Mut. Fire Ins. Co., 
 3 Fairf (Me.) 44 ; Morrison v. Teun. Mar. & Fire Ins. Co., 18 Mo. 262. And 
 see post, § 245. 
 
 2 Greenleaf v. St. Louis Ins. Co., 37 Mo. 25, 30. But see contra, Wilkins v 
 Tobacco Mar. & Fire Ins. Co., 2 Superior Ct. (Cincinnati) 204. 
 
 s Insurance Co. of N. A. v. McDowell, 50 111. 120. 
 182 
 
CH. VI.] SUBJECT-MATTER. — INSURABLE INTEREST. [§ 103 
 
 does not appear that the prohibition rested so much upon 
 the absence of an interest to be protected, as upon some 
 vague notion that it is indecorous to attempt to set a price 
 upon the life of a man.^ 
 
 [§ 102 A. What is an Insurable Interest in a Life. — To 
 have an insurable interest in the life of another one must be 
 a creditor or surety, or be so related by ties of blood or mar- 
 riage as to have reasonable anticipation of advantage from 
 his life.^ Whenever there is such a relationship that the 
 insurer has a legal claim on the insured for services or sup- 
 port, or when from the personal relations between them the 
 former has a reasonable right to expect some pecuniary ad- 
 vantage from the continuance of the life of the other, or to 
 fear loss from his death, an insurable interest exists.^ And 
 again, " It is not easy to define with precision what will in 
 all cases constitute an insurable interest, so as to take the 
 contract out of the class of wager policies. It may be stated 
 generally, however, to be such an interest, arising from the 
 relations of the party obtaining the insurance, either as 
 creditor of or surety for the assured, or from ties of blood 
 or marriage to him, as will justify a reasonable expectation 
 of advantage or benefit from the continuance of his life. It, 
 is not necessary that the expectation of advantage should be 
 always capable of pecuniary estimation, for a parent has 
 an insurable interest in the life of his child. . . . Natural 
 affection in cases of this kind is considered more power- 
 ful in protecting the life of the insured than any other 
 consideration. " *] 
 
 § 103. Sister in Life of Brother in loco parentis. — In Lord 
 V. Dall, supra, the court not only found no difficulty in hold- 
 ing that one person may have an insurable interest in the 
 life of another, but, in determining under what circum- 
 stances that interest may exist, laid down important prin- 
 
 1 Lord V. Dall, ]2 Mass. 115, decided in 1815. 
 
 2 [Appl. of Corson, 113 Pa. St. 438 ; Keystone Mut. Ben. Ass. v. Norris, 115 
 Pa. St. 446 ; United Brethren Mut. Aid Soe. v. McDonald, 122 Pa. St. 324, 
 (stepson and stepfather as such no insxirable interest).] 
 
 Si [Rombach v. Piedmont, &c. Life Ins. Co., 35 La. An. 233.] 
 * [Warnock v. Davis, 104 U. S. 779.] 
 
 183 
 
§ 103 A] insurance: fire, life, accident, etc. [ch. vi. 
 
 ciples which have since been generally approved, and led, 
 and are leading, to a great enlargement of the ca,talogue of 
 insurable interests. In that case the policy was effected by 
 the plaintiff upon the life of her brother, who was about to 
 embark on a voyage to South America, or elsewhere, from 
 Boston. The insurance was for $5,000 for seven months, 
 and the premium paid was one per cent per month. The 
 plaintiff was a young female, without property, and had 
 been supported and educated at thiP expense of the brother, 
 who stood towards her in loco parentis. Nothing could show 
 a stronger affection of a brother, said the court, for a sister, 
 than that he should be willing to give a large sum to secure 
 her against the contingency of his death, which would other- 
 wise have left her in absolute want ; and no one could hesi- 
 tate to say that in the life of such a brother the sister had 
 an interest. They were well satisfied that the interest of 
 the plaintiff in that case, in the life of her brother, was of 
 a nature to entitle her to insure it, observing, that the inter- 
 est of a child in the life of a parent, except the insurable 
 one, which may result from the legal obligation of the par- 
 ent to save the child from becoming an object of charity,^ is 
 as precarious as that of a sister in the life of an affectionate 
 brother. For if the brother may withdraw all support, so 
 may the father, except as above stated. And yet a policy 
 effected by a child upon the life of a father, who depended 
 upon some fund, terminable by his death, to support the 
 child, would never be questioned, although much more 
 should be secured than the legal interest which the child 
 had in the protection of his father. 
 
 [§ 103 A. Daughter ; Granddaughter ; Nephew ; Son-in-law. 
 — A daughter cannot insure the life of her mother unless 
 she has a pecuniary interest in it.^ (a) A granddaughter has 
 
 1 The observation of Bayley, J., in Halford o. Kymer, that it was a matter 
 of indifference to the father whether he was supported by the son or by the 
 parish, entirely overlooked the ground of expectation arising out of affection 
 and filial duty. 
 
 2 [Continental Life Ins. Co. v. Volger, 89 Ind. 572.] 
 
 (a) One who is by statute made son and mother under the statutes of 
 liable for the support of another, as Illinois, has not an insurable interest 
 
 184 
 
CH. VI.] SUBJECT-MATTER. — INSUKABLB INTEREST. [§104 
 
 not, as such, any insurable interest in the life of her grand- 
 father. ^ (a) A "nephew has not, as such, an insurable inter- 
 est in the life of an aunt.^(6) A son-in-law has no insurable 
 interest in the life of his mother-in-law,^ (c) and her exe- 
 cutor can recover the funds from the son's assignee.*] 
 
 § 104. Father in Life of Son. — As to what constitutes an 
 insurable interest under a life policy, we may observe, as 
 has heretofore been observed with reference to fire insur- 
 ances, that the tendency of the courts has been from strict- 
 ness to liberality. It was early intimated, if not expressly 
 held, that the interest must be a pecuniary interest, and 
 therefore a father could not insure the life of his son. The 
 value of the interest in such a case, said the court, is not a 
 farthing.^ The case was that of a minor son, upon whose 
 arrival at his majority depended the vesting of a large sum 
 of money under a settlement. The insurance was for two 
 years, the minor being nineteen and a few months at the 
 time the insurance was effected, and the object was to guard 
 against the failure of the settlement to vest, in case of the 
 death o'f the minor before his majority. As the money 
 was to go to the son if he lived, doubtless the father had no 
 direct pecuniary interest in that. The plaintiff pressed the 
 point, however, on the ground that he had an interest in the 
 
 1 [Burton v. Conn. Mut. Life Ins. Co., 18 Ins. L. J. 713 ; 19 Ins. L. J. 75 
 (liid.), May, 1889.] 
 
 2 [Appl. of Corson, 113 Pa. St. 438.] 
 
 * [Rombach v. Piedmont, &c. Life Ins. Co., 35 La. An. 233.] 
 
 * [Stambaugh u. Blake, 1 Monaghan (Pa.), 609. In this case a curious effort 
 was made to prove that the son supported the mother-in-law, as though that gave 
 him an interest in her life.] 
 
 6 Halford v. Kymer, 10 B. & C. 725. 
 
 in such other's life, in the absence of of her stepmother. Albert u. Mutual 
 any right to services or maintenance. L. Ins. Co., 122 N. C. 92. 
 People's Mut. Benefit Society v. Tem- (c) Stambaugh v. Blake, 1 Monaghan 
 pleton, 16 Ind. App. 126. (Pa.), 609. One may have an insur- 
 
 (a) Burton v. Conn. Mut. L. Ins. able interest in the life of a step-sister 
 Co., 119 Ind. 207. whom he has agreed to care for and help 
 
 (6) Nor has an uncle in the life of maintain. Barnes v. London, &o. Ass. 
 his minor nephew whom he supports : Co., [1892] 1 Q. B. 864. That a parent 
 Prudential Ins. Co. v. Jenkins, 15 Ind. now has an insurable interest in his 
 App. 297 ; nor has a woman in the life child's life, was hel'd in Wakeman v, 
 
 Met'n L. Ins. Co., 30 Ontario, 705. 
 185 
 
§ 105] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 services of his son, and upon the further ground that in case 
 of need the son would be bound to support him. The court 
 seemed to rely upon Innes v. The Equitable Assurance Com- 
 pany, cited by Mr. Justice Bayley, as having been tried be- 
 fore Lord Kenyon,^ where the plaintiff, in order to show an 
 interest in the life of his daughter, offered a will by which 
 he was to receive a certain sum of money contingent upon 
 the life of his daughter. The will was proved to be a for- 
 gery, however, and apparently the defendants had a verdict 
 on that ground. There was no discussion of the question 
 whether an insurable interest existed on other grounds, but, 
 as Lord Tenterden says, it was in effect admitted in that 
 case that it was necessary to prove that the father had a 
 pecuniary interest in the life of his daughter. 
 
 § 105. But the law has been held differently in this coun- 
 try, and it has been determined that though a father, as 
 such, may have no insurable interest, resulting merely from 
 that relation, in the life of a child of full age, yet if that son 
 is a minor of such age as to render valuable services, and to 
 whom advances have been made, there can be no doubt of 
 the father's insurable interest in his life. The father is 
 entitled to the earnings of such child, and may maintain an 
 action for their recovery. So he may maintain an action 
 for the loss of his services if the child be injured. Hence 
 he has a pecuniary interest which the law will protect and 
 enforce.^ Nor is it easy to see why, upon the principles 
 laid down in Lord v. Ball, and stated in the plaintiff's argu- 
 ment in Halford v. Kymer,^ by reason of the relationship 
 and its attendant rights and obligations, an aged father, no 
 longer capable of self-support, and actually supported by his 
 son who has passed his majority, and who both by natural 
 affection and by law is bound to contribute to his support, 
 has not an insurable interest in the life of that son. It is 
 
 ^ This case is not reported ; but it is referred to and stated most fully in 4 
 Lon. Law Mag. 373, where Lord Tenterden is reported to have said, at the argu- 
 ment in Halford v. Kymer, that they could not give judgment for the plaintifi 
 without flying in the teeth of the case tried J)y Lord Kenyon. 
 
 2 Mitchell V. Union Life Ins. Co., 45 Me. 104. 
 
 8 10 B. & C. 725. 
 186 
 
CH. VI.] SUBJECT-MATTER. — INSUEABLE INTEREST. [§106 
 
 precisely this natural affection, combined with the legal 
 obligation to support, which by universal consent gives to 
 the child an insurable interest in the life of the father. A 
 son arrived at his majority may, in point of fact, have no 
 need of his father's assistance, but the legal obligation of 
 the parent to save the child from becoming an object of 
 public charity gives to the child an insurable interest in the 
 father. The same legal obligation of the child towards the 
 father ought to give the father the like interest in the life of 
 the child. 
 
 § 106. And to this extent the following case in Massa- 
 chusetts would seem to go, though it was not necessary so to 
 decide upon the facts in the case, which were as follows : — ■ 
 
 On the 2d day of February, 1849, the plaintiff's intestate 
 insured for seven years the amount of i$700 on the life of a 
 minor son who was about to proceed to California, and who 
 would become of age on the 6th day of the following Janu- 
 ary. The wages of the son had been taken by the father and 
 appropriated to the support of the family. It was agreed 
 between the son and a third person who had advanced him 
 money with which to prosecute the enterprise that that third 
 person should receive one-half his net earnings. To this 
 agreement the father assented; he also provided an outfit 
 for the son. The son died on board ship on the 1st day of 
 December, 1849, soon after his arrival in California. It 
 was held that the father had an insurable interest at the 
 time of such minor son's death. ^ And the same doctrine 
 was more recently directly asserted in Pennsylvania. ^ 
 
 1 " We understand," said the court, "that the law of Connecticut, where the 
 parties resided, is similar to that of Massachusetts, and that by the law of both 
 States a father who supports, maintains, and educates a son under twenty-one 
 years of age, and not emancipated, is entitled to the earnings of such son, and 
 may maintain an action for thena. Here, where the father had in terms relin- 
 quished his right to a share in the son's earnings for a valuable stipulation on the 
 other side, designed and intended to increase those earnings, by a necessary im- 
 plication he reserved his right to the other share of those earnings. According to 
 any, the strictest, rule of construction, the assured, we think, had a direct and 
 pecuniary interest in the life of the cestui que vie, his son. It is argued that the 
 
 2 Reserve Life Ins. Co. o. Kane, 81 Pa. St. 154. See also Connecticut Mut, 
 Life Ins. Co. v. Schaefer, 94 U. S. 457. 
 
 187 
 
§ 107'] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [ CH. VI. 
 
 § 107. Still it may not be safe to advance from the cases 
 just stated to the general propositions that a father may in- 
 sure the life of any minor child, and that a sister may in- 
 sure the life of any brother. In one case,i in reply to the 
 
 time which would remain after his probable arrival in California, before bejioming 
 of age, would be so short that his -earnings, if anything, would be very small. 
 Supposing he was to have a passage of three or five months, he might still have 
 five or six months to work in California ; and this being a contract dealing with 
 chances and probabilities, and even possibilities, and to be construed as such, it 
 may well be supposed that the parties had it in contemplation that by working a 
 few weeks or days in a gold-mine, or by a lucky hit in a single day, he might 
 gain gold enough to make his share exceed the whole sum insured. But nearness 
 or remoteness of this chance is immaterial ; the parties regulate this matter for 
 themselves, in fixing the sum to be insured and the rate of premium. It seems 
 to us, therefore, that, according to the rule relied on by the defendants, the 
 assured in the present case had a direct and pecuniary interest in the life of the 
 son, sufficient to enable him to maintain this action. 
 
 " But, upon broader and larger grounds, we are of opinion that, indepen- 
 dently of the fact that the son was a minor, and the assured had a pecuniaiy 
 interest in his earnings, the assured had an insurable interest suflBcient to main- 
 tain this action. 
 
 " The case in this State must be governed by the rules and principles of the 
 common law, there being no regulation of the subject by statute ; and the stat- 
 ute of 14 Geo. III. c. 48, passed about the time of the commencement of the 
 Revolution, never having been adopted in this State. All, therefore, which it 
 seems necessary to show, in order to take the case out of the objection of being a 
 wager policy, is that the insured has some interest in the life of the cestui que vie; 
 that his temporal affairs, his just hopes, and well-grounded expectations of 
 support, of patronage, and advantage in life will he impaired ; so that the real 
 purpose is not a wager, but to secure such advantages, supposed to depend upon 
 the life of another ; such, we suppose, would be sufficient to prevent it from being 
 regarded as a wager. Whatever may be the nature of such interest, and whatever 
 the amount insured, it can work no injury to the insurers, because the premium 
 is proportioned to the amount ; and whether the insurance be to a large or small 
 amount, the premium is computed to be a precise equivalent for the risk taken. 
 Perhaps it would be difficult to lay down any general rule as to the nature and 
 amount of interests which the assured must have. One thing may be taken as 
 settled, — that every man has an interest in his own life to any amount at which 
 he chooses to value it, and may insure it accordingly. 
 
 "We cannot doubt that a parent has an interest in the life of a child, and, 
 vice versa, a child in the life of a parent ; not merely on the ground of a provision 
 of law that parents and grandparents, children and grandchildren, are bound to 
 support their lineal kindred when they stand in need of relief, but upon con- 
 siderations of strong morals and the force of natural affection between near kin- 
 dred, operating often more efficaciously than those of positive law." Loomis, 
 Adm'r, v. Eagle Life & Health Ins. Co., 6 Gray (Mass.), 396, opinion per Shaw, 
 C. J. ; Hoyt u..New York Life Ins. Co., 3 Bosw. (N. Y. Superior Ct.) 440 ; 
 Miller v. Eagle Life & Health Ins. Co., 2 E. D. Smith (N. Y. C. P.), 268; 
 Williams v. Wash. Life Ins. Co., 31 Iowa, 541. 
 
 1 Mitchell V. Union Life Ins. Co., 45 Me. 104. 
 188 
 
CH. VI.J SUBJECT-MATTEK. — INSURABLE INTEREST. [§107 
 
 objection that the policy was unsupported by any insurable 
 interest, evidence was offered that the father had furnished 
 supplies and money to his son who was about to proceed to 
 California, and the fact of these advances seems to have 
 been regarded by the court as a matter of significance. In 
 another case,i substantially the same facts existed, with the 
 additional fact that the father had usually received the earn 
 ings of his son, and had specially reserved a portion of them, 
 during the currency of the policy. Upon this latter fact the 
 court laid considerable stress, and held only that in that 
 case the plaintiff had an insurable interest. In the third 
 case,^ the court emphasize the fact that the sister had been 
 supported and educated by the brother, and add, that no one 
 would hesitate to say that in the life of such a brother the 
 sister had an interest. And afterwards,^ in speaking of 
 Lord V. Dall, the same court say that that case held that the 
 insurable interest might be inferred from particular circum- 
 stances. So that it is by no means certain that were the 
 circumstances different, — as, for instance, if the fa.ther 
 were to insure for one year the life of an infant son, or if 
 the son were to insure the life of a decrepit and pauper 
 father, or a sister were to insure the life of a brother incap- 
 able or indisposed to assist her, there being in either case 
 no well-founded expectation of pecuniary advantage from the 
 continuance of the lives, or risk of loss from their termina- 
 tion, — the courts would see in such circumstances any in- 
 terest which would support a policy. The relationship, 
 therefore, seems to be of little importance, except as tend- 
 ing to give rise to the circumstances which justify the 
 expectation. Indeed, the doctrine of the latest of the Mas- 
 sachusetts cases before cited is broad enough to cover a case 
 where there is no relationship at all, save one perhaps of 
 mere friendship, if the circumstances are such as to show 
 that the loss of the insured life will probably result in 
 pecuniary disadvantage to the person procuring the iusur- 
 
 1 Loomis, Adm'r, o. Eagle Life & Health Ins. Co., 6 Gray (Mass.), 396. 
 
 2 Lord V. Dall, 12 Mass. 115. 
 
 3 Loomis, Adm'r, v. Eagle Life & Health Ins. Co., uM supra. 
 
 189 
 
§ 107] IXSURANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 ance. Upon the whole, however, it yet remains to be de- 
 cided whether mere relationship, with its attendant rights 
 and obligations, as between father and son reciprocally, is a 
 sufficient foundation upon which to rest an insurable interest. 
 
 (s) The cases decided since the first edition of this work 
 was published are not perhaps in entire accordance with 
 each other. On the one hand, it has been distinctly held 
 that m.ere relationship of father and son did not give the 
 son an insurable interest, " where both pafrties are of mature 
 years, and live apart, in independent pecuniary circum- 
 stances, and mutually entirely independent of each other, 
 and having no business relations with each other." ^ So one 
 brother has been held to have no insurable interest in the 
 life of another on the mere ground of relationship.^ Per- 
 haps both cases may fairly be considered as deciding only 
 that such a relationship does not give an insurable interest 
 when the other facts and circumstances show that the policy 
 was a mere speculation.^ The case of Insurance Company 
 V. Bailey^ is not regarded by the Supreme Court of Illinois 
 as going any further than this. In Singleton v. St. Louis 
 Mutual Life Insurance Company,^ a nephew was held to have 
 no insurable interest, by mere relationship, in the life of an 
 uncle. 
 
 (t) On the other hand, mere relationship seems to have 
 been held sufficient to support a policy on the life of a son 
 in favor of the mother, in Reif v. Union Mutual Life Insur- 
 ance Company;^ and on the life of a brother in favor of a 
 sister.'^ So it was held in Kane v. Reserve Mutual Life In- 
 surance Company.^ A sister who is also a creditor has an 
 
 1 Guardian Mut. Life Ins. Co, v. Hogan, 80 111. 35. 
 
 2 Lewis V. PhcEnix Mut. Life Ins. Co., 39 Conn. 100. 
 
 3 See also Cammack v. Lewis, ]5 Wall. (U. S.) 643. 
 
 4 13 Wall. (U. S.) 616, 619. 
 
 5 66 Mo. 63. 
 
 " Superior Court, Cincinnati, at Nisi Prius, 17 Ins. Chronicle, p. 3. 
 
 ' Mtnn Life Ins. Co. v. France, 94 U. S. 661. See also Conn. Mut. Life Ins. 
 Co, V. Schaefer, 94 U. S. 457. 
 
 8 9 Phila. 234. But see same case in Supreme Court, 81 Pa. St. 151, where 
 it is said that the relationship prevents the policy from being a mere wager, as 
 under the poor-laws the son may have to support the father. 
 190 
 
CH. VI.] SUBJECT-MATTER. — INSURABLE INTEREST. [§107 5 
 
 insurable interest in the life of her brother beyond the 
 debt.i 
 
 § 107 a. Loss ; Feme Sole under Contract of Marriage. — 
 In Chisholm v. National Capital Life Insui-ance Company, 
 the plaintiff, who was the betrothed of one Clark, and for 
 whom he had taken out a policy on his life, payable to her, 
 was allowed to recover. The insurable interest at the incep- 
 tion of the contract was sufficient, if any were necessary, of 
 which the court intimated a doubt, in the absence of evidence 
 tending to show the contract was a wagering one, or against 
 public policy. The plaintiff had an interest in the life of Clark, 
 as a valid contract of marriage was subsisting between them. 
 Had he lived and violated the contract, she would have had 
 her action for damages ; had he observed and kept the contract, 
 then as his wife she would have been entitled to support. ^ 
 
 The question, what is such an interest in the life of an- 
 other as will support a contract of insurance upon the life, 
 is one to which a complete and satisfactory answer, resting 
 upon sound principles, can hardly yet be said to have been 
 given. As the premium is intended to be a precise equiva- 
 lent for the risk taken, it would seem that the contract is a 
 just and equitable one, whether any interest in the life 
 exists or not; and that the only essential inquiry is, whether 
 the object of the contract is such as to obviate the objections 
 to a mere wager upon the chances of human life.^ 
 
 § 107 h. Wife in Husband. — Of course, and for similar 
 reasons, the wife has an insurable interest in the life of her 
 husband.* And it has been held that a divorce obtained at 
 the instance of the wife, for whose benefit the life of the 
 husband has been insured, will not deprive the wife, who 
 has children and supports them, of a right to recover. The 
 
 1 Goodwin v. Mass. Mut. Life Ins. Co., 73 N. Y. 480. 
 
 '^ 52 Mo. 213. But see this case commented upon and limited in Singleton v. 
 St. Louis Mut. Life Ins. Co., 66 Mo. 63. 
 
 8 Forbes v. American Mut. Life Ins. Co., 15 Gray (Mass.), 249. Substan- 
 tially the same observation was made in Anderson v. Morice, 25 W. R. 14, as 
 to insurable interests generally. 
 
 4 Baker v. Union Mut. Life Ins. Co., 43 N. Y. 283 ; St. John v. American 
 Mut. Life Ins. Co., 2 Duer (N. Y.), 419 ; Gambs v. Covenant Life Ins. Co., 60 
 Mo. 44. See also Eeed v. Royal Ex. Ass. Co., Peake's Ad. Cas. 70. 
 
 191 
 
§ 108] IiNSURANOE : FIKE, LIFE, ACCIDENT, ETC. [CH, VI. 
 
 insurable interest remains sufficient to support the policy. 
 Although divorced, the children whom she is supporting 
 may look to the father for support. That the care and cus- 
 tody of the children are decreed to her does not extinguish 
 the obligation of the father to provide for them. And he 
 also may be required by the court to contribute by way of 
 alimony, or otherwise, to the support of his former wife.i 
 And it seems that a woman living unlawfully with a man as 
 his wife, and treated and supported by him as such, has an 
 insurable interest in his life.^ 
 
 [§ 107 C. Husband in Wife's Life. — The presumption is 
 that a husband has an insurable interest in the life of his 
 wife. He is entitled to her service and companionship. 
 She may be a burden, as, if she is a hopeless maniac or in- 
 valid, and such facts when shown may require a different 
 rule, but in the absence of such evidence the husband as 
 such has an insurable interest.^ The objection that the 
 plaintiff had no insurable interest comes with very bad grace 
 from a company that has received two or three thousand dol- 
 lars of the plaintiff's money on a policy issued with knowl- 
 edge of the very facts which it objects to now as insufficient 
 to create an insurable interest.^] 
 
 § 108. Creditor in Debtor. — That a Creditor has an insur- 
 able interest in the life of his debtor was adjudged in a very 
 early case. The means by which the debt is to be satisfied 
 may very materially depend upon the continuance of the life 
 of the debtor, and at all events the death of the debtor must 
 in all cases in some degree lessen the chances of payment.^ 
 The point was made also in a very early case that, if the 
 debtor was an infant who might interpose as against his 
 creditor the plea of infancy, this contingency took the debt 
 out of the category of insurable interests. But though the 
 
 1 McKee v. Phoenix Ins. Co., 28 Mo. 383. See also post, § 391. 
 
 2 Equitable Life Assurance Soc. v. Paterson, 41 Ga. 338. And see post, § 305. 
 8 [Currier v. Continental Life Ins. Co., 67 Vt. 496, 500.] 
 
 4 Ibid, 
 
 s Anderson v. Edie, Park, Ins. 432. [A creditor has an insurable interest also 
 in the life of his debtor. Amick v. Butler, 111 Ind. 678; Parks o. Conn. Ins, 
 Co., 26 Mo. App. 511.] 
 192 
 
OH. VI.] SUBJECT-MATTER. INSURABLE INTEREST. [§108 
 
 point was not decided, it was strongly intimated that the 
 debt, till avoided, must be taken as the debt of an adult, as 
 against a third person, since the debtor only could take the 
 objection. 1 The debt is not void, but only voidable, and if 
 for necessaries not even that.^ Upon the same principles, 
 if the debt be one to which the Statute of Limitations might 
 be pleaded at the time of the death of the debtor, it never- 
 theless constitutes an interest which will support a policy. 
 A debt still exists. It is not extinguished by the currency 
 of the statute, as in the case of payment. It may be revived 
 by a new promise, and indeed without such promise be en- 
 forced by action, unless the defence of the statute be inter- 
 posed. The law does not presume that a new promise will 
 be refused or the defence of the statute interposed.^ And 
 there can be no doubt that the same would be the case, 
 though the statute had run against the debt at the time of 
 the insurance, and for the same reasons. So has an execu- 
 tor an insurable interest in the life of his testator's debtor.* 
 
 But though the law will allow a creditor to protect him- 
 self by insuring the life of the debtor, the insurance will not 
 be supported, if it appears from the great disparity between 
 the debt and the amount insured, or otherwise, that the 
 transaction is rather one of speculation than of protection.^ 
 
 [The creditor is only entitled to indemnity. If the debt 
 and all premiums and expenses are paid to him, the insur- 
 ance inures to the benefit of the debtor or his sureties.^' 
 
 1 Dwyer v. Edie, Park, Ins. 432. See also ante, § 80. 
 
 2 Pavers, Adni'r, v. Gregg, 5 Rich. Eq. (S. O 274. 
 
 s Rawls V. American Mut. Life Ins. Co., 27 N. Y. (13 Smith) 282, affirming 
 s. c. 36 Barb. (N. Y.) 357. And see post, § 117, n. 
 
 * Garner v. Moore, 3 Drewry, 277. 
 
 6 Fox V. Pennsylvania Mut.' Life Ins. Co., Dist. Ct. of Phila. ; a. c. 4 Big. L. 
 & A. Ins. Cas. 458. The verdict in the case for the plaintiff was set aside. [A 
 creditor for |300 who had paid about $500 on abandoned policies on the life ot 
 his debtor, insured it again for $3000 and received the whole amount, which the 
 courts allowed him to hold against the representatives of the debtor, on the 
 ground that the evidence did not show the insurance to be merely collateral, that 
 the disproportion did not render the policy a wager, and that it was neither 
 illegal nor immoral for the creditor to assure the sums he had fruitlessly paid on 
 other policies on the same life, as well as the debt. Grant's Adm'rs v. Kline, 115 
 Pa. St. 618.] 
 
 6 [See 100 A, 117, and ch. 24.] 
 
 VOL. I. — 13 193 
 
§ 109] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VI 
 
 When a debtor and a surety entered into a bond to secure 
 payment by instalments of a debt, and the expenses of effect- 
 ing a policy on the debtor's life as a collateral security, and 
 when after a time the creditor was obliged to pay the pre- 
 miums, as neither debtor nor surety would do so, it was held 
 on the death of the debtor that it still accrued to the benefit 
 of the surety on repayment of the amounts paid by the cred- 
 itor. ^ But a creditor who, acting for himself and not under 
 agreement with or as agent of the debtor, insures the life of 
 his debtor, will not have his right to recover affected by a 
 subsequent payment of the debt.^ The premium as well as 
 the debt must be paid to destroy his claim, and that cannot 
 be done by the company. It has received payment for the 
 risk and cannot escape it. 
 
 No only one who is a creditor, but one who has entered into 
 an obligation which may make him a creditor on a certain con- 
 tingency has an insurable interest. A surety on an official 
 bond has an insurable interest in the life of the obligor.?] 
 
 § 109. Modes of Insurance on Debtor's Life. — The life 
 of a debtor may be insured in two ways. The debtor may 
 insure to an amount beyond the debt for the benefit of his 
 creditor, and payable in case of loss to the creditor, in trust, 
 first to pay the debt, and then to pay the balance to such 
 parties as the debtor may designate;* or the creditor may 
 insure the life of his debtor to the amount of the debt, pay- 
 able to himself in case of loss. And if a creditor without 
 fraud, and in ignorance of the law, insures the life of his 
 debtor for a larger amount than the debt, he may recover 
 back the excess of premium.^ The creditor may also insure 
 the life of one of two joint makers of a note, although the 
 other be entirely able to pay the debt, and the estate of the 
 insured be solvent; and he may recover the whole amount 
 insured.^ And if the creditor be a firm and the debtor be a 
 
 1 [Drysdale v. Pigot, 8 De G. M. & G. 546.] 
 
 2 [Ferguson v. Mass. Mut. Life Ins. Co., 32 Hun, 306.] 
 8 [Scott V. Dickson, 108 Pa. St. 6.] 
 
 4 American Life & Health Ins. Co. v. Robertshaw, 26 Pa. (2 Casey) 189. 
 
 5 London, &c. Life Ins. Co. v. Lapierre, Q. B. (L. C.) 1878, 8 Ins. L. J. 79. 
 
 6 Morrell v. Trenton Mut. Life & Fire Ins. Co., 10 Cash. (Mass.) 282. 
 
 194 
 
CH. VI.] SUBJECT-MATTER. — INSURABLE INTEREST. [§ 109 h 
 
 firm, each member of the creditor firm has an insurable in- 
 terest in the life of each member of the debtor firm.' 
 
 § 109 a. Partner in Copartners. — A case of SOme novelty 
 in its facts has been before the courts of New York, recog- 
 nizing an insurable interest in services agreed to be ren- 
 dered. Three persons entered into a copartnership, two of 
 them putting in the cash capital, and the third, who under- 
 stood the business, putting in his skill as against the capi- 
 tal of the other two. And it was held that the two putting 
 in their capital had an insurable interest in the life of the 
 other, as his death would deprive them of his skill and ser- 
 vices contributed to the common stock in lieu of cash capi- 
 tal. ^ (a) [Where A. and B. went into partnership with a 
 capital of S10,000, and A. furnished B.'s half, A. was held 
 to have an insurable interest in B.'s life to the extent of the 
 moiety of the capital, without respect to the state of partner- 
 ship accounts and profits, unless the estimate of his interest 
 at the time of the application was made in bad faith. ^] 
 
 § 109 h. Interest in Future Earnings of the Insured under a 
 Contract. — Somewhat analogous to the relation of debtor 
 and creditor is that of a party who advances funds to an- 
 other to enable him to prosecute an enterprise, under the 
 agreement that the party so advancing the funds shall be 
 entitled, in consideration therefor, to a portion of the profits 
 
 1 Rawls V. American Life Ins. Co., 36 Barb. (N. Y.) 347 ; s. 0. 27 N. Y. (13 
 Smith) 282. 
 
 2 Valton V. National Loan Fund Life Assurance Soc, 22 Barb. (X. Y.) 9. 
 The case subsequently went to the Court of Appeals (20 N. Y. 32), where the 
 judgment of the court below was affirmed. 
 
 3 [Conn. Mut. Life Ins. Co. v. Luchs, 108 U. S. 498, 505, 508.] 
 
 (a) A partner has no necessary in- v. Anders, 87 Texas, 287. See Powell 
 
 surable intei'est in the life of his co- v. Dewey, 123 'S. C. 103. "Where a 
 
 partner : Powell v. Dewey, 123 N. G. partner misappropriated money of the 
 
 103 ; or in the latter's household furni- firm and applied it to the purchase of 
 
 ture. Georgia Home Ins. Co. v. Hall, policies on his life for the benefit of his 
 
 94 Ga. 630. A partnership's insurable wife, the firm was held entitled, on the 
 
 interest in the life'of one of its members, death of the partner, to recover the en- 
 
 who is not indebted to it, is limited to tire amount of insurance, it having been 
 
 such premiums on his policy as are paid purchased exclusively with their money, 
 
 out of the firm assets and interest there- and not merely the premiums paid, 
 
 on, his heirs or legal representatives Holmes v. Oilman, 138 N. Y. 369. 
 being entitled to the residue. Cheeves 
 
 195 
 
§ 109 b] insurance: fike, life, accident, etc. [CH. VI. 
 
 of the enterprise accruing within a certain time. Here there 
 is no debt, but only an obligation to pay over a portion of 
 the profits earned within a certain period, if any shall be 
 earned. This kind of contract was frequent in the early 
 days of the Californian gold excitement, and it has been 
 frequently held that such a contract gave the party furnish- 
 ing the advance and outfit an insurable interest in the life 
 of the person who was to prosecute the enterprise. ^ The 
 amount of the insurable interest in such cases must be left 
 to the determination of the parties. It does not depend at 
 all upon the amount of advances and the cost of outfit. Of 
 course the amount of earnings or profits which may be 
 acquired in such cases is wholly conjectural, and whatever 
 the amount agreed upon by the parties in good faith may be, 
 this will be taken to be the value of the interest in case of 
 loss, as upon a valued policy, which the plaintiff will be 
 entitled to recover. There seems to be no limit to the 
 amount which may be fixed as the value of the loss. If the 
 party effecting the insurance, under the influence of exag- 
 gerated expectations, is desirous to fix the prospective 
 profits at a large sum, and is willing to pay proportionably 
 in the shape of premiums, there seems to be no reason why 
 the insurers should not accept the obligation. It is the 
 same thing to them, so far as the risk is ccmcerned, whether 
 they take a small risk or a large one, except that, if there is 
 a profit on the small one, there will be a proportionably 
 greater profit on the larger one.^ It may be presumed, 
 however, that, if the valuation should be fixed at so large a 
 sum as to warrant the belief that the transaction was merely 
 a cover and with intent to evade the law, the courts would 
 hold such a policy void as a wager. ^ If it be objected that 
 such an interest is analogous to the case of expected profits, 
 
 1 Bevin u. Connecticut Mut. Life Ins. Co., 23 Conn. 244; Morrell v. Trenton 
 Mut. Life & Fire Ins. Co., 10 Cush. (Mass.) 282 ; Hoyt v. New York Life Ins. 
 Co., SBosw. (N. Y. Sup. Ct.) 440; Miller v. Eagle Life & Health Ins. Co., 
 2 E. D. Smith (N. Y. C. P.), 268 ; Trenton Mut. Life & Fire Ins. Co. o. Johnson, 
 4Zab. (N". J.) 576, 577. 
 
 2 Ibid. 
 
 ^ Miller v. Eagle, &c. Ina. Co., vbi supra. See also Wainewright v. Bland, 5 
 Moody & Rob. 481 ; Fox v. Penn., &o. Ins. Co., ante, § 108. 
 
 196 
 
CH. VI.] SUBJECT-MATTER. — INSUEABLE INTEREST. [§ 109 C 
 
 and that such are not insurable unless insured specifically, 
 it is to be replied that an insurance upon a life is not an 
 insurance of the life ; it is rather an insurance of the bene- 
 fits to result to the insured from the continuance of the life. 
 These are all that render the life valuable to him. No 
 pecuniary value can be set upon the life as upon property. 
 Life cannot be the subject of valuation and sale. Labor and 
 services, or the proceeds thereof, may be. A wife recovers 
 upon an insurance on her husband's life, in view of the 
 benefits to result to her from the continuance of his life ; not 
 because the life is of any value, irrespective of its devotion 
 to her support and maintenance. A creditor recovers upon 
 the death of his debtor, not because the life of the deceased 
 was worth the amount of the debt, but because the expecta- 
 tion of payment of the debt is destroyed or impaired by the 
 death. The insurance upon a life is in itself in the nature 
 of an insurance upon profits. The very idea of a pecuniary 
 interest in the life of another involves a claim, not to the 
 life itself, but to some benefit resulting from or growing out 
 of that life, and — except in the case of an annuity, deriv- 
 able from some other source, but to endure only while the 
 life shall continue — it involves also a claim upon the profits 
 or proceeds accruing from the employment and effoi'ts of the 
 person whose life is the subject of the insurance. An insur- 
 ance, therefore, upon the profits of a life specifically, would 
 involve no idea that is not, from the necessity of the case, 
 embraced in an insurance in terms upon the life itself. ^ 
 
 § 109 0. Employe in Employer ; Master and Servant. — It 
 is a very common thing in England for a clerk to insure the 
 life of his master. If the clerk has a contract for service 
 for a number of years at an annual salary, he has an insur- 
 able interest in the life of his employers to the amount 
 which will be payable to him for the unexpired portion of 
 his term, provided he continue in the service.^ So a master 
 
 I Per Woodruff, J., Miller v. Eagle Life & Health Ins. Co., 2 E. D. Smith 
 (N. Y. C. P.), 268. 
 
 ^ Hebdon v. West, 3 Best & Smith, 578. This case was that of a clerk who, 
 standing in the relation of a debtor to his employer, his employer having prom- 
 ised that while he lived the ulerk should uot be called upon to pay, took out a 
 
 197 
 
§ 110] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 has an insurable interest in the life of a servant, to whose 
 services he has a legal claim. ^ 
 
 § 110. Interest of Assignee. — The general rule recognized 
 by the courts is, that no one can have an insurance upon the 
 life of another unless he has an interest in the continuance 
 of the life, (a) To hold otherwise would be contrary to the 
 general policy of the law respecting insurance, in that it 
 may lead to gambling or speculating contracts upon the 
 chances of human life. And although when the contract 
 between the insured and the insurers is expressed to be for 
 the benefit of another, ^ or is made payable to another than 
 the representative of the insured,^ or when an assignment to 
 such other person is assented to by the insurers, the contract 
 may be sustained ; yet, if the assignee has no interest in the 
 life of the subject of the insurance which would sustain a 
 policy to himself, the assignment would only take effect as 
 a designation, by mutual agreement of the contracting par- 
 ties, of the person who should be entitled to receive the pro- 
 ceeds, when due, instead of the personal representatives of 
 the insured. And if it should appear that the arrangement 
 was a cover for a speculating risk, contravening the general 
 policy of the law, it would not be sustained. The purpose of 
 the clause in the policy, forbidding assignments without the 
 
 policy of insurance on the Hfe of the creditor to the amount of the debt. But the 
 court said that this interest in the life of the creditor was ouly an expectation that 
 he would not call for the debt. It was a possibility of forbearance, an attempt to 
 embrace the chance that the creditor would not do what he might do the day after 
 the engagement was made, presenting a contingency not easily susceptible of 
 pecuniary estimation, and they did not think that such a promise, without any 
 consideration, or any circumstances to make it in any way binding, could be con- 
 sidered a pecuniary, or even an appreciable, interest. 
 
 1 Miller v. Eagle Life & Health Ins. Co., 2 E. D. Smith (F. Y. C. P.), 268. 
 
 2 See § 112. 
 
 {a) An assignee of a policy, who has mercial Building Ass'n, 97 Va. 74. In 
 
 no insurable interest in the insured's New York, an insurable interest in the 
 
 life, can only retain so much of the payee is necessary, in the first instance, 
 
 proceeds, where the insurance was law- to the validity of the contract, but such 
 
 fully effected, as is necessary to reim- interest need not continue, as in the 
 
 burse him for premiums paid, expenses case of a wife divorced from her hus- 
 
 inourred, and interest thereon. Beaty band ; and the assignee of a valid policy 
 
 V. Downing, 86 Va. 451 ; New Yoi-k L. may recover its full value. Steinback 
 
 Ins. Co. V. Davis, id. 737 ; Tate v. Com- v. Diepenbrock, 158 N. Y. 24. 
 198 
 
CH. TI.] SUBJECT-MATTER. — INSURABLE INTEEEST. [§111 
 
 assent of the company, in concurrence with the policy of the 
 law, is undoubtedly to guard against the increased risks of 
 speculating insurance. The insurers are entitled to the full 
 benefit of such a provision, as a matter of contract ; and, as 
 the policy of the law accords with its purpose, the court 
 will not regard with favor any rights sought to be acquired 
 in contravention of the provision. ^ 
 
 § 111. Trustee. — A peculiar case, involving the question 
 of what constitutes an insurable interest, arose under the 
 following circumstances: A., upon his marriage, gave a 
 
 1 Stevens, Adm'r, v. Warren, Adm'r, 101 Mass. 56i, 566. The question in 
 this case was whether the assignee of a policy, a stranger without interest, not- 
 withstanding assignment without the consent of the insurer, had any interest in 
 the proceeds ; and it was held that he had not, both upon the ground of the pro- 
 hibition and upon the ground that such a transaction would be against public 
 policy, as a mere speculation. But see Swiok v. Home Ins. Co., 2 Dillon, C. Ct. 
 (U. S.) 160, and post, §§ 112, 398. [Any one may insure his own life and assign 
 the policy to whom he will if the transaction is not a mere cover for a wager. 
 Laugdon v. Union Mut. Life Ins. Co., 14 Fed. Eep. 272 ; 12 Ins. L. J. 548 Mich. 
 (1882) ; ^tna Life Ins. Co. v. France, 94 U. S. 661 ; Conn. Mut. Life Ins. Co. v. 
 Schaefer, 94 U. S. 457 (1876). A person has an insurable interest in his own 
 life, and no use he may afterward make of the policy can convert it into a wager 
 policy. Valton v. Nat. Loan Fund L. Ass. Soc, 22 Barb. 9. But if one having 
 an insurable interest takes out a policy for the purpose of assigning it to one with- 
 out interest, and the purpose is effected, the policy is a wager in the hands of the 
 assignees. Keystone Mut. Ben. Ass. u. Norris, 115 Pa. St. 446. It was held in a 
 Canada Court that if the applicant is unable to pay the premium, and a stranger 
 steps up and pays it and takes an assignment of the life policy, prepared in the 
 name of the applicant, the contract is void in his hands. V&ina v. N. Y. Life 
 Ins. Co., 25 L. C. Jur. 232. But the Supreme Court reversed this, and held that 
 if G. applies for insurance bona fide, and because he is unable to pay the premium 
 L. pays it, and the policy is assigned to him, the payment relates back to the 
 inception of the contract, the date of the policy, and there being no collusion 
 between G. & L. the contract is not a wagering one. Vezina v. N. Y. Life Ins. 
 Co., 6 Can. Supr. Ct. 30, Gwynne, J., dissenting. Contra, it has been held that 
 one without insurable interest can acquire no title by assignment or otherwise to 
 the sum payable on the death of the insured, and if the company pay it to such a 
 person, the administrator of the insured may recover it from him less the assess- 
 ments paid by him. Gilbert v. Moose, 104' Pa. St. 74. A policy on the life of 
 one in which the insured has no interest, is void, and if a policy taken out by one 
 on his own life is assigned to one without insurable interest, the case comes within 
 the reason of the rule, and the policy is valid in the hands of the assignee only to 
 the extent of his insurable interest. Helmetag's Adm'r u. Miller, 76 Ala. 183, 
 186. An assignment to one without interest can put him in no better position 
 than he could be by taking out an original policy. The assignee will not be pro- 
 tected beyond the extent of his insurable interest. Waruock v. Davis, 104 U. S, 
 775.] 
 
 199 
 
§ 112] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 bond to secure £5,000 to his intended wife. Several years 
 after the marriage, A. being in difficulties and unable to 
 perform his bond, it was arranged that his wife should, out 
 of her private income, keep up certain policies to be effected 
 on A. 's life, in which he was to have no further interest 
 than to carry out his bond. In pursuance of this arrange- 
 ment A. insured his life by a policy, one of the conditions 
 of which provided that policies effected by persons on their 
 own lives, who should die by their own hands, should be 
 void so far as regards the executors or administrators of the 
 person so dying, but should remain in force only to the ex- 
 tent of any bona fide interest acquired by any other person 
 under an actual assignment by deed for a valuable consider- 
 ation in money, or by virtue of any legal or equitable lien as 
 a security for money, upon proof of the extent of such inter- 
 est being given to the directors to their satisfaction. The 
 policy, together with the bond for £5,000, was, immediately 
 on its being effected, handed over to T., as a trustee for A.'s 
 wife, in whose hands they always remained. A. 's wife paid 
 the premiums upon the policy in pursuance of the arrange- 
 ment. A. died by his own hands, and a claim was made 
 upon the insurance office by his executors for the amount of 
 the policy, which was resisted. But it was held that T. had 
 a bona fide interest in the policy by virtue of an equitable 
 lien as a security for money within the meaning of the con- 
 dition, and that the executors of A. were therefore entitled 
 to recover.'^ (a) 
 
 § 112. Interest of Payee or Beneficiary. — Whether, where 
 
 1 Moore o. Woolsej', 28 Eng. L. & Eq. 248. "Proof ... to their satisfac- 
 tion " was held to be such proof as they ought to be satisfied with. 
 
 (a) See Cross v. National F. Ins. Co., Brown v. Cotton & Woolen Manuf. Ins. 
 132 N. Y. 133. An assignee for creditors Co., 156 Mass. 587 ; see Weed v. Ham- 
 may insure the property held by him burg-Bremen F. Ins. Co., 133 N. Y. 
 under the assignment. Sibley v. Pres- 394. A judgment creditor, whose at- 
 cott Ins. Co., 54 Mich. 14. A creditor tachment has been followed by the lery 
 has an insurable interest in the estate of execution, begun but not completed, 
 of his debtor when conveyed to an may insure the attached property and 
 assignee in insolvency, but his interest collect on the policy without accounting 
 is not a continuation of his former in- to the debtor. International Trust Co, 
 terest as owner of the insured property, v. Boardman, 149 Mass. 158. 
 
 200 
 
CH. VI.J 
 
 SUBJECT-MATTEE. — INSURABLE INTEREST. 
 
 [§100 
 
 a party effects an insurance on his own life, for the benefit 
 of another who pays the premiums, the policy is a valid one 
 has been doubted, but the weight of authority seems to be in 
 favor of the validity; it being in substance a contract with 
 the beneficiary, who is the " assured. " ^ (a) If the person 
 
 1 "Wainewright v. Bland, 1 Moo. & Kob. 481 ; s. c. 1 Mees. & Wels. 32 ; Val- 
 ton V. National Loan Fund Life Assurance Soc, 22 Barb. (N. Y.) 9 ; s. c. on 
 appeal, 20 N. Y. 32 ; Rawls v. Amer. Mut. Life Ins. Co., 27 N. Y. 282. [If the 
 policy on its face runs to the " life " though payable to another who was active 
 in the procurement of it, it will be presumed after verdict that it did constitute an 
 insurance taken out by the " life " for the benefit of the other, and will not be 
 invalid as a wager. Fairchild v. North Eastern Mut. Life Ass., 51 Vt. 613.] 
 
 (a) Every person has an insurable 
 interest in his own life to an unlimited 
 extent ; and he may insure it for the 
 benefit either of his personal representa- 
 tives or of a third person. Nye v. 
 Grand Lodge, 9 Ind. App. 131, 143 ; 
 Stuart u. Sutcliffe, 46 La. An. 240 ; 
 Hurd V. Doty, 86 Wis. 1 ; see 35 Am. 
 L. Reg. N. s. 65. In Wisconsin, such 
 an assured may change the beneficiary 
 named. Breitung's Estate, 78 Wis. 33. 
 In general, the beneficiary named in a 
 life policy need not have an insurable 
 interest. Robinson v. U. S. Mut. Ace. 
 Ass'n, 68 Fed. Rep. 825 ; American 
 Employers' L. Ins. Co. v. Ban-, id. 873 ; 
 Donnell v. Donnell, 86 Maine, 518. 
 The weight of authority now seems 
 clearly to be that the taking out of a 
 policy on one's own life for the benefit 
 of another, who has no insurable interest 
 therein, the former paying the premium, 
 so far differs from an assignment that 
 the beneficiary in the former case may 
 recover on the policy, when the transac- 
 tion is not a mere cloak for a wager. 
 See Heinlein a. Imperial L. Ins. Co., 
 101 Mich. 250 ; 25 L. R. Ann. 627, 
 and note ; Soiuler v. Home Friendly 
 Society, 72 Md. 511 ; Steinback v. 
 Diepenbrock, 158 N. Y. 24 ; Albert v. 
 Mutual L. Ins. Co., 122 N. C. 92 ; Ken- 
 tucky Life & Ace. Ins. Co. v. Hamilton, 
 63 Fed. Rep. 93; Prudential Ins. Co. 
 V. Hunn, 21 Ind. App. 525 ; Same v. 
 Liersh (Mich.), 29 Ins. L. J. 470. The 
 fact that such beneficiary's claims are 
 
 not yet fully due is not material as to 
 the insurer. Hale v. Life Indemnity 
 Co., 65 Minn. 548. An assignment to 
 one having no insurable interest, which 
 is merely a colorable evasion of the law 
 against wagers, cannot be enforced. 
 Clement v. New York L. Ins. Co. 
 (Teun.), 42 L. R. A. 247, and note. It is 
 against public policy for one to procure 
 insurance on another's life without his 
 knowledge and consent ; and even if a 
 wife procures insurance on her husband's 
 life without his knowledge or consent, 
 paying his money therefor, he is entitled 
 to recover it back from the insurer. 
 Met'n L. Ins. Co. v. Monahon (Ky.), 
 42 S. W. 924 ; Met'n L. lus. Co. v. 
 Trende (Ky.), 53 id. 412. In Pennsyl- 
 vania it is held that an absolute assign- 
 ment, and surrender of control over the 
 policy, to one having no interest in the 
 insured's life, makes the policy void in 
 the assignee's hands ; but that insur- 
 ance taken out by an elderly person 
 and assigned by him to a poor child 
 whom he befriends and educates, gives 
 the child an insurable interest in his 
 life. Gilbert v. Moose, 104 Penn. St. 
 74 ; Vanormer v. Hornberger, 142 id. 
 575 ; Burke v. Prudential Ins. Co., 155 
 Penn. St. 295 ; McHale v. McDonnell, 
 175 id. 632 ; Carpenter v. U. S. L. Ins. 
 Co., 161 id. 9. In North Carolina, 
 where a church member, on whom the 
 church in part depended for support, 
 but without any contract on his part 
 therefor, applied for insurance on his 
 201 
 
§113] insueance: fire, life, accident, etc. [ch. vi. 
 
 whose life is insured pays the premiums, thei-e can be no 
 doubt, even if the beneficiary has no interest, since his own 
 interest supports the policy. ^ In Forbes v. American Mut- 
 ual Life Insurance Company,^ the insured took out a policy 
 upon his own life payable to his sister's husband, paying the 
 first premium himself, and the subsequent ones through the 
 husband as his agent. The policy stipulated that "policies 
 made payable to creditors or persons not belonging to the 
 family of the person whose life Is insured are subject to 
 proof of interest." The court were inclined to the opinion 
 that even under these conditions the plaintiff would be en- 
 titled to recover, though the point was not decided, since it 
 was not raised by the pleadings. It was only held that 
 there was an interest to support the policy.^ 
 
 § 113. Beneficiary's Name must appear. — So in England, 
 under statute 14 Geo. III. c. 48, the name of the beneficiary 
 must appear in the policy, as affirmed by the following case : 
 The plaintiff married a wife who was a minor, and who was 
 entitled to a legacy on arriving at her majority. The plain- 
 tiff asked the trustees to advance money in anticipation, to 
 which they consented if A. would become surety. This A. 
 consented to do if the plaintiff would insure his wife's life. 
 
 1 Camp^iell v. N". E. Mat. Life Ins. Co., 98 Mass. 381 ; Hogle v. Guardian 
 Life Ins. Co., 6 Robt. (Superior Ct. N. Y.) 567. The case of Holabird v. Atlan- 
 tic Mat. Life Ins. Co., 2 Dillon, C. Ct. (U. S.) 166, is apparently to the contrary. 
 [A man may insure his own life, himself paying the premiums for the benefit of 
 another, who has no insurable interest. Scott v. Dickson, 108 Pa. St. 6. A son 
 may insure for the benefit of his father. Tucker v. Mut. Ben. Life Co., 50 
 Hun, 54.] 
 
 2 15 Gray (Mass.), 249. 
 8 See ante, § 110. 
 
 life for its benefit, and, the policy being Ins. Co. v. Blodgett, 8 Tex. Civ. App. 
 
 issued to the church, the premiums 812. A general creditor, having no in- 
 
 were paid by liira, it was held that the surable interest in any specific property 
 
 church had no insurable interest in his of his debtor, cannot insure it, but the 
 
 life, and that the policy was void as a debtor may with the insurer's consent, 
 
 wager. Trinity College v. Travelers' for the creditor's benefit, so far as the 
 
 Ins. Co., 113 N. C. 244. A beneficiary latter's interest may appear, as, e. g., 
 
 who is named by the insured, lint is when security is thus given for ad- 
 
 without insurable interest, becomes, if vances. Gnitennan v. German-Ameri- 
 
 he pays the premium, a trustee for the can Ins. Co., Ill Mich. 626. 
 parties legally entitled. Mutual Life 
 
 202 
 
CH. VI. ] SUBJECT-MATTER. — INSURABLE INTEREST. [§115 
 
 At plaintiff's suggestion the wife insured her life in her own 
 name, without mention that any one else had an interest in 
 the policy. This was "held void under the statute 14 Geo. 
 III. c. 48, which requires the name of the person interested 
 in the policy, or for. whose use or benefit, or on whose ac- 
 count the policy is taken out, as the purpose of the policy 
 was to protect the surety. Although the wife might have an 
 ultimate interest, the interest of the surety at the time of 
 the insurance was clear, and it should have been so stated. 
 And so also should the husband's name have appeared as a 
 beneficiary.^ 
 
 § 114. Life Policy generally a Valued Policy. — A life pol- 
 icy is almost always a valued policy,^ but not necessarily so. 
 Thus, Bruce v. Garden ^ was the case of an insurance by a 
 creditor who had a running and constantly varying account 
 with his debtor, to secure himself against loss of the balance 
 which might at any time be due him. Of course in such a 
 case the measure of damages is the amount which may be 
 found to be due at the death of the debtor, a loss which is 
 to be determined by proof as in other cases of open policies. 
 There were several policies in this case amounting to much 
 more than the offices paid. What was paid was the actual 
 amount of the balance found due at the time of the decease. 
 
 § 115. Interest in the Life need not continue till Death ; 
 English Cases. — We have said that the general doctrine 
 was, that in life as well as in fire and marine insurance 
 there must be an interest at the time of the loss as well as 
 at the time of insurance in order to support the policy.* 
 This subject has received a very careful consideration in 
 the Exchequer Chamber, resulting in the conclusion that the 
 doctrine for which Godsall v. Boldero ^ has been constantly 
 referred to as an authority — that there must be an insur- 
 
 1 Evans, Adm'r, iJ. Bignold, 20 L. T. E. N. s. 659. 
 
 2 St. John !>. Amer. Mut. Life Ins. Co., 2 Duer (N. Y. Superior Ct.), 419. 
 [A life policy, unlike iire and marine insurance, is not a contract of indemnity, 
 but an agreement to pay a specific sum. Scott v. Dickson, 108 Pa. St. 6.] 
 
 3 20 L. T. R. N. s. 1002 ; s. c. on appeal to the Lord Chancellor, 22 id. 595. 
 * Ante, § 29. 
 
 6 9 East, 72. 
 
 203 
 
§ 115] INSURANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. VI. 
 
 able interest in the holder of the policy at the time of the 
 loss as well as at the time of effecting the insurance — is 
 not sound law, as applicable to life policies.^ The question 
 in this case, it being admitted that the plaintiff had no in- 
 terest at the time of the death, was upon the construction of 
 the statute 14 Geo. III. c. 48 ; as, independently of the stat- 
 ute, there could be no doubt that a life policy, without any 
 interest to support it, was a perfectly legal contract. ^ And 
 so it is to this day in Ireland, where the statute 14 Geo. III. 
 c. 48, has remained in force. ^ 
 
 1 Dalby v. India & London Life Ass. Co., 15 C. B. 365. 
 
 2 Cousins V. Nautes, 3 Taunt. 613 ; Luceua v. Craufurd, 2 Bos. & Pul. N. E. 
 269. 
 
 8 British Ins. Go. o. Magee, Cooke & Alcock, 182. " This contract,'' said the 
 court, per Parke, B., after holding the case under advisement, " is good at com- 
 mon law, and certainly not avoided by the first section of the 14 Geo. III. c. 48. 
 This section, it is to be observed, does not provide for anj' particular amount of 
 interest. According to it, if there was any interest, however small, the policy 
 would not be avoided. The question arises on the third clause. It is as follows : 
 ' And be it further enacted, that, in all cases where the insured hath interest in 
 the life or lives, event or events, no greater sum shall be recovered or received 
 from the insurer or insurers, than the amount or value of the interest of the 
 assured in such life or lives, or other event or events.' Now what is the meaning 
 of this provision ? On the part of the plaintiff it is said it means only that, in 
 all cases in which the party insuring has an interest when he effects the policy, 
 his right to recover and receive is to be limited to that amount ; otherwise, under 
 color of a small interest, a wagering policy might be made to a large amount, — 
 as it might if the first clause stood alone. The right to recover, therefore, is 
 limited to the amount of the interest at the time, of effecting the \)o\my. Upon 
 that value, the assured must have the amount of premium calculated; if he 
 states it truly, no difficulty can occur ; he pays in the annuity for life the fair 
 value of the sum payable at death. If he misrepresents, by overstating the value 
 of the interest, it is his own fault in paying more in the way of annuity than he 
 ought ; and he can recover only the true value of the interest in respect of which 
 he effected the policy ; but that value he can recover. Thus, the liability of the 
 assurer becomes constant and uniform, to pay an unvarying sum on the death of 
 the cestui que vie, in consideration of an unvarying and uniform premium paid by- 
 the assured. The bargain is fixed, as to the amount, on both sides. 
 
 " This construction is effected by reading the word ' hath,' as referring to the 
 time of effecting the policy. By the first section the assured is prohibited from 
 effecting an insurance on a life or on an event wherein he ' shall have ' no inter- 
 est ; that is, at the time of assuring. And then the third section requires that 
 he shall cover only the interest that he 'hath.' If he has an interest when the 
 Dolicy is made, he is not wagering or gaming, and the prohibition of the statute 
 does not apply to his case. Had the third section provided that no more than 
 the amount or value of the interest should be insured, a question might have 
 been raised, whether, if the insurance had been for a larger amount, the whole 
 
 204 
 
CH. VL] subject-matter. — INSUEABLE INTEREST. [§116 
 
 § 116. The injustice of the decision in Godsall v. Boldero^ 
 was so manifest, that it is not to be wondered at that tlie 
 
 would not have been void ; but the prohibition to recover or receive more than 
 that amount obviates any difficulty on that head. 
 
 " On the othe.r hand, the defendants contend that the meaning of this claim is, 
 that the assured shall recover no more than the value of the interest which he 
 has at the time of the recovery, or receive more than its value at the time of the 
 receipt. 
 
 " The words must be altered materially, to limit the sum to be recovered to 
 the value at the time of the death, or (if payable at a time after death) when the 
 cause of action accrues. But there is the most serious objection to any of these 
 constructions. It is, that the written contract, which, for the reasons given be- 
 fore, is not a wagering contract, but a valid one, permitted by the statute, and 
 very clear in its language, is by this mode of construction completely altered in 
 its terms and effect. It is no longer a contract to pay a certain sum as the value 
 of the then existing interest, in the event of death, in consideration of a fixed 
 annuity calculated with reference to that sum ; but a contract to pay — contrary 
 to its express words — a varying sum, according to the alteration of the value of 
 that interest at the time of the death, or the accrual of the cause of action, or the 
 terms of the verdict or execution ; and yet the price or the premium to he paid 
 is fixed, calculated on the original fixed value, and is unvarying ; so that the 
 assured is obliged to pay a certain premium every year, calculated on the value 
 of his interest at the time of the policy, in order to have a right to recover an 
 uncertain sum; viz., that which happens to be the value of the interest at the 
 time of the death, or afterwards, or at the time of the verdict. He has not there- 
 fore a sum certain which he stipulated for and bought with a certain annuity ; 
 but it may be a much less sum, or even none at all. 
 
 " This seems to us so contrary to justice and fair dealing and common honesty, 
 that this construction cannot, we think, be put upon this section. We should 
 therefore have no hesitation if the question were res integra, in putting the much 
 more reasonable construction on the statute, that if there is an interest at the 
 time of the policy it is not a wagering policy, and that the true value of that 
 interest may be recovered in exact conformity with the words of the contract itself. 
 
 " The only effect of the statute is to make the assured value his interest at its 
 true amount when he makes the contract." 
 
 The court then proceed to say that Godsall v. Boldero weis founded upon a 
 mistaken analogy, the language of Lord Mansfield in Hamilton v. Mendes, 2 Burr. 
 1198, upon which Lord Ellenborougli relied, having reference to a marine policy 
 which is in its terms a, contract of indemnity only; that while it had been 
 referred to in divers cases without calling it in question, and sometimes with 
 approbation ( Fide Barber v. Morris, 1 Moody & R. 62 ; Humphrey v. Arabin, 
 2 Lloyd & G. Ch. 318 ; Henson v. Blackwell, 4 Hare, 434, cor. Sir J. Wigram, 
 V. C. ; Phillips v. Eastwood, 1 Lloyd & G. Oh. (Gas. temp. Sugden, 290) 321), yet 
 in none of these cases was it material to controvert the point in question ; that in 
 point of fact, in practice, it had been uniformly disregarded ; and that therefore 
 they ought not to be bound by the authority of that case. The law is otherwise 
 in this country. See Ruse v. Mut. Benefit Life Ins. Co., 23 N. Y. (9 Smith) 516. 
 As this statute la frequently referred to in the reports, it may be convenient to 
 
 1 9 East, 72. 
 
 205 
 
§116] insurance: fire, life, accident, etc. [ch. VI 
 
 insurance companies refused to avail themselves of its prof- 
 fered shelter, and that it became practically a dead letter. 
 But the error was not that it proceeded on a mistaken anal- 
 ogy, and treated the contract under consideration, like con- 
 tracts in marine and fire insurance, as a contract of indem- 
 nity, but rather in a mistaken application of the principle. 
 The court erroneously assumed that if the debt which consti 
 tuted the insurable interest was paid after the death of the 
 debtor and before action brought,*the creditor was indemni- 
 fied. He was indeed paid so far as the original debt was 
 concerned; but he was not at all indemnified so far as the 
 
 have it in full. It is accordingly here subjoined. Statute 14 Geo. III. u. 48, 
 enacts : — 
 
 First, " That no insurance shall be made by any person or persons, bodies 
 politic or corporate, on the life or lives of any person or persons or on any 
 other event or events whatever, wherein the person or persons, for whose use or 
 benefit or on whose account such policy or policies shall be made, shall have no 
 interest, or by way of gaming or wagering ; and that every insurance made con- 
 trary to the true intent and meaning of this act shall be null and void to all 
 intents and purposes whatsoever." 
 
 Second, " That it shall not be lawful to make any policy or policies on the 
 life or lives of any person or persons, or other event or events, without inserting 
 in such policy or policies the name or names of the person or persons interested 
 therein, or for what use, benefit, or on whose account such policy is so made or 
 underwrote." 
 
 Third, "That in all cases where the insured hath an interest in such life or 
 lives, event or events, no greater sum shall be recovered or received from the 
 insurer or insurers, than the amount or value of the interest of the insured in 
 such life or lives, or other event or events." 
 
 The fourth section contains a proviso that this act shall not extend to insur- 
 ances bona fide made on ships or goods. 
 
 Professor De Morgan also (Essay on Probabilities, p. 244 et seq. ; and see note 
 appended to the case of Dalby v. India & London Life Assurance Co., ut sup.) 
 criticises the doctrine of Godsall v. Boldero with much force and piquancy, 
 observing amongst other things that "the several principles on which the deci- 
 sion was founded, well carried out, as they say in Parliament, would require that 
 the previous contracts of a man who becomes insane should be null and void ; 
 that the meat which a man buys for his dinner should be returnable to his butcher 
 under the cost, if his friend should invite him in the mean time ; and in the case 
 before us, supposing that C. (the creditor) should have outlived the term, and his 
 debt were paid as before, then B. (the assured) might have brought his action 
 against the office for the return of the premiums ; alleging that, as it turned out, 
 the office would have been indemnified, and therefore should have been considered 
 as having run no risk." See also Law v. Indisputable Life Policy Co., 1 Jurist, 
 N. s. 178, where Wood, V. C, accepts and applies the doctrine of Dalby w. India 
 & London Life Assurance Co. ; Whiting v. Sun Mut. Ins. Co., 15 Md. !297, 826 j 
 JIcKenty v. Universal Life Ins. Co., 0. Ct. (Minn.), 6 Ch. Legal News, 199. 
 206 
 
OH. TL] subject-matter. — IXSURABLE INTEREST. [§116 
 
 new debt contracted by the insurers to the insured was con- 
 cerned. In contemplation of law, and by the understanding 
 of the parties, the annual payments which the insured agreed 
 to make were the equivalent, and a profit beside, of the total 
 sum which the insurers agreed to pay at the death of the 
 debtor. So that, although subsequently to that time, and 
 before suit brought, the original debt was paid by the 
 debtor's executor, yet, as the creditor had, in contemplation 
 of law, and according to the understanding of the parties, 
 and possibly in point of fact, in the mean time paid to the 
 insurers sums of money which in the aggregate amounted to 
 a sum equal to that which he received from the debtor, he 
 would suffer a total loss unless the insurers should pay him 
 the amount of the policy. In fact, upon the doctrine of in- 
 demnity merely, correctly applied, the insurers should have 
 been held to pay. The effect of the decision was, moreover, 
 to make a new contract; to wit, that the insurers would pay 
 the insured the amount of the debt, if some one else did not, 
 — obviously a totally different contract from that which was 
 actually made, and one, too, in which the creditor must 
 either lose the original debt, or if that was paid, then he 
 must lose the amount which he had paid by way of pre- 
 miums. Thus by the decision of the court the creditor 
 could in no case be indemnified, but, on the contrary, in 
 every case must be the loser. The contract was certainly 
 for an indemnity in the beginning, and had it been enforced 
 according to its terms it would have proved to be an indem- 
 nity in the end. This contract of insurance on the life of 
 the debtor to protect the creditor is closely analogous to the 
 mortgagee's insurance on the house of the debtor to protect 
 his mortgage. In one case the creditor insures on the life, 
 in the other on the property, of the debtor. In each case 
 the contract is a separate and distinct collateral contract 
 which the insured has a right to make for his own benefit, 
 and there seems to be no doubt that the mortgagee, whether 
 he insures as general owner or as mortgagee, may recover 
 the full amount insured, without prejudice to his mortgage 
 debt, which, whether it be paid or unpaid, is a matter of no 
 
 207 
 
§116] insurance; fire, life, accident, etc. [ch. ti. 
 
 concern to the insurers. ^ If a mortgagee insure for a year 
 the house of his debtor to secure a mortgage note payable in 
 a year, and there happens a total loss within the period, he 
 recovers his insurance and still holds his note. So if a 
 creditor insures the life of his debtor for a year to secure a 
 note payable in a year, and the death happens within the 
 period, he gets his insurance and still holds the note. In 
 each case there is indemnity as between the insurers and the 
 mortgagee and creditor, though by reason of their relations 
 with strangers to the insurers the mortgagee and creditor 
 may maike an actual profit in the end by collecting their 
 respective notes. If the insurer contracts to indemnify in 
 one case, so he does in the other ; and neither is the less a 
 contract of indemnity because the insured by his relations 
 with others may make the double transaction a profitable 
 investment or speculation. A man insures his house for a 
 term of years to protect his estate ; and he insures his life 
 for a term of years for the same reason. If the house be 
 burned the estate is indemnified for the loss of property; 
 and if the life be lost the estate is indemnified for the loss 
 of faculties which produce property. In either case there is 
 indemnity simply. In one case the amount of loss may or 
 may not be open to proof. In the other the amount of loss 
 
 1 King V. State Mut. Fire Ins. Co., 7 Cnsh. (Mass.) 1 ; SufiFolk Fire Ins. Co. 
 V. Boyden, 9 Allen (Mass. ), ]23 ; Concord Mut. Fire Ins. Co. v. Woodbury, 45 Me. 
 447 ; Clark v. Wilson, 103 Mass. 219, 221 ; People's Ins. Co. v. Straehle, 2 Cin. 
 Superior Ct. Eeptr. 186 ; post, § 456. And so the mortgagee may recover the 
 whole amount of his insurance if the loss amounts to so much, although the 
 property remaining after the fire is ample security for the debt, or be restored 
 to its original value. Rex v. Insurance Cos., 2 Phila. Rep. 357 ; Kernochan v. 
 New York Bowery Fire Ins. Co., 5 Duer (N. Y. Superior Ct.), 1 ; s. c. affirmed 
 17 N. Y. 428 ; Motley v. ilanufacturers' Ins. Co., 29 Me. 337; Foster et al. a. 
 Equitable Mut. Fire Ins. Co., 2 Gray (Mass.), 216. But a mortgagee who so 
 insures without the authority of the mortgagor cannot charge the premium 
 against the mortgagor. Dobson o. Land, 8 Hare, 216. See also s. c. and note, 
 3 Bennett's Fire Ins. Cases, 197 ; Excelsior Fire Ins. Co. v. Royal Ins. Co., 55 
 N. Y. 343, affirming s. c. 7 Lans. (N. Y.) 138 ; Armitage v. Winterbottom, 30 
 E. C. L. 379. So the insured who has contracted to sell before the loss may 
 recover the full amount of the loss although after the loss and before suit he 
 receives the contract price, there being a parol agreement to assign the policy 
 with the consignee of the property. Fire & Mar. Ins. Co. v. Morrison, 11 Leigh 
 (Va.), 354. And see also Washington Fire Ins Co. v. Kelly, 32 Md. 421. 
 208 
 
CH. VI.J SUBJECT-MATTER. — INSURABLE INTEREST. [§117 
 
 is fixed by the valuation in the policy and the agreement of 
 the parties. But it is none the less an indemnity because it 
 is agreed on.^ Mortgagees and creditors may claim indem- 
 nity of the insurers with whom they directly contract, though 
 they may have chances to get something beyond that from 
 others, and in this sense their contracts may, though not 
 with strict accuracy, be said to be not contracts of indem- 
 nity merely. This, it is apprehended, is all that is intended 
 by the court in the case of Dalby v. India and London Life 
 Assurance Company. ^ That case decides only that as at 
 common law the contract of life insurance may be supported 
 without any insurable interest in the insured either at the 
 inception of the contract or at the death of the life, and as 
 under statute 14 Geo. IIL c. 48, only an insurable interest 
 is requisite at the inception of the contract, it is not neces- 
 sary that the insured should have an insurable interest at 
 the time of the death. In other words, under that statute 
 the contract is one of indemnity at its incipiency, but by the 
 common law, which is not affected by the statute, it need 
 not be one of indemnity, — that is, supported by an interest, 
 at the time of the death. 
 
 § 117. Continuation of Interest in the "Life;" United States 
 cases. — The courts of this country have, however, as we 
 have seen,^ almost without exception* refused to adopt the 
 doctrine of the English common law in support of policies 
 without interest, and it remains to be seen whether they will 
 so far modify the rule as to uphold a policy where the insured 
 has an interest when the contract is made, but has none when 
 the event happens upon which the policy becomes payable. 
 That the insurable interest need not have uninterrupted 
 continuity, but may revive after suspension, has before been 
 adverted to.^ In the Supreme Court of the United States^ 
 
 1 St. John V. American Mut. Life Ins. Co., 2 Duer (N. Y. Superior Ct.), 419; 
 ante, § 7. 
 
 " UU supra. 
 3 Ante, § 75. 
 
 ' [This can hardly he said now. See cases below.] 
 6 Ante, § 101. 
 
 6 Phoenix Mut. Life Ins. Co. of Hartford v. Bailey, 13 Wall. (U. S. ) 616. 
 VOL. 1. — 14 209 
 
§117] INSUEANCB: FIEE, life, accident, etc. [cH. VI. 
 
 it has been said that the contract of life insurance was 
 not one of mere indemnity, and that an insurable inter- 
 est was only necessary at the inception of the contract. 
 But the point decided was simply that that court would 
 not exercise its equity power when there was an adequate 
 remedy at law; and the cases referred to as supporting 
 the dictum,^ with the exception of the English case, are 
 not authorities, since in all of them, in point of fact, the 
 interest existed at the time of the death as well as at the 
 inception of the contract. There are dicta, however, in 
 the New York and New Jersey cases referred to, as also in 
 other cases,2 which would seem to support the view that a 
 continuing interest in a life policy is not necessary. ^ (a) Upon 
 the whole, it is not improbable that, when the point is dis- 
 tinctly taken, it will be held that when the contract at its 
 inception is based upon a substantial interest, and is in good 
 faith entered into for the protection of that interest, it is 
 not objectionable as a wager contract, and may be enforced 
 though the interest may have ceased at the time of the death. 
 
 1 Dalby v. India & London Life Assurance Co., 15 C. B. 365 ; Loomis v. 
 Eagle Life & Health Ins. Co., 6 Gray (Mass), 396 ; Lord v. Call, 12 Mass. 
 114; Trenton Life & Fire Ins. Co. v. Johnson, 4 Zab. (N. J.) 576; Kawls t>. 
 American Life Ins. Co., 36 Barb. (N. Y.) 357 ; s. c. 27 N. Y. 282. Emmet, J., 
 dissenting, on the ground that, before the death of the debtor whose life was 
 insured, the Statute of Limitatious having run against the note which constituted 
 the basis of insurable Interest at the inception of the contract, the interest had 
 ceased, and so the action could not be supported. But this ground of dissent is 
 not well founded. See ante, § 108. See also Porter w. Mtna. Ins. Co., 6 Ins. L. 
 J. 928, contra, which, however, is doubtful law. An absolute thoiigh defective 
 title is good as a basis of interest till set aside. Aiite, §§ 86, 89. 
 
 2 Vaiton V. National Loan Fund Life Assurance Co., 22 Barb. (N. Y.) 9 ; St. 
 John V. American Mut. Life Ins. Co., 13 N. Y. 31. 
 
 2 But see contra, Mut. Life Ins. Co. v. Wager, 27 Barb. 354 ; Kennedy v. New 
 York Life Ins. Co., 10 Ea. An. 809, dissenting opinion of Mr. Justice Lee ; 
 Leonard v. Eagle Life & Health Ins. Co., 4 Liv. Law Mag., per Ch. Walworth 
 as arbitrator. 
 
 {a) In New Jersey, it has recently loss. Sun Ins. Office o. Merz(N. J. L.), 
 
 been held that though the insured had 45 Atl. 785. 
 
 no insurable interest when the policy The objection that the plaintiff's 
 
 was issued to him, yet the policy will pleadings do not set out an insurable 
 
 be supported if there is such an interest interest comes too late after verdict, 
 
 during the risk and at the time of the Kentucky L. & Ace. Ins. Co. v. Hamil- 
 ton, 63 Fed. Kep. 93, 102. 
 210 
 
CH. VI.] SUBJECT-MATTER. — INSTJRABLE INTEREST. [§ 117 
 
 And this is the more probable, as, while such a rule will 
 keep the door shut against mere gambling and speculation, 
 it will tend to encourage what is now almost universally 
 regarded as a provident contract, securing not only an in- 
 demnity in case of loss, but the means of presently increas- 
 ing capital, and a not disadvantageous mode of investment. 
 So it has now been distinctly held in the Supreme Court of 
 the United States ;i [and later cases in Pennsylvania and 
 the United States courts make the authority to this point 
 very emphatic."] The conclusion is, upon all the authori- 
 ties, that life insurance, like all other kinds of insurance, 
 is a contract of indemnity ; but that that form of the con- 
 tract, in some of its phases, is not merely a contract of in- 
 demnity, but includes that with a possibility of something 
 more. It can never therefore properly be entered into ex- 
 cept for the purpose of security or indemnity;^ though the 
 fact that the contract may, under certain circumstances, 
 result as a profitable investment, does not vitiate it, if en- 
 tered into in conformity to the principles which underlie it.* 
 But so far as it seeks any other object than indemnity for 
 loss, it departs from the legitimate field of insurance, and 
 engrafts upon that contract a purpose foreign to its nature. 
 
 ' Connecticut Mut. Life Ins. Co. v. Scheafer, 94 TJ. S. 457. 
 
 2 [See § 100, A.] 
 
 » Ante, § 2. 
 
 ^ [True justice would give the balance of the funds beyond the debt, pre- 
 miums, interest, and expenses, to the debtor's representatifea, and there is some 
 good authority to this effect. Seegrist v. Schmoltz, 113 Pa. St. 326, and see 
 ch. 24.] 
 
 211 
 
INSUEANCE: fire, life, accident, etc. [oh. VII, 
 
 CHAPTER VII. 
 
 AGENTS. — THEIR POWERS AND DUTIES. 
 
 Analysis. 
 
 1. Of the Genbbal Peinoiplbs of Agency, and specially op Agents 
 
 OF Stock Insueanob Companies. 
 An agent must not be interested adversely to his principal, if same per- 
 son acts for both parties either may avoid the contract, §§ 125, 137- 
 cannot insure property of which he is owner or part-owner unless the 
 company is fully aware of the facts, and constructive knowledge by 
 putting the papers on file in home office is not enough. Id. 
 cannot consent to assignment of his own policy, § 137. 
 
 POWER TO BIND THE COMPANY. 
 
 An agent's authority is governed by the nature of his business. Acts, 
 waivers, representations, &c., in the usual course of business will 
 bind the principal in spite of private instructions, iiuless the other 
 party had notice of them. The authority of an agent is what it ap- 
 pears to be ; as between the company and third persons the question is 
 not what power the agent did have, but what the company held him 
 out as having. Out of the usual course of business, the assured must 
 be sure the agent has express authority. Authority to two persons 
 terminates with the death of either, §§ 126, 126 A, 154. 
 
 Difficult to determine the scope of an insurance agent's powers, § 118. 
 
 May solicit risks, and make statements concerning the character and 
 standing of the various companies, §§ 119, 133. 
 
 He has incidental power to decide upon the proper description of prop- 
 erty, the meaning of words in the questions, and the application of 
 answers to the subject-matter, so far as may be necessary to render the 
 instrument fit for its pur^ioses and make the agency an efficient 
 one, §§ 120, 123, 144 E, 144 G. 
 the agent's discretion may vary with his remoteness from the home 
 office, § 120. 
 
 Agent of stock company intrusted with policies signed in blank has full 
 discretion as to amount and nature of risk, terms, conditions, &o., 
 even to the modification of the policy, § 129 and note. 
 
 Within the powers of the corporation its agents may bind it by parol, 
 §§ 128, 129, 141-145, 151 ; see also, §§ 14-2.5. 
 
 May insure in respect to property beyond his district, § 130. 
 
 2. AUTHOEITY AS TO Peemittms (§§ 121, 129, 134-136). 
 
 Discretion ahout the mode in which premiums shall be paid, limited by 
 usual course of business. Agent may hy his interpretation fix the 
 date the premium is due, § 134. 
 
 212 
 
CH. VII.] AGENTS. — THEIR POWEES AND DUTIES. 
 
 Neglect of agent to forward premiuin will not prejudice the insured. 
 Where the agent is a broker. A receipt for the premium stating 
 that the contract takes effect from its date binds the company, though 
 the premium is not actually paid till after the fire, § 135. 
 
 If an agent receives premiums upon a life policy knowing of a change 
 of residence in violation of tlie policy, which the agent said would 
 not affect it if the premiums were paid, the company may be held, on 
 the principle of constructive notice, since it was the duty of the 
 agent to inform the home office of the conditions under which the 
 premiums were paid, § 136. 
 
 Agent may waive forfeiture for non-payment of premium before or 
 after it is due, § 136. 
 
 An agent may perhaps employ a detective, but cannot institute criminal 
 proceedings so that his acts will bind the company, unless specially 
 authorized, § 133 F. 
 
 3. Eekor, Neglect or Misrepresentation by the Agent. 
 
 Mistakes, omissions, even in some cases representations or opinions of a 
 matter of law, on the part of an agent within the scope of his business, 
 will bind the company, §§ 131, 135, 142. 
 A corporation cannot saddle the blunders of its agents on its customers. 
 If, however, the insured combines with agent to cheat the company 
 the latter will be protected, § 131. 
 (See 4, 5, and 6.) 
 Misrepresentations and torts of agent. Same rules apply as in the case 
 of other contracts. Mere opinion, embellishment or chaffer, 
 will not bind the company, nor statements upon which a man of 
 ordinary prudence would not rely, §§ 133, 133 C. 
 Representation that the company takes risks in a place where it 
 
 does not, will not prejudice the company, § 133. 
 Unauthorized representation of agent that neglect to pay premium 
 would only convert the policy into a paid-up policy, binds 
 company so far as to prevent forfeiture because insured has 
 acted on it, § 133. 
 Misrepresentation that non-occupancy avoided policy, whereby in- 
 sured settled for one-fourth, is not actionable, § 133. 
 Misrepresentation as to rival company not release insured from duty 
 
 to pay premium, § 133. 
 Misrepresentation that policy is not subject to assessment, entitles 
 
 the insured to such a policy, § 133. 
 Where full printed information is given to the insured he must not 
 rely on the agent's remarks, § 133. 
 nor without inquiry on the remarks of a stranger though 
 in presence of an officer, § 133. 
 Representations not to bind company, unless reduced to writing and 
 sent to home office, § 133. 
 
 4. Notice. 
 
 Notice to agent in the scope of his business is notice to his principal, 
 §§ 132, 152. 
 
 An agent appointed to receive and transmit the kind of notice in question, 
 receiving it as such agent, binds the principal, and one acting in the 
 principal's business to which the notice relates, with the knowledge 
 
 213 
 
INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 in his miud, or so recently acquired as to be presumably present in 
 his mind, binds his principsil by Ms knowledge, no matter when, how, 
 or where he received the knowledge (§ 133 D), unless there is collu- 
 sion, or the third party knows or has reason to know that the agent 
 does not inform the principal. 
 
 Where the agent does not act in the matter to affect the validity of 
 which the notice is pleaded, nor is appointed to forward such notice 
 in respect to the use in question, his knowledge is not that of the 
 principal as affects said matter, §§ 122, a, 133 E. 
 
 Grounds of holding the company are communication and identity. The 
 agent while acting for the company within the scope of his authority 
 is identified with the company*; and notice coming to him during 
 such business and relating to it binds the company. Notice coming 
 to the agent at some time while not acting for the company in the 
 business to which it relates, may bind the company, on the ground 
 that it was the agent's duty to communicate facts known to him 
 and affecting his principal. 
 
 5. Facts known to agent at time of insurance or at delivery of policy 
 
 bind the company, §§ 133, 133 A-133 G. 
 condition of health, § 133 A. 
 prohibited articles kept, § 133 A. 
 gasolene kept on premises, § 133 A. 
 buildings not all on plaintiff's ground, § 1 33 A. 
 interest of assured known to agent, § 133 A. 
 agent knew of incumbrance, § 133 A. 
 
 other insurance, § 133 A. 
 even though falsely stated by assured ? § 133 A. 
 agent's notice of inaccuracy in the application binds the com- 
 pany, § 142 F. 
 an agent's acts in procuring insurance, making out applications, 
 &c., and his knowledge obtained in such business bind 
 the company. Such an application is not the instru- 
 ment of the person whose name is signed to it. The 
 circumstances under which it was obtained estop the 
 company, §§ 133, 133 A, 133 B, 144. 
 if, in filling the application, by mistake or intent he omits or 
 misstates matters correctly told him or known to him, 
 and the assured signs the statement without reading 
 and in ignorance of the omission or mistake, the com- 
 pany is bound, §§ 141, 144 A. 
 there being no collusion to cheat the company or its 
 
 equivalent, §§ 144 B, 137. 
 as where the assured has reason to know that the com- 
 pany is being imposed on, §§ 1 33 B, 137. 
 even though the policy makes the statements warran- 
 ties, §§ 144 A, 133 A. 
 {Contra, even knowledge of company itself will 
 not save the assured in case a warranty is 
 broken, §§ 145, 156.) 
 and the agent's knowledge was obtained in another 
 transaction, § 144 B. 
 
 214 
 
CH. VII.] AGENTS. — THEIR POWEES AND DUTIES. 
 
 and the policy provides that the agent acts for the as- 
 sured, §§ 124 A, 144 B, 140, 144 E, 144 G. 
 and that no agent shall waive any condition, § 144 C. 
 and a copy of the application is attached to the policy, 
 § 144 C. 
 an application made hy agent with knowledge of facts ia 
 conclusive on company by statute in some States, 
 § 145 B. 
 so where the agent causes the assured to make a misstate- 
 ment or omission, the latter acting in good faith, 
 § 144 E. 
 or where hoth are ignorant of the truth and the agent makes 
 
 a misstatement, § 144 E. 
 but statements to agent at a fruitless interview prior to the 
 one at which the insurance is made do not bind com- 
 pany, § 144. 
 and if the policy describes the wrong building though by 
 
 agent's error, it is void, § 144 F. 
 limitations by tenns of policy, § 137. 
 usage may overcome, § 137. 
 
 premiums only payable on company's receipt, § 137. 
 excluding saloon risk, knowledge of agent not bind 
 
 company, § 137 A. 
 prohibited article avoids policy though agent knew it 
 was kept, § 144 F. 
 
 6. Massachusetts, Rhode Island, New Jersey, Pennsylvania, Canada, 
 
 and Nova Scotia, however, regard the admission of parol to 
 show that the insurers knew the contrary of that which is 
 stated in the application as a violation of the rule against 
 varying a written document by parol, and refuse to receive 
 such evidence, although the application was made by the 
 agent ; Massachusetts going to the same length even where 
 the insurer himself or a general agent making contracts 
 knew the truth, § 145. 
 The true rule seems to lie between the Massachusetts doctrine and 
 that of the majority of the States. It surely cannot preju- 
 dice the company to hold that it knew what it did know, 
 nor is it fair to relieve the assured, where the company has 
 been really misled, simply because he was too careless to 
 read the application he signed, although he was able to do 
 so, and knew or ought to have known that the agent was 
 only a solicitor, the contract being made at the home oiEce. 
 (Discussion of whole subject, § 144 G. ) 
 The company should be held, if it know.s the truth, or con- 
 nives at the agent's wrong, or the agent having knowl- 
 edge of the facts is a general agent making contracts 
 himself, § 144 G. 
 or a verbal application is accepted, and afterwards the 
 agent makes a written one without authority from 
 the assured, §§ 144 D, 145. 
 (unless it is afterwards adopted, § 141.) 
 
 215 
 
INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 or there is a usage or other evidence, to show that some or 
 all of the statements may be made by the agent on 
 his own authority and are so understood, although 
 the assured signs the paper, he being innocent of 
 intended wrong, §§ 132, 144 G. 
 or reading the papers and other proper acts of care would 
 not enable the insured to discover the error or 
 fraud, as where the agent substitutes a forged appli- 
 cation for the true one signed by the assured, 
 §§U4D, 144G. (Iowa case.) 
 or where the assured with good faith and prudence is led 
 
 by the agent's advice into a mistake, § 144 E. 
 as to make an omission, § 133 A, n. 
 
 or the agent takes advantage of an ignorant applicant, 
 §§ 144 B, 144 E. 
 (it is doubtful if even the delivery of a policy to 
 * one who cannot read is notice, § 144 E ; see 
 § 144 G.) 
 If the company is innocent and the assured agrees with the agent 
 to cheat the company, §§ 133 B, 143. 
 or knows that a wrong statement is being made, § 144 F. 
 or has good reason to know that the agent is not acting fairly 
 and for the company's interest in the matter, §§ 133 B, 
 137, 143, 144 B, 144 F, 144 G. 
 or signs to an untruth that he could correct if he took pains 
 to read the paper he signs, in dealing with a soliciting 
 agent, §§ 143, 144 E, 144 G, 145 A. 
 or contents himself with telling such an agent material facts 
 
 without putting them in the application, § 144 F. 
 he should recover nothing if he acted in bad faith, and only 
 his premiums and interest if merely careless. The fact 
 that his signature is required is sufficient notice to him 
 that the company does not rely on the agent to state the 
 facts to them, § 144 G. 
 the applicant is presumed to read the statements he signs, 
 and the burden is on him to show the contrary, 
 §§ 144 E, 159. 
 If the policy provides that the assured adopts and warrants the 
 application, or that the company will not be responsible 
 for any statements the agent did not put in the applica- 
 tion, the assured is bound, in the absence of fraud or 
 fault in the home office, §§ 137 A, 140, 141, 144 F, 
 145 A. 
 even though the application was originally unauthorized, 
 §141. 
 if the agent making the application is not the agent of the com- 
 pany, or in any case where the assured makes him his 
 agent to get the facts, he is bound, §§ 144 G, 145 A. 
 neglect of agent to get insured to sign the application, company 
 estopped, § 133 C. 
 or to transmit, till after loss, company estopped, § 133 C. 
 agent destroying policy, company bound, § 133 C. 
 
 216 
 
CH. VII.] AGENTS. — THEIR POWEKS AND DUTIES. 
 
 notice to an agent of subsequent insurance or alienation held not 
 to bind company in Pennsylvania and Massachusetts, 
 §153. 
 
 but notice of increase of risk was held binding in a Pennsylva- 
 nia case, § 160. 
 
 7. Authority after Negotiations are completed. 
 
 Once the contract is complete the agent's discretion for the company as 
 
 to matters subsequently arising is much less than his discretion 
 
 during the negotiations, §§ 129, 138. 
 
 it behooves the insured therefore to inquire carefully as to the agent's 
 
 powers in subsequent dealings, § 138. 
 
 We have seen above under "Notice" and "Premiums," some of the 
 
 law of this topic. 
 A General Agent may orally extend an open policy over other property 
 similar to that which it already insures, may correct an error in 
 policy after issue, waive proof of loss (Massachusetts contra, 
 § 126), prepayment of premium, notice of other insurance, and 
 conditions as to countersigning, bringing suit, making repairs, 
 leaving property yacant, &c., §§ 128, 129, 151. See also, §§ 14-25. 
 may adjust loss, cancel policy, § 138. 
 receive notice of increase of risk , § 1 50. 
 
 may waive change of residence or nonpayment of premium, § 136. 
 can modify or cancel any contract he can make, § 129, n. 
 and consent to further insurance or change of title, § 143. Pennsyl- 
 vania and Massachusetts contra, § 153. (See above under 
 " Notice.") 
 the tendency of the courts is to hold the company to the acts of its 
 
 agents, in favor of one relying on them without fault, § 143. 
 Evidence of general agency, § 126. 
 
 possession of blank policies and receipts are evidences of general 
 
 agency, § 126. 
 whether an agency is general is a question for the jury, § 126. 
 the assured bound to know if agent is general or .special, § 138. 
 
 8. Miscellaneous. 
 
 Agent of foreign company to receive service, § 126. 
 
 authority to allow change of risk carries power to waive forfeiture by 
 
 change, § 126. 
 authoritv to settle for loss carries right to extend time for settlement, 
 
 § 126. 
 courts tend to enlarge powers of agents, § 126. 
 contract by officers beyond their powers under the charter and by-laws 
 
 may be good, § 126. 
 agent cannot ratify a contract void by fraud ai initio, § 136 A. 
 agent cannot reinsure his company's risks without special authority, 
 
 § 126 A. 
 mere soliciting agent cannot assent to assignment, § 138. 
 
 nor waive proofs, § 129. 
 
 nor alter policy to make it payable to another than the assured, 
 § 130 A. 
 
 nor assent to assignment, § 138. 
 an alteration of a policy may be ratiiied, § 130 A. 
 
 217 
 
insurance: fike, life, accident, etc. [ch. vil 
 
 an alteration by agent without authority voida policy, tut company 
 
 held by first intention of parties, § 130 A. 
 provision in policy is notice of limitation of agent's authority as to 
 
 waiver of renewal premiums, § 126. 
 provision on back of policy not notice, § 126. 
 
 9. Waivee. 
 
 Receipt of premium by book-keeper does not waive, § 136 A. 
 
 by agent authorized to take premiums after knowledge waives a 
 change of residence, § 136. 
 or forfeiture for non-payment, § 136. 
 secretary may waive breach, § 136. ' 
 by usage, § 137. 
 
 by usual course of business, of condition as to written assent to assign- 
 ment, § 139. 
 No waiver — 
 
 of written assent to increase of risk, § 137 A. 
 
 or removal, § 137 A. 
 of non-payment when policy provides that agent cannot vary it, 
 
 § 137 A. 
 if policy restricts right to waive to home office, § 137 A. 
 or declares that the agent is not to vary the policy, § 137 A. 
 
 such provisions valid as to waivers attempted after issue, 
 
 § 137 A. 
 not as to those before issue unless brought to notice of 
 
 assured, § 137 A. 
 usage may overcome the provision entirely, § 137 A. 
 of proofs of forfeiture by adjuster, § 138. 
 
 10. Company v. Agent. 
 
 Company may recover difference between premium charged and what 
 ought to have been charged if agent had disclosed facts, § 138 B. 
 agent no claim because his term of office is broken by insolvency of 
 
 company, § 138 B. 
 agent exonerated by honestly adopting one of two possible interpreta- 
 tions of an order from company, § 138 B. 
 Cessation of agency ; 
 
 when company goes out of business, § 138 C. 
 
 proofs sent to one who has ceased to be agent good if assured no 
 
 notice, § 138 0. 
 promise to renew by such agent only makes him personally liable, 
 
 § 138 C. 
 annual license to company in name of agent gives him no right to 
 hold to the end of year, § 138 C. 
 Agent's authority may be limited by the terms of the application and 
 the policy, § 137. See § 140. 
 
 11, Agents of Mutual Companies. 
 
 Agents of mutual companies governed by much the same principles 
 as agents of stock companies. Any customary exercise of au- 
 thority known to the principal and not repudiated will bind him, 
 §139. 
 
 218 
 
CH. VII.J AGENTS. — THEIE POWEES AND DUTIES. 
 
 The agent acts in the negotiations only as agent of the company and not 
 of the assured, for the latter is not a memher of the company until 
 the contract is made, § 131 ; and a stipulation in the policy or in 
 the hy-laws that the agent of the company is also the agent of the 
 insured will not make it so if the fact is otherwise. Acts done on 
 behalf of the insurers and without the authority of the insured do 
 not bind the latter. 
 
 An agent's overestimate of value binds the company. If an agent 
 neglects to state an incumbrance mentioned by the insured, com- 
 pany cannot set up his negligence, § 140. 
 
 The law construes the powers of agents of mutual companies more strictly 
 than those of stock company agents, § 127, and in Massachusetts 
 the decisions are very strict, it being held that such agents cannot 
 bind the company contrary to by-laws, §§ 145, 146. Except that 
 by-laws not of the essence of the contract, such as those that 
 relate merely to the form and mode of proving loss, may be waived, 
 §147. 
 In Pennsylvania also the distinction between mutual and stock 
 
 companies is emphasized, §§ 148, 149. 
 See on this subject also the whole text from § 139 to § 151, espe- 
 cially the decision of the United States Supreme Court that a 
 mutual company is bound by the acts and knowledge of its agent 
 in drawing up the application as it is ordinarily done, just as a 
 stock company is liable under the same circumstances. The ap- 
 plication really is often the act of the insurers, § 144. 
 
 secretary as agent of directors, § 139. 
 
 directors may appoint president to indorse, § 139. 
 
 12. Agents as Accident Insurance Companies, § 155. 
 Suh-agents. 
 
 General agent may appoint sub-agents, local agent cannot, §§ 126, 154 A. 
 
 Any sub-agent or clerk appointed by an agent with consent or recog- 
 nition of the company may bind it. The service of an insurance 
 agent is not personal, and he has an implied power of delegation 
 unless restricted, § 154. 
 
 Knowledge of, binds company, §§ 132, 140, 154 A. 
 
 Agent's responsibility for, question for jury, § 154 A. 
 
 13. Agents of the Insuked. 
 
 Principal bound by acts of his agent, § 122. 
 if same person is agent of insured and the company, notice of cancel- 
 lation to him is good, § 122. 
 One recovering insurance money may show, when sued for it, that he 
 
 was the agent of one who had an insurable interest, § 122. 
 Persons referred to by the applicant become his agents for the purposes 
 
 covered by the reference doctors, broker, § 123. 
 Responsible for ordinary care. One having general authority to insure 
 for another may not choose a mutual company, § 124. 
 effecting insurance with irresponsible persons is negligence, § 124. 
 measure of damages in such case, § 1 24. 
 that agency gratuitous no defence, § 124. 
 
 219 
 
§ 118] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 assured may ratify contracts made for his tenefit but without au- 
 thority, § 122 A. 
 full knowledge of facts necessary to valid ratification, § 122 A. 
 constructive knowledge sometimes held sufficient, § 122 A. 
 acceptance of policy ratifies agent's act in giving a premium note, 
 § 122 A. 
 Agent to procure insurance no power to cancel, § 138. 
 
 14. Whose Agent, §§ 124 A, 144 G. 
 
 Medical examiner agent of company, but may not advise as to filling up 
 
 application, § 123. ^ 
 
 persons referred to, how far insured responsible for their statements, 
 
 §123. 
 statements of the "life," § 123. 
 broker employed to effect insurance, agent of one who employs him, 
 
 §§ 123, 124 A. 
 an insurance agent who goes to another, to place part of risk without 
 
 insured's knowledge, does not bind him by misrepresentations, 
 
 § 124 A. 
 but if he acts with authority of insured he isj his agent, § 124 A. 
 clause in policy declaring company not bound by acts of agent will not 
 
 be operative ; the facts must determine whose agent the actor is, 
 
 §§ 124 A, 140, 144 B, 144 E, 144 G. 
 Iowa statute, soliciting agent to be deemed agent of company in spite of 
 
 any agreement to the contrary, § 124 A. 
 agent keeping lists of policies for the assured acts as his agent, and the 
 
 memoranda will not be evidence of recognition of policy by the 
 
 agent's company, § 124 A. 
 if assured asks the agent to gather facts for him he makes him his own 
 
 agent, § 145 A. 
 
 15. Proof of agency must be given by assured, § 138 A. 
 
 power of attorney or resolution of directors good evidence, but not 
 
 necessary, § 138 A. 
 habit of paying policies issued by agent sufficient, § 138 A. 
 receiving application and premium, and issuing policy through 
 
 agent, sufficient, § 138 A. 
 declaration of agent no evidence, § 138 A. 
 foreign agents must have certificate of auditor (Illinois), § 138 A. 
 
 § 118. Agency. — • The contract of insurance is in many, 
 perhaps, more recently, in most cases made through the in- 
 tervention of agents. This gives rise to a multitude of ques- 
 tions, the solution of which more properly belongs to a 
 treatise on the law of agency. Some of these questions, 
 however, are so intimately connected with the subject of 
 insurance, having, so to speak, grown out of its peculiari- 
 ties, as to require special notice in this connection. 
 220 
 
CH. VII.J AGENTS. — THEIR POWERS AND DUTIES. [§ 119 
 
 All incorporated companies must necessarily act through 
 agents, and their respective officers are specially appointed 
 and clothed with powers, more or less specific, to facilitate 
 the transaction of business. To these, in case of emergency, 
 are added special or general agents, who at home and abroad 
 exercise very extensive powers. What is the fair scope of 
 the authority of these agents, now so numerous, to whom 
 are intrusted the duties, partly or wholly, of soliciting risks, 
 receiving and forwarding applications, — being supplied with 
 blanks for that purpose, — receiving premiums and deposit 
 notes, and delivering policies ? This question has given 
 rise to some of the most perplexing difficulties, and to a 
 larger proportion, perhaps, than any other, of the contro- 
 versies in courts of law. And upon a superficial examina- 
 tion of the cases there would seem to be an inextricable 
 confusion, if not an irreconcilable contradiction of opinion. 
 But upon a more careful examination there will almost 
 always be found shades of difference in the facts and cir- 
 cumstances, upon which apparently opposite opinions are 
 founded, sufficient to relieve them from the element of con- 
 tradiction. Still, for the ver'y reason that there is in so 
 many cases in the midst of a general similarity a particular 
 dissimilarity of circumstances, it is difficult, not to say im- 
 possible, to embrace within any formula of words rules that 
 would be sound and reliable. It will doubtless be more 
 satisfactory to state the questions which have arisen, and 
 are likely to arise, with their judicial solution, under each 
 particular head. 
 
 § 119. Authority in soliciting Risks. — And, first, in solic- 
 iting risks, with what powers is the agent clothed? Of 
 course it must be desired and expected by the principal that 
 the agent in this particular will use due diligence — the 
 greater the better, if not unauthorized — in procuring risks 
 and extending the business. This implies that something 
 is to be said of the character, standing, and merits of the 
 company, and of its desirability as a means and protection. 
 And by his statements of fact in this behalf the insurers 
 will be bound. 
 
 221 
 
§ 120] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. Til. 
 
 § 120. Authority as to Application. — But, second, and 
 most important of all, what is the extent of the agent's 
 power with reference to the duty of receiving and forward- 
 ing the application ? Can he to any extent, and if any, to 
 what, bind the company by intervening and aiding in the 
 filling up of the application? That he can so do, to some 
 extent, there can be no reasonable doubt. ^ He is appointed 
 by the company to facilitate and promote their business. To 
 this end he is furnished with the necessary blanks, which, 
 after they are filled up, he is to forward to the company's 
 office. Of course this filling up must be in such manner as 
 to make the application fit for its purpose, and valid as the ■ 
 basis of the contract. The questions propounded therein 
 are those upon which information is desired. These are 
 often very numerous, and not unfrequently quite general and 
 indefinite, and susceptible of being answered briefly and 
 substantially, or with greater or less minuteness of detail. 
 How briefly, and with what degree of minuteness, the appli- 
 cant may not know. The agent must be presumed to be 
 clothed with the power to say when the question is satisfac- 
 torily answered, that is, with' sufficient fulness. Or in an- 
 swering some of the questions it may not be easy to state 
 exactly what the true answer is upon the facts. Viewed in 
 different lights, or from different stand-points, the same 
 question upon the given facts may admit of different an- 
 swers. Cannot the agent say for the company from which 
 stand-point they shall be regarded, and, having become pos- 
 sessed of all the facts, may he not say which answer ought 
 to be given ? Is the building to be insured a shop or a 
 store ? All the facts being made known, and the answer 
 being a matter of doubt, may not the agent, instead of in- 
 cumbering the papers with a multitude of details, agree for 
 the company that it is either, according as he thinks the 
 facts show it to be ? His experience ought to enable him to 
 judge of the true answer, and whether the details ought to 
 be set out, better than the applicant, who wishes only to an- 
 swer truly, and is indifferent as to which answer shall be 
 
 1 [See end of § 144 G.] 
 992 
 
CH. VII.J AGENTS. — THEIR POWEES AND DUTIES. [§1-0 
 
 given. May he not without risk accede to that answer 
 which the agent assures him will be the more proper and 
 satisfactory ? There must be, it would seem, an incidental 
 power lodged in the agent, adequate to the explanation of 
 the proper description of the property or interest to be in- 
 sured, the meaning of the words and phrases used in the 
 questions, and the application of answers to the subject- 
 matter, so far as they may be necessary to perfect the in- 
 strument and render it fit for its purpose, and promote the 
 usefulness and efficiency of the agency. In short, the agent 
 may do in this behalf what could be done at the home office, 
 if the application were filled up there upon conference with 
 the officers; and that the agent may have answered some 
 questions differently from what they would have been an- 
 swered there, does not make his act the less binding upon 
 the company. The fair inference from the fact of appoint- 
 ment is, that the agent is a suitable person and conversant 
 with his business. The applicant naturally and rightfully 
 so looks upon him. It cannot be supposed that he is so 
 restricted and tied down as to destroy his usefulness to the 
 company; and yet if agents so appointed are not to be al- 
 lowed to say a word by way of information or explanation, 
 when fairly and honestly attending to their appropriate busi - 
 ness, which shall attach to the contract and bind the com- 
 pany, it is easy to see that dealing with an agent can be 
 neither satisfactory nor safe; and insurance companies would 
 at once find their business confined to the limited sphere of 
 negotiations with those only to whom the home office is 
 accessible, — a result which, it is fair to assume from their 
 history and mode of doing business, they by no means 
 desire.^ 
 
 It is, moreover, always worth while in considering the 
 question of the extent of the authority of an agent to look to 
 his relations to the company in point of place. If he is 
 remote from his principal, and so situated that were he 
 
 1 Malleable Iron Works v. Phcenix Ins. Co., 25 Conn. 46.5 ; Insurance Co. v. 
 Colt, 20 Wall. (U. S.) 560, 567; Spring Garden Mut. Ins. Co. ... Scott, Leg. Int. 
 March, 1870. 
 
 223 
 
§122] insulunoe: fire, life, accident, etc. [oh. vii. 
 
 obliged to refer questions of doubt which arise within the 
 general scope of the duties to which he is appointed, his use- 
 fulness and efficiency would be materially impaired by the 
 consequent delay ; it is fair to presume that a more liberal 
 exercise of discretion is permissible to him than to an agent 
 having the same general powers, but residing so near to his 
 principal that reference may be practicable and consistent 
 with the success of the agency. ^ 
 
 § 121. Authority as to Premiums. — And, in the third 
 place, what is the extent of the authority of such agents in 
 the matter of the receipt of premiums, whether in money or 
 in notes, &c. ; and, in general, in binding the company by 
 terms and conditions not known to them, except construc- 
 tively, and by waiving terms and conditions stated in the 
 policy, and subject to which alone, as a general rule, they 
 are willing to assume, and do assume, the responsibilities 
 of the contract. 
 
 With these few general observations, designed to direct 
 attention to the various questions likely to arise, and per- 
 haps to indicate to some extent what is conceived to be the 
 spirit and drift of the law, we shall now proceed to call 
 attention to the several causes which may serve to illustrate 
 these suggestions. 
 
 § 122. Agent of Insured. — The agent of the insured to 
 effect insurance is to all intents and purposes regarded in 
 the same light as the principal, and whatever he does per- 
 taining to the matter in his charge will be deemed the act 
 of his constituent. His concealment or his representation, 
 even of a fact not known to his principal, is imputable to 
 the latter; 2 so that when a negligent or fraudulent agent of 
 
 1 Insurance Co. v. Wilkinson, 13 Wall. (TJ. S. ) 222 ; Eames v. Home Ins. Co., 
 94 U. S. 621. 
 
 ^ [It is not true as a universal rule that knowledge of an agent is knowledge 
 of the principal. The master of a vessel may know of its loss, while the owner 
 in a distant land is insuring it, but the policy is not thereby affected, even though 
 the master had had time enough to communicate the loss, but refrained on pur- 
 pose. So the knowledge of the owner himself on board will not affect a policy 
 taken out by his agent at home, if the owner could not communicate in time to 
 save the company. Genl. Interest Ins. Co. v. Ruggles, 12 Wheat. 411-412. 
 Where brokers employed to insure an overdue vessel, receiving word that it was 
 
 224 
 
CH. VII.] AGENTS. — THEIR POWERS AND DUTIES. [§ 122 
 
 one who applies for insurance intervenes between him and 
 an innocent insurer, the party who employs the agent must 
 bear the consequences of the neglect or fraud, upon the prin- 
 ciple, so familiar in all courts of justice, that when one of 
 two innocent persons must suffer by the fraud or negligence 
 or unauthorized act of a third, he who clothed the third with 
 power to deceive or injure must be the one. If either party 
 must suffer by the act of the agent, it must be the party 
 whose agent he is.^ The rule seems to be less strict in 
 cases of other contracts.^ ["When the insurer in issuing a 
 policy deals with a party who remains in possession of the 
 instrument after execution, and is alone entitled to recover 
 the amount thereof, in case of loss, he is authorized to as- 
 sume that such party has power to consent to such changes 
 in it before breach as will inure to the benefit of the in- 
 sured, and tend to perfect the validity of the contract. "^ 
 When A., who has received money on a policy, is sued by 
 C, who claims to be the owner of the property that was in- 
 sured, it is competent for him to prove that he was the agent 
 of another who had an insurable interest in the subject- 
 matter, though he had none himself.* Where the same per- 
 son is at once agent for the policy-holder and the company, 
 the former is bound by a notice to the agent of the cancella- 
 tion of his policy.^] 
 
 lost, discontinued their negotiations and put the company into direct communi- 
 cation with the owners, who insured in that company, and also in another through 
 other hrokers, the knowledge of the brokers affected the owners as to the first 
 company, for the negotiations were really all one, but did not affect them as to 
 the other company. Blackburn v. Vigors, 12 App. Gas. 531 ; Blackburn v. Has- 
 1am, 21 Q. B. D. 144. Knowledge of the loss of the subject-matter of the insur- 
 ance, before the issuance of the policy, by one who is not an agent of the assured 
 for any purpose connected with procuring the insurance, will not affect the in- 
 sured. Clement v. Phoenix Ins. Co., 6 Blatch. 481, 485.] 
 
 1 Fitzherbert v. Mather, 1 T. R. 12 ; NicoU v. American Ins. Co. , 3 W. & M. 
 (U. S. C. C.) 629 ; Carpenter v. American Ins. Co., 1 Story (U. S. C. C), 57 ; 
 Smith V. Empire Ins. Co., 25 Barb. (N. Y.) 497 ; Gladstone i>. King, 1 M. & S. 
 35 ; Lynch v. Dunsford, 14 East, 494 ; Draper v. Charter Oak Ins. Co., 2 Allen 
 (Mass.), 569. 
 
 2 Comfoot V. Fowke, 6 Mees. & Wels. 358 ; Lord Abinger, however, dissent- 
 ing, in a Tery able opinion. 
 
 3 [Martin v. Tradesmen's Ins. Co., 1 01 N. Y. 502.] 
 * [Newson v. Douglass, 7 H. & J. (Md.) 417, 449.] 
 
 6 [Hartford Fire Ins. Co. v. Reynolds, 36 Mich. 502, 507.] 
 
 VOL. I. — 15 225 
 
§ 123 INSUKANCE : FIRE, LIFE, ACCIDENTy ETC. [CH. VII. 
 
 [§ 122 A. Ratification by the Assured. - One may insure 
 in his own name the property of another without his pre- 
 vious authority, and it will inure to the party intended to be 
 insured or protected, upon his subsequent adoption of it, 
 even after a loss has occurred.^ An insurance effected for 
 the benefit of a third person, although without his authority 
 or sanction, may be adopted by the cestui que insurance,^ 
 even after the loss, if within a reasonable time,^ or after 
 payment of proceeds.* One of five trustees can insure the 
 trust property, and the others may subsequently ratify the 
 contract.^ The ratification of an act of agency to be bind- 
 ing must be with full knowledge of all material facts. ^ The 
 acceptance by the assured of a policy, with the intent of 
 holding it as binding on the company, binds him according 
 to the terms expressed, and he cannot be- permitted to plead 
 ignorance of them.^] 
 
 § 123. Referees ; Medical Ezraminers ; Broker. — Persons re- 
 ferred to for information are agents only to a limited extent. 
 They are authorized in behalf of their principal to answer 
 interrogatories, whether verbal or written, so far as it is 
 agreed that they shall be questioned, and the principal is 
 responsible if such referee does not answer correctly, but the 
 referee is not authorized to volunteer information not asked 
 for; and if he does this the principal is not responsible.^ 
 
 Reference to the surgeon's report for answers to interroga- 
 tories about the health of the applicant converts the report 
 
 1 [MiUenberger v. Beacom, 9 Pa. St. 198, 200.] 
 
 2 [Duraad v. Thouron, 1 Porter (Ala.), 238, 247.] 
 
 3 [Watkins v. Durand, 1 id. 251, 254.] 
 * [Snow V. Carr, 61 Ala. 363, 370.] 
 
 5 [Insurance Co. v. Chase, 5 Wall. 509, 514.] 
 
 6 [Owlngs V. Hull, 9 Pet. 607, 629.] 
 
 ' [Monitor Ins. Co. i'. Buffum, 115 Mass. 343, 345. In this case there was a 
 recital in the policy that the agent of the insured had given a deposit note, and 
 it was held that acceptance of the policy was a ratification of the agent's act in 
 giving the note, although the insured was in fact ignorant of it.J 
 
 " Swete V. Fairlie, 6 C. & P. 1, per Ld. Denman, C. J. j Huckman v. Femie, 
 3 M. & W. 505 ; Rawlins v. Desborough, 2 M. & Rob. 328; Everett «. Desbor- 
 ough, 5 Bing. 503 ; Maynard v. Rhode, 1 C. & P. 360 ; Rose v. Star Ins. Co., 3 
 Bigelow Life & Ace. Ins. Cas. 346. See also Rawls v. American Mut. Life Ins. 
 Co., 27 N. Y. 282, 294. 
 226 
 
CH. VII.] AGENTS. — THEIR POWERS AND DUTIES. [§ 123 
 
 into answers as if by the applicant, and any misrepresenta- 
 tion or concealment there is as fatal as if by the applicant 
 personally. 1 It behooves, however, all referees, so far as 
 authorized, to answer carefully all such general questions, — 
 as, for instance, whether there are any other circumstances 
 which would affect the risk, or are important for the com- 
 pany to know, — as may be put to them ; and if the person 
 interrogated is in doubt whether a particular fact known to 
 him is material or important, it is safest to communicate it, 
 as his principal will be responsible for whatever, in fact, 
 may be found by the jury to be material, without regard to 
 his judgment upon that point. ^ But in Wheelton v. Hard- 
 isty 3 it was held that, when the policy contains no express 
 condition that the insured shall be held responsible for the 
 misrepresentations or concealments of the "life" or the 
 referee, and is made on a declaration that the insured be- 
 lieves the statements of the " life " and the referee to be 
 true, they are not his agents, and he is only responsible for 
 the truth of his statement as to his belief, and not for their 
 fraudulent misstatements. If he expressly stipulate for their 
 truth, however, the assured is bound by the statements. of the 
 "life."* When the applicant is referred by the insurers to 
 their medical examiner, it is that he may examine and report 
 as to the life. His duty as medical examiner does not carry 
 with it authority to advise the applicant how he should fill 
 up his application, so as to bind the company.^ But a broker 
 employed to effect a policy of insurance, or to procure its 
 modification, must be regarded as the agent of the party who 
 employs him, and his acts in that behalf bind his principal.^ 
 
 1 Smith V. iEtna Life Ins. Co., 49 N. Y. 211. See also post, § 214. 
 
 2 Lindenau v. Desboroiigh, 8 B. & C. 586 ; s. c. 3 M. & R. 45. But see ^wsi, 
 §§ 201-203. 
 
 " 8 E. & B. 232. This case contains a very careful examination of the prior 
 cases by both court and counsel, which it will be well to refer to. Mutual Life 
 Ins. Co. V. Wager, 27 Barb. (N". Y.) 354. 
 
 ^ Forbes v. Edinburgh Life Assurance Co., 10 Ct. of Sess. Cas., First Series, 
 451. 
 
 ^ Flynn v. Equitable Life Ass. Soc, 67 N". Y. 500, reversing s. o. 7 Hun 
 (IT. Y.), 387. 
 
 6 Standard Oil Co. v. Triumph Ins. Co., N. Y., 5 Ins. L. J. 594 : Union 
 Ins. Co. V. Chipp, 93 111. 96 ; Continental Life Ins. Co. u. Goodall, Cin. Superior 
 
 227 
 
§ 124 A] INSURANCE : FIEB, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 § 124, Duty of the Agent of the Insured. — An agent hav- 
 ing general authority to insure the property of his principal 
 has no authority to effect an insurance in a mutual company 
 whereby he makes his principal an insurer of others.^ The 
 agent employed to effect insurance, it scarcely need be said, 
 is responsible to his principal for every negligence in the 
 performance of his duties. That the undertaking was gratu- 
 itous is no defence, if it was actually entered upon ; ^ though 
 perhaps the breach of a mere gfatuitous promise to under- 
 take would not be actionable. So is he for neglect to make 
 reasonable efforts to insure when it is his duty to obtain 
 insurance if he can;^ and effecting insurance with irrespon- 
 sible parties has been held to be negligence.* The measure 
 of damages in such case is the amount which the irrespon- 
 sible insurers ought to have paid.^ 
 
 [§ 124 A. Whose Agent? {Agent of Company.^ — Where 
 A. goes to B. to get insurance, and B., not being able to 
 place the whole amount in the companies he represents, goes 
 to another insurance agent, C. , B. is not the agent of the 
 assured in this negotiation, without his knowledgCj so as to 
 avoid the policy by his false statements. •* But when the 
 assured filled out an application in Company A., and gave 
 it to A. 's agent to procure insurance in " any good company," 
 and the agent procured the same in Company B., it was 
 held that he was in this transaction the assured's agent 
 solely.'^ The insurance agent cannot be considered in any 
 sense as the agent of the insured in anything connected with 
 issuing the policy.^ A clause in the policy declaring that 
 the company will not be bound by the act of any agent, does 
 not overcome the law which holds the company for the acts 
 
 Ct., 5 Big. Life & Ace. Ins. Cas. 422 ; Marland v. Eoyal Ins. Co., ?1 Pa. St. 
 393. 
 
 1 White V. Madison, 26 N. Y. 117. 
 
 2 Wallace v. Tellfair, 2 T. E. 188, n. ; Wilkinson v. Coverdale, 1 Esp. 75. 
 
 3 Smith V. Lascelles, 2 T. E. 187 ; Smith v. Cologan, 2 T. E. 188, n. (a). 
 
 4 Hurrell v. Bullard, 8 F. & F. 445. 
 •> Smith V. Price, 2 F. & F. 748. 
 
 ^ [McGraw v. Germania Fire Ins. Co., 54 Mich. 146.] 
 T [Fame Ins. Co. v. Mann, 4 111. App. 485, 492.] 
 8 [Commercial Fire Ins. Co. .;. Allen, 80 Ala. 571.] 
 
 228 
 
CH. VII.] AGENTS. — THEIR POWEKS AND DUTIES. [§ 125 
 
 of agents ■within the scope of their authority.^ (a) The facts 
 of the case must determine for whom the person was acting.^ 
 In Iowa it is provided by statute that one soliciting insur- 
 ance or procuring applications shall be deemed the agent of 
 the company, no matter what the policy or application may 
 say to the contrary, wherefore no agreement can convert him 
 into the agent of the assured.^ 
 
 {Agent of Insured. ) — A broker who solicits insurance, and 
 then procures a policy to be issued by the insurer, is not the 
 agent of the company merely by such facts.* Where A. 
 obtains a policy through a broker B., who acts through other 
 brokers, finally in the chain coming to an insurance agent, 
 B. is the agent of A., and payment d the premium to him 
 or to any of the line, except the insurance agent, is not pay- 
 ment to the company.^ An insurance agent agreed with A. 
 to look after his risks in the company he represented, and 
 in others, and reported lists to him showing the amount of 
 his insurances therein, and giving him a receipt for money 
 advanced to pay premiums. These lists were held inadmis- 
 sible in an action by A. against the agent's company, to 
 show any recognition of the policy."] 
 
 § 125. Agent must be disinterested. — It is, of COUrse, 
 elementary law that an agent must not be personally inter- 
 ested adversely to his principal, so that an agent for receiv- 
 
 1 [Insurance Co. u. Lee, 73 Tex. 641.] 
 
 2 [Smith u. Home Ins. Co., 47 Hmi, 30, 37; Deitz v. Ins. Co., 31 W. Va. 
 851 ; Pierce v. The People, 106 111. 11 ; North British, &c. Ins. Co. v. Crutchfield, 
 108 Ind. 518 ; Sullivan v. Phenix Ins. Co., 34 Kans. 170; Kansal v. Minn., &c. 
 Fire Ass., 31 Minn. 17. In Atlantic Ins. Co. v. Carlin, 58 Md. 336, the facts 
 were held to bring the case within the true scope of the clause, and one who re- 
 ceived an application for renewal and remitted the premium, was held the agent 
 of the insured. Insurance Co. v. Cusick, 109 Pa. St. 157; Nassauerw. Insurance 
 Co., id. 507.] 
 
 8 [Continental Life Ins. Co. u. Chamberlain, 132 U. S. 304 ; see infra, 
 § 125, n. (6) adjinem.] 
 
 * [Kings Co. Fire Ins. Co. v. Swigert, 11 Brad. 590.] 
 
 ° [Pottsville Mut. Fire Ins. Co. ..-. Minnequa Springs Imp. Co., 100 Pa. St. 137.] 
 
 6 [Hartford Fire Ins. Co. v. Reynolds, 36 Mich. 502, 506.] 
 
 (a) As to the effect of the agency the insured, see Knights of Pythias v. 
 clause in the policy, making the person Withers, 177 U. S. 260. 
 negotiating the insurance, the agent of 
 
 229 
 
§ 125] insueanoe: fike, life, accident, etc. [ch. vii. 
 
 ing applications ceases to be an agent so long as he acts in 
 a matter in which his personal interest is concerned. If he 
 applies for insurance on his own property, as to that prop- 
 erty he is no agent of the company, (a) He cannot, by the 
 familiar rule of law, as agent, represent antagonistic inter- 
 ests.^ He cannot be the agent of both parties in the same 
 transaction. If he so act, the contract may be avoided by 
 either party. ^ (6) It may happen that during the negotia- 
 
 1 Bentley .•;. Columbia Ins. Co., 17 N. Y. 421, affirming s. o. 19 Barb. (N. Y.) 
 595 ; New Yoi'k Central Ins. Co. v. National Protection Ins. Co., i Kern. (N. Y.) 
 85, reversing s. c. 20 Barb. (N. Y.) 468 ; Utica Ins. Co. v. Toledo Ins. Co., 17 
 Barb. (N. Y.) 132. [An agent making an application on his own property, 
 directly or indirectly, for his own benefit is acting for himself, and is not the 
 agent of the company in the transaction. Spare v. Home Mut. Ins. Co., 19 Fed. 
 Rep. 14 (Oi'.), 1884. He cannot effect insurance in his company on property of 
 which he is part owner, without the knowledge of the company, even though it 
 could be shown that his relation thereto wbls not material to the risk. The 
 ground of the rule is public policy. Ritt v, Washington Mut. & Fire Ins. Co., 
 41 Barb. 353, 357. An agent cannot bind his principal in a contract with him- 
 self. A parol contract between A. and B. for the renewal of a policy on partner- 
 ship property of A. and B., A. being agent of the company, must be approved by 
 the insurer, before it will'bind him. Glens Falls Ins. Co. v. Hopkins, 16 Brad. 
 220. The secretary of a company cannot issue insurance to himself, and such a 
 contract will not be rendered valid by constructive notice to the company by 
 reason of its being placed upon the files. Actual knowledge of the facts is 
 necessary to its ratification. Pratt v. Dwelliug-House Mut. Fire Ins. Co., 53 
 Hun, 101.] 
 
 2 Ibid. [The law will not allow a person to act as agent for both insurer and 
 insured, and if he does so act either party may avoid the contract. People's Ins. 
 Co. V. Paddon, 8 Brad. 447.] 
 
 {a) See ivfra, § 137, and note. an agent, not being limited in his 
 
 (6) An insurance agent cannot act as authority, undertakes to prepare appli- 
 
 agent for both the insurer and the in- cations and take down answers, he is 
 
 sured without the former's knowledge deemed to be acting for the insurer, 
 
 and consent, when such double agency New York Life Ins. Co. v. Fletcher, 
 
 will give rise to any conflict of duties ; 117 U. S. 519, 531 ; U. S. Life Ins. Co. 
 
 and he is not individually liable upon v. Smith, 92 Fed. Rep. 503, 508 ; 
 
 his contract "as agent," to keep prop- supra, § 124 A ; Com'th Mut. F. Ins. 
 
 erty insured in his company. Ramspeck Co. u. Knabe Co., 171 Mass. 265. As 
 
 V. Pattillo, 104 Ga. 772 ; see Teutonia stated infrii, § 500, it is often a question 
 
 Ins. Co. V. Ewing, 90 Cal. 217. Such of fact, or one of mixed fact and law, for 
 
 an agent, when directed to cancel, or to the jury as to each act in a negotiation 
 
 reinsure part of a risk, cannot, in a whether the agent is acting for the coni- 
 
 matter thus involving discretion, act pany or for the insured. See Westfield 
 
 for both companies as to the reinsurance. Cigar Co. u. Ins. Cos., 169 Mass. 382; 
 
 Empire State Ins. Co. v. Am. Central Firemen's Ins. Co. v. Horton, 170 Hh 
 
 Ins. Co., 138 N. Y. 446. When such 258; Lumbermen's Mut. Ins. Co. v. 
 
 230 
 
CH. VII.] AGENTS. — THEIK POWEES AND DUTIES. [§126 
 
 tions, the agent of the insurers in certain particulars may, 
 in certain other particulars, be empowered by the insured to 
 act for him, so that the same person becomes now the agent 
 of one and now the agent of the other contracting party.' 
 
 § 126. Agent's Authority, what it appears to be. — The 
 authority of an agent must be determined by the nature of 
 his business, and is prima facie co-extensive with its' re- 
 quirements.^ [An agent authorized to issue policies binds 
 the company by all waivers, representations, or other acts 
 within the scope of his business unless the insured has 
 notice of a limitation of his powers.^ The question always 
 is, not what power the agent did in fact possess, but what 
 power the company held him out to the public as pos- 
 sessing.*] His power cannot be limited by special private 
 
 1 See post, § 500. 
 
 2 Post, § 144 ; Imperial Fire Ins. Co. v. Murray, 73 Pa. St. 13 ; "Wass v. Maine 
 Mut. Mar. Ins. Co., 61 Me. 537 ; Lycoming Ins. Co. v. Woodworth, 83 Pa. St. 
 223 ; Mentz v. Lancaster Fire Ins. Co., 79 Pa. St. 475 ; Putnam v. Home Ins. 
 Co., 123 Mass. 324 ; Dayton Ins. Co. v. Kelly, 24 Ohio St. 345. 
 
 ^ [Ins. Co. V. Barnes, 41 Kans. 161 (agent misstated title in the application, 
 heing informed of the facts) ; Insurance Co. v. Hogiie, 41 Kans. 524 (renewal in 
 unauthorized manner) ; Phoenix Ins. Co. v. Spiers, 87 Ky. 286.] 
 
 * [Eclectic Life Ins. Co. v. Fahrenkrug, 68 111. 463, 467.] 
 
 Bell, 166 111.400. When an insurance Cooper, 6 Col. App. 25; Buick v. 
 
 broker solicits or is applied to for iusur- Mechanics' Ins. Co., 103 Mich. 75; 
 
 ance, he acts as the applicant's agent British Ins. Co. v. Lambert, 26 Oregon, 
 
 in selecting the insurers, his authority 198; Sellers v. Commercial F. Ins. Co.. 
 
 ceasing when the policy is obtained ; 105 Ala. 282 ; McGonigle a. Susque- 
 
 and if asked by the insured to obtain a hanna Mut. F. Ins. Co., 168 Penn. St. 
 
 renewal, and the insurer sends him a 1 ; Fromherz v. Yankton F. Ins. Co., 
 
 renewal receipt, expecting him to col- 7 So. Dak. 187 ; Kansas Fanners' F. 
 
 lect the premium on its delivery to the Ins. Co. v. Saindon, 52 Kansas, 486 ; 
 
 insured, the premium is paid when the Davis v. Mtnu. Mut. F. Ins. Co., 67 N". 
 
 insured pays it to him, though the in- H. 335. Upon the Iowa statute of 
 
 surer never receives it. Ibid. ; American March 31, 1880, making those who 
 
 Fire Ins. Co. v. Brooks, 83 Md. 22 ; solicit or procure insurance the solicit- 
 
 Michigan Pipe Co. v. Michigan F. & M. ing agent of the company which issues 
 
 Co., 92 Mich. 482 ; 20 L. R. A. 277, a policy on such application, or a 
 
 and note ; Improved-Match Co. v. renewal thereof, anything in the appli- 
 
 Michigan Mut. F. Ins. Co. (Mich.), cation or policy to the contrary not- 
 
 80 N. W. 1088; Croft v. Hanover F. withstanding, see Continental L. Ins. 
 
 Ins. Co., 40 W. Va. 508 ; Goldin v. Co. v. Chamberlain, 132 U. S. 304, 309 ; 
 
 Northern Ass. Co., 46 Minn. 471 ; East Schoep v. Bankers' Alliance Ins. Co., 
 
 Texas F. Ins. Co. a. Blum, 76 Texas, 104 Iowa, 354. In VPisconsin, see 
 
 653 ; Phcenix Ins. a. Spiers, 87 Ky. Stehlick v. Milwaukee Mechanics' Ins. 
 
 285, 297 ; British America Ass. Co. v. Co., 87 Wis. 322. 
 
 231 
 
126] 
 
 INSXJEANCE: fire, life, accident, etc. [CH. VII. 
 
 instructions, unless the insured has notice, or there ■ is 
 something in the nature of the business, or the circum- 
 stances of the case, to indicate that the agent is acting 
 under such special instructions. ^ (a) A provision in the 
 
 1 United States Life Ins. Co. u. Advance Co., 80 111. 549 ; Miller u. Phcenix 
 Ins. Co., 27 Iowa, 203 ; Southern Life Ins. Co. u. McCain, 96 U. S. 84. [Secret 
 or unknown instructions do not affect a person dealing with an a^ent within 
 the apparent scope of his authority. Rivara v. Queen's Ins. Co., 62 Miss.. 720 ; 
 Commercial Union Ass. Co. a. State, 113 Ind. 331 ; Ruggles v. Am. Cent. Ins. 
 Co., 114 N". Y. 415, 421, 1889 ; Breckinridge'u. Amer. Cent. Ins. Co., 87 Mo. 62. 
 Instructions to the agent not communicated to the insured do not affect him. 
 Queen Ins. Co. u. Young, 86 Ala. 424.] 
 
 (a) A limitation upon the authority 
 of an agent of an insurance company, 
 by private instructions given to him by 
 the officers of the company, cannot bind 
 a person with whom he makes an oral 
 contract of insurance, if such person has 
 no knowledge of the limitation. Brown 
 V. Franklin Mutual Fire Ins. Co., 165 
 Mass. 565. See Parker & Young Manuf. 
 Co. V. Exchange F. Ins. Co., 166 Mass. 
 484. 
 
 The authority of the agent to make 
 the contract of insurance enables him, 
 without the aid of the courts, to correct 
 a policy by inserting afterwards property 
 intended to be included, but omitted by 
 mistake: Taylor v. State Ins. Co., 98 
 Iowa, 521 ; or to assent to an assign- 
 ment of the policy to cover a mortgage. 
 German Ins. Co. v. Penrod, 35 Neb. 
 273. With respect to waiver of the 
 breach of a condition in a policy the 
 most liberal view is that the agent's 
 authority is co-extensive with the busi- 
 ness intrusted to his care. Weed v. 
 London & L F.Ins. Co., 116 K Y. 106 ; 
 German Ins. Co. v. Gray, 43 Kans. 
 497. If the agent is empowered to pre- 
 pare, receive, and transmit applications, 
 and to receive payment of the premium, 
 his knowledge acquired in so doing, and 
 his representations then made to the 
 insured, bind the insurer. Home F. 
 Ins. Co. V. Gurney, 56 Neb. 306 ; Perry 
 V. Dwelling-House Ins. Co., 67 N. H. 
 291 ; McDonald v. Phila. F. Ass'n, 93 
 Wis. 348 ; Met'n L. Ins. Co. v. Mul- 
 232 
 
 leady (Ky.), 29 Ins. L. J. 164. But he 
 cannot insure, or waive policy stipula- 
 tions, so as to bind the company, when 
 it is clear that his acts exceed the power 
 it has conferred upon him. Farmers' & 
 M. Ins. Co. ■;. Graham, 50 Neb. 818 ; 
 Eahr c. Manchester F. Ass. Co., 93 
 Wis. 355 ; Ward v. Met'n L, Ins. Co., 
 66 Conn. 227; Sawyer ... Equitable 
 Ace. Ins. Co., 42 Fed. Rep. 30. The 
 insured is bound, in the absence of fraud, 
 to know the measure of an agent's au- 
 thority. Conway v. Phosnix M. L. Ins. 
 Co., 140 N. Y. 79 ; Murphy v. Royal 
 Ins. Co. (La. ), 29 Ins. L. J. 210. As to 
 an agent's power to waive premiums 
 and allow credit, see Smith v. New Eng- 
 land Mut. L. Ins. Co., 63 Fed. Rep. 
 769 ; Smith v. Provident Sav. L. Ass. 
 Society, 65 id. 765 ; Moore v. Eockford 
 Ins. Co., 90 Iowa, 636 ; Arthurholt v. 
 Susquehanna Mut. F. Ins. Co., 169 
 Penn. St. 1 ; Wilkins v. State Ins. Co., 
 43 Minn. 177. As to the authority of 
 insurance agents, see also Paine v. Pacific 
 M. L. Ins. Co., 61 Fed. Rep. 689 ; Mu- 
 tual B. L. Ins. Co. V. Robison, 58 id. 
 723 ; Harrison v. Hartford F. Ins. Co., 
 59 id. 732 ; Henderson v. Travelers' Ins. 
 Co., 65 id. 438 ; Potter v. Phenix Ins. 
 Co. , 63 id. 382 ; Parker v. Rochester 
 G. Ins. Co., 162 Mass. 479 ; Porter v. 
 U. S. L. Ins. Co., 160 Mass. 183; Baker 
 V. Commercial U. Ass. Co., id. 358; 
 Croft V. Hanover F. Ins. Co., 40 W. Va. 
 508 ; Commercial Fire Ins. Co. v. Mor- 
 ris, 105 Ala. 498 ; Fidelity & C. Ins. 
 
CH. VII.] AGENTS. — THEIR POWERS AND DUTIES. [§ 126 
 
 policy that agents are only authorized to collect renewal 
 premiums upon receipts furnished and signed by the presi. 
 dent and secretary, is notice of such limitation of the agents' 
 powers. 1 So is a provision in the policy that they cannot 
 waive any of its conditions.^ But notices printed on the 
 back of a policy, that payment to an agent will not be valid 
 without the production of a receipt, is not.^ The agent's 
 act must appear to be an act in furtherance of the business 
 of his principal. If he is known to have charge of a special 
 branch of his principal's business, his powers can only be 
 exercised in the prosecution of that branch. An agent to 
 make contracts has larger powers than an agent to receive 
 applications to be forwarded to his principal. Stock com- 
 panies have larger powers than mutual companies. So with 
 their agents. A general agent,* in the strict legal sense, is 
 one who has all the powers of his principal as to the busi- 
 ness in which he is engaged, — an extent of authority not 
 often conferred in insurance. In that business an agent is 
 termed a general agent rather with reference to the geo- 
 graphical extent of his authority, in contradistinction to a 
 local agent, who may have original powers, though exercising 
 them within more restricted limits ; and the general agent may 
 appoint local and sub-agents, which a local agent cannot.^ {a) 
 
 1 Merserau v. Phoenix Mat. Life Ins. Co., 66 N. Y. 274 ; Catoir v. Am. Life 
 Ins., &a. Co., 33 N. J, 487 ; po.H, § 138. 
 
 ' Greene v. Lycoming Fire Ins. Co. (Pa.), 9 Ins. L. J. 811 ; Clevengerw. Mut. 
 Life Ins. Co. (Dak.), 9 Ins. L. J. 129. 
 
 s MoNeilly v. Continental Life Ins. Co., 66 N. Y. 23. 
 
 * [An indorsement on the policies " D. C. Heminway, agent," there being no 
 intimation of restriction, entitles the insured to regard H. as a general agent. 
 Fire Ins. Co. v. Building Ass., 43 N. J. 652. "Where a power is general, the 
 agent may do anything to bind his principal which is within the scope of his 
 authority. But if it be special, everything ia void if he does not act in strict 
 conformity to his authority." Allen v. Ogden, 1 Wash. 174, 176.] 
 
 ^ Eossiter v. Trafalgar Ass. Ass'n, 27 Beav. 377. 
 
 Co. «. Teter, 136 Ind. 672 ; Squire v. trout (Berks Co., Penn.), 21 Ins. L. J. 
 
 Hanover F. Ins. Co., 162 N. Y. 552 ; 1055. 
 
 Hamm Realty Co. ti. New Hampshire («) A local or special agent, who has 
 F. Ins. Co. (Minn.), 83 N. W. 41. As no actual authority to enter into a con- 
 to the liability of an insurance agent tract of insurance, cannot delegate such 
 to his principal for failure to obey in- a power to a sub-agent : Stewart v. Hel- 
 structions, see Sun Fire Office V. Ermen- vetia Fire Ins. Co., 102 Cal. 218; 
 
 233 
 
§126] INSUEANCE: FIRE, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 But there seems to be no very well defined distinction 
 between the powers of general agents, local agents, and 
 sub -agents, and therefore they may become, in any case, a 
 question of fact for the jury.^ A general agent of a for- 
 eign company, appointed under a statute, to receive service 
 of process, except as to such matters as facilitate suits 
 against the principal, has no larger powers than are con- 
 ferred by the common law of agency. ^ Nor does such an 
 agency imply the authority to inlServene in the negotiations 
 for a policy.* 
 
 A person authorized to accept risks, to agree upon and 
 
 1 Markey v. Mut. Benefit Life Ins. Co., 103 Mass. 78 ; Kolgevs v. Guard. Life 
 Ins. Co., 10 Abb. Pr. R. N. s. 176. [When an agency is shown, the law does not 
 presume it to be either general or special j that is a question of fact for the jury. 
 Dickinson County v. Miss. Valley Ins. Co., 41 Iowa, 286, 290, 1875.] 
 
 2 Ibid. 
 
 3 Whitcomb v. Phcenix Life Ins. Co., C. Ct. (Mass.), 8 lus. L. J. 624. But 
 see post, § 151 ; Queen's Ins. Co. o. Harris (Pa.), 6 Ins. L. J. 558. 
 
 O'Brien v. New Zealand Ins. Co., 108 
 Cal. 227 ; Home F. Ins. Co. v. Garbacz, 
 48 Neb. 827 ; Teutonia Ins. Co. v. 
 Howell (Ky.), 54 S. W, 852 ; or bind 
 the insurer by his conduct, representa- 
 tions, or admissions. Ibid. ; Phcenix 
 Ins. Co. V. Copeland, 90 Ala. 386. The 
 clerk of such an agent cannot waive for- 
 feitures. German American Ins. Co. v. 
 Humphrey, 62 Ark. 348. See Syndicate 
 Ins. Co. V. Catchings, 104 Ala. 176 ; 
 Harding v, Norwich Union F. Ins. 
 Society, 10 So. Dak. 64. If a local agent 
 has apparent authority by custom, or 
 otherwise, to receive proofs of loss, a de- 
 livery to him constitutes a delivery to the 
 company, even if he had not authority 
 from the nature of his agency to receive 
 them, or if, in the absence of custom, a 
 delivery to him under the circumstances 
 would not have been a reasonable mode 
 of sending the proofs of loss to the com- 
 pany. See Bishop v. Eaton, 161 Mass. 
 496, 500 ; Wheeler u. Watertown Ins. 
 Co., 131 Mass. 1 ; Harnden v. Mil- 
 waukee M. Ins. Co., 164 Mass. 382; Arflf 
 V. star Ins. Co., 125 N. Y. 57; Snyder 
 V. Dwelling-House Ins. Co., 59 N. J. 
 L. 18, 544 ; Nickell v. Phcenix Ins. Co., 
 
 234 
 
 144 Mo. 420 ; Phenix Ins. Co. v. Bad 
 Bila Hora Lodge, 41 Neb. 21 ; Burling- 
 ton Ins. Co. T!. Kennerly, 60 Ark. 532 ; 
 Harrison v. Hartford F. Ins. Co., 59 Fed. 
 Rep. 732 ; Loeb u. American Central 
 Ins. Co., 99 Mo. 60. He may also 
 waive a condition that the waiver of 
 proofs of loss be indorsed. O'Leary v. 
 German-American Ins. Co., 100 Iowa, 
 390. And he may at the request of the 
 insured strike out the iron-safe clause. 
 Parsons v. ICnoxville F. Ins. Co., 132 
 Mo. 583 ; Georgia Home Ins. Co. v. 
 Allen (Ala. ), 24 So. 399. But under a 
 standard policy, like that of Michigan, 
 which provides that an agent can only 
 waive its provisions by indorsement, 
 the agent cannot verbally waive proofs 
 of loss. Wadhams v. Western Ass. Co., 
 117 Mich. 514. An agent's consent not 
 indorsed on the policy, when such in- 
 dorsement is required thereby, is void. 
 Quinlan v. Providence W^ashington Ins. 
 Co., 133 N. Y. 356. But see Dowling 
 V. Lancashire Ins. Co., 92 Wis. 63 ; 
 Miller v. Scottish Union Ins. Co., 101 
 Mich. 49 ; German Ins. Co. v. Rounds, 
 35 Neb. 752 ; St. Paul F. & M. Ins. Co. 
 V, Parsons, 47 Minn. 352. 
 
CH. VII.J AGENTS. — THEIE POWERS AND DUTIES. [§ 126 
 
 settle the terms of insurance, and to carry them into effect 
 by issuing and renewing policies, must be regarded as the 
 general agent of the company, pending negotiations.^ And 
 if he has an appointment as "agent and surveyor," he will 
 be presumed, in the absence of restriction, to have all the 
 powers incident to both capacities.^ But it is held in Mas- 
 sachusetts that such an agent has not authority to waive 
 proofs of loss.^ And the possession of blank policies and 
 renewal receipts, signed by the president and secretary, is 
 evidence of such general agency.* Authority to do a partic- 
 ular act cai'ries with it the authority to make available the 
 ordinary means by which the act may be accomplished. If 
 the president of an insurance company be authorized by the 
 by-laws to "adjust and pay losses," he may indorse notes 
 held by the company and deliver them in payment.^ And 
 though by the charter or by-laws the powei-s of officers may 
 be restricted, they may bind the company though they ex- 
 ceed their powers, especially if such excess is known and 
 acquiesced in.^ 
 
 A secretary, authorized to answer all "communications in 
 behalf of the company," may bind the company by his ad- 
 missions in such correspondence as to the sufficiency of a 
 notice of loss.' So authority to settle the terms upon which 
 a change in the risk may be made carries with it the right 
 to waive a forfeiture by reason of a change in the risk ; ^ and 
 special authority to settle for a loss carries with it the right 
 
 1 Post V. JEtBa Ins. Co., 43 Barb. (N. Y. ) 351 ; Pitney v. Glen's Falls Ins. Co., 
 65 N. Y. 6, affirming s. c. 61 Barb. (N. Y.) 335 ; post, §§ 129, 138. 
 
 2 Lycoming Fire Ins. Co. v. Woodworth, 83 Pa. St. 223. 
 
 3 Lohraes v. Ins. Co. of N. A., 121 Mass. 439. 
 
 * Carroll v. Charter Oak Ins. Co., 40 Barb. (N. Y.) 292. [If a foreign com- 
 pany appoints A. and B. as local agents, and supplies them with blank policies 
 signed by the company, and which they may fill up and countersign, they are 
 its general agents. Continental Ins. Co. v- Ruckman, 127 111. 364.] 
 
 5 Baker v. Cotter, 45 Me. 236. 
 
 ^ Ibid. Agents may also act as effectually by clerks as by themselves per- 
 sonally. Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117 ; Eclectic In.s. Co. v. 
 Fahrenkrug, 68 111. 463 ; Coutinental Life Ins. Co. v. Goodall, Cincinnati Supr. 
 Ct., 5 Big. Life & Ace. Ins. Gas. 422 ; post, § 155. 
 
 ' Troy Fire Ins. Co. v. CaiTienter, 4 Wis. 32. 
 
 8 North Berwick Co. v. New England Fire & Mar. Ins. Co., 52 Me. 336. 
 
 235 
 
§ 126 A] INSUEANCE: FIEE, LIFE, ACCIDENT, ETC. [CH. Til. 
 
 to extend the time limited by the conditions of the policy, 
 within which the statement of the loss is to be made.^ But 
 authority to take applications and surveys, to receive pre- 
 miums and give certificates of insurance, subject to the ap- 
 proval of the directors, does not give authority to make a 
 contract not subject to such approval.^ It is to be observed, 
 however, that the decided inclination of the courts is to ex- 
 tend, rather than restrict, the power of agents as to all that 
 they may say or do touching the contract. ^ (a) Authority, 
 however, to two persons to act as "agent" terminates with 
 the death of either.* 
 
 [§ 126 A. Agents authorized to take applications for in- 
 surance are acting within the scope of their authority in 
 everything which they do, which may be necessary to com- 
 plete such applications.^ An agent cannot effect insurance 
 in another company to protect his own company on property 
 covered by it, without special authority, and where the same 
 person is agent for both companies, such conduct is a breach 
 of trust. ^ One who has authority to take applications, re- 
 ceive and receipt for premiums, forward them, receive 
 policies from the company, and deliver them after counter- 
 signing them, has no power to bind the company by a con- 
 tract of insurance in any other way than by delivery of a 
 policy issued by the company.'^] 
 
 1 Lycoming County Mut. Ins. Co. v. Schollenberger, 44 Pa. St. 259. 
 
 2 Insurance Co. v. Johnson, 23 Pa. St. 72 ; Morse v. St. Paul's Fire & Mar. 
 Ins. Co., 21 Minn. 407. 
 
 8 Union Mut. Ins. Co. v. Wilkinson, 13 Wall. (U. S.) 222. And see post, 
 § 509. 
 
 * Hartford Ins. Co. v. Wilcox, 57 111. 180 ; Martine v. International Life Ins. 
 Co., 62 Barb. (N. Y.) 181 ; affirmed, 53 ST. Y. 339. 
 
 6 [Combs V. Hannibal Savings & Ins. Co., 43 Mo. 148, 152.] 
 
 6 [London, &c. Fire Ins. Co. v. TurnbuU, 86 Ky. 230.] 
 
 ' [Armstrong v. State Ins. Co., 61 Iowa, 212.] 
 
 (a) Neither the agency nor the extent Van Sickle v. Keith, 88 Iowa, 9; 
 
 of its powers can he established by the O'Leary v. German-American Ins. Co.,. 
 
 declarations of the supposed agent with- 100 id. 390; Dickerman o. Quincy 
 
 out the knowledge of his principal ; but Mut. F. Ins. Co., 67 Vt. 609 ; Eaton v. 
 
 the agent may prove his agency and Granite State Provident Ass'n, 89 
 
 powers by his own testimony and oath. Maine, 58. 
 
 236 
 
CH. VII.J AGENTS. — THEIR POWERS AND DUTIES. [§ 128 
 
 § 127. Agents of Stock and Mutual Companies. — In gen- 
 eral, it may be said that the agents and officers of companies 
 organized with a capital stock divided into shares have 
 greater powers in determining what shall be the terms of 
 the contract and in waiving a compliance with its stipula- 
 tions, than those of companies organized on the mutual prin- 
 ciple, in which the by-laws are made to fix and regulate, by 
 the same stipulations in every policy, the rights of all the 
 assured alike. ^ And it will be seen as we proceed, that 
 while some courts, as those of Massachusetts and New Jer- 
 sey, with a view to promote the safety and efficiency of such 
 companies, have confined the powers of the agents and offi- 
 cers of mutual insurance companies strictly within the limits 
 marked out by their charters and by-laws as interpreted in 
 the light of the purposes for which such companies were 
 established, others, looking rather to the protection and 
 safety of those who are dealing with such officers and agents, 
 have shown a perhaps increasing inclination to give a liberal 
 construction to those provisions of the charters and by-laws 
 which tend to limit such powers. 
 
 § 128. May bind the Company by Parol Contract. — It has 
 been at length settled by numerous decisions, as we have 
 already seen,^ that the officers of a company may make a 
 valid contract of insurance even by parol, and may bind the 
 company which they represent by an agreement to insure as 
 effectually as by a policy issued in due form, even where the 
 charter of the company requires that every contract, bargain, 
 policy, or other agreement shall be in writing, signed by the 
 president, and sealed with the corporate seal. But the ex- 
 ercise of such powers will not bind the company unless 
 clearly within the scope of the agent's authority and of the 
 powers of the company. While a parol agreement to issue 
 a policy would be valid, a merely collateral promise or rep- 
 resentation which does not involve the execution of a policy 
 would not be ; as is shown by the following case. The plain- 
 tiff, though a broker, applied to the defendants for insurance 
 
 1 Brewer v. Chelsea Mut. Fire Ins. Co., 14 Gray (Mass.), 203. 
 
 2 Ante, § 14 c< seq. 
 
 237 
 
§ 129] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 to a definite amount, and was informed that it would be 
 taken. The defendants subsequently sent to the broker 
 their own policy for a part, and the policies of three other 
 companies for the residue, executed by an agent for the lat- 
 ter companies. The broker on receiving the policies wrote, 
 in the absence of his principals, to the defendants, to say 
 that he doubted whether the three latter policies would be 
 accepted, alleging as a reason that the agent had not a good 
 reputation for settling losses, and adding, "I don't know 
 whether it is your custom to guarantee the offices you insure 
 in or not. If you do, I may prevail on" the plaintiff "to 
 hold the policies." The secretary of the defendants, in 
 reply, wrote: "In handing the policies" to the plaintiff, 
 "you can say that, if the boat is not insured in offices satis- 
 factory to him, we will have them cancelled; but, though 
 they are not reinsurances, yet, in case of loss, we will feel 
 ourselves bound for a satisfactory adjustment. We deem 
 the companies good, and if any parties can settle with them, 
 we can." On the faith of this letter the transaction was 
 closed; and one of the substituted companies having failed, 
 and a loss having occurred, a special action was brought 
 against the defendants, which resulted unfavorably to the 
 plaintiff, on the ground that such a contract was not within 
 the scope of the secretary's authority, because not strictly 
 within the scope of the powers granted to the corporation.^ 
 
 § 129. General Agent of Stock Company, pending Negotia- 
 tions. — The power of an agent of a stock company held out 
 by the company to the public as such, and intrusted with 
 policies in blank, signed by the president and secretary, and 
 to be filled up, indorsed, countei'signed, and issued by the 
 agent, is plenary as to the amount and nature of the risk, 
 the rate of premium, and generally as to the terms and con- 
 ditions of the contract; and he may make such erasures, ex- 
 planations, memoranda, and indorsements, and give such 
 advice and information, modifying or limiting the general 
 provisions of the policy, and even inconsistent therewith, as 
 
 1 Constant ■;. The AUeglieny Ins. Co., 3 Wall. Jr. (U. S. C. C. ) 313 ; s. c. 
 1 Am. Law Eeg. N. s. 116. 
 
 238 
 
en. VII.] AGEKTS. — THEIR POWEES AND DUTIES. [§ 129 
 
 in his discretion seems proper, before the policy is delivered 
 and accepted, or even after, if tliis be his habit known to 
 the office.^ Haying the authority to make an original con- 
 tract upon terms similar to those contained in the policies, 
 signed in blank, intrusted to him, and being clothed with 
 such general powers, he may before the delivery modify the 
 terms and conditions so as to make the company liable for 
 loss by special cause, from liability for which the general 
 printed terms of the policy would exempt them, and allow 
 the insured to keep articles, use modes of heating, and carry 
 on branches of manufacture prohibited by the printed terms 
 of the policy, without risk of forfeiture. So he may bind 
 them by a parol contract to renew from time to time,^ and 
 by a parol contract to issue a policy.^ He may also insert 
 by memorandum or indorsement a description of the prop- 
 erty insured inconsistent with the description of the same 
 contained in the application, and such change will be effect- 
 ual to protect the insured, although the policy itself provides 
 that all the conditions named in the survey or application 
 are to be fully complied with; and such survey and descrip- 
 tion shall be deemed to be a part of the policy, and a war- 
 ranty on the part of the insured.* These acts of the agent, 
 it is to be observed, are such as are done in the process 
 of negotiation,^ and while the contract is yet incomplete. 
 When once the contract is perfected, the agent's power with 
 
 1 Gloucester Manuf. Co. v. Howard Fire Ins. Co., 5 Gray (Mass.), 498 ; 
 Brockelbank v. Sugrue, 5 C. & P. 21 ; Warner v. Peoria Mar. & Fire Ins. Co., 
 14 Wis. 318 : Dayton Ins. Co. v. Kelly, 24 Ohio St. 345 ; ante, § 126 ; Rowley v. 
 Empire Fire Ins. Co., 36 N". Y. 550; Malleable Iron Works v. Phosnix Ins. Co., 
 25 Conn. 465 ; Combs v. Hannibal Ins. Co., 43 Mo. 148; Moliere v. Penn Fire 
 Ins. Co., 5 Eawle (Pa.), 342; Benson v. Ottawa Agr. Ins. Co., 42 U. C. (Q. B.) 
 282 ; Marcus v. St. Louis Ins. Co., 68 N. Y. 625. But see Hartford Fire Ins. 
 Co. V. Webster, 69 111. 392. [A general agent has power to modify or cancel a 
 contract which he has the power to make. Anderson v. Coonley, 21 Wend. 279, 
 280. When by mistake the policy was made payable to A., but by indorsement 
 thereon, the secretary changed it to B., the real party applicant, it was held a 
 valid contract with B. Solmes v. Rutgers Fire Ins. Co., 3 Keyes, 416, 418.] 
 
 2 Baubie v. Mtna. Ins. Co., 2 Dill. C. Ct. 156. 
 
 8 Angell V. Hartford Fire Ins. Co., 59 N. Y. 171. 
 * See cases cited, n. 1, p. 225. 
 5 Post, § 144. 
 
 239 
 
§ 130] INSURANCE : FIEB, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 reference thereto is in many respects exhausted ; ^ and his 
 power to deal with facts and circumstances arising after the 
 completion of the contract is by no means so extensive.^ 
 An agent authorized to take risks and issue policies cannot, 
 for instance, waive preliminary proofs.^ 
 
 § 130. Same Subject ; Authority to insure Property located 
 beyond his District. — And such a general agent, authorized 
 to effect insurance "for a particular city and its vicinity," 
 may nevertheless insure property located beyond the geo- 
 graphical limits of his agency, and within those of another 
 agent. Private instructions restricting his agency cannot 
 affect the relations between the insured and the insurers. 
 Besides, such a restriction would seem to apply rather to 
 the sphere within which the agent should act, than to the 
 property which, while acting within prescribed limits, he 
 might insure, although located beyond those limits.* He 
 may also bind his principal, even though he act contrary to 
 his instructions, if what he actually does is fairly deducible 
 from his authority as general agent, the instructions which 
 he violated not being known to the insured. If such agent 
 fails in his duty to his principal it is no fault of the in- 
 sured.^ And the delivery by such agent of a policy to which 
 the insured is fairly entitled in execution of a subsisting 
 agreement is good, although before its delivery the insurers 
 notify the insured that they will not be bound by it, and that 
 they have revoked the authority of the agent to act for them.^ 
 Notice to him that gunpowder is at the time of insurance, 
 and will thereafter be, kept on the premises for sale, is a 
 notice to the company ; and if after such notice a policy be 
 issued containing a condition that if gunpowder is so kept, 
 
 1 Healey v. Imperial Fire Ins. Co., 5 Nev. 268. 
 
 2 SeeposC, §§131, 138. 
 
 2 Lohnes v. Insurance Co., 121 Mass. 439. See also Wilson v. Genesee 
 Mut. Ins. Co., 14 N. Y. 418, reversing s. o. 16 Barb. (N. Y.) 511 ; Bush v. 
 Westchester Fire Ins. Co., 63 N. Y. 531 ; Reynolds u. Continental Ins. Co., 
 36 Mich. 131. 
 
 " Lightbody i). North American Ins. Co., 23 Wend. (N. Y.) 18. 
 
 6 Gloucester Mauuf. Co. i/. Howard Fire Ins. Co., 5 Gray (Mass.), 497. 
 
 8 Lightbody u. North American Ins. Co., 23 Wend. (N. Y.) 18; AVoodbury 
 Savings Bank v. Charter Oak Ins. Co., 31 Conn. 517. 
 
 240 
 
CH. TII.J AGENTS. — THEIE POWERS AND DUTIES. [§ 131 
 
 without written permission in the policy, the policy shall be 
 void, the condition is waived.^ 
 
 [§ 130 A. Alteration of Policy. — When the original policy 
 was rendered void by an act of the agent, who with good in- 
 tentions, but without authority, altered the policy to make it 
 correspond to the agreement, and a loss thereafter occurred, 
 the company were held bound by the first intentions of the 
 parties. 2 An agent who forwards the application to the 
 company and whose power is therefore manifestly limited to 
 delivery of the policy and receipt of the premium, cannot 
 rightly be supposed to have power to alter the contract by 
 the insertion of a clause agreeing to pay the loss to an- 
 other than the assured. An agent undertaking to procure a 
 change in a policy acts for the insured.^ A clause inserted 
 in a policy without authority may be ratified by the company.^] 
 
 § 131. Same Subject ; Opinions. — Mistakes of emission or 
 commission, made by such an agent in the description of 
 the property insured or otherwise, he knowing or having the 
 means of knowing the truth, and not being misled by the 
 insured, cannot be availed of by the company to the preju- 
 dice of the latter.^ Though it has been held that the agent 
 cannot give a partner who insures the partnership property 
 in his own name only, under the belief, induced by the ex- 
 pressed opinion of the agent to that effect, that such insur- 
 ance would cover the copartnership interest, a claim against 
 the company for more than his own interest,^ it has been 
 distinctly held to the contrary in several well-considered 
 cases. ^ And where one party who owns a building joins 
 
 1 Peoria Mar. & Fire Ins. Co. v. Hall, 12 Mich. 202 ; post, § 132 ; Manhattan 
 Fire Ins. Go. v. Weill, 28 Grat. (Va. ) 389 ; Mobile, &c. Ins. Co. v. Miller, 58 
 Ga. 420. 
 
 2 [Bunten v. Orient Mut. Ins. Co., 2 Keyes, 667, 669.] 
 
 s [Duluth National Bank v. Knoxville Fire Ins. Co., 85 Tenn. 76, 85.] 
 < [Andrews v. jEtna Life Ins. Co., 92 N. Y. 596.] 
 
 5 Ayres v. Home Ins. Co., 21 Iowa, lS5 ; Emery v. Piscataqua Fire & Mar. 
 Ins. Co., 52 Me. 322 ; Wew England Fire & Mar. Ins. Co. v. Schettler, 38 111. 
 166 ; ^tna Live-Stock, &o. Ins. Co. v. Olmstead, 21 Mich. 246. 
 
 6 Peoria Mar. & Fire Ins. Co. v. Hall, 12 Mich. 202. 
 
 ' Manhattan Ins. Co. v. Webster, 9 P. F. Smith (Pa. ), 227 ; Anson v. 
 Winnesheik Ins. Co., 23 Iowa, 84. See also Keith v. Globe Ins. Co., 52 111. 508 ; 
 Aurora Fire Ins. Co. v. Eddy, 55 111. 213, 222. 
 
 VOL. I. — 16 241 
 
§ 131] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 with another party who owns the personal property within 
 the building, in an application, which is filled up and for- 
 warded by the agent of the company to whom all the facts 
 are known, and a policy is issued purporting to insure the 
 parties as joint owners of the real and personal estate, the 
 insurers will be estopped to deny that the title is a joint 
 one.i So if the general agent makes a mistake as to the 
 character of the insurable interest of the applicant, the facts 
 being correctly stated to him, and sets it down as an abso- 
 lute, instead of a qualified, interest, which it really is, the 
 company is estopped to deny that the interest is truly 
 stated. 2 So if the agent express the opinion that the an- 
 nual premium will fall due on a certain day,' or that it is 
 not necessary to state that he has had sunstroke,* or that 
 certain outstanding judgments do not amount to an incum- 
 brance, — such errors of opinion will be imputable to the 
 company ; and a statement that there is no incumbrance will 
 not avoid the policy, notwithstanding the policy provides 
 that if the agent of the company assumes to violate any of 
 its conditions, such violation shall be construed to be the 
 act of the insured, and shall render void the policy.^ So, if 
 
 ' Peck V. New London Co. Mut. Fire Ins. Co., 22 Conn. 575. 
 
 2 Atlantic Ins. Co. v. Wright, 22 111. 462. See also Ashford v. Victoria Mut. 
 Fire Ins. Co., 20 U. C. (C. P.) iSi. Though the agent's authority be limited to 
 soliciting and forwarding applications, this authority implies the right to do 
 whatever may be necessary, by way of suggestion in matters of description or 
 otherwise, to perfect it. Combs v. Hannibal Ins. Co., 43 Mo. 148. 
 
 ^ Campbell v International Life Ass. Soc, 4 Bosw. (N. Y. ) Superior Ct. 298 ; 
 }iost, § 134. 
 
 * Boos V. World Mut. Life Ins. Co., 6 T. & C. (N. Y.) 364 ; s. c. 64 N. Y. 
 236. 
 
 ^ " If," said Mr. Chief Justice Woodward, in Columbia Ins. Co. v. Cooper, 
 50 Pa. St. 331, "the agent returned that there were no incumbrances, when he 
 had been informed that there were judgments and a lease, he may have violated 
 the ' conditions ; ' but no company has a right to select and send out agents to 
 solicit patronage and business for its benefit, and then to saddle their blunders 
 1 upon its customers. If the assured combine with the agent to cheat the com- 
 pany, we protect the company (referring to Smith v. Ins. Co., post, § 149) ; but 
 if the assured has covenanted for nothing, and has been guilty of no misrepresen- 
 tation, concealment, or fraud, the company had better pay hia loss, than to 
 attempt to make him responsible for the blunders of their agent." And to the 
 suggestion that, the assured being a member of a mutual insurance company, the 
 agent was his agent, the learned judge replied : "The charters of these mutual 
 
 242 
 
CH. Vll.j AGENTS. — THEIK POWERS AND DUTIES. [§ 132 
 
 the agent express the opinion that an accidental omission of 
 which he is informed will make no difference.' 
 
 § 132. Agent's Kno-wledge, Knowledge of Principal. — Facts 
 material to the risk, made known to the agent (or a sub- 
 agent ^ intrusted with the business) before the policy is 
 issued, are constructively known to the company, and can- 
 not be set up to defeat a recovery on the policy. ^ If the 
 agent proceeds and fills out the application upon his own 
 knowledge, the principal cannot question the correctness of 
 his statements.* So the issue of a policy, after verbal notice 
 to the agent of an existing incumbrance, is a waiver of the 
 written notice required by the terms of the contract.^ And 
 it has even been held that the knowledge by an agent of the 
 assignment of a policy, prior to the declaration of bank- 
 ruptcy, is notice to the company sufficient to prevent the 
 policy from passing to the assignee in bankrupcty.^ But 
 consent of an agent for securing applications to an assign- 
 ment will not bind the company, when the very form of the 
 assignment on the policy implies that it requires the con- 
 sent of an ofificer of the company.''' And especially will the 
 agent bind the company, if the applicant be compelled by 
 the rules of the company, either to apply to the agent to 
 make the survey, or to make it himself, strictly in accord- 
 companies do mate the assured members, but I take it membership does not be- 
 gin till the contract is complete and the policy issued. As to all preliminary 
 negotiations, the agent acts only on behalf of the company." 
 
 1 Farmers' & Merchants' Ins. Co. o. Chesnut, 50 111. 111. 
 
 2 [The knowledge of a clerk of the agent sent by him to solicit insurance and 
 take an application, that there was other insurance, binds the company as much 
 as if the agent, master of the clerk, knew of it. Bennett v. Council Bluffs Ins. 
 Co., 70 Iowa, 600.] 
 
 3 People's Ins. Co. v. Spencer, 53 Pa. St. 353 ; Liddle v. Market Fire Ins. 
 Co., 4 Bosw. (N. Y.) 179 ; Beal v. Park Ins. Co., 16 Wis. 257 ; Kelly v. Troy 
 Fire Ins. Co., 3 Wis. 229 ; Hough v. City Fire Ins. Co., 29 Conn. 10 ; Keenan v. 
 Mo. State Mut. Ins. Co., 12 Iowa, 126 ; Combs v. Hannibal Savings & Ins. Co., 
 43 Mo. 148 ; Plumb v. Cattaraugus Mut. Ins. Co., 18 N. Y. 392 ; Ashford u. 
 Victoria Mut. Ins. Co., 20 U. C. (C. P.) 434 ; ante, § 130 ; post, § 162 ; May v. 
 Buckeye Mut. Ins. Co., 25 Wis. 291. 
 
 ■* Commercial Ins. Co. v. Ives, 56 111. 402. 
 6 Ames V. N. Y. Union Ins. Co., 14 N. Y. (4 Kern.) 253. 
 6 Gale V. Lewis, 16 L. J. N. s. (Q.B.) 119. 
 
 '' Stringhara i:. St. Nicholas Ins. Co., 3 Keyes (X. Y.), 280. But see Farmers 
 Mut. Fire Ins. Co. v. Taylor, 73 Pa. St. 342. 
 
 243 
 
§ 133] INSURANCE ; FIRE, LIFE, ACCIDENT, ETC. [CH. Til. 
 
 ance with certain requirements, and the agent is so applied 
 to ; 1 or if the company depends upon its own knowledge of 
 the facts furnished by its agent after a personal examina^ 
 tion. The issue of a policy under such circumstances is an 
 assertion of its validity, however untrue may be the state- 
 ments of the application, which the insurers cannot be 
 allowed to gainsay. ^ 
 
 § 183. Misrepresentations and Torts of Agent. — The agent 
 of a stock company, appointed under its by-laws to solicit 
 risks, receive and transmit applications, receive back and 
 deliver policies, and receive notes for the premiums on 
 marine risks, and cash for those on fii-e risks, whose ser- 
 vices are paid for by the company by a commission on the 
 premiums received by him, and who is specially authorized 
 by the president and secretary to state to applicants for in- 
 surance, who inquire upon the subject, that the capital of 
 the company is all paid in and invested according to law, 
 may also bind the company by his representations as to the , 
 condition of the company and its ability to fulfil its con- 
 tracts.^ And the company is liable to third persons for any 
 injurious statements or acts in the course of his employ- 
 ment.^ [The representation of an insurance agent made in 
 good faith, but without authority, that neglect to pay the 
 premiums would not work a forfeiture but would simply turn 
 the policy into a paid-up policy, binds the company, so far 
 that neglect to pay premiums on the faith of the statement 
 will not avoid the policy.^ A misrepresentation of the 
 agent that non-occupancy had rendered the policy void, in 
 consequence of which false statement the plaintiff settled for 
 one -fourth of his rightful claim against the company, is not 
 
 1 Roth V. City Ins. Co., 6 McLean (U. S. C. Ct.), 324. 
 
 2 Cumberland Valley Mut. Prot. Ins. Co. o. Schell, 29 Pa. 31 ; Com. Ins. Co. 
 a. Ives, 56 111. 402. 
 
 " Fogg et al. V. Griffin et al., 2 Allen (Mass.), 1 ; Williams et al. v. Pew, id. ; 
 Jones V. Dana, 24 Barb. (N. Y. ) 395. 
 
 * New York Life Ins. Co. v. McGowan, 18 Kans. 300 ; Martin v. Jiltna Life 
 Ins. Co. (Teun.), 4 Ins. L. J. 899 ; American Ins. Co. v. Capps, 4 Mo. App. Rep. 
 571 ; Eilenberger v. Protective Mut. lus. Co. (Pa.), 8 Ins. L. J. 822, 823 ; 89 Pa. 
 St. 464. 
 
 6 [Lovell V. St. Louis Mut. Life Ins. Co., Ill U. S. 264.] 
 
 2-14 
 
CH. VII.J AGENTS. — THEIR POWEES AND DUTIES. [§ 133 
 
 actionable, whether it be regarded as a statement of the law 
 oi insurance or of opinion in regard to a fact.^ A misrepre- 
 sentation by a soliciting agent in regard to the policies of a 
 rival company is not such fraud as to avoid the contract of 
 the assured to pay the premium. It induced him to take the 
 policy ; but the means of information were equally open to 
 both parties, and the insured should not have relied on the 
 "trade talk " of the agent.^ Where a soliciting agent showed 
 the plaintiff a pamphlet describing the tontine system, which 
 plaintiff read, and the policy provided that no statements of 
 the agent should bind the company unless reduced to writ- 
 ing and presented to the officers at the home office, it was 
 held that evidence of misrepresentations made by the solicit- 
 ing agent were inadmissible. In view of the full description 
 in the pamphlet and the provisions of the policy, the agent's 
 remarks were mere recommendations and expressions of his 
 own opinion upon which the plaintiff had no right to rely.'^ 
 The declarations of a stranger, though made in the presence 
 of an officer of the company, must not be relied on without 
 inquiring if they represent the intentions of the company.^] 
 And it seems that the local agent of a mutual company is 
 presumed to be authorized to make answers to inquiries as 
 to the standing, pecuniary or otherwise, of the company he 
 represents,^ though not as to the territorial limits within 
 which the company takes risks,^ unless the assured has 
 notice that the company will not be bound by any such 
 statements, or other statements not contained in the appli- 
 cation.'' But not every such statement will bind the com- 
 pany. An agent appointed to " transact business " for the 
 insurers, "and for those who are insured or make applica- 
 tion to be insured" by them, has no authority to bind the 
 
 1 [Thompson v. Phcenix Ins. Co., 75 Me. 55.] 
 
 2 [American, cSfcc. Ins. Co. v. Wilder, 39 Minn. 350, Dickinson, J., dissenting.] 
 
 3 [Simons v. N. Y. Life Ins. Co., 38 Hun, 309.] 
 
 * [East Tex. Fire Ins. Co. o. Coffee, 61 Tex. 287.J 
 
 5 Devendorf v. Beardsley, 23 Barb. (N. Y.) 656. And see jKst, § 552. 
 
 6 Hackney v. Alleghany Co. Mut. Ins. Co., 4 Barr (Pa.), 185 ; post, § 148. 
 
 ' Shawmut Mut. Fire Ins. Co. v. Stevens, 9 Allen (Mass.), 332; Chase v. 
 Hamilton Mut. Ins. Co., 20 N. Y. 52. 
 
 245 
 
§ 133] insurance: FIEE, life, accident, etc. [cH. VII. 
 
 company by a promise that the insured shall not be called 
 upon to pay any assessment on his premium note ; though if 
 the agent falsely represent that the delivered policy is free 
 from assessment, the applicant will be entitled to such a 
 one;i nor will his highly colored statements as to the actual 
 pecuniary condition and future prospects of the company, not 
 absolutely and materially fraudulent, but allowable within 
 the fair range of embellishment and chaffer in the matter 
 of bargain, vitiate the policy which the insured has been 
 induced to accept under such promises and representations, 
 unless calculated in the opinion of the jury to impose upon 
 a careful and prudent man. If the representations are of 
 such a character that they would vitiate other contracts, 
 they will vitiate the contract of insurance, not otherwise. 
 The stringent rules applied to misrepresentations by the 
 insured in obtaining insurance, apply only to statements 
 materially affecting the risk, and do not apply to the mis- 
 representations of the insurers in procuring parties to in- 
 sure.2 In this case a reluctant and hesitating defendant 
 was told by the agent that the company had a great sum of 
 money in its treasury, enough to pay all the losses for five 
 years ; that if he would pay five dollars that would be all 
 he would have to pay ; and that there would be a dividend 
 among those insured at the end of five years. He was thus 
 induced to pay the five dollars and take the policy. Instead 
 of the dividend came a series of assessments, which he un- 
 successfully resisted, on the ground that the policy was void 
 by reason of the misrepresentations whereby he was induced 
 to accept it.^ In Pennsylvania it has been held that the 
 
 1 Keller v. Equitable Fire Ins. Co., 28.1nd. 170. 
 
 2 Farmers' Mut. Fire Ins. Co. v. Marshall, 29 Vt. 23. 
 
 ' Some observations of Redfield, C. J., are worthy of a place here ; " To what 
 extent the agent's representations, in effecting insurances, will bind the company, 
 is a question of more difficulty. For although he is undoubtedly a general agent 
 for transacting a particular department of the business of the company, in a 
 limited district, still his power to bind the company is certainly not unlimited. 
 The authority of a general agent is restricted to the range of .his employment and 
 the acts and representations which a prudent and ordinarily sagacious and ex- 
 perienced person might expect him to do, or to be authorized to make on behalf 
 of his principal. The representation claimed in the present case was a remarkable 
 246 
 
CH. VII.] AGENTS. — THEIR POWERS AND DUTIES. [§ 133 A 
 
 agents of a mutual insurance company cannot prejudice the 
 rights of the company by misrepresentations as to the places 
 wliere risks were located ; as that the company did not take 
 risks in cities.^ 
 
 [§ 133 A. Tacts known to Agent before Issue. — A policy 
 cannot be avoided by the company on the ground of facts 
 known to the agent at the time he made the survey and 
 application, or at any time before issue of the policy. ^ 
 
 one, and one not very well calculated to impose upon men much experienced in 
 the manner of transacting the business of .such companies. But so large a pro- 
 portion of the people, especially in the remote rural districts of the State, are 
 almost whoUj' ignorant upon these points, and are, in consequence, so readily 
 made the victims of interested solicitors on behalf of the numerous insurance 
 companies, who are found, I believe, always ready and urgent to insure one 
 against aU the calamities of life, that courts ought not, perhaps, to require any 
 very rigid rules of circumspection in these matters from wholly inexperienced per- 
 sons. It seems to us altogether a question of fact, whether a given representation 
 was really calculated to impose upon a careful and prudent man. And in a case 
 where that question should become important it would be proper, when raised by 
 counsel, to submit it to the jury. But it seems to us that the representation of 
 the agent in this case or stipulation, if we so consider it, is not of the class which 
 will avoid the policy, if it would not equally avoid a written contract upon any 
 other subject. It is undoubtedly true that, in regard to representations and con- 
 cealments affecting materially the risk, both in marine and fire insurance, policies 
 may be avoided, when in other contracts such representations certainly would not 
 have that effect. The law of insurance has been regarded as specially requiring 
 the utmost good faith. Hence all representations inserted in the policy, or con- 
 tained in the application, and expressly referred to in the policy, as part of it, are 
 denominated warranties, and must be strictly complied with or tlie policy is 
 avoided. And in regard to representations and concealments which are material, 
 and directly affect the risk, whether on the part of the assured or the insurer, 
 unless the representations are substantially true, the policy is void, although such 
 representations are merely by parol, and made at and before the time of effecting 
 the insurance, and not inserted in the policy ; they being regarded as substantial 
 fraud in regard to a policy of insurance, while in regard to ordinary contracts 
 similar representations would perhaps be held as within the fair range of allow- 
 able embellishment and chaffer in the matter of bargain ; or, if in the nature or 
 express warranties, would be held to have been waived, by not being inserted in 
 the written contract." 
 
 1 Hackney v. AUeghetiy Mut. Ins. Co., 4 Barr (Pa.), 185 ; post., § 148. 
 
 2 [iEtna Life Ins. Co. v. Paul, 10 Brad. 431, 443 (condition of health known 
 to agent) ; Kings' Co. Fire Ins. Co. v. Swigert, 11 Brad. 590 (knew gasoline was 
 kept on the premises) ; German Fire Ins. Co. v. Carrow, 21 Brad. 631 (knew build- 
 ings were not entirely on plaintifTs ground) ; Germania Fire Ins. Go. v. Hick, 23 
 Brad. 381 (knew interest of assured) ; Key v. Des Moines Ins. Co., 77 Iowa, 174 ; 
 Bartlett v. Fireman's Fund Ins. Co., 77 Iowa, 156 ; Insurance Co. u. Barnes, 41 
 Kans. 161 (condition of title) ; Protective Union v. Gardner, 41 Kans. 397 (omis- 
 sion, in appHoation by advice of the agent) ; Hartford Ins. Go. o. Haas, 87 Ky. 
 
 247 
 
§ 133 Bj INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 Even, it is said, though those facts were falsely stated by 
 the assured,^ unless there was collusion between the agent 
 and the insured to cheat the company, or facts equivalent to 
 collusion,^ or express limitation in the policy. When with 
 knowledge of the circumstances the agent of the company 
 filled in the application, it is not incumbent on the assured 
 to better the condition of the premises. ^ Under his war- 
 ranty to keep stovepipes, &c. well secured, he is only bound 
 to keep them in as good condition as the agent found them, 
 it not being shown that the agent or the company in any 
 way indicated to the insured that the pipes were not in a 
 satisfactory state. A renewal of a policy with the agent's 
 knowledge of misrepresentations in the original application, 
 in the event of no new application being required, binds the 
 company.*] 
 
 [§ 133 B. Collusion or its Equivalent frees the Company. — 
 The rule which charges a principal with the knowledge of 
 his agent is for the protection of innocent third persons. If 
 a person colludes with an agent to cheat the principal, the 
 latter is not responsible for the act or knowledge of the 
 agent. 8 If the insured and the agent put their heads to- 
 gether to cheat the company so as to obtain lower rates by 
 misrepresentation, the company will be protected. But a 
 verdict in favor of the plaintiff necessarily negatives the 
 existence of such conduct.^ False statements by the assured 
 
 531 ; Richards v. "Wash. Fire & Mar. Ins. Co., 60 Mich. 420 ; WOson v. Minn. 
 Farmers' Mut. Ins. Ass., 36 Minn. 112 ; Rivara v. Queen's Ins. Co., 62 Miss. 720 
 (agent knew at time of insurance that articles prohibited by policy were kept on 
 the premises) ; Breckinridge v. Amer. Cent. Ins. Co., 87 Mo. 62 (agent knew of 
 incumbrance at time of insurance) ; Hamilton v. Home Ins. Co., 94 Mo. 353 
 (agent knew other insurance at issue of policy) ; Stone v. Hawlceye Ins. Co. , 
 68 Iowa, 737 (knew warranties untrue) ; Siltz w. Hawkeye Ins. Co., 71 Iowa, 710 ; 
 Myers v. Council BhifFs Ins. Co., 72 Iowa, 176 ; Roberts v. State Ins. Co., 26 
 Mo. App. 92 ; Liverpool, &o. Ins. Co. v. Ende, 65 Tex. 118; Insurance Co. o. 
 Camp, 71 Tex. 503.] 
 
 1 [Miller v. Hartford Fire Ins. Co., 70 Iowa, 704; Witherell v. Me. Ins. Co., 
 49 Me. 200. But see §133 B.] 
 
 2 [See §133 B, and § 137.] 
 
 8 [Simmons v. Ins. Co., 8 W. Va. 474, 495.] 
 * [Witherell v. Me. Insurance Co., 49 Me. 200, 203.] 
 6 [National Life Ins. Co. v. Minch, 53 N. Y. 144.] 
 6 [Richards v. Washington Fire & Mar. Ins. Co., 60 Mich. 420.] 
 248 
 
CH. VII.J AGENTS. — THEIR POWERS AND DUTIES, [§ 133 C 
 
 will not the less have their usual effect in avoiding the con- 
 tract because the agent knows of them.^ To tell the com- 
 pany a falsity through an agent who is aware of the deception 
 is very like collusion, and identical with it so far as con- 
 cerns the effect on the company and the equity of the assured. 
 When the assured made material false representations as to 
 his health, evidence is inadmissible to show that the local 
 agent of the company employed to solicit risks knew at the 
 time of their falsity.^ The applicant must know the extent 
 of the agent's authority, and in such a case must clearly be 
 presumed to know as a reasonable man that the agent was 
 committing a fraud upon his principal by accepting for the 
 company what he (the agent) knew to be a false representa- 
 tion of the applicant's health in the application. Knowl- 
 edge on the part of the agent cannot excuse wilful falsity 
 in the assured, and although the agent knew the purpose 
 for which a building was used at the time of loss, this was 
 no defence to the charge that the insured knowingly made 
 false statements in regard to that use, in the proofs of 
 loss.^] 
 
 [§ 188 C. Agent's Negligence or Tort. — The insurance 
 company cannot take advantage of the laches of the agent 
 to avoid the contract.* And where A. made out an applica- 
 tion and the agent copied it upon the blank of another com- 
 pany he represented, and neglected to have A. sign it, the 
 company having received several premiums was held upon 
 its policy though the application was never signed. An 
 agent who has authority to bind his company "during the 
 correspondence," makes them liable if without the appli- 
 cant's fault he neglects to transmit the application to them 
 till after a loss.^ When a policy of insurance after having 
 been executed and sent to the local agent for delivery is 
 returned to the general agent for correction and is practi- 
 
 1 [See contra, Miller v. Hartford Fire Ins. Co., 70 Iowa, 704.] 
 
 2 [Galbraith v. Arlington lus. Co., 12 Bush (Ky.), 29, 35.] 
 8 [Hansen v. Amer. Ins. Co., 57 Iowa, 741 J 
 
 * [Bohniuger v. Empire Mut. Life Ins. Co., 2 T. & 0. (N. Y.) 610, 611.] 
 5 [Fish V. Cottenet, 44 F. Y. 538.] 
 
 249 
 
§ 133 E] INSUKANOE : FIEB, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 cally destroyed by him, — seals torn off, &c. — and when he 
 refuses to return the same, equity will relieve the insured,^] 
 
 [§ 183 D. Time of acquiring the Knowledge is immaterial 
 if present, or so late as to be presumably present, in the 
 mind of the agent at the time he acts in the business to 
 which it relates. If one employed by the agent to see the 
 assured and get information makes erroneous returns in the 
 application, the company is bound by his acts and knowl- 
 edge, and it is immaterial when such person acquired the 
 knowledge if it was in his mind at the time he made the 
 statements. 2 It has been held that to affect a corporation 
 with knowledge of its director as such, the knowledge must 
 have come to him while acting officially in its business.^ 
 This is not however a correct statement of the law. It 
 makes no difference when or how the knowledge came to 
 him, if he had it in mind when he acted in the company's 
 business. It would be ridiculous to hold that a board of 
 directors might act as though ignorant of a fact that came 
 to them on the street or otherwise before the hour of board 
 meeting. Where an agent acquires knowledge while acting 
 outside the business of his agency, and so long ago as not to 
 justify the inference that he had it in mind, it will not affect 
 the company.*] 
 
 [§ 138 E. The Agent receiving Notice must be one whose 
 business it is to receive such notice, as the president in re- 
 spect to notice of litigation, or he must be one authorized to 
 act in the business affected by the notice. The knowledge 
 of an agent in order to bind the company must be that of an 
 agent authorized to bind the company in relation to the 
 transaction to which the knowledge relates, and is to oper- 
 ate as a waiver. ° An adjuster is a special agent whose 
 duties are limited to ascertaining and adjusting the loss, 
 
 1 [Chase, v. Washington, &c. Ins. Co., 12 Barb. 595.] 
 
 2 [Mullin V. Vt. Miit Fire Ins. Co., 58 Vt. 113.] 
 
 3 [Farrel Fouudiy v. Dart, 26 Conn. 376, 383. In this case the director was 
 interested adversely to the company. ] 
 
 ■1 [Stennett v. Pa. Fire Ins. Co., 68 Iowa, 674.] 
 
 ^ [Martin v. Jersey City Ins. Co., 44 N. J. 273 ; Redstrake v. Cumberland Ins. 
 Co., 44 N. J. 294.] 
 250 
 
CH. VII. J AGENTS. — THEIR POWEES AND DUTIES. [§ 134 
 
 and knowledge coming to him of a defect in the title of the 
 assured is not imputable to the company, and his negotia- 
 tions after such information do not constitute a waiver.^] 
 
 § 133 F. Criminal Proceedings. — An agent may be pre- 
 sumed to be authorized to investigate the causes of a loss, 
 and to that end to employ a detective; but he cannot insti- 
 tute criminal proceedings so that his acts will bind the 
 company unless specially thereto authorized, as the insurers 
 have no interest different in kind from the general public 
 interest in the punishment of the offender. ^ 
 
 § 134. Authority in the Matter of Premiums. — Where the 
 agent is authorized to accept the payment of premiums, he 
 may exercise his discretion as to the mode of payment. He 
 may, for instance, accept a note or a check, instead of the 
 money ;^ or Confederate States notes, while the notes had a 
 value, and the government had a de facto existence;* or, if 
 a check is offered, his request to let the money lie, coupled 
 with a promise to call for it when he wants it, will amount 
 to a waiver, which he has a right to make, of the condition 
 that the premium shall be paid before the insurance shall 
 become binding. ^ And the same is true whether a check is 
 offered or not.^ So, if the agent requests the insured to 
 keep the money till the policy arrives,' or agrees to be him- 
 self responsible to the company for the premium, accepting 
 the insured as his personal debtor for the amount, or en- 
 courages delay. 8 If, however, the insured is to remit accru- 
 
 1 [Weed V. L. & L. Fire Ins. Co., 116 N. Y. 106.] 
 
 2 jSTorman v. Insurance Co., C. Ct. Ill, Treat, J., 4 Ins. L. J. 827. 
 
 5 Tayloe «. Merchants' Fire Ins. Co., 9 How. (U. S.) 390; Lycoming Mut. 
 Fire Ins. Co. v. Bedford (Fa.), 2 "Weekly Notes of Cases, 529. 
 
 * Robinson v. International Life Assurance Soc, 42 N. Y. (3 Hand) 54. 
 
 s New York Central Ins. Co. v. National Prot. Ins. Co., 20 Barb. (N. Y.) 468 ; 
 Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117 ; Southern Life Ins. Co. u. 
 Booker, 9 Heisk. (Tenn.) 607 ; ante, § 62 ; post, § 511. 
 
 8 Goit V. National Prot. Ins. Co., 25 Barb. (N. Y.) 189. 
 
 ' Hallock V. Commercial Ins. Co., 2 Dutch. (N. J.) 268. 
 
 8 Sheldon v. Conn. Mut. Life Ins. Co., 25 Conn. 207 ; Bouton v. American 
 Mut. Life Ins. Co., id. 542; Post v. iEtna Ins. Co., 43 Barb. (N. Y.) 351 ; 
 Wooddy V. Old Dominion Ins. Co. (Va.), 9 Ins. L. J. 276 ; Gerlach v. Amazon 
 Ins. Co., U. S. Dist. Ct. (Ohio), 4 Ins. L. J. 239 ; Home Ins. Co. v. Curtis, 32 
 Mich. 402; Mississippi, &c. Life Ins. Co. u. Neyland, 9 Bush (Ky.), 431 ; Chick- 
 
 251 
 
§ 135] INSUBANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. Til. 
 
 ing premiums direct to the ofSce, a promise of the agent, 
 who is indebted to him, to pay them would not inure to the 
 benefit of the assured. ^ The agent may also bind the com- 
 pany by his interpretation of the contract as to the day 
 the premium falls due; as that, when the policy insures 
 from May 29th to the 28th of the following May, the annual 
 premium is due on the 29th.^ But if the agent travels out 
 of the usual course of business, and receives a horse as pay- 
 ment of the premium, it will not bind the insurer, as the 
 authority of the agent to receive premiums cannot be pre- 
 sumed to extend to payments made in an unusual manner.^ 
 So if the agent receipts for a policy on his own life.* 
 
 § 135. Agent's Authority as to the Premium ; Broker. — 
 And upon a receipt for the premium, and the actual pay- 
 ment thereof to the local agent authorized by the company 
 to make insurances binding upon them from the date of the 
 payment to him, provided they should approve the rate of 
 premium charged and be otherwise satisfied with the risk, 
 it appearing that the rate charged was the usual one for 
 that class of risks, a bill in equity for relief, the company 
 having heard of the loss and refused to issue a policy, was 
 sustained on the ground that the company could not be per- 
 mitted to repudiate the contract of their agent, and arbi- 
 trarily refuse the risk because a loss had intervened. The 
 neglect of the agent to forwai'd the premium is imputable to 
 the company.^ The broker through whom the negotiations 
 
 ering v. Globe Mut. Life Ins. Co., 116 Mass. 321 ; Jones v. Mtna. Ins. Co., C. Ct. 
 Mass., 8 Ins. L. J. 415 ; Angell v. Hartford Fire Ins. Co., 59 N. Y. 171. But 
 contra, Belleville Mnt. Ins. Co. v. Van "Winkle, 1 Beasley (N. J.), 333 ; Catoir v. 
 Am. Life Ins. & Trust Co., 33 N. J. (4 Vroom) 487. lu Wall v. Home Ins. Co., 
 8 Bosw. (N". Y. Superior Ct.) 597, it was held that an agent for issuing policies 
 and receiving premiums could not waive a forfeiture for non-payment of pre- 
 mium. See also post, § 360 et seq. ; Church v. LaFayette Fire Ins. Co., 66 N. Y. 
 222 ; Peppit v. North British Ins. Co., 1 R. & G. (Nova Scotia) 219 ; Dean v. 
 iEtna Life Ins. Co., 4 N. Y. S. C. 497 ; a. c. 62 N. Y. 642. 
 
 1 Co-operative Life Ass. v. McConnico, 53 Miss. 233. 
 
 2 Campbell v. Int. Life Ass. Soc., 4 Bosw. (N. Y. Supreme Ct.) 298. 
 8 Hoffman v. John Hancock Mut. Life Ins. Co., 92 U. S. 161. 
 
 » Neuendorff !>. World Mut. Life Ins. Co. (N. Y.), 6 Ins. L. J. 459. 
 5 Perkins v. Washington Ins. Co., 4 Cowen (N. Y. ), 645, reversing s. c. 6 
 Johns. Ch. (N. Y.) 485 ; ante, § 60. 
 252 
 
CH. VII.] AGENTS. — THEIR POWEES AND DUTIES. [§ 136 
 
 are had, and who is intrusted with the policy to be deliv- 
 ered, may receive the premium, and bind the company, 
 though he does not pay it over to them, notwithstanding a 
 condition of the policy provides that the person obtaining 
 the policy shall be regarded as the agent of the insured. ^ 
 And such an agent may waive the provision forfeiting the 
 policy in case the premiums are not paid before a specified 
 day. 2 He may also accept payment of the accruing pre- 
 mium before it is due.^ But he cannot, by antedating a 
 receipt, obviate a forfeiture which his principal instructs 
 him not to waive.* 
 
 So, where an agreement was made with an insurance 
 company's agent for insurance, and a receipt taken by the 
 insured for the premium, which however was not then paid, 
 stating that the insurance would take effect on the day of its 
 date. Ten days afterwards the property was burned, and on 
 the following day the insured, without disclosing the fact of 
 the fire, paid the premium to the agent, who, in ignorance 
 of the fact of loss, forwarded the application to the com- 
 pany, together with the premium. A policy was returned 
 in due form to the agent, who; having meanwhile heard of 
 the loss, declined to deliver the policy, and tendered back 
 the premium. In an action setting forth the above facts, 
 the plaintiff was held entitled to damages for the loss sus- 
 tained, the contract being complete when the policy was for- 
 warded to the agent, and taking effect from the date cf the 
 receipt.^ So such an agent may give permission to the in- 
 sured to remove the property insured to another locality.^ 
 
 § 136. May waive Forfeiture for change of Residence or 
 non-payment of Premium. — In an action upon a life policy 
 it appeared that the insured had, by taking up his residence 
 
 ^ Lycoming Fire Ina. Co. o. Ward, 90 III. 545. 
 
 2 Marcus v. St. Lonis Fire Ins. Co., 68 K Y. 625 ; Dilleber v. Knickerbocker 
 Life Ins. Co., 76 N. Y. 567 ; 4 Seld. (N. Y.) 351 ; Sheldon i>. AUantic Fire Ins. 
 Co., 26 N. Y. 460. But see Critchett v. American Ins. Co., 9 Ins. L. J. 594. 
 
 8 Eclectic Life Ins. Co. v. Fahrenkrug, 68 111. 463. 
 
 * Diboll V. jEtna Life Ins. Co. (La.), 9 Ins. L. J. 827. 
 
 6 Whitaker v. Farmers' Union Fire Ins. Co., 29 Barb. (N. Y.) 312. 
 
 " New England Fire & Mar. In.s. Co. v. Schettler, 38 111. 166. 
 
 253 
 
§ 136] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VII 
 
 abroad, violated a provision of the policy which made it void 
 if the assured without license from the insurers should go 
 beyond the limits of Europe. The insured, however, noti- 
 fied the local agent of the insurers, at the place where he 
 effected the insurance originally, of his change of residence, 
 and asked before he paid any further premiums if such 
 change would vitiate his policy, to which the agent replied 
 that it would not if the premiums were regularly paid. 
 Thereupon the premiums were "paid, and continued to be 
 paid regularly for several years, to the local agent and his 
 successor, who had knowledge of the facts; but neither of 
 the agents informed his principal of the change of residence, 
 though regularly forwarding the premiums as received. It 
 was contended that the agent was acting beyond the scope 
 of his authority in assuring the insured that such change of 
 residence would not invalidate the policy if the premiums 
 continued to be paid, and that the notice of the change to 
 the agents was not notice to their principal. But the court 
 said that the party paid and the agent received the premiums 
 upon the faith and condition that the policy was to be con- 
 sidered valid and subsisting-; that as the agents were duly 
 constituted for the purpose of receiving premiums as well as 
 for other purposes, it was their duty, and not that of the 
 insured, to communicate to the home office the circumstances 
 under which these premiums had been paid, and the repre- 
 sentations, terms, and conditions under which they were 
 paid ; that the insurers must be deemed to have constructive 
 notice of the change of residence, and that upon the pay- 
 ment and receipt of the premiums by them they became as 
 much bound as if the premiums had been paid directly at 
 the home office, and had been received there with a full 
 knowledge of the change of residence of the insured.^ He 
 may also waive the provision for forfeiture for non-payment 
 
 * Wing V. Harvey, 27 Eng. L. & Eq. 140, 141. See also Miner v. Phoenix Ins. 
 Co. , 27 Wis. 693 ; Supple v. Cann, 9 I. L. E.. o. s. ; Gloucester Manuf. Co. v. 
 Howard Fire Ins. Co., 5 Gray (Mass.), 497 ; Hodsdon v. Guard. Life Ins. Co., 97 
 Mass. 144 ; North Berwick Co. v. N. E. Fire & Mar. Ins. Co., 52 Me. 336 ; Walsh 
 0. jEtna Life Ins. Co., 30 Iowa, 133. 
 
 254 
 
CH. vil] agents. — their powers and duties. [§ 137 
 
 of premium before the premium becomes due.^ In Acie v. 
 Fernie,^ it was held that an agent to collect premiums could 
 not, by accepting a premium after forfeiture of the policy 
 for non-payment, bind the company so as to waive the for- 
 feiture, although the company had charged the agent with 
 the amount of the premium on account, in accordance with 
 an understanding that this should be done at the expiration 
 of fifteen days after the premium became due. But the 
 weight of authority seems to be the other way.^ [The secre- 
 tary of an insurance company may waive the breach of a 
 condition in the policy.^] 
 
 [§ 136 A. An agent cannot ratify or make good a contract 
 that never had any valid existence, as by reason of fraud ab 
 initio, although he receives premiums after knowledge of the 
 facts. ^ A mere book-keeper who has no power to receive an 
 overdue premium cannot bind the company by so doing. ^] 
 
 § 137. Limitation of Agent's Authority by Terms of Policy. 
 — Of course, if the insured stipulate in his application that 
 the insurer shall not be bound by any act done or statement 
 made to or by the agent, not contained in the application, he 
 cannot shelter himself under a plea of equitable estoppel, by 
 reason of the agent's fraud or negligence. The knowledge 
 by the agent of a fact not stated in the application in that 
 case becomes entirely immaterial, unless possibly when the 
 statement of the fact may have been fraudulently prevented 
 by the agent.' (a) And equally, of course, such a general 
 
 1 Marcus v. St. Louis Mut. Life Ins. Co., 68 N. Y. 625. 
 
 2 7 Mees. & Wels. 151. 
 8 Ante, §§ 134, 135. 
 
 * [Haas V. Montauk Fire Ins. Co., 49 Hun, 272.] 
 
 6 [SwettD. Citizens' Mut. Belief Soc., 78 Me. 641, 545 (dictum).] 
 
 8 [Nashville Life Ins. Co. „. Ewing, 58 Tenn. 305, 309.] 
 
 ' Shawmut Mut. Fire Ins. Co. v. Stevons, 9 Allen (Mass.), 332; Chase 7'. 
 Hamilton Ins. Co., 20 N. Y. (6 Smith) 52 ; Loehner v. Home Mut. Ins. Co., 17 
 Mo. (2 Bennett) 247 ; Bleakley v. Niagara Dist. Mut. Fire Ins. Co., 16 Gr. Ch. 
 (IT. C.) 198. These eases are distinguished from Plumb v. Cattaraugus Co. Mut. 
 Ins. Co., 18 N. Y. (4 Smith) 392, and similar cases before cited, ante, § 132. In 
 that case there was no such stipulation. 
 
 (a) See New York L. Ins. Co. v. Dwelling-House Ins. Co., 75 Mo. App 
 Fletcher, 117 U. S. 519, 530; "Wolf v. 337. 
 
 255 
 
§ 137] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 agent has no power to bind the company in a case where, 
 had all the facts transpired without the intervention of an 
 agent, the company would not be bound. Thus, where a 
 proposal was received on the morning after a fire, informa- 
 tion of which reached the agent in the afternoon, who on the 
 following day countersigned and delivered a policy, it was 
 held that the policy was invalid, as there was no contract to 
 insure prior to the loss, the proposal not then having been 
 accepted, nor even received.^ Nor can such an agent make 
 a contract, in which he himself has an interest, valid against 
 the company;* nor, where he assigns his own policy, accept 
 notice of the assignment.^ (a) And as there is no legal pre- 
 sumption that offices clothe their agents with power to fix 
 the terms of, or perfect, the contract, and as the question of 
 the agents' authority is always one of fact, it is always ad- 
 visable in treating with them to resolve all doubts as to 
 their powers against their authority. A company may even 
 allow its agent to advertise his office as a "branch office;" 
 yet if the application shows that the policy is to be issued 
 at the home office, and the premium is to be paid when the 
 policy is presented to the applicant, a receipt for the pre- 
 mium, signed by the agent, and delivered when the applica- 
 tion is forwarded to the company, will not fix the liability 
 of the latter, although it recites that the money received is 
 "for insurance."* So, if by the terms of the policy overdue 
 premiums can only be paid on the company's receipt, with 
 which he is supplied, the agent's own receipt is not binding 
 upon the company;^ yet if, having power only under the 
 
 1 Bentley v. Columbia Ins. Co., 17 N. Y. (3 Smith) 421. 
 
 2 Ibid. 
 
 * Ex parte Hennessej', 1 Con. & Law. 5.59. 
 
 * Linfoi-d V. Provincial Horse & Cattle Ins. Co., 10 Jur. N. s. 1066. 
 
 •- Bissell V. Am. Life Ins. Co., Ct. of Com. Pleas, Lucas Co. (Pa.), 2 Big. Life 
 & Ace. Ins. Cases, 150 ; ante, § 126. 
 
 (a) The secretary of an insurance its general agent. Zimmerman ?;. 
 
 company cannot approve his own appli- Dwelling-House Ins. Co., 110 Mich, 
 
 cation for insurance in his company. 399. Nor can an agent issue a valid 
 
 Pratt V. Dwelling-House M. F. Ins. Co., policy to a corporation of which he is a 
 
 130 N. Y. 206. An agent cannot in- stock-holder and officer, but such act 
 
 sure his own property without notice to may be ratified. Greenwood Ice Co. v. 
 
 the company, even with the consent of Georgia Home Ins. Co., 72 Miss. 46. 
 
 256 
 
CH. VII.J AGENTS. — THEIE POWEES AND DUTIES. [§ 137 A 
 
 direction of a committee to settle losses, he is in the habit 
 of paying them by drafts on his principals, and it appears 
 that the drafts have been honored, his authority to make the 
 drafts will be presumed.^ 
 
 [§ 137 A. Restrictions in Policy. — A local agent with 
 power to receive premiums and issue policies has no author- 
 ity to waive the condition requiring written assent of the 
 company to any change increasing the risk,- or to a re- 
 moval.^ Where the agent knowing that the property was a 
 saloon insured it, and the policy stated that the company did 
 not take such risks, the company was held not liable.* And 
 it has been held that where the policy expressly stipulates 
 that the company shall not be bound by any act or statement 
 not contained in the written application, or indorsed on the 
 policy, notice to the agent of other matters will not affect 
 the company.^ An agent cannot waive non-payment of a 
 premium note if the policy expressly declares that he shall 
 not alter nor vary the contract.^ Where the policy recites 
 that "agents of the company are not authorized to make, 
 alter, or discharge contracts," an agreement of the agent 
 with the insured, contemporaneous with the delivery of the 
 policy, cannot alter its terms." When a premium note 
 promises to pay a certain sum in such portions, and at such 
 times as the directors may agreeably to the act of incorpora- 
 tion require, and the application agreed that the company is 
 not to be bound by any act or statement of its agent varying 
 the written or printed contract, unless inserted in the appli- 
 cation, oral evidence cannot be received to show a represen- 
 tation of the general agent that he had made a special and 
 different arrangement with the company for the plaintiff.^ 
 
 1 Fayles v. National Ins. Co., 49 Mo. 380. 
 
 2 [Kyte V. Commercial Union Assurance Co., 144 Mass. 43.] 
 8 [Putnam Tool Co. v. Fitchburg Ins. Co., 145 Mass. 265.] 
 
 * [Mensing v. Amer. Ins. Co., 36 Mo. App. 602.] 
 
 5 [Enos V. Sun Ins. Co., 67 Cal. 621.] 
 
 8 [Mclntyre v. Mich. State Ins. Co., 52 Mich. 188, 194.] 
 
 ' [Greenwood v. N. Y. Life Ins. Co., 27 Mo. App. 401, 412 (agreement as to 
 place of paying premiums). See also Dircks v. German Ins. Co., 34 Mo. App. 
 31.] 
 
 5 [Lycoming Fire Ins. Co. v. Langley, 62 Md. 196.] 
 
 VOL. I. — 17 257 
 
§ 137 A'J insurance: fike, life, accident, etc. [ch. vii. 
 
 When the policy provides that waiver can only he made at 
 the head office, and by the directors, then the agent cannot 
 waive. The true rule is that the powers of a general agent 
 are prima facie co-extensive with the business intrusted to 
 his care, and will not be narrowed by limitations not com- 
 municated to the person, with whom he deals. "The rule could 
 not go further without violating all reason and justice." 
 But in such a case as the one before us the assured had 
 notice of the restriction on the face of his policy. ^ It seems 
 very doubtful if the doctrine of these cases is entirely cor- 
 rect. The assured has a right to suppose that a general 
 agent has all the powers ordinarily incident to his business, 
 unless he has knowledge to the contrary, and usage may 
 overcome the provisions of a policy. In regard to waivers 
 before issue it is by no means clear that the constructive 
 notice supplied by provisions of a policy not yet in the 
 hands of the applicant should be held binding upon him. (a) 
 Prudent men are accustomed to rely on the acts and state- 
 ments of the agent, and they should be protected in so do- 
 ing. Busy men have not time to study the interminable 
 provisions of insurance policies. Only when the custom of 
 limiting the authority of a general agent in the policy has 
 become so general that it is a part of the ordinary business 
 knowledge of the world that such provisions exist and are 
 to be examined, will it be proper to hold the applicant bound 
 by them in respect to negotiations prior to the issue of the 
 policy. As to waivers taking place after issue, it is very 
 proper to require the assured to look at his policy and con- 
 form to it, and limitations of the agent's authority should 
 be effective, unless by a course of business or otherwise the 
 
 1 [Marvin v. Universal Life Ins. Co., 85 N. Y. 278, 283.] 
 
 (a) Restrictions inserted in the policy edge of all the facts and of the actual 
 
 upon the agent's power to waive any situation. Wood v. American Fire Ins. 
 
 conditions unless done in a particular Co., 149 N. Y. 382, 386 ; Kobhins v. 
 
 manner, are not deemed to apply to Springfield F. & M. Ins. Co., id. 477 ; 
 
 those conditions which relate to the in- McElroy v. British North America Ass. 
 
 ception of the contract, when it appears Co., 94 Fed. Rep. 990, 994; United 
 
 that the agent has delivered it and re- Firemen's Ins. Co. v. Thomas, 27 C. C. 
 
 ceived the premiums with full knowl- A. 42, 46, and note. 
 
 258 
 
CH. VII.] AGENTS. — THEIE POWERS AND DUTIES. [§138 
 
 company has waived the limitation on the agent's power of 
 waiver. 
 
 There is good authority for this view.^ Good judges have 
 seen fit to rule that a general agent of an insurance company 
 may by parol waive the performance of a condition inserted 
 in the policy for the benefit of the company, though the lat- 
 ter expressly declares that nothing but a written agreement, 
 signed by an officer of the company, shall have that effect;^ 
 and there is an Ohio case to the effect that although a life 
 policy contains notice that the agent has no authority to 
 waive a failure to pay premium, yet the course of business 
 may warrant the insured in relying on such waiver.^] 
 
 § 138. Authority after Negotiations are concluded. — Un- 
 less expressly delegated or sanctioned by known and per- 
 mitted usage, the power of moulding the terms of the 
 contract does not extend to dealing with facts and circum- 
 stances arising after the contract has been perfected. And 
 it behooves the applicant for insurance, unless he has the 
 most satisfactory evidence that the agent with whom he is 
 negotiating has general and unrestricted powers * to examine 
 carefully into the extent of his authority ; for the law holds 
 him bound to know, not only whether the agent is a general 
 or special one, but, if special, what are the limitations upon 
 his authority.^ If it were not so, there would be no distinc- 
 tion between a general and a special agent, and all restric- 
 tions and limitations on an agent's authority would be 
 nugatory. A principal would in all cases be at the mercy 
 of his agent, however carefully he might have restricted his 
 authority. An agent therefore to receive and forward appli- 
 cations, to countersign policies, to collect premiums, and 
 bind the company on special hazards for ten days, is not the 
 agent of the company to receive notice, and fix additional 
 premium affecting its rights under a policy already issued ; 
 as where the policy provides that when premises are vacated 
 
 1 [See § 139.] 
 
 2 [Van Allen v. Farmers' Joint Stock Ins. Co., 4 Hun, 413-] 
 
 3 [Insurance Co. v. Tullidge, 39 Ohio St. 240.] 
 * See as to these, post, § 151 et seq. 
 
 5 Equitable Life Ins. Soc. v. Poe (Md.), 9 Ins. L. J. 871. 
 
 259 
 
§ 138 A] INSUKANCE : riEE, LIFE, ACCIDENT, ETC. [CH. VII, 
 
 the policy shall be void unless immediate notice be given to 
 the company and an additional premium paid.^ Nor has an 
 agent to procure insurance power to cancel.^ So, though 
 the agent have power to adjust losses he cannot waive a for- 
 feiture,^ or proofs of loss.* (a) [A mere soliciting agent, one 
 not furnished with blank policies to fill and issue, has no 
 power to consent to the assignment of a policy.^] 
 
 [§ 138 A. Proof of Agency. — It must be shown that the 
 agent of the insurance compan/ was authorized (or held out 
 to be) to make insurance contracts, in order to recover on a 
 
 1 Harrison v. City Fire Ins. Co., 9 Allen (Mass.) 231. 
 
 2 Rothschild v. Am. Cent. Ins. Co., 5 Mo. App. .596. 
 
 ^ Phceuix Ins. Co. v. Lawrence et al., 4 Met. (Ky.) 9 ; Tate v. Citizens' Mut. 
 Ins. Co., 13 Gray (Mass.), 79, and see post, § 145. See also Bartholomew v. 
 Merchants' Ins. Co., 25 Iowa, 507. 
 
 * Van Allen u. Fanners', &o. Ins. Co., 64 N. Y. 469 ; Merserau v. Phcenix 
 Ins. Co., 66 N. Y. 274 ; Bush v. Westchester Ins. Co., 63 N. Y. 631. 
 
 5 [Strickland v. Council Bluffs Ins. Co., 66 Iowa, 466.] 
 
 (a) An adjuster, who is sent by the 
 insurer's general agent to settle and ad- 
 just a loss by fire on behalf of the com- 
 pany, may waive the proofs of loss 
 which were required by the policy. 
 Wholley v. Western Ass. Co., 174 Mass. 
 263 ; Searle v. Dwelling-House Ins. Co., 
 152 Mass. 263 ; Richards v. Continen- 
 tal Ins. Co., 83 Mich. 508 ; Graves v. 
 Merchants' & Bankers' Ins. Co., 82 
 Iowa, 637 ; Brown v. State Ins. Co., 
 74 id. 428 ; Hartford Ins. Co. v. Keat- 
 ing, 86 Md. 130 ; Davidson v. Guar- 
 dian Assurance Co., 176 Penn. St. 525 ; 
 Gould V. Dwelling-House Ins. Co., 
 134 id. 570 ; Perry v, Dwelling-House 
 Ins. Co., 67 N. H. 291 ; Cooper v. Ins. 
 Co. of Pennsylvania, 96 Wis. 362 ; Osh- 
 kosh Gaslight Co. v. Germania Ins. Co., 
 71 Wis. 454; Dick v. Equitable F. & 
 M. Ins. Co., 92 id. 46; Mitchell ;;. 
 Minnesota F. Ass'n., 48 Minn. 278 ; 
 McCollum V. Liverpool, London & Globe 
 Ins. Co., 67 Mo. App. 66 ; Grubbs v. 
 North Carolina Home Ins. Co., 108 
 N. C. 472 ; Indiana Ins. Co. v. Capehart, 
 108 Ind. 270 ; Jltna Ins. Co. v. Shryer, 
 85 id. 362 ; Perry v. Faneiiil Hall Ins. 
 Co,, 11 Fed. Rep. 482 ; Mitchell o. 
 
 260 
 
 Orient Ins. Co., 40 111. App. Ill ; Mo- 
 Pike V. Western Assurance Co., 61 
 Miss. 37; New Orleans Ins. Co. v. Mat- 
 thews, 65 id. 301. See contra. Home 
 Ins. Co. V. Sorsby, 60 Miss. 302 ; HoUis 
 V. State Ins. Co., 65 Iowa, 454 ; Everett 
 V. London & Lancashire Ins. Co., 142 
 Penn. St. 332. If the insured demands 
 payment of a loss, and is referred to the 
 adjuster as having authority to settle, 
 and he demands vouchers and other 
 proofs which cannot be furnished within 
 the twelve months' limitation, he has 
 implied authority to, and may, by his 
 conduct, waive the limitation, notwith- 
 standing a policy provision that no 
 officer or agent shall be held to have 
 waived any stipulation without indorse- 
 ment in writing. Dibbrell v. Georgia 
 Home Ins. Co., 110 N. C. 193. Where 
 an adjuster was sent by the company, 
 who took a sworn detailed statement 
 regarding the loss, substantially similar 
 to that required in the ordinary proofs, 
 and declared himself satisfied, this was 
 held to be a waiver of a subsequent de- 
 mand for further proofs by the com- 
 pany. Graves v. Merchants' & Bankers' 
 Ins, Co., 82 Iowa, 637. 
 
CH. VII.] AGENTS. — THEIK POWEES AND DUTIES. [§ 138 B 
 
 policy issued by him.^ The secretary of the company can- 
 not be asked " What was the authority of a certain agent 
 J. ? " The proper method of proving his authority is by the 
 production of his power of attorney, or a resolution of the 
 board of directors.^ This, however, is not necessary. It is 
 sufficient proof of the agency of A. that the insurer has been 
 accustomed to pay policies subscribed by him, without pro- 
 ducing a written power of attorney which it is stated by the 
 agent that he has.^ Where the plaintiff made application 
 to the D. company through A., supposing him to be the 
 agent of D., and the company received the application and 
 the premium and issued the policy through A., the facts 
 were held sufBcient as a recognition of the assumed agency.* 
 The declarations of an agent are never evidence of his 
 authority." In Illinois a penalty is provided against agents 
 of foreign insurance companies acting without a certificate 
 from the auditor.^] 
 
 [§ 138 B. Company V. Agent. — Where an insurance com- 
 pany issues a policy on a hotel which is unoccupied, and 
 this fact is known to the agent but not communicated to 
 the company, the latter, having to pay a loss by burning 
 before occupancy, can only recover nominal damages of the 
 agent, unless the premium received were less than that usu- 
 ally charged for the risk actually taken (the company being 
 in the habit of taking such risks), and then the agent would 
 be liable for the difference of premium.'^ Where an insur- 
 ance company makes an agreement for the services of an 
 agent for a specified term, and before the term is expired 
 the company is restrained from doing business by order of 
 the court, the agent has no claim on the funds' in the hands 
 of the receiver on account of the breach of the contract with 
 
 1 [Fleming v. Hartford Fire Ins. Co., 42 Wis. 616, 621.] 
 
 2 [Benninghoff «. Agricultural Ins. Co., 93 N. Y. 495.] 
 
 ^ [Haughton v. Ewbank, 4 Camp. 88 ; Goodson v. Brooke, 4 Canip. 163 ; 
 Neal V. Erving, 1 Esp. 61.] 
 
 ^ [Packard v. Dorchester Mut. Fire Ins. Co., 77 Me. 144.] 
 
 5 [James v. Stookey, 1 "Wash. 330, 331.] 
 
 6 [Pierce v. The People, 106 111. 11.] 
 
 ' [State Ins. Co. v. Richmond, 71 Iowa, 519, 523-525.] 
 
 261 
 
§ 139] INSUEANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 him, at least in the absence of evidence that it was some 
 fault of the company which induced the superintendent of 
 insurance to make the certificate upon which the attorney- 
 general acted. 1 Where an order from the principal to the 
 agent is capable of different interpretations and the agent 
 honestly adopts one and follows it, the principal is bound, 
 and the agent exonerated. ^ In this case the company sent 
 an "expiration sheet" to F., the agent, with the word 
 " drop " opposite a certain policy ; the company meant that 
 the property indicated should not be again insured, but the 
 agent understood simply that the amount insured upon it 
 was to be less, and agreed to insure it for half the former 
 risk, and the agreement was sustained. 
 
 [§ 138 C. Cessation of the Agency. — The agency ceases 
 when the company goes out of business.'' When no notice 
 of the fact that the agent through whom the policy had been 
 effected had ceased to be agent for that branch of the com- 
 pany's business, had been given the assured, proofs fur- 
 nished to him are sufficient proofs of loss.* A promise to 
 renew in a company that had ceased to do business, and by 
 one whose authority as agent had been revoked, cannot bind 
 the company, though it may be a cause of action against the 
 pretended agent if the plaintiff did not know of the revoca- 
 tion.^ Taking out annual licenses in the names of agents 
 does not give them a vested right to hold the agency until 
 the close of the year.^] < 
 
 § 139. Mutual Insurance Agents. — Substantially the same 
 general principles have been applied in most of the courts 
 in this country ^ in reference to agencies of mutual insurance 
 
 1 [People V. Globe Mut. Life Ins. Co., 91 N. Y. 174, 179, 181. It seems also 
 that, whatever the cause of dissolution, it is the act of the State and not that of 
 the company, and that the agent so contracting takes the risk of any act or neg- 
 lect of the other officers of the company that may cause dissolution.] 
 
 2 [Winne v. Niagara Fire Ins. Co., 91 N. Y. 185.] 
 
 3 [Insurance Co. v. Williams, 91 F. C. 69.] 
 
 « [Marsden v. City & County Ass. Co., 1 L. R. C. P. 232, 239.] 
 
 ^ [Montross v. Roger Williams Ins. Co., 49 Mich. 477.] 
 
 « [Davis V. Niagara Fire Ins. Co., 12 Fed. Eep. 281 ; 11 Biss. 592 (111.) 1882; 
 11 Ins. L. J. 592.] 
 
 ' Mutual fire insurance seems not to have had much vogue in England. The 
 courts of Massachusetts, and to some extent those of Ebode Islaud, Pennsylvania, 
 
 262 
 
CH. YIL] agents. — THEIE POWBES AND DUTIES. [§ 139 
 
 companies, which we have seen have been applied to agen- 
 cies of stock, or, as they are sometimes called, proprietary 
 companies, upon the general ground that incorporated com- 
 panies, as well mutual as others, when business is neces- 
 sarily conducted through agents, should be required to see 
 that their officers and agents not only know what their 
 powers and duties are, but that they do not habitually and 
 upon system transcend those powers, else third persons who 
 have no means of access to the by-laws and resolutions which 
 govern the body corporate, and no means of judging in the 
 particular instance whether the officer is or is not transcend- 
 ing his powers, cannot deal with them with any degree of 
 safety. A mutual insurance company, for instance, whose 
 rules prohibit the assignment of a policy, "unless by the 
 consent of the company, manifested in writing," but whose 
 imiform practice has been to signify that consent by an in- 
 dorsement thereof on the policy, signed by the secretary, 
 without any formal note or direction with reference to the 
 matter, will not be permitted to deny that such is a consent 
 of the company. They must be held responsible, as against 
 strangers at least, on the ground of a tacit assent and ap- 
 proval, for the known act of their secretary. It might be 
 different if the act were of such a nature that by strict vigi- 
 lance and scrutiny it could not be known, and was not in fact 
 known. ^ So the consent of an agent to further insurance 
 indorsed on the policy, such being shown to be his practice 
 known to the company, is equivalent to the consent of the 
 directors subscribed by the secretary, required by a provi- 
 sion of the charter of the company. ^ And any customary 
 exercise of authority known to the principal, and not repu- 
 diated, will bind the principal. ^ [The secretary of a mutual 
 company may give the assent of the directors as their agent. ^ 
 
 and New Jersey, hold that agents of mutual insurance companies have less exten- 
 sive powers. See post, § 145 et seq. 
 
 1 Conover v. The Mut. Ins. Co. of Albany, 1 Comst. (N. Y.) 290, affirming 
 s. 0. 3 Denio (N. Y.), 254. 
 
 2 Peck V. New London Co. Mut. Fire Ins. Co., 22 Conn. 675. 
 ^ Brockelbank v. Sugrue, 5 C. & P. 21. 
 
 ^ [Durar v. Hudson Ins. Co., 24 N. J. L. 171, 196.] 
 
 263 
 
§ 140] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 The directors of a mutual company may appoint the presi- 
 dent to act for them as to indorsements.^] 
 
 § 140. Agent of Company not necessarily Agent of Appli- 
 cant, though made so by a By-law of the Company. — The 
 local agent of a mutual insurance company authorized to 
 receive and forward applications is not necessarily the agent 
 of the applicant also, though it be so provided by the by- 
 laws, or so stipulated in the policy. Such a stipulation does 
 not convert acts done for and in behalf of the insurers, and 
 without the authority of the insured, into acts by which the 
 latter is bound. When a person is in fact the agent of the 
 insurer in procuring a policy, a clause in the policy that 
 persons so acting are agents of the insured, and not of the 
 insurer, does not change the fact. He is still the agent of 
 the company as to the acts which are done in its behalf.^ 
 And if at the time of the application the latter states facts 
 material to the risk, and the agent neglects to communicate 
 them to the company, in consequence of which a policy is 
 issued in ignorance of the fact, the neglect is not imputable 
 to the applicant so as to make him responsible as for a con- 
 cealment. That the agent is instructed to regard himself 
 as the agent of the applicant rather than of the company, 
 these instructions not being known to the applicant, does 
 not alter the case.^ And an agent duly appointed by the 
 local agent, in pursuance of a custom known to and approved 
 by the company, to solicit and forward to him applications 
 
 1 [Topping V. Bickford, i Allen, 120, 121.] 
 
 2 Commercial Ins. Co. v. Ives, 56 111. 402 ; Bassell v. American Fire Ins. Co., 
 2 Hughes (G. Ct.), 531 ; Union Ins. Co. v. Chipp, 93 111. 96 ; Eilenberger v. Pro- 
 tective Ins. Co. (Pa.), 89 Pa. St. 464 ; Andes Ins. Co. v. Loehr, C. C. P. N. Y. 
 City, 4 Ins. L. J. 465 ; Planters' Ins. Co. u. Myers, 55 Miss. 479 ; Farmers' Ins. 
 Co. V. Munn, App. Ct. of 111., First Dist., 9 Ins. L. J. 159. There are cases of 
 high authority to the contrary. See Alexander v. Gei-raania Ins. Co., 66 N. Y. 
 464, following Rohrbach v. Germania Fire Ins. Co., 62 N. Y. 47 ; and see also 
 these cases explained and limited to the special facts of the cases, if not over- 
 ruled, in the same court in Whited v. Germania Ins. Co., 76 N. Y. 415. The 
 point of a quasi-dual agency is thoroughly discussed in Southern Law Rev., 
 Nov. 5, 1880, p. 663, hy Hon. J. 0. Pierce, who arrives at the conclusion that the 
 decided weight of authority is in accordance with the view stated in the text 
 See also post, § 473. 
 
 = Bebee v. The Hartford Mut. Fire Ins. Co., 25 Conn. 51. 
 
 264 
 
CH. VII.J AGKNTS. — THEIR POWERS AND DUTIES. [§ 141 
 
 for insurance, stands in the same relation to the company as 
 to such mistakes.^ 
 
 And the same is true where the agent assumes to fill up 
 the application from actual observation, and, while giving a 
 full description of the property, neglects to mention matters 
 material to the risk, which, however, were" open to his ob- 
 servation. This is no concealment or withholding of infor- 
 mation on the part of the insured. And the company would 
 be bound by the agent's overestimated value of the property 
 not induced by the applicant.^ 
 
 So if the agent neglects to state in the application the 
 fact of an existing incumbrance which is truly stated to 
 him by the applicant, notwithstanding the application, by a 
 memorandum in the margin, required the applicant to state 
 whether the property is incumbered, by what, and to what 
 amount, and if not, to say so; and although the by-laws 
 make the person taking the survey the agent of the appli- 
 cant. He is still the agent of the company, and as such it 
 is so far bound by his acts that it cannot set up his negli- 
 gence as a concealment on the part of the insured.^ When 
 the policy, howevei', provides not only that the agent shall 
 be deemed the agent of the applicant and not of the com- 
 pany, but further, that the company will not be bound by 
 anything said by the agent not contained in the application, 
 there can be no escape for the insured. He will find him- 
 self practically uninsured.* 
 
 § 141. Agent may by his Acts estop his Principal. — In- 
 deed, such an agent may so conduct his business as to estop 
 
 1 Woodbury Savings Bank v. Charter Oak Ins. Co., 31 Conn. 517. 
 
 2 Cumberland Valley Mut. Proct. Co. v. Scbell, 29 Pa. St. (5 Casey) 31 ; 
 Commercial Ins. Co. v. Ives, 56 111. 402. See also Farmers' Ins. Co. t'. Muun, 
 App. Ct. of 111., First Dist., 9 Ins. L. J. 159 ; post, § 473. 
 
 8 Masters v. Madison Co. Mut. In.s. Co.,11 Barb. (N. Y. S. C.) 624 ; Columbia 
 Ins. Co. u. Cooper, 50 Pa. St. 331 ; ante, § 131 ; post, § 500 ; Naughter v. Ottawa 
 Agr. Ins. Co., 43 U. C. (Q. B.) 121; Wyld v. London, &c. Ins. Co., 23 Grant's 
 Ch. 442 (U. C.) ; Benson v. Ottawa Agr. Ins. Co., 42 U. C. (Q. B. ) 282 ; ante, 
 § 13. 
 
 * Shawmut Mut. Fire Ins. Co. v. Stevens, 9 Allen (Mass.) 332; Moore i'. 
 Conn. Mut. Fire Ins. Co., 41 U. C. (Q. B.) 497 ; John.stone v. Niagara Dist. Mut. 
 Ins. Co., 13 U. C. (C. P.) 331 ; Bleakley v. Niagara Dist. Mut. Ins. Co., 16 Grant, 
 {U. C. Ch.) 198. See also ante, § 137, and post, § 206. 
 
 265 
 
§141] insurance: FIKE, life, accident, etc. [cH. VII. 
 
 the company he represents from denying the truth of the 
 statements made in the application ; as by assuming to fill 
 up and forward an application, signed by himself as agent 
 of the applicant, but without authority to do so. Thus where 
 the agent was requested by the applicant to copy the answers 
 which he was upon the point of making in another applica- 
 tion for insurance upon the same property, but instead of 
 waiting till he received such answers to copy forwarded to 
 his company an old application for insurance upon the same 
 property, corrected by himself to suit what he supposed to 
 be the change of circiimstances, thus sending an application 
 which he was not authorized by the applicant to send; he 
 was held to be the agent of the company so far as to estop 
 them from denying the contract, and from setting up its 
 mistakes as misrepresentations working a forfeiture. He 
 was at least the agent of the company for forwarding the 
 application, and his misconduct in that regard was imput- 
 able to his principal, and could not be allowed to prejudice 
 the rights of the applicant, who did not know of it, and sup- 
 posed, and had a right to suppose, he was insured upon the 
 basis of the application which he actually did send to the 
 agent, but which the agent did not forward. And the court 
 would not compel the insured to go to a court of equity for 
 relief, feeling authorized as a court of law to apply precisely 
 the same rules of equitable waiver and estoppel as are ap- 
 plied in courts of equity.^ 
 
 But if an agent to whom the assured by letter applies for 
 insurance fills up an application, and signs thereto the name 
 of the assured, though without his knowledge, and the in- 
 sured afterwards receives a policy with a copy of the appli- 
 cation annexed, the application being expressly made part 
 of the contract, and the contract providing that by accept- 
 ing the policy the insured becomes responsible for the truth 
 of the statements contained in the application, the fact that 
 the original statement was made by the agent, and without 
 
 1 Wilson V. Conway Miit. Fire Ins. Co., 4 E. I. 141. And see also Denny v. 
 Conway Stock & Mut. Fire Ins. Co., 13 Gray (Mass.), 492 ; Ames v. N. Y. 
 Union Ins. Co., UN. Y. 253, 258. ' 
 
 266 
 
CH. VII.J AGENTS. — THEIK POWERS AND DUTIES. [§ 143 
 
 the knowledge of the assured, will not avail to prevent a 
 forfeiture by reason of a material false statement.-' 
 
 § 142. Their Knowledge and their Mistakes those of the 
 Principal. — And such agent's knowledge of the existence of 
 a fact material to the risk — as, for instance, a steam-boiler 
 in the building, but not mentioned in the application — is 
 the knowledge of the company, and precludes them from 
 excepting to the defect in the application.^ 
 
 And material errors made by the agent in the surveys 
 and measurements, such as if made by the applicant would 
 amount to a breach of warranty, cannot be set up by the 
 company in defence to an action for a loss under the policy. 
 The misstatement is in law the misstatement of the com- 
 pany ; and although the writing must be held to express the 
 contract of the parties, and cannot be varied by parol evi- 
 dence, yet when the insurance company which made this 
 statement attempts to show that it is false, for the purpose 
 of showing a breach of the warranty, it may justly be es- 
 topped to deny what it has once asserted. ^ 
 
 So if the agent of the company, there being no written 
 application, gives a description of the property, from his 
 own knowledge obtained by personal examination, which 
 description is inserted in the policy, and it is denied that 
 the property destroyed was covered by the policy, the com- 
 pany will not be allowed to take advantage of any inaccuracy 
 in the language of the description, there being no evidence 
 of any attempt to mislead on the part of the assured.* 
 
 § 143. Agent's Power to waive and estop. — It has, in 
 fact, been very generally held that knowledge by, or notice 
 to, the agent, of the inaccuracy of a statement in the appli- 
 cation upon which a policy is issued after such notice or 
 knowledge, binds the company, and prevents them from 
 availing themselves of the inaccuracy in defence, some of 
 
 1 Elchardson v. Maine Ins. Co., 46 Me. 394. And see also Goddard o. Mon- 
 itor Ins. Co., 108 Mass. 67. 
 
 2 Campbell v. Merchants' & Farmers' Mut. Ins. Co., 37 N. H. 35 ; ante, § 132. 
 8 Plumb V. Cattaraugus Co. Mut. Ins. Co., 18 N. Y. (4 Smith) 392 ; Howard 
 
 Ins. Co. V. Bruner, 23 Pa. St. (11 Harris) 50 ; post, § 498. 
 
 * Meadoweraft v. Standard Fire Ins. Co., 61 Pa. 91. And see ante, § 132. 
 
 267 
 
§ 143] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 the cases regarding the facts as amounting to a waiver, and 
 others as working an estoppel in pais. And this is true 
 even though the policy provide that when the application is 
 made through an agent of the company the applicant shall 
 he responsible for such agent's representations.^ 
 
 1 Miller v. Mut. Ben. Life Ins. Co., 31 Iowa, 216 ; Clark v. Union Mut. Fire 
 Ins. Co., 40 N. H. 333 ; Peck v. New London Co. Mut. Fire Ins. Co., 22 Conn. 
 675; Hodgkins u. Montgomery Co. Mut. Ins. Co., 34 Barb. 213; Patten n. 
 Merchants' & Farmers' Mut. Fire Ins. Co., 40 N. H. 375 ; Campbell v. Mer- 
 chants' & Farmers' Mut. Ins. Co., 37 N. H. 35 ; Marshall v. Columbian Mut. 
 Ins. Co., 7 Fost. (N. H. ) 157 ; Prot. Ins. Co. v. Harraer, 2 Ohio, N. s. 452 ; Howard 
 Fire lus. Co. v. Bruner, 23 Pa. St. 50 ; Eex v. Insurance Companies, 2 Phila. 
 (Pa.) 357 ; Kelly v. Troy Fire lus. Co., 3 Wis. 254 ; Masters v. Madison Co. 
 Mut. Ins. Co., 11 Barb. (N. Y.) 624; Plurnb v. Cattaraugus Co. Mut. Ins. Co., 
 18 N. Y. (4 Smith) 392 ; Williams v. Niagara Ins. Co. (Iowa), 9 Ins. L. J. 38 ; 
 Davey v Glens Falls Ins. Co., C. Ct. (Minn.) 9 Ins. L. J. 497; Phoenix Ins. Co. 
 V. Tucker, 92 111. 64 ; Germania Fire Ins. Co. v. McKee, 94 111. 494 ; Benson v. Ot- 
 tawa Agr. Ins. Co., 42 U. C. (Q. B.) 282; Wyld v. Lon., Liv., & Globe Ins. Co., 
 23 Grant Ch. (U. C.) 442 ; Be Universal Non-Tariff Fire Ins. Co., L. R. 19 Ecj. 
 485 ; Hastings Mut. Fire Ins. Co. v. Shannon, 2 Can. S. C. Kep. 394 ; Pechner v. 
 Phoenix Ins. Co., 65 N. Y. 195 ; American Ins. Co. v. Gallatin (Wis.), 9 Ins. L. J. 
 50 ; Planters' JIut. Ins. Co. v. Deford, 38 Md. 382 ; Mowry v. Kosendale, 74 N. Y. 
 360 ; Dayton Union Ins. Co. v. McGookey, 33 Ohio St. 555 ; Planters' Ins. Co. 
 V. Sorrells, 1 Bax. (Tenn.) 352 ; Cheek v. Columbia Fire Ins. Co., 4 Ins. L. J. 99 ; 
 Cone u. Niagara Fire Ins. Co., 60 N. Y. 619, affirming s. 0. 3 N. Y. S. C. 33 ; 
 Hadley v. New Hampshire Fire Ins. Co., 55 N. H. 110 ; Pitney v. Glen's Falls Ins. 
 Co., 65 N. Y. 6, affirming s. c. 61 Barb. (N. Y. S. C.) 335 ; Fishbeck v. Phoenix 
 Ins. Co. (Cal.), 11 Eeptr. 218 ; Ayres v. Home Ins. Co., 21 Iowa, 185 ; 
 Kreutz v. Niagara Dist. Mut. Fire Ins. Co., 16 U. C. (C. P.) 131 ; Farmers' 
 Mut. Fire Ins. Co. d. Taylor, 73 Pa. St. 342 ; Hayward v. National Ins. Co., 
 52 Mo. 181 ; Dodge Co. Mut. Ins. Co. v. Rogers, 12 Wis. 337 ; Geib v. Inter- 
 national Ins. Co., 1 Dill. C. Ct. 443, 449 ; Ben Franklin Ins. Co. v. Gillett (lid.), 
 9 Ins. L. J. 774 ; American Central Ins. Co. v. McLanathan, 11 Kans. 533 ; 
 Broadhead v. Lycoming Fire Ins. Co. (N. Y. Sup. Ct.), 11 Reptr. 346 ; Bennett 
 V. North Brit. Ins. Co. (N. Y.), 9 Ins. L. J. 585 ; Reaper City Fire Ins. Co. u. 
 Jones, 62 111. 458 ; North Am. Fire Ins. Co. v. Throop, 22 Mich. 146 ; Winans v. 
 AUemania Fire Ins. Co. 38 Wis. 342 ; Williams o. Canada Fire Mut. Ins. Co., 
 27 U. C. (C. P.) 119 (showing a tendency to relax the strictness of former cases. 
 See Chatillon v. Canadian Mut. Fire Ins. Co., 27 U. C. (C. P.) 450, where it 
 was held that, if the applicant could not read, the insurers were bound by the 
 application filled out by the agent, otherwise if the applicant be able to read ; 
 and Newcastle Fire Ins. Co. v. MacMorran et al., 3 Dow, 255, where it seems to 
 have been taken for granted that such was the law) ; Perry Co. Ins. Co. v. 
 Stewart, 19 Pa. St. 45 ; Ames v. N. Y. Union Ins. Co., 14 N. Y. 253, 258 ; Somers 
 V. Athenaeum Fire Ins. Co., 9 Low. Can. K. 61 ; Michael v. Mut. Ins. Co. of 
 Nashville, 10 La. An. 737 ; Roth v. City Ins. Co., 6 McLean (U. S.), 324 ; Eow- 
 ley V. Empire Ins. Co., 36 N. Y. 550 ; Beal v. Park Ins. Co., 16 Wis. 241 ; Davis 
 V. Scottish Prov. Ins. Co., 16 U. C (C. P.) 176. The cases of Kennedy v. St. 
 Lawrence Co. Mut. Ins. Co., 10 Barb. (N. Y.) 285 ; Sexton v. Montgomeiy Co. 
 
 268 
 
CH. VII. ] AGENTS. — THEIR POWEES AND DUTIES. [§ 143 
 
 And, indeed, the tendency of the courts generally is daily 
 becoming more decided to hold that such an agent may 
 waive any of the conditions of the policy and bind the com- 
 pany by such waiver, and that his promises and acts, both 
 of omission and commission, representations, statements, 
 and assurances, made within the scope of his agency, and 
 after knowledge of a breach of condition, or of the untruth- 
 fulness, inaccuracy, or incompleteness of the statements in 
 the application, if relied upon by the insured to his preju- 
 dice, may be set up by him, being himself without fault, 
 either on tlae ground of waiver or of estoppel, in answer to 
 a claim of forfeiture. ^ If tlie agent be guilty of fraud upon 
 the insurers, and the insured knowingly aids in its perpetra- 
 tion, or, by neglecting to read the application, suffers it to 
 be perpetrated, he is not without fault.,^ 
 
 The local agent of an insurance company authorized to 
 issue and renew policies, and receive premiums, may con- 
 sent to a change of title ; ^ and in Wisconsin, where the code 
 makes him an agent "to all intents and pui'poses," he may 
 waive a forfeiture by reason of change of title, by the accept- 
 
 Mut. Ins. Go., 9 Ind. 191 ; and Jennings v. Chenango Co. Mut. Ins. Co., 2 Denio 
 (N. Y.), 75, to the contraiy, cannot be reconciled with the later cases iu the New 
 York courts. See also post, § 180 u. 
 
 1 Columbian Ins. Co. v. Cooper, 50 Pa. St. 331 ; Franklin w. Atlantic Fire Ins. 
 Co., 42 Mo. 456 ; Keeler v. Niagara Ins. Co., 16 Wis. 523 ; Viele v. Germania Ins. 
 Co., 26 Iowa, 9 ; Boehen v. Williamsburgh Ins. Co., 35 N. Y. 131 ; May v. Buck- 
 eye Mut. Ins. Co., 25 Wis. 291 ; Peoria Mar. & Fire Ins. Co. o. Hall, 12 Mich. 
 202 ; Brandaf v. St. Paul Fire & Mar. Ins. Co. (Minn.), 11 Eeptr. 434. By 
 statute ill New Hampshire it is provided, in relation to the insurance companies 
 of that State, that when applications are taken by an agent the policy shall not 
 he void by rea.son of any error, mistake, or misi'epresentation not intentionally 
 and fraudulently made. Laws 1855, u. 1662, § 6 ; De Lancey v. Rockingham Mut. 
 Fire Ins. Co., 52 N. H. 581. The law has, however, no effect upon foreign insur- 
 ance companies. Campbell v. Merchants' & Farmers' Mut. Ins. Co., ubi sup. See 
 also cases cited in the preceding note. There are applications which restrict 
 the powers of agents and call attention to these restrictions more or less con- 
 spicuously, leaving the applicant in a hopeless predicament if he has warranted 
 his answers in all i-espects true. Lee w. Guardian Life Ins. Co. (C. Ct. CaL), 5 
 Big. Life & Ace. Ins. Cas. 18 ; s. c. 2 Cent. L. J. 495. See also ante, § 137; post, 
 § 206 ; Clevenger r. Mut. Life Ins. Co. (Dak.), 9 Int. L. J. 129. 
 
 3 Ryan v. World Mut. Life Ins. Co., 41 Conn. 168. See also Lee v. Guardian 
 Life Ins. Co. (C. Ct. Cal.), 5 Big. Life & Ace. Ins. Cas. 18 ; s. o. 2 Cent. L. J. 
 495. See also post, § 607. 
 
 8 111 Mut. Fire Ins. Co. .,. Stanton, 57 111. 354. 
 
 269 
 
§ 144] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 ance of the premium and the issue of a renewal receipt, 
 with full knowledge of the change of title ;^ he may also, 
 after the issue of the. policy, and in contravention of its 
 provisions, consent to further insurance. ^ 
 
 § 144. Same Subject. — To these numerous and respect- 
 able authorities the Supreme Court of the United States has 
 added the weight of its deliberate approval.^ That court holds 
 the language quoted in the note.* In lowa,^ the broad proposi- 
 
 1 Miner v. Phoenix Ins. Co., 27 Wis. 693 ; s. o. 1 Ins. L. J. 41. 
 
 2 Schoener v. Hekla Fire Ins. Co. (Wis.), 10 Ins. L. J. 306. 
 
 8 Union Mut. Ins. Co. v. Wilkinson, 13 Wall. (U. S.) 222 ; American Ins. Co. 
 V. Mahoue, 21 Wall. (U. S.) 152 ; Eames v. Home Ins. Co., 94 U. S. 621. [See, 
 however, § 145 A. for a later case in the same court, which moves in the oppo- 
 site direction.] 
 
 * "This question has heen decided differently hy courts of the highest respeo- 
 tahility iu cases precisely analogous to the present. It is not to be denied that 
 the ajiplication, logically considered, is the work of the assured, and if left to him- 
 self as to such assistance as he might select, the person .so selected would be his 
 agent, and he alone would he responsible. On the other hand, it is well known 
 — so well that no court would be justified in shutting its eyes to it — that insur- 
 ance companies organized under the laws of the State, and having in that State 
 their principal business office, send their agents all over the land, with directions 
 to solicit and procure applications for policies, furnishing them with printed 
 arguments in favor of the value and necessity of life insurance, and of the special 
 advantages of the corporation which the agent represents. They pay these agents 
 large commissions on the premiums thus obtained, and the policies are delivered 
 at their hands to the assured. The agents are stimulated hy letters and instruc- 
 tions to activity in procuring contracts ; and the party who is in this manner 
 induced to take out a policy rarely sees or knows anything about the company or 
 its officers by whom it is issued, but looks to, and relies upon, the agent who has 
 persuaded him to effect insurance, as the full and complete representative of the 
 company in all that is said or done in making the contract. Has he not a 
 right to so regard him ? It is yet true that the reports of judicial decisions are 
 filled with the efforts of these companies, by their counsel, to establish the doc- 
 trine that they can do all this, and yet limit the responsibility of the acts of these 
 agents to the simple receipt of the premium and delivery of the policy ; the argu- 
 ment being that as to all other acts of the agent he is the agent of the insured. 
 This proposition is not without support in some of the earlier decisions on the 
 subject ; and, at a time when insurance companies waited for parties to come to 
 them to seek assurance, or to forward application on their own motion, the doc- 
 trine had a reasonable foundation to rest upon. But to apply such a doctrine in 
 its full force to the system of selling policies through agents, which we have 
 described, would be a delu-sion and a snare, leading, as it has done in numerous 
 instances, to the grossest frauds, of which the insurance companies receive the 
 benefit, and the parties supposing themselves insured are the victims. The 
 tendency of the modern decisions in this country is steadily in the opposite direc- 
 
 5 Miller v. Mut. Benefit Life Ins. Co., 31 Iowa, 216. 
 270 
 
CH. VII.] AGENTS. — THEIE POWERS AND DUTIES. [§ 144 
 
 tion has been affirmed that " an insurance company transact- 
 ing business through an agent having authority to solicit, 
 make out, and forward applications, to deliver policies when 
 returned, and to collect and transmit premiums, is affected 
 by the knowledge acquired by such agent when engaged in 
 procuring an application, and bound by his acts done at 
 such time with respect thereto. "^ In order, however, that 
 statements made to the company's agent, but misunderstood 
 or not set down by him, in the application, may protect the 
 insured from the consequences of misrepresentation, it should 
 appear that they were made at the time when the application 
 was taken, and in connection therewith; statements made 
 at a prior and fruitless interview cannot have that effect. ^ 
 
 tion. The powers of the agent are, prima facie, coextensive with the business 
 intrusted to his care, and will not be narrowed by limitations not communicated 
 to the persons with whom he deals. Bebee v. Hartford Ins. Co., 25 Conn. 51 ; 
 Lycoming Ins. Co. v. SchoUenberger, 8 Wright (Pa.), 259 ; Beal v. Park Ins. Co., 
 16 Wis. 241 ; Davenport v. Peoria Ins, Co., 17 Iowa, 276. An insurance com- 
 pany establishing a local agency must be held responsible to the parties with 
 whom they transact business for the acts and declarations of the agent, within 
 the scope of his employment, as if they proceeded from the principal. Woodbury 
 Savings Bank v. Charter Oak Ins. Co., 31 Conn. 517 ; Horwitz v. Equitable Ins. 
 Co., 40 Mo. 557 ; Ayres v. Hartford Ins. Co, , 17 Iowa, 176 ; Howard Ins. Co. v. 
 Bruner, 11 Har. (Pa,) 50. 
 
 "In the fifth edition of American Leading Cases, after a full consideration of 
 the authorities, it is said ; ' By the interested or officious zeal of the agents em- 
 ployed by the insurance companies in the wish to outbid each other and procure 
 customers, they not unfreqiiently mislead the insured by a false or erroneous state- 
 ment of what the application should contain, or, taking the preparation of it into 
 their own hands, procure his signature by an assurance that it is properly drawn 
 and will meet the requirements of the policy. The better opinion seems to be 
 that, when this course is pursued, the description of the risk should, though 
 nominally proceeding from the assured, be regarded as the act of the insurers.' 
 Vol. ii. p. 947 ; Rowley o. Empire Ins. Co., 36 N. Y. 550. The modem deci- 
 sions fully sustain this proposition, and they seem to us founded in reason and 
 justice, and meet our entire approval. This principle does not admit oral testi- 
 mony to vary or contradict that which is in writing, but it goes upon the idea that 
 the writing offered in evidence was not the instrument of the party whose name 
 was signed to it ; that it was procured under such circumstances by the other 
 side as estops that side from using it or relying on its contents ; not that it may 
 be contradicted by oral testimony, but that it may be shown by such testimony 
 that it cannot be lawfully used against the party whose name is signed to it." 
 [If testimony is admitted to show that the application was not that of the assured, 
 and that application is declared by the policy to be the basis of the contract, does 
 not such testimony show that there is no contract ?] 
 
 1 New Jersey Mut. Life Ins. Co. u. Baker, 94 U. S. 610. 
 
 30 Mo. 63. 
 
 271 
 
§ 144 A] INSUKANOB : FIRE, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 [§ 144 A, In regard to matters correctly stated to him or 
 known to him, his mistakes without fault or knowledge of 
 the assured bind the company. ^ Such is the rule laid down 
 by the majority of the cases in very broad terms, even 
 though the policy declares the statements in the application 
 to be warranties. 2 If an ignorant applicant is imposed on 
 or taken advantage of by the agent and so fails to state the 
 interest of another person, as required by the policy, he will 
 nevertheless be protected after lols to the extent of his own 
 real interest.^ Bad faith is worse than ignorance. If the 
 agent deceives the assured as to the filling up of the applica- 
 tion so that it states a falsehood, the company is estopped 
 from setting this up as a defence.^ (a)] 
 
 1 [Williamson w. New Orleans Ins. Ass., 84 Ala. 106 ; Brown v. Commercial F. 
 Ins. Co., 86 Ala. 189 ; Ala. Gold Life Ins. Co. v. Garner, 77 Ala. 210 ; O'Brien v. 
 Home Ben. Soc, 51 Hun, 495 ; Pickel v. Plienix Ins. Co., 18 Ins. L.J. 598 (Ind.), 
 June, 1889 ; Continental Ins. Co. v. Munns, 120 Ind. 30 ; Kingston v. Mtna. Ins. 
 Co., 42 Iowa, 46, 47 ; Wheaton v. North Brit. & Mer. Ins. Co., 76 Cal. 415; 
 Stone V. Hawkeye Ins. Co., 68 Iowa, 734 ; H nrnthal ». Insurance Co., 88N. C. 71 ; 
 Western Ass. Co. v. Rector, 85 Ky. 295 (misrepresentation of title by agent) ; 
 Kansal v. Minn., &c. Fire Ass., 31 Minn. 17 ; Menk o. Home Ins. Co., 76 Cal. 
 50 ; Continental Ins. Co. v. Pearce, 39 Kans. 396 (insured signed the application 
 not knowing its contents) ; Young v. Travellers' Ins. Co., 80 Me. 244 (agent 
 misstates date of accident in the proofs) ; Continental Life Ins. Co. v. Thoena, 
 26 Brad. 495 ; Phenix Ins. Co. v. Allen, 109 Ind. 273 (misdescription of property 
 by agent) ; Sullivan u. Phenix Ins. Co., 34 Kans. 170 (deliberate fraud of agent). 
 A local soliciting agent filling np an application acts for the company, and if he 
 makes a mistake in regard to matters correctly stated to him by the applicant, 
 the company is bound. Insurance Co. v. Williams, 39 Ohio St. 584, 588. If the 
 insured fully and correctly states the facts to the agent, misleading or erroneous 
 answers inserted- in the application by such agent estop the company. Kenyon 
 V. Knights Templars, &c. Aid Ass., 48 Hun, 278.] 
 
 2 [Continental Ins. Co. o. Pearce, 39 Kans. 396.] 
 
 3 [Diebold V. Phrenix Ins. Co., 33 Fed. Rep. 807 (Kan.), 1888.] 
 ' [Geib V. International Ins. Co., 1 Dill. 443, 447.] 
 
 (ffi) If the agent writes untrue or Ace. Co., 97 Ga. 502 ; Eobinson v. 
 
 partial answers in the application, when Met'n L. Ins. Co., 37 N. Y. S. 146; 
 
 the applicant answers truly or more McGuire v. HaT-tford F. Ins. Co., 40 id. 
 
 fully upon a material question, the in- 300 ; Peters v. TJ. S. Ind'l Ins. Co., 42 
 
 surer is bound by the answers really id. 348 ; Clemens v. Supreme Assembly 
 
 made, as the insurer has notice through (N. Y.), 16 L. R. A. 33, and note ; 
 
 him. Standard L. & Ace. Ins. Co. v. Lumbermen's Mut. Ins. Co. v. Bell, 
 
 Davis, 59 Kansas, 521 ; Kansas Mill- 166 111. 400 ; Rochester Loan & B. Co. v. 
 
 owners' M. F. Ins. Co. v. Central Liberty Ins. Co., 44 Neb. 537 ; Home F. 
 
 Nat. Bank, 60 id. 630 ; State Ins. Co. Ins. Co. t;. Fallon, 45 Neb. 554; German- 
 
 V. Gray, 43 id. 731 ; Clubb v. American American Ins. Co. v. Hart, 43 Neb. 411. 
 272 
 
CH. VII.J AGENTS. — THEIR POWERS AND DUTIES. [§ 144 C 
 
 [§ 144 B. Omissions or false answers made by the agents 
 of a company, with no collusion by the assured, do not avoid 
 the policy. 1 When an agent of the company with full knowl- 
 edge of the facts makes out an application, it is conclusive 
 upon the company. ^ In Maine this is so by statute. ^ A 
 mistake of an agent of the company in naming the owners 
 in the application or in the proofs of loss without knowledge 
 of the assured, cannot defeat the policy.* The insurance 
 company is responsible for the negligence of its agent in 
 wrongly stating the age of the applicant in the application, 
 having been correctly informed.^ Where the applicant is 
 ignorant and in good faith trusts to the agent in making the 
 application, it is the company's act.® If the medical exam- 
 iner acting as agent of the company undertakes to write the 
 application from his own knowledge, rather than from the 
 answers of the assured, the company is responsible.'^] 
 
 [§ 144 C. If the agent makes a misstatement in the appli- 
 cation and gets the insured to sign it without acquainting 
 him with the contents, the company is bound by the state- 
 ment.^ An omission in the description of the property by 
 mistake of the agent in filling out the application, afterward 
 signed by the insured, will not prejudice the latter, even 
 though the policy provides that the agent shall be deemed 
 to act for the insured.^ Parol is admissible to show that 
 the statements given to the agent were different from those 
 in the application transcribed by him and sent to the com- 
 pany, though the application was signed by the insured, not 
 knowing its contents were different from the statements he 
 
 1 [McArthur v. Globe Mnt. Life Ins. Co., 14 Hun, 348, 354.] 
 
 2 [Andes Ins. Co. v. Fish, 71 111. 620, 623.] 
 
 8 [Gaston v. Monmouth Mut. Fire Ins. Co., 54 Me. 170, 172.] 
 
 * [Parker v. Amazon Ins. Co., 34 Wis. 363, 370.] 
 
 6 [McCall V. Phcenix Mut. Life Ins. Co., 9 W. Va. 237, 243.] 
 
 6 [Hartford Ins. Co. d. Haas, 87 Kj'. 531. In this case an ignorant German 
 woman who had only a dower interest was protected, although the jiolicy was 
 conditioned to be void unless interests other than a fee simple were stated. 
 The agent had obtained knowledge of the real facts in another transaction.] 
 
 ' [Pudritzky v. Knights of Honor, 76 Mich. 428.] 
 
 " [Dunbar «. Phenix Ins. Co., 72 Wis. 492.] 
 
 s [Insurance Co. v. Cusick, 109 Pa, St. 157.] 
 
 VOL. I. — 18 273 
 
§ 144 D] INSURANCE : FIRE, LIFE, ACCIDENT, ETC, [CH. VII. 
 
 had made to the agent. ^ If the agent fills out the applica- 
 tion, the insured, being ignorant of false statements therein, 
 is not affected by them, although a copy of the application 
 was attached to the policy, and he failed to give notice to 
 the company that the statements were untrue.^ When the 
 company's agent, knowing the circumstances (viz., an in- 
 cumbered equitable title), filled in the application, "fee 
 simple — no incumbrances," and the assured signed it with- 
 out reading, supposing it was all right, it was held that the 
 company could not set up concealment or breach of war- 
 ranty. ^ If an agent, knowing of incumbrances, states in 
 the application that there are none, and procures the signa- 
 ture of the applicant who is ignorant in such matters, the 
 condition against incumbrances is waived, notwithstanding 
 the policy says there shall be no waiver but in writing 
 signed by the president or secretary.^] 
 
 [§ 144 D. If an agent fills in an answer to a question that 
 was not propounded to the insured and which he did know 
 was in the application signed by him in reliance on the 
 agent and without reading, the answer is the act of the 
 company.^ If A. goes to insure his wife's property and tells 
 the agent the facts and requests a policy in his wife's name, 
 but the agent makes the policy in A. 's name, A. may sue on 
 the policy as agent of his wife.^ When an agent accepts a 
 verbal application, and afterward writes out an application 
 without the insured's knowledge, she is not bound by it, 
 although the policy refers to it. It would be a fraud on her 
 to hold her to an application she knew nothing of.'' It is 
 doubtful whether even the delivery of a policy is notice of 
 its contents to one who cannot read, and who is assured by 
 the agent that it is all right, and in accordance with the 
 
 1 [Continental Ins. Co. v. Pearce, 39 Kans. 396.] 
 
 2 [Donnelly v. Cedar Eapids Ins. Co., 70 Iowa, 693.] 
 
 8 [Combs V. Hannibal Savings & Ins. Co., 43 Mo. 148, 151 ; Dahlberg v. St. 
 Louis Mut. Fire & Mar. Ins. Co., 6 Mo. App. 121, 128.] 
 ^ [Eenier v. Dwelling-House Ins. Co., 74 Wis. 89.] 
 s [Schwarzbach v. Protective Union, 25 W. Va. 624, 661.] 
 
 6 [Deitz V. Insurance Co., 31 W. Va. 851.] 
 
 7 [Baker o. Insurance Co., 70 Mich. 199.] 
 
 274 
 
CH. VII.] AGENTS. — THEIR POWERS AND DUTIES. [§ 144 D 
 
 contract.^ (a) Where an application was signed by the in- 
 sui'ed and afterward changed by the agent without the knowl- 
 edge of the assured, it was held that the company was bound, 
 and the insured could not be held on the inserted warranty 
 (but in this case, as the policy plainly stated that if the in- 
 sured was not the sole, &c., owner the title must be ex- 
 pressed, and he had not expressed his interest, the policy 
 was void, and he could not be heard to say that he had not 
 read it).^ If an agent substitutes a spurious application for 
 that made by the assured, the company cannot rescind on 
 discovering of the fraud. ^] 
 
 1 [Continental Ins. Co. v. Euckman, 127 111. 364.] 
 
 2 [Swan V. Watertown Fire Ins. Co., 96 Pa. St. 37, 43.] 
 
 8 [Mass. Life Ins. Co. ... Eshelraan, 30 Ohio St. 647, 657.] 
 
 (a) It is the duty of the insured 
 upon receiving his policy to examine it 
 promptly and, if it does not contain the 
 stipulations agreed upon between him 
 and the agent, to at once notify the com- 
 pany of his refusal to accept the policy. 
 The fact that the insured cannot read 
 does not relieve him of the duty to in- 
 form himself seasonably whether or not 
 the contract, as executed and delivered 
 to him, complies with the original under- 
 standing, such duty being the same as 
 rests under such circumstances upon 
 contracting parties who are not illiter- 
 ate. McHoney v. German Ins. Co., 52 
 Mo. App. 94 ; but see Omaha F. Ins. 
 Co. V. Crighton, 60 Neb. 314. Where a 
 policy of insurance, with a copy of the 
 application indorsed thereon, wa.s sent 
 by the company to the insured, and was 
 in his possession for several months 
 before the loss occurred, he was held 
 chargeable in law with knowledge of 
 the contents of both the policy and the 
 application ; and the circumstance that 
 the assured did not actually read or 
 know the contents of the application, 
 or know that a copy of the application 
 was indorsed on the policy, makes no 
 difference, but the paper being his own 
 contract, and in his actual custody, he 
 will be presumed to know all it contains, 
 even if the copy on the back was not re- 
 
 ferred to in the body as being indorsed 
 there. Johnson v. Dakota F. & M. Ins. 
 Co., 1 No. Dak. 167. After repeated 
 payments of the annual premiums, the 
 insured is presumed to be familiar with 
 the terms of his policy. Union Central 
 L. Ins. Co. V. Hook (Ohio), 66 N". E. 906. 
 When the policy is delivered by the 
 insurer at the place and to the person 
 named by the insured, he is bound by 
 its terms, though he does not read it, 
 there being no evidence of anything to 
 prevent him from so doing, ^tna Ins. 
 Co. V. Holcomb, 89 Texas, 404, 410 ; 
 Quinlan v. Providence-Washington Ins. 
 Co., 133 N. Y. 356, 364. On the other 
 hand, in McElroy i^. British America 
 Ass. Co., 94 Fed. Rep. 990, 1000, the in- 
 sured was held entitled to rely upon the 
 agent's making the contract conform 
 with his application, and his neglect to 
 read the entire policy was held not to 
 excuse the insurer for such default of its 
 agent. See also Gristock v. Royal Ins. 
 Co., 87 Mich. 428 ; Delouche v. Met'n L. 
 Ins. Co. (N.H.), 45 Atl. 414; McMaster 
 V. New York L. Ins. Co. , 99 Fed. Rep. 
 856 ; Dryer v. Security F. Ins. Co. 
 (Iowa), 82 IST. W. 494 ; Shedden v. 
 Heard (Ga.), 35 S. E. 707 ; Wilson v. 
 National L. Ins. Co., 31 Misc. Rep. 
 (N. Y. ), 403. See infra, § 200, note {a). 
 
 275 
 
§ 144 E J INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 [§ 144 E. Where the agent, knowing the facts of a mort- 
 gage for i2,000 covering two buildings, one of which was 
 the mill insured, of his own motion apportioned the mort- 
 gage and called it 11,000 on each building, so that the 
 application for insurknce on the mill represented the incum- 
 brances on it as $1,000, the evidence of these facts should 
 be admitted to show that the company was aware of the true 
 state of the case, and therefore estopped.-' Where an insur- 
 ance agent, with full knowledge of the facts, causes the 
 applicant to make a wrong statement, the company is es- 
 topped, there being no bad faith on the part of the assured. ^ 
 So, if the agent and the insured are both ignorant of a 
 change of ownership in the premises upon which the insured 
 holds a mortgage, a misstatement by the agent resulting 
 from such ignorance cannot be taken advantage of by the 
 company.^ When an agent has authority to procure insur- 
 ance and forward applications, his acts in filling out such 
 applications, without knowledge of the assured, bind the 
 company, in spite of a stipulation in the policy subsequently 
 issued to the effect that he shall be deemed to have acted for 
 the insured.* This is not a violation of the rule that verbal 
 testimony is not admissible to vary a written contract. It 
 proceeds on the ground that the contents of the paper were 
 not his statement, — that the writing is not the contract 
 made, though signed by the insured. Although parol is not 
 admissible to vary a written contract, it is admissible to 
 effect an estoppel, as by showing that the agent took advan- 
 tage of the inability of the insured to read, or misled him 
 as to the provisions of the policy.^ An applicant is, how- 
 ever, presumed to have read the application before signing 
 it, and in the absence of proof that she was imposed on, or 
 that the agent knew the falsity of the statement, — of value, 
 for example, — it will be fatal.^ Even proof that the agent 
 
 1 [Ring V. Windsor Co. Mut. Fire Ins. Co., 51 Vt. 563, 569.] 
 
 2 [Mut. Benefit Life Ins. Co. v. Daviess' Ex'x, 87 Ky. 541] 
 
 8 [Poughkeepsie Savings Bank v. Manhattan Fire Ins. Co., 30 Hun, 473.] 
 
 4 [Deitz V. Insurance Co., 31 W. Va. 851, 856, 857.] 
 
 5 [Rivara v. Queen's Ins. Co., 62 Miss. 720.] 
 
 * [Briggs V. Fireman's Ins. Co., 65 Mich. 52.] 
 276 
 
OH. Vn.J AGENTS. — THEIR POWEKS AND DUTIES. [§ 144 F 
 
 filled in the answers after the application was signed a,nd 
 after he returned to his oflBce, is not enough without evi- 
 dence that his statements differed from those that had been 
 made to him, or which he knew to be the correct ones.^ It 
 has been held that evidence that the insured answered the 
 agent truly, that the agent filled in the application, and that 
 the applicant signed it supposing it to be correct is inadmis- 
 sible, in answer to the defence that the application contains 
 material falsities. The insured is presumed to know what 
 he signs. Afterward, however, the ruling was reversed, and 
 the doctrine advanced that such evidence is admissible, and 
 he may recover on showing that his oral answers were true, 
 and the other facts as above. ^J 
 
 [§ 144 F. When the policy on merchandise in a store pro- 
 hibited the keeping of petroleum and a barrel was on hand 
 when the fire occurred, it was held to avoid the policy eve^i 
 though the agent knew of this at the execution of the policy.^ 
 Notice to an agent whose authority extends merely to receiv- 
 ing and forwarding applications, premiums, and policies, 
 that gunpowder is kept in the store, is not notice to the 
 company.* A warranty that the building insured is a dwell- 
 ing-house occupied by the applicant, when really it was 
 unfinished and unoccupied, is fatal, although the agent in- 
 spected the building and wrote the application, reading it, 
 however, to the insured, who signed it. With respect to 
 such an application the agent acts for the insured.^ Where 
 the policy states that the assured adopts and warrants all 
 statements in the application, he cannot set up the fact that 
 the agent improperly and untruthfully filled out the applica- 
 tion after being correctly informed.^ If the policy clearly 
 describes one building, no external evidence is admissible 
 to show that another was meant, even though the description 
 
 1 [Brown v. Metropolitan Life Ins. Co., 65 Mich. 306.] 
 
 2 [Fletcher «. N. Y. Life Ins. Co., 3 MoCrary, 603, 607 ; 11 ]?ed. Rep. 377 ; 
 12 Fed. Rep. 557 ; 13 Fed. Rep. 526 ; 14 Fed. Rep. 846 ; 12 Ins. L. J. 122.] 
 
 2 [Birmingham Fire Ins. Co. v. Kroegher, 83 Pa. St. 64, 67.] 
 * [Liverpool, &o. Ins. Co. v. Van Os, 63 Miss. 431, 441.] 
 6 [Pottsville Mut. Fire Ins. Co. v. Froram, 100 Pa. St. 347.] 
 6 [Wilkins v. Mut. Reserve Fund Life Aas., 54 Hun, 294.] 
 
 277 
 
§ 144 G] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [OH. VII. 
 
 was a mistake of the agent, he being only authorized to make 
 surveys and receive applications, the company approving the 
 risks. The minds of the contracting parties never met.'] 
 
 [§ 144 G. Discussion of the Effect of the Ageut's Knowledge. 
 — How far the knowledge of an insurance agent ought to 
 affect the company is a very serious question, as the cases 
 in the foregoing sections make manifest. Given a company 
 dealing through A. with C, what effect is to be given to 
 A. 's knowledge ? That is the problem. The object of the 
 law as regards commercial life is to repress bad faith and 
 negligence, and favor good faith, certainty, and facility of 
 doing business. This it accomplishes by throwing the con- 
 sequences of evil on the wrong-doer, and securing the nat- 
 ural results of good conduct to the "conductor," if we may 
 warp that word to the occasion, and, where necessary for 
 the protection of society from the acts of those employed by 
 others and not of themselves sufficiently responsible, the law 
 holds the employer. It is all a matter of judgment and com- 
 mon sense, and the sole question is what arrangement will 
 be best for society all things considered. Coming to the 
 question before us with this principle in mind, — 
 
 1. It is clear that if the insurer himself knows the fatal 
 fact F., and afterward recognizes the contract of insurance 
 as valid by receiving premiums, making assessments, &c., he 
 should be held ; good faith and certainty require it. Were it 
 not for being lulled into security the insured would not use- 
 lessly pay out his money, but would procure new insurance. 
 
 2. It is equally clear that if the insurer I. himself does 
 not know the fact F., and the insured C. does know it, and 
 has good reason to believe that I. does not, C. should reap 
 the appropriate harvest of his bad faith in the loss of the 
 contract, no matter what A. 's knowledge may be. This 
 covers cases of collusion between C. and A., and cases in 
 which C. warrants or represents to the company an untruth, 
 although known to the agent to be untrue. ^ If A. knows 
 the fatal fact F. , but through fraud or negligence does not 
 
 1 [Sanders v. Cooper, 115 N. Y. 279.] 
 
 2 [See § 133 B.] 
 
 278 
 
CH. VII.] AGENTS. — THEIR POWERS AND DUTIES. [§ 144 G 
 
 inform I. of it, and C, is ignorant of I.'s ignorance, has 
 acted properly informing A. correctly, in all respects con 
 ducting himself in good faith, and is guilty of no greater 
 negligence than is involved in relying on A. to do properly 
 the business entrusted to him by the company, and failing to 
 check his work by reading the application and policy, or get 
 some reliable person not adversely interested to read it for 
 him, then the question of loss as between I. and C. is one of 
 difficulty. 
 
 It may be said, on the one hand, that it is a very small 
 matter for each person to read the papers or have them read, 
 that the company cannot test the character or govern the 
 action of its agents all over the world, and that it is entitled 
 to this slight aid from the public to help it keep the agents 
 straight. And it does seem a great hardship on a company 
 to make it pay thousands of dollars on a risk it might never 
 have taken but for a falsehood or misstatement in a paper 
 signed by the assured without reading. The agent in writ- 
 ing the application is really doing the assured's part in the 
 negotiations, and the latter knows that the whole contract 
 is to be based upon that application. He knows also that 
 the agent is liable to error, and open to temptation to de- 
 fraud, and he should as a prudent man read the papers. On 
 the other hand, it may be said that the company selects the 
 agent to do its work. He is under its command and subject 
 to its discharge. The profits of the business done by him 
 belong to it. The assured has no control over him, and is 
 invited by the company to rely on him. It is the wide- 
 spread custom to give the agent the facts verbally, and leave 
 him to write the application, and certainty and facility of 
 doing business require that the public should be protected in 
 this its chosen manner of dealing. It would open the door- 
 way to the grossest frauds, if the insurer could escape lia- 
 bility because of some misstatement or omission made by its 
 own agent, perhaps intentionally to secure gains to the com- 
 pany without risk, relying on the well-known habit of men 
 to sign the application without investigation. 
 
 On the whole it seems to me there is a distinction between 
 
 279 
 
§ 144 G] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VIL 
 
 cases where the agent has (or is held out as having) full dis- 
 cretion to contract just as if he were himself the company, 
 issuing policies without referring the risk to the home office, 
 and cases in which the agent is not properly supposed by the 
 assured to have any greater power than to solicit insurance 
 and take the facts, forwarding them to the home office, 
 where the assent is really given. 
 
 In the first class of cases the company should be held. 
 The general agent, so far as 0. is concerned, is the com- 
 pany itself, just as much as the secretary in the home office 
 is in the other class of cases. The contract is exactly the 
 same as if A. were I. ; the case falls under our first divi- 
 sion. If a right of cancellation is reserved if the home office 
 should, after knowing the facts, conclude that it desired to 
 retire from the contract made by its general agent, then, as 
 to furnishing the basis for such conclusion, the application 
 would fall under the principle of the second class of cases. 
 
 Where the assured knows that the decision rests with an- 
 other than the agent he is talking with, he ought to exercise 
 proper care that the facts should go correctly to that other. 
 If he gives the facts verbally to the agent, and the company 
 issues a policy without requiring a signed statement, and 
 without writing the answers as a part of the policy, of course 
 no court would make the assured responsible for errors of 
 the agent in transmitting his answers to the company. If, 
 however, the assured signs an application or receives what 
 purports to be a copy of his answers in or with the policy as 
 part of the contract, he ought certainly, speaking absolutely, 
 to read the papers and see that they are right. Who would 
 think of signing a deed or a bond without knowing its con- 
 tents ? Yet a policy may be as valuable as a deed, and 
 more valuable than a bond if the obligor goes to Canada. 
 Absolutely he ought to read, but relatively to the company 
 does he owe this duty in such sense as to free it if he does 
 not ? If we give the assured the money, negligence escapes 
 its punishment entirely, and the public will go on being 
 negligent, and more unjust contracts will be made for lack 
 of a little care on the part of the assured. If we allow the 
 280 
 
CH. VII. J AGENTS. — THEIR POWERS AND DUTIES. [§ 144 G 
 
 company to keep the money, we open a way to corruption, 
 and put a heavy loss on an almost innocent party who has 
 given value in good faith. Justice would give the assured his 
 premiums and interest from the company, and the rest of his 
 loss from the agent. 
 
 It will not do to decide the question before us by referring 
 to the rule that parol is inadmissible to vary a written con- 
 tract. It can have no place at all, unless the application is 
 made part of the policy. The principle is intended to do 
 justice, and not evil. It never should be appealed to, to 
 enable a party to take advantage of his own wrong. In the 
 very jurisdictions where it is used as decisive of the matter 
 under discussion, it continually gives way in cases of fraud, 
 duress, mistake, &c. Anything showing that the contract 
 is not the one made by the parties is admissible. Parol 
 ought to be admitted to show that the agent did not cor- 
 rectly take down the insured's answers, — that the applica- 
 tion is not the instrument of the assured, — to prove that 
 the minds of the parties never met on the contract as set 
 down in the policy and application. To avoid the contract 
 and resist the payment of premiums there is no sort of 
 doubt that the insured should be allowed to do this; but 
 when the request is not only to declare the supposed con- 
 tract off, but to substitute a new one, holding the company 
 to a risk it did not understand, which fact the insured had 
 easy means of knowing, then the question is not one of the 
 admission of parol to show that a different contract was 
 actually made, but to show that the minds of the contract- 
 ing parties really did not meet at all. I am speaking of 
 course of the second class of cases, in which the agent is 
 only a solicitor and forwarder. It is a serious thing to ask 
 a court to hold the company on a contract it never made. 
 To be sure, the company invites the public to deal with its 
 agents in the customary manner, and it knows that it is 
 usual to rely on the agents, and the amount of litigation on 
 the subject is alone sufficient proof of the frequency with 
 which men trust them. Perhaps it might be deemed fair to 
 hold the company to pay the loss. 
 
 281 
 
J 144 G] INSUKANCE : FIEE, life, accident, etc. [oh. VII. 
 
 But I am inclined to think that where there is no ground 
 for believing that the company connives at the wrong of the 
 agent, the insured who has neglected to read his statement, 
 should get no more than his premiums and interest, after 
 deducting the additional premiums and interest on them, 
 which the assured would have had to pay if the representa- 
 tions had been correct, unless the risk is one the company 
 would not have taken at all if the facts had been known to 
 it, and this is apparent on the policy. Then the assured 
 should only recover from the company his premiums and in- 
 terest, if his negligence in not reading the papers has caused 
 the trouble. In siich cases the minds of the parties never 
 met to the effect that there shall be any insurance at all. 
 
 Neither will it do to refer to the rule, firm and good as it 
 is in its place, that the knowledge of an agent is that of his 
 principal, 1 as entirely conclusive of the matter. If the in- 
 sured knows that the agent does not communicate his knowl- 
 edge to the company, it is certain that its equity is better 
 than his, and if he might know it by ordinary care, and the 
 insurer has not been negligent but has supplied him with 
 proper means of knowing the true state of things by a glance 
 (and the very fact of requiring his signature is notice that 
 the company relies on him, not on the agent), it seems 
 equally clear that his equity is less than that of the com- 
 pany, and that he should have an action only against the 
 agent for loss and against the company for his premiums. 
 The only adverse consideration being that if he is allowed 
 to hold the company it can in turn hold the agent, and hav- 
 ing dealings with him will be better able perhaps to turn 
 the screws upon him, and so bring the real offender to jus- 
 tice, than if it is left to a suit against him by the assured. 
 Special facts may exist which make the particular case very 
 clear. Wherever the agent so manoeuvres as to deceive the 
 company, and at the same time place it beyond the power of 
 the insured by ordinary care to discover that he has done so, 
 — and in any case where reading the papers would not give 
 the insured notice that the company was not informed truly, 
 
 1 [See § 122, note.] 
 282 
 
CH. VII.] AGENTS. — THEIR POWERS AND DUTIES. [§ 144 G 
 
 I — the troublesome element of negligence on the part of the 
 assured is removed, and the principle that as between two 
 innocent parties he who enables a third person to cause loss 
 must bear it, seems to decide the question against the com- 
 pany. There is no consideration to break the identity of 
 principal and agent. Such a case occurred in Iowa. Where 
 the agent fraudulently misstated the age of the assured, 
 forged a physician's certificate, and changed the policy while 
 in his hands for delivery so as to show the true age, and the 
 insured knew nothing of these acts, the company is bound. ^ 
 
 So if the agent advises the assured that certain matters 
 need not be stated, and he as a man of ordinary prudence 
 and intelligence relies on the agent's assurance, he will be 
 protected.^ If the applicant cannot read, and so relies on 
 the agent's assurance that the application is a truthful tran- 
 script of his answers, it is perhaps asking too much to ex- 
 pect him to take a friend with him, or get some disinterested 
 person to read it to him; though it is difficult to see how the 
 company's equity is the less because the plaintiff cannot 
 read, or how one who writes a paper for the assured, or reads 
 it to him, — a paper to which the assured signs his name, — 
 can be agent of any one but the assured in so doing, unless 
 the agent is in connivance with the company. And there 
 seems to be a general feeling running through the cases that 
 insurance companies are a set of rascals, who wink at and 
 encourage the tricks of agents upon the public. A series of 
 such acts not resulting in discharge of the agent, or even a 
 single flagrant case, would raise a strong suspicion that the 
 company was the real deceiver, especially where there is no 
 motive in defrauding an applicant except to secure unjust 
 profits for the company. I believe that this feeling is the 
 real basis of many of the decisions, and where it is well 
 
 1 [McArthur v. Home Life Ass., 73 Iowa, 336.] 
 
 " [When the assured told the agent that he had sunstroke, and the latter told 
 him it was not necessary to say anything about it, the company is estopped from 
 setting it up in defence. Boos v. World Mut. Life Ins. Co., 6 T. & C. 364, 367. 
 See § 120. 
 
 Other cases of peculiar facts will be found in the foregoing sections, 132 to 
 134, and 144 et seg.] 
 
 283 
 
§ 144 Gj INSURANCE ; FIEE, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 founded, the estoppel put upon the company is certainly 
 just. But where there is no reason to suppose the home 
 ofBce to be other than fair and honest, and there are no 
 peculiar facts in the case,- it does seem that one who in 
 dealing with a mere soliciting agent signs his name to an 
 application without reading it, ought, as between the com- 
 pany and himself, to abide by the contents of it. There 
 being no usage or special evidence to the contrary, the very 
 fact that his signature to the paper is required is notice to him 
 that the company does not rely upon the agent, hut requires the 
 applicanfs own authority. What would be the use of sign- 
 ing a statement, if the parties understood that the solicitor 
 was the company's agent to ascertain the facts and state 
 them to the company ? The requirement of a signed appli- 
 cation is clear proof that the company wishes to have the 
 facts in the assured 's own words, or in words that he adopts. 
 It is perfectly fair, and calculated to save misunderstanding 
 and trouble, that they should have such an authoritative 
 statement, and the assured by signing the application im- 
 pliedly says to the company that it is his. The agent in 
 writing the answers is not doing the work of the company, 
 but of the assured, just as much as if a stranger wrote at his 
 dictation. Soliciting agents are not under the immediate 
 supervision and control of the home office. They resemble 
 independent dealers much more than servants. In many 
 respects their position is very like that of any ordinary 
 broker to whom one might go to place insurance. Their 
 interests are often adverse to those of the company, leading 
 them to color the facts so that the company will accept the 
 proposal, and they will get their commissions, — an addi- 
 tional reason why the company may expect the applicant to 
 take care that the statement signed by him is a true one. 
 It is said in some cases that if the policy provides that the 
 assured adopts and warrants the application, or that no 
 statement to the agent not transmitted to the company in 
 the application should bind it, omissions and errors of the 
 agent in filling out the statement would be those of the 
 assured. But if the assured is not obliged to read his 
 284 
 
CH. VII.J AGENTS. — THEIR POWERS AND DUTIES. [§ 144 G 
 
 papers, how is he to be supposed to know these conditions, 
 or any others for that matter? It seems clear that I., if 
 honest and fair, should not be held for an omission or error, 
 of a really substantial nature, whether made by the assured, 
 or by the agent through mistake or otherwise in filling up 
 an application from his answers, and which the assured might 
 have discovered if he had taken the trouble to read the state- 
 ment he signed. The words of the United States Supreme 
 Court in § 145 A. commend themselves as solid sense. At 
 the same time, the plaintiff being innocent of any intended 
 wrong, he should recover his premiums and interest; and 
 companies would probably find it to their advantage to make 
 the same terms after an honest loss, as they would have 
 made before loss if the application had been correct. In- 
 deed if the rules of the business should crystallize suffi- 
 ciently to make it certain what contract the company would 
 have made on the true state of facts, the law might recog- 
 nize the custom, and refuse to allow the company to recede 
 after loss from a contract it is certain they would have made 
 before loss, the plaintiff being innocent of wrong intent, that 
 is, many errors would become immaterial except to vary the 
 premium, and the difference in this respect could be taken 
 out of the amount payable on the policy.^ If on the true 
 statement the risk is no greater than on the false one, the 
 company has nothing to complain of, and should be held. 
 
 In the case cited in § 144 from the United States Supreme 
 Court, the applicant told the agent that she did not know 
 anything about the cause of her mother's death or her age 
 at the time, but while the agent was taking the application 
 there was present an old woman who claimed to know about 
 the matter, and the agent filled in the answers she gave 
 without assent of the plaintiff or his wife, whose life was 
 being insured. When the application was signed the in- 
 sured did not know how the answers to the disputed ques- 
 tions had been filled in, and the court held, as we have seen, 
 that the company was bound, and it should have been. If 
 the insured had read the statement he could have discovered 
 1 [See § 138 B. for a tendency in this direction.] 
 
 285 
 
§ 144 G] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 nothing different from what had actually passed, and if the 
 agent, who must be supposed to know all about the business 
 he is engaged in, deems it proper to insert the answer of 
 some third person, it would probably never occur to recently 
 freed slaves, as the insured and his wife were, to question 
 the correctness of his action, or to request that the answers 
 in question be so marked as to indicate that their signatures 
 to the statement as a whole did not apply to sanction the 
 said answers. » 
 
 It makes no difference that the policy declares the agent 
 to be the agent of the assured, not of the company. For 
 whom a person is acting is a matter of law on the facts of 
 every case.^ The application precedes the policy, and to 
 hold that a provision in the aftercoming policy unknown to 
 the assured at the time of application could turn the insur- 
 ance agent into Ms agent, when he thought all the time he 
 was dealing with him and accepting his advice as agent of ' 
 the company, would be an outrage. 
 
 If an agent says he is authorized to make surveys, &c., 
 measures the distances between the property of the assured 
 and surrounding buildings, and makes a plan, marking upon 
 it the said distances, and the assured signs the whole appli- 
 cation without testing the distances, the company ought to 
 be held, if the agent although only a solicitor really did 
 have authority to make the measurements himself, and was 
 not expected by the company to do it in the presence of the 
 assured ; that is, if the company understood that the meas- 
 urements were to be taken on the authority of the agent and 
 not of the assured, although over the letter's signature. 
 And a usage would be good evidence in the matter. ^ 
 
 If the agent making out the application is not the recog- 
 nized agent of the company, of course he acts only for the 
 assured, and the latter is bound by his acts.^ 
 
 Where the applicant reads the statement and, on noticing 
 
 1 [Union Mut. Life Ins. Co. v. Wilkinson, 13 Wall. 222 ; Comm. Fire Ins. 
 Co. V. Ives, 56 111. 403.] 
 
 2 [Plumb V. Cattaraugus Co. Mut. Fire Ins. Co., 18 N. Y. 392.] 
 
 3 [Foot V. Mtna. Life Ins. Co., i Daly, 285.] 
 
 286 
 
CH. VII.J AGENTS. — THEIR POWEES AND DUTIES, [§ 144 G 
 
 that it contains omissions or changes, is assured by the 
 agent that it is all right, that the variances from the verbal 
 statement make no difference, the company is properly held 
 bound by the representation of its agent, unless the assured 
 knows or ought to know that the representation is not true. 
 If the assured feels in his heart that it is not all ri'ght, the 
 company is really being cheated by the agent and the assured 
 putting their heads together, the one to get his commissions 
 on a shady risk, the other to get his insurance, and at as 
 low a premium as possible. 
 
 So where the physician told the agent that the person 
 whose life was to be insured was temperate now, but that 
 he would have to answer the question "Has he always been 
 temperate ? " in the negative, and the agent told the doctor 
 to leave a blank after that question, saying that it was a 
 mere matter of form any way, and the doctor did so, and 
 signed the statement in that condition, and the evidence 
 tended to show that the agent had afterward without author- 
 ity filled in a wrong answer to the question, it was properly 
 held that the company was bound. ^ If the statement had 
 been left as the physician made it and the company had 
 issued a policy, it would have waived the blanked question. 
 The doctor had been guilty of no negligence at all. The 
 whole fault was that of the agent, and the company ought to 
 be held. But the decision is not placed on the true ground 
 of the fault of the agent, beyond the reach of ordinary care 
 on the part of the doctor. On the contrary the broad doc- 
 trine is asserted that the company is conclusively presumed 
 to know what the agent knows at the tiipe of making the 
 application. This stretching of decisions beyond their facts 
 is wha^ has given rise to the difficulty in this as in many 
 legal questions. In nearly all of the cases, particular facts 
 will be found which justify the judgment, but make the case 
 fall short of being an authority for the rule laid down by the 
 courts in most of the States, to the effect that facts known 
 to an agent (not limiting it to general agents making con- 
 tracts) contrary to the statements signed by the applicant 
 
 1 [Miller v. Mutual Benefit Life I'ns. Co., 31 Iowa, 216 ; s. o. 1 Ins. L. J. 25.] 
 
 287 
 
§ 145] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [OH. VII. 
 
 bind the company, even though the company is to receive 
 the statements on the authority of the applicant, and by 
 reading the application he might have saved all trouble. 
 The true rule is, that (where there are no special facts, such 
 as connivance by the company, impossibility or improbabil- 
 ity of discovering the error or saving the fraud even if the 
 paper had been read and due care exercised, advice or assur- 
 ances of the agent, or acts equivalent thereto, that the as- 
 sured could not be expected to know were not proper and in 
 good faith, a usage to let the agent make surveys on his own 
 responsibility, &c. ), a person is bound to know what he 
 signs, and if by lack of ordinary care in not reading under 
 the circumstances, as by not reading the paper, he misleads 
 the company, he ought not to throw the loss upon it, and 
 should have no more than his premiums and interest. If he 
 acted in bad faith he should have nothing. But if he acted 
 in good faith and with ordinary care the company should 
 bear the burden of its agent's acts and omissions.] 
 
 § 145. Courts of Massachusetts and Rhode Island more 
 Strict. — But the courts of Massachusetts and Rhode Island, 
 notwithstanding the admitted hardship of the case, have 
 refused to yield to the strong equity of the claim of the 
 assurod under like circumstances. Looking upon the at- 
 tempt to show by parol evidence that the facts untruly stated, 
 or carelessly or incautiously omitted, were known to the in- 
 surers or their agent when the policy was issued, as a direct 
 violation of the ru4e that parol evidence cannot be admitted 
 to contradict or vary the terms of a written agreement, they 
 have persistently excluded such evidence, even in cases 
 where the insurers were notified by the insured, and assented 
 to the omission. Thus, a failure to mention in the applica- 
 tion the fact that part of the premises insured was used as 
 a grist-mill, the same being included in a memorandum of 
 special hazards, the neglect to mention which involved a 
 forfeiture of all rights under the policy, was held to be 
 fatal to the claim of the assured, though the agent was fully 
 authorized to make contracts of insurance, without reference 
 to the company for its sanction, and examined the property, 
 288 
 
CH. til] agents. — THEIR POWEES AND DUTIES. [§ 145 
 
 saw the grist-mill, agreed and suggested what was material 
 to be stated, and in fact filled up the application himself.^ 
 And the same doctrine has been repeatedly held where the 
 insurers themselves had knowledge of, and assented to, the 
 fact which was afterwards allowed to be set up as a defence 
 to the claim of the insured.^ They hold with equal strict 
 ness that agents of mutual insurance companies employed 
 by them to procure and forward applications, and authorized 
 to receipt for premiums, although it is their custom to fill 
 up the applications and make such explanations as may be 
 necessary, are nevertheless generally to be regarded as the 
 agents of the applicants also, at least so far as to make 
 the applicants responsible for the statements contained in 
 the application. The mistake of the agent is their mistake ; 
 and though in point of fact the answer or statement was 
 truthfully and accurately made to the agent, and if set down 
 as given would have been correct, yet if, by inadvertence or 
 infirmity, it is untruly set down, a court of law must hold 
 the applicant to the terms of his contract, and cannot admit 
 evidence to show that it was really different from what it 
 appears to be.^ Where the agent acting for the company 
 was required himself to answer the question, "whether your 
 answers by the applicant are correct," this implies that it 
 
 ' Lee V. Howard Fire Ins. Co., 3 Gray (Mass.), 583. See also Southern Mat. 
 Ins. Co. u. Yates, 28 Grat. (Va.) 585. 
 
 2 Barrett v. Union Mut. Fire Ins. Co., 7 Cush. (Mass.V175. [Such a decision 
 certainly carries the rule in regard to parol beyond all reason and justice.] 
 
 3 Homes et al. v. The Charlestown Mnt. Fire Ins. Co., 10 Met. (Mass.) 211 ; 
 Jenkins v. The Quincy Mut. Fire Ins. Co., 7 Gray (Mass.), 370 ; Wilson o. Con- 
 way Mut. Fire Ins. Co., 4 R. I. 141 ; Barrett v. The Union Mut. Fire Ins. Co., 7 
 Cush. (Mass.) 175; Kibbe v. Hamilton Mut. Ins. Co., 11 Gray (Mass.), 163; 
 Abbott V. Shawmut Mut. Fire Ins. Co., 3 Allen (Mass.), 213. So in Ohio, Smith 
 v. Farmers' Mut. Ins. Co., 19 Ohio St. 287 ; and in Now Jersey, Franklin Fire 
 Ins. Co. V. Martin {N. J.), 8 Ins. L. J. 134, where this view of the case is argued 
 at great length, and the cases to the contrary, including Insurance Co. v. Wil- 
 kinson, ante, § 144, criticised. In Pennsylvania, also, a tendency to a like strict- 
 ness has been shown. Smith v. Insurance Co., 24 Pa. St. 320 ; but see contra, 
 Spring Garden Ins. Co. v. Scott, Phila. Leg. Int., March 14, 1870, a.nd post, § 148 
 et seq. And in Kentucky, Prot. Ins. Co. v. Hall, 15 B. Mon. (Ky. ) 411. So in the 
 Dominion courts. Martin v. Mut. Fire Ins. Co., 3 Pugsley (N. B.), 157 ; Dingee 
 V. Agr. Ins. Co., id. 80 ; Kennedy v. Agr. Ins. Co., 1 R. & C. (Nova Scotia) 433 ; 
 Billington v. Provincial Ins. Co., 2 Ont. App. 158 ; s. c. 3 Can. Sup. Ct. Rep. 182. 
 
 VOL. I. — 19 289 
 
§ 145] INSURANCE : FIEB, LIFE, ACCIDENT, ETC. [CH. Til. 
 
 was his duty to write the answers of the applicant, and for 
 his negligence, fraud, or mistake, which the insured may 
 prove, the company will be held responsible.^ 
 
 And in a later case in Massachusetts, where the premium 
 had actually been paid to the agent of the company, but was 
 not paid over or tendered to the company until eight days 
 after the date of the policy, and after the loss, the policy 
 providing that every agent forwarding applications, or re- 
 ceiving premiums, is the agent of the applicant and not of 
 the company, reaffirms the doctrine of the above cases, and 
 denies the authority of the agents and officers of a mutual 
 insurance company to waive the by-laws and provisions 
 which relate to the substance of the contract, adopted by the 
 members of such company for their mutual protection.^ Nor 
 has such an agent authority to perfect the contract in behalf 
 of the company, especially if the receipt specifies that the 
 premium is to be refunded if the office does not approve ; a 
 sufficiently clear intimation, it seemed to the court, of the 
 agent's want of authority to make the contract.^ Nor is the 
 delivery of a new premium note to him by the assignees, 
 after an alleged transfer of the policy, where the validity of 
 the assignment depends upon the question whether the com- 
 pany at the time of their assent had knowledge of the deliv- 
 ery of the note, a delivery to the company so as to affect 
 them with knowledge of the fact.* Nor can an agent to take 
 and transmit policies, to whom the insured surrenders his 
 policy for cancellation, bind the company by his promise to 
 deliver up the premium note, although the policy be actually 
 cancelled. The cancellation of the policy does not relieve 
 the note from liability to assessment for losses prior to the 
 surrender, and the agent is clothed with no authority to give 
 
 1 Smith II. Farmers', &c. Ins. Co. (Pa. St.), 8 Ins. L. J. 828 ; Eilenberger v. 
 Protective Mut. Fire Ins. Co. (Pa. St.), 8 Ins. L. J. 822. 
 
 " Mulrey v. Shawmut Fire Ins. Co., 4 Allen (Mass.), 116. In the cases above 
 cited from the 10th of Met. and 7th of Cush., it is intimated that equity might 
 relieve in such a case ; and so it undoubtedly will. See also Wilson v. Conway 
 Mut. Fire Ins. Co., 4 R. I. 141. 
 
 3 N. Y. Union Mut. Ins. Co. v. Johnson, 23 Pa. St. 72. 
 
 * Fogg et als. v. Middlesex Mut. Fire Ins. Co., 10 Cush. (Mass.) 337. 
 
 290 
 
CH. TII.J AGENTS. — THEIK POWERS AND DUTIES. [§ 145 A 
 
 up the securities of the company. ^ It is doubtful whether 
 the confpany itself could surrender the note under such cir- 
 cumstances. This might be tantamount to a wilful omis- 
 sion of the note in calculating the assessment, and if so, it 
 would vitiate the assessment.^ 
 
 But, if the agent sends in an application which was never 
 authorized, instead of a defective application which was 
 authorized, the company will be bound as if no application 
 was ever made, if the policy be issued upon the first, or, if 
 upon the last, then they will be bound if the defective appli- 
 cation be good so far as it goes.^ The applicant is bound by 
 an application which he authorizes, though he may not know 
 its contents.* 
 
 [§ 145 A. In a case in the United States Supreme Court, 
 A. applied for insurance on his life, and answered all mate- 
 rial questions orally and correctly. The agent set down 
 false answers and A. signed the application without reading 
 or knowing its contents. The policy issued thereon was 
 conditioned that the answers were part of it, and that no 
 statement to the agent not thus transmitted should he binding 
 on Ms principal ; and a copy of the answers with these condi- 
 tions conspicuously printed upon it accompanied the policy. It 
 was held that the policy was void. "It was the duty of the 
 applicant to read the application he signed. He knew that 
 upon it the policy would be issued if issued at all. It would 
 introduce great confusion in all business transactions, if a 
 party making written proposals for a contract, with repre- 
 sentations to induce its execution, could be allowed to show, 
 after it had been obtained, that he did not know the con- 
 tents of his proposals, and to enforce it, notwithstanding 
 their falsity as to matters essential to its obligation and 
 validity. "5 This seems to be sense and law.' No rule re- 
 lieving one party to a contract of the duty to exercise ordi- 
 
 1 Marblehead Mut. Fire Ins. Co. v. Underwood, 3 Gray (Mass.), 210. 
 
 2 Post, § 558. 
 
 8 Blake w. Exchange Mut. Ins. Co., 12 Gray (Mass.), 265. 
 * Drapers. Charter Oak Ins. Co., 2 Allen (Mass.), 569. 
 5 [N. Y. Life Ins. Co. v. Fletcher, 117 U. S. 629.] 
 
 291 
 
§ 146] mSUEAKCE : FIBE, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 nary care and prudence is recognized in regard to any other 
 sort of negotiations, and I see no reason why it should be 
 applied merely to contracts of insurance. It surely is not 
 prudent to sign what another has written without reading it. 
 If the agent had altered the application after A. had once 
 made sure it was right and signed it, the case would wear a 
 different aspect. Where the insured agrees to make his 
 answers the basis of the contract and declares them true, 
 any falsity, conscious or not, will avoid the policy. Such 
 answers are warranties.^ In case the application is made 
 part of the policy and it is provided that any untrue answers 
 will avoid the contract, no action will lie against the com- 
 pany if there is an untrue representation, although it was 
 made by the agent without the knowledge of the applicant 
 who had orally stated the truth to the agent. Oral evidence 
 will not be admitted even to show that the company knew 
 that the representations were untrue when it issued the pol- 
 icy.^ This is carrying the rule against parol to an absurd 
 length. All rules of law were framed for purposes of jus- 
 tice, and to so construe them as to forward iniquity is to 
 use them to defeat the very purposes they were designed to 
 accomplish. Where A. applied for insurance telling the 
 agent that there was other insurance on the property in the 
 Gore Mutual, but he did not know how much, and intrusting 
 it to the agent to find out the amount and state it to the 
 company, and the agent made out the application without 
 mentioning the other insurance, it was held that the company 
 was not estopped, and that the policy could not be reformed. s] 
 
 § 146. So as to the Power of Officers of Mutual Companies. — 
 And in Massachusetts the officers of mutual insurance com- 
 panies are held to the strictest compliance with the require- 
 ments of the by-laws, and limited to the exercise of such 
 powers as are thereby conferred. Mutual insurance, it is 
 truly observed, is essentially different from stock insurance, 
 
 1 [Weems v. Standard L. Ass. Co., 21 Scot. L. R. 791. See also Id. 453.] 
 
 2 [McCoy V. Metropolitan Life Ins. Co., "IBS Mass. 85 ; Batchelder v. Queen 
 Irs. Co., 135 Mass. 449.] 
 
 ^ [Billington v. Provincial Ins. Co., 3 Can. Supr. Ct. K. 182.] 
 292 
 
CII. VII.J AGENTS. — THEIR POWERS AND DUTIES. [§ 146 
 
 and much of the litigation that has grown out of this species 
 of insurance has been owing to inattention to this difference. 
 Its original design was to provide cheap insurance by means 
 of local associations, the members of which should insure 
 each other. Such associations are in their nature adapted 
 only to local business. They need many by-laws and condi- 
 tions that are not required in stock companies; and it is 
 necessary and equitable that each person who gets insured 
 in them should become subject to the same obligations 
 towards his associates that he requires from them towards 
 himself. If the officers have discretionary power as to the 
 terms of the contract, or even as to its form, it is obvious 
 that different parties may become members upon different 
 terms and conditions, and thus the principle of mutuality 
 will be completely abrogated. When the company have once 
 determined the forms in which their policies shall be made, 
 and the conditions upon which they are willing to contract, 
 it is nothing less than a violation of duty for the officers to 
 undertake to bind the companies they represent by other and 
 inconsistent contracts, parol or otherwise.^ Hence where 
 the by-laws of a company provide that subsequent insurance 
 obtained, and subsequent alterations made, without the con- 
 sent in writing of their president, shall avoid the policy, the 
 verbal consent of the president is unauthorized.^ Nor when 
 the by-laws require that the premium shall be paid before 
 the policy shall take effect, has any officer the power to bind 
 the company by an agreement that notwithstanding the non- 
 payment of the premium the policy shall be effected.^ Nor 
 to estop the company by a representation that insurance has 
 been obtained, when in fact the premium has not been paid.* 
 For the same reason, where the charter provides that an 
 applicant shall deposit his note before he receives a policy, 
 no officer can waive the condition by an assurance that the 
 risk shall commence immediately and before the policy is 
 
 i Evans v. Trimountaiu Mut. Fire Ins. Co., 9 Allen (Mass.), 329. 
 2 Hale V. Mechanics' Mut. Ins. Co., 6 Gray (Mass.), 169. 
 8 Brewer v. Chelsea Mut. Fire Ins. Co., 14 Gray (Mass.), 203. 
 * Baxter v. Chelsea Mut. Fire Ins. Co., 1 Allen (Mass.), 294. 
 
 293 
 
§ 148] INSUEANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. VIL 
 
 issued.^ The same rule, however, does not apply where the 
 provision for the prepayment of the premium is not a condi- 
 tion, or by law or otherwise a part of the policy, but is a 
 merely collateral agreement appended to the application. 
 In such case the prepayment of the premium may be waived 
 by any officer or agent the general scope of whose duties 
 gives him a right to act in the premises.^ 
 
 § 147. This Rule applicable only to By-lavirs 'which are of 
 the Essence of the Contract. — But the courts of Massachu- 
 setts make a distinction between by-laws and provisions 
 which go to the substance and essence of the contract and 
 those which do not. Of the latter class are stipulations as 
 to preliminary proof of loss. As these relate only to the 
 form or mode in which the liability of the company shall be 
 ascertained and proved, and must necessarily be submitted 
 to the officers of the corpoTation, who must pass upon their 
 sufficiency ; and as, furthermore, in ascertaining and settling 
 losses, they frequently act upon personal investigations made 
 by themselves or their agents, thereby obtaining knowledge 
 which renders the preliminary proof wholly immaterial, it 
 is held to be within the scope of their authority to say when 
 the proof is sufficient, and if they deem it expedient, to dis- 
 pense with the literal requirements of the by-laws in this 
 particular.^ But a mere statement by an agent, after notice 
 to him of loss, "that the matter would be all right with the 
 company," does not relieve the party insured from the neces- 
 sity of making his preliminary proof;* nor does the mere 
 fact that the agent resided at the place of the fire, and per- 
 sonally knew all the circumstances attending it.^ 
 
 § 148. In Pennsylvania, also, the distinction between 
 mutual and stock companies is regarded as essential. In 
 
 1 Belleville Mut. Ins. Co. v. Van "Winkle, 1 Beasley (N. J.), 333. 
 
 2 Sheldon v. Conn. Mut. Life ins. Co., 25 Conn. 207. 
 
 8 Priest et al. -a. The Citizens' Mut. Fire Ins. Co., 3 Allen (Mass.), 602, 605. 
 The ease of Dawes v. North Eiver Ins. Co., 7 Cowen (N. Y.), 462, does not ad- 
 vert to this distinction, and cannot now be regarded as sound law. 
 
 * Boyle V. North Carolina Mut. Ins. Co., 7 Jones, Law (N. C), 373. And see 
 post, § 471. 
 
 ' Smith V. Haverhill Mut. Fire Ins. Co., 1 Allen (Mass.), 297. 
 
 294 
 
CH. VII.] AGENTS. — THEIE POWERS AND DUTIES. [§ 149 
 
 the case of Hackney v. The Alleghany Mutual Insurance 
 Company,^ the question of the responsibility of mutual in- 
 surance companies for the unauthorized and false declara- 
 tions of their agents arose under the following facts. The 
 agent of the company bore a certificate of the fact of his 
 iagency, signed by the president of the company, and author- 
 izing him "to receive applications for insurance and the pre- 
 mium thereon." In defence it was proposed to prove that at 
 the time the agent requested the plaintiff in error to become 
 a member, he represented that the company was not insur- 
 ing in the city of Pittsburg and other large cities, and that 
 upon this representation the premium note was given. But 
 the court held that the evidence was rightly rejected, as the 
 declarations of the agent were not within the scope of his 
 authority, which extended only to receiving applications and 
 premiums. And had the declaration been made by the 
 president himself, it would not have been binding upon the 
 company ; for, say the court, " there is no such privity among 
 the corporators or the officers of the company as to make the 
 admission of either binding upon all. If such verbal con- 
 versations were admitted in evidence against the written 
 engagements of the corporators, their policies would be 
 worthless, and the utility of mutual insurance companies at 
 an end." 
 
 § 149. In the same State it has also been held, upon 
 grounds which would seem to be sufficient without relying 
 upon the distinction, that where the insurance is in a mutual 
 office, and the agent of the office fills up the application, 
 itself expressly made a warranty, and, with the knowledge 
 of the assured, states what is by both of them known to be 
 material and untrue, as, that there is a chimney and stove 
 well secured, with the pipe passing through a crock well 
 secured, when, in fact, there is neither chimney nor stove, 
 the misstatement will be fatal ; nor will it be excused by an 
 agreement, not communicated to the company, between the 
 agent and the assured, that, before a fire should be kept in 
 the building, a chimney should be erected and the stove-pipe 
 
 1 4Barr (Pa.), 185. 
 
 295 
 
§ 150] INSURANCE : FIRE, LIFE, ACCIDENT, ElO. [CH. VII. 
 
 secured as represented. Such an agreement the agent clearly 
 has no authority to make.^ In this case the case of Howard 
 Insurance Company v. Bruner^ was referred to and distin- 
 guished. "That," said the court, "was not a mutual com- 
 pany. The agent who wrote out the description, instead of 
 being limited to a mere reception of applications, was clothed 
 with large powers, settled the terms of insurance, and coun- 
 tersigned and issued the policies without referring applica- 
 tions to the company. Under 'the circumstances ... we 
 held that the written survey was the act of the agent, and 
 that the assured was not to be prejudiced by the omission of 
 facts which he stated but which the agent omitted to set 
 down. " Eeference was also made to Susquehanna Insurance 
 Company v. Perrine,^ in which the applicant was held re- 
 sponsible for the omissions of the agent, stress being laid 
 upon the fact that the company was a mutual one, and by 
 one of its by-laws made the applicant responsible for the 
 agent's accuracy in making the survey. Yet in that case 
 Gibson, C. J., said: "A regulation established by a by-law 
 is not obligatory on a stranger; and, if the plaintiff were 
 such, he would not be affected by the blunder of the com- 
 pany's surveyor, notwithstanding the terms of application 
 prescribed by the conditions of insurance ; " a doctrine which 
 is in harmony with Howard Insurance Company v. Bruner.* 
 
 § 150. But in Pennsylvania, where insurance was effected 
 by the agent of a stock company upon " barley and malt in 
 assured's malt-house and brewery," subject to the condition 
 that if the risk was increased without notice to the company 
 and an indorsement of consent on the policy, the policy 
 should be of no force, and notice was given, before the exe- 
 cution of the policy to the agent of the company, that the 
 insured intended to distil and store whiskey in the buildings 
 containing the property insured, during the currency of the 
 
 ^ Smith V. Cash Mut. Fire Ins. Co., 24 Pa. St. 320. 
 
 2 11 Har. (Pa.) 50. 
 
 8 7 W. & S. 348. 
 
 * 11 Harris, 50. In fact, the latter ease was tried before that distinguished 
 judge, and the ruling excepted to and sustained was his ruling. See also ante, 
 § 132, and Moliere is. Pa. Fire Ins. Co., 5 Rawle, 342.' 
 
 296 
 
CH. VII.] AGENTS. — THEIR POWERS AND DUTIES. [§ 151 
 
 policy, it was held, that although there was no indoi'sement 
 of the consent, the company had, through notice to its agent, 
 knowledge that distilling had been added to the business of 
 brewing before the policy issued, and consequently this was 
 one of the risks which they intended to insure against, and 
 therefore no indorsement was necessary. ^ 
 
 § 151. General Agent with TJnlimited Powers. — A general 
 agent, there being no limitation of his authority, may even 
 by an oral agreement extend the scope of a policy already 
 issued, so as to make it cover property not embraced in the 
 policy when issued, such policy being an open one and in- 
 tended to cover property of a certain character, which might 
 be at risk at different times, the property being of the gen- 
 eral character of that insured in the original policy. And 
 his oral agreement will bind the company, although the pol- 
 icy purports to be upon property "as per indorsements to be 
 made thereon," and there is no indorsement of the property 
 which the agent verbally agrees to insure. ^ And he may 
 correct an error in the policy after its issue ;^ or make the 
 policy, by its terms non-assignable without the company's 
 consent, payable in part to a third person by an indorsement 
 to that effect upon the policy.* 
 
 So a resident general agent for a foreign insurance com- 
 pany, whether appointed under a statute requiring a general 
 agent upon whom service of process may be made or not, 
 having the general charge of the business in the State where 
 he resides, has power to waive the conditions of the policy 
 as to preliminary proof of loss.^ And, in the absence of 
 evidence of limitation of his powers, any acts within the 
 general scope of the business will bind the company.^ (a) 
 
 1 People's Ids. Co. v. Spencer, 53 Pa. St. 353. And see ante, § 148. 
 
 2 Kennebec Co. v. Augusta Ins. & Banking Co., 6 Gray (Mass.), 204. 
 ' Warner v. Peoria Mar. & Fire Ins. Co., 14 Wis. 318. 
 
 * Newman v. Springfield Fire & Mar. Ins. Co., 17 Minn. 123. 
 " Eastern Railroad Co. v. Relief Ins. Co., 105 Mass. 570. 
 s Imperial Fire Ins. Co. v. Murray, 73 Pa. St. 13. 
 
 (a) The restrictions inserted in a unless done in a particular manner, do 
 policy upon the power of a general or not apply to those conditions which 
 other agent to waive any conditions, relate to the inception of the contract, 
 
 297 
 
§ 151] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. VII. 
 
 He may also waive a condition making the validity of the 
 
 when the agent delivers it and receives 
 the premiums with full knowledge 
 of the actual situation. Forward v. 
 Continental Ins. Co., 142 N. J. 382 ; 
 Wood V. American F. Ins. Co., 149 
 N. y. 382, 385. When general agents 
 have authority to make contracts with- 
 out reference to the home office, or have 
 blank policies signed by the president 
 and secretary of the company, their 
 power to waive conditions in the policy 
 is co-extensive with that of the com- 
 pany itself, and with the requirements 
 of the business at the given time and 
 place. Berry v. American Central Ins. 
 Co., 132 N. Y. 49 ; Parker v. Citizens' 
 Ins. Co., 129 Peuu. St. 583; Howard 
 Ins. Co. V. Owen, 94 Ky. 197 ; Coles 
 V. Jefferson Ins. Co., 41 W. Va. 261 ; 
 Washington L. Ins. Co. v. Menefee 
 (Ky.), 29 Ins. L. J. 118 ; Hahn v. 
 Guardian Ass. Co., 23 Oregon, 576 ; 
 South Bend Toy Manuf. Co. v. Dakota 
 F. & M. Ins. Co., 3 So. Dak. 205. Re- 
 vocation of such agents' authority with- 
 out notice does not take away their 
 power to contract with those who have 
 no knowledge of the revocation. Mar- 
 shall V. Reading F. Ins. Co., 78 Hun, 
 83. See Greenwich Ins. Co. v. Sabot- 
 nick, 91 Ga. 717. This applies, e. g. 
 to an agent's permit for removal of 
 goods. Burlington Ins. Co. v. Threl- 
 keld, 60 Ark. 539. One whom the 
 insured authorizes to act as a solicit- 
 ing agent only, without power to issue 
 policies or waive their provisions, is 
 not a general agent. Martin v. Farmers' 
 Ins. Co., 84 Iowa, 516; Godfrey o. 
 New York L. Ins. Co., 70 Minn. 224 ; 
 Farnum v. Phcenix Ins. Co., 83 Cal. 
 246 ; 17 Am. St. Rep. 233, 248, note. 
 
 General agents may delegate to their 
 clerk.'! and sub-agents the powers to act 
 for them which are within the scope of 
 their own authority. Goode v. Georgia 
 Home Ins. Co., 92 Va. 392; Bergeron 
 V. Pamlico Ins. Co., Ill N. C. 45 ; Boren 
 V. Manhattan L. Ins. Co., 99 Ga. 238 ; 
 MoGonigle v. Susquehanna Mut. F. Ins. 
 
 298 
 
 Co., 168 Penn. St. 1 ; Harding v. Nor- 
 wich Union F. Ins. Society, 10 So. Dak. 
 64. See Graham v. Fire Ins. Co., 48 S. C. 
 195. General agents with authority to 
 adjust a loss may waive conditions of the 
 policy. Georgia Home Ins. Co. v. Allen 
 (Ala.), 28 Ins. L. J. 199; Phenix Ins. 
 Co. V. Hunger, 49 Kansas, 178 ; Ger- 
 man Ins. Co. i;. Gray, 43 id. 497. In a 
 late Massachusetts case, it was held that 
 a person who for many years has been 
 held out by an insurance company as a 
 general agent to negotiate contracts of 
 insurance and agree upon all the terms 
 of the contract, and for that purpose is 
 furnished with policies executed in blank 
 by the president and secretary of the 
 company, with authority to fill up and 
 deliver the same to any person with 
 whom he has made a contract, is au- 
 thorized to make a preliminary contract 
 to insure, binding upon the company, 
 to be consummated by filling up and 
 delivering a policy pursuant thereto ; 
 that , conversations with the alleged 
 agent of an insurance company at the 
 time when a contract to insure prop- 
 erty was made are admissible, in an 
 action for breach of the contract, to 
 show what the contract was, and it 
 is within the discretion of the judge to 
 admit them before proof of the agency ; 
 and a conversation after the loss, in 
 which the plaintiff informed the agent 
 of the loss and asked him for the policy, 
 and the agent replied that he did not 
 have the policy or any record of it, is 
 also admissible ; that the fact that a. 
 person acting as agent of an insur- 
 ance company did not submit the risks 
 taken by him to the company for its 
 approval before he wrote and delivered 
 the policies is admissible, in an action 
 against the company for breach of a 
 contract made by him to insure prop- 
 erty, as bearing upon the nature of his 
 authority ; and that private instruc- 
 tions given by an insurance company 
 to its agent, and not communicated or 
 known to a person with whom he makes 
 
CH. VII.] AGENTS. — THEIE POWERS AND DUTIES. [§ 152 
 
 policy dependent on the prepayment of the premium.^ So 
 he may waive a breach of the condition of the policy requir- 
 ing notice of other insurance, by delivering a 'renewal re- 
 ceipt, signed by the president and secretary, and accepting 
 the premium after knowledge of the breach, though the re- 
 ceipt by its terms is not to be effectual unless countersigned 
 by the agent ;2 and he may give credit for the renewal pre- 
 mium, or take a note therefor, and bind the company by 
 parol, though he hold such receipt,^ and waive a require- 
 ment that the policy to be valid must be countersigned by 
 him,* or a condition that suit shall be brought within a cer- 
 tain time after loss,^ or that repairs shall not be made, or 
 the house left vacant, without consent of the insurers in- 
 dorsed on the policy.^ 
 
 § 152. Notice to Agent ■when Notice to Principal. — If, 
 when notice to the company is required of any particular 
 fact, the notice be given to the board of directors, or to any 
 officer or agent of the company whose duty it was (under the 
 by-laws, resolutions, and usages of the company, or of the 
 business), upon receiving such notice, to communicate it to 
 the company, or to any persons from whose relation to the 
 company third persons might fairly infer such duty, this 
 will be a sufficient compliance with the requirement.'^ No- 
 tice to an agent appointed to receive and forward applications 
 
 1 Boehen v. Williamsburgh City Ins. Co., 35 N. Y. 131. 
 
 2 Carroll v. Charter Oak Ins. Co., 40 Barb. (N. Y.) 292. 
 
 8 Post V. iEtna Ins. Co., 43 Barb. 351 ;_ Franklin Fire Ins. Co. u. Massey, 33 
 Pa. 221., 
 
 4 Myers v. Keystone Mut. Life Ins. Co., 27 Pa. St. 268. 
 
 6 Brady v. Weistern A.ss. Co., 17 U. C. (C. P.) 597. 
 
 " Hotchkiss V. Germania Fire Ins. Co., 5 Hun (N. Y.), 90; Palmer v. St. 
 Paul Fire & Mar. Ins. Co., 44 Wis. 201 ; Georgia Home Ins. Co. v. Kinnier, 28 
 Grat. (Va.) 88 ; Young v. Hartford Fire Ins. Co., 45 Iowa, 377. 
 
 ' Union Mut. Ins. Co. v. Wilkinson, 13 Wall. (U. S.) 222 ; ante, § 144 ; Peck 
 17. New London Co. Mut. Ins. Co., 22 Conn. 575. 
 
 a contract to insure property, are prop- foreign company gives to the agent ap- 
 
 erly excluded in an action against the parent authority to bind it, according 
 
 company for breach of the contract, to the established and uniform usage 
 
 Sanford t. Orient Ins. Co., 174 Mass. among such agents, without regard to 
 
 416. its private instructions. Greenwich Ins. 
 
 The estaUishment of an agency by a Co. v. Waterman, 54 Fed. Rep. 839. 
 
 299 
 
§ 153] INSUfiANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. TXI. 
 
 and premiums is sufficient ; and it need be verbal only, un- 
 less required by the terms of the policy to be in writing. ^ 
 And notice* to an agent, at the time of effecting the insur- 
 ance, of subsequent insurance, is notice to th« company 
 under a provision of the contract that notice of subsequent 
 insurance shall be given to the company. ^ But mere knowl- 
 edge of the fact of such insurance on the part of the agent 
 is not equivalent to notice to the company;^ nor is such 
 knowledge a waiver of the notitje.* And it is not notice, 
 within the meaning of a proviso that notice shall be given 
 to the agent or secretary of alterations increasing the risk.^ 
 Knowledge of prior insurance in the same office is notice of 
 other insurance.® But a personal examination by the presi- 
 dent and one of the directors of a company after a fire, is 
 equivalent to notice of the loss to the company, such officers 
 having thus acquired all the knowledge that would be de- 
 sired from the required notice.'' 
 
 § 153. In Pennsylvania, however, the knowledge and con- 
 sent of the agent to subsequent insurance has been held not 
 to be that of the company. Thus where it was stipulated in 
 the policy that insurance should not be obtained upon the 
 property to an amount beyond two-thirds of its value, the 
 obtaining insurance beyond that amount was held to work a 
 forfeiture, unless the company, after notice, waived the for- 
 feiture ; and it was also held not to be within the authority 
 of an agent empowered only to make surveys, receive appli- 
 cations, examine into the circumstances of loss, approve 
 assignments, and receive assessments, to accept notice, and 
 
 1 McEwen v. Montgomery Co. Mut. Ins. Co., 5 Hill (N". Y.), 101 ; Sexton v. 
 Montgomery Co. Mut. Ins. Co., 9 Barb. (N. Y.) 191 ; Sohenck a. Mercer Co. 
 Mut. Ins. Co., 4 Zabr. (N. J.) 447. 
 
 2 New England Fire & Mar. Ins. Co. v. Schettler, 38 111. 166. 
 
 8 Schenck v. Mercer Co. Mut. Ins. Co., 4 Zabr. (N. J.) 447 ; Mellen v. Hamil- 
 ton Fire Ins. Co., 5 Duer (N. Y.), 101 ; s. c. affirmed, 17 N. Y. 609 ; Ayres v. 
 Hartford Fire Ins. Co., 17 Iowa, 176. 
 
 * Forbes v. Agawam Mat. Ins. Co., 9 Gush. (Mass.) 470. 
 
 6 Sykes v. Perry Co. Mut. Ins. Co. , 34 Pa. St. 79 ; Robinson v. Mercer Co. 
 Mut. Fire Ins. Co., 3 Dutch. (N. J.) 134. 
 
 6 Rowley v. Empire Ins. Co., 36 N. Y. .550. 
 
 ' Roumage v. Mechanics' Fire Ins. Co., 1 Green (N. J.), 110. And see also 
 ante, § 143. 
 
 300 
 
CH. VII J AGENTS.— THEIR POWERS AND DUTIES. [§ 154 
 
 by his consent, after the issue of the policy, to waive the 
 forfeiture; and his approval therefore could be of no avail 
 to the insured. It is on the principle of estoppel, and not 
 of authority, the waiver takes place. The knowledge of a 
 mere agent, unauthorized to represent the company beyond 
 the specific powers committed to him, cannot be the ground 
 of estoppel in a matter unconnected with the exercise of his 
 powers. This can only take place when the knowledge lying 
 at the foundation of the estoppel comes home to those offi- 
 cers who exercise the corporate powers of the company, or 
 to an agent whose powers relate to the very subject out of 
 which the estoppel arises.^ Otherwise if notice is given 
 before the policy issues. ^ So in Massachusetts, notice to an 
 agent of alienation or assignment is not notice to the com 
 pany, nor has the agent power to waive such notice, if re- 
 quired by the policy, nor to bind the company by his opinion 
 that notice is not necessary.^ 
 
 § 154. Sub-agents and Clerks. —Where insurers issue their 
 policies in blank, to be valid only when countersigned by 
 their duly authorized agents, and appoint a firm of several 
 persons to act as their general agents for a particular State, 
 and refer to them as having charge of the appointment of 
 agents within that State, a sub-agent appointed by one of 
 the members of tnc firm, having a branch office at a place 
 other than the chief place of business of the firm, will 
 thereby acquire the power to countersign the policies. And 
 a policy so countersigned will bind the company, notwith- 
 standing that prior to the issue of the policy the firm holds 
 a power of attorney from the insurance company empower- 
 ing their, to "receive moneys and to countersign and issue 
 policies," and a like power of attorney was forwarded to the 
 members of the firm who appointed the sub-agent, some 
 months after the appointment. These powers of attorney 
 do not concern the public, to whom they are unknown. 
 They are rather in the nature of private instructions, bind- 
 
 ' Mitchell V. Lycoming Mut. Ins. Co., 51 Pa. St. 402. 
 
 2 People's Ins. Co. i>. Spencer, 53 Pa. St. 353. 
 
 ' Tate V. Citizens' Mut. Fire Ins. Co., 13 Gray (Mass.), 79. 
 
 301 
 
§ 154 A] INSURANCE : FIEB, LIFE, ACCIDENT, ETC. [CH. VII 
 
 ing between the principal and agent, but without effect as 
 against the public, who have treated with the agents on the 
 assumption that they actually had the power which they 
 exercised and were known by their principals to have exer- 
 cised. ^ Under a like stipulation it has been held in Ken- 
 tucky that the signature by a third person "for the agent," 
 is not a compliance with the stipulation, and such a policy 
 is void. 2 The clerk of an agent whose acts have been recog- 
 nized by the company and accepted, may bind the company 
 by his consent to a part payment of the premium.^ [But 
 when a sub-agent signs a policy for the agent, who later 
 with full knowledge of all the facts delivers the policy, the 
 signature becomes his, and hence the company's.*] Gener- 
 ally agents of insurance companies authorized to contract 
 for risks, receive and collect premiums, and deliver policies, 
 may confer upon a clerk, or subordinate, authority to exercise 
 the same powers. The service is not of such a personal charac- 
 ter as to come under the maxim, delegatus non potest delegare.^ 
 [§ 154 A. An agent who has full power in a large terri- 
 tory to receive proposals, fix premiums, renew, &c., may 
 appoint sub-agents to solicit and receive applications for 
 premiums, forward applications, &c.^ It is not to be ex- 
 pected that a general agent should personally attend to all 
 the affairs under his control. He may employ all necessary 
 clerks, sub-agents, and surveyors to enable him to transact 
 the business with accuracy, intelligence, and promptness, 
 and may authorize his clerks to contract for risks so that 
 they may bind the company by a parol contract.'' The com- 
 
 1 Bowman v. U. S. Casualty Ins. Co., K. Y. Ct. of Appeals, affirming s. o. in 
 N. Y. Supr. Ct. 1869, cited in Bliss, Life & Ace. Ins. 488 ; Kennebec Co. u. Au- 
 gusta Ins. Co., 6 Gray (Mass.), 204. 
 
 2 Lynn v. Burgoyne, 13 B. Mon. (Ky.) 400. 
 
 ' Bodine v. Exchange Fire Ins. Co., 51 K. Y. 117. 
 
 * [Grady v. Amer. Cent. Ins. Ci., 60 Mo. 116, 123.] 
 
 s Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117 ; Eclectic Life Ins. Co. v. 
 Fahrenkrug, 68 111. 463 ; ante, § 127 ; Continental Life Ins. Co. v. Goodall, Cin- 
 cinnati Snpr. Ct. 1874, 5 Big. Life & Ace. ins. Cas. 422 ; Mayer v. Mut. Life lus. 
 Co., 38 Iowa, 304 ; Planters' Ins. Co. v. Myers, 55 Miss. 479 ; Cooke v. jEtna 
 Ins. Co., 7 Daly (N. Y.), 555. 
 
 8 [Krumm v. Insurance Co., 40 Ohio St. 225.] 
 
 ' [Kuney v. Amazon Ins. Co., 36 Hun, 66.] 
 
 302 
 
CH. VII.] AGENTS. — THEIK POWERS AND DUTIES. [§ 155 
 
 pany is bound by the contract of employment of a soliciting 
 agent by its general agent, unless the person employed had 
 notice of restrictions on the authority of the general agent. ^ 
 Foreign companies are responsible for the acts of all persons 
 who aid in transacting its business with its authority, or 
 without, if the company in any way avails itself of their 
 acts. 2 If a sub-agent who has been correctly informed 
 makes a mistake in filling in the wrong name of the appli- 
 cant's doctor, the company is estopped.^ A mere stranger 
 from whom the regular agents receive the premium, and to 
 whom they deliver a policy which he countersigns and de- 
 livers to the assured, will bind the company. He is a sort 
 of sub-agent.* It is a question of fact for the jury whether 
 an agent employed to effect insurance, without special in- 
 structions, is liable for brokers through whom it is effected, 
 and also as to the extent of his responsibility.^] 
 
 § 155. Agents of Accident Insurance Companies. — Certain 
 kinds of accident insurance — as of railway passengers — are 
 effected by means of the purchase and sale of tickets issued 
 by the companies to their agents, and sold by them or those 
 in their employ like merchandise, the sale and delivery of 
 the ticket by the agent or his employ^ on the one hand, and 
 the payment of the premium by the purchaser on the other, 
 consummating the contract. And the contract holds good 
 whether the purchaser obtains his ticket from the company 
 directly, or indirectly from any person having authority 
 mediately from the company.^ 
 
 1 [Equitable Life Ass. Co. v. Brobst, 18 Neb. 526, 528.] 
 
 2 [Continental Ins. Co. v. Ruckman, 127 111. 364.] 
 
 8 [Langdon v. Union Mut. Life Ins. Co., 14 Fed. Eep. 272 ; 22 Am. L. Reg. 
 N. s. 385 (Mich.), 1882.] 
 
 * [Camden C. Oil Co. v. Ohio Ins. Co., 5 Cin. L. Bui. 193, 6tli Cir. (Ohio) 
 1880.] 
 
 s [Hurrell v. BuUard, 3 F. & F. 445.] 
 
 ^ Brown v. Railway Passenger Ass. Co., 45 Mo. 221. 
 
 303 
 
INSUEANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. VIII. 
 
 Analysis. 
 
 CHAPTER VIII. 
 
 ■WARRANTIES.^ — APPLICATION. — CONSTRUCTION. 
 1. Definitioks. 
 
 § 156. A warranty is an express stipulation on the face of the policy, on 
 
 the literal (?) truth or fulfilment of which the validity of the 
 contract depends. It has the force of a condition precedent and 
 must be strictly and literally (?) complied with, whether mate- 
 rial to the risk or not (see § 170 and § 180, a, n.) whether the 
 insured believed it true or not, or the agent or even the company 
 knew it was false at the time of insurance (?) (§§ 156, 145). If 
 it fail in any other way than by act of the insurer, of the law, or 
 of God, the insured cannot recover. The law ought to exclude 
 honest errors undoubtedly immaterial, and substantial compliance 
 should be enough. Forfeitures because of honest immaterial 
 error, or failure of literal fulfilment of a warranty, especially if 
 it requires more than the will of the assured to fulfil it, is not 
 justice, and if the parties so agree it is not a just agreement 
 (§§ 156, 157, 161, 185). Moreover if the company itself knows 
 the truth at the time of contracting it cannot be damaged by an 
 error on the part of the assured, and should not .set up the war- 
 ranty. (See §§ 144 A, 144 G, 197, 207, 260-262.) So in some 
 cases the agent's knowledge ought to estop the company (see ch. 
 vii. anal. 5). 
 
 § 157. Affirmative and promissory warranties. A warranty of present use 
 
 not a promise as to the future use, but ought to be so held where 
 the natural and well understood purpose of the question is to 
 determine the nature of the risk to be borne, and the matter is 
 too important for alteration in good faith (see §§ 191, 231, 247, 
 248, and ch. xi. anal. § 250). Smoking, Force-pump, Sperm- 
 oU. 
 
 1 Though we have treated the several subjects of warranty, representation, 
 and concealment in separate chapters, it will be seen that these subjects are so 
 nearly allied, that cases illustrative of each have much in common ; and if it 
 were material it would be difficult to determine under which chapter to arrange 
 them. For the most part, a case in either chapter will illustrate the others, as 
 the several subjects are almost invariably discussed together. And each subject 
 will be further illustrated by cases cited when we come to treat of the several 
 conditions, stipulations, and provisions of the contract. 
 
 304 
 
CH. VIII.] WAEEANTIES. — APPLICATION. — CONSTRUCTION. 
 
 2. What is Part of the Policy. 
 
 In Massachusetts by statute neither by-laws nor application are 
 part of the policy so as to become warranties, except so far as 
 incorporated into the policy in full. Pub. Stats., § 712. 
 § 158. Face of policj' includes statements written in the margin or across 
 
 the policy, or in other papers referred to and made a part 
 of the policy, but not endorsements on the back, or papers 
 merely folded up in policy or stuck on with mucilage, unless 
 such papers or endorsements are ]-eferred to in the policy ; 
 and even reference alone is not sufficient unless the language 
 indicates an intent to make the paper part of the contract 
 (§ 159). A doubt will be resolved against the company, 
 (§§ 160-165, 170, 171). 
 Warranties not favored, § 158. 
 
 courts lean to make statements representations, § 162 (and 
 
 they ought to lean a little harder than some of them do). 
 
 general rule, a reference to application in policy makes its 
 
 statements warranties, § 159. 
 but reference in mere general terms is not enough, § 159. 
 it must be stipulated that the statements are warranties 
 
 or conditions, § 159. 
 the words " on condition " may not be enough, § 162. 
 if there is room for doubt, they are representations, 
 
 §§ 159, 162, 160-165, 170, 171. 
 so if any other purpose of the reference apjiears, § 159. 
 
 or if the purpose does not appear, § 164. 
 a statement though written on the policy itself may not 
 
 be a warranty, § 164. 
 what the parties call representations cannot he made war- 
 ranties by being made part of the policy, § 165. 
 question not answered is a nonentity, § 166. 
 
 if company issues policy, on the omission the question 
 is waived, § 166. 
 part answer, warranty can go no further than the answer, 
 §166. 
 § 159. The application, survey, or other statements oral or written, if not 
 
 referred to in the policy, are merely representations. (See also 
 § 160.) If written or oral statements are referred to in the 
 policy they may be proved by parol (§ 159). 
 §§ 160, 161. Qualified statement or reference, knowledge, assertion of belief, not 
 of absolute truth. The several stipulations in the policy, 
 application, &c , must be carefully compared, for something 
 may a,ppear inconsistent with holding statements to be war- 
 ranties, §§ 161, 168, 169. 
 or showing that they are warranties only as to some particulars 
 
 and representations as to others, § 160. 
 "so far as known," §§ 161, 166. 
 
 "In all respects true," followed by " to best of my knowl- 
 edge," no warranty, § 161. 
 other qualifying clauses, §§ 160, 161. 
 
 It is a question for the jury whether the assured did answer 
 according to his best knowledge, § 161. 
 VOL. I. — 20 305 
 
INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VIII. 
 
 3. Construction against Wakeanties. 
 §§ 162-165. Constructive warranties not favored. If the statement or reference 
 appear to be made for another purpose than warranty, or the 
 purpose be doubtful, it will not be construed as a warranty, 
 §§ 162-165. 
 where a statement in all fairness and good faith must have the 
 effect of a warranty it will be so construed though not so in 
 form ; see §§ 250-252, 157, 191, 247, 248, 231. 
 immaterial, unguarded, and superfluous statements ought not 
 
 to be converted into warranties by the courts, § 170. 
 courts lean away from warranties, § 162. 
 the clearest language necessary to create one, § 162. 
 stipulation to keep openings closed not a warranty because not 
 expressed to be on penalty of forfeiture, § 164. 
 § 165 A. In the case of marine insurance there is an implied warranty of sea- 
 
 worthiness. 
 § 166. Ambiguous and superfluous answers. Unanswered questions are 
 
 waived if a policy is issued on the application. 
 § 167. No application necessary. 
 
 §§ 168, 169. The application may limit and modify the policy. 
 " If any of the statements, &o., be untrue." 
 is modified by a clause in the application. 
 "fraudulent concealment or designedly untrue." See also 
 §161. 
 § 170. Matter immaterial to the risk or statements not required by the 
 
 conditions of the contract may be expressly warranted, but 
 no implied warranty will be raised in such a case. 
 Warranties will be construed strictly against those for whose 
 benefit they are made, and so as to save a forfeiture if pos- 
 sible. 
 Dividends earned by company applied to save premium note. 
 § 171. "Warranties strictly construed as to their scope. 
 
 4. CONSTRTTOTION IN GENERAL. 
 § 172. Interpretation of insurance contracts governed by the principles that 
 
 apply to other contracts. (See also § 173.) Insurance law all 
 grew out of marine insurance, which has therefore to be con- 
 tinually referred to for the elucidation of other kinds. 
 § 172 A. Construction : 
 
 should be loifhout favor to either party. 
 
 courts too often act as though insurance companies were 
 conclusively presumed to be naughty boys fit only for 
 the shingle, 
 intent of parties must be sought. 
 
 surrounding circumstances to show what goods were 
 meant, 
 conversations at time competent, 
 and contemporaneous insurance literature, 
 printed conditions not applicable to particular case ignored, 
 what the promisor knew the promisee understood governs, 
 proper to show that a name of a locality applies by common 
 repute, though geographically incorrect. 
 
 306 
 
CH. Vm.J WARRANTIES. — APPLICATIOK. — CONSTRUCTION. 
 
 course of dealing admissible. 
 
 parts of a day not reckoned. Warranty of safety on December 
 9 is satisfied if safe on any part of the day, though lost be- 
 fore policy is signed. 
 if facts clear, construction is for court, 
 false warranty as to part of severable policy not avoid whole. 
 §§ 173-179. Usage : 
 
 If the usage offered in evidence is not contrary to a, settled 
 
 principle of law and justice, § 179 B ; » 
 
 and was known to the person against whom it is invoked, 
 actually or constructively by reason of its general and estab- 
 lished character, or because of his entering by his dealings 
 the sphere controlled by it, as in using the facilities of a 
 bank, §§ 179 G, 179 E ; 
 and' is not excluded by the terms of the contract, § 179 D ; 
 and does not import a new and distinct condition into the 
 
 agreement, § 180 ; 
 it is admissible to explain the meaning of the parties, and the 
 manner in which the contract is to be carried out, §§ 173, 
 179, 179 A. 
 §§ 174, 175. The object is indemnity, and the construction will be liberal to ac- 
 complish it. (See also § 175.) 
 all clauses will be reconciled and given their effect if possible. 
 
 Unreasonable conclusions will be avoided, 
 contract sustained if possible, § 175. 
 
 company not escape on mere technicalities, § 175. (Neither 
 ought it to be held on them.) 
 §§ 175, 176. When other rules of interpretation fail to resolve a doubt the lan- 
 guage is to be taken most strongly against the person using it. 
 Courts will not declare a forfeiture unless distinctly so pro- 
 vided. 
 § 177. Written words prevail over printed ones ; if they are not incon- 
 
 sistent both sustained. See § 239. 
 § 178. Insurers held to the exact words of a warranty. , A false representa- 
 
 tion about a building not insured immaterial. Incidental keep- 
 ing of a barrel of oil not a violation of a general provision against 
 storing oil. Alteration in machinery not a forfeiture. Running 
 fires and engine at night not a running of the mill. A cold is 
 not " sickness." Bringing shavings into shop no breach of war- 
 ranty that business is making bathtubs. 
 § 180 a. Statute interference has been necessary to prevent the companies 
 
 from defraxiding the insured by insisting on immaterial and un- 
 reasonable conditions, in policies almost forced upon the .people, 
 so voluminous and printed so fine as to discourage reading and 
 comprehension, fixed up by the companies' agents, with no sus- 
 picion on the part of the insured as to the trap into which he is 
 being decoyed, — policies gotten up expressly to prevent lia- 
 bility, and even going so far as to assert that the agent was the 
 agent of the insured not of the company. (See the fine state- 
 ment of Ch. J. Doe, § 180 a, n.) 
 
 307 
 
§ 156] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VIII. 
 
 § 156. Definition of Warranty. — In all contracts of insur- 
 ance, certain statements are made, certain stipulations are 
 entered into, and certain provisos, conditions, and by-laws 
 are introduced or referred to, in a more or less explicit man- 
 ner. As a general rule, if these statements, stipulations, 
 &c., are contained in, or expressly made a part of the pol- 
 icy, they become warranties, and ai-e so denominated in the 
 law of insurance. We say as a general rule, because we 
 shall see as we advance in this chapter that there are im- 
 portant exceptions. "An express warranty is a stipulation 
 inserted in writing on the face of the policy, on the literal 
 truth or fulfilment of which the validity of the entire con- 
 tract depends." This is the definition given by Arnould,^ 
 which has met with general acceptance. By a warranty the 
 insured stipulates for the absolute truth of the statement 
 made, and the strict compliance with some promised line of 
 conduct, upon penalty of forfeiture of his right to recover in 
 case of loss should the statement prove untrue, or the course 
 of conduct promised be unfulfilled. A warranty is an agree- 
 ment in the nature of a condition precedent, and like that, 
 must be strictly complied with.^ (a) 
 
 1 1 Ins. 577. 
 
 ^ Daniels et al. v. Hudson River Fire Ins. Co., 12 Gush. (Mass.) 416 ; Ripley v. 
 ^.tna Fire Ins. Co., 30 N. Y. 136; Campbell v. N. E. Mut. Life Ins. Co., 98 Mass. 381. 
 
 (a) Insurance companies cannot, shall be material. Hermany v. Fidelity 
 however, contract in disregard of the M. L. Ass'n, 151 Penn. St. 17, 24 ; 
 plain provisions of a statute made for March v. Met'n L. Ins. Co., 186 id. 
 their guidance. Thus, under statutes 629 ; Fidelity M. L. A.ss'n v. Ficklin, 
 such as those of Pennsylvania of June 74 Md. 172, 185; see Same v. Miller, 
 23, 1885, and of Maryland of 1894, de- 92 Fed. Rep. 63, 71 ; Penn. Mut. L. 
 daring that a misrepresentation or un- Ins. Co. v. Mechanics' Sav. B. & T. 
 true statement by an applicant for life Co., 43 U. S. App. 75. The effect of 
 insurance, when made in good faith, the Massachusetts statute is that mis- 
 shall not work a forfeiture, unless relat- representations of fact, whether called 
 ing to a matter material to the risk, the by the parties a warranty or a represen- 
 courts of both these States hold that tation, are equally misrepresentations, 
 the "misrepresentation" or "untrue and that the insured can only defeat 
 statement " in the application, when the policy by showing, not only that 
 sought to be made a ground of defence, the statements or answers were incorrect, 
 must be of some material matter, and but also either that the mi.srepresenta- 
 that the parties are not free to contract, tions were made with actual intent to 
 — in the face of the statute, which can- deceive, or that the matter misrepre- 
 not be waived, — that immaterial matter sented increased the risk of loss. White 
 
 308 
 
CH. VIII.] WAEEANTIES. — APPLICATION. — CONSTEUCTION. [§ 156 
 
 Whether the fact stated or the act stipulated for be mate- 
 rial to the risk or not, is of no consequence,^ the contract 
 being that the matter is as represented, or shall be as prom- 
 ised; and unless it prove so, whether from fraud, mistake, 
 negligence, or other cause, not proceeding from the insurer, 
 or the intervention of the law or the act of God, the insured 
 can have no claim. ^ [When a policy provided that it should 
 be void if any of the warranties were " false " or fraudulent, 
 this was held to mean untrue whether with or without the 
 
 1 [Bennett v. Agr. Ins. Co., 50 Conn. 420 ; Thomas v. Fame Ins, Co., 108 111. 
 91 ; Ala. Gold L. Ins. Co. u. Garner, 77 Ala. 210 ; Schwarzbach v. Protective 
 Union, 25 W. Va. 622, 652 ; Dwight w. Germania Life Ins., 103 N. Y. 341. A 
 warranty is a part of the contract, and whether material or not must be strictly 
 complied with, while a representation is collateral or preliminary to the contract, 
 and though false does not avoid the contract unless actually material or clearly 
 intended to be made material by the parties. Ala. Gold Life Ins. Co. v. Johnston, 
 80 Ala. 467.] 
 
 2 Cooper V. Farmers' Mut. Fire Ins. Co., 50 Pa. St. 299 ; Newcastle Fire lus. 
 Co. V. Macmorran, 3 Dow, P. C. 255 ; Sayles v. North Western Ins. Co., 2 Cur- 
 tis C. Ct. (Mass.) 610, 612 ; Witherell v. Maine Ins. Co., 49 Me. 200 ; Pawson 
 V. V^fatson, Cowp. 785 ; Anderson v. Fitzgerald, 24 En^. L. & Eq. 1 ; 4 H. of L. 
 Cas. 484 ; Duckett v. Williams, 2 C. & M. 348 ; post, §§ 350, 352. 
 
 V. Provident S. L. Ass. Society, 163 Massachusetts also, the legislature has 
 
 Mass. 108, 115 ; Levie v. Met'n Life aimed to benefit policy holders by ob- 
 
 Ins. Co., id. 117 ; King Brick M. Co. liging insurance companies to attach to 
 
 V. Phoenix Ins. Co., 164 Mass. 291 ; each policy a correct copy of the appli- 
 
 Wright V. Vermont L. Ins. Co., id. 302 ; cation, so that the insured may know 
 
 Hogan V. Met'n Life Co., id. 448 ; what are the precise terms of his appli- 
 
 Stocker u. Boston Mut. F. Ins. Co., cation; and this is now treated as the 
 
 170 Mass. 224; Dolan v. Mutual Ee- law applicable alike to fire, life, and 
 
 serve Fund Life Ass'n, 173 Mass. 197. assessment insurance. Considine v. 
 
 In Iowa, by statute a copy of the Met'n Life Ins. Co., 165 Mass. 462, 
 
 application must be attached to or in- 465. 
 
 dorsed on the policy, in order that the A policy stipulation that the state- 
 company may plead or prove the appli- ments and answers in the application 
 cation in an action on the policy. Cook are warranties and if untrue, though 
 V. Federal Life Ass'n, 74 Iowa, 746 ; made in good faith, the policy shall be 
 McConnell v. Iowa Mut. Aid Ass'n, void notwithstanding any statute to the 
 79 id. 757 ; Grimes v. Northwestern contrary, is invalid in so far as it con- 
 Legion of Honor, 97 id. 315. But this flicts with a statute providing that no 
 does not preclude an officer or incorpo- representation made in good faith shall 
 rator, sought to be held liable for the work a forfeiture or be a ground of de- 
 loss, from using such evidence in show- fence unless it relates to some matter 
 ing that the insured was not misled to material to the risk. Fidelity Mut. L. 
 his detriment. Moore v. Union Frater- Ass'n 71. Ficklin, 74 Md. 172. 
 nal Aco. Ass'n, 103 Iowa, 424, 428. In 
 
 309 
 
§ 156] INSUEANdE : FIKB, LIFE, ACCIDENT, ETC. [CH. VIIL 
 
 assured's knowledge of their untruth. ^ A breach of war- 
 ranty is fatal though the insured acted in perfect good 
 faith.2(a) The insured cannot claim that an answer which 
 he has declared shall be a warranty was made by mistake or 
 inadvertence.^ Mere knowledge by the agent, or by the com- 
 pany, that a warranty is not true at the time it is made does 
 not relieve the assured from the consequences of a breach, 
 or convert the contract into a different warranty, and is no 
 basis for reforming the contract.* Knowledge of the agent 
 that a warranty was false is no waiver by the company.^] 
 
 One of the very objects of the warranty is to preclude all 
 controversy about the materiality or immateriality of the 
 statement. The only question is, has the warranty been 
 kept ? There is no room for construction ; no latitude ; no 
 equity. If the warranty be a statement of facts, it must be 
 literally true ; if a stipulation that a certain act shall or 
 shall not be done, it must be literally performed.^ A learned 
 
 1 [Foot V. Mt-aa. Life Ins. Co., 61 N. Y. ,'571, 577.] 
 
 " [Commonwealth Mut. Fire Ins. Co. v. Huntzinger, 98 Pa. St. 41.] 
 
 8 [Ala! Gold L. Ins. Co. v. Garner, 77 Ala. 210.] 
 
 4 [Commonwealth Mut. Fire Ins. Co. v. Huntzinger, 98 Pa. St. 41, 47 ; State 
 Mut. Fire Ins. Co. v. Arthur, 30 Pa. St. 315, 331.] 
 
 5 [Tebbets v. Hamilton Mut. lus. Co., 3 Allen, 569 ; Foot v. jEtna Ins. Co., 
 61 N. Y. 571, 576 ; Deweea v. Manhattan Ins. Co., 35 N. J. L. 366, 371. But 
 see contra, and much better doctrine as to cases in which the company itself 
 knows the truth, §§ 144 A., 133 A.] 
 
 s Ripley v. jEtna Fire Ins. Co., 30 N. Y. 136 ; Hibhert «. Pigon, Park, Ins. 
 339 ; s. 0. Marsh. Ins. 272, per Lord Mansfield ; Anderson v. Fitzgerald, 4 H. of 
 L. Cas. 484 ; s. c. 24 Eng. L. & Eq. 1. In Hutchison v. Nat. Loan Fire Ins. Co., 
 7 Ct. of Sess. Cas. (Scotch) 2d Series, 467 ; s. c. 3 Big. Life & Ace. Ins. Cas. 
 444, it was held that this warranty did not apply to facts unknown to the appli- 
 cant without negligence, as, for instance, the fact of the existence of a latent 
 and unknown disease of which there had been no symptoms, which was unsus- 
 pected, and only made known by a post-mortem examination. The statement 
 was that the applicant enjoyed good health, and that no circumstance or infor- 
 mation touching health with which the insurers ought to be made acquainted 
 was withheld. It was sufficient if such a statement was true according to the 
 knowledge and belief of the applicant. See also post, § 202. [When the assured 
 guaranteed to have the average price of freight 40s. per ton on his ship, but in 
 reality it was only 32s., it was held to avoid the policy, although by adding the 
 proceeds from passengers the amount would have made more than 40s. Lewis v. 
 Marshall, 7 M. & Gr. 739, 743.] 
 
 (a) Fraud is not necessary to avoid Under a statute making immaterial 
 a policy when a warranty is broken, warranties in an application simply 
 
 310 
 
OH. VIII.] WAEEANTIES. — APPLICATION.— CONSTEUCTION. [§ 156 
 
 judge and author declares it to be unfortunate that so strict 
 a rule has been established, and intimates, what is no doubt 
 entirely true, that courts are not at all inclined to go beyond 
 the precedents to support a warranty.^ [There are even 
 authorities to the effect that in dealing with warranties com- 
 mon sense is not to be lost sight of, and that the fair prac- 
 tical intent of the parties is to be sought, not the hair 
 splitting of a college of wit crackers, and that substantial 
 fulfilment of a warranty is enough. Honest errors in the 
 statement of the ages of ancestors or their nationality will 
 not avoid a policy, though made a part of it on condition of 
 avoidance if in any respect untrue. It is subversive of the 
 true intent of the contract to avoid it because of any trivial 
 misrepresentation not material to either party. ^ Where a 
 building is described as two stories high, the main part 
 being so, but a small rear addition being only one story, 
 the inaccuracy is not a breach of warranty.^ When a vessel 
 was registered as captained by A., who professedly had no 
 nautical experience, but was in reality captained by B., a 
 competent officer, it was held that the warranty for compe- 
 tent seamen, officers, &c., was thus far complied with.* 
 Where the policy stated that the building was occupied as a 
 boarding-house, and it appeared in proof that the lower part 
 of it contained a bar and billiard hall, all kept by the same 
 
 1 Per Duer, J., Westfall v. Hudson Kiver Fire Ins. Co., 2 Duer (N. Y. Supe- 
 rior Ct.), 490. 
 
 2 [Gennania Iu.9. Co. v. Rudwig, 80 Ky. 223, 234 (overruling Farmers' & Dro- 
 vers' Ins. Co. V. Curry, so far as opposite). The Act of Feb. 4, 1874, declared 
 "that all statements and descriptions in any application for or policy of insur- 
 ance shall he deemed and held representations and not warranties, nor shall any 
 misrepresentation, unless material or fraudulent, prevent a recovery on the pol- 
 icy," and the court remarked that the act was merely declaratory of the law of 
 Kentucky.] 
 
 8 [Wilkins v. Germania Fire Ins. Co., 57 Ind. 527.] 
 
 « [Draper v. Com. Ins. Co., 21 N. Y. 378, 383-84. Comstock, Ch. J., dis- 
 senting, but on grounds that do not seem to go to the substance of the matter. 
 The common sense is with the majority opinion this time for a rarity.] 
 
 representations, their materiality is not Ins. L. J. 473. See Ward w, Met'n L. 
 
 a question for the jury, if the risk is Ins. Co., 66 Conn. 227; Foley v. Royal 
 
 clearly material. Dolan v. Missouri Arcanum, 151 N. Y. 196. 
 Town Mut. F. Ins. Co. (Kans. App.), 29 
 
 311 
 
§156] insurance: fire, life, accident, etc. [ch. viii. 
 
 tenant, but no evidence was given that the risk was thereby 
 increased, it was held that there was no breach of warranty.^ 
 Where a policy states that the property insured is in a build- 
 ing ^^ detached at least one hundred feet," &c., the italicised 
 words constitute a warranty that no buildings which consti- 
 tute an exposure and increase the risk are nearer than one 
 hundred feet, but a small office, seventy-five feet from the 
 building, and found by the trial court not to be an exposure 
 or to increase the risk, is not a breach.^] 
 
 No particular form of words is necessary to constitute a 
 warranty. Any statement or stipulation upon the literal 
 truth or fulfilment of which in the intention of the parties 
 the validity of the contract is made to depend, whether ap- 
 pearing as a condition or warranted, or however otherwise,^ 
 amounts to a warranty.* But no particular form of words 
 will make a statement or stipulation a warranty, not even 
 the use of the word " warranty, " where it is apparent, from 
 the context or from the other parts of the contract, that it 
 is not the intention of the parties to make the validity of 
 the contract depend on the literal truth or fulfilment of the 
 statement or stipulation.^ [A statement in the application 
 that the insurer is a single man, is an absolute warranty.® 
 The words in a policy on a ship "prohibited from the river 
 and gulf of St. Lawrence, between September 1 and May 1 " 
 constitute a warranty that the vessel shall not enter those 
 waters in the times specified.^ A statement by the assured 
 that the building to be insured was tenanted, is not a war- 
 ranty.^ The burden of proving the performance of an ex- 
 
 1 [Martin v. State Ins. Co., 44 IT. J. 485.] 
 
 2 [Burleigh v. Gebhard Fire Ins. Co., 90 N. Y. 220.] 
 ' [See last note in this section.] 
 
 * Wright V. Eq. Life Ass. Co. {Supr. Ct. N. Y.), 5 Big. Life & Ace. Ins. Cas. 
 401. 
 
 * Soeales v. Scanlan, 6 Irish Iiaw, 367 ; Howard, &c. Ins. Co. v. Cornick, 24 
 111. 455 ; Wheelton v. Hardisty, 8 E. & B. 232 ; Kingsley et al. v. New England 
 Mat. Fire Ins. Co., 8 Cush. (Mass.) 393 ; Fitch v. Am. Popular Life Ins. Co., 59 
 ]Sr. Y. 557; post, § 161 ct seq. 
 
 6 [Jeffries v. Union Mut. Life Ins. Co., 1 Fed. Rep. 450, Mo. 1880 ; 1 Mo- 
 Crary, 114.] 
 
 ' [Cobb V. Lime Rock F. & M. Co., 58 Me. 326, 327.] 
 8 [Schultz V. Merchants' Ins. Co., 57 Mo. 331, 337.] 
 
 312 
 
CH. VIII.] WAKKANTIES. — APPLICATION. — CONSTRUCTION. [§ 157 
 
 press warranty rests upon the assured.^ When the policy 
 "prohibited from all guano islands except Chinchas," the 
 burden is on the assured to show that there has been no 
 breach of the warranty. "■^J 
 
 § 157. Warranties are distinguished into two kinds : 
 affirmative, or those which allege the existence at the time 
 of insurance of a particular fact, and avoid the contract if 
 the allegation be untrue; and promissory, or those which 
 require that something shall be done or omitted after the 
 insurance takes effect and during its continuance, and avoid 
 the contract if the thing to be done or omitted be not done 
 or omitted according to the terms of the warranty.^ [When 
 by the policy the assured agreed to use only lard and sperm 
 oil for lubricating purposes, and also stated that there was 
 a force pump on the premises, and agreed to have it always 
 ready for use and plenty of hose on hand, — these were held 
 promissory warranties in the nature of conditions subse- 
 quent,* and any substantial breach would avoid the policy. 
 Whether a slight mixture of petroleum is a substantial 
 breach is a question for the jury. The clause in a policy, 
 stating that the insured premises are "used" for winding 
 yarn, &c., is a warranty only of the present use, not of the 
 future.^ Where the application, the answers in which are 
 warranties by the terms of the contract, states that "smok- 
 ing is not allowed on the premises," the policy is not avoided 
 although the insured himself afterward smoked on the prem- 
 ises, the fire not having originated from that cause. The 
 question did not call for a warranty of continuance of the 
 prohibition against smoking, and the statement being true 
 as to the practice at the time of application there was no 
 breach of warranty. Indeed it does not appear that the 
 prohibition was removed, but that the smoking was in vio- 
 
 1 [McLoon V. Com. Mut. Ins. Co., 100 Mass. 472, 474.] 
 
 2 [Whiton V. Albany, &c. Ins. Cos., 109 Mass. 24, 30.] 
 
 8 Borradaile v. Hunter, 5 M. & G. 639 ; Jennings v. Chenango Co. Mut, 
 Ins. Co., 2 Denio (N. Y.), 75, 78; Stout v. City Fire Ins. Co., 12 Iowa, 
 371. 
 
 * [Copp V, German-American Ins. Co., 51 Wis. 637, 640.] 
 
 6 [Smith V. Mech. & Trad. Ins. Co., 32 N". Y. 899, 402.] 
 
 313 
 
§ 158] INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VIII. 
 
 lation of the rule of the place. ^ Where the company asked, 
 " What are the facilities for extinguishing fires ? " — and the 
 answer was, " Force pump, and abundance of water ; " it was 
 held that there was no promise that the pump should be in 
 good order in the future.^ A warranty of the existence of a 
 force pump on the insured premises, at all times ready for 
 use, extends to the fact that there is sufficient power to work 
 the pump.^ The judge rightly thought that the inquiries 
 and facts of the case distinguished it from Hide v. Bruce,* 
 where Lord Mansfield decided that a warranty that a ship 
 should have twenty guns, did not include of necessity men 
 enough to work them. Such constructions as those just 
 mentioned in 2 Dougl., and in R. I., seem to err from the 
 path of common-sense fairness as far against the company 
 as the literal-fulfilment-of-warranty idea errs in favor of the 
 company. If a man who is asked to insure inquires what 
 are the facilities for putting out fires, and he is told that 
 there is a force pump, would it be fair and honest dealing if 
 the pump was in a dry well, or broken, or there was no 
 means of using it ? And if the pump was all right when 
 the application was made, but became useless or was taken 
 away before the policy was issued, would not the assured be 
 held to inform the company ? ^ And is he obliged to be hon- 
 est only until he gets his grip on the contract, and not after- 
 ward ? Or is it less important to the company to have a 
 .good pump on the premises after they have taken the risk 
 than before ? Plain, fair sense seems to have a little place 
 in some parts of insurance law.] 
 
 § 168. What constitutes a Part of the Contract ; Papers 
 annexed and referred to. — Questions sometimes arise as to 
 whether the statements and stipulations are embraced in, or 
 constitute part of the policy. Usually the application, pro- 
 posals, conditions annexed, and by-laws are referred to in 
 the policy itself, and by express terms made part of it ; or 
 
 1 [Hosford V. Germania F. Ins. Co., 127 U. S. 399, 403.] 
 
 2 [Gilliat V. Pawtucket Mut. Fire Ins. Co., 8 R. I. 282.] 
 
 s [Sayles v. N. W. Ins. Co., 610, 613 ; 2 Curtis 0. 0. 610.] 
 * [3 Doug. 213.] 
 6 [See § 190.] 
 
 314 
 
CH. VIII.] WARRANTIES. — APPLICATION. — CONSTRUCTION. [§ 158 
 
 they are declared to be the basis upon which it is made,^ or 
 the policy is declared to be issued upon the faith thereof. 
 When this is the case, of course there is no room for doubt. ^ 
 When, however, this is not the case, it becomes a question 
 of the first importance to determine whether they are, or are 
 not, part of the policy ; for if they are not, then they are not 
 warranties, but only representations, as to the truth of, and 
 compliance with which there is much less strictness re- 
 quired, as will be presently shown, (a) 
 
 It is sufficient if they appear anywhere upon the face of 
 the policy, though not written in the body of it, as upon the 
 margin,^ or written across it;* or are embraced in several 
 papers each referring to the others as parts of the contract,^ 
 though they are not necessarily warranties because they ap- 
 pear upon the face of the policy.^ Nor is it material that 
 
 ^ [When a policy states that if the declarations of the insured, " upon the faith 
 of which the policy is made, shall be found to be in any respect untrue," then 
 the policy shall be void, " the entire truthfulness of such declarations is made a 
 condition precedent to recovery, and if proved either false or fraudulent, the 
 policy is void, whether or not the matter be material to the contract, or whether 
 the insurers issued the policy on the faith of these declarations." Brennan v. 
 Security, &c. Go., 4 Daly, 296. A provision iu a policy that if answers should 
 be found false or fraudulent, the policy should be void, does not waive the 
 previous provisions making the answers warranties. Foot v. iEtna, &c. Ins. Co., 
 4 Daly, 285, 293.] 
 
 2 Cushman v. United States Life Ins. Co., 70 N. Y. 72. 
 
 8 Bean v. Stupart, Doug. 11 ; Patch v. Phceuix Mut. Life Ins. Co., Sup. Ct. 
 Vt. 1872, 2 Ins. L. J. 36. 
 
 * Kenyon v. Berthon, Doug. 12, n. 
 
 8 Bobbitt V. Liverpool, &c. Ins. Co., 66 N. G. 70. 
 
 1 Campbell v. New England Mut. Life Ins. Co., 98 Mass. 381. 
 
 {a) See Thomson v. Weems, 9 A. G. United L. Ins. Co., 60 id. 727 ; Fidelity 
 671 ; Davies .;. National M. Ins. Co., & C. Co. v. Alpert, 67 id. 460 ; Selby v. 
 [1891] A. C. 485 ; Hambrough v. Mu- Mutual L. Ins. Co., id. 490 ; Phinney v. 
 tual L. Ins. Co., [1895] W. N. 18 ; Caw- Mutual L. Ins. Co., id. 493 ; Fidelity 
 ley V. Nat. E. A. Ass'n, 1 C. & E. 597 ; M. L. Ass'u v. Miller, 92 id. 63 ; Chris- 
 Cshkosh Packing Co. v. Mercantile tian «. Conn. Mut. L. Ins. Co., 143 Mo. 
 Ins. Co., 31 Fed. Rep. 200; Gotten w. 460; J. B. Ehrsam M. Co. v. Phenix 
 Fidelity Co., 41 id. 506 ; Pacific M. Ins. Co., 43 Neb. 554 ; Virginia F. & M. 
 Ins. Co. V. Snowden, 68 id. 342 ; Provi- Ins. Go. v. Morgan, 90 Va. 290 ; Albert 
 dent S. L. Ass. Society v. Llewellyn, v. Mut. L. Ins. Co., 122 N. C. 92 ; Mo- 
 id. 940 ; Manufacturers' Ace. I. Co. v. CoUum v. Mutual L. Ins. Go., 55 Hun, 
 Dorgan, id. 945 ; New York Ace. Ins. 103 ; supra, § 156, u. (a). 
 Go. V. Clayton, 59 id. 559; Brady ;;. 
 
 315 
 
§ 158] insueakce: fire, life, accident, etc. [ch. viii. 
 
 the application is in pencil.^ And where a policy printed 
 upon one half of a sheet was delivered, and upon the other 
 half of the sheet were the " conditions of insurance, " these 
 conditions, so annexed, were held to be prima facie a part 
 of the policy, although no express reference was made to 
 them in the body of the policy.^ Where certain "rules and 
 regulations " appended to a policy were referred to as 
 "accompanying articles," the reference was held sufficient 
 to make them conditions of the contract.^ So of conditions 
 annexed, though unsigned.* But a paper containing par- 
 ticular statements relating to the subject-matter of insurance 
 attached to the policy at the time it is executed is no part 
 of the policy. 5 Nor is an unattached paper folded up and 
 enclosed in the policy containing similar particulars.® [Nor 
 a piece of paper stuck on by mucilage and not referred to in 
 the policy.'] And an indorsement on the back of an acci- 
 dent policy, showing the classification of risks assumed by 
 the company, with a preliminary statement explanatory of 
 the rights of the different classes, can be regarded as part 
 of the contract only so far as it is specifically referred to in 
 the policy as constituting a part of it; and a reference to 
 the classification will not import the preliminary explana- 
 tory statement into the contract.^ So printed by-laws on 
 the back of a policy are not part of the contract, unless re- 
 ferred to and made part of it.^ Nor is an indorsement of 
 
 1 City Ins. Co. v. Bricker (Pa.), 9 Ins. L. J. 784. 
 
 2 Murdock a. Chenango County Mut. Ins. Co., 2 Comst. (N. Y.) 210 ; Rob- 
 erts V. Chenango County Mut. Ins. Co., 3 Hill (N. Y.), 601. 
 
 8 Hill V. Equitable Mut. Fire Ins. Co. (N. H.), 6 Ins. L.J. 314. 
 
 * Kensington Nat. Bank v. Yerkes, 86 Pa. St. 227. 
 
 5 Bize V. Fletcher, Doug. 13, n. 
 
 ^ Pawson V. Bamevelt, Doug. 13, n. ; Paw.son v. Watson, Cowp. 785. In Sil- 
 lem V. Thornton (3 E. & B. 868), a descriiition of the property contained in a 
 paper attached to the policy, and referred to as attached thereto, was treated as 
 a part of the policy, though the point was not discussed. But this was a liber- 
 ality of construction in favor of the insurers which is inconsistent with the later 
 decisions. In that case, however, the decision would doubtless have been the 
 same had the attachment been treated as a representation. 
 
 7 [Goddard t'. Ins. Co., 67 Tex. 69.] 
 
 8 Adm'rs of Stone v. U. S. Casualty Co., 34 N. J. L. 371. 
 
 ^ Kingsley v. New England Mut. Fire Ins. Co., 8 Cush. (Mass.) 393. 
 
 316 
 
CH. VIII.] WAERANTIES.— APPLICATION. — CONSTRUCTION. [§ 159 
 
 the name and place of business of the insurer on the back of 
 the policy. 1 And a reference to another paper as an appli- 
 cation or survey, or as containing representations, or in 
 language not indicating that it is the intent to make the 
 application part of the contract, does not make it a war- 
 ranty ;2 nor is it necessary in such a case for the plaintiff 
 to put in the application with the policy, in proving his case, 
 even though the application makes its own statements a part 
 of the contract.^ 
 
 Where the statute requires that the " conditions of insur- 
 ance shall be stated in the body of the policy," a statement 
 of the substance of the conditions on the face of the policy, 
 with a distinct reference to them, printed on a subsequent 
 page, is sufficient; but a general declaration on the face of 
 the policy that it is made with reference to the conditions 
 annexed, and that they are a part of the contract, does not 
 make them a part of the contract.* And the courts are dis- 
 inclined to make a paper by reference a warranty and part of 
 the contract, unless clearly obliged to.° 
 
 § 159. Application and Survey, when Parts of Contract. — 
 As a rule, when the application is referred to as forming a 
 part of the contract, the statements therein contained are 
 held to have the force and effect of warranties.^ (a) But as 
 
 1 Ferrer u. Home Iu9. Co., 47 Cal. 416. 
 
 2 Farmers' Ins. & Loan Co. v. Snyder, 16 Wend. (N. Y.) 481 ; Houghton v. 
 Manuf. Mut. Fire Ins. Co., 8 Met. (Mass.) 114. 
 
 3 Edington v. Mut. Life Ins. Co., 67 N. Y. 185. 
 
 * Eastern Eailroad v. Relief Ins. Co. , 98 Mass. 420 ; Mullaney v. National 
 Ins. Co., 118 id. 393. 
 
 5 Sayles v. North Western Ins. Co., 2 Curtis (XJ. S. C. Ct.), 610 ; Campbell v. 
 New England Mut. Life Ins. Co., 98 Mass. 381 ; Albion Lead Works v. Williams- 
 burgh City Fire Ins. Co., C. Ct. (Mass.) 9 Ins. L. J. 435 ; Clinton u. Hope Ins. 
 Co., 45 X. Y. 454. See post, § 178. 
 
 6 [Phcenix Ins. Co. u. Benton, 87 Ind. 132.] 
 
 {a) An application which is made a 20Ins. L. J. 95; Cronin d. Phila. F. Ass'n 
 part of the policy, the latter being also (Midi.), 82 N. W. 45. In case of con- 
 expressly based thereon, are construed ilict between them, the policy controls, 
 together as one contract, unless there is Goodwin v. Provident Sav. L. Ass. Ass'n, 
 clear evidence of fraud. McMaster v. 97 Iowa, 226. But the application must 
 New York L. Ins. Co., 90 Fed. Rep. 40; be actually accepted, and if the appli- 
 Parrish u. Va. F. & M. Ins. Co. (N. C), cant dies pending its consideration, 
 
 317 
 
§ 159] instjkance: fire, life, accident, etc. [ch. viii. 
 
 the application, whether embracing the survey, which in 
 general is but a plan or description of the premises, show- 
 ing with more or less completeness its condition and sur- 
 roundings, or having the latter attached to it actually or by 
 reference, contains merely the data upon which the real con- 
 tract is based, and may be by parol only, if the policy con- 
 tains no stipulation making its statements warranties, they 
 will have the force and effect of representations only ; ^ and 
 generally references to statements and agreements, in order 
 to have the effect of avoiding the policy in case the state- 
 ments prove untrue or the agreement be not strictly kept, 
 must be so explicit as to make them equivalent to conditions 
 precedent. [The words "as per application," after a state- 
 ment in the policy of the buildings and amounts insured, is 
 not sufficient to make the application a part of the policy.^ 
 But the clause "false representations in the application in 
 regard to the condition, situation, or value of the property 
 shall render the policy void," makes the statements of the 
 application warranties in a policy which refers to the appli- 
 
 1 Columbia Ins. Co. v. Cooper, 50 Pa. 331 ; Dennj' v. Conway Stock '& Mut. 
 Ins. Co., 13 Gray (Mass.), 492 ; Shoemaker v. Glens Falls Ins. Co., 60 Barb. 
 (N. Y.) 84. In May v. Buckeye Mut. Ins. Co., 25 Wis. 291, a " survey" is held 
 to be coextensive with the application if made by the agent. See also Albion 
 Lead Works, &c. supra. 
 
 •2 [Vilas V. N. Y. Central Ins. Co., 72 N. Y. 590.] 
 
 there is no completed contract. Jacobs L. Ass'n (N. J.), 22 Ins. L. J. 877; 
 I!. New York L. Ins. Co., 71 Miss. 658. German Ins. Co. w. Read (Ky.), 20 
 So if there is fraud or double dealing on Ins. L. J. 86 ; Eiegel v. American L. 
 the part of the insurer's agent in deliv- Ins. Co., 153 Penn. St. 134. So if a 
 ering the policy when he knows that member of a mutual insurance company 
 the applicant has become suddenly and is suspended for non-payment of assess- 
 dangerously ill. Equitable Life Ass. ments, and neglects during his lifetime 
 Society v. McElroy, 83 Fed. Rep. 631 ; to secure his reinstatement in accord- 
 see Rossiter v. jEtna L. Ins. Co., 91 Wis. ance with the terms of his benefit cer- 
 121. In general, a life insurance con- tificate and the provisions of the order, 
 tract must be complete before the death his restoration to membership cannot 
 of the insured, but its delivery to the be effected after his death by payment 
 beneficiary may be made later. See of the sum due from him to the corn- 
 above ; Newcomb v. Provident Fund pany at the time of his death, though 
 Society, 5 Col. App. 140 ; Paine v. Pa- the period within which, if alive, he 
 cific Mut. L. Ins. Co., 51 Fed. Rep. 689; could have secured his reinstatement. 
 Mutual L. Ins. Co. v. Thomson, 94 Ky. has not yet expired. Modern Woodmen 
 253 ; McClave v. Mutual Reserve Fund v. Jameson, 49 Kansas, 677. 
 
 318 
 
CH. VIII.j WAEKANTIES. — APPLICATION. — CONSTEUCTION. [§ 159 
 
 cation and makes it a part thereof.^ A prospectus is not 
 made part of the policy by an indorsement on the latter that 
 it may be had gratis, and its statements are only representa- 
 tions.^] And unless it is expressly so stipulated, the state- 
 ments or agreements should, on the face of the instrument, 
 clearly and precisely show that it is the intention of the 
 contracting parties to make their literal truth, or literal 
 performance, a condition precedent. If there be any doubt 
 on this question, the statement or agreement will be held to 
 have the force only of a representation ; ^ and written state- 
 ments not referred to, there being no formal application, 
 will be regarded as representations, if so intended.* If 
 written or oral statements are referred to in the policy, they 
 may be proved by parol. ^ And if a policy be executed and 
 delivered, a survey subsequently made and handed in, the 
 policy not being made conditional upon the procuring of the 
 survey, is inoperative.^ A mere reference to an application 
 or survey, in general terms, does not make its contents war- 
 ranties. To effect this, there must be other language used 
 sufficient to indicate that it was the intention to make the 
 paper referred to a part of the contract.'' (a) And the same 
 
 1 [American Ins. Co. v. Gilbert, 27 Mich. 429.] 
 
 2 [Knickerbocker L. Ins. Co. v. Heidel, 8 Lea (Tenn. ), 488.] 
 
 8 Wheelton v. Hardisty, 8 El. & B. 232 ; Stokes v. Cox, 1 H. & N. Exch. 320, 
 533. In the former of these cases it seems to be the opinion of the court that 
 when the policy recited that "a proposal was made, and that, 'thereupon' a 
 policy was issued," " thereupon " referred to time, and not to the proposal as 
 the basis of the contract. See also 'ante, § 166 and § 161. 
 
 * Boardman v. N. H. Mut. Fire Ins. Co., 20 N". H. 551. 
 
 6 Clark V. Manufacturers' Mut. Fire Ins. Co., 2 W. & M. (U. S. C. Ct.), 472. 
 As to the bearing of the " prospectus " issued by the insurers upon the contract, 
 see post, §§ 355, 356. 
 
 8 Le Roy v. Park Fire Ins. Co., 39 N. Y. 56. 
 
 7 Delonguemare v. Tradesmen's Ins. Co., 2 Hall (N. Y. Superior Ct. ), 589 ; 
 Jefferson Ins. Co. v. Cotheal, 7 "Wend. (IT. Y.) 72 ; Wall v. Howard Ins. Co., 14 
 Barb. (N. Y.) 383 ; Sheldon v. Hartford Fire Ins. Co., 22 Conn. 235 ; Common- 
 wealth's Ins. Co. V. Monninger, 18 Ind. 352 ; jEtna Ins. Co. v. Grube, 6 Minn. 82 ; 
 Le Roy v. Market Ins. Co., 39 N. Y. 90 ; Steward </. Phcenix Fire Ins. Co., 5 
 Hun (N. Y.), 261. 
 
 (a) The courts are reluctant to im- not clearly disclose the parties' agree- 
 
 port terms of warranty contained in the ment to the union of the two papers in 
 
 application for insurance into the com- one contract. Phoenix Life Ins. Co. p. 
 
 pleted agreement when the policy does Raddin, 120 TJ. S. 183. But when 
 
 319 
 
§ 159] INSUEANCE : FIUE, LIFE, ACCIDENT, ETC. [CH. VIII. 
 
 is true although there be added to the general terms of refer- 
 ence the statement that the reference is for a more full de- 
 scription, i And though the application be referred to in 
 such terms as to import it into the contract, if its state- 
 ments be also referred to as "representations," they will 
 have that character notwithstanding they are made part of 
 the contract.^ So if the reference, by a fair construction, 
 appear to be for another purpose than to make its statements 
 warranties.^ So if the survey ia referred to in the policy as 
 on iile in one place, where in fact it is, and the conditions 
 making it a part of the contract refer to it als on file in an- 
 other, where in fact it is not.* [In Canada even though the 
 application is made a part of the policy, a misstatement or 
 wrong answer will not, in the absence of an express war- 
 ranty, avoid the policy unless it is material. The company 
 has only the statutory defences."] In Kentucky and Louis- 
 ville Mutual Insurance Coinpany v. Southard,^ the court 
 
 1 Snj'der v. Farmers' Ins. & Loan Co., 13 Wond. (N. Y.) 92 ; s. c. affirmed, 
 14 id. 481. 
 
 ^ Houghton V. Manuf. Ins. Co., 8 Met. (Mass.) 114 ; American Popular Life 
 Ins. Co. V. Day, 39 N. J. (Law) 89. 
 
 3 Campbell v. New England Mut. Life Ins. Co., 98 Mass. 381. 
 
 * Clinton v. Hope Ins. Co., 45 N. Y. 454. 
 
 6 [Goring v. London Mut. Fire Ins. Co., 10 Ont. R. 236, 245, 246.] 
 
 6 8 B. Mon. (Ky.) 634. 
 
 there is a distinct agreement that the upon a particular subject, such as the 
 
 application is a part of the contract, nature and amount of incumbrances, 
 
 and the statements in the application, otherwise than by mortgage, they cau- 
 
 upon which the contract is based, are not object that no information is given 
 
 expressly declared to be warranties, the on that subject. Hosford o. Germania 
 
 insured's intent to bind himself to the Fire Ins. Co., 127 U. S. 399 ; American 
 
 exact truth in his answers, even as to Artistic G. S. Co. v. Glenn Falls Ins. 
 
 immaterial facts, is adequately mani- Co., 20 N". Y. S. 646. And although a 
 
 fested, and the parties themselves policy of insurance in a mutual fire in- 
 
 thereby agree upon the materiality of surance company contains terms and 
 
 the things warranted. Burritt v. Sara- conditions not included in the applica- 
 
 toga County M. F. Ins. Co., 5 Hill tion therefor, if they are not unusual 
 
 (N. Y.), 188 ; Armour v. Transatlantic or extraordinary, this does not render 
 
 F. Ins. Co., 90 N. Y. 450; O'Shaugh- necessary the acceptance of the policy 
 
 nessy v. Working Women's Co-op. Ass'n, by the assured in order to make it bind- 
 
 28 N. Y. S. 761 ; American Credit In- ing on him, but the contract becomes 
 
 demnity Co. v. Carrollton F. M. Co., complete on the delivery of the policy, 
 
 95 Fed. Rep. Ill ; Mutual L. Ins. Co. without any further assent on his part. 
 
 V. Nichols (Tex. Civ. App.), 24 S. W. Commonwealth Mut. F. Ins. Co. v. 
 
 910. If the insurers put no question Knabe Co., 171 Mass. 265. 
 
 320 
 
GH. VIII.] -WAEEANTIES. — APPLICATION. — CONSTRUCTION. [§ 159 
 
 were indisposed to admit that the principle which converts 
 into a warranty every matter of fact or description relative 
 to the property insured, which the parties have inserted in 
 the policy, is applicable in cases of fire insurance to any 
 such matter not inserted in the policy nor written upon it, 
 though it be referred to therein as a part of the policy, even 
 if it be the rule in marine insurance, which was doubted, (a) 
 Nor can a reference in a new policy to a former suiwey at 
 the office of the agent through whom a foreign insurance 
 had been effected, be considered as bringing that survey into 
 the new contract as a " survey on file at the office, " so as to 
 make it a part of the new contract, there being no new 
 application or survey or plan presented or filed at the office.^ 
 Upon the same general principles, a party who accepts a 
 policy "in reference to a survey on file at the office," the 
 by-laws making " survey, plan, and description " " a war- 
 ranty on the part of the insured," is not responsible for ex- 
 ecutoiy representations contained in the application, of 
 which the survey formed a part, it appearing that the appli- 
 cation was never signed by the insured, nor by any one 
 authorized by him so to do. While, having accepted the 
 policy subject to the survey, he will be held responsible for 
 the accuracy of that, yet a survey imports only a plan and 
 description of the present existing state, condition, and 
 mode of use of the property, and does not by fair intend- 
 ment embrace statements or representations of a promissory 
 or executory nature relating to contemplated alterations or 
 improvements in the property, or to the mode in which the 
 premises are to be occupied during the continuance of the 
 policy ; and for these latter, not being shown to have recog- 
 
 1 Clinton v. Hope Ins. Co., 45 N. Y. 454. 
 
 (a) Now, in Kentucky, by a statute apply to an application made out in 
 
 enacted in 1874, all the statements in Kentucky and accepted in New York, 
 
 the application are to be held merely if Kentucky is not made the place of 
 
 representations, and not to avoid the performance. American Credit Indeni- 
 
 policy unless material or fraudulent, nity Co. v. Carrollton F. M. Co., 95 Fed. 
 
 See Germania Ins. Co. v. Rudwig, 80 Kep. Ill, 113. 
 Ky. 223, 234. This statute does not 
 
 VOL. I.— 21 321 
 
§ 161] INSUEANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. Till. 
 
 nized or adopted them, he is not responsihle. ^ But the 
 applicant is presumed to know the contents of the paper he 
 signs, and, when it is permissible to show the contrary, the 
 burden of proof is on him who alleges ignorance.^ 
 
 §160. Qualified Reference. — And where the language of 
 reference is qualified, and does not clearly intend to make 
 the application a part of the policy, the doubt will be con- 
 strued against the company. Thus, " reference being had to 
 the application for a more particular description, and the 
 conditions annexed, as forming a part of the policy," has 
 been held to import the conditions into the contract, but to 
 leave the statements in the application without to stand upon 
 the footing of representations, being referred to merely for 
 the purpose of describing and identifying the property in- 
 sured.^ So if the statements, alleged to be warranties, are 
 declared to be true so far as risk and value are concerned, 
 they are warranties as to these particulars, but representa- 
 tions as to others.* So if the provisions of the policy are con- 
 tradictory, or so framed as to leave room for construction.^ 
 
 § 161. Qualified Reference; Knowledge; Belief. — So, al- 
 though the application be expressly made a part of the pol- 
 icy, its statements will not be regarded as warranties if 
 qualified by other stipulations in either which afford a fair 
 inference that the parties themselves did not so intend them. 
 The by-laws may provide that the application shall be a part 
 of the policy and "a warranty on the part of the insured," 
 and that "the policy shall be void unless the applicant shall 
 make a correct description and statement of all facts in- 
 
 1 Denny v. Conway Stock & Mnt. Fire Ins. Co., 13 Gray (Mass.), 492 ; Ly- 
 coming Ins. Co. V. Jackson, 83 111. 302 ; Albion Lead Works v. Williamsburgh 
 Fire Ins. Co., C. Ct. (Mass. ), 9 Ins. L. J. 435 ; Clinton v. Hope Ins. Co., 45 N. Y. 
 454. 
 
 2 Hartford Life Ins. Co. v. Gray, 80 111. 28 ; h. c. again before the eonrts, 8 
 Ins. L. J. 611 ; Hanson v, Milvvankie, &c. Ins. Co., 45 Wis. 321 ; Andes Ins. Co. 
 V. Shipman, 77 111. 189 ; Chatillon „. Canadian, &c. Ins. Co., 27 U. C. (C. P.) 
 450. 
 
 8 Trench v. Chenango County Mut. Ins. Co., 7 Hill (N. Y.), 122. 
 
 * Howard Fire & Mar. Ins. Co. v. Cornick, 24 111. 455 ; Lindsey v. Union 
 Mut. Ins. Co., 3 R. I. 157 ; Wilson v. Standard Ins. Co., U. 0. (C. P.) 16 Can. 
 L. J. N. s. 32. 
 
 * National Bank v. Insurance Co., 95 U. S. 673. 
 
 322 
 
CH. VIII.] "WAKEANTIES. — APPLICATION. — CONSTEUCTION. [§ 161 
 
 quired for in the application, and also all other facts mate- 
 rial in reference to the insurance, or to the risk ; " yet, if in 
 the application it is agreed that it is " a correct description 
 of the property so far as regards the condition, situation, 
 value, and risk on the same," or so far as is known to the 
 applicant or is material to the risk, and that "the misrepre- 
 sentation or suppression of material facts " shall destroy the 
 applicant's claim for damages, — these latter stipulations, 
 when construed together with the former, being not only 
 unnecessarj', if the assured is to be held to the literal and 
 exact truth of his answers, but inconsistent with holding 
 them to be strict warranties, reduce the answers to the 
 quality of representations. ^ These cases afford a good illus- 
 tration of the over-caution in which insurance companies 
 sometimes indulge, as well as of the great importance, in 
 the construction of the contract of insurance, of carefully 
 comparing the several stipulations with each other. ^ So, 
 too, reference in the proposal for a reinsurance to the state- 
 ments made in the proposal for the original insurance as be- 
 lieved to be true, is no warranty of their truth, but simply a 
 warranty of the belief in their truth. ^ [An acknowledgment 
 at the end of an application warranting the foregoing state- 
 ments " to the best of my knowledge and belief " qualifies the 
 undertaking that the statements are "in all respects true," 
 and that any "untrue or fraudulent statements" should for- 
 feit the insm'ance.* When a policy expressly makes the 
 application a part of it, and all the answers therein war- 
 ranties, it must be held to mean such warranties as are 
 stipulated for in the application, and where the application 
 declares that the answers are true "so far as the same are 
 known and are material, " this clause qualifies the nature of 
 
 1 Elliott V. Hamilton Miit. Ins. Co., 13 Gray (Mass.), 139 ; ^tna Ins. Co. v. 
 Grabe, 6 Minn. 82; Longhurst v. Conway Fire Ins. Co., U. S. Dist. Ct, Iowa, 
 1861, cited in Bates, Dig. Fire Ins. Dee. ; Redman v. Hartford Fire Ins. Co., 47 
 Wis. 89 ; Fitch v. Am. Popular, &c. Ins. Co., 59 N. Y. 557. 
 
 2 See also Watertown Fire Ins. Co. v. Simons (Pa.), 9 Ins. L. J. 597 ; Joyce 
 V. Maine Ins. Co., 45 Me. 168 ; Frishie v. Fayette Mut. Ins. Co,, 27 Pa. St. 325. 
 
 8 Wheelton v. Hardisty, 8 El. & B. 232. 
 
 * [Clapp V. Ma.ss. Benefit Ass., 146 Mass. 519.] 
 
 323 
 
§ 162] IKSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. VIII. 
 
 the warranty, and changes it from an absolute to a qualified 
 one.^ When the applicant states in his application that the 
 same is a just, true, full, &c., exposition so far as the facts 
 are known to him, it is immaterial whether it he considered 
 a warranty or a representation.^ Where the insured declared 
 that he answered to the best of his knowledge and belief, and 
 omitted to state an accident from the results of which he 
 was in bed five weeks, it is for the jury to say whether he 
 wilfully withheld the facts or forgot them, or honestly 
 thought them of too little consequence to be mentioned.^ 
 Where the application is made d part of the policy, and 
 "warranted by the assured to be true in all respects," but 
 this clause is followed by the statement that " if this policy 
 has been obtained by or through any fraud, misrepresenta- 
 tion, or concealment, said policy shall be absolutely null 
 and void," immaterial answers honestly made will not in- 
 validate the contract.* But where a policy contained the 
 clause, "The basis of the contract is said application and 
 obligation, which shall be taken and deemed as a part of 
 this policy, and as a warranty on the part of the assured, 
 and any false or untrue answers and statements material to 
 the hazard of the risk shall render the policy null and void." 
 It was held that the application being made a part of the 
 policy the answers in it became warranties, and if untrue 
 avoided the policy whether material or not.^ This decision 
 is not in accord with the liberal spirit which seizes every 
 indication that the parties meant to exclude forfeitures for 
 immaterial errors, there being no fraud. Honest errors 
 manifestly and undoubtedly immaterial ougJit to be excluded 
 by the law.] 
 
 § 162. Constructive Warranties not favored. — The courts 
 will hold a stipulation, whether contained in the policy or 
 in the application, to be a representation rather than a war- 
 
 1 [Redman v. Hartford Fire Ins. Co., 47 "Wis. 89, 100.] 
 ' 2 [Miilville V. Adams, 19 Fed. Rep. 887, 890.] 
 
 3 [Miller v. Confederation Life Ass. Co., 11 Ont. R. 120 (affirmed, 14 Can. 
 S. C.*R. 330).] 
 
 ^ [Continental Life Ing. Co. «. Rogers, 119 111. 474.] 
 
 ^ [Chrisman v. State Ins. Co., 16 Or. 290, citing many cases.] 
 
 324 
 
CH. VIII.] WARRANTIES. — APPLICATION. — CONSTRUCTION. [§ 162 
 
 ranty, when there is room for doubt, from ambiguity of lan- 
 guage or otherwise.^ Thus, where the policy was made with 
 reference to the conditions annexed, but these were referred 
 to not as conditions precedent,' nor as forming part of the 
 policy, but "for a more particular description," or "to be 
 used and resorted to in order to explain the rights and obli- 
 gations of the parties, in cases not otherwise specially pro- 
 vided for, " the court said these were merely the statements 
 of a collateral document, which both parties agreed to as an 
 authoritative exposition of what they both understood as the 
 facts, on the assumption and truth of which they contracted, 
 and the relations in which they stood to each other. ^ So the 
 words "on condition" do not necessarily import a condition 
 precedent equivalent to a warranty, since the manner and 
 circumstances under which they are used may indicate that 
 such was not the purpose or intent. Thus where the words, 
 "on condition that the applicant take all risk from cotton 
 waste," were used not in the same context with the other 
 conditions, but inserted between the statement of the amount 
 insured and the statement of the locus of the property, it was 
 held that these words so used did not constitute a condition 
 in the legal sense, as there was nothing which the insured 
 
 ^ [The courts lean toward construing answers as representations, not as war- 
 ranties. Schwarzbach v. Protective Union, 25 W. Va. 622, 653 ; Moulor v. 
 Amer. Life Ins. Co., Ill U. S. 3-35. Unless it is shown by the form of the con- 
 tract that the parties intended a giyen statement to he taken as a warranty, it 
 will be construed as a representation, and substantial truth will be enough. 
 Phoenix Life Ins. Co. v. Kaddiu, 120 U. S. 183. The clearest and most unequi- 
 vocal language is necessary to create a warranty. All statements of doubtful 
 meaning will be construed as representations merely. Ala. Gold Life Ins. Co. 
 V. Johnston, 80 Ala. 467 ; Merchants' & Mechanics' Ins. Co. v. Schroeder, 18 
 Brad. 216. And where one part of the policy tends to show an intent to make 
 the answers warranties, and another part treats them as representations, they 
 will be treated as representations, or if warranties at all, at least only to the 
 extent of an honest belief in their truth. Id. See Northwestern Benevolent 
 & Mat. Aid Ass. v. Cain, 21 Brad. 471, for a discussion of cases in which stipu- 
 lations are held representations and not warranties.] 
 
 2 Daniels et al. v. Hudson River Fire Ins. Co., 12 Cush. (Mass.) 416, 426 ; 
 Westfall V. Hudson River Fire Ins. Co., 2 Duer (N. Y. Superior Ct.), 490. See 
 also Delonguemare v. Tradesmen's Ins. Co., 2 Hall (N. Y. Superior Ct.), 589; 
 Trench v. Chenango County Mut. Ins. Co., 7 Hill (N. Y.), 122 ; Wilson v. Con- 
 way Ins. Co., 4 R. I. 141. The early case of Duncan v. Sun Fire Ins. Co., 6 
 Wend. (N. Y.) 488, to the contrary, seems not to have been well considered. 
 
 325 
 
§ 163] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. Till. 
 
 or any other party was to do or omit, by way of performing 
 the supposed condition, and no event was to happen that it 
 might be saved. They amount simply to a declaration on 
 the part of the insurers that they will not pay a loss by fire 
 originating in cotton waste. ^ 
 
 § 163. Constructive Warranties (continued). — Some obser- 
 vations upon this point fell from the court in a case in Ken- 
 tucky, which are worthy of note, and which, though their 
 spirit has in too many instances been departed from, may be 
 considered as illustrative of the present tendency of judicial 
 decision. " Whatever might be the doctrine in case of mar- 
 ine policies," says Marshall, C. J., "in making which the 
 insurer is in general wholly dependent upon the statements 
 of the insured, with regard to the property and the risk, it 
 has been seriously doubted, and, so far as we know, has not 
 been established by judicial decisions, whether the principle 
 of construing every matter of mere description contained in 
 the body of the policy into a warranty should be applied 
 with the same strictness to fire policies, where the misde- 
 scription is most generally the mistake of the underwriter's 
 own surveyor. These warranties being conditions precedent, 
 which must be performed or be true, however immaterial, 
 there is an obvious propriety that they should be contained 
 in the policy, which is to be kept by the insured, not only 
 that he may be enabled to make the proper averments when 
 he comes to declare, but that he may be fully apprised of the 
 effect intended to be given to his statements ; since if they 
 are considered merely as representations, it is sufficient that 
 they were made without fraud, and are substantially true in 
 every point material to the risk. " ^ 
 
 1 Kingsley et al. v. New England Mnt. Fire Ins. Co., 8 Gush. (Mass.) 393. 
 
 ^ The opinion proceeds : " Under these considerations, we are of opinion that 
 it is at least safe to conclude that the reference in this policy to the application 
 and survey as a part thereof, being a part of the clause which vacates the policy 
 if the premises should, at the time of any fire, be occupied for purposes more 
 hazardous than at the date of the instrument, should be understood as merely 
 identifying the description and condition of the property at that time, for the 
 standard of comparison in case of fire ; that no other force or effect was intended 
 to be given to the writings referred to, than as being a description of the nature 
 or purposes of the occupation of the building at that time ; and that as the clause 
 326 
 
OH. VIII.J WAEEANTIES. — APPLICATION. — CONSTKUCTION. [§ 164 
 
 § 164. Constructive "Warranties (continued). — It thus be- 
 comes apparent that, though the statements and stipulations 
 on the part of the insured are inserted, or are referred to, 
 in the policy itself, it often becomes difficult to determine 
 whether they are warranties or representations. They are 
 not necessarily warranties because they appear on the face 
 of the policy. In order to have the force of a warranty, the 
 statement must indeed constitute a part of the contract ; but 
 it by no means follows that every statement which con- 
 stitutes a part of the contract is therefore a warranty. ^ 
 Whether they are so or not will depend upon the form of 
 
 points expressly to tlie sort of variance against which it intends to guard (viz. a 
 more hazardous occupation), and declares expressly the consequences of such 
 variance, these declarations should be regarded as expressing the entire scope and 
 object of the reference, beyond which it cannot be carried without violating the 
 apparent intention of the parties. The entire clause, including the reference to 
 the application and the survey, was intended to secure the insurers from loss by a 
 change in the occupancy of the premises which should increase the risk, and not 
 to bind the other party to the truth of immaterial statements not affecting the 
 risk, nor to preclude him from changes either in the plan or occupation of the 
 premises, unless the hazard should be thereby increased. And the written appli- 
 cation and survey were referred to as fixing the standard of comparison, and not 
 for the purpose of creating or evidencing any covenant or warranty on the part of 
 the insured, as to the condition or occupation of the premises at the time the in- 
 surance was made. The only covenant or warranty on this subject is contained 
 in that part of the policy which describes the building as a mansion-house situ- 
 ated, &e., and states that it was then occupied as a dwelling-honse." Kentucky 
 & Louisville Mut. Ins. Co. i/. Southard, 8 B. Mon. 634, 637. See also Worswick 
 V. Canada, &c. Ins. Co., Ct. of App. Ont., 9 Ins. L. J. 299. And the statute of 
 Massachusetts (Stat. 1864, u. 196, § 1), which is as follows ; "In all insurance 
 against loss by fire hereafter made by companies chaHered nr doing business in 
 this Commonwealth, the conditions of the insurance shall be stated in the body 
 of the policy, and neither the application of the insured nor the by-laws of the 
 company shall be considered as a warranty or part of the contract except so far as 
 they are incorporated in full in the policy, and so appear on its face before the 
 signatures of the oflScers of the company," was but a legislative expression of the 
 judicial tendency at that time. And now the courts seem to have addressed 
 themselves to the question, how far what is expressly stated in the policy, and is 
 made part of the contract, is necessarily a warranty, with the evident disposition 
 to restrict the effect of such an express statement in the policy to material and 
 substantial matters affecting the risk. See as to statutes of other States, post, 
 § 180 a. 
 
 1 [It has been held that a stipulation in a policy to keep all openings of the 
 building closed, is not a warranty because it is not on express penalty of for- 
 feiture, and therefore negligence of the assured must be shown in allowing 
 the openings to be unclosed. Eakin v. Home Ins. Co., 1 Tex. App. Civ. Cas. 
 § 370.] 
 
 327 
 
§ 164] INSUEANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. VIII. 
 
 expression used, the apparent purpose of the insertion, and 
 sometimes upon th^ connection or relation to other parts of 
 the instrument. So, also, if the statements contained in a 
 separate paper are referred to and made part of the contract, 
 yet if the reference appear to be made for a special purpose, 
 and not with a view to import the separate paper into the 
 policy as a part of the contract, the statements will not 
 thereby be transformed from representations into warranties. 
 Warranties can only exist upon»'the fair interpretation and 
 clear intendment of the words of the parties, and, since 
 courts will not favor warranties by construction, they will 
 not be bound when, from the form of the expression used, or 
 other reason, there appears to be no intention to enter into 
 them. Parties will not be held to have entered into the 
 contract of warranty unless they clearly intended it; and if 
 the policy itself does not distinctly identify and refer to the 
 application, and make it a part of the contract, though the 
 application refers to the policy as containing a warranty, or 
 if the reference in the policy to statements contained in an- 
 other paper do not clearly show that the reference is made 
 for the purpose of giving to the statement so referred to the 
 force and effect of warranties, as if they be referred to as 
 "statements" or "representations," or if the reference ap- 
 pear to be made for another purpose, or if the purpose be 
 doubtful, — such reference will not convert the statements 
 into warranties.^ In Houghton v. Manufacturers' Mutual 
 Fire Insurance Company,^ it was held that though the appli- 
 cation was by reference made part of the policy, yet as the 
 statements in the application were referred to as representa- 
 tions, and so denominated in that clause of the policy which 
 referred to them, they were to be treated as such, and to be 
 
 1 Conover t/. Mass. Mut. Life Ins. Co., C. Ct. (Mo.) 3 Dill. 217 ; Campbell 
 V. New England Mut. Life Ins. Co., 98 Mass. 381 ; Miller v. Mut. Benefit Life 
 Ins. Co., 31 Iowa, 216 ; Blood v. Howard Fire Ins. Co., 12 Cush. (Mass.) 472; 
 Towne v. Fitehburg Ins. Co., 7 Allen (Mass.), 51 ; Jefferson Ins. Co. o. Cotlieal, 
 7 Wend. (IST. Y.) 72; Snyder v. Farmers' Ins. & Loan Co., 13 id. 92 ; Wilson v. 
 Conway, 4 R. I. 141 ; Stebbins v. Globe Ins. Co., 2 Hall (N. Y. Superior Ct.), 
 632 ; Kentucky & Louisville Mut. Ins. Co. v. Southard, 8 B. Mon. (Ky. ) 634 ; 
 American Popular Life Ins. Co. v. Day, 39 H". J. (Law) 89. 
 
 2 8 Met. (Mass.) 114. 
 
 328 
 
CH. VIII.] -WAREANTIES. — APPLICATION. — CONSTRUCTION. [§165 
 
 regarded rather as having the legal effect of representations 
 than of warranties, as understood in the law of marine in- 
 surance, though partaking in some measure of the character 
 of both. They are like representations in requiring that the 
 facts stated shall be substantially true and correct, and, so 
 far as they are executory, that they shall be substantially 
 complied with; but not like warranties in requiring an exact 
 and literal compliance. And when it is said that the state- 
 ments in an application referred to as forming a part of the 
 policy are by that reference imported into the policy and be- 
 come warranties, and, like warranties, must be literally true 
 and exactly complied with, it is apparent from the cases just 
 cited, and from many others, that the language of the courts 
 in their assertion of the rule is somewhat more positive and 
 vigorous than is justified by the manner in which the rule, 
 thus strongly and positively asserted, has been illustrated by 
 practical application. In truth, the courts have apparently 
 begun to see that they have gone far enough, under the lead 
 of arbitrary rules, in finding constructive warranties in the 
 immaterial, unguarded, and oftentimes superfluous state- 
 ments contained in the application. ^ 
 
 §165. Constructive Warranties (continued). — The case of 
 Campbell v. New England Mutual Life Insurance Company ^ 
 was cited and approved (after quoting from it largely) in 
 Price V. Phoenix Mutual Life Insurance Company,^ upon the ' 
 point that statements contained in the application will not 
 be held to be warranties, whether referred to and made part 
 of the policy or not, if elsewhere in the contract there can 
 be found reason to suppose that such was not the clear 
 understanding and intent of the parties, and seems to have 
 been regarded, not justly as it seems to us, by the court in 
 the latter case as irreconcilable with prior cases in Mas- 
 
 1 Boardman v. N. H. Mut. Fire Ins. Co., 20 N. H. 557 ; Hough v. City Fire 
 Ins. Co., 29 Conn. 10 ; Billings v. Tolland Co. Mut. Fire Ins. Co., 20 Conn. 139 ; 
 "Watertown Fire Ins. Co. v. Simons (Pa. St.), 9 Ins. L. J. 597 ; Virginia Fire & 
 Mar. Ins. Co. v. Kloeber, 31 Va. 749. 
 
 2 98 Mass. 381. 
 
 8 17 Minn. 497. See also Hurd v. Masonic Mut. Ben. See, 6 Ins. L. J. 792 ; 
 ante, § 160. 
 
 329 
 
§ 165 A] INSUKANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. Till. 
 
 sachusetts. It was, however, justly regarded as very de- 
 cisively indicating the purpose of that court to confine 
 constructive warranties within stricter limits, and beyond 
 question as irreconcilable with numerous dicta both in that 
 court and others, which have often had too much influence 
 in deciding adjudged cases. In the latter case there was no 
 material respect, upon the point under consideration, in 
 which the contract differed from that in the Massachusetts 
 case, the court regarding the fact that in one case the state- 
 ment was made "the basis of the policy," while in the other 
 the policy was declared to be issued " upon the faith " of the 
 statements as immaterial. And independently of the author- 
 ity of that case, as the result of a " painstaking examina- 
 tion," the court arrived at a clear conclusion that what the 
 parties themselves designate as "representations," "declara- 
 tions," or "statements" cannot be converted into warranties 
 by being imported into, and made part of, the contract. ^ 
 In those States where the principles of equity are to a con- 
 siderable extent adopted and enforced in the courts of com- 
 mon law these observations have a special application. 
 
 [§ 165 A. Seaworthiness, implied Warranty. — The mere 
 fact of effecting marine insurance impliedly warrants that 
 the vessel at the commencement of the voyage is seaworthy, 
 i. e., that its materials, construction, captain and crew, 
 tackle, sails, rigging, stores, equipment, and outfit gener- 
 ally are such in quantity and quality as to render it fit to 
 encounter with safety the ordinary perils of the proposed 
 voyage or service. The warranty extends to hidden defects 
 
 1 The court cited with approval the judicious observations of Mr. Phillips, 
 1 Ins. § 638 ; " The cases would have presented few difficulties of construction if 
 the early jurisprudence had been less open to the admission of forfeitures of the 
 policy, and more easily satisfied with a compliance with written stipulations sub- 
 stantially equivalent to a literal one, when such a construction was not inconsist- 
 ent with the express provisions of the contract. The recent jurisprudence tends 
 to greater liberality of construction in favor of maintaining the contract. Such a 
 rule may as well be applied to stipulations and recitals in the policy as to repre- 
 sentations preliminary and collateral to it ; and it is more equitable after the 
 policy has gone into effect, and the underwriter has a right to retain the premium, 
 that the contract should be continued in force as long as its being maintained 
 is consistent with its express provisions, and the underwriter is not thereby 
 prejudiced." 
 
 330 
 
CH. VIII. j WAEEANTIES. — APPLICATION. — CONSTEUCTION. [§ 166 
 
 as well as those that are known, and the burden of proof is 
 on the insured. ^ " Seaworthy " means fit to resist ordinary 
 perils of voyage.^ Payment of loss is an admission of sea- 
 worthiness.^ Where a vessel puts back into port by reason 
 of a storm and insures without speaking of the storm, the 
 burden of proving seaworthiness is shifted to the assured.^] 
 
 § 166. Ambiguous and Unans'wered Questions ; Superfluous 
 Answers. — ■ Where the language of the questions contained 
 in the application is ambiguous or indefinite, or calls for 
 answers which may be to some extent a matter of opinion, 
 so as to admit of different answers, if the insured answer in 
 good faith in some proper sense, and when the application 
 is unintentionally defective in a matter known to the in- 
 surers or their agent, the insured will be excused though he 
 do not give the desired answer.^ And though the insured 
 do not answer certain questions at all, and give a negative 
 answer to a general question as to his knowledge of any 
 other circumstances affecting the risk, such answer cannot 
 be made applicable to another question in the same applica- 
 tion, which is unanswered, but which if negatived would be 
 untruly answered ; nor will the failure to answer at all viti- 
 ate the policy. The issuing of a policy on an application 
 which without fraud contains no answer to certain questions 
 is a waiver of answer to those questions, even though in 
 answer to another question the insured may have said there 
 were '' no other circumstances affecting the risk ; " and to 
 avoid the policy in such cases the insurers must prove un- 
 true statements other than those inquired about.® If the 
 
 1 [Rogers v. Sun Mut. Ins. Co., 46 N. Y. Super. 65.] 
 
 2 [The Orient, 16 Fed. Rep. 916, 5th Cir. La., 1883.] 
 
 2 [Standard Sugar Refinery v. The Centennial, 2 Fed. Rep. 409, Dist. of Mass. 
 1880.] 
 
 4 [Batchelder w. Ins. Co. of N. A., 30 Fed. Rep. 459 (Pa.), 1887.] 
 
 s Wilson V. Hampden Fire Ins. Co., 4 R. I. 159 ; Camphell v. Merchants' & 
 Farmers' Mut. Fire Ins. Co., 37 N. H. 35 ; Cumberland Valley Mut. Prot. Co. v. 
 Schell, 29 Pa. St. 31. And see post, §§ 193, 202, 210, 296 ; World Mut. Life Ins. 
 Co. c. Sohultz, 73 111. 586 ; Illinois Mason's Soc. v. Winthrop, 85 111. 537. 
 
 ^ Liberty Hall Ass. v. Housatonic Mut. Fire Ins. Co., 7 Gray (Mass.), 261 ; 
 Newman v. Springfield, &c. Ins. Co., 17 Minn. 123; Lorillard Fire Ins. Co. v. 
 McCulloch, 21 Ohio St. 176. In Haley o. Dorchester Mut. Fire Ins. Co., 12 
 Gray (Mass.), 545, the policy provided that unanswered questions should be con- 
 
 331 
 
§ 167] insurance: fiee, life, accident, etc. [ch. viii. 
 
 company accepts an indefinite or insuflScient answer, it will 
 be construed liberally in favor of the insured; as where a 
 question as to how the premises are occupied is answered, 
 "dwelling, &c.," this will be held as notice that a saloon is 
 kept there. 1 If the answer be responsive and true in part, 
 but irresponsive and untrue in part, this last will be only a 
 representation. It must be material in order to avoid the 
 policy. 2 If the interrogatory be modified by the phrase, "so 
 far as you know," this holds the interrogated party not to 
 answer absolutely, but to the best of his knowledge and 
 belief.^ If the answer be superfluous and immaterial, it has 
 no binding force.* If a question is not answered, there is 
 no warranty that there is nothing to answer; and where 
 there is but a partial answer, the warranty cannot be ex- 
 tended beyond what is answered. Warranty must be based 
 upon the affirmation of something not true.^ 
 
 § 167. Application not essential. — The recital in the pol- 
 icy that it is based upon an application does not make the 
 application essential. A policy so stating, but issued with- 
 out any written application, is as valid as if issued upon the 
 written application;^ but its references to the application 
 have no force or effect.^ When there is no application, the 
 
 strued as if answered favorably to the insurers, on the question of risk. Bard- 
 well V. Conway Mut. Fire lus. Co., 122 Mass. 90 ; American Ins. Co. v. Paul 
 (Pa.), 9 Ins. L. J. ,569, 571; Bennett v. North British, &c. Ins. Co. (N. Y.), id. 
 585 ; Dayton Ins. Co. v. Kelly, 24 Ohio St. 345 ; Dohn v. Farmers', &c. Ins. Co., 
 5 Lans. (N. Y.) 275 ; Forbes v. Edinburgh Life Ins. Co., 10 Ct. of Session Cas. 
 (Scotch) 451. This case holds that if the failure to answer involves a deliberate 
 concealment of a fact known to be material, it will be fatal to the right to re- 
 cover. See also Rowe v. London, &c., and Davis v. Scottish, &o., cited in next 
 note; post, §§ 176, 198. 
 
 1 Gouinlock v. Manuf. & Mer. Mut. Fire Ins. Co., 43 U. C. (Q. B.) 563 ; 
 Rowe V. London, &c. Ins. Co., 12 U. C. (Ch.) 311 ; Davis o. Scottish Prov. Ins. 
 Co., 16 U. C. (C. P.) 176. 
 
 2 Buell V. Conn. Mut. Life Ins. Co., C. Ct. (Ohio) 5 Ins. L. J. 274 ; post, § 170. 
 ^ .ffltna Ins. Co. v, Grube, 6 Minn. 82 ; Cheever v. Union, &c. Life Ins. Co. 
 
 (Superior Court, Cincinnati), 5 Ins. L. J. 159. 
 
 4 BueU V. Conn. Mut. Life Ins. Co., C. Ct. (Ohio) ; 5 Big. Life & Ace. Ins. 
 Cas. 473. 
 
 6 Dilleber v. Home Life Ins. Co., 69 N. Y. 256. 
 
 6 Blake v. Exch. Mut. Ins. Co., 12 Gray (Mass."), 265. 
 
 7 Newman v. Springfield Fire & Mar. Ins. Co., 17 Minn. 123 ; Commonwealth 
 V. Hide & Leather Ins. Co., 112 Mass. 136. 
 
 332 
 
CH. VIII.] WARKANTIES. — APPLICATION. — CONSTRUCTION. [§168 
 
 insured is bound by the conditions of the policy which he 
 accepts and holds without objection. That he never read it 
 is not the fault of the insurers.^ 
 
 § 168. Application may limit and control the Language of 
 the Policy. ^ — If the policy provides that if any statement 
 contained in the declaration (which is made part thereof) be 
 untrue, the policy shall be void, and the declaration itself 
 proceeds to say that the particulars "are correct and true 
 throughout," and if it shall hereafter appear that "any 
 fraudulent concealment or designedly untrue statement be 
 contained therein," i. e. in the above-written particulars, the 
 policy shall be void, — not every untrue statement, but only 
 a designedly untrue statement will avoid the policy. The 
 two clauses, parts of the same instrument, must be taken 
 together, and if any doubt arises as to their construction, 
 that doubt must be construed against the insurers who pre- 
 pared the instrument.^ 
 
 1 Swan V. "Watertown Fire Ins. Co. (Pa.), 10 Ins. L. J. 392. 
 
 2 [See § 161.] 
 
 ' Fowkes V. Manchester & London Life Ass. & Loan Assoc., 3 B. & S. (Q. B. ) 
 917. "The declaration," says Cockburn, C. J., in his opinion, "is 'that the 
 •particulars given in answer to the question propounded by the company are cor- 
 rect and true throughout ; ' that the proposal and declaration shall be the basis 
 of the contract. ' And if it shall hereafter appear that any fraudulent conceal- 
 ment or designedly untrue statement be contained therein, then all the moneys 
 which shall have been paid on account of the assurance made in consequence 
 hereof shall be forfeited, and the policy granted in respect of such assurance shall 
 be absolutely null and void. ' It is sought, on the part of the defendants, to con- 
 strue this declaration in the disjunctive, so that not only if any fraudulent con- 
 cealment or designedly untrue statement is contained in the answers to the 
 question the policy is to be void and the premiums forfeited, but that if any 
 incorrect or untrue statement, however honestly and sincerely made in the belief 
 of its truth, occur in those answers, the same consequences are to follow. The 
 first observation in answer is that, upon that construction, the clause which 
 relates to fraudulent concealment, and designedly untrue statement, is super- 
 fluous and unnecessary, because it is only a reiteration in extenso of that which 
 is involved in the former clause, which requires the particulars to be correct and 
 true. In construing an instrument prepared by the company, and submitted by 
 them to the party efifecting the insurance for his signature, it ought to be read 
 most strongly contra proferentes ; and inasmuch as, upon the construction con- 
 tended for, the latter clause is wholly unnecessarj', I think we ought to construe 
 that clause as merely explanatory of what is meant by ' correct ' and ' true ' in the 
 former clause. A layman about to effect an insurance would read such a docu- 
 ment, when submitted to him for his signature, in the following sense: 'I agree 
 that my answers to the questions propounded to me by the company shall be the 
 
 333 
 
§ 169] INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VIII. 
 
 § 169. Limitation of Policy by Application (continuecf). — 
 In further illustration of this point may be cited the case of 
 Washington Life Insurance Company v. Haney,^ where it 
 
 basis of the contract between us ; that is to say, if I am guilty of any fraudulent 
 concealment, or designedly untrue statement in those answers, the policy shall be 
 null and void, and not only that, but the premiums shall be forfeited.' Then it 
 is said that if we turn from the declaration to the policy, we shall find that the 
 language of the policy varies from the declaration ; and it is argued that the 
 policy is the true statement of the contrac?between the parties. But the decla- 
 ration is declared to be as much a part of the policy as if it had been set forth 
 therein; and the language of the policy is, that if any statement in the declara- 
 tion is ' untrue,' the policy shall be void, and all moneys paid in respect thereof 
 be forfeited. To ascertain the meaning of the words, 'if any statement in the 
 declaration is untrue,' we must refer to the declaration itself, which is made the 
 basis of the contract ; and reading those words with the light thrown upon them 
 by the language in the declaration, I think the true construction of the language 
 of the defendants is, that, in order to avoid the policy, the statement must be 
 designedly untrue; that is, untrue to the knowledge of the assured." See also 
 Sinclair v. Phoenix, &c. Ins. Co., 0. Ct. (Minn.), 9 Ins. L. J. 523. 
 
 1 10 Kansas, 525. The opinion of the court upon this point was as follows: 
 "The policy was issued and accepted by the assured upon the following amongst 
 other express conditions and agreements, to wit, ' If any of the statements or 
 declarations made in the application for this policy, upon the faith of which this 
 policy is issued, shall be found in any respect untrue.' . . . 'Then in every 
 such case the said company shall not be liable for the payment of the sum 
 insured, or any part thereof, and this policy shall be null and void.' We do not 
 understand the clause, ' upon the faith of Which this policy is issued,' as limiting 
 this condition to a portion of the application, or any particular statements 
 therein. It does not mean to imply that there are certain statements which 
 must be true because the policy is based upon them, while others are immaterial. 
 It means that the policy is issued upon the faith of the whole application, with 
 all its statements and declarations, and that if any of them are untrue the policy 
 is avoided. We must therefore consider the application as a whole, and each 
 party has a right to have it so considered. If the application propounds certain 
 questions and indicates in what manner they must be answered, it is enough that 
 they are answered in that manner, and when the policy is based upon the state- 
 ments and declarations of the application, it is based upon them made in the 
 manner and under the rules laid down by the company in the application. If 
 we turn now to the application we find under the head ' Instructions in filling up 
 this application,' ' First, answer each of the questions on the first page to the 
 best of your knowledge and belief, briefly but explicitly;' and at the close of the 
 questions and answers of the applicant, and just before her signature, is the fol- 
 lowing: 'It is hereby declared that the above are fair and true answers to the 
 foregoing questions, and it is acknowledged and agreed by the undersigned that 
 the above statements shall form the basis of the contract for insurance, and also 
 that any wilfully untrue or fraudulent answers, any suppression of facts in regard 
 to the party's health, or neglect to pay the premium on or before the day it 
 becomes due, will render the policy null and void, and forfeit all payments made 
 thereon.' While the policy for its validity requires truthfulness in the statements 
 
 334 
 
CH. Tin.] WARRANTIES.— APPLICATION.— CONSTRUCTION. [§ 170 
 
 was held to be a presumption of law that an insurance pol- 
 icy is based upon the application. The two papers must be 
 construed together. And the use of a word, "residence," 
 for instance, in the application, referring clearly to a per- 
 manent abode, will not be held elsewhere in the policy to 
 mean a temporary sojourn. ^ [When an order showed the 
 "intention of the plaintiffs to have been to insure" goods in 
 a different way from that which the terms of the policy 
 would imply, it has been held that it "controlled and ex- 
 plained the expressions of the formal policy," and that the 
 mistake of the clerk therein should be rectified according 
 thereto. ^] 
 
 § 170. No Implied Warranty as to Matter immaterial to the 
 Risk. — While it is true that if a fact be in plain terms 
 expressly warranted, its materiality to the risk is of no im- 
 portance, and it becomes a condition precedent, although 
 entirely immaterial ; yet where a circumstance is sought to 
 be included by implication in the warranty, it is not to be 
 supposed that the parties intended to include it, unless it be 
 manifestly material to the risk.^ In this way the question 
 _of materiality may sometimes arise, even under a warranty, 
 or rather as aiding in determining the question whether 
 what appears to be, and in point of form is, a warranty, is 
 so in point of fact. Thus in Anderson v. Fitzgerald,* where 
 the policy was to be void " if any false statement in or about 
 the effecting or obtaining that insurance " were made, it was 
 said by Parke, B. : " It is true that the materiality of these 
 statements may be sometimes evidence of the purpose with 
 which they were made, and may tend to show that they were 
 
 of the application, it is enough if they are true according to the degree and con- 
 ditions of truthfulness required by the application. This is all the parties want 
 when they speak of truthfulness in the policy; to presume otherwise, and sup- 
 pose that the company meant one degree of truthfulness in the application, and 
 another in the policy, is to impute a dishonesty which the law will never pre- 
 sume, and, if shown to exist, will never sustain." 
 
 1 Mobile Life Ins. Co. v. Walker, 58 Ala. 290. 
 
 2 [Norris v. lus, Co. of North America, 3 Yeates (Pa.), 84, 91 ] 
 
 8 O'Niel V. Buffalo Fire Ins. Co., 3 Comst. (N.Y.) 122; Swick v. Home Life 
 Ins. Co., 2 Dill. C. Ct. (Mo.) 160; Appleton Iron Co. v. British Am. Ass. Co., 
 46 Wis. 23. 
 
 * 4 H. of L. Cas. 484. 
 
 335 
 
§ 170] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. VIII. 
 
 made with the object of obtaining the policy, because if im- 
 material they would not be likely to effect it ; but the mate- 
 riality is not a necessary condition to bring them within the 
 scope of the proviso, if it be shown that the statements were 
 made in obtaining the policy and for the purpose of effecting 
 it." A warranty will in no case be extended by construc- 
 tion, nor will it be made to include anything not clearly 
 within its terms. ^ And it will be construed strictly against 
 those for whose benefit it is made, when it imposes burdens 
 upon others; 2 and so, if possible, as to avoid a forfeiture. ^ 
 When, however, the truth of all the statements in the appli- 
 cation is made a condition precedent, the reciting a portion 
 of them only in the policy will not have the effect to reduce 
 those not recited from the quality of warranties to that of 
 representations.* And where a policy insures the holder 
 against death or injury by 'violent and accidental means 
 within the meaning of this contract and conditions,' and 
 the conditions annexed specify certain modes of injury or 
 death which the policy did not cover, this exclusion does 
 not operate to enlarge the scope of the words "violent and 
 accidental means," so as to include all modes of injury and 
 death by violence and accident not embraced in the exclu- 
 
 1 Blood V. Howard Fire Ins. Co., 12 Cusli. (Mass.) 472: Shepherd v. Union 
 Mut. Fire Ins. Co., 38 N. H. 232 ; Rann v. Home Ins. Co., 59 N. Y. 387. 
 
 2 Gatlin v. Springfield Fire Ins. Co., 1 Sum. (U. S. C. C.) 434. 
 
 ' Kipley v. jEtna Ins. Co., 29 Barb. (N. Y.) 552. [The courts will save a 
 forfeiture if possible fairly to do so, and if dividends were earned by the company 
 before default and are applicable to the policy, equity will compel their applica- 
 tion to satisfy premium notes. Franklin Life Ins. Co. t'. Wallace, 93 Ind. 7. 
 Every condition to defeat any interest must be construed strictly against its 
 maker. Lawe v. Hyde, 39 Wis. 345, 360. And will not be enforced unless 
 there is the clearest evidence that this is the meaning of the contract. Schunck 
 V. Gegenseitiger Witten nnd Waisen Fond, 44 Wis. 369, 372 ; Livingston v. 
 Stickles, 7 Hill, 253, 256 ; Carson v. Jersey City Ins. Co., 43 N. J. 300 ; Bonen- 
 faut V. Insurance Co., 76 Mich. 653. Only when no other construction is permis- 
 sible by the language, will a forfeiture result. Darrow v. F. F. Soc, 116 N. Y. 
 537. An especial strictness against the company will be observed in construing 
 clauses which restrict its liability, excuse payment of a lona fide loss, or work 
 any forfeiture. Germania Fire Ins. Co. i.-. Frazier, 22 Brad. 327. A forfeiture 
 because a member neglects his Hosier duties will be very carefully scrutinized 
 and rejected if possible. Matt i/. Roman Catholic Mut. Prot. Soc, 70 Iowa, 
 455.] 
 
 ^ Sceales v. Scanlan, 6 Irish (Law), 367, by a divided opinion. 
 
 336 
 
OH. YIII.J WAKEANTIES. — APPLICATION. — CONSTRUCTION". [§ 171 
 
 sion, or any modes not fairly within the meaning of the 
 words. 1 But statements and stipulations not required by 
 the conditions oE the contract, though the writing contain- 
 ing them is by the conditions made part of the policy, do 
 not constitute warranties. They are not necessary, but vol- 
 untary statements and stipulations, and if material have the 
 force of representations.^ 
 
 § 171. 'Warranties and Representations construed strictly as 
 to their Scope. — Warranties and representations will also 
 be construed strictly as to their scope. Thus a warranty 
 that a room is warmed by a stove, and that the pipe is well 
 secured, is only a warranty that it is so warmed when 
 warmed at all, and that the pipe is so secured when the 
 stove is used, but not at other times.'' So a warranty that 
 the water-tanks shall be at all times well supplied with 
 water, as applicable to a building in process of construction, 
 means that the tanks shall be built and filled with reason- 
 able diligence in the course of construction.* So a war- 
 ranty of force-pumps, ready for use, includes a warranty 
 that there is some power to work the pumps ; but it is not 
 a warranty that that power is the best, or the usual, or of 
 any particular kind; nor that the pumps shall not be dis- 
 abled by the fire, or shall* always be in order. ^ And a 
 representation that there is a force-pump does not by impli- 
 cation include hose. The truth of the representation is 
 completely established by the fact that there is a force- 
 pump, and whether hose or buckets are the means by which 
 the water delivered by the pump is made available in case 
 of fire, not being inquired about, is immaterial. ^ So a war- 
 ranty that the property belongs to the insured is not a war- 
 ranty of any particular title, or that it is unincumbered.^ 
 
 ^ Southard v. Railway Passengers' Assurance Co., 34 Conn. 574. 
 
 2 Protection Ins. Co. v. Harmer, 2 Ohio St. 452 ; ante, § 166. 
 
 8 Loud V. Citizens' Mut. Ins. Co., 2 Gray (Mass.), 221. 
 
 * Gloucester Manuf. Co. v. Howard Fire Ins. Co., 5 Gray (Mass.), 497. 
 
 5 Sayles v. North-Western Ins. Co., 2 Curtis C. Ct. (Mass.) 612 ; Albion Lead 
 Works V. Williamsburg, &c. Ins. Co., C. Ct. (Mass.), 2 Fed. Eep. 479. 
 
 6 Peoria Mar. & Fire Ins. Co, v. Lewis, 18 111. 553 ; Gilliat v. Pawtucket 
 Mut. Fire Ins. Co. , 8 R. I. 282. And see post, §§ 198, 199. 
 
 '• Mut. Ins. Co. u. Deale, 18 Md. 26'; post, §§ 174-176. 
 
 VOL.1. — 22 g3'7 
 
§172] INSUEANCE: FIEE, LIFE, ACCIDENT, ETC. [CH. VIII. 
 
 § 172. Contracts of Insurance interpreted by the same Rules 
 as other Contracts. — It may be well to observe here, because 
 there are unconsidered suggestions to the contrary, that the 
 principles of interpretation applicable to contracts of insur- 
 ance are the same as those which obtain in the case of other 
 contracts. It is likewise to be observed, that while marine 
 insurance was the earliest, and, till within a comparatively 
 recent period, the almost exclusive form under which this 
 contract came under the observation of the courts, and upon 
 this form is based substantially that body of principles 
 known as the Law of Insurance, all the other forms of in- 
 surance are the outgrowth of this earliest and primitive 
 form, and are but new adaptations and applications thence 
 elaborated, subject only to such modifications as were re- 
 quired by the peculiarities of the new risks assumed, and 
 the new interests to be protected. The doctrines of marine 
 insurance are therefore always to be resorted to and applied 
 in the elucidation of all other kinds, unless the express pro- 
 visions of the contract, or circumstances peculiar to the 
 subject-matter, render them inapplicable, or require their 
 qualification in order to accomplish the object for which the 
 contract is entered into. When it is said that a contract of 
 insurance is a contract uberrima fidei, this only means that 
 the good faith, which is the basis of all contracts, is more 
 especially required in that species of contract in which one 
 of the parties is necessarily less acquainted with the details 
 of the subject of the contract than the other. ^ Its language, 
 says Nelson, C. J.,^ "is to receive a reasonable interpreta- 
 tion ; its intent and substance, as derived from the language 
 used, should be regarded. There is no more reason for 
 claiming a strict literal compliance with its terms than in 
 ordinary contracts. Full legal effect should always be given 
 to it for the purpose of guarding the company against fraud 
 and imposture. Beyond this, we would be sacrificing sub- 
 
 1 Lord Abinger, C. B., in Cornfoot v. Fowke, 6 Mees. & Wels. 358, in reply to 
 the suggestion of Sir Frederic Tbesiger, arguendo, on a question of representa- 
 tion that a greater degree of good faith is required in contracts of insurance 
 than in others. 
 
 2 Turley v. North Am. Fire Ins. Co., 25 Wend. 374. 
 
 338 
 
CH. VIII.] WAEEANTIES.— APPLICATION. — CONSTEUCTION. [§ 172 A 
 
 stance to form, — following words rather than ideas." In- 
 deed, a moment's reflection will render it apparent that 
 there is nothing in an agreement about insurance intrinsi- 
 cally more sacred or inviolable than in an agreement about 
 any other subject-matter. It differs only from others in the 
 fact that, from the nature of the contract of insurance and 
 the relations of the parties, occasions therein more fre» 
 quently arise where the rights of the respective parties de- 
 pend upon the exercise of good faith. And while the older 
 cases had oftener to deal with the want of good faith on the 
 part of the insured, the modern ones are full of examples 
 where the courts have been compelled to a liberal applica- 
 tion of the doctrines of waiver and estoppel to protect the 
 insured against defences founded on a want of good faith on 
 the part of the insurer.^ 
 
 [§ 172 A. Construction in General. — Contracts of insur- 
 ance are to be construed accurately and neither liberally nor 
 severely, but without favor to either party, ^ to arrive at the 
 true intent of the parties, elucidating each part of the in- 
 strument by every other part. In construing a policy the 
 court should give it a fair and liberal interpretation, such 
 as, under all the circumstances of the case, appears most 
 consonant to the intention of the parties at the time the 
 contract was made.^ The understanding of one of the par- 
 ties, alone, cannot determine the meaning of the contract.^ 
 Conversations between the parties at the time of making a 
 contract, are competent evidence to show the meaning in- 
 tended to be applied to a certain ambiguous term therein.^ 
 Contemporaneous insurance literature, and all surrounding 
 circumstances, will be considered in determining what the 
 
 1 And see post, §§ 209-212, 296. 
 
 2 [Merchants' Ins. Co. v. DaTenport, 17 Grat. 138, 145.] 
 
 ^ [Riggin V. Patapsco Ins. Co., 7 H. & J. (Md.) 279, 287 ; Mauger v. Holyoke 
 Mut. Fire Ins. Co., 1 Holmes (U. S.), 287, 289. Facts and circumstances 
 existing when the insurance was eflfected, but not stated in the policy, may be 
 shown to prove the intention of the parties in this case as to the goods covered 
 by the policy.] 
 
 ■i [Montgomery v. Firemen's Ins. Co., 16 B. Mon. (Ky.) 427, 441.] 
 
 5 [Gray v. Harper, 1 Story (U. S.), 574, 588.] 
 
 339 
 
§ 172 A] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VIII. 
 
 parties intended by the "reserve dividend plan." ^ If in the 
 general form of policies there are conditions not applicable 
 to the particular risk, they will be ignored. When the rea- 
 son of a condition in the general printed form does not exist 
 in a specific case, the condition becomes meaningless and 
 inoperative.^ A clause of exception governs the general 
 clause to which it applies.^ When the words of a promise 
 are doubtful they are to be construed in the sense in which 
 the promisor knew or thought the promisee would under- 
 stand them.* And if the intention of the parties is doubt- 
 ful, the construction is to be in favor of the promisee.^ In 
 an action on a policy which said "East India Islands," parol 
 evidence was admitted to show that the locality, though 
 geographically not one of these, was nevertheless so con- 
 sidered by common repute.® And the same has been held 
 as to a part of the Baltic Sea.'^ Proof of the course of busi- 
 ness and dealings between the parties is admissible when 
 the policy is ambiguous.^ In an action on a policy of in- 
 surance on a ship, with the words "lost or not lost," and 
 with the subsequent warranty in the policy by the plaintiff, 
 "Well on Dec. 9, 1874," where it appeared that the pol- 
 icy was signed at 3 p.m. on the day mentioned, and that the 
 ship was lost at 8 a.m. of the same day, it was held that the 
 defendants were liable, as the warranty covered no especial 
 part of the day.^ The clause "lost or not lost" covered all 
 days prior to Dec. 9, while the warranty was satisfied if on 
 any part of Dec. 9th the ship was safe. It was not a war- 
 ranty that the vessel was safe at the moment the policy was 
 subscribed, but only on that day, and as parts of a day will 
 not be reckoned, safety during the first hours of the day is 
 
 1 [Fuller V. Metropolitan Lite Ins. Co., 37 Fed. Eep. 163 (N. Y.), 1889.] 
 
 2 [Grandin v. Insurance Co., 107 Pa. St. 26.] 
 
 8 [Mitchell, &c. Co. v. Imperial Fire Ins. Co., 17 Mo. App. 627.] 
 4 [Barlow v. Scott, 24 N. Y. 40, 44.] 
 
 6 [Marvin v. Stone, 2 Cowen, 761, 806 (covenant) ; Doe v. Uixon, 9 East, 
 15, 16 (grant).] 
 
 8 [Robertson v. Money, Ry. & Mood. 75, 77.] 
 ' [Uhde V. Walters, 3 Campb. 16.] 
 
 8 [Fabbri v. Fhcenix Ins. Co., 55 N. Y. 129, 183.] 
 
 9 [Blackhurst t'. Cockrell, 3 T. E. 360.] 
 
 340 
 
CH. VIII.] WAEKANTIES. — APPLICATION. — CONSTEUCTION. [§ 173 
 
 sufficient. Construction unless there be ambiguity is for 
 the court alone. ^ The question whether a word is "six" or 
 "oix " in a description of premises, is for the court, not the 
 jury. 2 Inspection showed clearly that the word was six. 
 When the subjects of insurance are separately stated and 
 separately insured, though in the same policy, a false war- 
 ranty as to one does not avoid the policy as to the other. •^] 
 
 § 173. Ho'VT' far Proof of Usage is admissible in Aid of In- 
 terpretation.* — ^In the early history of insurance many terms 
 and phrases were used of doubtful meaning which required 
 a reference to usage for the purpose of explanation. And 
 so numerous were these doubtful terms and phrases, and so 
 frequent was the reference to custom and usage to explain 
 them, that so great a judge as Mr. Justice Buller is reported 
 to have said that "in policies of insurance in particular a 
 great latitude of construction as to usage has been admitted. 
 By usage places come within the policy which are not ex- 
 pressed in words. Usage not only explains but even con- 
 trols the policy. " ^ " In all matters of trade, usage is a 
 sacred thing." ^ But if that learned judge meant anything 
 more by these expressions than that great frequency of re- 
 sort to usage for the purpose of explaining ambiguities is 
 had, he was doubtless, by some peculiarity of the cases under 
 consideration, betrayed into unguarded expressions, not apt 
 to fall from him, and not warranted either by the earlier or 
 later decisions. Nevertheless, the authority of so great a 
 man gave vogue to the impression that in this respect con- 
 tracts of insurance were in some sort excepted out of the 
 general rules applicable to other contracts. But nothing is 
 better settled than that this impression is without founda- 
 tion. The same rule of construction which applies to other 
 instruments applies also to these. They are to be construed 
 
 1 [Hutchison v. Bowker, 5 M. & W. 535, 540.] 
 
 2 [Lapeer Ins. Co. v. Doyle, 30 Mich. 150, 160.] 
 
 3 [Holmes h. Drew, 16 Hun, 491, 492 ; Koontz v. Hannibal Ins. Co., 42 
 Mo. 126, 131.] 
 
 ' [See §§ 179, 180.] 
 
 " Long V. Allen, cited in Park, 390. 
 
 8 Newman v. Cazalet, also cited in Park, 414, note. 
 
 341 
 
§ 174] INSUKANCE: FIRE, LIFE, ACCIDENT, ETC. [CH. VIII. 
 
 according to the sense and meaning of the terms used; and 
 if these are clear and unambiguous, the courts will not ad- 
 mit parol evidence to contradict, vary, or explain them. 
 Their terms are to be understood in their plain, ordinary, 
 and popular sense, unless they have generally, in respect to 
 the subject-matter, as by the known usage of trade or the 
 like, acquired a peculiar sense, distinct from the popular 
 sense, rendering it necessary to resort to extrinsic proof 
 in order to determine in which sense they are used, and 
 so to explain their ambiguity, or unless the context evi- 
 dently points out that they must, in the particular in- 
 stance, and in order to effectuate the immediate intention 
 of the parties, be understood in some special and peculiar 
 sense. ^ 
 
 § 174. The Contract -ro-ill be construed liberally in Tavor of 
 the Object to be accomplished. — It was early held, with 
 special reference to contracts of marine insurance, that the 
 sfrictum jus or apex juris is not to be laid hold on, but they 
 are to be construed largely for the benefit of trade and for 
 the insured,^ — a rule which, under different forms of ex- 
 pression, has obtained with reference to all kinds of insur- 
 ance to the present day. Having indemnity for its object, 
 the contract is to be construed liberally to that end, and it 
 is presumably the intention of the insurer that the insured 
 shall understand that in case 'of loss he is to be protected 
 to the full extent which any fair interpretation will give.^ 
 The spirit of the rule is, that where two interpretations 
 equally fair may be given, that which gives the greater in- 
 demnity shall prevail. And to the same spirit is due the 
 rule that conditions and provisos will be strictly construed 
 against the insurers because they have for their object to 
 limit the scope and defeat the purpose of the principal con- 
 tract;* and apparently contradictory clauses will be so con- 
 
 1 Per Lord Ellenborough, Robertson v. French, 4 East, 1.30, 135. And see 
 post, § 179. 
 
 2 Tierney v. Etherington, cited 1 Burr. 348 ; see § 175. 
 
 3 Dow V. Hope Ins. Co., 1 Hall (N. Y. Superior Ct.), 166, 174 ; post, §§ 330, 
 440. 
 
 ^ Hoffman v. .ffitna Ins. Co., 32 N. Y. 405. 
 
 342 
 
OH. VIII.] WARRANTIES. — APPLICATION. — CONSTRUCTION. [§ 175 
 
 strued if possible as to reconcile them with each other, and 
 to give to each its due force in furtherance of the main pur- 
 pose of the contract.^ Of course the different provisions of 
 the contract must be so construed, if possible, as to give 
 effect to each. If, therefore, the natural and obvious inter- 
 pretation of one would render it nugatory, or bring it into 
 conflict with another, while a different interpretation would 
 reconcile the two, and give force and effect to both, the lat- 
 ter is to be adopted. So if the natural interpretation, look- 
 ing to the other provisions of the contract, and to its general 
 object and scope, would lead to an absurd or unreasonable 
 conclusion, as such a result cannot be presumed to have been 
 within the intention of the parties, such interpretation must 
 be abandoned, and that adopted which will be more consis- 
 tent with reason and probability. ^ And so the acts of the 
 insurer will be so interpreted as to give form and effect to 
 the policy, rather than the contrary; as where the insurers 
 issue an open policy with blanks for indorsement of addi- 
 tional insurance, and receipts to be signed by the agent, the 
 indorsements made and agreed on by the agent will be held 
 valid, though the insurer did not intend he should complete 
 a contract without reference to them, and though the policy 
 provided for such "risks as may be agreed on, as per in- 
 dorsement hereon, accepted by the company. "^ The same 
 rule will apply where, by its by-laws, the insurers have con- 
 strued a provision of their charter. Though it may be erro- 
 neous, if acted upon by others, as against them the insurers 
 cannot be allowed to question its correctness.* 
 
 § 175. Language taken most strongly against those for whose 
 Benefit it is. — No rule, in the interpretation of a policy, is 
 more fully established, or more imperative and controlling, 
 than that which declares that, in all cases, it must be liber- 
 ally construed in favor of the insured, so as not to defeat 
 without a plain necessity his claim to the indemnity, which, 
 
 1 Merchants' Ins. Co. v. Edmond, 17 Grat. (Va.j 138. 
 
 2 See also post, § 247. 
 
 * Wass V. Maine Mut. Ins. Co., 61 Me. 537. 
 
 * Kentucky Mut. Life Ins. Co. v. Calvert (Ky.), 9 Ina. L. J. 529. 
 
 34.3 
 
§175] INSUIUNCE: FIRE, LIFE, ACCIDENT, ETC. [CH. YIII. 
 
 in making -the insurance, it was his object to secure.^ (a) 
 When the words are, without violence, susceptible of two 
 interpretations, that which will sustain his claim and cover 
 the loss must, in preference, be adopted. ^ While courts will 
 extend all reasonable protection to insurers, by allowing 
 them to hedge themselves about by conditions intended to 
 guard against fraud, carelessness, want of interest, and the 
 like, they will nevertheless enforce the salutary rule of con- 
 struction, that as the language jof the conditions is theirs, 
 and it is therefore in their power to provide for every proper 
 case, it is to be construed most favorably to the insured.^ 
 Thus, if a stipulation be ambiguous, and no light can be 
 
 1 [All conditions will be liberally construed in favor of the assured. Ala. 
 Gold Life Ins. Co. v. Johnston, 80 Ala. 467 ; Piedmont, &c. L. Ins. Co. D.Young, 
 58 Ala. 476 ; Felly v. Royal Exch. Ass. Co., 1 Burrows, 341, 349 ; ATestern 
 Ins. Co. V. Cropper, 32 Pa. St. 351, 355. The contract will be sustained if pos- 
 sible, and liberally construed to secure indemnity — -the object of the contract. 
 Phoenix Ins. Co. v. Barnd, 16 Neb. 89 ; Grandin v. Insurance Co., 107 Pa. St. 26 ; 
 Schrceder v. Trade In.s. Co., 109 111. 157 ; Lyon l: Travelers' Ins. Co., 55 Mich. 
 142 ; Miner v. Mich. Mut. Ben. Ass., 63 Mich. 338. The courts will not draw fine 
 distinctions nor allow the company to escape on mere technicalities. Agricul- 
 tural Ins. Co. u. Bemiller, 70 Md. 400. The design of the assured being to 
 provide for themselves an indemnity against loss, from which the insurers agree 
 to protect them, such a construction should be placed on their compact as, ac- 
 cording to the nature of the transaction, will effectuate that object. Kiggin v. 
 Patapsco Ins. Co., 7 H. & J. ( JId.) 279, 287.] 
 
 2 Westfall V. Hudson River Fire Ins. Co., 2 Duer (N. Y. Superior Ct.), 490. 
 And see ante, §§ 171, 174 ; post, § 243. 
 
 s "Western Ins. Co. v. Cropper, 32 Pa. St. 351. 
 
 (a) Policies, notices, or contracts, Rep. 500 ; Canton Ins. Office v. Wood- 
 when written on forms prepared by the side, 90 id. 301, 305 ; Janneck v. Met'n 
 insurer, are interpreted, in all cases of L. Ins. Co., 162 N.Y. 574; Forest City 
 uncertainty, most favorably to the in- Ins. Co. v. Hardesty, 182 111. 39. If 
 sured. Thompson u. Phenix Ins. Co., clear and unambiguous in meaning, their 
 136 U. S. 287, 297 ; Imperial Fire Ins. construction is for the court, and their 
 Co. V. Coos County, 151 id. 452, 462 ; terms are taken and understood in their 
 jEtna Life Ins. Co. v. Smith, 88 Fed. plain, ordinary, and popular sense. 
 Rep. 440, 444 ; Mass. Benefit Life Ass'n Ibid. ; Liverpool, &c. Ins. Co. v. Kear- 
 <). Robinson, 104 Ga. 256. So words and ney, 36 C. C. A. 265; 270; Fred. J. 
 clauses, when ambiguous in meaning, Kiesel & Co. v. Sun Ins. Co., 88 Fed. 
 are construed against the insurer, who Rep. 243 ; Thurston i). Burnett, &c. lus. 
 uses them, soas tovalidatetheindemnity Co., 98 Wis. 476. Insurance policies 
 promised by the policy and not destroy are always given a reasonable construc- 
 it. Imperial Fire Ins. Co. v. Coos tion, such as will fairly carry their pro- 
 County, 151 U. S. 452, 462; London visions into effect. Springfield F. & M. 
 & L. Fire Ins. Co. v. Fischer, 92 Fed. Ins. Co. o. McLimans, 28 Neb. 846. 
 344 
 
CH. VIII.] WARRANTIES.— APPLICATION.— CONSTRUCTION. [§ 175 
 
 thrown upon it in accordance with the received principles 
 of law, from extrinsic evidence, the doubb is to be resolved 
 against the party by whom and in whose favor the stipula- 
 tion is made.i The words of a promise, with its exceptions 
 and qualifications, are to be considered as those of the 
 promisor, while those of a representation on which the 
 promise is founded are the words of the promisee. If a 
 question be equivocal, so that it is susceptible of being an- 
 swered in more than one way, and differently from different 
 points of view, it will not be open to the company which 
 prepares the question to object that it is not answered in 
 the true sense. ^ Thus the question whether one has suffered 
 any serious injury might be answered in the affirmative if 
 regarded in the light of the severity of the suffering and 
 temporary inconvenience occasioned at the time. But looked 
 at afterwards, and after a permanent and complete recovery, 
 it may well be answered in the negative, so far as the injury 
 is material to the question of the value of a life risk.^ So 
 an incidental communication from the insurer to the insured 
 will be deemed to contain not only all the language ex- 
 presses, but all that can be fairly deducible therefrom in the 
 light of the circumstances under which it is made. Thus, 
 
 1 [An ambiguous policy shall be construed most strongly against the insurer 
 and liberally in favor of the assured. Brink v. Merchants' & Mechanics' Ins. 
 Co., 49 Vt. 442, 457 ; Kratzenstein v. "Western Ass. Co., 116 N. Y. 54 ; Bo- 
 right V. Springfield F. & M. Ins. Co., 34 Minn. 352 ; Olson v. St. Paul F. & M. 
 Ins. Co., 35 Minn. 432 ; DeGraflF v. Queen Ins. Co., 38 Minn. 501 ; Liverpool, 
 &c. Ins. Co. V. Van Os, 63 Miss. 431, 441 ; Metropolitan L. Ins. Co. v. Drach, 
 101 Pa. St. 278 ; Burkhard v. Travelers' Ins. Co., 102 Pa. St. 262; Goddard v. 
 Ins. Co., 67 Tex. 69 ; Grandin v. Insurance Co., 107 Pa. St. 26 ; Cargill v. Millers', 
 &c. Mut. Ins. Co., 33 Minn. 90 ; Northwestern Mut. L. Ins. Co. v. Eoss, 63 
 Ga. 199 ; Phoenix Ins. Co. v. Spiers, 87 Ky. 285 ; Teutonia Ins. Co. i\ Boylston 
 Mut. Ins. Co., 20 Fed. Eep. 148 (Fa), 1884. If an exception in a policy be 
 capable of two equally reasonable interpretations, that must be adopted most 
 favorable to the assured, for the language is the comriany's. Western Ins. Co. 
 V. Cropper, 32 Pa. St. 351, 355 ; Commonwealth Ins. Co. v. Berger, 42 Pa. St. 285, 
 292.] 
 
 ^ Western Ins. Co. v. Cropper, 32 Pa. St. 351 ; Wilson v. Hampden Fire Ins. 
 Co., 4 R. I. 150 ; .Etna Ins. Co. v. Jackson, 16 B. Mon. (Kj'.) 242-; Bartlett v. 
 Union Mut. Fire Ins. Co., 46 Me. 500 ; Wilson v. Conway Ins. Co., 4 R. I. 141 ; 
 post, § 210. 
 
 8 Union Mut. Ins. Co. v. Wilkinson, 13 Wall. (U. S.) 222. 
 
 345 
 
§ 176] INSUKANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VIII. 
 
 if notice of additional insurance and an approval in writing 
 by the insurers be required, an acknowledgment in writing 
 that notice has been received, without more, will be deemed 
 an approval.^ So words of exception, if of doubtful import, 
 are to be construed most strongly against the party in whose 
 interest they are introduced.^ 
 
 § 176. Same Subject. — An instance of the application of 
 the doctrine that where there is any ambiguity in a policy it 
 must be taken most strongly against the party who prepares 
 it, is well illustrated in a comparatively recent case. The 
 proposal or declaration is made the basis of the contract and 
 part of the policy, affirms that its particular statements are 
 "correct and true throughout," and stipulates that if it shall 
 hereafter appear that any fraudulent concealment or de- 
 signedly untrue statement is made, the policy shall be void. 
 It was contended by the insurers that by this language the 
 policy was to be void not only upon an untrue statement de- 
 signedly made, but also upon an untrue statement honestly 
 , made. But the court replied, that upon that construction 
 the clause which relates to designedly untrue statements 
 would be superfluous, because only a reiteration of that 
 which is involved in the former clause requiring the partic- 
 ulars to be correct and true. But in construing an instru- 
 ment prepared by the insurers, it ought to be read most 
 strongly against the makers, and inasmuch as, upon the 
 construction contended for, the latter clause would be wholly 
 unnecessary, it should rather be construed as merely explan- 
 atory of what is meant by the terms "correct" and "true" 
 in the former clause.^ Upon the same grounds courts will 
 not make forfeiture a penalty where the contract has not so 
 distinctly provided.* 
 
 1 Potter V. Ontario & Lit. Mut. Ins. Co., 5 Hill (N. Y.), 147 ; Rotertson v. 
 French, i East, 135 ; post, § 371 ; Washington Life Ins. Co. v. Sohaibie (Pa.), 
 1 Weekly Notes Cas. 369. 
 
 2 Palmer v. Warren Ins. Co., 1 Story, C. Ct. 360 ; Blaokett v. Royal Ex. Ins. 
 Co., 2 Cronip. & Jer. 244. 
 
 2 Fowkes V. Manchester & London Life Ass. Association, 3 Best & Smith,' 
 Q. B. 917 ; s. c. E. C. L. 118, 917. See also post, § 193. 
 
 ^ Mnt. Fire Ins. Co. c. Coatesville, 80 Pa. St. 407 ; National Bank v. Hart- 
 ford Fire Ins. Co., 95 U. S. 673 ; WUkins v. Tobacco Ins. Co., 30 Ohio St. 317 ; 
 346 
 
CH. VIII. ] WAERANTIES. — APPLICATION. — CONSTEUCTION. [§ 177 
 
 § 177. Written over Printed Words prevail. — As in all 
 contracts consisting partly of printed matter and partly of 
 written, so with contracts of insurance, where any discrep- 
 ancy or repugnancy exists, the written portion is to prevail 
 over the printed,^ for the obvious reason that as the latter 
 contains the more general and formal provisions applicable 
 for the most part to all cases, there is more ground for sup- 
 posing that these have not been erased or modified so as to 
 conform to the written portion, through inadvertence, than 
 that the special and peculiar provisions of the written por- 
 tion have been adopted without due consideration, and in- 
 serted without the design or contrary to the intention of the 
 parties.2(a) The printed forms are calculated for ordinary 
 
 Behler o. German, &c. Ins. Co. (Ind.), 9 Ins. L. J. 778. But see Hill u. Eijuita- 
 tle, &c. Ins. Co. (N. H.), 6 id. 314. 
 
 1 [Grandin v. Ins. Co., 107 Pa. St. 26 ; Plinsky v. Germania F. & M. Ins. Co., 
 32 Fed. Eep. 47 (Mich.), 1887 ; Liverpool, &c. Ins. Co. v. Van Os, 63 Miss. 
 431, 441 ; Georgia Home Ins. Co. v. Jacobs, 56 Tex. 366. Written words con- 
 trol the printed formula of a policy wherever there is a discrepancy ; Bargett 
 V. Orient Mut. Ins. Co., 3 Bos. (N. Y.) 385, 396 ; Coster v. Phcenix Ins. Co., 
 2 Wash. U. S. 51, 53 ; Schroeder u. Stock & Mutual Ins. Co., 46 Mo. 174, 
 176 ; without reference to their respective priority of place. Leeds v. Me- 
 chanics' Ins. Co., 8 N. y. 361, 356; Hernandes v. Sun Mutual Ins. Co., 6 
 Blatch. 317, 325. In one case it was held that where the printed form pro- 
 vides that its general terms shall he controlled by indorsements of special 
 risks, the print is incomplete and ineffective until made definite and certain by 
 the indorsement, which in each case fixes the amount and nature of the risk, 
 and if the print insures against loss of goods "laden on vessels, railroad, or 
 carriage," and the writing omits "carriage," the loss of goods while in a car- 
 riage is not covered. Kratzenstein v. Western Ass. Co., 63 N. Y. Super. 505. 
 But on appeal the decision was reversed, the court saying that as there was no 
 confiict between the print and the writing every word must have its effect. 
 Kratzenstein u. Western Ass. Co., 116 N. Y. 54 ; reversing 21 Jones & Spen. 
 605.] 
 
 2 Robertson v. French, 4 East, 135. 
 
 (a) See West Branch Lumberman's Co., 98 id. 129 ; Phcenix Ins. Co. v. 
 Exchange v. American Central Ins. Co., Flemming, 65 Ark. 54 ; Eussell v. 
 183 Penn. St. 366 ; Faust v. American Manufacturers' & Builders' F. Ins. Co., 
 F. Ins. Co., 91 Wis. 158; Parker v. 50 Minn. 409; Vaudervolgen v. Man- 
 China Mut. Ins. Co., 164 Mass. 237 ; Chester F. Ass. Co. (Mich. ), 82 N. W. 
 Maril v. Conn, F. Ins. Co., 95 Ga. 604 ; 46. In Massachusetts the act of 1894, 
 Crew-Levick Co. v. British & Foreign ch. 522, § 60, cl. 7, authorized' slips or 
 M. Ins. Co., 77 Fed. Eep. 858 ; Palatine riders to be attached to policies modify- 
 Ins. Co. V. Ewing, 92 id. Ill, 114 ; ing the provisions in the body of the 
 Hagan „. Scottish Union & Nat'l Ins. poUcy. See Hardy v. Lancashire Ins. 
 
 347 
 
§ 177] INSURANCE ; FIRE, LIFE, ACCIDENT, ETC. [CH. VIII. 
 
 risks, and contain the provisions and conditions usually 
 attached to insurances upon them. They . must, therefore, 
 necessarily be general and comprehensive in their terms, 
 and not suited to insurances upon other and special hazards. 
 It is the ordinary course that upon each application a spe- 
 cial agreement is made between the applicant and under- 
 writer, designating and describing the premises required to 
 be insured, and fixing the terms of that particular insur- 
 ance; and the policy is then, completed by filling up the 
 blank spaces left in the printed form with suitable words 
 and clauses to express the contract thus agreed upon. This 
 is the usual mode of consummating the contract, and not 
 unfrequently the printed form of the policy is left unaltered, 
 without expunging or modifying the parts of it which con- 
 flict with the written clauses. These written clauses, never- 
 theless, contain the elements of the contract, and being 
 framed under the immediate eye of the parties, and with 
 special reference to the exigencies of the particular contract, 
 and to the terms agreed upon, they sometimes present a con- 
 tract to which some of the printed parts of the policy are 
 inapplicable. And as effect must be given to the acknowl- 
 edged intentions of the parties, these written clauses must 
 
 Co., 166 Mass. 210. In States like App. 11 ; see Jackson v. British Amer- 
 Massachusetts, which have a standard ica Ass. Co. (Mich.), 30 L. R. A. 636, 
 form of policy prescribed by statute, and note ; Jones v. New York L. Ins. 
 the insurer's agents, and even its general Co., 168 Mass. 245. If the main body 
 agents, cannot vary this standard form of the policy contains no agreement on a 
 without clear authority, and then only particular subject, a rider, which is a 
 b}' inserting provisions or attaching slips small slip of paper pasted on the face of 
 in the manner prescribed by the statute, the policy, when it has no logical con- 
 Parker V. Rochester German Ins. Co., nection with, or relation to the waiTan. 
 162 Mass. 479, 481 ; Hillu. Commercial ties expressed in the policy, such as one 
 Union Ass. Co., 164 Mass. 406 ; Straker providing for a watchman when a mill 
 V. Phenix Ins. Co., 101 Wis. 413; supra, is idle, is merely a representation, the 
 p. 233, note (a). violation of which does not work a for- 
 The body of the policy is the real feiture when the loss is not due to such 
 contract between the parties ; but cer- violation. Hart v. Niagara F. Ins. Co., 9 
 tain material stipulations, such as the Wash. 620. So a standard guaranty to 
 "iron-safe clause," when printed or maintaineightypercent insurance, when 
 written upon a slip attached to the stamped on the face of the policy, does 
 policy, are treated as constituting part not supersede the provision against fur- 
 of the policy, though not in its body, ther insurance in a fire policy. Cutler 
 Criglet V. Standard F. Ins. Co., 49 Mo. v. Royal Ins. Co., 70 Conn. 566, 572. 
 
 348 
 
CH. TIII.J WAERANTIES. — APPLICATION. — COKSTEUCTION. [§ 178 
 
 necessarily supersede and control such of the printed clauses 
 as would, if enforced and literally applied, be inconsistent 
 with them.i 
 
 § 178. Insurers confined to the Exact Words of the War- 
 ranty. — The strictness with which courts will hold insurers 
 seeking to set up a warranty, a breach of which works a for- 
 feiture, is well illustrated by the following cases: The ap- 
 plication and conditions annexed were referred to and made 
 part of the policy. The insurance was upon a "stock of 
 merchandise." In the application, to the question, "For 
 what purpose is the building used ? " it was answered, 
 "Wholesale and retail hardware;" and to the question, 
 "How many tenants?" the answer was "One." In fact, 
 the second story of the building was occupied as a clothing- 
 store, and the upper story for lodging-rooms. The insured 
 covenants that the representation given in the application is 
 a warranty, and contains a just, full, and true exposition of 
 all the facts and circumstances in regard to the condition, 
 situation, and value of the property insured, and if facts or 
 circumstances shall not be fairly represented, then the pol- 
 icy is to be void. In the policy, also, insurance is said to 
 be on the property described in the application, which is 
 referred to and made part of the policy, and declared to be 
 a warranty. It was held that while the policy would be 
 void if the representations relating to the property insured 
 were untrue, yet that false representations as to matters 
 outside and independent of the property insured, and which 
 had not in any degree contributed to the loss, would not 
 avoid the policy ; and as the stipulations both in the appli- 
 cation and in the policy have reference to the property in- 
 sured, and in respect to this there was no untruthfulness, a 
 false representation as to the occupancy of the building 
 which was not insured did not avoid the policy.^ In an- 
 other case, the insurance was upon a "stock of goods and 
 merchandise, " with a stipulation that if the " premises " be 
 
 I Delonguemare v. Tradesmen's Ins. Co., 2 Hall (N. Y.), 589, 622 ; Colt v. 
 Phcenlx Ins. Co., 54 N. Y. 595. 
 
 " Howard Fire & Mar. Ins. Co. v. Cornick, 24 111. 455. 
 
 349 
 
§178] insurance: fire, life, accident, etc. [ch. viil 
 
 "appropriated, applied, or used for the purpose of storing 
 or keeping therein," amongst other things, "oil and cotton," 
 the policy should be of no effect during such use. A barrel 
 of oil, with bunches of cotton near it, had been kept in the 
 back part of the store for a short time previous to the fire. 
 But it was held that the clause by its terms was confined to 
 the case of a building insured, — a case not covered by the 
 policy; and if the case had been covered by the policy it 
 should have been construed to forbid the appropriation or 
 chief use of the building for any of the prohibited purposes, 
 and not the incidental keeping of small quantities of pro- 
 hibited articles for retail, along with a general stock of 
 goods. 1 So an alteration in the status of the property in- 
 sured, the same not being a building, as for instance the 
 machinery in a building, is not an alteration in the " prem- 
 ises " insured such as will work a forfeiture.^ And to pre- 
 vent a forfeiture by such a breach of warranty, a bare, 
 literal, and technical compliance on the part of the insured 
 with the terms of the contract will sometimes be held to be 
 sufficient, — a compliance which is nearly tantamount to an 
 evasion. Thus, under a warranty that mills are worked by 
 day only, keeping up the fires and running the engine by 
 night, the machinery not being attached, would constitute 
 no breach.^ [A mere cold does not render false the warranty 
 that the insured had not "been sick or afflicted with dis- 
 ease."* When the policy described the business carried on 
 in the insured premises, as the manufacture of bath tubs, it 
 was held that it was no breach of the warranty that a tube 
 brought to the premises shavings from another building used 
 for other purposes.^ But a condition precedent to a policy 
 on a ship, providing that she must sail on a certain day, 
 &c., and "be ready for sea," is not complied with when only 
 the master, mate, one seaman, and two boys were on board, 
 
 1 Leggett V. mna Ins. Co., 10 Rich. Law (S. C), 202. 
 
 2 Bobinson v. Mercer County Mut. Ins. Co., 3 Dutch. (N. J.) 134, 135. 
 
 8 Mayall u. Mitford, 6 Ad. & El. 670 ; Hide v. Bruce, 3 Doug. 213 ; 1 Beirnet 
 F. Ins. Cases, 107 ; Peoria Mar. & Fire Ins. Co. v. Lewis, 18 III. 553. 
 * [Metropolitan L. Ins. Co. v. MoTague, 49 K. J. 587.] 
 s [Keeney v. Home Ins. Co., 71 N. Y. 397, 405.] 
 350 
 
CH. VIII.] WAEEANTIES. — APPLICATION. — CONSTEUCTION. [§ 179 
 
 and when she had to have assistance to get down the harbor. 
 And hence the policy did not take effect. i] 
 
 § 179. Custom and Usage as Aids to Interpretation. — We 
 have just seen ^ that usage is not unfrequently, especially in 
 marine insurance, resorted to in aid of interpretation. But 
 having due regard to the incidental differences in the vari- 
 ous kinds of risks, the rules under which evidence of custom 
 and usage is admissible in aid of the interpretation of ma- 
 rine insurances are equally applicable to all the other kinds 
 of insurances, and have been so well stated by a learned 
 author^ that we take pleasure in transferring them to these 
 pages. They are as follows ; — 
 
 "1. Every usage of a particular trade, which is so well 
 settled or so generally known that all persons engaged in 
 that trade may be fairly considered as contracting with ref- 
 erence to it, is considered to form part of every policy, de- 
 signed to protect risks in such trade, unless the express 
 terms of the policy decisively repel the inference. 
 
 " 2. The usage, moreover, in order to be binding, must be 
 either a general usage of the whole mercantile world, or a 
 particular usage of universal notoriety in the trade upon 
 which, and of the place at which, 'the insurance is effected ; 
 the usage of a particular place, or of a particular class of 
 persons, cannot be binding on non-residents, or on other 
 persons, unless they are shown to have been cognizant of it. 
 
 "3. Where the sense of the words and expressions used 
 in a policy is either ambiguous or obscure on the face of the 
 instrument, or is made so by proof of extrinsic circum- 
 stances, parol evidence is admissible to explain by usage 
 their meaning in the given case. 
 
 "4. A resort to parol evidence, however, is only permitted 
 where the language of the policy is either obscure or equivo- 
 cal; such evidence will never be admitted to set aside or 
 control its plain and unambiguous terms." 
 
 Thus, proof is admissible that camphene is customarily 
 
 1 [Graham v. Barroa, 5 B. & Adolph. 1011, 1018.] 
 
 2 Jnte, § 173. 
 
 8 Arnould on Insurance, 65 et seq. 
 
 351 
 
§ 179 A] insurance: fiee, life, accident, etc. [ch. viii, 
 
 used in printing establishments to dean type;^ or that 
 benzole is so used in patent-leather factories, and is handled 
 in a particular way ; ^ or that amongst manufacturers " room " 
 means "loft," whether the loft be partitioned into distinct 
 apartments or not ; ^ [or that the word " roots " means only 
 perishable roots, and that sarsaparilla is not included;*] or 
 that a house built in a certain manner is by usage treated as 
 a house " filled in with brick ; " ^ and what is the accepted 
 meaning of " store fixture " amongst insurance companies ; ^ 
 &nd, generally, of the meaning of any particular term which 
 has in any trade secured a limited or special meaning, dif- 
 ferent from its popular acceptation, when the term is used in 
 a contract with a person engaged in that trade.'' 
 
 [§ 179 A. Usages Lawful and Known explain a Contract that 
 aoes not exclude them. ■ — Insurers are presumed to be familiar 
 with the usages and incidents of a risk, and contracts of in- 
 surance are always construed with reference thereto.^ When 
 it appears that the parties contracted with reference to a cus- 
 tom of the city where they did business, the general law 
 yields to the usage. Where a policy is underwritten upon a 
 foreign vessel the insurer is presumed to know the common 
 usages of trade in such country." Usage is admissible to 
 explain what is doubtful in written contracts,^" but not to 
 contradict what is clear; although even plain words many 
 times acquire a special meaning through reference to well- 
 established usage. Deviation from a policy if according to 
 usage, does not per se prevent recovery. ^^ When a policy is 
 made upon a particular voyage, the established usages relat- 
 
 1 Harper v. City Ins. Co., 1 Bosw. (N. Y. Superior Ct.) 520. 
 
 2 Citizens' Ins. Co. v. McLaughlin, 53 Pa. St. 485. 
 
 ^ Daniels v. Hudson River Fire Ins. Co., 12 Gushing (Mass.), 416. 
 
 * [Coit V. Com. Ins. Co., 7 Johns. 385, 390.] 
 
 6 Fowler v. jEtna Fire lus. Co., 7 Wend. (N. Y.) 270. 
 
 « Whitmarsh v. Conwa}' Fire Ins. Co., 16 Gray (Mass.), 359. 
 
 ' Wall V. Howard Ins. Co., 14 Barb. (N. Y.) 383. 
 
 8 [Fulton Ins. Co. v. Milner, 23 Ala. 420, 427 ; Hancox v. Fishing Ins. Co., 
 3 Sum. (U. S.) 132, 137.] 
 
 9 [Hazard v. N. E. Mar. Ins. Co., 8 Pet. 557, 580. See also Buck ti. Chesa- 
 peake Ins. Co., 1 Pet. 151, 160.] 
 
 M [Macy V. Whaling Ins. Co., 9 Met. (Mass.) 354, 363.] 
 11 [Bond V. Gonsales, 2 Salk. 415.] 
 
 352 
 
CH. Vin.] WARRANTIES. — APPLICATION. — CONSTRUCTION. [§ 179 C 
 
 ing to such voyage are impliedly a part of the contract, even 
 though not expressly made so.^ Usage of an insurance com- 
 pany may make valid a contract made by the president, in 
 deviation from the risk assumed in the policy, by waiver 
 thereof, for a compensation agreed between the president 
 and the assured, the waiver and assent being written, with 
 its terms, across the policy without any new signature, and 
 being recorded by the secretary. ^ A regular usage for twenty 
 years, not explained or contradicted, is an immemorial 
 record. ^] 
 
 [§ 179 B. Usage counter to Settled Principle of Law and 
 Justice not sustained. — The usage of no class of citizens can 
 be sustained in opposition to principles of law.* A usage 
 at a particular place without reference to the proceeds of 
 old materials not used in the repairs, is contrary to the 
 well settled rules of law, and to the principle of indemnity, 
 and is therefore void. ^] 
 
 [§ 179 C. Knowledge. — The person against whom the 
 usage is invoked must be shown to have known of it, or to 
 have adopted it by the nature of his dealings, or to have 
 constructive knowledge by the generality and established 
 character of it. A usage of one insurance house, not gener- 
 ally known nor shown to be known to plaintiff, who was not 
 in the habit of taking out policies where the usage prevailed, 
 does not bind him.® When a policy prohibited the carrying 
 of more than a certain weight of coal, and the assured car- 
 ried more than that weight of a ''patent fuel," claimed to be 
 materially different from coal, loaded at Cardiff (a foreign 
 port), a local usage known only at that place, in support of 
 his position, is not sufficient. It must be shown to have 
 been known to both the parties at the contract's inception, ^ 
 or so generally known that they must be presumed to have 
 
 1 [Bulkley v. Protection Ins. Co., 2 Paine (U. S.), 82, 91.] 
 
 2 [Warren v. Ocean Ins. Co., 16 Me. 439, 450.] 
 
 3 [King V. Joliffe, 2 B. & C. 54, 69.] 
 
 4 [Homer v. Dorr, 10 Mass. 26, 28.] 
 
 6 [Eager v. Atlas Ins. Co., 14 Pick. 141, 144.] 
 
 6 [Gabay v. Lloyd, 3 B. & C. 793, 797.] 
 
 » [Howard v. Great Western Ins. Co., 109 Mass. 384, 389.] 
 
 VOL. I.— 23 353 
 
§ 179 E] INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VIII. 
 
 contracted in reference to it. The phrase "standing de- 
 tached " is not ambiguous or open to evidence of usage that 
 among insurance men the words mean a space of at least 
 twenty-five feet.^ Unless the assured knew or had notice of 
 the sense in which it was employed.^] 
 
 [§ 179 D. Usage cannot change a Contract ■whose terms are 
 Clearly Inconsistent -with it. — When WOrds have no uncer- 
 tain meaning, parol evidence of a commercial understanding 
 of them is inadmissible.^ The clear provisions of a contract 
 cannot be defeated by proof of the existence of a custom dif- 
 fering therefrom.* The force and legal effect of an unam- 
 biguous and unequivocal agreement between two insurance 
 companies cannot be changed by proof that by custom and 
 usage its performance is not required.^ The true office of a 
 usage or custom is to interpret the otherwise indeterminate 
 intentions of the parties, and to ascertain the nature and 
 extent of their contracts, arising not from express stipula- 
 tions, but from mere implications and presumptions and acts 
 of a doubtful or equivocal character.^ The particular usage 
 or by-law of an insurance company to pay only in proportion 
 to what is paid on the same goods by another company can- 
 not control a policy, and is no defence to a suit for the 
 whole amount insured."] 
 
 [§ 179 B. The Test. — The question is, "Did the parties 
 contract in reference to the usage, or do certainty and facil- 
 ity in business matters require that they should be presumed 
 to have contemplated it, where they have not clearly ex- 
 pressed the contrary ? " In order that a party may be bound 
 by a usage it must be shown that he had knowledge of it. 
 Usage is engrafted upon a contract or invoked to give it a 
 meaning, on the assumption that the parties contracted in 
 
 1 [Hill V. Hibernia Ins. Co., 10 Hun, 26, 29.] 2 p^.] 
 
 8 [Bargett v. Orient Ins. Co., 3 Bos. 385, 396; Kankin v. Amer. Ins. Co., 1 
 
 Hall (N.Y.), 619, 632.] 
 
 4 [Duncan c. Green, 43 Iowa, 679, 680 ; Marks v. Cass Co. Mill, &o. Co., 
 
 id. 146, 148.] 
 
 6 [St. Nicholas Ins. Co. v. Mercantile Ins. Co., 5 Bos. 238, 246.] 
 6 [The Schooner Reeside, 2 Sumn. (U. S.) 567, 569.] 
 ' [Lattomus v. Farmers' Mut. F. Ins. Co., 3 Houst. (Del.) 264, 265.] 
 354 
 
CH. VIII.] WAEEANTIES. — APPLICATION. — CONSTRUCTION. [§ 180 
 
 reference to it. If there is a general usage, applicable to a 
 particular profession, parties employing an individual are 
 supposed to deal with him according to that usage. A con- 
 tract made with a man about the business of his craft, is 
 framed on the basis of its usages except when their place is 
 occupied by other stipulations. Where one employs another 
 to do an act that involves the conforming to some usage, as 
 that of the locality where the act is to be done, the principal 
 is bound by such usage. If a custom is ancient, very gen- 
 eral, and well known, it will often be a presumption of law 
 that the party had knowledge of it. As a rule, a local usage 
 must be brought home to the person before he can be bound 
 by it. It must be shown that he had actual knowledge of 
 it, or there must be evidence raising a strong presumption 
 that he had notice. The question in case usage is intro- 
 duced is, whether it is of such age and character that it will 
 be conclusively presumed that the parties knew of it, as in 
 the case of usages that have become part of the common law ; 
 or whether it is so local and particular that knowledge must 
 be shown. It is always competent for the party to disclaim 
 knowledge, for the jury may find that the presumption is not 
 one of law but only one of fact, as in the case of evidence 
 showing a local usage in the city of which the party is an 
 inhabitant, and such presumption of fact may be negatived 
 by evidence that the party did not in fact know of the usage. ^ 
 The whole substance of the law of usage is a common-sense 
 determination of the question whether under all the circum- 
 stances it is fair to consider the contract affected by the 
 usage in dispute.] 
 
 § 180. To the above may be added another rule, to wit, 
 that proof, whether of a local or general usage, cannot be 
 resorted to for the purpose of importing into the contract a 
 new and distinct condition. Thus a usage that, in case of 
 the occurrence of any circumstance by the act of the insured 
 after effecting the insurance, whereby the risk is increased, 
 he shall give notice thereof to the insurer, that the latter 
 may then elect to continue or annul the policy, cannot be 
 1 [Walls V. Bailey, 49 N. Y. 464.] 
 
 355 
 
§ 180 a] insurance: fire, life, accident, etc. [ch. viii. 
 
 received in evidence, there being no stipulation in the pol- 
 icy requiring such notice.^ Nor when the contract is to pay 
 all loss or damage by fire, is it permissible to show that 
 reinsurers are accustomed to pay only such proportion of 
 the loss as is shown by the relation which the amount rein- 
 sured bears to the whole amount insured.^ Nor where the 
 stipulation is to keep a watch nights, can a usage be shown 
 to except certain nights.^ But the custom of other similar 
 establishments may be shown to explain what is " keeping a 
 watch."* And in a case where a building was torn to pieces 
 by lightning but not burned, and the company was liable for 
 losses "by fire by lightning," evidence of the general prac- 
 tice in other insurance companies in similar cases, not to 
 pay where there is no burning, ^as held admissible, in aid 
 of the interpretation of the phrase.^ So the custom of com- 
 mission merchants to insure goods consigned to them, with- 
 out instructions, in their own names, and as for their own 
 account.^ But a custom is not provable to contradict the 
 express terms of a contract, — for instance, as to payment 
 of premium.^ 
 
 § 180 a. In several States the legislatures have interposed 
 by statute to protect the insured against a loss of the benefit 
 of his insurance by reason of immaterial misrepresentations. 
 Thus, it was provided in Missouri, by the act of March 23, 
 1874, that "no misrepresentation . . . shall be deemed 
 material or avoid the policy, unless the matter misrepre- 
 sented shall have actually contributed to the contingency or 
 event on which the policy is to become due or payable;" 
 and it was held that a policy issued within the State, in 
 
 1 Stebbius v. Globe Ins. Co., 2 Hall (N. Y.), 632. 
 
 2 Home V. Mut. Safety Ins. Co., 1 Sandf. (N. Y. Superior Ct. 137 ; s. c. 
 affirmed, 2 Comst. (N. Y.) 235. 
 
 s Eipley iEtna Fire Ins. Co., 30 N. Y- 136. 
 
 * Crocker v. People's Mut. Ins. Co., 8 Cusb. (Mass.) 79, 
 
 5 Babcock v. Montgomeiy County Mut. Ins. Co., 6 Barb. (N. Y.) 637 ; S. c. 
 affirmed, 4 Comst. (N. Y.) 326. And see post, § 582. 
 
 « DeForest v. Fulton Fire Insurance Company, 1 Hall (New York Superior 
 Court), 84. 
 
 ' Illinois, &c. Soo. v. Baldwin, 86 111. 479 j Candee v. Citizens' Ins. Co., 0. Ct. 
 (Conu.), 4 Fed. Eep. 143. 
 
 356 
 
CH. VIII.] WARRANTIES. — APPLICATION. — CONSTRUCTION. [§ 180 a 
 
 which "answers, statements, representations, and declara- 
 tions," made in good faith and contained in the application 
 which was made a part of the policy, were " warranted " to 
 be true in all respects, was within the provisions of the 
 statute.^ The Georgia code is construed in the same way.^ 
 
 Under the Massachusetts statute, ^ a condition in the policy 
 that misrepresentations in the application shall avoid the 
 policy is good, notwithstanding the law provides that the 
 application shall not be a warranty or part of the contract, 
 except so far as it is incorporated in full in the policy.* 
 
 In Ontario, an insurer cannot avail himself of certain 
 statutory conditions, or of the conditions of the contract, 
 unless the statutory conditions are printed upon the policy, 
 but the plaintiff may avail himself of any of the statutory 
 conditions.^ 
 
 This statute makes certain conditions essential to any pol- 
 icy, provides that other conditions shall be printed conspicu- 
 ously both in type and ink, and that they shall be reasonable. 
 It seems that a condition that a policy shall be void if the 
 title to the property insured shall be disputed in any pro- 
 ceeding at law or in equity is unreasonable ; ^ and under 
 
 1 White V. Conn. Mut. Life Ins. Co., C. Ot. (W. D. Mo.), 7 Infs. L. J. 394, 
 denying the soundness of the opposite conclusion arrived at in Farmers' Ins. Co. 
 V. Curry, 13 Bush (Ky.), 312, where it was held that a similar statute of that 
 State did not apply where parties warranted, but only where they were silent upon 
 the subject, and following Chamberlain u. Insurance Co., 55 N. H. 249, and 
 Emery v. Piscataqua, &c. Ins. Co., 52 Me. 322, upon similar statutes in the re- 
 spective States. Chamberlain's case was itself overruled in Sleeper v. Insurance 
 Co., 56 N. H. 401, so far as it held the statute to apply to neglects, mistakes, and 
 misrepresentations in the performance of the conditions of the policy. It is still 
 law, however, so far as it held that the statute applies to such mistakes, neglects, 
 and misrepresentations as occur in the making of the contract. See also Hill v. 
 Equitable Mut. Fire Ins. Co. (N. H.), 6 Ins. L. J. 314 ; Leach u. Republic Fire 
 Ins. Co., 58 K. H. 245. See also arUe, § 143, n. 
 
 ^ Southern Life Ins. Co. v. Wilkinson, 53 Ga. 536 ; s. o. 5 Big. Life & Ace. 
 Ins. Cas. 85 ; Mobile, &c. Ins. Co. u. Coleman, 58 Ga. 251. 
 
 8 Ante, § 163. 
 
 * Barre Boot Co. v. Mil ford Mut. Fire Ins. Co., 7 Allen (Mass.), 42. 
 
 5 Parsons v. Queen Ins. Co. (Can. Sup. Ct.), 16 Can. L. J. 244, 1880; s. o. 
 4 Can. Sup. Ct. Eep. 213. The statute applies to foreign companies licensed, but 
 not to mutual companies. Wellington Mut. Ins. Co. v. Frey, 3 Leg. News, 327 ; 
 E. S. Ont. c. 162. 
 
 « May V. Standard Ins. Co. (U. C. C. P.), 15 Can. L. J. N. s. 211. 
 
 357 
 
§ 180 a] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. Til. 
 
 the condition requiring certificate of loss of magistrate most 
 contiguous to the fire,^ avoiding policy if title to property 
 shall be disputed in any proceeding at law or in equity,^ and 
 making any misrepresentation a cause of forfeiture, have 
 been held unreasonable.^ But conditions in the charter of 
 a foreign insurance company are not binding upon the 
 assured, unless brought to his notice.* 
 
 1 Shauuon v. Hastings Mut. Ins. Co., 2 Ont. App. Eep. 81. 
 
 2 Sands v. Standard Ins. Co. (U. C), 27 Grant's Ch. 167. 
 
 3 Butler V. Standard Fire Ins. Co., 4 Ont. App. Rep. 391. See also Ballagli ». 
 Eoyal Mut. Fire Ins. Co., 5 Ont. App. Kep. 87. 
 
 4 City Fire Ins. Co. v. Carrugi, 41 Ga. 660. 
 
 The following graphic and masterly statement of the situation out of which 
 grew the necessity of legislative interposition, is from the pen of Mr. Chief Justice 
 Doe, of New Hampshire. The learned Chief Justice seems to have said, in a very 
 striking and effective way, what many other judges must have often thought. 
 
 " The nature of the mischief intended to be remedied by the act of 1855 has a 
 bearing upon the question whether, by fair and reasonable construction, it ap- 
 pears that the legislature, having in 1855 forbidden all insurance companies to 
 commit such mischief, did actually intend, in 1862, to confer on this company the 
 exceptional legal right to commit the same mischief. The object of the act of 
 1855 obviously was, to remedy an evil with which the people of this State had 
 long believed themselves to be grievously afflicted. Whether their belief had an 
 ample or substantial foundation, or any foundation at all ; whether it was justified 
 by the conduct of a considerable number of insurance companies ; or whether the 
 course of a very few brought an undeserved reproach upon the whole system of 
 insurance, — it is not now necessary to inquire. It is the state of things believed 
 to exist, and not its real existence, that explains the legislation. The public 
 belief, manifested in the annals of litigation and elsewhere, is too notorious and 
 historic to require any specific attestation. The state of things believed to exist 
 was this : — 
 
 " Some companies, chartered by the legislature as insurance companies, were 
 organized for the purpose of providing one or two of their oflicers, at headquarters, 
 with lucrative employment, — large compensation for light work, — not for 
 the purpose of insuring property ; for the payment of expenses, not of losses. 
 Whether a so-called insurance company was originally started for the purpose of 
 insuring an easily earned income to one or two individuals, or whether it came to 
 that end after a time, the ultimate evil was the same. Names of men of high 
 standing were necessary to represent directors. The directorship, like the rest of 
 the institution and its operations, except the collection of premiums and the 
 division of the same among the collectors, was nominal. Men of eminent respec- 
 tability were induced to lend their names for the official benefit of a concern of 
 which they knew and were expected to know nothing, but which was represented 
 to them as highly advantageous to the public. There was no stock, no invest- 
 ment of capital, no individual liability, no ofilcial responsibility, — nothing but a 
 formal organization for the collection of premiums, and their appropriation as 
 compensation for the services of its operators. 
 
 "The principle act of precaution was, to guard the company against liability 
 for losses. Forms of applications and policies (like those used in this case), of 
 
 358 
 
CH. VIII.] WAEKANTIES. — APPLICATION. — CONSTRUCTION. [§180 a 
 
 a most complicated and elaborate structure, were prepared, and filled with cov- 
 enants, exceptions, stipulations, provisos, rules, regulations, and conditions, ren- 
 dering the policy void in a great number of contingencies. These provisions 
 were of such bulk and character that they would not be understood by men in 
 general, even if subjected to a careful and laborious study ; by men in general, 
 they were sure not to bo studied at all. The study of them was rendered par- 
 ticularly unattractive, by a profuse intermixture of discourses on subjects in 
 which a premium payer would have no interest. The compound, if read by 
 him, would, unless he were an extraordinary man, be an inexplicable riddle, a 
 mere flood of darkness and confusion. Some of the most material stipulations 
 were concealed in a mass of rubbish, on the back side of the policy and the 
 following page, where few would expect to find anything more than a dull ap- 
 pendix, and where scarcely any one would think of looking for information so 
 important as that the company claimed a special exemption from the operation 
 of the general law of the land relating to the only business in which the com- 
 pany professed to be engaged. As if it were feared that, notwithstanding 
 these discouraging circumstances, some extremely eccentric person might at- 
 tempt to examine and understand the meaning of the involved and intricate 
 net in which he was to be entangled, it was printed in such small type, and in 
 lines so long and so crowded, that the perusal of it was made physically difB- 
 oult, painful, and injurious. Seldom has the art of typography been so suc- 
 cessfully diverted from the diffusion of knowledge to the suppression of it. 
 There was ground for the premium payer to argue that the print alone was 
 evidence, competent to be submitted to a jury, of a fraudulent plot. It was not 
 a little remarkable that a method of doing business not designed to impose 
 upon, mislead, and deceive him by hiding the truth, practically concealing and 
 misrepresenting the facts, and depriving him of all knowledge of what he was 
 concerned to know, should happen to be so admirably adapted to that purpose. 
 As a contrivance for keeping out of sight the dangers created by the agents of 
 the nominal corporation, the system displayed a degree of cultivated ingenuity, 
 which, if it had been exercised in any useful calling, would have merited the 
 strongest commendation. 
 
 "Travelling agents were necessary to apprise people of their opportunities, 
 and induce them to act as policy-holders and premium payers, under the name 
 of ' the insured,' Such emissaries were sent out. 'The soliciting agents of in- 
 surance companies swarm through the country, plying the inexperienced and 
 unwary, who are ignorant of the principles of insuiance law, and unlearned in 
 the distinctions that are drawn between legal and equitable estates.' Combs v. 
 Hannibal Savings & Ins. Co., 43 Mo. 148, 162 ; 6 Western Insurance Review, 
 467, 629. The agents made personal and ardent application to people to accept 
 policies, and prevailed upon large numbers to sign papers (represented to be 
 mere matters of form) falsifying an important fact by declaring that they made 
 application for policies, reversing the first material step in the negotiation. An 
 insurance company, by its agent, making assiduous application to an individual 
 to make application to the company for a policy, was a sample of the crooked- 
 ness characteristic of the whole business. 
 
 " When a premium payer met with a loss, and called for the payment prom- 
 ised iu the policy which he had accepted upon the most zealous solicitation, he 
 was surprised to find that the voluminous, unread, and unexplained papers had 
 been so printed at headquarters, and so filled out by the agents of the company, 
 as to show that he had applied for the policy. This, however, was the lea.st of 
 his surprises. He was informed that he had not only obtained the policy on his 
 
 359 
 
§ 180 a] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. VIII. 
 
 own application, but had obtained it by a series of representations (of wliich he 
 had not the slightest conception), and had solemnly bound himself by a general 
 assortment of covenants and warranties (of which he was unconscious), the num- 
 ber of which was equalled only by their variety, and the variety of which was 
 equalled only by their supposed capacity to defeat every claim that could be made 
 iipon the company for the performance or its part of the contract. He was fur- 
 ther informed that he had succeeded in his application by the falsehood and fraud 
 of his representations, — the omission and misstatement of facts which he had 
 expressly covenanted truthfully to disclose. Knowing well that the application 
 was made to him, and that he had been cajoled by the skilful arts of an importu- 
 nate agent into the acceptance of the policy and the signing of some paper or 
 other, with as little understanding of their effect as if they had been printed in 
 an unknown and untranslated tongue, he might well be astonished at the inverted 
 application, and the strange multitude of fatal representations and ruinous cove- 
 nants. But when he had time to realize his situation, — had heard the evidence 
 of his having beset the invisible company, and obtained the policy by just such 
 means as those by which he knew he had been induced to accept it, and listened 
 to the proof of his obtaining it by treachery and guilt, in pursuance of a premedi- 
 tated scheme of fraud, with intent to swindle the company in regard to a lien for 
 assessments, or some other matter of theoretical materiality, — he was measure- 
 ably prepared for the next regular charge of having burned his own property. 
 
 "With increased experience came a constant expansion of precautionary 
 measures on the part of the companies. When the court held (Marshall v. CM. 
 F. I. Co., 27 N. H. 157 ; Campbell v. M. & F. M. F. I. Co., 37 id. 35 ; Clark v. 
 U. M. F. I. Co., 40 id. 333) that the agent's knowledge of facts not stated in the 
 application was the company's knowledge, and that an unintentional omission or 
 misrepresentation of facts known to the company would not invalidate the policy, 
 the companies, by their agents, issued new editions of applications and policies, 
 containing additional stipulations to the effect that their agents were not their 
 agents, but were the agents of the premium payers ; that the latter were alone 
 responsible for the correctness of the applications, and that the companies were 
 not bound by any knowledge, statements, or acts of any agent, not contained in 
 the application. As the companies' agents filled the blanks to suit themselves, 
 and were in that matter necessarily trusted by themselves and by the premium 
 payers, the confidence which they reposed in themselves was not likely to be 
 abused by the insertion in the applications of any unnecessary evidence of their 
 own knowledge of anything, or their own representations, or their dictation and 
 management of the entire contract on both sides. Before that era, it had been 
 understood that a corporation — an artificial being, invisible, intangible, and ex- 
 isting only in contemplation of law — was capable of acting only by agents. But 
 corporations, pretending to act without agents, exhibited the novel phenomena of 
 anomalous and nondescript as well as imaginary beings, with no visible principal 
 or authorized representative ; no attribute of personality subject to any law, or 
 bound by any obligation ; and no other evidence of a practical, legal, physical, or 
 psychological existence than the collection of premiums and assessments. The 
 increasing number of stipulations and covenants, secreted in the usual manner, 
 not being understood by the premium payer until his property was burned, 
 people were as easily beguiled into one edition as another, until at last they were 
 made to formally contract with a phantom that carried on business to the limited 
 extent of absorbing cash received by certain persons who were not its agents. 
 
 " When it was believed that things had come to this pass, the legislature 
 thought it time to regulate the business in such a manner that it should have some 
 
 360 
 
en. Till.] WAEKANTIES. — APPLICATION.— CONSTRUCTION. [§ 180 0! 
 
 title to the name of insurance, and some appearance of fair dealing; and the act 
 of 1855 was passed for that purpose. 
 
 " The loss of the time occupied by the solicitations of insurance agents, the 
 loss of premiums and assessments paid, the loss of insurance security, the vexation 
 and cost of lawsuits lost upon the astute and technical character of applications 
 and policies not understood by the premium payers, the manner in which inno- 
 cent and deluded persons were overwhelmed by an array of their theoretical 
 misrepresentations and constructive frauds, and other misfortunes incident to the 
 system, were believed to constitute a ciying evil, and a mischief of great magni- 
 tude. ( Whether any remedy was available at common law or in equity, upon 
 higher grounds and broader views than were taken, — • U. M. L. Ins. Co. v. Wil- 
 kinson, and note on that case in 11 Am. Law Eeg. N. s. 485, — we need not, in 
 this construction of statutes, stop to consider.) When the premium payer com- 
 plained that he had been defrauded, it was not, in the opinion of the legislature, 
 a sufficient answer to say that if he had been wise enough, taken time enough, 
 had good eyes enough, and been reckless enough in the use of them to read the 
 mass of fine print, and had been scholar, business man, and lawyer enough to 
 understand its full force and effect, he would have been alarmed, and would not 
 have been decoyed into the trap that was set for him. Men have a right to be 
 dealt with with some regard for the state of mind and body, of knowledge and 
 busines.s, in which they are known actually to exist. Whether they ought to be 
 what they are, or not, the fact is, that in the present condition of society men in 
 general cannot read and understand these insurance documents. Whether it be 
 reliance upon the representations of the companies' agents, or want of taste for 
 literary pursuits and critical exegesis, or defect of legal attainments, or press of 
 business, or fatigue of daily labor, or dislike of insurance topography, — whatever 
 the cause may be, the fact is, that under the ordinary circumstances of the 
 present order of things, these documents are illegible and unintelligible to the 
 generality of mankind. And it seemed to the legislature that the companies 
 who sent out their agents, knowing they would be confided in by the premium 
 payers to transact the business properly, and who issued applications and policies 
 which they knew would not be understood, should not take an unfair advantage 
 of mistakes into which the companies themselves, by their agents and their fine 
 print, caused the premium payers to innocently and unconsciously fall. The 
 action of the legislature was certainly in harmony with, if indeed It was anything 
 more than an affirmance of, the common law (in relation to fraud, estoppel, and 
 trust), which will not hear a man complain that he has led his neighbor into a 
 pit. It was also thought that insurance companies, in danger of being defrauded 
 by the premium payer's burning his own property, were required, by their private 
 interest and their public duty to see to it that they did not insure his property to 
 such an amount as to lead him into temptation ; and that their devices were not 
 a prevention of, nor an appropriate protection against, the fraudulent incendiarism 
 propagated throughout the country by excessive amounts of pretended insurance. 
 
 " As the distress of those who met with losses was not alleviated by the emi- 
 nent respectability of the men whose names figured as officers of the companies, so 
 it was the nature of a system so liable to abuse, and not the character of the nom- 
 inal or real managers of the companies, that was supposed to call for the interfer- 
 ence of the legislature. With no fault in many, and probably with substantial 
 fault in but a few, the system came to be excessively odious. It was believed there 
 had seldom been so flagrant an abuse of corporate power. The act of 1855 cuts 
 \ip a considerable portion of the supposed evil by the roots." De Lancey v. 
 Rockingham Mut. Fire Ins. Co., 52 N. H. 681. See also post, § 185. 
 
 361 
 
INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. IX. 
 
 CHAPTER IX. 
 
 REPRESENTATION. 
 Analysis. 
 
 § 181. Definition. A representation is a statement incidental to the con- 
 
 tract, and on the faith of which it is made. A material mis- 
 representation made knowingly or recklessly (i. e., without 
 sufficient reasotf to convince a man of ordinary prudence (see 
 § 185), and properly relied on, avoids the policy, unless there 
 was no iutentional fraud and the policy contains limiting 
 words such as "so far as known," or "designedly untrue," 
 &c., or the misrepresentation was induced by the fault of the 
 company or its agent (see § 188 F). 
 by the Massachusetts Public Statutes 721, the misrepresenta- 
 tion, to be fatal, must not only be material but made with 
 actual intent to deceive. This is not so just and wholesome 
 a rule as that of the common law. 
 § 182. Affirmative and promissory representations. The former may be 
 
 oral (§ 192) ; the latter, if not in writing, will be of no effect un- 
 less made mala fide. If the former fails, no contract comes into 
 existence, but the latter may fail temporarily and merely suspend 
 the policy, or entirely destroy it (§ 194). 
 § 183. Distinction between warranty and representation. The first is put 
 
 into the policy and foims part of the contract, the latter is 
 not a part of the contract but forms the basis of it, or is col- 
 lateral to it. 
 §§ 18i-188. Substantial fulfilment of material representations is enough 
 
 (§§ 184-188, see examples, § 198), but warranties whether 
 material or not must be literally complied with (see as 
 to meaning of substantial compliance § 198, good faith 
 and practical equivalence, § 199 ; as to substantial com- 
 pliance with warranty, see § 157). The test of materi- 
 ality is this, — is the representation such as wUl naturally 
 and probably influence the insurer in determining 
 whether to take the risk or not, and what premium 
 to charge? (§§ 184, 195, 196, 197.) If it had no in- 
 fluence or ought to have had none, it is immaterial 
 (§ 184). The question is usually for the jury (§§ 184, 
 195) ; though sometimes for the court (§ 185) ; and 
 sometimes both court and jury are excluded by a deter- 
 mination of the question by the parties themselves. A 
 clear agreement that the falsity of any statement in the 
 application shall avoid the policy, has this eff'ect (§ 185), 
 and making the point a subject of question and answer 
 amounts to such agreement (§§ 185-187). 
 
 362 
 
CH. IX. j EEPEESENTATION. 
 
 Even iu such cases however, the statements do not rise to 
 g 
 
 the dignity of warranties, and substantial fulfilment is 
 still sufficient (§§ 186, 197), and nothing less than sub- 
 stantial compliauce will do; no fulfilment of the letter 
 and violation of the spirit will be allowed, as is some- 
 times the case with warranties (§ 199). Although the 
 question of materiality is closed by question aud answer, 
 the truth of the answer is still for the jury (§ 187, 3rd 
 paragraph), e. g., did a certain disease exist so that a 
 negative was substantially untrue (§ 187). "Watch- 
 man when mill not in use" (§ 188). 
 In Canada an agreement which makes the policy void for 
 incorrect statements without reference to materiality is 
 deemed unjust and unreascrtiable (§ 185). 
 There is little sense in the distinction between warranty 
 and representation. As to materiality there is already 
 no difl'erence in principle. If the parties treat a repre- 
 sentation as material the law deems it so. Iu case of 
 warranties, by their very nature the parties have always 
 treated the statement as material. The other attempted 
 distinction between literal and substantial fulfilment is 
 not just, and the courts have begun to break over it. 
 Substantial fulfilment according to the circumstances and 
 the nature of the case, should always be sufficient. (See 
 §§ 157, 161, 185, 223.) Equity looks to the substance. 
 § 188 A. Examples of fatal misrepresentations; mortgage 2,000 instead of 
 
 3,000; place of goods, 
 occupation at time of application must be given, not that of 
 
 years before. See also § 306. 
 other insurance understated, 
 age. 
 where policy says false answers to written questions will avoid 
 
 it, false answers to oral questions will also, § 188 A. 
 infant owner said to be widow, § 185. 
 § 188 B. Disputed representations not fatal : 
 
 if the risk is less on the truth than on the misrepresentation, 
 
 the policy is not void, 
 "beneficiary a dependent," immaterial, 
 deed ownership said to be under will immaterial, 
 "ship shaU sail in ballast," a few goods unknown to assured, 
 
 immaterial, 
 representations not material nor wilful, not fatal, 
 "no spirits allowed on board" excludes only their use, not 
 
 freight, § 188 B. 
 and see three following sections. 
 
 if representation does not induce the contract it is not mate- 
 rial, § 197. 
 § 188 C. "When built" means year of construction, though part of mate- 
 
 rials old. 
 usage that the question refers only to houses all of new stuff, 
 
 inadmissible, 
 wrong date immaterial if house no worse for age. 
 
 363 
 
§ 181] INSURANCE ; FIEE, LIFE, ACCIDENT, ETC. [CH. IX. 
 
 A knowingly false answer as to other applications is fatal, but "no 
 former application " is a true answer, though an application had 
 heen made but not passed on; see § 215. 
 Value. 
 
 honest answer to ambiguous question sufficient, 
 matter of opinion, only good faith required, unless the state- 
 ment of value is made part of contract. 
 § 188 D. Expression of belief, expectation, or intention not fatal unless 
 dishonest, 
 day a vessel is expected to sail. 
 Reasonable grounds for belief is enough. 
 The law will not presume a itoisrepresentation. 
 § 188 E. Statement made expressly on the authority of others not fatal. 
 
 Eepresentation* may be withdrawn or qualified before policy is 
 issued. 
 § 188 F. The company's representations in a pamphlet shown to one to 
 
 induce him to insure bind company. 
 If misrepresentations of the agent induce the misrepresentations 
 of the assured the company is held. 
 § 189. A representation though false as to only a portion of the subject it 
 
 covers, generally avoids the entire contract, but a misrepresenta- 
 tion in good faith as to ownership of real estate is not fatal as to 
 the personal property, though the premium is a gross sum (as it 
 usually is in more senses than one). 
 § 190. Effect of change during negotiations. Although a representation be 
 
 true when made, yet if untrue when the contract is completed, 
 the latter is void. Health changing to illness. A new policy 
 issued by another company on the old risk, however, does not 
 assume the continuance of the representations. In case of a 
 renewal, qucsre. 
 § 191. A change after completion of the contract is immaterial. Use and 
 
 circumstances of a building need not continue the same unless 
 expressly so agreed. An answer as to the present status is held 
 not to promise continuance. (See also §§ 231, 247, 248.) Where 
 however the question could have no other purpose, and good faith 
 would not allow change, the law ought not to countenance it. 
 Good faith is part of every agreement whether its requirements 
 are expressed or not; see §§ 157, 244, 250-252. 
 § 192. If there is a written application, prior or subsequent oral state- 
 
 ments become immaterial. All representations are merged in 
 the writing. 
 § 193. Equivocal words, — "cotton rags ; " " leased or rented." 
 
 See further, §§ 250-263. 
 
 § 181. Representation defined. — A representation is a 
 statement incidental to the contract, relative to some fact 
 having reference thereto, and upon the faith of which the 
 contract is entered into. If false and material to the risk, 
 the contract is avoided. Such a false statement is termed 
 in insurance a misrepresentation, which has been well de- 
 364 
 
CH. IX.] EEPRESENTATION. [§ 182 
 
 fined to be the statement of something as fact Avhich is 
 untrue in fact, and which tlie insured states knowing it to 
 be untrue, with the intent to deceive the insurers, or which 
 he states positively as true without knowing it to be true, and 
 which has a tendency to mislead, — such fact, in either case, 
 being material to the risk and adverse to the insurers. ■* (a) 
 
 The general doctrine undoubtedly is, that a misrepresen- 
 tation, whether made intentionally or through mistake and 
 in good faith, avoids the policy, on the ground that, in 
 either case, the injury to the insurer is the same. It is the 
 fact that the insurer relies upon the truth of the representa- 
 tion, and not upon the intention, which misleads, whether 
 fraudulent or otherwise, that gives him the right to com- 
 plain. And the same doctrine has been frequently held 
 with reference to concealment, but perhaps with less rea 
 son, as to which, however, we shall see more particularly 
 hereafter. 2 But a simply untrue statement is not a "pal- 
 
 1 Daniels et al. v. Hudson River Fire Ins. Co., 12 Cush. (Mass.) 416 ; Camp- 
 bell V. New England Mut. Life Ins. Co., 98 Mass. 381 ; Niool ■.. Am. Ins. Co., 
 3 W. & M. (U. S. C. Ct.) 529. 
 
 2 Post, ch. viii. See also Byers v. Farmers' Ins. Co. (Ohio), 9 Ins. L. J. 743 ; 
 Attorney-General v. Ray, L. R. 9 Ch. 397. 
 
 (a) Representations in relation to jEtna F. Ins. Co. (N. Y.), 16 Am. Dee. 
 
 warranties are considered supra in the 460, 463, n. "When the policy does 
 
 notes to §§ 156, 159. The powers of not make the application a part of the 
 
 insurance agents are not affected by contract and contains no warranty as to 
 
 the question whether the application the truth of statements in the applica- 
 
 eontains warranties or only representa- tion, such statements will not defeat 
 
 tions. Mutual Ben. L. Ins. Co. u. the policy unless both material and un- 
 
 Robison, 58 Fed. Rep. 723. A repre- true, and the question is one of fact for 
 
 sentation is not necessarily a part of the jury. Fidelity & Casualty Co. v. 
 
 the contract of insurance, or of its Alpert, 67 Fed. Rep. 460. "Where a 
 
 essence ; but, as it is rather something check mark was made opposite various 
 
 collateral or preliminary, and in the questions in the application, which were 
 
 nature of an inducement to it, it should apparently immaterial because answered 
 
 in general, by some phraseology of the in previous questions, such mark cannot 
 
 policy, be made part thereof. A false be construed as a negative answer to the 
 
 representation, unlike a false warranty, question whether any prior application 
 
 does not vitiate the contract or avoid for insurance had been made on which 
 
 the policy, unless it relates to a fact no policy was issued ; and when a policy 
 
 actually material, or clearly intended to is issued upon such application, im- 
 
 be made material, by the agreement of perfect or unsatisfactory answers are 
 
 the parties. Weil v. New York L. Ins. waived. Manhattan L. Ins. Co. ^. 
 
 Co. (La.), 24 Ins. L. J. 641 ; Fowler v. Willis, 60 Fed. Rep. 236. 
 
 365 
 
§ 182] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. IX. 
 
 pably fraudulent or untrue " one ; ^ and good faith is always 
 sufficient, when the policy provides only for truth "so far 
 as is known to the applicant,"^ or against "designedly un- 
 true " statements.^ The responsibility for misrepresenta- 
 tions is not, however, confined to those contained in the 
 application, under a provision that such misrepresentations 
 shall avoid the policy. Any other misrepresentation made 
 at the time is equally fatal.* 
 
 § 182. Affirmative and Promissory. — Representations, like 
 warranties, may be affirmative or promissory. The former 
 are those which affirm the existence of a particular state of 
 things at the time the contract of insurance is made and 
 becomes operative. The latter are those which are made by 
 the assured concerning what is to happen during the term 
 of the insurance, stated as matters of expectation, or, it 
 may be, of contract. The one is an affirmation of a fact 
 existing when the contract begins; the other is a promise 
 to be performed after the contract has come into existence. 
 And upon this distinction follows the important consequence 
 that, while material falsity in an affirmative representation 
 will be a complete defence to an action on a policy of insur- 
 ance, the material falsity of an oral promissory representa- 
 tion without fraud is no defence whatever. And the reason 
 of the distinction is this. The falsehood of the representa- 
 tion of a material fact misleads the insured into a contract 
 which he does not intend to make, and therefore, in con- 
 templation of law, because misled and deceived, does not 
 make. He may therefore set up the fact that he was misled 
 or deceived, as proof that no agreement was ever made, since 
 there was no concurrence of consent upon the same facts. 
 But an oral promissory representation, being an agreement 
 prior in date to the actual contract of insurance, and in its 
 nature such that it cannot be performed until after the con- 
 tract of insurance has taken effect, cannot be set up to de- 
 
 ^ Guinane v. Hope Mut. Life, &e. Soc, 7 Irish Jur. o. s. 119. 
 ^ Garcelon v. Hampden Fire Ins. Co., 50 Me. 680. 
 5 Fowkes V. Manchester & Lan. Assur. Assoc, 3 B. & S. 917. 
 * Wainwright v. Bland, 2 Mad. & Kob. 481 ; s. o. 1 ' Mees. & Wels. 32 ; Ab- 
 bott V. Howard, Hayes (Irish), 381. 
 
 366 
 
CH. IX.] EEPEESENTATION. [§ 183 
 
 feat the later contract; for this would be to violate a 
 fundamental rule of evidence, and make the continuance or 
 maintenance of a written contract dependent upon the per- 
 formance or breach of an earlier oral agreement. If the 
 oral promise be made mala fide, and with the intention to 
 mislead and deceive, the fraud will have the same effect as 
 the material falsity of an afiBrmative representation. But if 
 made bona fide and without intention to mislead or deceive, 
 it cannot be set up to avoid a contract. ^ Only those promis- 
 sory representations are available for such a purpose which 
 are reduced to writing and made part of the contract, — thus 
 becoming substantially, if not formally, warranties.^ 
 
 § 183. Distinction between Warranty and Representation.^ 
 — The main distinction between a warranty and a represen- 
 tation — that while the former is an agreement constituting 
 a part of the contract, the latter is but a statement inci- 
 dental thereto — is to be carefully observed, as it carries 
 with it important consequences.* A warranty enters into 
 
 1 [For example, the failure of company A. to keep a fl 0,000 risk on the life 
 of C. as it promised company B. to do, in order to induce B. to reinsure the 
 remainder of the risk then held by A. on the life of C, is no ground of 
 defence to recovery on the policy. Prudential Ass. Co. u. jEtna L. lus. Co., 
 62 Conn. 576. Failure to comply with an oral promissory representation made 
 before the policy was issued without fraud, is not a valid defence to liability on 
 the policy. Prudential Ass. Co. v. Mtna L. Ins. Co., 23 Blatch. 223.] 
 
 2 Kimball v. Mtna. Ins. Co. et al., 9 Allen (Mass.), 540; Kimball v. Spring- 
 field Fire & Mar. Ins. Co., id. This distinction has not met the approbation of 
 some learned writers. See 1 Arnould, Ins. 498 ; 2 Duer, Ins. 749 et seq .; 1 
 Phil. Ins. § 533. But the opinion by Mr. Justice Gray in the cases cited will be 
 likely to command the assent of the profession. It is a learned, clear, and 
 satisfactory statement of the distinction referred, and the reasons upon which 
 it rests. And see post, § 192. 
 
 * [Statements will be held to be representations and not warranties if such a 
 construction is possible. See §§ 159, 162, 164, 170-171.] 
 
 * [In contracts of insurance a representation differs from a warranty and 
 from a condition expressed in the policy in that the former is part of the pre- 
 liminary proceedings which propose the contract, and the latter is a part of the 
 contract when completed. Glendale Woolen Co. v. Protection Ins. Co., 21 Conn. 
 19, 32. The validity of the entire contract depends upon the truth or fulfilment 
 of the warranties and conditions expressed therein, and non-compliance is a breach 
 of the contract which makes it void ; but a misrepresentation to avoid the policy 
 must have been in a material matter or have been made with fraudulent intent. 
 A plea may allege non-compliance with a condition and be good. But if only a 
 representation, an allegation must be made that it was material or fraudulently 
 made. Dewees v. Manhattan Ins. Co., 34 N. J. 244, 247, 248, 251.] 
 
 367 
 
§ 183] INSURANCE : riKE, LIFE, ACCIDENT, ETC. [CH. IX. 
 
 and forms a part of the contract itself. It defines by way 
 of particular stipulation, description, condition, or other- 
 wise, the precise limits of the obligation which the insurers 
 undertake to assume. No liability can arise except within 
 those limits. In order to charge the insurers, therefore, 
 every one of the terms which define their obligation must 
 be satisfied by the facts which appear in proof. From the 
 very nature of the case the party seeking his indemnity must 
 bring his claim within the provisions of the instrument he 
 is undertaking to enforce. The burden of proof is upon him 
 to present a case in all respects conforming to the terms 
 under which the risk was assumed. And it is sometimes 
 said that it must not be merely a substantial conformity, 
 but exact and literal, not only in material particulars, but 
 in those that are immaterial as well.^ On the other hand, a 
 representation is, in its nature, no part of the contract. Its 
 relation to the contract is usually described by the term 
 "collateral." It may be proved, although existing only in 
 parol and preceding the written instrument. Unlike other 
 verbal negotiations, it is not merged in or waived by the 
 subsequent writing. This principle is in some respects 
 peculiar to insurance, and rests upon other considerations 
 than the rule which admits proof of verbal representations 
 to impeach written contracts on the ground of fraud. Rep- 
 resentations to insurers, before or at the time of making the 
 contract, are a presentation of the elements upon which to 
 estimate the risk proposed to be assumed. They are the 
 basis of the contract, — its foundation, on the faith of which 
 it is entered into. If wrongly presented in any respect 
 material to the risk, the policy that may be issued there- 
 upon will not take effect. To enforce it would be to apply 
 the insurance to a risk that was never presented. But where 
 the insurer seeks to defeat a policy upon this ground, his 
 position in court is essentially different from that which he 
 may hold under a policy containing a like description of the 
 risk as one of its terms. It is sufficient for the plaintiff to 
 show fulfilment of all the conditions of recovery which are 
 1 But see ante, § 164 et seq., and post, § 186. 
 
 368 
 
CH. IX.J REPRESENTATION. [§ 184 
 
 made such by the contract itself. The burden is then 
 thrown upon the defendant to set forth and prove the un- 
 truthfulness of the representations, if there are any such, 
 upon which he relies, and their materiality to the risk.^ 
 
 § 184. Materiality. — Out of this distinction arises the 
 question of materiality. Representations need not, like 
 warranties, be strictly and literally complied with, but only 
 substantially and in those particulars which are material to 
 be disclosed to the insurers to enable them to determine 
 whether they will enter into the contract, and upon what 
 terms. In case of warranty the question of materiality does 
 not arise. In case of representation it always does;^ and if 
 this materiality depends upon facts and circumstances, it is 
 a question for the jury, to be inferred from those facts and 
 circumstances,^ as is also the materiality of a concealment.* 
 The test of the materiality of a misrepresentation or con- 
 cealment is, that it influences the insurer in determining 
 whether to accept the risk, and what premium to charge.^ 
 [A misrepresentation is material under Pub. Sts. c. 119, 
 ss. 138-139, 181, if it increases the risk of loss, although 
 not intended to deceive.^ (a)] 
 
 1 Campbell v. New England Mut. Life Ins. Co., 98 Mass. 381 ; Price v. Phce- 
 nix Life Ins. Co., 17 Minn. 497 ; Miller v. Mut. Benefit Life Ins. Co., 31 Iowa, 
 216 ; N. Y. Life Ins. Co. v. Graham, 2 Duv. (Ky.) 506. [The onus is on the 
 company alleging untruth of answers, to show what the application contains, 
 and until this is done the plaintiff is not called on to prove the truth of his 
 statements. Roach v. Ey. Mut. Security Fund Co., 28 S. C. 431.] 
 
 2 [In the absence of an express stipulation to the contrary, misrepresentations, 
 to avoid the policy must be material. Mosley », Insurance Co., 55 Yt. 142, 151.] 
 
 8 Garcelon v. Hampden Fire Ins. Co., 50 Me. 580 ; Mut. Ins. Co. v. Deale, 
 18 Md. 26 ; Keeler v. Niagara Fire Ins. Co., 16 Wis. 523 ; Farmers' Ins. & Loan 
 Co. V. Snyder, 16 Wend. (N. Y. ) 481 ; Daniels et al. u. Hudson Eiver Fire Ins. 
 Co., 12 Gush. (Mass.) 416 ; Franklin Ins. Co. v. Coates, 14 Md. 285. 
 
 * Tylfir V. jEtna Ins. Co., 12 Wend. (N. Y.) 507 ; Protection Ins. Co. t-. Har- 
 mer, 22 Ohio (2 Ohio St.), 452 ; Insurance Co. u. Chase, 5 Wall. (U. S.) 509 ; 
 Tesson v. Atlantic Mut. Ins. Co., 40 Mo. 33 ; Curry v. Commonwealth Ins. Co., 
 10 Pick. (Mass.) 535 ; Gates v. Madison County Mut. Ins. Co., 1 Seld. (N. Y.) 
 469 ; Mut. Ins. Co. v. Deale, 18 Md. 26. 
 
 5 Eyan v. Springfield, &c. Ins. Co., 46 Wis. 671. [If the misrepre.sentation 
 had no influence or ought to have had none on the risk, it is immaterial. Clason 
 V. Smith, 3 Wash. 156, 157.] 
 
 6 [Piing V. Phoenix Ass. Co., 145 Mass. 426.] 
 
 (a) See Davis v. ^tna Mut. F. Ins. Co., 68 N. H. 315. 
 VOL. I.— 24 369 
 
§ 185] insurance: fire, life, accident, etc. [ch. IX. 
 
 § 185. Question and Answer conclusive as to Materiality ; 
 Agreement as to Effect of Misrepresentation. — But when the 
 representations are in writing, and the parties, by the frame 
 of the contents of the papers, either by putting representa- 
 tions as to the history, quality, or relations of the subject 
 insured into the form of specific questions, or by the mode 
 of referring to them in the policy, settle for themselves that 
 they shall be deemed material, they are to be declared so 
 by the court, and the insured -cannot be permitted to show 
 that a fact which both parties have treated as material is in 
 fact immaterial. The inquiry shows that the insurer con- 
 siders the fact material, and an answer by the insured 
 affords a just inference that he assents to the insurer's view. 
 The inquiry and answer are tantamount to an agreement that 
 the matter inquired about is material, and its materiality is 
 not therefore open to be tried by the jury.^ That this mate- 
 riality is under such circumstances a question for the court, 
 has been frequently decided, especially in cases where untrue 
 answers are given to questions as to title.^ Whether certain 
 
 1 Wilson V. Conway Ins. Co., 4 R. I. 141 ; Chaffee v. Cattaraugus County 
 Mut. Ins. Co., 18 N". Y. 376 ; Campbell v. New England Mut. Life Ins. Co., 98 
 Mass. 381 ; Anderson v. Fitzgerald, 4 H. L. Cas. 484 ; Miller v. Mut. Benefit Life 
 In.s. Co., 31 Iowa, 216 ; Le Koy v. Market Ins. Co., 39 N. Y. 90; Price v. Phce- 
 nix Mut. Life Ins. Co., 17 Minn. 497 ; Bennett v. Anderson, 1 Irish Jur. o. s. 
 245, Q. B. 245 ; Blumer v. Phosnix Ins. Co., 45 Wis. 622 ; Jeffries v. Economical 
 Life Ins. Co., 22 Wall. (U. S.) 47,; jEtna Life Ins. Co. o. France, 91 U. S. 510, 
 512; Cheever v. Union Cent. Life Ins. Co. (Superior Ct. Cincinnati), 5 Ins. 
 L. J. 159. In Mutual Life Ins. Co. v. Jeffries, in the Supreme Court of the 
 United States, where the applicant answered that he was single when in fact he 
 was married, the policy was held to be void, following the cases before cited in 
 the same court in this note ; 5 Ins. L. J. 533 ; Trefz v. Knickerbocker Life Ins. 
 Co. (C. Ct. N. J.), 6 id. 850. [A misrepresentation or concealment by one party 
 of a fact specifically inquired about, (hough not material, will avoid the policy. 
 Fame Ins. Co. v. Thomas, 10 lU.Ap. 545, 556. The answer to a specific question, 
 if a fraudulent misrepresentation will avoid the policy though not really material, 
 for the parties by putting and answering the question have indicated that they 
 deemed the matter to be material. Schwarzbach v. Protective Union, 25 W. Va. 
 622, 655. A misrepresentation must be material unless clearly agreed that it 
 shall avoid whether material or not. Mosley v. Vt. M. F. Ins. Co., 55 Vt. 142. 
 A question and answer are equal to an agreement that the matter inquired about 
 is material, and the question of materiality is not open to the jury. Cuthbertson 
 V. Insurance Co., 96 N. C. 480.] 
 
 2 Locke I'. North American Fire Ins. Co., 13 Mass. 61, 68 ; Strong v. Manuf. 
 Ins. Co., 10 Pick. (Mass.) 40, 45; Fletcher , w. ' Commonwealth Ins. Co., 18 id. 
 
 370 
 
CH. IX.] EEPEESENTATION. [§ 185 
 
 statements are or are not material, is a matter upon which 
 there may be a difference of opinion. Nothing therefore can 
 be more reasonable than that parties entering into a contract 
 of insurance shall determine for themselves what they think 
 to be material. And that determination is conclusive.^ So 
 an agreement that the falsity of any statement in the appli- 
 cation shall avoid the policy excludes from the court and 
 jury the question of its materiality.^ And it is of no con- 
 sequence that the assured did not know of its falsity.^ [In 
 Canada, however, it is held that a variation of the statutory 
 
 419, 421 ; Draper v. Charter Oat Ins. Co., 2 Allen (Mass. ), 573 ; Towne v. Fitch- 
 burg Ins. Co., 7 id. 51, 53 ; North Am. Fire Ins. Co. u. Throop, 22 Mich. 146 ; 
 post, § 209. 
 
 ^ Anderson u. Fitzgerald,. 4 H. L. Cas. 484. In Gerhauser v. ISTorth British 
 Ins. Co., 6 Nev. 15, it is said that it may be doubted whether the fact that a 
 question is put and answered is anything more than evidencfi tending to prove 
 materiality, — a doubt which certainly is not without reason. It ought not to be 
 conclusively presumed that the intention of honest and intelligent parties to a 
 contract is to make its validity depend on the truth of an answer containing 
 matters wholly foreign to the risk, or, it may be, wholly irrelevant to the contract. 
 Suppose it be said that the insured house faces to the north when in fact it faces 
 to the south, or that it is painted red when in fact it is painted white. See 
 Conover v. Mass. Mut. Life Ins. Co., 3 Dill. C. Ct. 217; ante, § 164 et seq. ; 
 Fitch V. American Popular Life Ins. Co., 59 N. Y. 557, reversing s. o. 2 Sup. Ct. 
 (N. Y.) 247; Moulor v. American Life Ins. Co., 101 U. S. 708. In Fitch v. 
 American Popular Life Ins. Co., supra, it appeared that it was explained in the 
 application, among other things, that the insurance could only be jeopardized 
 by dishonesty or inexcusable carelessness, and then a series of questions was 
 put, which, to use the language of the court, " no human being could with safety 
 undertake to answer accurately and warrant the correctness of his answers." In 
 such a case, say the court, " a company cannot be permitted in the same paper 
 to say to the assured, to induce him to enter into the contract, that nothing but 
 fraud or intentional misstatement shall avoid the policy, or that payment will be 
 contested only in cases of fraud, and, when the claim for payment is presented, 
 to set up as a defence a merely technical breach of warranty in relation to some 
 trivial matter though the answers were warranted to be true." 
 
 2 Jeffries v. Insurance Co., 22 Wall. (U. S.) 48 ; ^tna Ins. Co. v. France, 91 
 U. S. 510, 512 ; Co-operative Life Ass. v. Leflore, 53 Miss. 1. [Where the 
 policy is to be void in case of " any misrepresentation whatever," a statement 
 that the owner was M. E. Jack, the widow of Capt. Jack, when really she was 
 an infant three years old, avoids the policy. Graham u. Fireman's Ins. Co., 87 
 N. Y. 69.] 
 
 3 Macdonald v. Law Union, &c. Ins. Co., L. R. 9 Q. B. 328 ; s. c. 3 Iiis. L. J. 
 797. [Byers o. Farmers' Ins. Co., 35 Ohio St. 606 ; Insurance Co. v. Pyle, 44 
 Ohio St. 19. In equity it is immaterial whether the party misstating a fact 
 knew it to be false or did not have reason to believe it was true, even if misrepre- 
 sented by mistake. Harding v. Randall, 15 Me. 332, 335.] 
 
 371 
 
§ 186] insurance: fire, life, accident, etc. [CH. IX. 
 
 condition which declares a policy void for false or incorrect 
 statements without provision as to their materiality is unjust 
 and unreasonable ; 1 and this seems to be a just and true 
 decision,] 
 
 § 186. Such Representations construed less strictly than 
 Warranties. — Representations of this kind, however, are not 
 strictly warranties, and differ from warranties in that a sub- 
 stantial compliance with them is sufficient to answer their 
 terms. 2 Whether there has been such substantial compli- 
 ance, that is, whether the representation is in every mate- 
 rial respect true is a question of fact for the jury. But it is 
 not for the jury to say that the representation, though sub- 
 stantially untrue, is nevertheless immaterial. For example : 
 suppose that in answer to a specific question the insured 
 states his age to be thirty years, when in fact he is a month 
 older; or that a building is one hundred and ninety feet dis- 
 tant from another, when in fact it is but one hundred and 
 seventy-eight feet distant;^ or that there is no building 
 within a hundred feet of the premises insured, when in fact 
 there is a small building adjoining used as a water-closet;* 
 or that the applicant has three brothers, when in fact he has 
 three brothers and four half-brothers;^ it would be proper to 
 submit to the jury whether the answer, though strictly and 
 technically untrue, is not substantially and materially true. 
 The materiality of the variance may properly be considered 
 by the jury in passing upon the truth of the answer. Not 
 so, however, if the answer be that one stove only is used, 
 when in fact two were used.^ Nor under this guise would 
 they have a right to pass upon the materiality of the ques- 
 tion itself, that being conclusively settled by the act of the 
 parties, by which both must be bound. The substantial 
 
 1 [Reddict v. Saugeen Miit. Fire Ins. Co., 14 Ont. K. 506.] 
 
 ■' Horn V. Amicable Mut. Life Ins. Co., 64 Barb. (N. Y.) 81 ; post, § 204. 
 [Higgle V. American Lloyd.s, 14 Fed. Rep. 143, 7th Cir. 111. 1882 ; Higgie u. 
 National Lloyds, 11 Bias. 395.] 
 
 8 O'Neil V. Ottawa Agr. Ins. Co., 15 Can. L. J. 207, 208 (U. C. C. P.), 1879. 
 
 1 Naughter v. Ottawa Agr. Ins. Co., 43 U. C. (Q. B.) 121. 
 
 6 Bridgman v. London Life Ass. Co. (U. C. Q. B.), 16 Can. L. J. 29 (1880). 
 
 6 O'Neil V. Ottawa Agr. Ins. Co. (U. C. C. P.), 15 Can. L. J. n. s. 207, 208. 
 
 372 
 
CH. IX.] EEPEESEXTATION [§ 186 
 
 truth of the statement — its truth in all respects material to 
 the risk ^ — they may pass upon ; with the materiality of the 
 facts they have nothing to do.^(a) To further illustrate: 
 Where the interrogatory was, "How long since the party 
 was attended by a physician ? For what disease or dis 
 eases ? " and the answer, "Not since the year 1847, when he 
 had the yellow fever," — it was held that the testimony of a 
 physician that he had attended the applicant since that time 
 for asthma did not justify the withdrawal of the case from 
 the jury, and that the question whether he in fact had 
 asthma, as well as whether he may not have understood the 
 interrogatory as asking information respecting attendance 
 for a particular disease or diseases, and their description, 
 should have been submitted to the jury.^ So the question 
 whether he has consulted a physician, as it naturally diverts 
 the mind to a recent time, will not be held to be untrue, be- 
 cause at some more or less remote period a physician was 
 consulted.* And where the question was whether the appli- 
 cant had any other insurance upon his life, and the answer 
 
 1 Cadwalader, J., in France v, jEtna Life Ins. Co., 2 Ins. L. J. 657. 
 
 2 Miller v. Mat. Benefit Life Ins. Co., 31 Iowa, 216 ; Miit. Benefit Life Tns. 
 Co. V. Wise, 34 Md. 682 ; Horn v. Amicable Mut. Life Ins. Co., 64 Barb. 
 (N. Y.) 81. In Equitable Life Iss. Soc. v. Paterson, 41 Ga. 338, where the 
 policy was to be void upon any false statement respecting person or family, and 
 the insured stated that the woman whose life was insured was his wife, when in 
 fact she was not, as his real wife was alive, though it did not appear that he knew 
 it, it was held that the statement was material if the insured knew it to be false ; 
 otherwise not. Bat this seems to be counter to all the authorities. The mate- 
 riality does not at all depend upon a knowledge of the truth or falsehood of the 
 facts. As to effect of knowledge in concealment, see {lost, § 202. 
 
 3 Moulor V. Am. Life Ins. Co., 101 U. S. 708. 
 
 4 World's Mut. Life Ins. Co. v. Sohultz, 73 111. 586. See also Eockford Ins. 
 Co. V. Nelson, 65 id 4] 5. 
 
 (a) See Cobb v. Covenant Mut. be specially set up in defence by the 
 
 Benefit Ass'n, 153 Mass. 176 ; March v. insurer, who has the burden of proof. 
 
 Met'u L. Ins. Co., 186 Penn. St. 629 ; O'Connell v. Knights of Damon, 102 
 
 Sweeney v. Met'n L. Ins. Co., 19 E. I. Ga. 143 ; Chambers v. Northwestern 
 
 171 ; Mutual L. Ins. Co. v. Simpson, 88 Mut. L. Ins. Co., 64 Minn. 495 ; 
 
 Texas, 333. Eepresentations in an ap- Marstou v. Kennebec Mut. L. Ins. 
 
 plication for a life policy are presumed Co.,' 89 Maine, 266; Benjamin v. 
 
 to be true; and fraud, misrepresentation. Conn. Ind. Ass'n, 44 La. Ann. 1017; 
 
 or concealment, to be relied upon, must Yore v. Booth, 110 Cal. 238. 
 
 .373 
 
§ 187] IMSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. IX. 
 
 was "yes," when there was only a proposal for insurance 
 pending, it was left to the jury to say whether that answer 
 was true or not true in the sense di the policy, and to find it 
 to be true if it was more prejudicial to him and less injuri- 
 ous to the insurer, than if the answer had been literally 
 true. ^ 
 
 § 187. Substantial Truth of Answers (^continued). — In a 
 leading case, where the questions were whether the appli- 
 cant then or theretofore was or had been subject to, or in 
 any way affected by, consumption, bronchitis, spitting of 
 blood, &c., to which the answer was in the negative, the 
 court say : " The only question for the jury on this branch 
 of the case, therefore, was whether these representations 
 were substantially untrue ; that is to say, whether at or be- 
 fore the time of making the application the assured actually 
 had either of these diseases or infirmities; and, if they 
 found that he had, the policy was void, and the plaintiff 
 could not recover. Applying this rule to the evidence stated 
 in the report, it was for the jury to decide whether ' chronic 
 bronchitis,' or 'bronchial difficulty,' or any other bodily 
 affection or condition to which the assured was found by 
 them to have been subject, amounted to bronchitis, con- 
 sumption, disease of the lungs, or some other of the in- 
 firmities stated in the application and relied on by the 
 defendants; and whether the spitting of blood by him, if 
 proved to have taken place, was under such circumstances 
 as to indicate disease in his throat, lungs, air passages, or 
 other internal organs. But it was not within the province 
 of the jury, under the guise of determining whether the 
 statements of the applicant were materially false or untrue 
 in some particulars material to the risk, to find that dis- 
 eases and infirmities were not material to be disclosed, 
 which the parties had by the form of the contract of insur- 
 ance and of the contemporaneous written application con- 
 
 1 Inman v. Glote Mut. Life Ins. Co., C. Ct. (Ky.), 4 Ins. L. J. 719. In Som- 
 ers V. Athenaeum Ins. Co., 9 L. C. S. C. Montr. 61, it was held that a represen- 
 tation that an attached house was unattached was immaterial, it appearing that 
 the premium paid was for an attached house. 
 
 374 
 
CH. IX.J KEPKESEMTATION. [§ 187 
 
 clusively agreed to consider material. " ^ So in Price v. 
 Phoenix Mutual Life Insurance Company,^ where the ques- 
 tion was, "Has the party ever had any of the following dis- 
 eases ? " naming several, and among others, " rheumatism, " 
 and the answer was, "Never." In that case there was evi- 
 dence tending to show that the life-insured had had sub- 
 acute rheumatism. There was also evidence in the case 
 tending to show that sub-acute rheumatism is not the dis- 
 ease of rheumatism, in the ordinary understanding of the 
 term. There was also evidence tending to show that, tech- 
 nically, and in medical parlance, sub-acute rheumatism is 
 the disease of rheumatism, and that it is generally over- 
 looked as a disease. And the court left it to the jury to 
 say, whether the rheumatism referred to in the question is 
 the disease of rheumatism. Any rheumatic affection not 
 amounting to the disease of rheumatism, they said, would 
 not be comprehended in its terms, any more than the spit- 
 ting of blood occasioned by a wound of the tongue, or the 
 extracting of a tooth, is the disease of "spitting of blood," 
 mentioned in the same question. The life-insured had a 
 right to answer the question upon the basis that its terms 
 were used in their ordinary signification. If there is any 
 ambiguity in the question, so that its language is capable of 
 being construed in an ordinary, as well as a technical sense, 
 the defendant can take no advantage from such ambiguity.^ 
 And in the same case, to the question, " Has the party had, 
 during the last seven years, any severe sickness or disease ? " 
 the answer was, "No." The allegation in defence was, that 
 the life-insured had had within seven years chronic gastritis. 
 There was evidence tending to show that he had had gas- 
 tritis ; and the court said that unless chronic gastritis and 
 gastritis are synonymous, as to which there is no judicial 
 presumption nor testimony, the evidence was not within 
 the issue, so that the false representation charged was not 
 
 1 Campbell v. New England Mut. Life Ins. Co., 98 Mass. 381 ; Gerhauser v. 
 Korth Brit. & Mar. Ins. Co., 6 Nev. 15 ; Conover v. Mass. Mut. Life Ins. Co., 3 
 Dill. (C. Ct.) 217 ; Swiok v. Home Ins. Co., 2 id. 161 ; post, § 300. 
 
 2 17 Minn. 497. 
 
 8 Wilson V. Hampden Fire Ins. Co., 4 E. I. 159. And see post, §§ 202, 210. 
 
 375 
 
§ 187] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. IX. 
 
 proved. In addition to this consideration, the court was 
 not free from doubt as to whether gastritis was shown to he 
 "a severe sickness or disease." "We can," it said, "take 
 no judicial cognizance of its character. The evidence cer- 
 tainly has a strong tendency to show that it was the result 
 of the excessive use of spirits, and that it was an affection 
 of brief duration. We cannot say that the jury might not, 
 upon the evidence, find a warrant for regarding it as a tempo- 
 rary consequence of dissipation, rather than a 'severe sick- 
 ness or disease, ' in the ordinary meaning of those terms. " 
 
 So if the question be whether the party be employed in 
 the military service, the jury may consider whether the facts 
 proved show an actual employment, but not the materiality 
 of the fact; or if he has had any sickness or serious injury, 
 they may consider whether the facts proved amount to " sick ■ 
 ness " or "serious injury," as understood by the parties, but 
 not whether the sickness, if proved, is material; or if the 
 application of the insured has been declined by any com- 
 pany, they may consider whether the facts proved amount to 
 a declination, but not whether the declination is material. 
 The question of materiality is closed by the interrogatory 
 and answer; the question of the truth of the answer is for 
 the jury; and here they have so much latitude as to be 
 allowed to find it to be true, if it is substantially true, 
 though not technically, literally, or exactly true. To war- 
 rant against disease is one thing ; to say that there is none, 
 on penalty of forfeiture if there is untruth, is perhaps an- 
 other, the element of knowledge sometimes entering into 
 this question of truthfulness. ^ (a) 
 
 1 Mut. Benefit Life Ins. Co. u. "Wise, 34 Md. 582, 583. See also Wilkinson v. 
 Conn. Mut. Life Ins. Co., 30 Iowa, 119; Swift v. Mass. Mut. Life Ins. Co., 63 
 N. Y. 186 ; Hutchison v. Nat. Loan Fund Life Ins. Co., 7 Ct. of Sess. Cases, 2d 
 series, 467 ; s. c. 3 Big. Life & Aco. Ins. Cas. 444, u very instructive case. See 
 also ante, § 187 | post, § 295 et seq. ; World Mut. Life Ins. Co. o. Schultz, 73 
 111. 586. 
 
 (a) Neglect of. the applicant to dli- Ins. Co., 186 Penn. St. 629. But see 
 
 close an ailment which would cause the Bauingart v. Modern Woodmen of 
 
 risk to be rejected, if known, is not America, 85 Wis. 546 ; Boyle v. Noilh- 
 
 fraud when its real nature is wholly western Mut. Relief Ass'n, 95 Wis. 312 ; 
 
 unknown to him. March i'. Met'n L. Globe Reserve Mut. L. Ins. Co. ■«. Duffy, 
 
 375 
 
CH. IX.] 
 
 EEPKESENTATION. 
 
 [§188 
 
 § 188. As another illustration of what is meant by the 
 substantial truth of answers to questions, may be cited the 
 recent case of Power v. City Fire Insurance Company,' 
 where the answer was, " There is a watchman when the mill 
 is not in use," and the court charged the jury that it was for 
 
 1 8 Phila. 566. 
 
 76 Md. 293 ; Albert v. Mutual L. Ins. 
 Co., 122 N. C. 92. When the policy 
 is delivered by the insurer's agents who 
 know the applicant's physical condition 
 and state of health, or overdue pre- 
 miums are repeatedly taken without 
 requiring health certificates, there is a 
 waiver of tlie health conditions. Man- 
 hattan L. Ins. Co. V. Carder, 82 Fed. 
 Rep. 986. See New York L. Ins. Co. 
 u. Baker, 83 id. 647 ; jEtna L. Ins. Co. 
 .--. Smith, 88 Fed. Kep. 440. In gen- 
 eral, temporary ailments, that do not 
 necessarily cause death, need not be 
 mentioned by an applicant for life in- 
 surance, nor do they vitiate a rein- 
 statement. Penn. Mut. L. Ins. Co. v. 
 Mechanics' Sav. B. & T. Co., 37 U. S. 
 App. 692 ; 43 id. 75 ; Fidelity Mut. 
 L. Ass'n V. Miller, 92 Fed. Rep. 63 ; 
 Knights of Pythias v. Cogbill, 99 Tenn. 
 28 ; French v. Mutual Reserve Fund L. 
 Ass'n, 111 N. C. 391 ; Hanni'. National 
 Union, 97 Mich. 513 ; Continental L. 
 Ins. Co. 0. Yung (113 Ind. 159), 3 Am. 
 St. Rep. 630, and note. An applicant 
 who is, at the time of insuring, suffer- 
 ing from a cold, which later leads to 
 pneumonia, may yet be held by the 
 jury to be "in good health," within the 
 meaning of his representation to that 
 effect. Smith v. Met'n L. Ins. Co., 183 
 Penn. St. 504 ; Barnes v. Fidelity M. 
 L. Ass'n, 191 id. 618 ; Manhattan L. 
 Ins. Co. V. Carder, 82 Fed. Eep. 986. 
 If an applicant who has had the grippe, 
 and so informed the medicil examiner, 
 answers " no," on the latter's advice 
 to a question as to serious illness, the 
 insurer is estopped to rely upon such 
 representation, though it is made a 
 warranty. Mutual L. Ins. Co. v. 
 
 Blodgett, 8 Tex. Civ. App. 45 ; see 
 Mutual L. Ins. Co. v. Selby, 72 Fed. 
 Rep. 980 ; Baker v. New York L. Ins. 
 Co., 77 id. 550; 83 id. 647; Meyer-Bruns 
 V. Penn. M. L. Ins. Co., 189 Penn. St. 
 579 ; Patterson v. Natural Premium M. 
 L. Ins. Co., 100 Wis. 118 ; Weiraer v. 
 Economic L. Ass'n (Iowa), 79 N. W. 
 123 ; see Gallant v. Met'n L. Ins. Co., 
 167 Mass. 79; Knights of Pythias v. 
 Cogbill, 99 Tenn. 28. An injury re- 
 ceived in early life, the effects of which 
 have wholly disappeared, is immaterial 
 to the question whether a mature per- 
 son was ever physically injured. Stand- 
 ard Life & Ace. Ins. Co. v. Martin, 133 
 Ind. 376. Where in the application 
 the insured falsely stated he had never 
 had piles, and the contract provided 
 that it should be void if any of the 
 statements in the application should 
 prove untrue, it was held that there 
 could be no recovery, although the in- 
 sured was ignorant that he had had 
 piles. Baumgai-t v. Modem Woodmen 
 of America, 85 Wis. 546. 
 
 Where the agent of an accident in- 
 surance company, after frequently con- 
 versing with a man partially deaf, solicits 
 him to take out a policy, the insured can 
 prove these facts, by the agent on cross- 
 examination, to rebut the presumption 
 that the company was induced to take 
 the risk by the representation in the 
 application that the insured was not 
 subject to any bodily infirmity. Fol- 
 lette V. U. S. Mut. Ace. Ass'n, 107 N. C. 
 240. If the evidence is conflicting upon 
 the question whether the assured had 
 a certain disease, the presumption is 
 against the insurer. Flynu v, Mass. 
 Benefit Ass'n, 152 Mass. 288. 
 377 
 
§ 188] insueance: fike, life, accident, etc. [ch. IX. 
 
 them to determine if this warranty was strictly kept.^ A 
 statement as to future habits or practices, if a warranty at 
 all, is not a condition precedent, since it does not relate to 
 the commencement of the risk. It is at most a promissory 
 warranty, which is- not a condition precedent, and therefore 
 its breach must be alleged and proved by the defendant.^ 
 
 ^ The court saidi "Every representation made for the purpose of obtaining 
 an insurance must he strictly and literally true, in the sense that no other state 
 of facts can be taken as an equivalent of it. If it be that there was a watchman, 
 only that fact, and no other amount of equivalent care or cautious aiTangements 
 or other guards, can be accepted as satisfying the representation. The representa- 
 tion in the application is a written covenant that it is true, and makes the truth 
 of the answer a condition precedent to any claim upon the insurer. I have felt 
 some inclination to think that the answer was not intended to refer to the nightly 
 suspensions of work in the mill, but only to seasons when the mill was not in use 
 at all, but lying idle. This, however, has not been insisted on, and I do not con- 
 sider it. I take the insurer to include the case before us, wherein the mill was 
 run during each day and stopped at night. But I cannot say that the answer 
 was intended by the parties as a contract that the insured should always keep a 
 watchman at the mill when it was not going, and that his sole duty during such 
 times should be to watch against fire, always awake, and always present ; nor can 
 I say that the law constructs such a contract out of the answer. The answer is 
 very loose in its terms, and the insurers accept it in all its looseness, and then as 
 of little importance, and do not insert it in the policy for the further guidance 
 of the insured, but file it away in their office. It makes no approach to a defini- 
 tion of the function to be performed by the watchman. The word is in its very 
 nature loose and indefinite in its meaning ; and the law cannot supply this defect 
 by giving a definition, because it is not a technical term of the law, and because 
 the nature of a watchman's functions varies in different places and according to 
 the dangers to which the property is exposed, and even according to the nature 
 and value of the property. Watchmen are seldom mere watchmen against fire, 
 but almost always against all dangers, of whatever kind. Some kinds of danger, 
 and at some times, require constant wakefulness ; other kinds, at other times and 
 places, do not. Many, perhaps most persons, guard their stores, safes, mills, 
 factories, &c. (when they watch at all), by clerks or hands who sleep on the 
 premises, so as to be at hand when danger arises. A family sleeping in the 
 house is a protection of it. The court cannot declare, as matter of law, what is 
 the proper degree of a watchman's care, implied in this answer, without adding to 
 the contract of the parties. We might as well define a house in a contract for 
 building a house. It is for the jury to say whether or not the plaintiff has 
 strictly and literally complied with his contract to keep a watchman when the mill 
 is not in use." This case was affirmed on a writ of error to the Supreme Court. 
 See also North Am. Fire Ins. Co. v. Throop, 22 Mich. 146, 158, and 159, for some 
 valuable suggestions as to the strictness and precision required in such answers. 
 As to keeping a watch, see further, post, § 250 et seq. 
 
 2 Van Valkenburgh v. Am. Popular Life Ins. Co., 70 N. Y. 605 ; New York 
 Life Ins. Co. v. Graham, 2 Duv. (Ky.) 506 ; Knecht v. Mut. Life Ins. Co., 90 
 Pa. St. 118 ; post, § 192. In the first of the above cases the court held the fol- 
 lowing language (Folgsr, J.) : — 
 
 378 
 
CH. IX.] EEPEESENTATION. [§ 188 A 
 
 [§ 188 A. Examples of Fatal Misrepresentations. — Stating 
 a mortgage at |2,000 when it was really $3,200 is fatal. ^ 
 
 "The issue of fraud was based upon the questions and answers in the appli- 
 cation for a policy. The questions and answers relied upon by the defendant 
 were those regarding the habits of the intestate in the use of intoxicating drinks. 
 They must be considered as of the date of the application, which was in the last 
 of December, 1870, and a reasonable time before and after. He answered that 
 his habits of life were correct and temperate in all respects ; that he was abstemi- 
 ous, a free and generous liver, and has always been so. It is not easy to find any 
 definite result from these answers. They seem to neutralize each other. The 
 idea conveyed by saying of a man that he is a free and generous liver, is contra- 
 dictory of that given by saying of him that he is temperate in all respects, and 
 abstemious. If the defendant was satisfied with these opposing answers when the 
 application was read and the policy issued, it cannot now object. 
 
 " It is difiicult to understand some of the questions and some of the answers, 
 from the peculiar and obscure method adopted by the defendant. But it may be 
 fairly said that the intestate answered that he did not use ale, beer, or wine. 
 The statement of the medical examiner was more positive and particular, to the 
 effect that the intestate was temperate and correct in his habits, and did not use 
 any intoxicating liquors. There was testimony that about the date of this appli- 
 cation, and before it, the intestate did drink whiskey, and once at least to the 
 point of intoxication. 
 
 "There was also testimony on the other side of the question. It was to the 
 effect that the witnesses knew him well, or were very intimate with him ; that 
 his habits were good ; that they remember his drinking but very seldom, and 
 never saw him intoxicated or under the influence of liquor ; that he was a re- 
 markably healthy man, of fine physique ; that they had known him to refuse 
 liquor when offered to him, and never saw anything to induce belief that he was 
 not perfectly temperate. 
 
 "Though this testimony was, from a necessity of its character, negative, still 
 it was pertinent to the issue, and competent to be given on a question of the 
 habits of sobriety or the contrary. It needs must be weighed with the affirmative 
 testimony in coming to a conclusion whether with fraudulent intent the intestate 
 made the answers relied upon by the defendant. I do not think that most men, 
 or at least many men, would feel that they were making a fraudulent answer if 
 they said that their habits of life were correct and temperate, and that they did 
 not use intoxicating liquors, if they drank them no oftener than the intestate did, 
 according to the testimony of the witnesses for the plaintiff, especially when with 
 that answer is the other, that they were free and generous livers, and had always 
 been so. In common acceptation, the latter phrase indicates those who do not 
 entirely refrain from the use of stimulating drinks. 
 
 " I am obliged to confess that I get no idea from the question, ' Nor use 
 alcoholics in kind ? or distilled spirits in kind ? ' 
 
 " The question, ' Use any intoxicating liquors or substances ? ' is a question 
 which does not direct the mind to a single or incidental use, but to a customary 
 or habitual use. Such is one of the meanings of the noun ' use ' and the verb 
 ' use ; ' as ' Use hospitality one to another without grudging.' It was a question 
 not indisputably and conclusively settled by the testimony as a whole, whether 
 
 1 [Byers v. Farmers' Ins. Co., 35 Ohio St. 606.] 
 
 379 
 
§ 188 A] INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. IX. 
 
 When goods were described as being in a certain house, 
 there could be no recovery when as a matter of fact the 
 goods were in another place, when burnt. ^ The insured 
 must, when asked his occupation, state what he is doing at 
 the time of the application and not what he did years be- 
 fore. A temporary suspension however would probably not 
 invalidate the answer. ^ A representation that existing in- 
 surance is less than it really is, is material.^ So is a rep- 
 resentation as to age.* When a policy stipulates that false 
 answers to written inquiries shall avoid it, false answers to 
 parol inquiries made previous to the execution of the policy 
 and on material points, also avoid the policy.^] 
 
 the intestate could be so clearly charged with such use as that he might plainly be 
 charged with a fraudulent intent in answering ' no ' to the medical examiner, and 
 being so unsettled, it was proper to give the solution of it upon the evidence to 
 the jury. We have not lost sight of the interpretation of the word given to the 
 jury by the court at nwi prius. If that had been more unfavorable to the defend- 
 ant than that which we adopt, we might feel that the defendant should have the 
 benefit of a milder construction. 
 
 "There was also a conflict in the whole evidence, whether the disease of which 
 the intestate died was aggravated by intemperance. It was proper that the jury 
 should pass upon it. It was not for the plaintiffs to make out, as a part of their 
 case, the negative of that proposition. It was for the defendant to establish it as 
 an afiirmative, the same as they would any breach by the subject of the insurance 
 of any other condition subsequent of the policy. If it be conceded to be a war- 
 ranty, it is not a condition precedent, for it does not relate to the commencement 
 of the risk. It is a promissory warranty which is not a condition precedent. 
 Npw York Life Ins. Co. v. Graham, 2 Duv. (Ky. ) 506. I see no error in the por- 
 tion of the charge excepted to, taken in connection with the peculiar application 
 and contract in this case. It was held in Fitch v. Popular Life Company, 59 
 N. Y. 557, on a like application and policy, that it was necessary for the defend, 
 ant to show, not only that the statements were untrue, but that they were known 
 to be so, and were made with a fraudulent intent. Now a fraudulent intent mnst, 
 to some degree at least, depend upon the understanding which the applicant has 
 of the meaning of the question. The jury are to find that intent ; that it existed 
 m the heart of the applicant at the time he answered. Of course they must first 
 find what was his conception of the question. If according to that conception he 
 answered truthfully, then he did not answer with fraudulent intent. They are to 
 find what that conception was, under the direction of the court as to the legal 
 construction of the phrases used, if any is required, or their own understanding 
 of the purport of the question." 
 
 1 [Eddy Street Iron Foundry v. Hampton Stock & Mut. Fire Ins. Co., 1 CliflF. 
 lU. S.) 300, 304.] 
 
 2 [United Brethren Mut. Aid Soc. <,. White, 100 Pa. St. 12.] 
 
 3 [Armour v. Transatlantic Fire Ins. Co. , 47 N". Y. Super. 352.] 
 « [Ala. Gold Life Ins. Co. v. Garner, 77 Ala. 210; infra, § 305.] 
 6 [Wainwright v. Bland, 1 M. & W. 33, 35.] 
 
 380 
 
CH. IX.] EEPRESENTATION. [§ 188 C 
 
 [§ 188 B. Examples of Disputed Representations not Fatal. 
 — Where D. took out a policy on his own life payable to 
 M. whom he declared, in a postal to the company, to be a 
 creditor and one upon whom the applicant D. was depend- 
 ent, and it appeared that M. was a creditor, but not one on 
 whom D. was dependent, it was held that the postal was 
 evidence to go to the jury on the question of fraud, but that 
 the false statement as to dependence was entirely immate- 
 rial. D. 's dependence on M., even if existent, could not be 
 effectual to give M. an insurable interest in D.' When the 
 material fact is ownership it is immaterial that the appli- 
 cant states his holding to be under a will when really it is 
 under a deed.^ A representation in time of peace that a 
 ship shall sail in ballast is substantially complied with 
 though she have on board a trunk of merchandise and ten 
 barrels of gunpowder, unknown to the owner. ^ Mere mis- 
 takes in stating facts which do not in themselves (the facts) 
 annul the policy and do not appear to be wilful misrepresen- 
 tations will not defeat the action.* When a cargo to be put 
 on the insured ship was misrepresented, but the same was 
 not stated in the policy, nor did it appear to have influenced 
 the underwriter as to risk, it was held that the jury were 
 warranted in finding it to be immaterial.* A representation 
 that "no spirits shall be allowed on board" a ship, does not 
 prevent her carrying a whole cargo of them for transporta- 
 tion. It only prohibits their use.^] 
 
 [§ 188 C. It is correct to answer the question " When 
 built ? " by naming the year of construction, although part 
 of the materials had been in an older structure, and evi- 
 dence that "when built" refers by usage only to buildings 
 wholly of new materials will not be received.'^ An answer 
 that the house was built in 1870 whereas the true date was 
 
 1 [Mace V. L. Ass., 101 N. C. 122, 128.] 
 
 2 [Monaghan v. Agr. Fire Ins. Co., 53 Mich. 239.] 
 
 ' [Suckley v. Delafield, 2 Caines (N. Y.), 221, 223.] 
 
 * [Jone.s V. Mecbanics' Fire Ins. Co., 36 N. J. L. 29, 41.] 
 
 * [Flinn v. Headlam, 9 B. & C. 693, 696.] 
 
 ^ [Irrin v. Sea Ins. Co., 22 Wend. 380, 381. | 
 
 ' [Lamb v Council Bluifs Ins. Co., 70 Iowa, 238.] 
 
 381 
 
§ 188 C] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. IX. 
 
 1862, is immaterial where it appears that the house is none 
 the less valuable by reason of extra age.i(a) A knowingly 
 false answer as to other applications for insurance by the 
 same person avoids the policy.^ (5) But where the question 
 was "Has any application ever been made to this or any 
 other company on which a policy was not issued ? " was held 
 not improperly answered in the negative where an applica- 
 tion had been made but not passed upon as yet by the com- 
 pany.^ Where a party seeking to insure mill machinery, 
 gearing, tools, &c., was asked "What is the value of the 
 property to be insured, exclusive of land and property not 
 specified?" and he answered "125,000," which was the 
 value of the entire mill property, it was held that, the ques- 
 tion being somewhat ambiguous, the insured might reason- 
 ably infer that the whole value of the mill was what was 
 wanted, and especially as the company was not damaged by 
 the answer, it would not avoid the policy.* Strict accuracy 
 is not required in statements of value which are matters of 
 opinion, but only good faith. ^ It must not only be shown 
 that a representation of value was not true, but that the in- 
 sured knew it was not at the time he made it.^ But if the 
 statement of value is made part of the contract, the doctrine 
 of immateriality does not apply. '^ A representation as to 
 the value of the property insured is always material, and 
 
 1 [Eddy V. Hawkeye Ins. Co., 70 Iowa, 472.] 
 
 2 [Edington v. Mtna. Life Ins. Co., 100 N. Y. 536.] 
 
 3 [Langdon v. Union Mut. Life Ins. Co., 14 Fed. Rep. 272 Mich. 1882.] 
 
 4 [Mut. Mill Ins. Co. v. Gordon, 20 Brad. 564, 121 111. 366.] 
 
 5 [Dupree v. "Virginia Home Ins. Co., 92 N. C. 417.] 
 « [Lexington Ins. Co. v. Paver, 16 Ohio, 336, 337.] 
 
 ' [Botbitt V. hiv., Lon., & G. Ins. Co., 66 N. C. 70, 79.] 
 
 (a) A statement in the application ance existed on the property is not to 
 
 that the bnilding cost |13,000 in re- be deemed false, in such a, sense as to 
 
 sponse to the question what proportion invalidate the insurance obtained on 
 
 would remain uninsured, is not shown such application, merely because a 
 
 to be untrue by evidence that it was former owner of the property, after hav- 
 
 only worth |6,000 at the time of insur- ing parted with his title, effected other 
 
 ing. Myers v. Lebanon Mut. Ins. Co., insurance thereon in his own favor. 
 
 23 Ins. L. J. 308. State Ins. Co. v. New Hampshire Trust 
 
 (5) A representation in an applica- Co., 47 Neb. 62. 
 tion for insurance that no other insur- 
 
 382 
 
OH. IX.] EEPEESENTATION. [§188F 
 
 however honestly made, will if false avoid the policy where 
 the application is referred to in it.^] 
 
 [§ 188 D. No representation of a party's expectation or 
 belief or intention will avoid a policy unless fraudulently 
 made.^ The company has no right to rely on such state- 
 ments as absolute verities.^ A statement that a ship will 
 sail on a certain day is only an expectation, and does not 
 avoid the policy if untrue, in the absence of fraud.* She 
 had sailed six months previously unknown to the assured.^ 
 An expression of opinion that a ship "is sure to be an 
 early one — a cargo is ready for her" does not avoid the 
 policy if untrue in fact, though the risk is thereby ex- 
 changed from a summer to a winter risk ; the statement 
 was only one of expectation.*' Untrue representations if 
 made with an honest and reasonable belief of their truth, 
 are no ground for action.' The law will not presume a 
 misrepresentation. ^] 
 
 [§ 188 E. Where a letter contains a representation of 
 facts not known to the party, but from the information of 
 others, as appears in the letter, or as a necessary inference 
 from the nature of the facts, the representation is not falsi- 
 fied by the mere proof that the facts are not so. If the 
 party communicating the facts did receive such information 
 and bona fide confided in it, the policy would not be avoided." 
 A representation made on application for insurance may 
 be withdrawn or qualified before the execution of the 
 policy. 1°] 
 
 [§ 188 F. Representations by the Company. — A pamphlet 
 issued by the company and shown to the plaintiff by the 
 
 1 [Bobbitt V. Liv., Lon., &c. Ins. Co., 66 N. C. 70.] 
 
 2 [Bryant v. Ocean Ins. Co., 22 Pick. 200.] 
 
 3 [Clason V. Smith, 3 Wash. C. C. 156, 167.] 
 
 * [Rice V. N. E. Mar. Ins. Co., 11 Pick. 439, 443.] 
 6 [Barlier v. Fletcher, 1 Doug. 305, 306.] 
 6 [Hubbard v. Glover, 3 Camp. 313, 315.] 
 
 ' [Shrewsbury v. Blount, 2 Manning & Granger, 475 ; Rawlings v. Bell, 1 C. 
 B. 951.] 
 
 ^ [Pine V. Vanuxem, 3 Yeates (Penn.), 30, 33.] 
 ' [Tidmarsh v. Washington, &c. Ins. Co., 4 Mason, 439.] 
 " [Edwards v. Footner, 1 Camp. 530, 531.] 
 
 383 
 
§ 189] insurance: fire, life, accident, etc. [ch. ix. 
 
 soliciting agent to induce him to insure enters into the con- 
 tract as a representation of the company, and if it promises 
 a paid-up policy the insurer is entitled to one, although his 
 policy is silent on the subject.^ If the false representation 
 of the insured is induced by the false representations of the 
 agent of the insurer, the latter cannot set up the insured's 
 misrepresentation.^] 
 
 § 189. Representation in Part true and Part false ; Entire 
 Contract. — Where the plaintiff insures for a specific sum 
 on a store, and another specific sum on the stock of > goods 
 therein, and gives one note for the premium on both sums, 
 representing them to be his store and goods, when in fact 
 he has no title to the store, the contract being entire, the 
 misrepresentation vitiates it, so that nothing can be recov- 
 ered for the loss of the goods which were admitted to belong 
 to the insured.^ So where the property is represented to be 
 unincumbered, when in fact it is in part covered by a mort- 
 gage.* [Where distinct classes of property separately valued 
 are insured, though for a gross premium, the contract is 
 severable, and a misrepresentation as to ownership of real 
 
 * [Southern Mut. Life Ins. Co. v. Montague, 84 Ky. 653. A railroad company- 
 is liable for false statements on its time-tables when prejudicial to others : Denton 
 V. G. N. Ey. Co., 5 E. & B. 860 ; as where a train is taken off without notice to 
 the public] 
 
 2 [Cook V. Lion Fire Ins. Co., 67 Cal. 368.] 
 
 2 Day V. Charter Oak Fire & Mar. Ins. Co., .11 Me. 91 ; Lovejoy v. Augusta 
 Mut. Fire Ins. Co., 45 id. 472 ; Hinman v. Hartford Fire Ins. Co., 36 Wis. 159 ; 
 Bowman v. Franklin Fire Ins. Co., 40 Md. 620; Gottsman v. Insurance Co., 56 
 Pa. St. 210; Kreutz o. Niagara, &c. Ins. Co., 16 U. C. (0. P.) 131; Euss v. 
 Mut. Fire Ins. Co., 29 U. C. (Q. B.) 73 ; Moore v. Virginia Fire, &c. Ins. Co., 
 28 Grat. (■Va.)508; Plath v. Minnesota, &c. Ins. Co., 23 Minn. i1^;' post, 
 §§ 277, 278. 
 
 * Friesmuth v. Agawam Mut. Ins. Co., 10 Ciish. (Mass.) 587 ; Smith v. Em- 
 pire Ins. Co., 25 Barb. (N. Y.) 497 ; Gould v. York County Mat. Fire Ins. Co., 
 47 Me. 403. Contra, Koontz v. Hannibal Sec. Ass., 42 Mo. 126 ; Loehmer v. 
 Home Mut. Ins. Co., 19 Mo. 628 ; Phcenix Ins. Co. v. Lawrence, 4 Met. (Ky.) 9. 
 Two houses were separately valued in the same policy. Both were burned. The 
 policy provided that if left vacant without notice and consent, the policy should 
 be void. One was vacant, and had been for the specified period at the time of 
 the fire. The court held that recovery could be had for the occupied house, but 
 not for the unoccupied one. Hartford Fire Ins. Co. v. Walsh, 54 111. 164 ; Com- 
 mercial Ins. Co. V. Spankneble, 52 id. 53. But see Lovejoy v. Augusta Mut. Fire 
 Ins. Co., supra. And see also post, § 277. 
 
 384 
 
CH. IX.J 
 
 EEPKESENTATION. 
 
 [§190 
 
 estate not made in bad faith will not vitiate the policy as to 
 the personalty it covers. ^ (a)] 
 
 § 190. Effect of Change of Circumstances pending Negotia- 
 tion. — A representation is a continuous statement from the 
 time it is made, during the progress of the negotiations, 
 and down to the time of the completion of the contract; so 
 that though in point of fact the representation be true when 
 actually made, yet if by some change intervening between 
 that time and the time of completion of the contract it then 
 becomes untrue, it will avoid the contract if the. change be 
 material and to the prejudice of the insurers, or be such as 
 might probably influence their opinion as to the advisability 
 
 1 [Schuster v. Dutchess County Ins. Co., 102 N Y. 260, 263-266.] 
 
 {a) In Wisconsin it is held that a 
 change in 'the title to one of several 
 farms or huildings covered by a fire 
 policy, and situated at some distance 
 from each other, does not render the 
 policy void as to the other farms or 
 buildings, under the clause in the policy 
 making it void in case of a change of 
 title without the insurer's consent : 
 Loomis u. Rockford lus. Co., 77 Wis. 
 87 ; but that insurance on a building 
 and its contents, with the risk distrib- 
 uted part to the realty and part to the 
 personalty, is a single, indivisible con- 
 tract, and, under a general forfeiture 
 clause, a circumstance which bars a, re- 
 covery for a loss on part of the property 
 bars a recovery for all. Carey v. Ger- 
 man-American Ins. Co., 84 Wis. 80 ; 
 Woracher v. New Denmark M. H. F. 
 Ins. Co., 102 Wis. 88. See Teutonia 
 Ins. Co. 0. Howell (Ky.), 54 S. W. 852 ; 
 Continental Ins. Co. v. Ward, 50 Kan- 
 sas, 346 ; German F. Ins. v. Fairbank, 
 32 Neb. 750. So insurance upon dis- 
 tinct lots of personalty on the same 
 premises, with the risk distributed to 
 each item, is one indivisable contract. 
 Burr V. German Ins. Co., 84 Wis. 905; 
 36 Am. St. Rep. 905, and note ; Man- 
 chester F. Ins. Co. V. Glenn, 13 Ind. 
 App. 365. A similar principle, as to 
 VOL. I. — 25 
 
 indivisibility of contract and its result, 
 has been applied where a life insurance 
 agent agreed to extend a premium note 
 on condition that the insured would pay 
 a personal debt to the agent ; and a fail- 
 ure to perform the condition which was 
 the sole consideration for the renewal, 
 left the contract void. Union Cent. L. 
 Ins. Co. V. Berlin, 90 Fed. Rep. 779. 
 
 When a single policy covers both a 
 house and the personal property therein, 
 arson intended and cauried out as to the 
 personalty also avoids the policy as to 
 the realty. Names v. Dwelling-house 
 Ins. Co., 95 lowaj 642 ; Agricultural 
 Ins. Co. V. Hamilton, 82 Md. 88. See 
 Manchester F. Ass. Go. v. Koerner, 13 
 Ind. App. 372. So if a house and per- 
 sonal property therein are insured to- 
 gether, and there is fraud in the proofs 
 of loss as to the personalty, insurance 
 cannot be recovered for the house. 
 Home Ins. Co. v. Connally (Tenn.), 
 56 S. W. 828. 
 
 In Massachusetts, it is held that 
 when only one premium is paid for fire 
 insurance on two buildings, the insur- 
 ance is entire, and the contract, if partly 
 void because of misdescription, is wholly 
 void, and cannot be apportioned. 
 Thomas v. Commercial Union Ass. Co., 
 162 Mass. 29. 
 
 385 
 
§ 190] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. IX. 
 
 of accepting the risk. The law regards it as made at the 
 instant the contract is entered into.^ And the same rule 
 applies in case of concealment. Any change in the state of 
 health of the person or condition of the property to be in- 
 sured, pending the negotiations, if such changes would nat- 
 urally have any influence upon the judgment of the insurers, 
 must be made known, as the state of facts existing at the 
 time of the completion of the contract will be deemed to 
 have been the basis of the contract. ^ And a change from a 
 state of good health to serious illness, or from a mild to an 
 aggravated form of the same disease, is a change which 
 ought to be disclosed.^ Where, however, one company 
 assumes the risks of another and issues a new policy, the 
 representations are only held to be true when the original 
 policy was issued.* Where renewals are made upon the 
 statements in the original application, whether the truth of 
 the statement is to be tried by the circumstances existing at 
 the time of the renewal, or at the time when the original 
 application was made, is a question upon which the authori- 
 ties do not agree; some taking the view that a renewal 
 makes a new contract,^ and others that it merely continues 
 the old one.® Special circumstances, however, seem to con- 
 trol the decision, according as these circumstances indicate 
 the intent of the parties.^ So where a recent purchaser 
 
 1 Trail v. Baring, 4 Giff. 485 ; s. c. affirmed on appeal, 10 L. T. N. s. 215 ; 
 Whitley v. Piedmont, &c. Ins. Co., 71 N. C. 480. 
 
 " British Eq. Ins. Co. v. Great West. Ins. Co., 38 L, J. Ch. 132 ; s. c. on 
 appeal, 20 L. T. N. s. 422 ; Calvert v. Hamilton Mut. Ins. Co., 1 Allen (Mass.), 
 308; Lishman v. Northern, &c. Ins. Co., L. R. 10 C. P. (Ex. Ch.) 179; s. c. 4 
 Ins. L. J. 394 ; Blumer v. Phoenix Ins. Co., 45 Wis. 622 ; post, §§ 250, 294 ; De 
 Camp V. New Jersey, &e. Ins. Co., 0. Ct. (N. Y.), 3 Ins. L. J. 89 ; Piedmont, &c. 
 Ins. Co. „. Ewing, 92 U. S. 377, 380. 
 
 3 TiVeniyss o. Med. Invalid & Gen. Life Ins. Soc., 11 Ct. of Sess. (Scotch), 
 2d series, 345 ; Piedmont, &c. Ins. Co. v. Ewing, 92 U. S. 377, 380. 
 
 * Cahen v. Continental Life Ins. Co., 69 N. Y. 300, 308 ; Cheever v. Union, 
 &c. Ins. Co., 4 Am. Law Record, 155 ; s. c. 5 Big. Life & Aco. Ins. Cas. 458. 
 
 ^ Brady v. Northwestern Ins. Co., 11 Mich. 425 ; Brueck v. Phoenix Ins. Co., 
 59 N. Y. 1 ; Atkin v. Nat. Ins. Co. (Q. B.), Montreal, 8 Ins. L. J. 78. 
 
 6 New Eng. Eire & Mar. Ins. Co. v. Wetmore, 32 111. 221 ; Baltimore Fire Ins. 
 Co. V. McGowan, 16 Md. 47. 
 
 ' Driggs V. 'Albany Ins. Co., 10 Barh. (N. Y.) 440 ; Aurora, &c. Ins. Co. v. 
 Kranich, 36 Mich. 289 ; Hartford Fire Ins. Co. v. Walsh, 54 111. 164 j Phelps v. 
 
 386 
 
CH. IX.] REPRESENTATION. [§190 
 
 applied for a policy, and at the suggestion of the insurer's 
 agent took an assignment of the policy existing, a represen- 
 tation which was false at the time the policy was issued, but 
 was true at the time it was assigned, was held not to vitiate 
 the contract.^ In the reinstatement of a lapsed policy no 
 statement of intermediate changes need be made unless re- 
 quired.^ And where the policy was to take effect only on 
 the actual payment of the premium, and a change was made 
 prior to the payment of the premium and the delivery of the 
 policy, but after its date, it was held that intermediate 
 changes were not an increase after the making of the con- 
 tract.^ In some cases it is expressly stipulated that the 
 renewal shall be upon the express understanding that the 
 original representations remain true at the time of renewal.* 
 But where a renewal certificate is taken out, with distinct 
 notice to the insurers that the property returned has been 
 removed from the premises described in the policy to other 
 premises, the renewal contract will cover the property in- 
 sured in its new location. Tliis must have been the intent 
 of the parties, certainly the intent and understanding of the 
 
 Gebhard Ins. Co., 9 Bosw. (N. Y.) 404. In a New Brunswick case it appears 
 that the company already insuring by a policy which expired October 2, 1866, 
 notified the insured that it would run for a year upon the same terms, whereupon 
 the insured, October 6, paid the amount of the premium to the local agent, the 
 receipt of the premium being indorsed by the local agent on the back of the 
 notice. This local agent afterwards, without the knowledge of the insured, took 
 out a policy upon the same property from another company, based on the applica- 
 tion filed with the first company, dated October 6, and expressly insuring for one 
 year from October 2d. October 13, the property was destroyed by fire ; but with- 
 out the knowledge of this fact the policy in the name of the insured was forwarded 
 by the local agent of the first company, who acted also for the second company, 
 to the original insured. Under these peculiar circumstances this was held to 
 amount substantially to a reinsurauce, that the policy related back to October 2d, 
 that the representation must be understood to be made as of that date, and that 
 the insured might recover in his own name, having accepted the policy taken out 
 in his behalf by the local agent. Giffard o. Queen Ins. Co., 1 Hannay (N. B.), 
 432. A second renewal with changes, after a first renewal with different changes, 
 is a renewal of the original contract, with the changes stated in the last. Hon- 
 nick V. Phoenix Ins. Co., 22 Mo. 82. 
 
 1 Chapman v. Gore Dist. Mut. Ins. Co., 26 U. C. (C. P.) 89. 
 
 * Day ». Mut. Benefit Life Ins. Co., Sup. Ct. (D, C), 1 MoArthur, 41. 
 ^ Fourdrinier v. Hartford Fire Ins. Co., 15 U. C. (C. P. ), 403. 
 
 * Uddle u. Market Fire Ins. Co., 29 N. Y. 184; Lancey v. Phcenix Ins. Co., 
 6 Me. 562. 
 
 387 
 
§ 191] INSUEANCE : PIRE, LIFE, ACCIDENT, ETC. [CH. IX. 
 
 insured, as the insurers must have known ; and it was also 
 their intent and understanding, unless they designed to de- 
 fraud under the guise of the contract, which will not be 
 presumed.^ And a consent to a removal of property insured 
 is also a new contract, and waives a forfeiture by reason of 
 known additional risks prohibited by the original policy. ^ 
 
 § 191. Subsequent Changes immaterial. — If the agreement 
 be complete, whether the policy be delivered and the pre- 
 mium paid or not, it is immaterial that there has been a 
 change since the agreement, or even a loss.^ If a warranty 
 or representation be true when the bargain is closed, any 
 usual and ordinary changes subsequent to that time will be 
 inoperative to vitiate the contract unless prohibited, and 
 courts will not favor attempts which are sometimes made to 
 convert an affirmative into a promissory or continuing repre- 
 sentation or warranty. Thus, when it is represented that a 
 building " is used only for the purpose of meeting of a band 
 during two evenings of the week," the representation applies 
 merely to the then existing use of the building, not to the 
 future use of the property.^ So if it be described as an 
 "unoccupied" house, "but to be occupied by a tenant;" or 
 in answer to the question about occupation it is said that it 
 " will be occupied by a tenant," — this is neither a warranty 
 that it shall continue unoccupied, nor that it shall be occu- 
 pied, but rather a representation true, if such was the fact, 
 of the existing state of things, and a statement of an expec- 
 tation that it would be so occupied, with a reservation of the 
 right to have it so occupied; and such statements are not to 
 be treated as limiting the use of property so as to deprive 
 the insured of the enjoyment of it as is usual in such cases.^ 
 
 ^ Ludwig V. Jersey City Ins. Co., 48 N. Y. 379. And see post, § 294. 
 
 ■^ Rathbone v. City Fire Ins. Co., 31 Conn. 193; Dickson ;■. Provincial Ins. 
 Co., 24U. C. (C. P.) 157. 
 
 8 Southern Life Ins. Co. v. Ketapton, 56 Ga. 339; ante, § 135; Ellis v. Albany, 
 &c. Fire Ins. Co., 50 IT. Y. 402; Inbusch v. Northwestern Nat. Ins. Co., 4 Ins. 
 L. J. 545, coram Dixon, arbitrator ; Franklin Fire Ins. Co. v. Colt, 20 Wall. 
 (U. S.) 560; City of Davenport v. Peoria Mar. & Fire Ins. Co. 17 Iowa, 276. 
 
 * Blood V. Howard Fire Ins. Co., 12 Gush. (Mass.) 472. 
 
 5 Hughes V. City Fire Ins. Co., 27 Conn.' 10; O'Niel v. Buffalo Fire Ins. Co., 3 
 Comst. (N. Y.) 122; Herrick v. Union Mut. Fire lus. Co., 48 Me. 558. See § 156. 
 388 
 
CH. IX.J REPRESENTATION. [§ 192 
 
 So, where it is said that "a clerk sleeps in the store;"-' or 
 that "barns are used for hay, straw, shelter, and stabling; " '^ 
 and, generally, when the statement is as to the employment 
 or habits of a person, or the manner in which a building is 
 occupied or used, or the amount of other insurance, or the 
 intentions of the applicant.^ Such statements are properly 
 to be regarded as descriptive of present status, condition, 
 and expectation, and not as importing a promise as to future 
 use or conduct. If insurers wish to control such use, they 
 must do it expressly and by apt words, and not expect the 
 courts to aid them by construction.* So if it is stated in 
 the policy that the adjoining land is "vacant," this does not 
 warrant that it shall continue so, and the insured may erect 
 buildings thereon though the risk to the property insured be 
 thereby increased. ^ 
 
 § 192. Oral Statements prior or subsequent to Application 
 immaterial. — If a written application be made, it will be 
 presumed to contain the representations which induce the 
 contract, and proof of prior or subsequent verbal statements 
 is inadmissible ; ^ and especially if it be an oral representa- 
 
 i Frisbie v. Fayette Ins. Co., 27 Pa. St. 325. 
 
 2 Billings V. Tolland County Mut. Ins. Co., 20 Conn. 139. 
 
 * Horton v. Equitable Life Ass. Soc., New York City Court of Common 
 Pleas, Daly, J., 2 Big. Life & Ace. Ins. Cases, 108 ; Reichard u. Manhattan Life 
 Ins. Co., 31 Mo. 518; Benham v. United Guarantee & Life Ass. Co., 7 Exch. 
 744 ; ante, § 188; Franklin Fire Ins. Co. v. Chicago Ice Co., 36 Md. 102 ; For- 
 bushu. Western Mass. Ins. Co., 4 Gray (Mass.), 337, 338; post, § 306; Knecht 
 1/. Mutual, &c. Ins. Co. (Pa. ), 8 Ins. L. J. 639. 
 
 * Smith V. Mechanics' & Traders' Mut. Fire Ins. Co., 32 N. Y. 399 ; Langdon 
 V. New York Equitable Ins. Co., 1 Hall (N. Y. Superior Ct.), 226; s. o. 6 Wend. 
 (N. Y.) 623 ; Rafferty v. New Branswick Fire Ins. Co., 3 Harr. (N. J ) 480; 
 Boardman v. Merrimack Mut. Fire Ins. Co., 8 Cush. (Mass.) 583 ; Hall v. Peo- 
 ple's Mut. Fire Ins. Co., 6 Gray (Mass.), 185; Boardman v. New Hampshire 
 Mut. Fire Ins. Co., 20 N. H. 551. 
 
 5 Stebbins v Globe Ins. Co., 2 Hall (N. Y. Superior Ct.), 632. 
 
 8 Boggs V. Am. Ins. Co., 30 Mo. 63 ;'Rawls v. Am. Life Ins. Co., 27 N. Y. 
 282 ; Howell v. Knickerbocker Life Ins. Co., 44 id. 276 ; Insurance Co. v. Mowry, 
 96 U. S. 544; Caudee v. Citizens' Ins. Co., C. Ct. (Conn.), 4 Fed. Rep. 143; 
 Lamatt v. Hudson, &c. Ins. Co., 17 N. Y. 199; Franklin Fire Ins. Co. v. Martin, 
 40 N. J. Law, 568; Schmidt v. Peoria, &c. Ins. Co., 41 111. 295; Pindar v. Reso- 
 lute Fire Ins. Co., 47 N. Y. 114; Todd v. Liyerpool, &c. Ins. Co., 18 U. C. 
 (C. P.) 192; Hartford Fire Ins. Co. u. Davenport, 37 Mich. 609. As to fraudu- 
 lent statements of contents of paper to an illiterate man, see Keller v. Eq. Fire 
 Ins. Co., 28 Ind. 170. 
 
 389 
 
§ 193] INSURANCE : WEE, LIFE, ACCIDENT, ETC. [CH. IX. 
 
 tion as to a future fact, as that a house will be occupied, or 
 will be occupied in a certain way, or not occupied at all, for 
 if it is a mere statement of an expectation honestly enter- 
 tained, subsequent disappointment will not prove it untrue ; 
 and if it is a provision that a certain state of facts shall 
 exist or continue during the currency of the policy, it 
 should be incorporated into the written contract. ^ So as to 
 non-fraudulent representations touching the value of the 
 property insured.'^ But a reference in the policy to parol 
 statements will authorize proof of what they were.^ And 
 verbal representations may become effectual even as war- 
 ranties, if written into and made part of the policy.* 
 
 § 193. Equivocal Words and Phrases. — The question 
 whether there is, or is not, a misrepresentation, not anfre- 
 quently turns upon the meaning of a particular word or 
 phrase used in the policy ; and in such cases the insured 
 will have the benefit of all reasonable doubts, the construc- 
 tion being most strongly against the insurer as the author 
 of the contract, and also because the court will not go any 
 farther in enforcing a penalty or forfeiture than it feels 
 obliged to by the necessary force of the language used. Thus 
 where the property insured was a stock of goods described 
 as "all of goods usually kept in a country store," and it was 
 represented that no " cotton or woollen waste or rags " were 
 kept in the building, and it appeared that clean white cot- 
 
 1 KimViall v. Mtna. Ins. Co., 9 Allen (Mass.), 540; Alston v. Mechanics' Ins. 
 Co., 4 Hill (N. Y.), 329, reversing s. c. 1 id. 510 ; Mayor of New York v. Brook- 
 lyn Fire Ins. Co., 4 Keyes (N. Y.), 465, affirming s. c. 41 Barb. 231. See also 
 ante, § 1S2. In Hartford Fire Ins. Co. v. Davenport, 37 Mich. 609, the court 
 distinguishes those cases of waiver and estoppel based upon the knowledge or 
 conduct relating to existing facts of the insurer inconsistent with an honest 
 intention to enforce a particular condition, and '•■ parol promise, made prior to 
 the execution of the policy concerning some future event. "There is no resem- 
 blance," it says, " between a parol variance of a written contract, and a waiver of 
 a condition after it has become binding upon the parties." ^ut this distinction 
 has been by no means observed. The case of Bilbrough v. Met. Ins. Co., 5 Duer 
 (N. Y. Superior Ct. ), 587, to the contrary, does not seem to have met with appro- 
 bation. See also ante, § 182. 
 
 2 New York Gas Light Co. v. Mechanics' Fire Ins. Co., 2 Hall (K. Y.), 108. 
 8 Clark V. Manufacturers', &c. Ins. Co., 2 "W. & M. C. Ct. (Mass.) 472. 
 
 « Campbell v. N. E. Mut. Life Ins. Co., 98 Mass. 381; Higbie v. Guai'dian 
 Life Ins. Co., 53 N. Y. 603. 
 
 390 
 
CH. IX.J KEPKESENTATION. [§ 194 
 
 ton rags were kept in the store, — ■ it was held, that as such 
 rags were ordinarily kept in a country store, and as there 
 was an express provision in the by-laws that "cotton or 
 woollen waste or oily rags " should not be allowed to remain 
 overnight in any building insured by the company, if cotton 
 rags of any kind were excluded it could only be those which, 
 from their nature or condition, are easily inflammable, and 
 for that reason classed with " cotton and woollen waste. " ^ 
 So the question being whether the building was "leased or 
 rented, " it was held to be material to ascertain whether the 
 applicants were lessors. And in another case, where the 
 keeping of gunpowder was prohibited, it was held that this 
 prohibition, on account of the punctuation, was qualified by 
 the general phrase at the end of the condition, "in quanti- 
 ties exceeding a barrel. "^ 
 
 § 194. Affirmative and Promissory Representations ; Con- 
 sequences of Breach different. — There is an obvious distinc- 
 tion, in the consequences, between a misrepresentation of 
 facts existing at the commencement of a risk and a neglect 
 of duty in regard to a matter occurring afterwards ; in other 
 words, between an affirmative and a promissory misrepre- 
 sentation. In the one case the policy never takes effect, the 
 risk is never assumed ; while in the other the risk attaches 
 but is interrupted. It is doubtless upon this distinction 
 that courts have held that the operation of a policy may be 
 suspended, and again, after an interval of suspension, be- 
 come operative and reattach to the subject at risk.^ No 
 right is acquired in the first case, while in the second a 
 right is acquired which may be forfeited. And the same is 
 true of a concealment of a fact at the time when the contract 
 is entered into, and of a failure to make known some fact 
 which by the terms of the policy is incumbent upon the 
 insured.* 
 
 1 Elliott V. Hamilton Mut. Ins. Co., 13 Gray (Mass.), 139. See also ante, 
 §§ 166, 176. 
 
 2 Insurance Co. v. Slaughter, 12 Wall. (U. S.) 404. See also ^os<, § 243. 
 
 3 ji7ite, § 101. 
 
 * Kimball v. Mtna. Ins. Co., 9 Allen (Mass.), 540 ; Obermeyer v. Globe Ins. 
 Co., 43 Mo. 573. 
 
 391 
 
§ 196] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. IX. 
 
 § 195. Test of Materiality, when Question for Jury. — 
 
 Where there is a warranty, no question of materiality of 
 the fact warranted to exist or stipulated for, to be done or 
 omitted, arises. But this question always arises where the 
 fact in dispute is alleged to be a misrepresentation or con- 
 cealment, except where it is converted into a warranty, by 
 a stipulation that an untrue answer shall avoid the policy. 
 And that is material which, if known to the insurer at the 
 time when the contract was under negotiation, would natu- 
 rally and probably have induced him either to decline the 
 risk, or to have taken it only upon terms more advantageous 
 to himself. 1 And where this materiality depends upon cir- 
 cumstances, and is an inference to be drawn from such cir- 
 cumstances, and not upon the construction of some writing, 
 it is a question of fact for the jury.^ 
 
 § 196. Pact material, though not directly relating to the 
 Risk. — And whether the misrepresentation or concealment 
 relates to the risk itself directly, or to some incidental mat- 
 ter from which some inference may be drawn as to the pro- 
 priety of accepting or declining the risk, the result is the 
 same. If a party makes answers or representations touch- 
 ing such incidental matters, — as, for instance, relative to 
 his pecuniary means or social or business relations, — of 
 such a character that if they had not been made the insurers 
 would have declined the risk, — a question to be submitted 
 to the jury, — then the policy will be void. This point is 
 well illustrated by the remarkable case of Valton v. National 
 Loan Fund Life Assurance Society,^ where Schumacher, who 
 was a partner with Martin and Valton, insured his life, and 
 assigned the policy to them in case he should die pending 
 the copartnership, unmarried, Martin taking an active part 
 
 1 Quin V. National Ass. Co., 1 Jones & Gary (Irish), 316 ; Merriani u. Middle- 
 sex Milt. Fire Ins. Co., 21 Pick. (Mass.) 162. 
 
 2 Columbian Ins. Co. v. Lawrence, 10 Pet. (U. S. ) 507; Campbell v. New 
 Eng. Mut. Life Ins. Co., 98 Mass. 381 ; Hiiguenin v, Eayley, 6 Taunt. 186 ; Mor- 
 rison V. Muspratt, 4 Bing. 60 ; Hartman v. Keystone Ins. Co., 21 Pa. St. 466; 
 Sibbald v. Hill, 2 Dow Pail. R. 263 ; Catlin v. Springfield Fire Ins. Co., 1 Sum. 
 (tr. S. C. Ct.) 434 ; Mut. Benefit Life Ins. Co. v. Miller, 39 lud. 475 ; Washing- 
 ton Life Ins. Co. «. Haney, 10 Kans. 525. 
 
 8 20 N. Y. 32. See also Higbie v. Guardian Mut. Life Ins. Co., 53 id. 603. 
 
 392 
 
CH. IX.] EEPRESENTATION. [§196 
 
 in effecting the insurance. It was held that the Insurer's 
 judgment was the vital consideration as to the materiality, 
 of a representation in respect to his inducements to under- 
 take the risk.i 
 
 1 Upon this point the court observed as follows; — "The judge, among other 
 things, charged the jury that if the insured untruly represented that he was a 
 partner of the firm of Valton, Martin, & Company, or that if he untruly repre- 
 sented that he was the moneyed man of the firm, and either or both of such 
 untrue representations were material to the risk, then the policy was avoided, 
 and there could be no recovery. That if Schumacher was dead in September, 
 1850, and his occupation that of a merchant at the time the proposals were 
 signed, and the representations of his being a partner, or the moneyed man of the 
 firm, were either not untrue or not material to the risk, then the action was 
 prima facie sustained. The defendants' counsel requested the court to charge the 
 jury that if Schumacher himself, or by Martin in his behalf, represented to the 
 agent of the defendants that Schumacher was ■- partner of the firm of Valton, 
 Martin, & Company, when in fact at that time he was not such partner, and if the 
 defendants would not have issued the policy if the representation had not been 
 made, then the policy was void, and the plaintiffs could not recover. The judge 
 declined so to charge, and the defendants' counsel excepted. The defendants' 
 counsel also requested the judge to charge the jury that if they found that Schu- 
 macher himself, or by Martin in his behalf, represented to the agent of the defen- 
 dants that Schumacher was the moneyed man of the concern of Valton, Martin, & 
 Company, when in fact at that time he was not such, and that the defendants 
 would not have issued the policy if the representations had not been made, then 
 the policy is void, and the plaintiffs cannot recover. The judge refused so to 
 charge, and the defendants' counsel excepted. The charge of the judge was cor- 
 rect as far as given. If the representations were made, and false, the falsity must 
 have been known to Schumacher and Martin. The facts were within their knowl- 
 edge, and the representations fraudulent. The requests to charge, considered in 
 connection with the charge given, present the question whether fraudulent repre- 
 sentations made by the assured to the insurer upon his application for a policy, 
 though not material to the risk, yet material in the judgment of the insurer, and 
 which induced him to take the risk, will avoid the policy. This question has 
 not been determined by any adjudged case in this State, so far as I have been 
 able to discover. The elementary writers hold that the policy may be avoided. 
 1 Amould on Insurance, § 189 (original paging, 487-576) ; 2 Duer, 681-683 ; 3 
 Kent, Com. 282. In Sibbald o. Hill, 2 Dow's Pari. R. 263, it was held that 
 where the assured fraudulently represented to the underwriter that a prior insur- 
 ance by another underwriter upon the same risk had been made at a less premium 
 than it was in fact made, the policy was vitiated. In this case it is obvious that 
 the risk itself was not affected by the representations. Lord Eldon, in his 
 opinion, says that it appeared to him settled law, that if a person meaning to 
 effect an insurance exhibited a policy underwritten by a person of skill and judg- 
 ment, knowing that this would weigh with the other party and disarm the ordi- 
 nary prudence exercised in the common transactions of life, and it turned out 
 that this person had not in fact underwritten the policy, or had done so under 
 such terms that he came under no obligation to pay, it appeared to him to be 
 settled law that this would vitiate the policy. The courts in this country would 
 say that this was a fraud ; not on the ground that the misrepresentation affected 
 
 393 
 
§ 198] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. IX. 
 
 § 197. False Pretence. — It appears, therefore, to be the 
 rule that a misrepresentation, though not bearing upon the 
 character of the risk, if sucli as to mislead the insurers into 
 taking a risk which otherwise would not have been taken 
 is as fatal to the validity of the policy as if it had related 
 to the nature of the risk. Thus, by way of additional illus- 
 tration, where one insurance company applied to another for 
 reinsurance on certain articles of personal property, and in- 
 duced the reinsurers to believe that they had insurance on 
 the buildings, which was not the fact, the policy was held 
 to be void.i This is, however, not strictly a misrepresenta- 
 tion of facts upon which the value of the risk is determined, 
 but rather a false pretence of a fact which induces the in- 
 surer to take the risk without inquiry as to its value. If 
 the false pretence does not induce the contract, it is imma- 
 terial.2 So where the reinsurer declared his intent to retain 
 a portion of the risk, but subsequently reinsured that, the 
 first reinsurance was held to be void.^ 
 
 § 198. Representation ; Substantial Compliance ; Equivalents. 
 — A representation is substantially complied with by the 
 adoption of precautions, which, if not those exactly stated 
 in the application, may be such as tend to accomplish the 
 same purpose and are regarded as equally eflBcacious. Thus, 
 if benzine be prohibited in the policy, and permitted in an 
 indorsement thereon, to the amount of one barrel to be kept 
 in tin cans, keeping the whole in one tin can is a substantial 
 compliance, if that is shown to be equally safe.* So if ashes 
 
 the nature of the risk, but because it induced a confidence without which the 
 party would not have acted. The principle of this case, when applied to the one 
 under consideration, shows that the judge committed an error in refusing to 
 charge as requested. It is clear that the circumstance of a party being engaged 
 in commercial business, possessed of large means, might induce an insurer to 
 make an insurance upon his life for a large amount, while were he a mere porter 
 the risk would be rejected, although the chance of life would be as good in the 
 latter situation as the former." 
 
 1 Louisiana Mut. Ins. Co. o. New Orleans Ins. Co., 13 La. An. 246. See also 
 Sibbald v. Hill, 2 Dow Pari. R. 263 ; Bennett v. Anderson, 3 Big. Life & Ace. 
 Ins. Cas. 342. 
 
 2 Canada Ins. Co. v. Northern Ins. Co., 2 Ont. AT>p. Eep. 373. 
 
 3 Trail v. Baring, 4 Giflf. (Ch.) 485 ; s. c. 2 Big. Life & Ace. Ins. Cas. 644. 
 * Maryland Fire Ins. Co. v. Whiteford, 31 Md. 219. 
 
 .S94 
 
CH. IX.] EEPKESENTATION. [§ 199 
 
 are stated to be kept in brick, if they are kept in some other 
 mode, equally safe, the policy will not be avoided. ^ Where 
 the stipulation is a representation and not a warranty, there 
 is room for the substitution for equivalents amounting to a 
 substantial performance; while if it be a warranty it is at 
 least doubtful whether the doctrine can or ought to have 
 any place, as one of the objects of a warranty is to obviate 
 the necessity of dispute about the materiality or immate- 
 riality of a particular act. By a substantial compliance is 
 meant the adoption of precautions, intended for the same 
 purpose, adapted to it, and which may be reasonably re- 
 garded as equally or more efficacious. For instance, when 
 it is said that ashes are taken up in iron hods, it would be 
 a substantial compliance if brass or copper were used in- 
 stead. So if it be represented that casks of water, with 
 buckets, are kept in each story of the building insured, if a 
 reservoir be placed above, with pipes to convey water to each 
 story, and regarded by skilful and experienced persons to be 
 equally efficacious, it would be a substantial compliance. ^ 
 
 § 199. Means of Putting out Fires ; ^ Substantial Compliance ; 
 Good Faith. — While courts will sometimes sustain a merely 
 literal and colorable compliance with a warranty as suffi- 
 cient,* yet where representations are made as a full, just, 
 and true exposition of all facts and circumstances material 
 to the risk, in construing them, whether as to existing facts 
 or as to future precautions to be taken, both good faith and 
 the terms of the contract require that there shall be a sub- 
 stantial, as well as literal, conformity. Such representa- 
 tions must be construed with reference to the known and 
 obvious requirements and purposes of the insurers, and so 
 as to meet these requirements, and conform to them, if such 
 a construction can be made without violence to the language 
 ased. If, for example, inquiries are made relative to the 
 appliances for extinguishing fire in a factory, and it is an- 
 swered that water casks are kept in each room, while the 
 
 1 Underhill v. Agawam Mut. Ins. Co., 6 Gush. (Mass.) 440. 
 
 " Houfjhton V. Manufacturers' Mut. Fire Ins. Co., 8 Met. (Mass.) 114. 
 
 » LSee § 157.] * Ante, § 178. 
 
 395 
 
§ 199] insueance: fiee, life, accident, etc. [ch. ix. 
 
 answer would be literally true if uo water were kept in the 
 casks, or if the casks, though kept filled with water, were 
 few in number or so insignificant in size as to afford practi- 
 cally no security in the sense understood and required by 
 the insurers, this would not be a full, just, and true state- 
 ment of the facts, nor a substantial compliance with the 
 undertaking of the insurer. That undertaking requires a 
 substantial compliance, by keeping a cask or casks of water, 
 of a size adequate to the required security, and holding a 
 sufficient quantity of water to aid essentially in extinguish- 
 ing a fire in its early stages in that part of the building.^ 
 And the same good faith requires that these casks should be 
 kept supplied with water, though the fact that from the neg- 
 ligence of servants, or from freezing or other unavoidable 
 cause, they might be rendered temporarily unserviceable, 
 would not avoid the policy, if reasonable diligence be used 
 in restoring them to a serviceable condition;'' nor if it be 
 represented that one of the appliances for extinguishing fires 
 be hose attached to a flume above the mill, does this imply 
 an agreement that there shall always be water in the flume, 
 as, for instance, in the contingency of a drought.^ [The 
 adequacy of a water supply warranted to be kept on top of 
 the house is for the jury. A tank two feet by three by three 
 on the roof just below the apex, is not insufficient as a mat- 
 ter of law.^] And if a policy be delivered and become opera- 
 tive upon a promissory warranty that certain appliances for 
 extinguishing fires are to be put in, this amounts at most to 
 an agreement that they shall be put in within a reasonable 
 time ; and the company, having the right to cancel the pol- 
 icy, should so elect and notify the insured, else they cannot 
 avoid liability on account of unreasonable delay. ^ 
 
 1 Houghton V. Manufacturers' Mut. Fire Ins. Co., 8 Met. (Mass.) 114; Garrett 
 V. Prov. Ins. Co., 20 U. C. (Q. B.) 200. 
 
 2 Aurora Fire Ins. Co. o. Eddy, 49 111. 106 j Daniels i/. Hudson River Fixe 
 Ins. Co., 12 Cu.sh. (Mass.) 416. 
 
 8 Le Eoy v. Park Ins. Co., 39 N. Y. 56. And see ante, § 171. 
 * [Sierra Milling, &c. Co. v. Hartford Fire Ins. Co., 76 Cal. 235.] 
 6 Howell V. Hartford Fire Ins. Co., U. S. C. Ct. North Dist. 111., 1873, per 
 Blodgett, J., 3 Ins. L. J. 649. ^ 
 
 396 
 
CH. X.] OF CONCEALMENT. 
 
 CHAPTER X. 
 
 OP CONCEALMENT. 
 
 Analysis. 
 
 1. 
 
 §200. ^A concealment is the intentional (not merely inadvertent) with- 
 
 holding of some material fact which in good faith the iosurer 
 ought to know ; see also § 207. 
 
 The burden of proof as to materiality is on the company, and 
 the question is for the jury. Expert may be asked if the 
 fact would increase the premium, § 200 n. 
 §§ 201-206. If truth and fulness are warranted the questions of intent, inadver- 
 tence or ignorance do not arise. The knowledge of his agent 
 of a fact unknown to the insured has been imputed to him 
 to avoid such a policy, §§ 201, 206. 
 
 Where the agent does not act in the transaction to which the 
 notice relates his knowledge is not imputed to the principal, 
 § 122 n. 
 
 The better opinion does not hold the insured for lack of stat- 
 ing what he without fault does not know, or what he has a 
 right to believe immaterial, presuming him to know and be- 
 lieve what men of ordinary intelligence know and believe 
 under similar circumstances, § 203. 
 
 Knowledge of the insured a question for the jury, § 202. 
 
 Cases harmonized on their facts, §§ 203, 205. 
 
 i 207. Facts known to the insurer or his agent or which ought to be 
 
 known to him (the means of infonnation being in his pos- 
 session to the knowledge of both parties, or usage or general 
 public knowledge being sufficient to inform him), facts 
 which lessen or do not increase the risk and remotely con- 
 nected details not inquired about, need not be stated ; see 
 also § 215 B. 
 
 If inquiry is made, concealment is fatal though the fact is not 
 material. 
 
 The knowledge of the company must be as definite as that ot 
 the assured to excuse non -disclosure. If a fact concealed 
 comes to company's knowledge before issue of policy it is 
 bound by the issue. 
 
 If no inquiries are made the insured's intent is an essential 
 question. 
 
 Less strictness in fire than in marine insurance, for in the foi'- 
 
 397 
 
INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. X. 
 
 mer the insurer is less dependent on the insured for informa- 
 tion. 
 
 § 208. Threats of burning or attempts to set on fire the house insured, or 
 
 a neighboring one, must be disclosed. 
 Informing the agent is sufficient if no questions are asked in 
 
 the application. 
 Facts occurring after issue of a policy must be notified to com- 
 pany, if by-laws that are made part of the contract so re- 
 quire. 
 
 § 209. A general statement of the facts sufficient to put the insurers 
 
 on inquiry is enough. Mere idle talk not worthy of the 
 regard of a prudenfperson need not be communicated. 
 
 §§ 210, 211. When there is room for opinion, an honest view such as a man of 
 ordinary prudence and intelligence would take under the 
 circumstances, though an erroneous one as it may afterward 
 prove, is no misrepresentation, especially if the company's 
 agent arrived at a similar judgment, § 211. 
 as " What houses endanger the one insured ?" or "Is there a 
 livery-stable in vicinity ? " or " Have yon had any serious 
 illness ? " or " one tending to shorten life ? " 
 
 § 212. An equivocal answer, or statement of only part of the truth may 
 
 be a concealment. 
 
 § 213. Agent's concealment imputed to principal ; but one simply referred 
 
 to by the insured, who merely states his belief in their truth, 
 cannot prejudice him by misrepresentations or concealment un- 
 known to him. Broker to procure is agent of assured ; one in- 
 surance agent going to another of his own notion, not. 
 
 § 214. Where A insures the life of B, statements concerning his health by 
 
 the person whose life is insured (B) made at or about the time 
 when he signed the application, have been admitted on the 
 ground that they were a part of the res gestce. If made long be- 
 fore or after the application they are not admissible, for the de- 
 clarant is not a party in interest to the contract, nor an agent of 
 the insured. 
 
 § 215 D. Ordinary diligence in sending information is all that is required, 
 
 though a special message might have saved the company. 
 
 5. 
 
 Matters not material, unless made so by agreement or inquiry : 
 prior insurance, § 207. 
 
 threat of burning some months before during election excite- 
 ment, § 208. 
 
 idle talk, § 209. 
 character of tenants, § 207. 
 
 or of adjoining buildings, § 207. 
 erection of new building, § 207. 
 personal dislike to insured, §§ 207, 215 B. 
 pending litigation, § 207. 
 
 398 
 
CH. X.] OF CONCEALMENT. [§ 200 
 
 how tuilding is heated or lighted, §§ 207, 215 B. 
 
 void tax title, § 207. 
 
 damaged goods on board, § 207. 
 
 minor details, § 207. 
 
 insured's opinion as to derangement of functions, § 215. 
 
 incumbrance in case of insurance in stock company, § 215. 
 
 insured insolvent, § 215 B. 
 
 risk in same block declined, § 216 B. 
 
 agreement between mortgagor and mortgagee as to payment of 
 premium, § 215 B. 
 
 brick oven, § 215 C. 
 
 fact decreasing risk, § 215 C. 
 
 sensations, apprehensions, § 215 C. 
 
 opinions, §§ 210, 211. 
 
 disclosure of fact in reference to which there is a warranty, is 
 unnecessary, § 215 C. 
 Material facts : 
 
 threats of burning in general or attempts to set the house or 
 a neighboring one on fire, § 208 ; but see § 207. 
 idle talk not material, § 209. 
 
 single woman had child year or two before, § 215. 
 
 pregnancy, § 215. 
 
 incumbrance in case of mutual insurance, § 215. 
 
 prior applications, § 215, but see § 188 C. 
 
 warehouse erected within forty-one feet, § 215 A. 
 
 benzine in adjoining building, where policy prohibits, § 215 A. 
 
 probable loss of vessel, § 215 A. 
 Materiality a question for jury : 
 
 carpenter work going on, § 207. 
 
 double occupancy of house, § 207. 
 
 assured in prison, § 215. 
 
 insane twenty years before, § 215. 
 
 release of carrier from liability, § 215 A. 
 In Fiance, where concealment not sufficient to avoid policythe com- 
 pany may deduct the additional premium that would have been 
 charged if the truth had been known, § 215 B. 
 
 §200. Concealment defined. — Representations should not 
 only be true, but they should be full. The insurer has a 
 right to know the whole truth. And a lack of fulness, if 
 designed, in a respect material to the risk is tantamount to 
 a false representation, and is attended by like consequences. 
 This lack of fulness is termed a concealment, which is the 
 designed and intentional withholding of some fact material ' 
 
 1 [When the company sets up concealment as a defence, the burden is on it 
 to show materiality. Insurance Co. v. Folsom, 18 Wall. 237, 253. The ques- 
 tions of materiality, facts, and non-disclosure are for the jury. New York Fire- 
 men's Ins. Co. V. Walden, 12 Johns. 513, 520 ; Eiohmondville Union Seminary v. 
 
 399 
 
§200] 
 
 INSUEANOE : FIEE, LIFE, ACCIDENT, ETC. 
 
 [CH. X. 
 
 to the risk which the insured in honesty and good faith 
 ought to communicate to the insurer, (a) It is not mere 
 unintentional silence or inadvertence. It is a positive in- 
 tentional omission to state what the applicant knows, or 
 must be presumed to know, ought to be stated. It is a sup- 
 pression of the truth whereby the insurer is induced to enter 
 into a contract which he would not have entered into had 
 
 Hamilton Ins. Co., 14 Gray, 459, 465 ; Von Lindenean v. Desborough, 3 C. & 
 P. 353, 356. Whether particular facts if disclosed to an underwriter would, in 
 the opinion of a witness conversant with the business of insurance, as a mat- 
 ter of judgment, make a difference as to the amount of premium, is admissible 
 evidence. But he cannot be asked what he himself would probably have done 
 under the circumstances. Berthon v. Loughman, 2 Stark. 258, 259.] 
 
 (a) See Niagara F. Ins. Co. v. Miller, 
 120 Penn. St. 504 ; Queen Ins. Co. v. 
 Young (86 Ala.), 11 Am. St. Rep. 51, 
 58. The obligations of good faith also 
 require the insurer to deal openly and 
 fairly with the insured. In Michigan 
 the law is thus defined by McGrath, J., 
 in Hartford Steam Boiler Insp. & Ins. 
 Co. II. Cartier, 89 Mich. 41, 48 ; " Condi- 
 tions and restrictions in insurance poli- 
 cies, to be binding upon the insured, 
 must be inserted without fraud, misrep- 
 resentation, or concealment. In order 
 to charge the insured with the duty of 
 an examination of his policy with refer- 
 ence to new matter introduced into it, 
 he must be left free to discharge that 
 duty unaffected by the company's repre- 
 sentations, and not be led to neglect it 
 by the conduct of the company itself. 
 The company cannot be allowed to 
 evade his questions, mislead him, sup- 
 press the truth, and lull him to sleep 
 regarding new restrictions which it has 
 injected into the policy, and thereafter 
 charge him with constructive knowl- 
 edge of those restrictions." 
 
 In this case, where the insured can- 
 celled a policy in the H. Company ac- 
 cording to its terms, and substituted 
 one in another company at a lower rate, 
 and the agent of the H. Company in- 
 duced him to cancel the latter and 
 accept another in the H. Company at 
 still lower rates, but, unknown to the 
 
 400 
 
 insured, the last policy, unlike the first, 
 provided that, if cancelled to take out 
 insurance in another company, the 
 premium should be forfeited, and on 
 being told that the other company 
 would grant a yet lower rate, the agent 
 merely said that they would not be able 
 to do so, it was held, in an action by 
 the H. Company to recover the pre- 
 mium on the cancellation by the insured 
 of the last policy, that there had been 
 concealment by the agent, and that the 
 provision against cancellation was in- 
 valid. As to insured's duty to read his 
 policy, see supra, § 144 D, note (a). 
 
 Neglect to answer a question is not 
 a fraudulent concealment. Parker v. 
 Otsego County Farmers' Co-op. F. Ins. 
 Co., 62 N. Y. S. 199. The Code of 
 Iowa providing that a copy of the appli- 
 cation shall be attached to the policy, 
 and that neglect shall not render the 
 contract invalid, but such application 
 or falsity thereof cannot be pleaded or 
 proved by the company, nor be necessary 
 to recovery by insured, who may plead 
 or prove them at his option, does not 
 apply to such representations as appear 
 on the face of the policy ; and where 
 the latter required the title, if less than 
 the fee, to be so expressed thereon, fail- 
 ure to attach the apjilication will not 
 prevent the company from showing con- 
 cealment. MacKinnon v. Mutual F. 
 Ins. Co., 89 Iowa, 170. 
 
CH. X.] OF CONCEALMENT. [§ 201 
 
 the truth been known to him. It is a deception whereby the 
 insurer is led to infer that to be true, as to a material mat- 
 ter, which is not true- Hence, strictly speaking, under the 
 general law of insurance, there can be no concealment of a 
 fact which is not known to the applicant.^ 
 
 § 201. "Where Truth and Fulness warranted, how. — Where, 
 however, the truth and fulness of a statement are warranted, 
 it is no longer a question of concealment, but of the truth 
 and fulness of the statement; and any failure to disclose a 
 material fact, even though accidental, and by inadvertence 
 or through ignorance, is followed by the same consequences 
 as if intentionally concealed. And it has accordingly been 
 held that all known facts material to the risk, if called for, 
 must be disclosed, whether the party seeking insurance 
 think them material or not, upon the ground that the ques- 
 tion as to the belief of the party with regard to the materi- 
 ality of the fact would in many instances be difficult to 
 decide, and it would encourage suppression if that were the 
 issue upon which the question of concealment should turn , 
 while if the materiality alone of the fact be made the issue, 
 then it becomes the interest of the assured to state all the 
 facts he knows. ^ And since the knowledge of an agent may 
 be imputed to the principal, and is constructively his, he 
 may be guilty of concealing a fact of which he has no actual 
 knowledge. Thus, where an agent wrote to his principal to 
 cause his vessel to be insured, after an accident which led 
 
 1 Sprott V. Ross, l6 Ct. of Sess. Cas. (Scotch) 1145 ; s. o. 3 Big. Life & Ace. 
 Ins. Cas. 421 ; Eoss v. Bradshaw, 1 W. Bl. 312 ; s. c. i Big. Life & Ace. Ins. Ca=.. 
 574 ; Swete v. Fairlie, 6 C. & P. 1 ; Hall v. People's Miit. Ins. Co., 6 Gray (Mas.s.), 
 185 ; Merchants' & Manufacturers' Ins. Co. v. Wash. Mut. Ins. Co., 1 Hand 
 (Ohio), 408 ; Mut. Benefit Life Ins. Co. v. Robertson, 59 111. 123 ; Gerhauser v. 
 North B. & M. Ins. Co., 7 Nev. 174 ; Forbes v. Ed. Life Ass. Co., 10 Ct. of 
 Sess. Cas. (Scotch) 451 ; Life Ass. of Scotland v. Foster, 11 Ct. of Sess. Cas. 
 3d series (Scotch), 351 ; s. 0. 4 Big. Life & Ace. Ins. Cas. 520. And see post, 
 § 211 ; Swift V. Mass. Mut. Life Ins. Co., 63 N. Y. 188. 
 
 1 ^ Lindeneau v. Desborough, 3 Man. & Ry. 45 ; Vose i>. Eagle Life & Health 
 Ins. Co., 6 Cush. (Mass.) 42 ; Miles v. Conn. Mut. Life Ins. Co., 3 Gray (Mass.), 
 580 ; Geach v. Ingall, 14 M. & W. 96 ; Mut. Benefit Life Ins. Co. v. Miller, 39 
 Ind. 475 ; Day v. Mut. Benefit, &c. Ins. Co. (Sup. Ct. D. C), 4 Big. Life & Ace. 
 Ins. Cas. 15 ; Abbott v. Howard, Hayes (Irish), 381 ; s. o. 3 Big. Life & Ace. 
 Ins. Cas. 294. See also post, § 206. 
 
 VOL. I. — 26 401 
 
§ 202] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. X. 
 
 to the loss of the vessel had happened, but did not mention 
 to his principal, the owner, the fact of the accident, it was 
 held that as the agent ought to have communicated the fact 
 of the accident, the concealment was constructively that of 
 the owner, and he could not recover on a policy which he 
 had effected in good faith.-' 
 
 § 202. If the fact be not known, how. — On the other 
 hand, it has been held with better reason that there is no 
 concealment if the fact omitted be not such as may be fairly 
 presumed to be known and believed to be material by the 
 applicant. (a) Thus, where the applicant had been insane 
 several years before he applied for and took his policy, and 
 had been placed in an insane asylum, whence he was dis- 
 charged cured, his failure to state the fact at the time he 
 procured his policy, no specific question being asked, but 
 the policy by its terms being void for misrepresentation, 
 fraud, or concealment, was held not to prevent a recovery; 
 and this, although the insured had been for a considerable 
 period a canvassing agent of the insurers, and in a conver- 
 sation with the president of the company, some time before 
 the policy was taken out, had been told by him that they did 
 not wish to insure insane persons, and had been instructed 
 to be cautious on that point. The conversation, which took 
 place some time previous to the making of the contract, and 
 had for its object to give instructions to the agent, was held 
 
 1 Gladstone v. King, 1 Maule & Sel. 35 ; post, § 202. 
 
 (a) The applicant's answers, if made v. Martin, 133 Ihd. 876. Where the 
 
 according to his best knowledge and be- policy provided that it should be void 
 
 lief, and accepted by the insurer, render if the insured concealed any material 
 
 it incumbent upon the latter to prove, fact, or if the interest of the insured was 
 
 that, as thus limited, they are untrue, not truly stated, the insured was held 
 
 Clapp V. Mass. Benefit Ass'n, 146 Mass. not bound to voluntarily disclose the 
 
 519 ; Cobb v. Covenant Mut. Benefit existence of a mortgage in the absence 
 
 Ass'n, 153 Mass. 176. A statement in of any question or representation affeot- 
 
 the application that the insured has ing it. Morotock Ins. Co. v. Eodefer, 
 
 never been physically injured is not a 92 Va. 747. The concealment of an in- 
 
 misrepresentation which will avoid for- ventory from an adjuster is not the con- 
 
 feiture where it appears that injuries cealment of a " material fact " within 
 
 were sustained at an earlier period of life, the policy, unless the company is iu- 
 
 the effects of which have wholly disap- jured thereby. Commercial Bank v. 
 
 peared. Standard Life & Ace. Ins. Co. Firemen's Ins. Co., 87 Wis. 297. 
 
 402 
 
CH. X.] OF CONCEALMENT. [§ 202 
 
 to have no tendency to show a fraudulent concealment of 
 material facts, unless it could also be shown that the facts 
 omitted were, in the judgment of the insured, material. ^ 
 So where, if the answers were in any respect untrue, the pol- 
 icy was to be void, and the question was whether the appli- 
 cant had any sickness within the last ten years, and the 
 answer was that he had had pneumonia, but said nothing of 
 a "slight attack of chronic pharyngitis," it was held to be 
 no concealment, as the party was not bound to state such 
 facts as would ordinarily be deemed immaterial, such as 
 that he had had a cold, or a diarrhoea, or an irritation of 
 the throat, not fairly embraced in what is popularly under- 
 stood as sickness.^ In Hutchison v. National Loan Assur- 
 ance Society,^ a warranty that the insured had no disease or 
 symptom of disease was held to import only that, according 
 to the knowledge and reasonable belief of the insured, there 
 was freedom from any disease or symptom of diseases mate- 
 rial to the risk, — he not being guilty of any negligence in 
 
 1 Mallory v. Travelers' Ins. Co., 47 N. Y. 52. 
 
 2 Mut. Benefit Life Ins. Co. v. Wise (>Id.), 2 Big. Life & Ace. Ins. Cas. 43 ; 
 s. 0. affirmed, 34 Md. 582. 
 
 8 7th Ct. of Sess. Cas. (Scotch) 467 ; Duckett v. ■Williams, 2 Cr. & Mee. 348, 
 distinguished. See also Life Ass. of Scotland v. Foster, 11 Ct. of Sess. Cas. 3d 
 series, 351 ; s. c. 4 Big. Life & Ace. Ins. Cas. 520, where the rule is thus well stated ; 
 " Concealment or non-disclosure of material facts, by a person entering into 
 a contract is, generally speaking, either fraudulent or innocent, and in the 
 case of such contracts where parties are dealing at arm's-length, that which is 
 not fraudulent is innocent. But contracts of insurance are in this, among other 
 particulars, exceptional, that they require on both sides uberrima fides. Hence 
 without any fraudulent intent, and even in bona fides, the insured may fail in the 
 duty of disclosure. His duty is carefully and diligently to review all the facts 
 known to himself hearing on the risk proposed to the insurers, and to state 
 every circumstance which any reasonable man might suppose could in any way 
 influence the insurers in deciding whether they will enter into the contract. 
 Any negligence or want of fair consideration for the interests of the insurers 
 on the part of the insured leading to the non-disclosure of material facts, though 
 there be no dishonesty, may therefore constitute a failure in the duty of dis- 
 closure which will lead to the voidance of the contract. The fact undisclosed 
 may not have appeared to the insured at the time to be material, and yet if it 
 turns out to be material, and in the opinion of a jury was a fact that a reason- 
 able and cautious man proposing insurance would think material and proper 
 to be disclosed, its non -disclosure will constitute such negligence on the part of 
 the insured as to void the contract." A covenant not to violate any condition 
 of the policy means any Jmown condition. Vyse v. Wakefield (Ex. Ch.), 6 M. & 
 W. 442 ; s. 0. 3 Big. Life & Ace. Ins. Cas. 17. 
 
 403 
 
§ 202] INSUEANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. X. 
 
 acquiring knowledge of his own condition. So in Jones v. 
 Provincial Insurance Company, it was stated by the appli- 
 cant that he was not " aware of any disorder or circumstance 
 tending to shorten life," when in fact he had had, within a 
 year or two, two severe bilious attacks, about the tendency 
 of which to shorten life the physicians who attended him 
 differed in opinion. And it was said that if the assured 
 honestly believed that these attacks had no tendency to 
 shorten his life, his failure to mention them would not 
 avoid the policy.^ What other persons of intelligence do 
 not know or believe or apprehend cannot reasonably be 
 expected of the insured. And what he cannot be expected 
 to know, he cannot be considered as culpable for not know- 
 ing; and what he cannot be expected to apprehend, he can- 
 not he bound to communicate; and in not communicating 
 any such fact, he cannot be considered as concealing it even 
 inadvertently, much less wilfully.^ (a) The knowledge which 
 is imputable to the assured who undertakes to state all mate- 
 rial facts, either absolutely or so far as they are known to 
 him, may be actual or constructive. The law, however, does 
 not undertake to decide whether this knowledge exists or 
 not ; it is rather a question of fact for the jury. The law 
 will not say that a man must be presumed to know certain 
 particular facts touching his estate; but the question whether 
 certain facts, if misrepresented or concealed, were known to 
 the applicant for insurance, is a question of fact to be found 
 by the jury upon the evidence. And upon this point divers 
 considerations, as authorizing the inference of knowledge, 
 are fit and proper to be submitted to the jury ; such as, that 
 the applicant and insured is the owner of the property, and 
 may be presumed to be acquainted with its condition; or, 
 being the life-insured, is cognizant of his own condition; 
 that the matter relates to things open and visible, things 
 capable of distinct knowledge, and not depending upon esti- 
 
 i 3 C. B. N. s. 65. See also post, § 210. 
 
 2 Dennison v. Thomaston Mut. Ins. Co., 20 Me. 125, per Wliitman, C. J. See 
 post, §§ 210, 211. 
 
 (a) See page 402, note [a). 
 
 404 
 
CH. X.J OF CONCEALMENT. [§ 203 
 
 mate, opinion, or mere probability ; things in respect to 
 which an owner is bound in honesty and good faith to Icnow, 
 takes upon himself to know, and usually does know, — these 
 and all other pertinent matters of evidence bearing upon the 
 question, are to be left to the jury, with directions that if 
 they are satisfied from all the evidence, and can reasonably 
 infer that the assured did know the fact in regard to which 
 misrepresentation or concealment is imputed, they are to 
 find that he did know it; otherwise not. ^ 
 
 § 203. The cases cited in the last section are apparently 
 not in accord with Lindeneau v. Desborough and Vose v. 
 Eagle Life and Health Insurance Company, cited in the 
 preceding section. And certainly the language of these 
 cases, more particularly the latter, as where it is said that, 
 though there be no warranty, the concealment of a material 
 fact will avoid the policy, though the concealment be the 
 result of accident or negligence and not of design, would 
 seem to lay down an entirely different and much more strin- 
 gent rule. On examination of the cases, however, it will be 
 seen that the facts required no such decision. In both cases 
 the facts undisclosed were such as in the opinion of the 
 court the applicant knew or ought to have known. The 
 question propounded seemed to Lord Tenterden, C. J., in 
 the former case, to be one " calling for an answer stating all 
 the facts which any reasonable man might think material;" 
 and in the case from Massachusetts the court say that the 
 insured, being inquired of if he had had consumption, "could 
 have stated the symptoms of consumption which he had and 
 which he knew he had. " In both cases, therefore, facts were 
 concealed which were known, actually or presumptively, to 
 be material, and they were both no doubt well decided upon 
 the facts. Neither case actually decides upon its facts any- 
 
 1 Houghton t) Manufacturers' Mut. Fire Ins. Co., 8 Met. (Mass.) 114. In 
 Lewis V. Phcenix Ins. Co., 39 Conn. 100, it was held that a statement that the 
 applicant had an insurable interest in the life of the insured, the fact being that 
 there existed the mere relationship of brother on the ground of insurable 
 interest, was false and fatal, the applicant being held to know that the law was 
 as the court then decided it, although it was, and perhaps still is, an open ques- 
 tion. See ante, § 107. 
 
 405 
 
§ 203] INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. X. 
 
 thing more than that the insured was bound to communicate 
 all facts known to him, and by him belicTed to be material, 
 presuming that he knew and believed what men of ordinary 
 intelligence know and believe. In this view the cases are 
 reconcilable. And perhaps this will be found to be the true 
 rule, — that there is concealment whenever facts are with- 
 held which are known, or which must be presumed to be 
 known, because they ought ifo be known to an ordinarily 
 intelligent person, to be material. According to this view, 
 concealment is a violation of good faith, and not a mere 
 error of opinion. Suppose the applicant is inquired of, as 
 in the Massachusetts case, if he has consumption. He is, 
 in fact, afflicted with a cough. But a cough proceeds from 
 various other causes as well as from a disease of the lungs. 
 He has in good faith endeavored to inform himself as to the 
 true causes, and has been informed by his physicians that it 
 does not proceed from the lungs, but from an entirely differ- 
 ent cause. It would seem that the insured, who honestly 
 believes, and has reason to believe, that his cough is due to 
 some other cause, ought not to lose the benefit of his insur- 
 ance, because, when asked if he has disease of the lungs, he 
 does not disclose the fact that he has a cough, even though 
 it should ultimately appear that in point of fact the cough 
 did proceed from a disease of the lungs, and that the ap- 
 plicant in fact had consumption when the insurance was 
 effected. Before the insured can fairly be said to conceal 
 the fact of a particular disease, when he does not disclose 
 the fact that he has symptoms which may or may not indi- 
 cate the presence of the disease, it would seem that it should 
 at least appear that he knew, or had reason to believe, they 
 were symptoms of the disease inquired about. If the in- 
 quiry be to a particular symptom, as if the insured has ever 
 had "spitting of blood," the answer may reasonably be re- 
 quired to be absolute, because of this symptom (of what, 
 perhaps, he might not know) he must have knowledge.^ 
 
 1 See also post, § 297. It is worthy of note that in Mallory v. Travellers' Ins. 
 Co., cited in last section, the court refer to Lindeneau v. Desborough, ubi supra, 
 as one of the authorities upon which they base their decision. They also dis- 
 
 406 
 
CH. X.J OF CONCEALMENT. [§ 204 
 
 § 204. And this seems to be the doctrine of Horn v. Ami- 
 cable Mutual Life Insurance Company. ^ In that case the 
 applicant was required to name the physician usually em- 
 ployed by him, and if he had none, then to name any other 
 doctor who could be applied to for information upon the 
 state of his health. He answered, " None ; " and the fact 
 was that he had occasionally applied to one physician to 
 prescribe for a cough of long standing, accompanied by 
 shortness of breath, and had also secretly applied to another 
 insurance company, when his application was declined upon 
 the examination of the physician of that company. ^ It was 
 held that as the applicant must have known that both of the 
 doctors could have given important information as to his 
 health, and denied, in effect, that there was any one who 
 could give that information, there was, therefore, a fraudu- 
 lent concealment, as matter of law. And in the same case 
 the court proceeds to say that in life insurance the state- 
 ments as to the health of the applicant are representations, 
 and not warranties, and the question is one of honesty and 
 fair dealing ; and, referring to the case of Miles v. Connecti- 
 cut Mutual Life Insurance Company,^ observes that that case 
 is founded upon no analogous case of life insurance, unless 
 it be "Vose v. Eagle Life and Health Insurance Company,* 
 which itself was decided upon the ground of misrepresenta- 
 tion as well as upon that of warranty, upon which last 
 ground no authority is cited in its support. No such rule, 
 however, they proceed to say, has been laid down in New 
 York, and they are unwilling to originate such a doctrine as 
 law. The assured must state all he knows bearing upon the 
 
 tinguish the case from those where specific questions are put, with a stipulation 
 that the answers shall be full and true. They also cite Eawls v. Amer. Life 
 Ins. Co., 27 N. Y. 282 ; Valton v. National Fund Life Ass. Soc, 20 N. Y. 32. 
 See also Hogle o. Guardian Life Ins. Co., 6 Roht. (N. Y. Superior Ct.) 567 ; 
 Kelsey v. Universal Life Ins. Co., 35 Conn. 225; ante, § 200. 
 
 1 64 Barb. (N. Y. S. C.) 81. This case suggests that the same strictness of 
 construction should not prevail in life policies where knowledge of the facts in 
 many respects cannot be of the same certain character as in fire and marine 
 policies. 
 
 2 See as to concealing fact of prior application, post, § 215. 
 8 3 Gray, 680. 4 6 Cush. 42. 
 
 407 
 
§ 206] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. X. 
 
 condition of his health, and any untrue statement or con- 
 cealment in this respect ought justly to render the policy 
 void. In all respects where it appears, or can be shown, 
 that the applicant had any knowledge of the facts called for 
 by the interrogatories, it matters very little whether the an- 
 swer be held a warranty or not, inasmuch as any untrue 
 statement will be a misrepresentation or fraud, which will 
 equally avoid the policy. 
 
 § 205. Indeed, the case of Campbell v. New England 
 Mutual Life Insurance Company^ seems to have been re- 
 garded as evincing a disposition on the part of the courts of 
 Massachusetts to modify the severity of the rule which the 
 language of the court in the case of Vose v. Eagle Life and 
 Health Insurance Company would seem to require, and 
 which was followed in the subsequent case, in the same 
 State, of Miles v. Connecticut Mutual Life Insurance Com- 
 pany. Thus, in Price v. Phoenix Life Insurance Company,* 
 which was a case very similar in its facts, the court adopt 
 the views of the Massachusetts case,^ although they say they 
 are well aware that it would be difEcult, if not impossible, 
 to reconcile the views expressed in that case with the doc- 
 trines laid down in a great number of other cases.* 
 
 § 206. Still there is a class of cases where the insured has 
 bound himself, hand and foot, by a stipulation that his ap- 
 plication contains a just, full, and true exposition of all the 
 facts inquired for, or its equivalent in a different form of 
 words, and is to be deemed a warranty. Such cases are to 
 be distinguished from those we have been considering. In 
 these, according to the received interpretation, no question 
 of knowledge, good faith, or materiality arises ; it is simply 
 a question of the truth and fulness of the answers; and a 
 want of either is fatal. Such policies, under such an inter- 
 pretation, are practically no security at all. The insured is 
 at the mercy of the insurer; and, if the applicant will be so 
 imprudent as to make such a bargain, the courts cannot help 
 
 1 98 Mass. 381 ; ante, § 187. = 17 Minn. 497. 
 
 8 98 Mass. 381. * And see post, § 211. 
 
 408 
 
. CH. X.J OF CONCEALMENT. [§ 207 
 
 him.^ It can scarcely be necessary to add, to secure practi- 
 cal impunity to the insurer, the further stipulation, that "if, 
 after insurance, the risk shall be increased by any means 
 whatever, and the insured shall neglect to notify the com- 
 pany of such increase, such insurance shall be void. " ^ 
 
 § 207. Facts kno'w^n to Insurer, or vrhich lessen the Risk ; 
 Minor Details. — A failure to state facts known to the in- 
 surer,^ or his agent,* or which he ought to know,^ since these 
 he will be presumed to know, or which lessen the risk, for 
 that only is material which tends to increase the risk,^ in 
 the absence of express stipulation, and where no inquiry is 
 made, is no concealment. [When no inquiries are made, 
 the intention of the assured becomes material, and to avoid 
 
 1 Hardy v. Union Mut. Fire Ina. Co., 4 Allen (Mass.), 217 ; Chafifee v. Catta- 
 raugus County Mut. Ins. Co., 18 N. Y. 376 ; Kennedy i/. St. Lawrence County 
 Mut. Ins. Co., 10 Barb. (N. Y.) 285 ; Abbott v. Shawmut Mut. Fire Ins. Co., 3 
 Allen (Mass.), 214 ; Shawmut Mut. Fire Ins. Co. v. Stevens, 9 id. 332 ; Colum- 
 bia Ins. Co. V. Cooper, 50 Pa. St. 331. See also Teutonia Life Ins. Co. v. Beck, 
 74 111. le.T ; Beck v. Hibernia Ins. Co., 44 Md. 95 ; McDonald v. Law Union Fire 
 & Life Ins. Co., L. R. 9 Q. B. 328 ; s. c. 3 Ins. L. J. 796 ; Baker v. Home Life 
 Ins. Co., 2 Hun (N. Y.), 402 ; s. c. affirmed, 64 N. Y. 648 ; Barteau v. Phcenix 
 Jtnt. Ins. Co., 67 id. 595 ; Jeffries v. Economical Life Ins. Co., 22 Wall. (U. S.) 47. 
 \Vs remember to bave heard a learned judge, who was giving a reluctant judg- 
 ment in one of these cases against the insured, observe, with considerable feel- 
 ing, that if such companies would provide simply that they should never, in any 
 event, be liable in case of loss, they would not only save the courts from much 
 disagreeable duty, but would be free from the suspicion of having purposely 
 entrapped the insured. See also ante, § 180 a. 
 
 2 Pottsville Mut. Fire Ins. Co. o. Horan (Pa.), 9 Ins. L. J. 201. 
 
 ' [If a company elects to issue a policy after becoming aware of a disaster to 
 the property, tJioitgh known by the plaintiff and concealed at the time of application, 
 the plaintiff may recover. Royal Can. Ins. Co. v. Smith, 5 Euss. & Geld. (Nova 
 Sco.) 322, Weatherbee, J., dis. Knowledge of the insurer equal to that of the 
 insured, makes disclosure unnecessary. Where, however, the assured's knowl- 
 edge is particular and definite, while that of the insurer is only general, dis- 
 closure must be made. For example, knowledge of a particular gale where the 
 assured's ship was must be given to the insurers before the issuing of the policy, 
 although they already know that there have just been severe gales in that region. 
 Moses V. Delaware Ins. Co., 1 Wash. 385, 388.] 
 
 * [Tlie applicant is not bound to disclose what the agent knows. Richards v. 
 Wash. Fire & Mar. Ins. Co., 60 Mich. 420.] 
 
 ^ [When the insurer has the means of knowledge at baud, and both parties 
 are aware that such is the case, it is probable that he cannot set up the failure to 
 disclose such fact as a defence. Bates v. Hewitt, 4 F. & F. 1023, 1031.] 
 
 ° [When the matter concealed could have in no way increased the risk, the 
 concealment is immaterial. Lexington Ins. Co. v. Paver, 16 Ohio, 324, 334.] 
 
 409 
 
§ 207] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. X. 
 
 the policy it must be found not only that the matter was 
 material, but also that it was intentionally and fraudulently 
 concealed. 1 But a concealment in respect to a matter speci- 
 fically inquired about in the application is fatal, although 
 the question is not really material. ^J The insurers are pre- 
 sumed to be skilled in their business, and to know those 
 general facts, political and otherwise, which are open to the 
 public, and may be known to all who are interested to in- 
 quire. ^ [If according to usage certain papers would be on 
 shipboard, non-disclosure of those papers will not affect the 
 plaintiff.^] In like manner the insured is presumed to know 
 what a man of ordinary capacity ought to know, and a. fail- 
 ure to state such facts as are clearly material in the general 
 judgment will amount to a concealment.^ Such details, 
 however, as the character and pursuits of the tenants or 
 occupants of a building;^ or the character of the buildings 
 adjoining;'' or that the insured had commenced the erection 
 of a new building near those insured;^ or that he is person- 
 ally obnoxious to the neighborhood in which he lives ;^ or 
 the fact of pending litigation relative to the premises ; ^° or 
 how a building is heated or lighted, unless in the mode of 
 heating or lighting there is something unusual ;i^ or that 
 
 1 [Alkan v. N. H. Ins. Co., 53 Wis. 136, 142.] 
 
 2 [Fame Ins. Co. v. Thomas, 10 Brad. 545.] 
 
 * Carter v. Boehm, 1 W. Black. 593 ; Boggs v. Amer. Ins. Co., 30 Mo. 63; 
 Merch. & Mar. Mut. Ins. Co. u. Washington Mufc. Ins. Co., 1 Hand. (Ohio) 408 ; 
 Haley v. Dorche.ster Mut. Fire Ins. Co., 12 Gray (Mass.), 545; Pimm v. Lewis, 
 2 F. & F. 778 ; Foley v. Tahor, id. 663 ; Benson v. Ottawa Agr. Ins. Co., 42 
 U. C. (Q. B.) 282. 
 
 * [Livingston v. Maryland Ins. Co., 7 Cranch, 506.] 
 
 * Dennison v. Thomaston Mut. Ins. Co., 20 Me. 125. [If occupancy of the 
 insured house hj' two tenants instead of one was material to the risk, it should 
 be disclosed, otherwise it need not he, and it is a question of fact for the jury. 
 Hardman v. Fireman's Ins. Co., 20 Fed. Rep. 594, 595.] 
 
 ^ Lyon V. Commercial Ins. Co., 2 Rob. (La.) 266. 
 
 ' Satterthwaite v. Mut. Ben. Ins. Co., 14 Pa. St. 393. 
 
 " Gates V. Madison County Mut. Ins. Co., 1 Seld. (N. Y.) 469. 
 
 9 Keith V. Globe Ins. Co., 52 111. 518. 
 
 1° Hill V. Lafayette Ins. Co., 2 Mich. 476 ; Cheek v. Col. Fire Ins. Co. (Tenn.), 
 4 Ins. L. J. 99. 
 
 11 Girard Fire & Mar. Ins. Co. v. Stephenson, 37 Pa. St. 293 ; Clark v. Manu- 
 facturing Ins. Co., 8 How. (U. S.) 235. 
 
 410 
 
CH. X.] OF CONCEALMENT. [§ 207 
 
 there is other insurance, ^ — need not be disclosed unless 
 inquired for. And even if the inquiry be whether others 
 are interested in the property, a void tax-title need not be 
 disclosed.^ [Where carpenter work was going on in the 
 insured building but no questions or answers were given as 
 to it, nor was fraud or intentional concealment proved, the 
 concealment was left to the jury, and the court refused to 
 overrule their decision.^] Although it was said in an early 
 case that marine, fire, and life insurance stand upon the 
 same footing as to the application of the doctrine of con- 
 cealment,* there is reason for less strictness in cases of fire 
 insurance, where the insurers are by no means so dependent 
 upon the insured for their information, and may, and often 
 in fact generally do, by themselves or their agents, make 
 personal examination. Even in marine insurance, a failure 
 to disclose the fact that there were damaged goods on board 
 the vessel, which from their damaged condition might tend 
 to increase the risk, was held to be no concealment.^ Be- 
 sides, the propounding of a series of questions as to partic- 
 ular facts gives rise to the inference that others are not 
 regarded as material, or that upon them the insurer has 
 informed himself. Hence a failure to disclose many minor 
 details obvious to any one who examines, and open to gen- 
 eral observation, is not to be regarded as a concealment.^ 
 The mere omission, without fraud, to state matter not called 
 for by specific or general inquiry, is not concealment.'' 
 
 1 Parsons v. Citizens' Ins. Co., 43 U. C. (Q. B.) 261 ; McDonell v. Beacon Fire 
 & Life Ins. Co., U. C. 7 C. P. 308. [Non-disclosnre of prior assurance is not 
 fatal unless the contract calls for such disclosure. Agricultural Ins. Co. v^ 
 Bemiller, 70 Md. 400.] 
 
 2 Cheek v. Columbia Fire Ins. Co. (Tenn.), 4 Ins. L. J. 99. 
 
 8 [People V. Liv., Lon., & Globe Ins. Co., 2 T. & C. (N. Y.) 268, 271.] 
 * Lindeneau v. Desborough, 8 B. & C. 586. 
 
 5 Boyd V. Dubois, 3 Camp. (Nisi Prius) 133. 
 
 6 Burritt v. Saratoga County Mut. Fire Ins. Co., 5 Hill (N. Y.), 188 ; Holmes 
 V. Charlestown Mut. Fire Ins. Co., 10 Met. (Mass.) 211 ; Jolly's Adm'r v. Bait. 
 Eq. Soc, 2 H. & G, (Md.) 295 ; Gates v. Madison County Mut. Ins. Co., 1 Seld. 
 (N. Y.) 469 ; Cheever v. Union Central Ins. Co., Supr. Ct. Cincinnati ; 5 Big. Life 
 & Ace. Ins. Cas. 458. 
 
 ' Rawls u. American Mut. Life Ins. Co., 27 N. Y. 282 ; Swift v. Mass. Mut. 
 Life Ins. Co., 63 N. Y. 186 ; Laidlaw v. Liverpool, &c. Ins. Co., 13 Grant's Ch. 
 (U. C.) 377. 
 
 411 
 
§208] INSUEANCE: FIRE, LIFE, ACCIDENT, ETC. [CH. X. 
 
 § 208. 'What Facts must be disclosed ; Threats of Burning. 
 — Such facts, however, as are unusual, threatening, and not 
 open to general observation, especially if they are the in- 
 ducement or occasion for the application for insurance, ought 
 to be disclosed, whether inquired about or not. The fact 
 that frequent threats or attempts have been made to set fire 
 to the property for insurance upon which application is 
 made, is such an one as would naturally attract the atten- 
 tion of the insurers, if known, and modify their estimate of 
 the risk. Withholding such facts, if inquired about, would 
 therefore amount to a concealment which would vitiate the 
 policy. 1 And the same would be true if the inducement 
 which leads to the procurement of insurance is the fact that 
 attempts have been made to set fire to neighboring property 
 so situated that, if it should burn, the property upon which 
 insurance is sought would be endangered. ^ [But a failure 
 to disclose a threat of burning made during an election ex- 
 citement several nionths before the insurance, is not mate- 
 rial.^] A neglect to disclose such facts, after insurance has 
 been obtained, is not such a failure to make known any 
 change of circumstances increasing the risk under a by-law 
 providing that notice of such change of circumstances must 
 
 1 Curry v. Commonwealth Ins. Co., 10 Pick. (Mass.) 535 ; Bebee v. Hartford 
 Mut. Ins. Co., 25 Conn. 51 ; New York Bowery Ins. Co. v. New York Ins. Co., 
 17 Wend. (W. Y.) 359 ; North American Fire Ins. Co. v. Throop, 22 Mich. 146 ; 
 Greets). Eoyal Ins. Co., 16 C. L. J. 275. The plaintiff answered "no" to the 
 question, " Is there any reason to fear incendiarism, or has any threat been 
 made ? " The policy was to be void if insured omitted to state " any circum- 
 stance material." The insured had been threatened a beating, and for this rea- 
 son got insm-ed, and the policy was held to be void. Campbell v. Victoria Mut. 
 Ins. Co., U. C. (Q. B.) 17 Can. L. J. 40 (1881), Annan, J., dissenting. [Tlie 
 question " Is there reason to fear incendiarism, or has any threat been made ? " 
 has been held equivalent to, " Have you reason to fear, or do you fear incendi- 
 arism ? " and if the applicant really feared it though without valid reason, a non- 
 disclosure is fatal. Campbell v. Vict. Mut. Fire Ins. Co., 45 U. C. R. 412, 
 Armour, J., dis. If the insured answers aU questions put to him in the blank 
 application, he is not bound to state therein a threat " to fix him " which induces 
 him to insure. He informed the agent of it, and this was held entirely sufficient. 
 Smith V. Home Ins. Co., 47 Hun, 30.] 
 
 2 Walden v. Louisiana Ins. Co., 12 La. 134 ; Bufe v. Turner, 6 Taunt. 338 ; 
 Uzielli V. Commercial, &c. Ins. Co., 12 L. Times N. s. 399. See also post, 
 §215. 
 
 3 [Kelly «. Hochelaga Mut. Fire Ins. Co., 24 L. C. Jur. 298.] 
 
 412 
 
CH. X,] OF CONCEALMENT. [§ 209 
 
 be made under penalty of avoiding the policy if it be not 
 done.i [Where the by-laws of a company are expressly 
 made a part of the policy, and they provide that any fact 
 subsequent to the application which would have to have been 
 stated therein, must be stated to the company, the assured 
 is bound to the same strictness as to such facts as he was 
 in relation to the original ones.^] 
 
 § 209. General Statement sufficient, if such as Good Faitli 
 and Fair Dealing require. — A general statement of the facts, 
 however, sufficient to put the insurers upon inquiry if they 
 desire more particular information, is all that is necessary.^ 
 But if inquiry be made on this point, as the matter is within 
 the especial knowledge of the applicant, the answer should 
 be full, and in itself contain the information which would 
 naturally lead to further investigation. If, therefore, in 
 response to a specific inquiry, the applicant declares that he 
 has no reason to believe his property in danger from incen- 
 diarism, and it appears that in fact he had, it will be no 
 reply that he had previously talked with the agent of the 
 company about several recent attempts made to burn build- 
 ings in town, and the risk of such fires generally, without 
 mentioning a supposed attempt upon the building upon which 
 the application for insurance was made. Whether such talk 
 might, or might not, have put him on inquiry is immaterial. 
 The truth of the answer is the only question open to the 
 jury.* It was held, however, in McBride v. Republic Fire 
 
 1 Clark V. Hamilton Mut. Ins. Co., 9 Gray (Mass.), 148. 
 
 2 [Calvert v. Hamilton Mut. Ins. Co., 1 Allen, 308, 310.] 
 
 3 Bebee v. Hartford Mut. Ins. Co., 25 Conn. 51. 
 
 * "When a person is particularly interrogated," said the court, in North 
 American Fire Insurance Company v. Throop, 22 Mich. 146, and see post, § 212, 
 " regarding a subject peculiarly within his own knowledge, and the other party 
 is expected to contract with him in reliance upon his answer, and the answer ia 
 made misleading, if not untruthful, it seems to us alike a perversion of law and 
 justice to say that he shall have the advantage of his uncandid answers if he can 
 convince the jury that the other party was wanting in prudence in relying upon 
 them, because of having extrinsic notice, which was sufficient, if followed up by 
 inquiries in other quarters, to have led him to a knowledge of the exact facts. 
 The insurer has a right to know the truth from the assured himself ; and if his 
 inquiries addressed to him failed to elicit the truth, it is no excuse to the latter, 
 either in morals or law, that the insurer, if sufficiently distrustful and suspicious, 
 
 413 
 
§ 210] INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. X. 
 
 Insurance Company, ^ where there were specific threats 
 against the particular property insured, and an answer to 
 an inquiry upon this point was in the negative, that such 
 an answer would not avoid the policy, unless the threats 
 made were of such a character and from such a person that 
 danger was reasonably to be apprehended, and such that a 
 person of ordinary prudence and caution would regard them 
 as worthy of notice. But mere idle talk, which by a pru- 
 dent person might, and probably would, be disregarded, need 
 not be communicated. 
 
 § 210. Equivocal Interrogatories; Opinions. — Of course, if 
 the inquiry be equivocal, or calls for an answer which in- 
 volves an expression of opinion, as when the question is as 
 to the distance of buildings within ten rods;^ or what build- 
 ings endanger the one insured ; ^ or if there is a livery -stable 
 in the vicinity,* — whether the first question involves the 
 necessity of specifying all the buildings within that dis- 
 tance, or only the nearest ones, or what buildings "endan- 
 ger," or what constitutes "vicinity," are questions to some 
 extent of opinion upon which intelligent men may differ, 
 and therefore it is enough to answer them as men of ordi- 
 nary intelligence should. So if the inquiry be as to whether 
 the applicant has suffered from any derangement of certain 
 functions, or had any "serious illness" or disease "tending 
 to shorten life," or any other inquiry which may be under- 
 stood in different senses, as the answer to these questions 
 
 and inoliued to rely upon what he had heard from others rather than upon the word 
 of the assured himself, could be regarded as ' put on inquiry,' respecting the truth- 
 fulness and candor of the information, in consequence of something he had heard 
 incidentally at a time when perhaps he had no special occasion to charge his 
 memory with it. He goes to the authority that ought to be the best, and he has 
 a right to rely upon what is told him. If it were allowable to submit to a jury 
 the question of his prudence in doing so, it would be impossible for them, in 
 most cases, to be so fully possessed of the exact condition of his information at 
 the time as to be enabled to determine whether he was or was not guilty of negli- 
 gence in such reliance." 
 
 1 30 Wis. 562. 
 
 2 Gates V. Madison County Mut. Ins. Co., 2 Comst. (N'. Y.) 43 ; s. c. 1 Seld. 
 (N. Y.) 469 ; reversing same case in 3 Barb. (N". Y.) 73; Masters v. Madison 
 County Mut. Ins. Co., 11 id. 624. 
 
 3 Dennison v. Thoniaston Mut. Fire Ins. Co., 20 Me. 125. 
 
 * Haley v. Dorchester Mut. Fire Co., 12 Gray (Mass.), 545. 
 
 414 
 
CH. X.] OF CONCEALMENT. [§ 211 
 
 may be mere matter of opinion, an honest though erroneous 
 answer is no misrepresentation.^ Opinions, if honestly 
 entertained and honestly communicated, are not misrepre- 
 sentations, however erroneous they may prove to be.^ 
 
 § 211. Same Subject. — Upon this point the Maine case 
 just cited is so full of sound practical sense, that it cannot 
 be too often cited or too often perused. The only facts neces- 
 sary to be added to those stated in the opinion of the court 
 are, that to the questions, " What are the buildings occupied 
 for that stand within four rods ? how many buildings are 
 there to the fires of which this may be in any case exposed ? " 
 there was no answer, and that the policy was to be void if any 
 circumstance material to the risk was suppressed.^ 
 
 1 Hogle V. Guardian Life Ins. Co., 6 Robt. (N. Y. Superior Ct.) 667 ; Higbie 
 V. Guardian Life Ins. Co., 53 N. Y. 603 ; Jones v. Prov. Ins. Co., 3 C. B. N. ti. 65. 
 See also ante, §§ 175, 202 ; Moulor v. Am. Life Ins. Co., 101 U. S. 708; Fitch v. 
 Am. Popular Life Ins. Co., 59 N. Y. 557. 
 
 2 Dennison v. Thomaston Mat. Ins. Co., 20 Me. 125. See also Hill v. Lafay- 
 ette Ins. Co., 2 Mich. 476 ; ante, §§ 178, 187, 202. If the applicant answers, as 
 to what he must have known and understood, conti'ary to that knowledge and 
 understanding, there can be no doubt that the law is as stated in § 201. Barteau 
 V. Phrenix Life Ins. Co., 67 N. Y. 595 ; affirming s. c. 1 Hun (N. Y.), 430. 
 
 2 Whitman, C. J., in giving the opinion, said : " The misrepresentation alleged 
 is contained in the answer to a written interrogatory, propounded to the plaintiff, 
 as to the distance of other buildings from the premises insured. The answer was 
 in these words : ' East side of the block are small one-story wood-sheds, and would 
 not endanger the buildings if they should burn.' In evidence it appeared that 
 small sheds projected out from near the back part of the brick block of buildings 
 (one of which was the house in question) twenty-four feet, being twelve feet in 
 width, and eight feet stud ; and leaving a. passage-way in the rear of them of 
 fourteen feet wide, adjoining some two-story wooden buildings standing on another 
 street forty-nine feet from the plaintiff's house, and in which the fire which 
 consumed the plaintiff's house originated. The first question which arises 
 is. Was this a, misrepresentation, or was there a suppression of the truth tan- 
 tamount thereto, and material to the risk ? It does not seem to be necessary 
 in order to avail the defendants in their defence, that the misrepresentation or 
 suppression of the truth should have been wilful. If it were but an inadvertent 
 omission, yet if it were material to the risk, and such as the plaintiff should have 
 known to be so, it would render the policy void. In the case at bar it has now 
 been rendered undeniable that the burning of the two-story buildings on another 
 street endangered the plaintiff's house ; and to the interrogatory propounded it 
 now would seem that the existence of those buildings might, with propriety, have 
 been stated. But this does not prove that before the occurrence of the fire it 
 would have been deemed material to name them, as being near enough to put the 
 plaintiff's house in jeopardy. It is not an unfrequent occurrence, after a disaster 
 has happened, that we can clearly discern that the cause which mav have pro- 
 
 415 
 
§ 212] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. X. 
 
 § 212. Equivocal Answer. — An equivocal answer, how- 
 ever, to a question, though true in one sense, may involve 
 a misrepresentation or concealment, all the facts being 
 known to the applicant; as if the insured should say he 
 had been sick a week when he had been sick two weeks, or 
 had had a medical attendant once within a certain period 
 when in fact he had had one on several occasions within 
 that time, or that he was thirty years old when in fact he 
 
 duced It would te likely to have such an effect ; while, if no such disaster had 
 occurred, we might have been very far from expecting it. In this case it is es- 
 sential to determine whether the plaintiff was bound to have known that a fire, 
 originating in the two-story wooden buildings would have endangered the burning 
 of his house. If, as a man of ordinary capacity, he ought to have had such an 
 apprehension, then he ought to have named those buildings in reply to the inter- 
 rogatory propounded ; for what a man ought to have known, he must he presumed 
 to have known. His knowledge in a case like the present must have been some- 
 thing more than that, by a possibility, a fire so originating might have endangered 
 his house. This kiud of knowledge might exist in regard to a fire originating in 
 almost any part of a city like Bangor ; for a fire originating in an extreine part 
 of it, if the wind were high and favorable for the purpose, might endanger all the 
 buildings, however remote, standing nearly contiguous one to another to the lee- 
 ward of it. Any danger like this could not have been in contemplation when the in- 
 terrogatory was propounded. Such buildings only as were so nearly contiguous as 
 to have been, in case a fire should originate therein, productive of imminent hazard 
 to the safety of the plaintiff's dwelling could have been in view by the defendants. 
 And the question is, Were the two-story wooden buildings of that description ? 
 
 " In reference to this question, it may not be unimportant to consider that the 
 defendants, at the time when this policy was effected, had an agent residing in 
 Bangor, whose business it was to attend in their behalf to the applications for in- 
 surance in that quarter. It may be believed that the selection of this individual 
 was the result of knowledge with regard to his intelligence and capacity for such 
 purpose. It was not, however, his business perhaps to prepare representations to 
 be made by applicants for insurance. But it did so happen that he assisted the 
 plaintiff in preparing the answers to the standing interrogatories before named, 
 intended to produce a representation upon which to found the estimates of the 
 propriety of assuming the risks proposed. He, it seems, examined the premises, 
 looked at the wood-sheds, and the two-story wooden buildings beyond them. To 
 him it did not seem to have occurred that the vicinity of those buildings was such 
 as to render it necessary that the two-story wooden buildings should be named in 
 answer to the interrogatory ; for he, at the request of the plaintiff, penned the 
 reply thereto as he thought proper. 
 
 " It does not appear that any witness has testified that, anterior to the disaster, 
 he should have anticipated such an event as within the range of probability. 
 What other individuals of intelligence did not foresee to be likely to occur, could 
 not reasonably be expected of the plaintiff. And what he could not be expected 
 to know, he cannot be considered as culpable for not knowing. And what he 
 could not be expected to apprehend, he could not be bound to communicate ; and 
 in not communicating any such fact, he could not be considered as guilty of con- 
 cealing it, even inadvertently, and much less wilfully." 
 
 416 
 
CH. X.] OF CONCEALMENT. [§ 212 
 
 was fifty.^ And Lord Chief Justice Cockburn thought that 
 when the insured was asked as to his occupation or profes- 
 sion, and answered that he was an "esquire," which in fact 
 he was, but was also an ironmonger, he should have stated 
 the latter fact. But the rest of the court did not agree with 
 him.^ So if at the time of insurance objection is made to 
 the proximity of a gambling establishment, the fact that the 
 premises upon which insurance is applied for is occupied in 
 part by gamblers, is one which might be material.^ An 
 equivocal or evasive answer, where all the facts are known 
 to the applicant, so that he can answer unequivocally, is 
 just as fatal as a false one. If not untrue, it is practically 
 a concealment. As when one has had, and knows he has 
 had, certain symptoms of disease inquired about, and he 
 answers, "See surgeon's report;"* or is inquired of as to 
 the number of times he has required medical attendance, 
 and answers, "Two years ago," when in fact he had re- 
 quired it at other times ; ^ or as to his age, and gives a less 
 number of years than the true number ; ^ or as to his occupa- 
 tion, and having two, he states the one most favorable to 
 himself,' though on this point of occupation the Court of 
 Exchequer Chamber seem to have sanctioned the most ob- 
 vious equivocation.^ So if the insured equivocates as to his 
 medical attendant; or if, having had more than one, gives 
 the name of that one who he has reason to believe is least 
 able to give the information sought by the insurers ; ^ or if 
 
 1 Cazenove v. Brit. Eq. Ass. Co., 6 C. B. N. s. 437 ; s. o. on appeal, 29 L. J. 
 (C. P.) 160. 
 
 2 Perrins v. Mar. & Gen. Trav. Ins. Co., 2 E. & E. 317; post, § 306. 
 8 Lyon V. Com. Ins. Co., 2 Bob. (La. ) 266. 
 
 < Smith V. jEtna Life Ins. Co., 49 N. Y. 211. 
 
 s Cazenove v. Brit. Eij. Ass. Co., 6 C. B. N. s. 437. 
 
 " Ibid., per Pollock, C. B. Murphy o. Harris, Batty (Irish), 206 ; Wray v. 
 Man. Prov. Ass. Co., cited by Bliss, Ins. 165 ; post, § 305. 
 
 ' Hartman v. Keystone Ins. Co., 21 Pa. St. 466. 
 
 8 Cazenove v. Brit. Eq. Ass. Co., 6 C. B. N. s. 437 ; ante, § 212 ; post, § 306. 
 
 ' Morrison v. Muspratt, 4 Bing. 60 ; Hutton v. Waterloo Life Ass. Soc, 1 F. 
 & F. 735 ; Monk v. Union Mut. Life Ins. Co., 6 Robt. (N. Y. Superior Ct.) 455 ; 
 Huckman v. Fernie, 3 Mees. & Wels. 505. And see also Forbes v. Ed. Life Ass. 
 Co., 10 Ct. of Sess. Cas. (Scotch) 451 ; Abbott v. Howard, Hayes (Irish), 381 ; 
 Maynard v. Ehode, 1 C. &. P. 360 ; North Am. Fire Ins. Co. u. Throop, 22 Mich. 
 146 ; ante, § 209 ; post, § 304. 
 
 VOL. I. —27 417 
 
§ 213] INSURANCE : TIKE, LIFE, ACCIDENT, ETC. [CH. X. 
 
 he equivocates in his answer to the inquiry whether he has 
 applied elsewhere for insurance and been refused.^ If the 
 answer be rather irresponsive than equivocal, as when in 
 answer to the question where his usual medical attendant 
 resided, he says, "Refer to Dr. A. of-B.," it seems that the 
 insurers should inquire further, or be considered as having 
 waived inquiry. ^ 
 
 § 213. Agent's Concealment imputable to Principal. — Con- 
 cealment or misrepresentation by an agent authorized to 
 effect the insurance is of course concealment or misrepre- 
 sentation by the principal, and carries with it the same 
 consequences.^ An innocent principal cannot take any bene- 
 fit from the fraud of his agent.* The important question is 
 whether the agent is of such a character. In effecting in- 
 surance upon the live^ of third persons, reference is often 
 made to the person whose life is to be insured, or to some 
 other person for information, and the doctrine that such per- 
 sons so referred to are to be considered as the agents of the 
 insured in giving answers to all material questions which 
 may be put to them respecting the matters as to which they 
 may be properly interrogated, has apparently received the 
 sanction of some learned judges.^ But in a comparatively 
 recent case,^ Lord Campbell carefully reviewed the several 
 
 1 London Ass. Soc. v. Mansel, 48 L. J. Ch. 331. 
 
 2 Higgins V. Phrenix Mut. Life Ins. Co., 76 N. Y. 6 ; Edington v. Mat. Life 
 Ins. Co., 07 N. Y. 185. 
 
 8 [A broker procuring insurance is the agent of the applicant, and a conceal- 
 ment by him avoids the policy. Hamblet v. City Ins. Co., 36 Fed. Rep. 118 (Pa.), 
 1888. But where A. applied to an agent B. for insurance, B. knowing the nature 
 of the risk did not wish to put it all in his company, so he went to C, the agent 
 of another company, who without any communication with A. or any knowledge 
 of the property, wrote a policy and gave it to B., who delivered it to A., C's com- 
 pany was held bound. May v. Western Ass. Co., 27 Fed. Eep. 260 (Minn.), 
 1886.] 
 
 4 National Life Ins. Co. v. Minch, 53 K Y. 144. See also ante, §§ 122, 202. 
 
 6 See Fitzherbert v. Mather, 1 Term R. 12 ; Cornfoot v. Fowke, 6 Mees. & 
 Wels. 358 ; Morrison v. Muspratt, 4 Bing. 60 ; Maynard v. Rhodes, 5 Dowl. & 
 Ry. 266 ; Lindeneau v. Desborough, 8 B. & C. 586 ; Everett v. Desborough, 5 
 Bing. 503 ; Huckman v. Fernie, 3 Mees. & Wels. 505 ; Swete v. Fairlie, 6 C. & 
 P. 1 ; Rawlins v. Desborough, 2 Moo. & Rob. 328, 329. 
 
 ^ Wheelton v. Hardisty, in the Queen's Bench, afGlrmed in the Exchequer 
 Chamber, 8 El. & Bl. 232. 
 418 
 
OH. X.] OF CONCEALMENT. [§ 214 
 
 cases supposed to give such sanction, showing that they did 
 not necessarily so decide, and came to the conclusion that 
 the doctrine is unsound. And it seems now to be the set- 
 tled law of England that when the insured does not ex- 
 pressly stipulate for the truth of the statements of third 
 persons thus referred to, but only states his belief in their 
 truth, fraudulent misrepresentation or concealment by them, 
 but not known to the insured, will not avoid the policy. 
 They are not agents in any such sense as to make him re- 
 sponsible for what they fraudulently state, or fail to state. ^ 
 
 § 214. Prior or Subsequent Statements of the Person •whose 
 Life is insured as against the Party insured. — Where one pro- 
 cures insurance upon the life of another, the latter having 
 signed the application .upon the truth of the answers id 
 which the validity of the policy is made to depend, it has 
 been held on the one hand that evidence of the declarations 
 of the party upon whose life the insurance is effected as to 
 the state of his health, whether made before or after the 
 insurance is effected, if made about that time, or so near as 
 to afford a probable inference as to the state of his health, 
 is admissible against the insured.^ But such declarations 
 must have been made within such reasonable proximity to 
 the time of effecting the insurance as to afford some sub- 
 stantial ground of inference as to the state of health at that 
 time. One important ground, upon which such declarations 
 are received is, that they are a part of the res gestce. The 
 subject of inquiry is the health of the person whose life is 
 insured at the time the insurance is effected, and no one can 
 have so perfect a knowledge of that as the person himself. 
 Medical men always arrive at their conclusions in respect to 
 the health by information derived in part from what their 
 patients say ; and what is said by them in respect to health 
 under circumstances which preclude any suspicion of collu- 
 sion is as fairly a part of the res gestce as are symptoms 
 
 1 See also Rawls v. American Mut. Life Ins. Co., 27 N. Y. (13 Sraitli) 282, 
 affirming .s. 0. 36 Barb. (N. Y, ) 357. 
 
 ^ Kelsey v. Uuiversal Life Ins. Co., 35 Conn. 225 ; Aveson v. Lord Kinnaird, 
 6 East, 188. 
 
 419 
 
§ 214] INSUEANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. X. 
 
 learned from other sources.^ In both of the cases just cited 
 the statements were made prior to the consummation of the 
 contract, and therefore, strictly speaking, what was said 
 about the admissibility of statements subsequent thereto is 
 extra-judicial. And so they seem to have been regarded by 
 the court in a very recent case in Kansas, ^ where it was 
 held that the declarations of a party whose life was insured 
 for another's benefit, made long after (it does not appear by 
 the report of the case how long) the contract was completed, 
 cannot be received in evidence against the insured to im- 
 peach the truthfulness of the statements of the same party 
 made in the application. The contract, it was said, is be- 
 tween the insured and the insurer. The parties are the 
 same whether that which is insured is a human life or a 
 building. There is this difference, however, that the life 
 being active, can, by its conduct, affect the contract, even 
 so far as to annul it, while the building, being inanimate 
 and passive, has of itself no such power. But aside from 
 this, the rights and liabilities of the parties to the contract 
 are the same. The party upon whose life the insurance is 
 effected is not a party to the record, and therefore his dec- 
 larations are not admissible on that ground. He is not a 
 party in interest, as the whole benefit inures to the insured. 
 Neither is he the agent of the insured, authorized to speak 
 in his behalf, nor does he come within any other rule by 
 which his declarations can be received against the insured. 
 And such was the doctrine in the case of Eawls v. American 
 Life Insurance Company, with reference to statements made 
 before the contract was entered into, the length of time prior 
 to that event not being adverted to,^ and the inadmissibility 
 being placed upon the ground that the life-insured was no 
 party in interest to the contract, and could therefore make 
 no statement or admission, in the absence of authority, that 
 would devest the rights of the plaintiff, — the insured. So, 
 
 1 Eelsey v. Universal Life Ins. Co., 35 Conn. 225 ; Aveson v. Lord Kinnaird, 
 6 East, 188. 
 
 ^ "Washington Life Ins. Co. v. Haney, 10 Kans. 525. 
 8 36 Barb. (N. Y.) 857 ; s. c. affirmed, 27 N. Y. 282. 
 420 
 
CH. X.] OF CONCEALMENT. [§ 214 
 
 also, in Fraternal Mutual Life Insurance Company v. Apple- 
 gate,^ where a wife had insured the life of her husband for 
 her benefit, the declarations of her husband, made after the 
 insurance, as to the state of his health before that time, 
 were held inadmissible for the purpose of impeaching the 
 truthfulness of the statements made in the application, 
 which, in this respect differing from the cases which we 
 have just been considering, was signed by the beneficiary 
 thus: "Henrietta Applegate, by H. S. Applegate," the hus- 
 band. The statements in question were regarded by the 
 court as those of a stranger who was neither a party to the 
 suit, nor, at the time when they were made, acting as 
 the agent of the insured. They were not the declarations 
 of a sick person in relation to his condition at the time of 
 making them, but related to transactions and a state of facts 
 long past. They were not admissions against interest, for 
 they could only affect injuriously his wife's separate prop- 
 erty. They were not the statements of one who had been a 
 witness on the trial offered to impeach his testimony. And 
 although they were the declarations of the person who best 
 knew the facts, this would only go to their weight, when 
 their competency had been established.^ 
 
 1 7 Ohio St. 292. 
 
 '' And see also Stobart v. Dryden, 1 Mees. & Wels. 615, from which it is to be 
 inferred that Aveson v. Lord Kinnaird is not an authority save upon its exact 
 facts. In fact, this case and the case of Kelsey v. Universal Life Ins. Co., ubi 
 sup., seemed to have carried the principles upon which they proceed — a qitasi 
 right of cross-examination, and the doctrine that the declarations are part of an 
 act, and so part of the res gestce — to an extreme, if not to an untenable limit. In- 
 deed, it must now be considered that the declarations of a person whose life is in- 
 sured for the benefit of another, made after the insurance, and by the weight of 
 authority those made before, are inadmissible as against the beneficiary, for the 
 purpose of proving fraud, whereby the policy may be avoided. Mobile Life Ins. 
 Co. y. Moriis (Tenn.), 10 Ins. L.J. 35; Southei'n Life Ins. Co. v. Booker, 9 
 Heisk. (Tenn.) 606 ; Westropp v. Bruce, Batty, 165 ; Union Central Ins. Co. v. 
 Cheever (Ohio), 10 Ins. L. J. 104 ; Grangers' Life, &c. Ins. Co. v. Brown (Miss.), 
 10 Ins. L. J. 187 ; Cahen ii. Continental Life Ins. Co., 69 N. Y. 300. Swift v. 
 Mass. Mut. Life Ins. Co., 63 N. Y. 186, holds that declarations of such a person 
 made before the insurance are admissible. In that case, referring to the cases 
 from the 6th of East and the 35th of Connecticut, Folger, J., says : — 
 
 " The soundness of these decisions has been called in question. See Mulliner 
 V. Guard. Mut. Life Ins. Co., 1 N. Y. Supr. Ct. 448; Wash. Life Ins. Co. v. 
 Haney, 10 Kans. 525 ; The Frat. Mut. Life Ins. Co. v. Applegate, 7 Ohio St. 
 
 421 
 
§215] insueance: fiee, life, accident, etc. [ch. x. 
 
 § 215. Special Pacta deemed material to be disclosed. — 
 Whether the fact that the insured was in prison at the 
 
 292. In the latter case it is said that ATeson v. Kinnaird, supra, has not been 
 acquiesced in, and that the contrary doctrine is held in Stobart v. Dryden, 1 M. 
 & W. 615. I think that Stobart v. Dryden does not profess to overrule Aveson 
 V. Kinnaird, or to establish that the conclusion there arrived at, upon the question 
 there involved, was not correct, tliough the reasoning indulged in and the author- 
 ities cited there are criticised. Nor have I been able to discover where any court 
 has held that the declarations of one whose life has been insured for the benefit 
 of another, made as to his state of health, and made at a time prior to and not 
 remote from his examination by the surgeon of the insurers, and in connection 
 with facts or acts exhibiting his state of health, have been rejected from the 
 evidence, where the issue was as to his knowledge of his own bodily state at that 
 time. There are decisions that declarations made after the contract of insurance 
 has been effected may not be put in evidence. But they are put upon the intel- 
 ligent reason, that after the contract of insurance has been effected, the subject of 
 insurance has no such relation to the holder of the policy as gives him power to 
 destroy or affect it by unsworn statements. 10 Kans. supra ; 7 Ohio St. supra ; 
 Mullinert;. Guard. Life Ins. Co., supra; Eawlsi). Mut. Life Ins. Co., 27 N. Y. 282. 
 And in some cases it is said that such declarations in relation to acts and facts, 
 made prior to the issuing of the policy, are not a part of the res gestae of those acts 
 and facts. But the remark did not grow out of the facts of the case. It is some- 
 times asserted that the case last cited, and the same case in the court below, 36 Barb. 
 357, do hold that prior statements are inadmissible. See Bliss on Life Ins., § 372 ; 
 1 Big. Life & Ace. Ins. Gas. 549, 558. But it does not appear from the statements 
 of the case in Barbour and Smith (27 N. Y.), that the declarations offered were 
 prior to the issuing of the policy ; and it does from the statement in Smith that 
 they were subsequent, and so they are shown to have been by a reference to the 
 case and points deposited in the State library. It is true that the opinion of the 
 learned judge given in Barbour condemns the introduction in evidence of prior de- 
 clarations. But as it does not appear that any such were offered, the remark was 
 obiter ; and as it does not appear that they were offered as having been made in 
 connection with his prior acts, to show the knowledge of the insured at the time 
 of his medical examination, the remark is still less applicable to the question we 
 have in hand. We must conclude that there is no decisive authority against the 
 admission of prior declarations accompanying acts to show knowledge, while there 
 is some for it. Upon the principle of the matter, we hold that when made at a 
 time not too long before the application and examination, and when a part of the 
 res gestm of some act or fact exhibiting a condition of health which they legiti- 
 mately tend to explain, they are admissible to show knowledge in the subject of 
 the insurance of his physical condition. Statements made by a person while dis- 
 closing a wound or a sore, as to the cause or nature of it, are evidence not much 
 weaker than the existence of the wound or sore, of his knowledge of his bodily 
 state. The latter prove that he knew that he was ailing, and no one denies that 
 the proof of them is admissible to show that he was, and that he knew it; the 
 former tend to prove with more or less certainty, as the cause and character of the 
 ailment are more or less in the common and unskilled knowledge of men, that 
 the cause and character of it are known to him. 
 
 "The taker of a life policy from insurers, when he asks payment after the 
 death, is liable to an inquiry into the previous life and condition of the subject 
 insured at the time of the application for the insurance, or at a prior time, not 
 
 422 
 
CH. X.] OF CONCEALMENT. [§ 215 
 
 stated place of residence was material should be submitted 
 to the jury.i So, too, the fact that he had been insane 
 twenty years before, if to the applicant's own mind it was 
 material.^ So a misstatement as to his pecuniary condition 
 and relations may be material, if made to the medical ex- 
 aminer, whose decision upon the quality of the risk might 
 be influenced by the fact that the applicant had the means 
 to take proper care of himself,^ but not a misstatement 
 which amounts only to an opinion as to whether there has 
 been any derangement of certain functions, or whether he 
 has had any " serious illness. " * And in a case reported by 
 Ellis, it seems to have been assumed that a concealment of 
 the fact that the insured, a single woman, had, a year or 
 two before, had a child, was material. So the physician 
 was permitted to testify. But there was another good 
 ground of defence, and the case upon this point cannot be 
 entitled to much weight.^ And it seems that pregnancy, 
 
 remote therefrom. AH facts may be proven which tend to show that condition, 
 because he has a legal relation to them, and they legitimately affect his right to 
 the contract which he has got. As he presents the subject of insurance to the 
 insurers as one who for him may make answer to their material inquiries, and as 
 one who to the extent of his knowledge will make answers thereto truthfully, he 
 has a legal relation to the subject of insurance, and is bound by his answers of 
 material facts, and is affected by his knowledge and his answering according 
 thereto, or variant therefrom. Hence it is that any prior fact or act not too re- 
 mote is proof against the policy-holder of knowledge concealed by the subject of 
 the insurance. Hence it is, too, that any 'statement which is part of the res gestce 
 of such prior fact or act tending to characterize and explain it, is also proof there- 
 of, though unsworn to. 
 
 "Facts occurring after the insurance has been effected may be evidence, 
 inasmuch as all facts which are material are competent to be proven. But the 
 subsequent statements of the subject of insurance, not connected with a contem- 
 porary act or fact, are then but hearsay, for in such case the policy-holder has 
 no such legal relation to the subject as that the latter may affect him by his un- 
 sworn declarations ; and the declarations have no such connection with any prior 
 act or fact as to be a part of the res gestce thereof." But this case is in turn criti- 
 cised and denied in Hurd v. Missouri, &c. Society (Supr. Ct. Indianapolis), 6 Ins. 
 L. J. 799. See also Wilson v. Life Association, C. Ct. (Mo.), 6 Ins. L. J. 240. 
 
 1 Huguenin v. Rayley, 6 Taunt. 186. 
 
 2 Mallory v. Travelers' Ins. Co., 47 N. Y. 52. 
 
 ' Valton V. Nat. Loan Fund Ass. Soc, 1 Keyes (N. Y.), 21, reversing s. o. 
 17 Abb. (N. Y.)Pr. Cas. 278. 
 
 * Hogle V. Guardian Life Ins. Co., 6 Robt. (S. Y.) 567. And see post, 
 §296. 
 
 ^ Edwards v. Banow, Ellis, Ins. 116. 
 
 423 
 
§ 2] 5 A] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. X. 
 
 though not inquired about, may be a material fact to com- 
 municate.^ As the right of lien is vital to the existence of 
 mutual insurance companies, an omission to state an iucum- 
 brance, especially if inquired about and answers in the ap- 
 plication are agreed to be true and full, is conclusively 
 material as matter of law.^ Otherwise in stock companies, 
 if not inquired about. ^ And a false answer to an inquiry 
 about prior applications is fatal.* 
 
 [§ 215 A. A warehouse erected within forty-one feet of a 
 factory increases the risk, and if not disclosed when asking 
 for a renewal, a policy issued in renewal will be void.^ In 
 a diagram of the insured premises, a failure to state that a 
 contiguous building contained benzine was held a material 
 concealment under the terms of the policy prohibiting ben- 
 zine, and avoided it. The company could not be presumed 
 to know that benzine was necessary in the manufacture oE 
 barrels.® Where the assured had released the railroad com- 
 pany from liability for fires that might be caused by the 
 engines, but did not mention this fact to the insurer, it was 
 a question for the jury whether such concealment was mate- 
 rial, in determining which they might consider whether the 
 insurer was in the habit of making any different rates in 
 reference to the existence or non-existence of the right of 
 subrogation. '^ If we are to take the analogy of marine in- 
 surance the case is clear, for marine insurers habitually 
 charge a higher premium where the recourse against the 
 carrier is limited or denied, and the plaintiffs knowing this 
 must disclose an arrangement by which the carrier was to 
 be responsible only for negligence.^ It is just that the 
 company should know about a release of the carrier, and if 
 the concealment is intentional there could be no question of 
 
 1 Lefavour u. Insurance Co., 1 Phila. 558. 
 
 2 Bowditcli Mut. Fire Ins. Co. v. Winslow, 3 Gray (Mass.), 415. 
 8 Delahay v. Memphis Ins. Co., 8 Humph. (Tenu.) 684. 
 
 ^ Ellington v. Mtna. Life Ins. Co., 77 K. Y. 564. [See § 188 C] 
 ' [Peoria Sugar Ref. Co. v. People's Fire Ins. Co., 52 Conn. 681.] 
 6 [McFarland v. Peabody Ins. Co., 6 "W. Va. 425, 435.] 
 ' [Pelzer, &c. Co. v. St. Paul Fire & Mar. Ins. Co. (S. C), 1890.] 
 8 [Tate V. Hyslop, 15 Q. B. D. 368.] 
 424 
 
CH. X.] OF CONCEALMENT. [§ 215 B 
 
 the propriety of holding the company released, but if merely 
 inadvertent it seems scarcely proper in the absence of in- 
 quiry or usage to require a statement so unlikely to appear 
 relevant to any but those who understand the law of subro- 
 gation. Concealment of the probable loss of a vessel at the 
 time of insurance is fatal. ^ A concealment of material facts 
 which the insurer is not bound to know avoids the policy,^ and 
 though ruinous, they must be disclosed.^] 
 
 § 215 B. Facts deemed immaterial. — On the other hand, 
 it has been held that the failure to mention that the appli- 
 cant is insolvent, and that there are judgments against him 
 which constitute a lien upon his property, is not a conceal- 
 ment.* So, it seems, of a failure to state that the insurer's 
 agent had declined a risk in the same block, the matter not 
 having been inquired about. The declination might be for 
 a reason showing that it was quite immaterial, for instance, 
 that the insurers had already a risk in the particular block 
 to the full extent permitted by their rules ; or it might be 
 for a reason showing that it was to some extent material, 
 as, for instance, that the risk was a specially hazardous one. 
 Still the principal is presumed to know what the agent 
 knows, and there can be no concealment of a fact known to 
 the insurers.^ So a Northern man living in a Southern 
 community was not bound to state that the people were 
 hostile to him, or that the forces who had possession of the 
 neighborhood and guarded the property sometimes smoked 
 pipes and had fires in the vicinity. All this the insurers 
 were presumed to know might be the case, from the known 
 fact of the existence of hostilities.® In France, where the 
 fact undisclosed does not amount to a concealment which 
 avoids the policy, but nevertheless relates to a fact which if 
 
 1 [Hart V. British, &c. Ins. Co., 80 Cal. 440.] 
 
 2 [Vale V. Phcenix Ills. Co., 1 Wash. 282, 284.] 
 
 3 [Durrell v. Bederly, Holt N. P. 283, 286.] 
 
 ^ City Fire Ins. Co. v. Carrugi, 41 Ga. 660 ; Delahay v. Memphis Ins. Co., 
 supra. 
 
 5 Lighthody w. North Am. Ins. Co., 23 Wend. (N. Y.) 18; Goodwin v. Lan- 
 cashire Ins, Co., 18 C. L. J. (Q. B.) 1. 
 
 8 Keith V. Globe his. Co., .52 111. 518. 
 
 425 
 
§ 215 D] INSUKANCE: FIRE, LIFE, ACCIDENT, ETC. [CH. X. 
 
 known would have required, by the rules of the company, a 
 higher rate of premium, the insurers are allowed to deduct 
 from the loss the difference between the premium actually 
 paid and that which would have been required if the fact 
 had been known, i An agreement between the mortgagee 
 and mortgagor, that the latter shall pay the premium upon 
 an insurance in the name of the latter, is not a fact material 
 to be disclosed. 2 Nor need the not unusual mode of use or 
 manner of heating or lighting the property insured be stated, 
 unless inquired for.* 
 
 [§ 215 C. A brick oven is not as matter of law so unusual 
 or material that its concealment is fraudulent* The con- 
 cealment of the fact that the master who runs the insured 
 ship owns one-half interest in her, is not a material one 
 which would avoid the policy. ^ The assured are only bound 
 to communicate facts, not sensations and apprehensions.^ 
 Nor need there be disclosure of anything with respect to a 
 fact in regard to which there is an express or implied 
 warranty. ^] 
 
 [§ 215 D. Ordinary Diligence in communicating facts is all 
 that is necessary. Knowledge coming to the insured pend- 
 ing negotiations for a policy must with due and ordinary 
 diligence be transmitted to the company. ^ But an omission 
 to send material information to the underwriters by an unus- 
 ual way which would have caused it to reach them before 
 the policy was effected will not vitiate the same, though by 
 sending it by an ordinary route, it did not reach them before 
 the issuing of the policy. ^] 
 
 1 Ass. Terrestris c. Hoffman, Dalloz, Jur. Gen. 1845, 1823. 
 
 2 Kernochan v. N. Y. Bowery Ins. Co., 17 N. Y. 428, reversing s. c. 5 Duer 
 (N. Y. Superior Ct.), 1. 
 
 2 Girard Fire & Mar. Ins. Co. v. Stephenson, 37 Pa. St. 293 ; Clark v. Manuf. 
 Ins. Co., 8 How. (U. S.) 235 ; Boggs v. American Ins. Co., 30 Mo. 63 ; Barralou 
 V. Royal Ins. Co., 15 L. C. 3 ; ante, § 208 ; post, § 245, subfinem. 
 
 * [Richards v. Washington Fire & Mar. Ins. Co., 60 Mich. 420.] 
 
 6 [Russ V. Valdo Mat. Ins. Co., 52 Me. 187, 190.] 
 
 6 [Bell V. Bell, 2 Camp. 475, 479.] 
 
 ' [DeWolf V. N. Y. Firemen's Ins. Co., 20 Johns. 214, 229.] 
 
 8 [M'Lanahan v. Universal Ins Co., 1 Pet. 170, 185.] 
 
 3 [Green v. Merchants' Ins. Co., 10 Pick. 402, 407.] 
 
 426 
 
CH. XI.] SPECIAL PKOVISIONS OF THE CONTEACT, ETC. 
 
 CHAPTER XL 
 
 SPECIAL PROVISIONS OP THE CONTRACT, INCREASE OP RISK, 
 ALTERATION, USB, VACANCY, WATCHMAN, WORKING OF 
 MILLS, CARE OP BOOKS, ETC. 
 
 STANDARD CONDITIONS IN CANADA AND MASSACHUSETTS. 
 
 Analysis. 
 
 1. General. 
 
 § 216. Breach of condition renders the contract voidable not void (§§ 216, 
 
 365). If no time is specified a reasonable time is intended ; see 
 also § 225. 
 § 217. Two classes of stipulations, those relating to matters prior to loss 
 
 and determining the risk, and those relating to matters aris- 
 ing after the loss, and relating to its establishment, adjust- 
 ment, and recovery, 
 courts are strict in dealing with the former, they are cautious 
 about fixing the liability of the insurer (so it is said, though 
 some may fail to see it), but once fixed they are rehictant to 
 let the insured lose his indemnity for lack of a formality. 
 
 2. Increase of Eisk. 
 
 § 218. There is usually a provision against increase of risk, and there is 
 
 always an implied promise not to increase it by changes be- 
 yond what good faith would sanction interpreted in the light 
 of custom. The q^uestion of increase is for the jury even 
 where expert testimony is uncontradicted. 
 Any hazardous use, whether among those enumerated in the 
 policy or not, avoids it, under the general stipulation against 
 increase of risk. 
 A mere intent to violate a condition, however, is not fatal, 
 though steps have been taken toward its execution, § 218 ; 
 see § 236. 
 Sometimes the policy provides that it shall only be suspended 
 
 during the increase ; see also § 245. 
 A reinsurer is liberated by increase of risk, though the insurer 
 
 consent to it. 
 Increase between application and issue of policy fatal. 
 §§ 219, 220. Such slight variations of risk as are incident to the ordinary 
 
 uses of the property are not fatal, § 219. 
 otherwise with the erection of an oven, new buildings, 
 or machinery, moving a steam engine, &c., § 220. 
 It is immaterial under the usual clause whether the loss was 
 caused by the increase or not, § 220. 
 
 427 
 
INSURANCE, FIRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 § 220. If the insured has two policies from the same office, a permis- 
 
 sion to increase the risk under one policy saves the other. 
 § 221. Notice to mid assent by the insurer ; see also §§ 222-225. 
 
 both must be within a reasonable time. 
 
 no notice necessary of a change not increasing the risk. 
 
 agent may waive written assent, § 221. 
 
 ordinary diligence in giving notice is .sufficient ; see § 215 D, 
 
 3. Alteration, &c. 
 
 §§ 222-226. An alteration may or may not be material, e. g. the substitution of 
 slate for shingles ^ould not increase the risk (§ 22a), while 
 adding a story to a house would, § 257. 
 Property removed ceases to be insured until replaced (§ 222 ; 
 see also § 188 A), unless the change is so slight as to be un- 
 important, as from first floor to basement (§ 222). In the 
 absence of express stipulation the materiality of an alteration 
 depends on the (Question whether it would have raided the 
 rate of premium (§ 223 ; see also § 261 ). 
 Repairs necessary to the use of the property, and acts of ordi- 
 nary ownership such as are sanctioned by usage do not violate 
 the condition against alteration or increase of risk, § 224. 
 The materiality of an alteration may be taken out of the 
 region of debate by agreement of the parties that a given 
 change shall be fatal, § 223. 
 Substantial fulfilment of the warranty sufficient, § 223. 
 The opening of a new door, making a new closet, putting in a 
 brick floor, or an iron grate, changes the identity of the 
 property, changes the risk but does not materially increase 
 the risk. iTot to allow such common and trivial alterations 
 would be an irrational construction. § 224. 
 
 § 225. If the enlargement or other change be within the limits of 
 
 honest dealing the insured is not prejudiced, though the loss 
 was actually due to the alteration. (See also § 230.) Per- 
 mission to make necessary alterations and repairs does not 
 sanction a large addition. 
 
 § 226. If part of the change increases and another part decreases risk 
 
 the jury may strike the balance. 
 
 § 227. A material alteration by a tenant or agent without knowledge 
 
 of the insured is fatal unless the terms of the jiolicy other- 
 wise express, as where the increase is to be by "means 
 within the control of the assured." 
 
 § 228. " Premises " means building ; see also, §§ 239 B, 243. 
 
 § 229. ' ' Alteration at risk of insured. " 
 
 § 231. A statement of present use not a warranty of its continuance. 
 
 (See also, §§ 247, 248, 250-252, 157, 191.) An enlarged 
 use for a permitted purpose does not avoid. 
 
 4. CLASSiriCATION OF RiSKS. 
 
 § 232. Goods are often classifled into hazardous, extra-hazardous, memo- 
 
 randum articles not insurable at all or only on special condi- 
 tions, &c., and a policy insuring one class will be avoided if 
 a more hazardous class is kept in stock or mixed with the 
 
 428 
 
CH. XI.] SPECIAL PROVISIONS OF THE CONTRACT, ETC. 
 
 stock insured. To hold otherwise would compel an insurer 
 to bear a loss for a lower premium than that for which he 
 would knowingly have assumed the risk, 
 where there is no bad faith, however, a rule similar to that 
 spoken of in § 215 B, as prevailing in France, might be 
 applied with advantage. 
 § 233. If however the policy describes the stock insured as such 
 
 as is " usually kept iu a country store," the scope 
 of the policy is thereby enlarged to cover any arti- 
 cle in the non-insured classes ; if they are " usu- 
 ally kept," §§ 233, 239. 
 such is the general current of authority, though there 
 are cases which hold that the clauses of exclusion 
 are paramount, and govern the general description 
 of the stock, § 233 ; and see § 238. 
 in most of these cases it will be found that the policy 
 expressly stated that the clause of exclusion should 
 operate upon the prohibited articles unless they 
 were specially provided for, or that mere general 
 terms should not overcome the prohibition. 
 "goods usually kept in a country store" § 233, n. 
 
 may include benzine, saltpetre, gunpowder, &o. 
 "stock of groceries" includes saltpetre, § 233, n. 
 ' ' stock of confectionery store " includes fireworks, but gro- 
 ceries, liquors, and tobacco does not, § 233. 
 but if a special clause allows a reasonable quantity, more 
 
 will be fatal, in spite of usage, § 233, n. 
 if the "usually kept" clause is followed by "except as 
 hereinafter provided, the " printed conditions govern, 
 § 233, n. 
 § 234. But a permissive clause is strictly construed, whether express 
 
 or implied, e. g., though gunpowder or kerosene may be kept 
 for sale, they cannot be manufactured or kept for other pur- 
 poses than sale ; see also § 239. 
 § 235. Hazardous goods are those which increase the risk of fire. 
 
 § 236. Hazardous trades. By reason of the context a permission of 
 
 "extra-hazardous" construed to permit "specially hazard- 
 ous " trades. 
 § 237. An additional use of the same grade of hazard as those per- 
 
 mitted avoids the policy (as putting in one more stove, see 
 § 220, n. ). An accumulation of hazards increases the risk. 
 Making excelsior in a spool factory fatal, though not as haz- 
 ardous as the business insured. 
 § 239. Where a stock of goods or property used in business, &c., is 
 
 described as insured, without qualification, this written de- 
 scription controls inconsistent printed conditions (see also 
 § 233 and general rule, § 177) ; e. g., the insurance of a 
 "printing business" in which camphene is in customary 
 and necessary use, is not avoided by a clause excluding lia- 
 bility for loss by camphene, though theloss actually occurred 
 by dropping a match into a pan of that iluid. AH that is 
 properly incidental to the business insured is also insured. 
 
 429 
 
INSUKANCE, FIRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 § 239 A. Gasoline, petroleum, &c. 
 
 under a policy on a factory prohibiting petroleum it may be 
 used as a lubricator, if such is the custom. 
 
 " only sperm-oil and lard as lubricator " not broken by using 
 petroleum mixture if as good and safe. 
 
 " lamps to be filled by daylight.'' 
 
 " kerosene allowed for light in dwelling" clerk sleeping in 
 store will not make it a " dwelling." 
 
 court not judicially notice that gin and turpentine are in- 
 flammable. 
 § 239 B. Gunpowder, fireworks, nitro-glycerine, &c. 
 
 " 75 lbs. allowed^' mere casual presence of more not fatal, it 
 not appearing to have caused the loss. 
 
 policy on goods, to be void if powder kept on ' ' premises in- 
 sured," not void for powder in building.s not insured, though 
 insured goods are there. Premises means real estate. ; see 
 also § 228. 
 
 prohibition of gunpowder does not keep out fireworks. 
 
 " Yankee notions " covers fireworks, " groceries, liquors, and 
 tobacco " does not. 
 
 5. 
 
 § 240. The hiring of carpenters to make constantly needed repairs does 
 
 not avoid a policy, though the working of carpenters is stated 
 in the printed conditions to be fatal ; otherwise with extensive 
 alterations. 
 § 241. " Use," "keeping," &c., when stipulated against, mean habitual 
 
 use, keeping, &c. The condition is not violated by casual use. 
 But a single use, if it is the cause of loss, is fatal (note). 
 § 242. " Storing " means keeping to redeliver as received ; keeping a quan- 
 
 tity to replenish stock is not storing, nor keeping for sale. If 
 company knows premises may be used to store cotton and pro- 
 vides for additional premium, the storing is not fatal. 
 §243. "Keeping." " Premises " means real estate. 
 
 § 244. Change in surrounding circumstances. ffoocf/aiiAisapart of every 
 
 contract, and if an act in violation of good faith causes loss 
 there can be no recovery, although no express stipulation 
 of the policy covers the act. An act in bad faith, however, 
 which does not cause loss, is without effect on the policy, 
 change of use from that described is not necessarily fatal. If 
 it does not materially increase the risk, only express provi- 
 sion against change can make it fatal. 
 § 245. Suspension of policy follows temporary increase of risk (see also 
 
 § 222). If, however, by the terms of the policy the Hiirorfarfiow 
 of a steam-engine avoids it, such introduction will be fatal 
 though the engine is removed before the fire. The contrary 
 has however been held even where the policy was to be " imme- 
 diately void." A habit of breaking conditions is of no conse- 
 quence if there is none at the time of loss. Smoking, bar-room, 
 bawdy-house, bowling-alley, after expiration of license (note). 
 § 246. " Unlawful use"' not a single misdemeanor, or a casual use. There 
 
 must be a use substantial in its continuance, and attach- 
 ment to the premises. 
 
 430 
 
CH. XI.] SPECIAL PROVISIONS OF THE CONTEAOT, ETC. 
 
 that A, whose life is insured by B, goes on an illegal voyage 
 without B's knowledge is immaterial, there being no prohi- 
 bition in the policy. 
 § 246 A. Knowledge by president of addition made under verbal assent 
 
 estops company. 
 If company knew buildings have been or are to be used as exhibi- 
 tion buildings, it cannot object to such use or any of its inci- 
 dents. 
 Parol admissible to show agent's knowledge of increase of risk j 
 permission to keep kerosene, left out of policy by mistake, &c. 
 If agent of insured to renew knows of increase of risk failure to 
 disclose is fatal. 
 
 6. 
 
 §§ 247-249 J. Occupancy : 
 
 In absence of express provision on the subject of vacancy, 
 description of premises as a "dwelling" or as occupied 
 by a particular person, no warranty against vacancy, 
 § 247. 
 representation of present status not an agreement for its 
 
 continuance, § 247. 
 change of tenants immaterial, § 247. 
 "to be occupied by a tenant " is only an expression of 
 expectation, § 248. 
 unless the time is fixed within which the house is to 
 become occupied, § 248. 
 temporary vacancy between tenants is not fatal, § 249 B. 
 nor on a visit ; see §§ 248, 249 D. 
 nor stoppage of mill for repairs, &c., § 248. 
 nor even complete, permanent vacancy, unless in 
 bad faith or such as to increase the risk materially, 
 §§ 248, 249 B. 
 An express provision against vacancy is necessary, §§ 247, 
 248, 249 B. 
 unless the premises are purposely left vacant in bad faith, 
 
 §248. 
 or the vacancy is of such character as to come under the 
 
 increase of risk clause, § 248. 
 ordinarily it is not an increase of risk, § 249 B. 
 
 but if a house is left by the owner and an intruder 
 opens a saloon, the risk will be increased, not by 
 the vacancy, but by what happened in conse- 
 quence, § 249 B. 
 an oral promise insufficient, § 248. 
 If there is no " vacancy clause," good faith and the " increase 
 
 of risk provision" are the tests, §§ 247-249 B. 
 if there is a vacancy clause, its special words, if not too un- 
 reasonable to be sustained (§ 249 G.), must be added to the 
 tests, §§ 247-249 B. 
 vacant means empty of all but air, § 249 A. 
 unoccupied means no one in actual use or possession, § 249 A. 
 terms must be construed with reference to the subject-matter, 
 § 249 A. 
 
 431 
 
INSURANCE, FIRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 the condition in a policy on a hog house refers to the human 
 occupation of the dwelling on the premises, not to the hogs, 
 § 249 A. 
 requires practical use, § 249 (shop) ; but see § 249 D (grain- 
 elevators), 
 requires use as a customary place of abode, § 249 A (dwelling), 
 not uninterruptedly, but the place of habitual return and 
 
 stoppage, § 248, n. 
 leaving in charge of one living near, not sufficient, § 249 A. 
 purpose to move into a house though partly executed is 
 
 not enough, §§ 249 A, 249 C ; but see § 249 D. 
 occupation of the land is not enough, the house must be 
 occupied, § 249 C. 
 the condition applies to all the buildings on the premises, 
 § 249 A. 
 it is distributive, § 249 A. 
 diligence of the insured does not enter the question unless so 
 agreed, as by the words " vacancy within assured's con- 
 trol," § 249 F. 
 then insured must show it was beyond control, § 249 F. 
 in general, removal by tenant, though before lease is out 
 and without knowledge of assured, is fatal, § 249 F. 
 false answer as to occupancy fatal, § 249 G. 
 policy once voided for vacancy not revived by reoccupation, 
 
 § 249 G. 
 unreasonable condition, which would avoid the policy if the 
 
 premises were used or not, is void, § 249 G. 
 by-law as to, subsequent to policy, no effect, § 249 G. 
 Maine statute, § 249 G. 
 Vacancy may be waived : 
 
 expressly by writing, § 249 H. 
 
 or orally even though the policy requires writing, 
 § 249 H. 
 or declares that no agent can waive, § 249 J. 
 a general agent may waive this last requirement as 
 well as the other, §§ 249 H, 249 J. 
 impliedly by knowledge of the agent. 
 
 state of premises as to occupancy at time of insur- 
 ance, 
 if occupation at loss is same as known to agent 
 at time of insurance, company estopped, 
 § 249 I. 
 although the applicant ignorantly signed an 
 erroneous application filled up by the 
 agent, § 249 I. 
 but if house once becomes occupied after 
 insurance the condition takes effect, 
 § 249 I. 
 vacancy occurring after insurance : 
 
 if agent tells assured it will be fatal, no 
 
 waiver, § 249 I. 
 so if he is merely silent, § 249 I. 
 
 432 
 
CH. XI.] SPECIAL PROVISIONS OF THE CONTHACT, ETC. 
 
 knowing that vacancy is likely to occur in fut- 
 ure, no waiver, § 249 I. Tenement, summer- 
 house, &e. 
 general agent may modify contract so as to cover future 
 vacancies, § 249 H. 
 if the policy says unoccupied buildings must he insured as 
 
 such, they must he, § 248. 
 no implied obligation to keep a watch in a vacant house, 
 
 §248. 
 mere going out of one tenant is not a "change of tenants " till 
 
 new one comes in, § 249. 
 a vacancy is not an "alteration of use," § 249. 
 What is a vacancy • 
 
 vessel left alone, § 249 C. 
 
 moving in just begun, §§ 249 C, 249 A ; but see § 249 D. 
 leaving a few articles in house, and non-delivery of key to 
 owner not sufficient, § 249 C. 
 nor supervision by one not living in house, §§ 249 A, 
 249 C. 
 What is not a vacancy: 
 
 absence on a visit, § 248. 
 
 or a funeral, § 249 D. 
 leaving summer-house in winter, § 248 ; see however, § 249 I. 
 temporary suspension of a mill, § 248. 
 
 for repairs, or because of low water, § 248. 
 casual absence on night of firp, § 249 D. 
 moving in nearly complete, § 249 D. 
 sleeping in adjoining house not fatal, § 249 D. 
 if any one of the "family" remains it is sufficient, § 249 D. 
 
 or if part of a tenement house is occupied, § 249 D. 
 grain elevator not vacant if owner keeps his papers there and is 
 in and out, § 249 D. 
 Notice of vacancy : 
 
 must be given if required by the policy, § 248. 
 Temporary vacancy between tenants not fatal as an increase of risk, 
 § 249 B. 
 but is under the vacancy clause, § 249 B. 
 even though the fire was smouldering unnoted before the ten- 
 ant left, § 249 B. 
 "Vacant and so remain :" 
 
 means vacant until loss, § 249 E. 
 
 agent's knowledge of vacancy at time of consenting to transfer 
 does not waive the condition as to remaining, § 249 E. 
 
 §§ 250-252. Watchman. No implied obligation to keep watch in a vacant 
 house, § 248. Statement that a watch is kept, sometimes 
 held a warranty ; contrary to the general rule that the courts 
 will not find, warranties where the parties have not clearly 
 made them, on the ground of the great importance of the 
 watch being continued. The true ground and the one that 
 VOL. I.— 28 433 
 
INSUEANCE, FIRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 harmonizes many of the cases, is that a change leyond the 
 limits of good failh will be fatal, and where the question as 
 to the present state of things refers to a matter the continu- 
 ance of which is of inuch importance, so that the question is 
 manifestly intended to discover the nature of the risk the 
 company has to take, the insured must be held to know that 
 such was the purpose, and conform to it (§ 250) ; a provision 
 not to increase the risk turns representations into warranties 
 that the present state shall not be substantially changed for 
 the worse (§ 218) ; there is good authority that the condition 
 not to increase the risk substantially is au implied condition 
 in every contract of insurance (§ 218) ; so the logic of the 
 case seems clearly in favor of the view taken here and in 
 § 157 ; see § 244. 
 absence of watch at meals, § 251. 
 one who sleeps not a " watchman," § 252. 
 warranty of " watchman on premises " is fulfilled if he is on 
 adjoining premises in better position to watch than if in the 
 mill, § 252. 
 §253. Working of mills, hours of running. " Constantly worked " means 
 
 during ordinary hours. "Worked by day," no breach if 
 engine works at night, 
 stoppage for repairs. 
 § 253 A. Condition against ceasing operations not broken by stop because 
 
 of epidemic, or permitted repairs, nor by suspension oi part 
 of the business, unless the condition expressly and undoubt- 
 edly includes such stoppage. 
 § 253 B. Agent's knowledge before issue of policy that a factory or dis- 
 
 tillery is run at night, &c., estops the company to set up 
 the condition against such running. (Contra, Massachu- 
 setts, and probably some other States ; see § 145 et seq.) 
 but agent's knowledge of, or even company's verbal assent 
 to, an intention to do an act in the future, will not estop it. 
 § 254. "Mill examined after work." At what time work ceases question 
 
 for jury. 
 § 255. Warming ; care of stoves ; ashes to be put on brick not wood ; iron 
 
 shutters. 
 § 256. Misdescription of ownership or of the property or its occupancy, 
 
 will not in general avoid the policy unless so expressly 
 stipulated, 
 clerk slept in store, mere representation not warranty. 
 § 257. "Filled in with brick" held a warranty; (see effect of usage, 
 
 § 261). 
 two-story house changed to a three-story after application and 
 before issue of policy, fatal alteration. 
 § 258. Omission of outbuildings (see also § 260). Distance of build- 
 
 ings "contiguous." Diagrams. 
 I 259. " How bounded ; " " situation ;" distance of other houses. 
 
 §§ 260-262. If the description is on its face imperfect (§ 260), or if the 
 
 company or its agents in any way know of the imperfection 
 (§ 262), the company cannot set up the fault. See ch. viL 
 anal. 4, §§ 207, 197. 
 
 434 
 
CH. XI.] SPECIAL PROVISIONS OF THE CONTEACT, ETC. [§ 216 
 
 8. 
 
 § 263. Misrepresentation of relationship to the life-subject fatal. 
 
 § 263 A. Covenant to keep books in safe at night means after business hours, 
 
 adjuster may waive the covenant. 
 Agreement to keep stock up, failure not fatal if stock gets below the 
 
 insurance, for the company is benefited. 
 Agreement not to question application after death excludes evidence 
 
 of fraud, or misrepresentation. 
 Policy to be void if building falls, no void by part falling. 
 § 263 B. Substantial compliance with conditions is sufficient. 
 
 Company estopped if performance is prevented by itself. 
 
 Failure of collateral agreement to give company all his insurance, 
 
 not fatal unless so expressed. 
 Condition valid though ill worded. 
 § 263 C. No expert evidence as to matter of common experience. 
 
 Custom will not determine question of increase of risk. 
 Burden of proving breach is on company. 
 § 263 D. In Canada standard conditions are fixed by statute. 
 
 § 263 E. The Massachusetts Public Statutes provide a very good standard 
 
 policy. Such statute conditions may however be varied by the 
 parties. 
 
 § 216. General Observations ; Effect of Breach of Condition ; 
 Presumption of KnoTwledge of Condition ; Notice. — In pro- 
 ceeding to consider the scope and effect of the various con- 
 ditions and stipulations in which the modern contract of 
 insurance abounds, it is of the first importance to determine 
 whether they are in the nature of warranties or representa- 
 tions, and if so, whether they are affirmative or promissory, 
 and also whether they are themselves controlled by acces- 
 sory stipulations as to their truth, fulness, and materiality. 
 Some policies, as we have seen, seek to make all the state- 
 ments in the application warranties by making them by 
 express stipulation a part of the contract, while others stip- 
 ulate that they are to be referred to for a limited purpose 
 only, as for the purpose of description and identification, or 
 stipulate for the truth of all facts stated, or for their truth 
 only so far as risk or value is concerned, or so far as is 
 known to the insured, or they are material to the risk, or 
 are inquired for, or for their truth in all these respects ; or 
 refer to the statements in the application, which by refer- 
 ence is made part of the contract, as representations, or as 
 to be used and resorted to, to explain the rights and obliga- 
 tions of the parties. Much depends upon the proper solu- 
 
 435 
 
§ 217] INSURANCE: FIRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 tion of these preliminary questions, as will be seen by a 
 perusal of the preceding chapters, in which we have en- 
 deavored to state some of the general principles applicable 
 thereto. Bearing these in mind, we shall be better able to 
 arrive at satisfactory conclusions upon the many perplexing 
 questions which will arise, and, guided by their light, we 
 shall find that many decisions, apparently contradictory and 
 irreconcilable, are not so in fact, but stand well upon the 
 special circumstances of the case and the special stipula- 
 tions of the contract under consideration. 
 
 It is well, also, to bear in mind that a breach of condi- 
 tion, of whatever character, does not necessarily avoid the 
 policy; it merely renders it voidable, at the option of the 
 insurers. 1 
 
 The presumption is that the conditions of the contract are 
 known to both the parties thereto, but 'the presumption is 
 not conclusive. It may be shown that such was not the 
 fact. 2 
 
 Where, by the conditions of the policy, notice of any par- 
 ticular fact is to be given the insurers, as that the house 
 insured has become vacant, no time being specified, on pain 
 of forfeiture, the more sound and sensible rule is, that if 
 the notice be given within reasonable time, whether it be 
 before or after the loss, the condition will be complied with. 
 Though it has sometimes been said that the notice must be 
 given before the loss, at the peril of the insured if he fail. 
 The condition being to give notice, if this be done within 
 reasonable time, it is difficult to see where or how there is 
 any breach.^ 
 
 § 217. Two Classes of Stipulations. — There are two gen- 
 eral classes of these stipulations which it is well to notice ; 
 
 1 [Turner v. Meridan Ins. Co., 16 Fed. Rep. 454, 457] ; post, § 365. 
 
 2 Bissell V. Am. Fire Ins. Co., 2 Hughes, C. Ct. 531 ; Keller v. Equitable 
 Fire Ins. Co., 28 Ind. 171 ; Geib v. International Ins. Co., 1 Dill. C. Ct. 443, 
 449 ; Chatillon v. Canadian Mut. Fire Ins. Co., 27 U. C. (C. P.) 450 ; Cheever 
 V. Union Central Ins. Co., Superior Ct. Cincinnati, 5 Big. Life & Aco. Ins. 
 Cas. 458. 
 
 3 Canada Landed Credit Co. v. Canada Agr. Ins. Co., 17 Grant, Ch. (U. C.) 
 418 ; post, §§ 221, 225. 
 
 436 
 
CH. XI.] SPECIAL PROVISIONS OF THE CONTRACT, ETC. [§ 218 
 
 first, those relating to matters and things prior to the loss, 
 and having for their general object to define and determine 
 the limits of the risli; and, second, those which relate to 
 matters and things occurring after the loss, and having for 
 their object to define and determine the mode in which an 
 accrued loss is to be establislied, adjusted, and recovered. 
 The former pertain more especially to the circumstances 
 which affect the risk, such as the character, habits, mode of 
 life, use, occupation, alteration, alienation, title, location, 
 and the like, of the persons, property, or premises insured, 
 and constitute, so to speak, the substance of the contract; 
 while the latter pertain more especially to those formal acts 
 and circumstances which, when reciprocal rights and liabili- 
 ties have become fixed by the terms of the contract, are sup- 
 plementary thereto, and necessary to make it productive to 
 the insured of the benefit sought thereby. As to the former, 
 relatively speaking, there is more strictness in holding par- 
 ties to the terms of the contract, and less readiness to find 
 in the circumstances a waiver of their respective rights. In 
 other words, the courts will proceed with caution in deter- 
 mining the question of the liability of the insurer; but when 
 this liability is fixed by the capital fact of a loss within the 
 range of their responsibility, they will be very reluctant to 
 deprive the insured of the benefit of that liability, by any 
 failure or neglect to comply with the mere formal requisi- 
 tions of the contract, by which his right is to be made avail- 
 able for his indemnification.^ 
 
 § 218. Increase of Risk generally. — [In every contract of 
 insurance there is an implied agreement not to increase the 
 risk, whether anything is said upon the subject or not.^ If 
 the insured could increase the risk he could change the con- 
 tract, which one party to an agreement can never do. There 
 is, however, almost always an express provision on the sub- 
 ject. Where a policy insured a certain house from Feb. 1, 
 1851, to Feb. 1, 1857, on an application signed October, 
 
 1 Hinman v. Hartford Fire Ins. Co., 36 Wis. 159 ; Franklin Fire Ins. Co. v. 
 Chicago Ice Co., 36 Md. 102. 
 
 2 CHoffecker v. N. 0. C. M. lus. Co., 5 Hous. (Del.) 101.] 
 
 437 
 
§ 218] insurance: fike, life, accident, etc. [CH. XI. 
 
 1850, and where in March, 1851, the plaintiff added one 
 more story to the building without notifying the insurers ; 
 although the policy was not actually signed until April, 
 
 1851, it was held that the company was not liable, as the 
 implied warranty of defendant not to increase the risk had 
 been broken.^] The not unusual provision, that if the situ- 
 ation or circumstances affecting the risk upon the property 
 insured shall be altered or changed, with the consent of the 
 insured, so as to increase the risk, the policy shall be void, 
 binds the assured not only not to make any alteration or 
 change in the structure or use of the property which will 
 increase the risk, but prohibits him from introducing any 
 practice, custom, or mode of conducting his business which 
 would materially increase the risk, and also from discon- 
 tinuing any precaution represented in the application to have 
 been adopted and practised with a view to diminish the risk. 
 Its legal effect is, so far as the representations set forth cer- 
 tain usages and practices observed in and about the business 
 or property insured, as to the mode of conducting the busi- 
 ness or management of the property, and as to precautions 
 against fire, that they are not only an affirmation of the 
 truth of the facts at the time they are stated, but a stipula- 
 tion that, so far as the insured and all those intrusted by 
 him with the care and management of the property are 
 concerned, such mode of conducting the business shall be 
 substantially observed, and such precautions substantially 
 continue to be taken during the currency of the policy.^ 
 And as to both, the compliance should be substantial and in 
 good faith, and not merely literal and colorable.^ Whether 
 the change be material is for the jury, and if the jury find 
 that the change increases the risk it will be fatal.* In 
 
 1 [Sillem V. Thornton, 3 E. & B. 868.] 
 
 2 Houghton V. Manuf. Mut. Fire Ins. Co., 8 Met. (Mass.) 114 ; Diehl v. Adams, 
 &o. Ins. Co., 58 Pa. St. 443. 
 
 2 Ibid. And see ante, § 198. 
 
 * Hohhy V. Dana, 17 Barb. (N. Y.) Ill ; Jennings o. Chenango County Mut. 
 Ins. Co., 2 Denio (N. Y.), 75 ; Williams v. People's Ins. Co., 57 N. Y. 274 ; Manu- 
 facturers' &o. Ins. Co. K. Kunkle (Mich. ), 8 Ins. L. J. 50. [|It is a question for tTie 
 jury whether the use of a steam-engine for threshing materially increases the 
 risk. Long v. Beeber, 106 Pa. St. 466 ; Farmers' Mut. Fire Ins. Co. v. Moyer, 97 
 438 
 
CH. XI.] SPECIAL PKOVISIONS OF THE CONTRACT, ETC. [§ 218 
 
 Stokes V. Cox,i the Court of Exchequer Chamber upheld a 
 verdict reversing the judgment of the Court of Exchequer 
 setting it aside, — where it was recited in the policy that no 
 steam-engine was employed on the premises, and there was 
 a condition that in case the risk should be increased by an 
 alteration of circumstances the policy should be void. There 
 was a boiler on the premises at the time of the insurance, 
 used for generating steam for heating water and warming 
 the rooms ; but a steam-engine was afterwards erected. The 
 fact that the policy stated that no steam-engine was em- 
 ployed, was held not to be a warranty that none should be, 
 but under the condition it might be if it did not increase the 
 risk.^ A contemplated change, however, and preparations 
 to that end not amounting to the actual entering upon the 
 new business, have no effect. A warranty against engaging 
 in a more hazardous occupation is not violated by setting out 
 on a journey with an intent to engage in such occupation, 
 the life being lost before any actual engagement therein, and 
 while on the journey, the policy providing that the life — a 
 slave — should not be removed to more southern latitudes. 
 This implied that he might be removed to more northern 
 latitudes. It was allowable to remove him, and the loss 
 being occasioned by a high wind, and not by the intention 
 to employ him in a more hazardous occupation, no provi- 
 sion, express or implied, of the policy was infringed.^ 
 In Boatwright v. jEtna Insurance Company,* an attempt 
 
 Pa. St. 441, (loss occasioned by the explosion of the engine employed to thresh 
 grain, materially left to jury). The question of an increase of risk is always one 
 of fact for the jury. Shepherd v. Union Mut. Fire Ins. Co., 38 H". H. 232, 
 240 ; Ritter v. Sun Mut. Ins. Co., 40 Mo. 40, 41. Even though expert testi- 
 mony as to the risk on a building being increased by vacancy is not contra- 
 dicted, the question is for the jury. Uncontradicted expert testimony is not 
 conclusive except where none but experts are capable of forming a judgment. 
 Cornish v. Farm Buildings Fire Ins. Co., 74 N. Y. 295, 297-298.1] 
 
 1 1 H. & N. (Exch.) 320. 
 
 2 In their opinion the court alluded to the criticisms of Lord Campbell in 
 Sillem V. Thornton (cited fost, oh. xi.), on the cases of Shaw v. Robberds and 
 Pim u. Reid, apparently with disapprobation, and pointed out the fact that Sil- 
 lem i>. Thornton did not at all present the case of a change in use increasing the 
 risk, but rather that of a misrepresentation in describing the property insured. 
 
 8 Summers v. U. S. Ins. An. & Tr. Co., 13 La. An. 504. 
 * 1 Strob. (S. C), 281. 
 
 439 
 
§ 219] INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 was made to restrict the meaning of that clause of the pol- 
 icy which provides against any increase of risk by the occu- 
 pation of the premises for hazardous purposes, so that it 
 should apply only to such hazardous uses as were declared 
 to be so in the classification of risks. But the court did not 
 accept this view of the case ; holding, on the contrary, that 
 the occupation for any hazardous purpose, whether enumer- 
 ated in the special class or not, would avoid the policy. 
 
 In Schmidt v. Peoria Marine and Fire Insurance Com- 
 pany,^ the court go so far as to hold that, under a general 
 stipulation that an increase of risk shall avoid the policy, 
 the right of the insurers to object is limited to those losses 
 which occur while the increase of risk continues ; and this 
 still appears to be the law of Illinois. But the courts of no 
 other State have gone to that extent. And the case which 
 was refei'red to and relied upon as having decided the same 
 point in the same way,^ was one where the policy expressly 
 provided not that the policy should be void if the risk was 
 increased, but that if the property should be used or appro- 
 priated to or for any of the prohibited purposes, the policy 
 should cease and be of no effect so long as such use con- 
 tinued, — a provision which, so far as the reported case 
 shows, does not appear to have been contained in the case 
 under consideration. A reinsured office, which, after the 
 reinsurance, consents to an increase of risk, without notice 
 to the reinsurer, and takes to itself the extra premium, can- 
 not recover on the policy of reinsurance.^ 
 
 § 219. Increase howsoever. — Even SO broad a restriction 
 to the liability of the insurers, as that they shall not be held 
 responsible if the risk be increased by any means whatever 
 without the assent of the insurers, is to be so interpreted 
 that a reasonable use of the property insured, having regard 
 to its nature and circumstances, may be made by the in- 
 sured. The insurance, unless the terms of the contract for- 
 bid, must be presumed to be made with reference to the 
 
 1 41 111. 295. 
 
 2 New Eng. Fire & Mar. Ins. Co. v. Wetmore, 32 111. 221. 
 
 3 St. Nicholas Ins. Co. v. Merchants', &c. Ins. Co. (N. Y.), 10 Ins. L. J. 137. 
 
 440 
 
CH. XI.] SPECIAL PROVISIONS OF THE CONTRACT, ETC. [§ 219 
 
 character of the property insured, and to the owner's use of 
 it in the ordinary way, and for the purpose for which such 
 property is ordinarily held and used, or to cover risks inci- 
 dent to such use. A farmer, for instance, insures his horses 
 against loss by fire and lightning for five years, and de- 
 scribes them as "kept on his farm," or as "stock on prem- 
 ises," or his carriage "as contained in the barn." This 
 does not preclude him from calling upon the insurers for 
 any indemnity if a loss happens off the farm, as when going 
 to church, or to market, or to visit a friend in the neighbor- 
 hood, or the carriage is at the shop for repairs, or otherwise 
 within the ordinary range of uses to which farmers custom- 
 arily put their horses. It cannot be supposed that in such a 
 case it is intended that the insured shall get a permit every 
 time he goes off his farm. So precarious an insurance one 
 would hardly take the pains to obtain.^ So cars on the line 
 of the road will include cars on spurs connected with the 
 road, though not the property of the road.^ But where the 
 policy was upon a car-house and the cars " contained " in it, 
 it was held to cover only such cars as might be in it.^ So, 
 generally, if there is nothing in the nature of the property 
 or the mode of its use to lead to the inference that it must 
 have been intended that the property should be covered not- 
 withstanding a change of locality, as where a stock of goods 
 is described as contained in a certain building, the liability 
 will be restricted to loss to such goods only as are in the 
 building.* Increase of risk means material increase, and 
 "additional" risk is not necessarily material increase.^ Nor 
 is a permission given by the insured to shipwrecked seamen 
 
 ^ Peterson u. The Mississippi Valley Ins. Co. , 24 Iowa, 494 ; Mills v. Farmers' 
 Ins. Co., 37 Iowa, 400; Everett v. Continental Ins. Co., 21 Minn. 76; McCluer 
 V. GirarJ, &o. Ins. Co., 43 Iowa, 349 ; Holbrook v. St. Paul, &o. Ins. Co., 25 Minn. 
 229, ; s. c. and note, 8 Ins. L. J. 789 ; Longueville v. Western Ass. Co., 51 Iowa, 
 553, 555. See also post, § 224. 
 
 2 Fitehburg R. R. Co. v. Charlestown Mut. Fire Ins. Co., 7 Gray (Mass.), 64. 
 
 8 Annapolis R. R. Co. v. Baltimore Fire Ins. Co., 32 Md. 37. 
 
 * Harris v. Royal Canadian Ins. Co., 53 Iowa, 236. 
 
 ^ Allen V. Mutual Fire Ins. Co., 2 Md. Ill ; Mayor of New York v. Hamilton 
 Mut. Ins. Co., 10 Bosw. (N. Y. Superior Ct.) 537 ; Baxendale u. H^irvey, 4 H. 
 & N. (Exch.) 445. 
 
 441 
 
§ 220] INSUBANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 to take shelter in his storehouse for the night a change of 
 risk in the sense of the policy, although, in violation of the 
 orders of the insured, they kindle a fire in a stove whereby 
 the building is set on fire and consumed.^ Nor is a policy 
 upon the building of a farmer avoided by the increase of risk 
 consequent upon the use of an itinerant steam threshing- 
 machine introduced temporarily for the purpose of threshing 
 the grain raised upon the premises, it being shown that 
 before the issue of the policy this was customary among 
 farmers, and the proceeding was incidental to the business. ^ 
 Nor does the clause against increase of risk include ordinary 
 repairs ; ^ and it is limited and controlled by another provi- 
 sion in the same policy, that an increase of risk from cer- 
 tain specified causes shall only have the effect to suspend 
 the policy while the risk continues.* 
 
 § 220. Increase of Risk. — Still the general and sweeping 
 clause making the insured responsible for all such changes 
 within his control as increase the risk, is one which needs 
 to be looked to very carefully, as it applies to improvements, 
 such as the erection of new buildings,^ or the putting an 
 oven into a house already built,® or the introduction of new 
 machinery. '^ And even a removal of a steam-engine fi'om 
 one place to another on the same premises, as from a posi- 
 tion in the court-yard to a place within the building, may 
 amount to an alteration which, if the removal is availed of 
 by use, will avoid the policy.^ And under the usual proviso 
 against increase of risk, if the risk be increased, it becomes 
 entirely immaterial to inquire whether the loss was occa- 
 
 1 Loud V. Citizens' Mut, lus. Co., 2 Gray (Mass.), 221. 
 
 ^ Bouchet c. Caisse Gen. des Ass. Agr., Dalloz, Jur. Gen. 1870, 3, 16. 
 
 8 Townsend v. Northwestern Ins. Co., 18 N". Y. 168 ; Lyman v. State Mut. 
 Fire Ins. Co., 14 Allen (Mass.), 329 ; Ottawa Fire Co. v. Lon. & Liv. & Globe Ins. 
 Co., 28 V. C. (Q. B.) 518. 
 
 * Mayor, &o. v. Hamilton Mut. Ins. Co., 10 Bosw. (N. Y. Superior Ct.) 537; 
 Bowman v. Pacific Ins. Co., 27 Mo. 152. 
 
 5 Murdock v. Chenango County Mut. Ins. Co., 2 Comst. (N. Y.) 210 ; Francis 
 V. Somerville Mut. Ins. Co., 1 Dutch. (N. J.) 78. 
 
 6 Boatwright v. JEtna Ins. Co., 1 Strob. (S. C.) 281. 
 
 ' Eeid V. Gore Dist. Mut. Fire Ins. Co., 11 U. C. (Q. B.) 345. 
 8 Barrett v. Jermy, 3 Wels., Hurl. & Gor. (Exch.) 535. 
 442 
 
CH. XI.] SPECIAL PROVISIONS OF THE OONTKACT, ETC. [§ 221 
 
 sioned by the increase of risk, unless the stipulation be that 
 the insurers will not be liable for any loss occasioned by an 
 increase of risk.^ But if the insured have two policies from 
 the same office, and they procure, by the payment of an addi- 
 tional premium, the right to increase the risk under one, 
 this increase will not vitiate the other policy, although it 
 be also an increase of risk to the property in that policy 
 insured.^ 
 
 § 221. Increase of Risk ; Notice. — These stipulations 
 against inci-ease of risk usually avoid the contract by the 
 mere fact of the change which causes such increase, unless 
 the insurers be notified of such change, and assent thereto. 
 And where notice is provided for, it must be given within 
 reasonable time, if no time be specified.* But there is 
 oftentimes added another clause, which leaves it optional 
 with the company, after receiving knowledge of the change 
 in the risk, whether to cancel the policy or not. This was 
 the case in Allen v. Massasoit Insurance Company,^ where 
 
 1 QHoffecker v. N. C. C. M. Ins. Co., 5 Hous. (Del.) 101. Puttingin an addi- 
 tional stove, by increasing the risk where naphtha is used in the business, may 
 avoid the policy permitting the use of one stove, although the fire did not arise 
 from the new stove. Daniels v. Equitable Fire Ins. Co., 48 Conn. 105.] 
 
 ^ Gardiner v. Piscataquis Mut. Fire Ins. Co., 38 Me. 439 ; Merriam v. Middle- 
 sex Mut. Fire Ins. Co., 21 Pick. (Mass.) 162. 
 
 3 North Berwick Co. v. N. E. Fire & Mar. Ins. Co., 52 Me. 336. 
 
 * Pirn V. Eeid, 6 M. & G. 1 ; ante, § 216 ; post, § 225. 
 
 ^ 99 Mass. 160, 161. The court here said: "There are two clauses in the 
 policy which refer to such a state of facts. The fiv.st declares that ' if the situ- 
 ation or circumstances affecting the risk thereupon ' shall be so altered or changed 
 by or with the advice, agency, or consent of the assured as to increase the risk 
 thereupon, ' the risk thereupon shall cease and determine, and the policy become 
 null and void, unless confirmed,' &e. The second clause is as follows : ' If, 
 during the insurance, the risk be increased by the erection of buildings, or by the 
 use or occupation of neighboring premises or otherwise, or if the company shall 
 so elect, it shall be optional with the company to terminate the insurance after 
 notice given to the assured or his representative of their intentions to do so, in 
 which case the company will refund a ratable portion of the premium.' The two 
 clauses were directed to two objects : the first, to whatever should increase the 
 risk by the consent or agency of the assured ; and the second, to whatever should 
 increase the risk without his consent by the agency of others. The first it was 
 intended to guard against absolutely, it being within the power of the assured to 
 prevent ; the latter, which might occur without his act, or even without his 
 knowledge, it was just should not affect his rights without notice. The mention 
 of the erection of buildings was merely the specification of one mode in which the 
 
 443 
 
§ 221] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 the court takes occasion to refer to these respective provi- 
 sions, and to state their scope and purpose. On the other 
 hand, it is held in Wisconsin that where, as in case a house 
 becomes vacant, the policy is to be void unless immediate 
 notice is given, and the vacancy occurs with the knowledge 
 of the insurers, and the insurers also have the right to ter- 
 minate a risk, on notice, for any cause, they will be deemed 
 to have waived the forfeiture if they do not give the notice 
 to terminate. 1 
 
 Notice of change of risk must be within reasonable time.^ 
 And where one change of risk is notified and assented to by 
 the insurer, another change to a business of the same grade 
 of risks will be presumed to be assented to, and though not 
 notified, will not avoid the policy.^ [Where the insured is 
 to give notice of any increase of risk within his knowledge, 
 and adjacent buildings were erected, the jury were instructed 
 that if they thought the risk was materially increased, and 
 no notice was given, the plaintiff could not recover, and it 
 was held in the court above, that this was sufficiently favor- 
 able to the company, and perhaps put too great a burden on 
 the insured to require him to take notice of the buildings, 
 or assume his knowledge of them.* When the provision is, 
 that notice must be given if a change is made that will in- 
 crease the risk "so as to increase the rate of insurance," the 
 company must show not only that the insured knew that the 
 change would increase the risk, but would raise the rate of 
 insurance.^ When an increase of risk by adjacent buildings 
 is to be notified to the company, a failure to give notice of 
 
 risk might be increased ; and appears to have been given by way of illustration. 
 But the previous provision was general, and included all modes in which the risk 
 should be increased by the agency of the insured." See Williams v. People's 
 Fire Ins. Co., 57 N. Y. 274 ; Breuner o. Liverpool, &c. Ins. Co., 51 Cal. 101. 
 See also Commercial Ins. Co. v. Mehlman, 48 111. 313. 
 
 ^ Wakefield v. Orient Ins. Co. (Wis.), 11 Eeptr. 655. See also Lomas v. 
 British Am. Ass. Co., 22 U. C. (Q. B.) 310. But see Williams v. People's Ins. 
 Co., supra. 
 
 2 Canada Credit Co. v. Canada Farmers' Mut. Ins. Co., 17 U. C. (Ch.) 418. 
 
 3 Campbell v. Liv. & Lon. Fire Ins. Co., 18 L. C. Jur. (Q. B.) 309, reversing 
 S. c. 11 L. C. Jur. 66. 
 
 * [Franklin Fire Ins. Co. v. Graver, 100 Pa. St. 266, 274.] 
 s [Lebanon Mut. Ins. Co. v. Losch, 109 Pa. St. 100 (adjacent building).] 
 444 
 
CH. XI.] SPECIAL PEOTISIONS OF THE CONTRACT, ETC. [§ 222 
 
 the erection of a warehouse forty -one feet from the insured 
 building is fatal. ^ If the policy requires the insured to give 
 notice of any change in the neighboring premises, or in the 
 use of the insured premises, which increase the risk, only 
 changes known by him to increase the risk are meant.^ If 
 the insured gives the company notice of a change of risk, it 
 is bound to make its election whether to avoid the policy or 
 not, and it must make its decision known within a reason- 
 able time.^ When the change made in the insured premises 
 does not increase the risk, no notice thereof is necessary to 
 the company, under a policy providing that any change of 
 risk must be made known to the company.* In the absence 
 of known restrictions an agent may waive written assent to 
 material alterations in the property.^] 
 
 § 222. Increase of Risk ; Alteration. — An almost univer- 
 sal provision of the policy is one intended to guard against 
 the danger of increase of risk by alteration ; and increase of 
 risk by alteration may avoid a policy though the policy con- 
 tain no provisions to that effect. This alteration may take 
 place in the building insured, or in its mode of use or occu- 
 pation, or in its situation with reference to other buildings, 
 or in any other circumstance tending to change the charac- 
 ter of the risk. But not every alteration will avoid the pol- 
 icy, as not every alteration increases the risk, (a) In marine 
 
 1 [Peoria Sug. Eeflning Co. v. People's Fire Ins. Co., 24 Fed. Kep. 773 (Conn. ), 
 1885.] 
 
 2 [Rife V. Lebanon Mut. Ins. Co., 115 Pa. St. 531.] 
 
 3 [Lattomus v. Farmers' Mut. Fire Ins. Co., 3 Houst. (Del.) 404, 420.] 
 ^ [Parker v. Arctic Ins. Co., 69 N. Y. 1, 4 ] 
 
 5 [Packard v. Dorchester Mut. Fire Ins. Co., 77 Me. 144.] 
 
 (a) Anadditionorextension to anin- Forbes r. American Ins. Co., 164 Mass. 
 
 sured building does not of itself operate 402 ; Benton v. Farmers' Mut. F. Ins. 
 
 to increase the risk, for improvements Co., 102 Mich. 281 ; Nappanee Furniture 
 
 made to the building in connection with Co. v. Vernon Ins. Co., 10 Ind. A]ip. 
 
 the extension may decrease the risk. 319 ; Gross v. Milwaukee Mechanics' 
 
 Meyer v. Queen Ins. Co., 41 La. An. Ins. Co., 92 Wis. 656 ; Franklin Brass 
 
 1000. See Franklin F. Ins. Co. v. Hel- Co. v. Phcenix Ass. Co., 65 Fed. Rep. 
 
 lerick (Ky.), 49 S. W. 1066. As to 773; Davis u. Western Home Ins. Co., 
 
 such additions and extensions, and the 81 Iowa, 496 ; Carpenter v. Allemannia 
 
 goods therein being covered by the po- F. Ins. Co., 156 Penn. St. 37. 
 licy upon the original building, see 
 
 445 
 
§ 222] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 insurance, a deviation from the voyage is held to avoid the 
 policy ; but this has been said to be not on the ground of an 
 increase of the risk, but on the ground that the insured has 
 voluntarily substituted another voyage for the one insured, 
 and the change of the voyage determines the contract from 
 the time it happens.^ The same strictness, however, is not 
 observed in fire insurance. It would seem, at the first 
 glance, that the enlargement of a building, already contigu- 
 ous to a building on one side, so that it should be contiguous 
 on two sides, must necessarily increase the risk, the points 
 of contact having been increased. And so it has been con- 
 tended, in analogy to the doctrine of marine insurance, that 
 a deviation avoids the policy without reference to an in- 
 crease of the risk. But it is to be considered that, while by 
 deviation the identity of the voyage insured is changed, a 
 building may be altered, repaired, or enlarged without sub- 
 stantially affecting its identity, either as a structure or as a 
 subject-matter of insurance. It may still remain the same, 
 or so nearly so that the increase of risk is inappreciable. 
 Indeed, it may be that there is no increase at all, and pos- 
 sibly even a diminution. The substitution of a slated for a 
 shingled roof, for instance, even though, in the change, the 
 area of the roof should be somewhat enlarged, it is obvious, 
 would not increase the risk, though it would undoubtedly 
 be an alteration. So the extension of a wooden building 
 towards and nearer to an adjacent building might increase 
 the risk, but a substitution for wood of brick, stone, slate, 
 or some other substance less combustible than wood, at the 
 point of nearest proximity, might more than counterbalance 
 the increase of risk from the extension. Whether the alter- 
 ation, therefore, in any particular case will avoid the policy, 
 depends as a general rule upon its materiality, and this again 
 is determined by the question whether it increases the risk,^ 
 — a question of fact to be determined by the jury upon all 
 
 1 Burgess v. Equitable Mar. Ins. Co., 126 Mass. 70, 79. 
 
 2 [A mere change or alteration in the insured buildings which does not in- 
 crease the risk will not avoid the policy. Lattomus v. Farmers' Mut. Fire Ins. 
 Co., 3 Houst. (Del.) 404, 420.] 
 
 446 
 
CH. XI.J SPECIAL PROVISIONS OF THE CONTEAOT, ETC. [§ 223 
 
 the circumstances of each particular case.^ Pardessus is of 
 the opinion that the rule as to the effect of a deviation at 
 sea would not be so strictly applied to a transit by land ; but 
 that in the latter case the deviation would not avoid the pol- 
 icy, if the insured, after deviation, should return to the route 
 indicated in the policy.^ So, if a building or property in- 
 sured be removed from the place where it was when insured, 
 though it would not be covered by the policy while away or 
 located in another place, yet a restoration of the property 
 insured will restore it to the protection of the policy.^ [But 
 where the goods are described as on the first floor, and in 
 the basement, a removal of all of them to the basement is 
 not an increase of risk.*] 
 
 § 223. Alteration ; Materiality ; Warranty. — Of the ele- 
 ments to be considered in determining the question of the 
 materiality of an alteration, one of prime importance is, 
 whether the alteration be such that had the insurance been 
 sought on the building, as altered, a higher rate of insur- 
 ance would have been demanded than was demanded on the 
 building as actually insured.^ And if such be the fact, then 
 it would be of no avail to show in an action for a loss that 
 it was not occasioned by the alteration, nor, on the other 
 hand, would it be incumbent on the insurers to show that it 
 was occasioned by the alteration. In other words, the ques- 
 tion of materiality does not necessarily depend upon the fact 
 whether the loss is, or is not, occasioned by the alteration.^ 
 The question of the materiality of an alteration or change 
 may, however, by express stipulation, be taken out of the 
 
 1 Curry v. The Commonwealth Ins. Co., 10 Pick. (Mass.) SS.") ; Lavabre v. 
 Wilson, Doug. 284; Jolly w. Bait. Eq. Soc, 1 H. & G. (Md.) 295; Stetson v. 
 Massachusetts Mut. Fire Ins. Co., 4 Mass. 330. And see post, § 224. 
 
 2 Cours de Droit Com. § 596, par. 3. 
 
 ' Ante, § 101; post, § 381 ; Boynton v. Clinton & Essex Mut. Ins. Co., 16 
 Barb. (N. Y.) 254; Annapolis v. Baltimore Fire Ins. Co., 32 Md. 37; Spitzer u. 
 St. Mark's Ins. Co., 6 Duer (N. Y. Superior Ct.), 6. 
 
 * [Plinsky «. Germania Fire & Mar. Ins. Co., 32 Fed. Rep. 47 (Mich.), 1887.] 
 
 ^ [The rates of insurance charged on burr flouring mills and roller mills is 
 competent in deciding whether the risk was increased by changing the machin- 
 ery from the burr to the roller process. Planters' Mut. Ins. Co. v. Eowland, 
 66 Md. 236.] 
 
 ^ Merriani v. The Middlesex Mut. Fire Ins. Co., 21 Pick. (Mass.) 162. 
 
 447 
 
§ 224] INSUEANCE : FIRE, LIEE, ACCIDENT, ETC. [CH. XI. 
 
 field of debate. It is competent for the parties to agree that 
 this or that alteration or change shall work a forfeiture, in 
 "which case the only inquiry will be whether the one in ques- 
 tion comes within the category of changes which by agree- 
 ment shall work a forfeiture. Thus, where in a policy of 
 insurance there is a memorandum of hazardous trades, and 
 it is stipulated that none of these trades shall, during the 
 currency of the policy be carried on in the building insured 
 upon penalty of forfeiting the right to recover in case of loss, 
 the use of the building for such a trade will avoid the policy; 
 and evidence to show that the actual use did not increase 
 the risk of damage by fire will be inadmissible, and this 
 although the policy covered one of the specially hazardous 
 risks. ^ So if the change is to a business which is in the 
 policy denominated specially hazardous, and increase of risk 
 not notified is to avoid the policy, the increase of risk is 
 conclusively presumed.^ But even in case where the stipu- 
 lation with reference to alteration is a warranty, want of 
 literal and exact fulfilment as to minute matters, im- 
 material to the risk, will not avoid the policy. The 
 jury will consider whether the warranty is substantially 
 observed.^ 
 
 § 224. What Extent of Alteration permissible vvhen not in- 
 hibited ; Repairs. — Unless there be a special stipulation to 
 the contrary, when a building is insured, the insured does 
 not relinquish the right of exercising the ordinary and neces- 
 sary rights of ownership over the same, and may not only 
 make ordinary, but such general repairs and changes as may 
 be necessary or convenient to make the building better sub- 
 serve its purposes, according to the mode customary in such 
 
 1 Lee V. Howard Fire Ins. Co., 3 Gray (Mass.), 583; Glen v. Lewis, 8 Wels., 
 Hurl. & Gor. (Exch.) 607. 
 
 2 Gasner v. Met. Ins. Co., 13 Minn. 483. 
 
 ^ Girard Fire & Mar. Ins. Co. v. Stephenson, 37 Pa. St. 293. In a recent case 
 it was left to the jury to say whether sinking an artesian well whence gas escaped, 
 and coming in contact with a jet of flame causing the fire, materially increased 
 the risk, with the instruction that such an alteration was not permitted as 
 incidental to the business. Crane v. City Ins. Co., C. Ct. Ohio, 1880, 3 Fed. 
 Rep. 558. 
 
 448 
 
CH. XI.J SPECIAL PEOVISIONS OF THE CONTRACT, ETC. [§ 224 
 
 cases ;^ but not alterations materially enhancing the risk,^ 
 and not necessary to the enjoyment of the premises, or 
 according to usage, and not the result of the exercise of 
 such ordinary acts of ownership as may fairly be presumed 
 to have entered into the contemplation of the parties at the 
 time when the insurance was effected. "In effect," said 
 Willes, J., in Thompson v. Hopper,^ "there being no viola- 
 tion of the law and no fraud of the assured, an increase of 
 risk to the subject-matter of insurance, its identity remain- 
 ing, though such increase of risk be caused by the insured, 
 if it be not prohibited by the policy, does not avoid the in- 
 surance." In other words, the insured, unless restricted in 
 some way in the policy, may use, protect, and enjoy his 
 property as such property is customarily used, enjoyed, and 
 protected ; and in any case of dispute the question will be 
 for the jury whether the insured has transcended a fair ex- 
 ercise of his rights.* The only restraints in such a case 
 arise from necessary implication founded on the presumed 
 intentions of the parties, and are such as are called for by 
 the dictates of reason, justice, and public policy. The in- 
 surer must be presumed to know that the owner intends to 
 derive benefit from the use and occupancy of his buildings, 
 and to that end he must keep them in tenantable condition. 
 And to put them in tenantable condition prudence may re- 
 quire that, in order to enable him to reap the greatest bene- 
 fit from his property, he shall do something more than make 
 his building barely inhabitable. Having regard to its ap- 
 pearance and convenience as compared with other property 
 of a similar character in the vicinity, he may make such 
 repairs and alterations as will make it, relatively to other 
 property with which it may come in competition, equally 
 attractive, desirable, and convenient. The contract of in- 
 
 1 [The phrase " increase of risk " means an essential increase thereof, and does 
 not include every slight addition to the risk, as by re])airs incidental to the busi- 
 ness. Crane v. City Ins. Co., 2 Flippin, 576, 580.] 
 
 ^ [Unless restricted by the policy the insured may make any alterations that 
 do not increase the risk. Planters' Mutual Ins. Co. v. Rowland, 66 Md. 236.] 
 
 » E., B. & E. 1038, 1049. 
 
 * Jolly V. Bait. Eq. Soc, 1 H. & G. (Md.) 295. 
 
 VOL. I. — 29 449 
 
§ 224] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 surance is not to be construed so as to restrain the prudent 
 and thrifty from improving their property and their income 
 within the limits of ordinary usage. In the case last cited, 
 where the repairs were of a thorough and extensive charac- 
 ter, so much so that the house was given up to the posses- 
 sion of the mechanics engaged therein for several weeks, 
 and was meantime, as is usual in such cases, incumbered 
 with the materials, and strewn with the chips and other 
 waste incident to such repairs, it was contended by the dis- 
 tinguished counsel 1 for the defendants that such repairs 
 avoided the policy, and they likened the case to a deviation 
 in marine assurance; and so it was ruled at the trial. But 
 on appeal the court sent back the case for a new trial, giv- 
 ing a very elaborate opinion, from which we make the ex- 
 tract quoted in the note.^ So it was said in Robinson v. 
 
 1 Wirt and Taney. 
 
 ^ "The strictness and nicety which have been wisely adopted in the trial of 
 questions arising on policies of marine insurance are not, to their full extent, 
 applicable to the policies of this society. The former are entered Into by the 
 assurer almost exclusively on the statements and information given by the assured 
 himself ; in the latter case the insurers assume the risk on the knowledge ac- 
 quired by an actual survey and examination made by themselves, not on repre- 
 sentations coming from the insured. This association, therefore, formed for their 
 individual accommodation and security, cannot, upon any sound principle of 
 construction, be viewed as involving in it a mutual relinquishment of the right 
 of exercising those ordinary necessary acts of ownership over their houses which 
 have been usually exercised by the owners of such property. It hence follows 
 that the insured is authorized to make any necessary repairs in the mode com- 
 monly pursued on such occasions. 
 
 "But if, by the gross negligence or misconduct of the workmen employed, a 
 loss by fire ensue; or if alterations be made in the subject insured materially en- 
 hancing the risk, and not necessarj' to the enjoyment of the premises insured, or 
 according to usage and custom were not the result of the exercise of such ordinary 
 acts of ownership as in the understanding of the parties were conceded to the 
 insured at the time of insurance, and a loss by fire is thereby produced, — then 
 are the underwriters released from all reliability to indemnify for such loss. The 
 policy of insurance here being perfectly silent on the subject, and no general prin- 
 ciple or rule of law having been established, in cases like the present, by which 
 to determine whether the repairs or alterations were such as the insured had 
 authority to make as being necessary to the user of the property, and whether, if 
 authorized, they were made in the usual and customary way, the proper tribunal 
 to decide those questions is the jury and not the court. 
 
 " It appears to have been conceded in argument that ordinary necessary repairs 
 might be made by the insured, but not a thorough repair like the present. The 
 proof of the appellants is ' that the repairs made on this house were necessary for 
 the purpose of rendering it tenantable,' and that they were made in the usual 
 
 450 
 
CH. XI.] SPECIAL PROVISIONS OF THE CONTRACT, ETC. [§ 224 
 
 Mercer County Mutual Fire Insurance Company, ^ with ref- 
 
 way. The bill of exceptions shows that by the word ' repairs ' both parties meant 
 all that was done to the house. The distinction attempted to be taken has not 
 been supported by any authorities, and in common sense and justice there can be 
 no discrimination between the right to make ordinary repairs and such a thorough 
 repair as is necessary for the purpose of rendering the house tenantable. 
 
 " It has been stated by the counsel of both parties that there can be found in 
 the books no adjudication on a policy against iire analogous to the present. It 
 becomes this court, then, maturely to deliberate before they sanction the doctrine 
 contended for by the appellees, which, contrary to justice and the understanding 
 and intention of the parties at the formation of their contract, annihilates all 
 claim to indemnity on the part of the insured, and yet leaves the insurer in the 
 full enjoyment of the premium for responsibility. It perhaps scarcely ever hap- 
 pens that during the period of seven years, the usual term to which such policies 
 are limited, some trifling alteration or addition is not made to the property in- 
 sured ; as a new door or window opened, an additional closet, shelf, or such like 
 fixture erected : any of which acts, if the grounds assumed by the appellees are 
 supported, change the identity of the property, create a new risk, and absolve the 
 underwriters. Indeed, if alterations and additions are, per se, a change of the risk, 
 it would follow that the erection of a parapet wall in a city, a substitution of brick 
 for a wooden floor, or a marble for a wooden mantel-piece, or the introduction of 
 a coal-grate in a chimney constructed for wood as the only fuel, though lessening 
 the peril, would discharge the policy ; as, according to the principles of maritime 
 insurance, every change of the risk exonerates the underwriter, whether the dan- 
 ger be increased or diminished, or happen the loss from whatsoever cause it may. 
 To infer, without any express provision or necessary implication arising out of the 
 contract itself, or public policy demanding it, that the insured surrendered all 
 right to make such commonplace, trivial, unimportant additions to and alterations 
 of his property, as its safety or his convenience or comfort might suggest, is a 
 construction too rigorous to be rational ; the efl'ect of which would be to render 
 worse than useless those most useful and indispensable institutions in populous 
 cities, — lire insurance companies, — and give a fatal stab to our enterprising 
 manufacturers, who, if suing for a loss under a policy covering the manufactory 
 and machinery, would be turned out of court without remedy or hope, if per- 
 chance the insurer could prove that the most immaterial alteration or improve- 
 ment were made in his machinery, by substituting the power of the screw for that 
 of the lever,the leather strap for the iron wheel, or the iron for the wooden shaft. 
 But suppose all the rules of marine insurance applicable to the question at bar, 
 can a case be found in which it was ever contended that to add to the equipment 
 of a vessel insured a yard or more of canvas, or an additional cleat or clew-line, 
 was to vacate the insurance ? 
 
 "The numerous and warmly litigated questions of deviation and change of 
 risk, which burden the records of courts of justice, bear no analogy to that now 
 under consideration. There, departing from the conrse of the voyage, or perform- 
 ing it at any other time than that required by the policy, subjects the vessel to 
 different perils than those contemplated by the contracting parties ; a flaw, a 
 whirlpool, a breaker may be encountered in one course of the voyage which would 
 be a cause of neither danger nor alarm at a mile's distance. The tempests or 
 casualties attending the performance of a voyage to-day bear no similitude or pro- 
 
 1 3 Dutch. (N. J.) 134. 
 
 451 
 
§ 225] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 erence to a change of use from one business to another of 
 greater risk, that if the insured exposed the property to a 
 risk far more hazardous than could have been contemplated 
 by the insurers, good faith required that they should have 
 notice, and if the insured neglected to notify them it would 
 amount to that gross negligence which would defeat a recovery. 
 § 225. Alteration ; Change in Surroundings ; Enlargement. 
 — ■ The same rules are applicable to changes in the situation 
 of the property insured relative to other property, and other 
 surrounding and incidental circumstances tending to in- 
 crease the risk. If the policy provide for notice of altera- 
 tion or change in risk, on penalty of forfeiture, the insured 
 takes the risk if he fails to give notice of a change which 
 increases the risk. The only safe course for the applicant 
 is to notify of all changes.^ If the contract be silent on this 
 point, any change within the limits of fair and honest deal- 
 ing is permissible, even though to that change the destruc- 
 tion of the property may be due.^ [A clause allowing neces- 
 
 portion to those attendant on a like voyage to-morrow. But no such total revolu- 
 tion is wrought in the perils to a house insured against fire which has undergone 
 alterations or repairs ; it remains subject to the same perils, although their degree 
 may be increased or diminished. It becomes a question of increase, not of change 
 of risk, for the ascertainment of which the jury, and not the court, is the proper 
 tribunal." For further illustration of the doctrine of this case, see Wash. Ins. Co. 
 V. Davison, 30 Md. 92, 107 ; Franklin Ins. Co. v. Chicago Ice Co., 36 id. 102, 
 121; Grant v. Howard Ins. Co., 5 Hill (N. Y.), 10; Kann v. Home Ins. Co., 
 59 N. Y. 387 ; and especially the very elaborate case of James v. Lycoming Fire 
 Ins. Co., 4 Cliff. C. Ct. (Mass.) 272. See also Anderton v. Home Ins. Co., 2 Ins. 
 L. J. 877 ; Dorn v. Germania Ins. Co., C. Ct. (Ohio), 1 Law & Eq. Eeptr. 132, 
 133. And see also ante, §§ 219, 223, note at the end, and post, § 230. 
 
 1 Pottsville Mut. Fire Ins. Co. u. Horan (Pa. ), 9 Ins. L. J. 201 ; ante, §§ 216, 
 221. 
 
 2 Stebhins v. Globe Ins. Co., 2 Hall (N. Y. Superior Ct.), 632 ; Grant ». How- 
 ard Ins. Co., 5 Hill (N. Y.), 10, 16 ; Western Farmers' Mut. Inss. Co. v. Miller, 
 
 1 Handy (Cincinnati Superior Ct.), 325; Gates w. Madison County Mut. Ins. 
 Co., 1 Seld. (N. Y.) 469 ; Young v. Washington County Mut. Ins. Co., 14 Barb. 
 (N. Y.) 545. In Howard «. Kentucky & Louisville Ins. Co., 13 B. Mon. (Ky.) 
 282, it is said that in such a ease the policy will not be avoided unless the in- 
 creased risk is the cause of the less, in which case what was unobjectionable 
 becomes misconduct, — a doctrine which cannot be said to be in accordance 
 with the current of opinions, nor is it supported by Stebbins v. Globe Ins. Co., 
 
 2 Hall (N. Y. Superior Ct.), 632, the only case cited as an authority. That case 
 says, obiter, that if the increase of risk be fraudulent and occasion the loss, it may 
 be a defence. 
 
 452 
 
CH. XI.] SPECIAL PKOVISIONS OF THE CONTRACT, ETC. [§ 226 
 
 sary alterations and repairs does not permit an addition two 
 hundred feet long and twelve feet wide, and parol evidence 
 that such an enlargement was contemplated by the parties 
 at the time of insurance is not admissible to vary the writ- 
 ten contract.^] In Joyce v. Maine Insurance Company, ^ 
 there was the peculiar provision that if the risk was in- 
 creased by the erection of buildings, or the occupation of 
 neighboring premises, it should be the duty of the insured 
 to give immediate notice thereof to the insurers, that they 
 might terminate the insurance if they should so elect. But 
 no penalty for neglect to give notice was fixed. Such a pro- 
 vision was held to afford to the insurers no ground of de- 
 fence, in case of its violation, as they cannot assume that 
 they would have terminated the insurance if notice of the 
 change had been given. And in point of fact such a provi- 
 sion seems to have no force, the insurers having no better 
 standing in court than they would have without it. Under 
 a somewhat similar provision in a policy which provides 
 that the trustees may declare it null and void if the insured 
 premises be repaired or enlarged so as to render the risk 
 greater, the notice of the trustees does not conclude the in- 
 sured. He may yet go to the jury on the question whether 
 the enlargement did in fact increase the risk.^ If any 
 particular act is to be done, as, for instance, if a build- 
 ing contiguous to the property insured is to be removed, 
 this can only be required within a reasonable time; and 
 if a loss occur before the removal, it is for the jury to 
 say whether that reasonable time had elapsed before the 
 loss.* 
 
 § 226. Increase of Risk during Alteration ; Increase and De- 
 crease. — But if the policy provides against an alteration and 
 enlargement which shall increase the risk, a considerable 
 and deliberate alteration and enlargement not incidental to 
 the use of the property will avoid the policy, if it increases 
 
 1 [Frost's Detroit Lumberworks v. Miller's Mut. Ins. Co., 37 Minn. 300.] 
 
 2 45 Me. 168. 
 
 " Stetson V. Massachusetts Mut. Fire Ins. Co., 4 Mass. 330. 
 * Lindsey v. Union Mat. Fire Ins. Co., 8 R. I. 167. 
 
 453 
 
§ 227] INSURANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 the risk during the alteration ; and whether the alteration is 
 such a one is for the jury. It seems, however, that ordinary 
 repairs under such circumstances would not.i In Heneker 
 V. British America Assui'ance Company,^ where extensive 
 alterations were made both in the building itself and the 
 surroundings, the court refused to allow the jury to find — 
 there being an actual increase of risk in the building itself 
 — whether, on the whole, taking into consideration any de- 
 crease of risk in the surroundings, there was any actual 
 increase of risk. But in Date v. Gore District Mutual In- 
 surance Company,^ where the changes were all within the 
 building, some calculated to increase the risk and others to 
 diminish it, the court allowed the jury to strike the balance, 
 and say if, on the whole, there was any increase. 
 
 § 227. Alteration by others than the Insured. — Unless the 
 consequences are restricted to the acts of particular persons, 
 an alteration, such as would work a forfeiture of the policy, 
 if made by the insured, is equally fatal if made by a tenant 
 without the knowledge or consent of the insured.* That it 
 is made by a tenant is no excuse, if contrary to the cove- 
 nants in the policy. The tenant's possession is the land- 
 lord's possession. The latter continues to be the party 
 insured, and the covenants which he enters into remain 
 whether he occupies personally or by tenant.^ [And here 
 is always an implied promise of the insured not to increase 
 the risk, and if the tenants so alter or use the property as to 
 increase the risk of injury or loss by fire, the company is 
 
 1 Lyman v. State Mut. Fire Ins. Co., 14 Allen (Mass.), 329. 
 
 2 14 U. C. (C. P.) 57. So it was held in Pottsville Mut. Fire Ins. Co., v. 
 Hovan (Pa.), 9 Ins. L. J. 201 | Lomas a. British Am. Ass. Co., 22 U. 0. (Q. B.) 
 310, 318. 
 
 8 15 U. 0. (C. P.) 175. 
 
 *. [Long V. Beeber, 106 Pa. St. 466 ; Steimnetz v. Franklin Ins. Co., 6 Phila. 
 21, 23 (keeping gunpowder) ; Liverpool, &c. Ins. Co. v. Gunther, 116 U. S. 113 
 (hazardous means of light) ; Hawell v. Baltimore Eq. See., 16 Md. 377, 386-387 
 (hazardous occupation of tenant without assured's knowledge). If one who occu- 
 pies premises by permission of the insured riolates any of the conditions of the 
 policy, the effect is the same as though the assured had himself violated them, 
 although he may be ignorant of the tenant's conduct. Liverpool, &c. Ins. Co. v. 
 Gunther, 116 U. S. 113, 128.] 
 
 5 Diehl V. Adams County Mut. Ins. Co., 58 Pa. St. 443. 
 
 454 
 
CH. XI.] SPECIAL PKOTISIONS OF THE CONTRACT, ETC. [§ 228 
 
 released, and the origin of the fire is an immaterial ques- 
 tion.^] If the insured desires to escape so large a responsi- 
 bility, he must see to it that the terms of the policy a!re not 
 so broad as to include the acts of third persons. If he do 
 not do this, he will find, perhaps when it is too late, that he 
 has agreed to be responsible for the acts of third persons.^ 
 And upon this principle, an alteration by a mortgagor, after 
 an assignment of the policy, and without the knowledge of 
 the assignor, avoids the policy.^ A substantial change of 
 use, if prohibited on penalty of forfeiture, though made by 
 a tenant or agent without the knowledge of the owner, the 
 insured, is fatal, unless, as is the case in some policies, he 
 is made responsible for such changes only as he permits.* 
 [Or the policy is to be affected only by respective increase 
 of risk by means within the control of the assured. Then 
 mere imprudence or negligence of either the assured or his 
 agent would not avoid the policy.^] But a tenant is not a 
 proprietor within the meaning of a provision against altera- 
 tions by act of the proprietor, and an alteration therefore 
 by a tenant, not known to the owner, does not avoid the 
 policy.^ 
 
 § 228. Alteration ; Premises. — " Premises " means build- 
 ing, and though there is an alteration in the status of the 
 property insured increasing the risk, it is not an alteration 
 in the " premises " or building in which the property insured 
 is located, and therefore works no forfeiture.^ But a provi- 
 sion against lighting the " premises " insured, in a policy on 
 
 1 [Hoffecker v. New Castle, &c. Ins. Co., 5 Houst. (Del.) 101.] 
 
 2 Shepherd v. Union Mut. Fire Ins. Co., 38 N. H. 232. 
 
 = Kuntz 0. Niagara Dist. Fire Ins. Co., 16 U. C. (C. P.) 573 ; Grosvenor v. 
 Atlantic Mut. Ins. Co., 17 N. Y. 391 ; State Mut. Fire Ins. Co. v. Roberts, 31 
 Pa. St. 438; Loring u. Manuf. Ins. Co., 8 Gray (Mass.), 28. 
 
 * Fire Assoc, of Philadelphia v. Williamson, 26 Pa. St. 196 ; Howell v. Bait. 
 Eq. Soc, 16 Md. 317 ; Appleby v. Fireman's Fund Ins. Co., 45 Barb. (N. Y.) 
 454 ; Sanford v. Mechanics' Mut. Fire Ins. Co., 12 Cush. (Mass.) 541. But see 
 post, § 240. 
 
 6 [Gunther v. Liv., Lond. & Globe Ins. Co., 20 Blatch. 362, 367.] 
 
 " Padelford v. Prov. Mut. Fire Ins. Co., 3 R. I. 102. 
 
 ' Robinson v. Mercer County Mut. Ins. Co., 3 Dutch. (N. J.) 134, 135; Leg- 
 gett V. Mtna Ins. Co., 10 Rich. Law (S. C), 202 ; post, §§ 243, 239 B. And see 
 also Howard Fire & Mar. Ins. Co. c;. Cornick, 24 111. 455. 
 
 455 
 
§ 230] INSURANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 a stock of goods, refers to lighting the building as well as 
 the merchandise.^ 
 
 § 229. Alterations at Risk of the Insured. — A provision 
 that alterations and repairs are at the risk of the insured 
 has been said to mean, not that they shall necessarily avoid 
 the contract, but that the assured shall assume the hazard 
 of their increasing the liability of the insurer.^ But in 
 Kingsley v. New England Mutual Insui'ance Company,^ a 
 condition that the insured should "take all risk from cotton 
 waste, " was held to mean that if the fire originated in cotton 
 waste the insurers were not to be responsible. 
 
 § 230. Alteration in Mode of Use. — Under a policy in- 
 suring in general terms a store, building, or factory, with- 
 out restriction as to the use or as to the kind of goods to be 
 kept, or as to increase of risk generally, any kind of goods 
 may be kept, and any kind of business carried on, and any 
 change of circumstances made, not expressly prohibited, 
 within the limits of good faith and fair dealing; and the 
 fair inference, from the fact that certain kinds of goods and 
 certain kinds of business are classed as hazardous, is, that 
 all others are within the scope of the policy.* And in the 
 absence of fraud, it is immaterial whether the newly intro- 
 duced property, trade, or business is more or less hazardous. 
 Subject only to the restraints of honesty and fair dealing, 
 the insured may use his property as he sees fit, and has_ 
 towards the insurers no obligations not set down in the con- 
 
 1 Stettiner v. Granite lus. Co., 5 Duer (N. Y. Superior Ct.), 594. In Trench 
 V. Chenango County Mut. Ins. Co., 7 Hill (N.Y.), 122, it was held that where 
 buildings and personal property were insured in the same policy, and there was 
 a breach of warranty in the failure to state all the buildings within a certain dis- 
 tance, the breach avoided the policy only as to the building, and that as to the 
 personal property there might be a recovery therefor. But this doctrine was 
 doubted in Sexton v. Montgomery County Mut. Ins. Co., 9 Barb. (N. Y.) 191, 
 repudiated in Kennedy v. St. Lawrence County Mut. Ins. Co., 10 Barb. (N. Y.) 
 285, and the case itself, upon this point overruled in Wilson v. Herkimer County 
 Mut. Ins. Co., 2 Seld. (N. Y. ) 53. 
 
 2 Girard Fire & Mar. Ins. Co. v. Stephenson, 37 Pa. St. 293. And see also 
 Perry County Ins. Co. u. Stewart, 19 Pa. St. 45. 
 
 s's Cush. (Mass.) 393. 
 
 * Langdon v. Equitable Ins. Co., 1 Hall (N. Y. Superior Ct.), 226 ; s. o. 6 
 Wend. (N. Y.) 623. 
 456 
 
CH. XL] SPECIAL PEOVISIONS OF THE CONTEAGT, ETC. [§ 230 
 
 tract. ^ Undoubtedly there may be such a marked and seri- 
 ous change from a risk of the lowest grade to one of the 
 highest, and under such circumstances as obviously not to 
 have been within the contemplation of either party ; in fact, 
 converting the property insured into a substantially differ- 
 ent subject-matter, and such a change as no fair-minded 
 man would regard, or have a right to regard, as protected 
 under the original policy, — as where loose, unbaled hay is 
 stored in a building insured as a grocery. In such a case 
 the question would be, whether the change was in degree or 
 kind within such reasonable limits as to be consistent with 
 good faith, or whether it was of such an extravagant charac- 
 ter as to evince an utter disregard of the just rights and ex- 
 pectations of the insurers, and an obvious absence of good 
 faith. ^ (a) If the policy, however, provide against any 
 
 1 Pim V. Reid, 6 M. & G. 1 ; Shaw v. Robberds, 6 Ad. & El. 75. In Sillem v. 
 Thornton, 3 El. & Bl. 868, Lord Campbell says, Pim v. Reid was decided solely 
 on a question of pleading, and doubts the doctrine stated in that case. But 
 the case then under consideration did not at all resemble either of the cases 
 criticised. 
 
 2 Robinson v. Mercer County Mut. Fire Ins. Co., 3 Dutch. (N. J.) 134; Ditt- 
 mer o. Germania Ins. Co., 23 La. An. 458. And see also the observations of 
 Lord Campbell in Sillem v. Thornton, 3 El. & Bl. 866, cited post, § 257. 
 
 (a) If the insurer asks no informa- shall be forfeited "by any change in 
 
 tion and the insured makes no repre- the use or condition of the building, 
 
 sentations, and the insurer chooses to including additions or repairs, or by the 
 
 assume the risk, he must be presumed, erection of other buildings, or in any 
 
 in point of law, to do so at his own other manner hy which the degree of 
 
 peril ; and when the insurer is familiar the risk is increased, unless due notice 
 
 with the property and its uses and oc- is given to the company, and a new 
 
 cupation before insuring, he is estopped agreement is entered into, " applies to 
 
 from setting up a misstatement in refer- such changes as are of a permanent 
 
 ence thereto in the application. Wythe- nature, and not to mere temporary 
 
 ville Ins. Co. v. Stultz, 87 Va. 629. An changes in the use and occupation of 
 
 insurance company, in or<ler to avoid a the premises ; hence a mere temporary 
 
 policy on the ground that the premises use of a machine for threshing grain for 
 
 were put to a use not represented when a few hours on the premises where the 
 
 the insurance was made, whereby the insured property is located will not, per 
 
 risk was increased, must show that the se, work either a forfeiture or suspen- 
 
 assured knew that such use increased sion of such policy. But if the insured, 
 
 the risk and the rate, and that he con- or one to whom ht has intrusted the 
 
 cealed it from the company. McGoni- entire custody of the property, and 
 
 gle V. Susquehanna Mutual F. Ins. Co., given full freedom in its use, should, 
 
 168 Penn. St. 1. A provision in a by doing any act or acts which one in 
 
 policy of fire insurance declaring that it the exercise of ordinary care and dili- 
 
 457 
 
§230] 
 
 INSURANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 change of use increasing the risk, the question will not be 
 whether the increase is greater or less, but whether, it is 
 material,^ though, even under such a prohibition, while the 
 insured is bound to a rigorous course of conduct in prevent- 
 ing any increase, it ought to be left to the jury whether the 
 materiality is substantial, as whether, for instance, the keep- 
 ing a jug of petroleum in one's room for medicinal purposes 
 is an occupation of the premises in a way to make them 
 
 1 Hervey v. Mut. Fire Ins. Co., 11 U. C. (C. P.) 394. 
 
 gence would not do under like circum- 
 stances, so change the use and occupancy 
 of the premises as to materially increase 
 the hazard of the insurance, the insur- 
 ance company would not be liable for a 
 loss directly resulting as a consequence 
 of such increase of risk. Adair v. South- 
 ern Mut. Ins. Co., 107 Ga. 297. Insur- 
 ance upon a tin-shop covers the making 
 of tin cans and the soldering of strips of 
 tin for roofing, this being the obvious 
 daily work of a tin-shop. Va. F. & M. 
 Ins. Go. V. Thomas, 90 Va. 658. A 
 policy on a canning factory, to cover 
 the interval after the season was ended, 
 and providing that it -should be occu- 
 pied only for storage, is not violated by 
 clearing up the premises, and building 
 a fire to empty the boiler and pipes of 
 water. Krug v. German F. Ins. Co., 
 147 Penn. St. 272. A policy insuring 
 a building while occupied as a saddlery, 
 and providing that it shall be void if 
 the risk is increased by a change of 
 occupation, is not avoided by a change 
 of occupation when the risk is not in- 
 creased. East Texas F. Ins. Co. v. 
 Kempner (Tex. Civ. App. ), 23 Ins. L. 
 J. 549. Where the policy stipulated 
 that the property was to be occupied 
 as a foundry and machine shop, and it 
 was never so used, the stipulation was 
 held a warranty, and the knowledge 
 of its breach by an agent authorized 
 only to receive applications and deliver 
 policies was held not a waiver. Sun 
 Mutual Ins. Co. v. Texarkana Foundry 
 & Machine Co. (Texas), 20 Ins. L. J. 
 458 
 
 856. Where the insured property was 
 situated in adjoining State, and the per- 
 sons insured were residents of another 
 State, but the agent of the insurance 
 company through whom the insurance 
 was effected resided near the property 
 insured, and had notice of the uses to 
 which the building was applied, his 
 knowledge is deemed that of the com- 
 pany, and it is too late, after a loss has 
 occurred, to object upon the ground 
 that the building was applied to uses 
 prohibited in the policy. Springfield 
 F. & M. Ins. Co. V. MoLimans, 28 Neb. 
 846. Where, under a policy stipulating 
 that a sprinkler " now in use" should 
 be maintained, the company accepted 
 the premiums with knowledge of the 
 fact that there was no sprinkler, this 
 was held a waiver. Milkman v. United 
 Mut. Ins. Co., 20 U. I. 10. Where 
 the defendant having insured against 
 loss by fire a threshing machine, engine, 
 and separator, " while not in use," the 
 property, which had not been used for 
 threshing for some two weeks, was 
 hauled out into the country, and left 
 standing near a farm-house, preparatory 
 to its intended use a few days later, 
 and, while standing there, the separator 
 was destroyed by a fire, which was not 
 caused by any hazard incident to the 
 actual use or operation of either the 
 engine or separator, the property was 
 held not to be " in use " within the 
 meaning of the policy. Minneapolis 
 Threshing Machine Co. v. Firemen's 
 Ins. Co., 57 Minn. 35. 
 
CH. XI.J SPECIAL PKOVISIONS OF THE CONTEACT, ETC. [§ 231 
 
 more hazardous.^ [The occupation of a portion of a "tav- 
 ern-barn " as a livery stable increases the risk and avoids 
 the policy. 2] 
 
 § 231. statement of Present Use generally no Warranty. — 
 Where the policy merely describes the property insured as 
 used or occupied for a particular purpose, and there is no 
 prohibition of a change in the use or occupation, the insured 
 will only be held to the truth of the statement at the time 
 when the insurance is effected. Such statement will not 
 be construed into a warranty that the subject-matter of in- 
 surance shall continue to be so occupied or used during the 
 currency of the policy. Nor will a change in the use or 
 occupancy of the property insured, still keeping within the 
 same character of risk, and not increasing the risk, avoid 
 the policy. If the insurers wish to guard absolutely against 
 change, they must do so by appropriate and positive stipula- 
 tion. 3(«) In Wood I). Hartford Fire Insurance Company,* the 
 insurance was upon a paper-mill, which was a special memo- 
 randum risk, with a prohibition to use for purposes classed 
 as "hazardous or extra-hazardous," and a grist-mill was 
 added to, or rather substituted for, a portion of the paper- 
 mill, but without substantially affecting the efficiency of the 
 latter. And it was held that this was not a change from a 
 paper-mill to a grist-mill, and, if it had been, as the grist- 
 mill was also a memorandum risk, it would not have avoided 
 the policy. So a dwelling-house may be used for a board- 
 
 1 Williams v. People's Ins. Co., 57 N. Y. 274. 
 
 2 [Hobby V. Dana, 17 Barb. Ill, 115.] 
 
 8 Smith V. Mecliauics' & Traders' Fire Ins. Co., 32 N. Y. 399 ; Schmidt ■■). 
 Peoria Mar. & Fire Ins. Co., 41 111. 295. But see post, §§ 231, 255. 
 4 13 Conn. 633. 
 
 (a) A clause in a policy which makes 153 Mass. 475. Representations of ex- 
 express provision for the future cannot isting facts, as the description in the 
 be done away by mere implication or policy that the insured property is a 
 inference ; but when an existing fact is dwelling-house occupied by tenants, is a 
 at variance with a clause of a policy, vital warranty of such occupancy at the 
 and is known by the insurer to be so, inception of the contract. Boyd v. Ins. 
 there may be an implication that the Co., 90 Tenn. 212. So misrepresenta- 
 clause is not insisted upon. Newmar- tions as to previous fires in an insured 
 ket Sav. Bank o. Royal Ins. Co., 150 mill are fatal. Rosebud M. Co. w.'Western 
 Mass. 374 ; Stone v. Howard Ins. Co. Ass. Co. (U. S. C. C), 25 Ins. L. J. 693. 
 
 459 
 
§ 232] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH XI. 
 
 ing-house, if the latter be not included in some class of 
 greater risk.^ Under a permitted use, an enlarged use for 
 the same purpose is not such an increase of risk as avoids 
 a policy. The increase of risk to have that effect must come 
 from some other source.^ A mere exclusion from the risk 
 is not a prohibition which works a forfeiture. Thus, where 
 a policy expressly provides that "gunpowder is not insurable 
 unless by special agreement," and enumerates gunpowder 
 amongst the extra-hazardous articles, and further provides 
 that the building insured is privileged to contain extra- 
 hazardous merchandise, gunpowder may be kept without 
 prejudice to the right to recover under the policy in case 
 of loss. The effect of the stipulation is merely to exempt 
 the insurers from liability for the gunpowder.^ 
 
 § 232. Classification of Risks ; Hazardous Goods. — As not 
 all subject-matters of insurance are equally hazardous, in- 
 surers have adopted the plan of classifying the various risks 
 which they assume into .special categories, such as not haz- 
 ardous, hazardous, extra-hazardous, specially hazardous, and 
 memorandum articles, or such as are not insurable at all, or 
 only upon special terms, upon which several classes differ- 
 ent rates of insurance are charged. It is obvious that an 
 insurance upon one class ought not, and in point of law it 
 does not, cover property in goods in another ; and the policy 
 may be, and frequently is, so drawn that if, under a policy 
 insuring specifically one class, articles, or modes of use, or 
 practices, embraced in another according to the arbitrary 
 classification of the insurers, are introduced, kept, stored, 
 or permitted, the policy becomes void; as when the policy 
 expressly provides that any particular class or classes of 
 articles shall not be kept, nor any particular practice or 
 mode of use adopted or carried on, unless specially provided 
 for. Thus, if the insurance be in terms upon "stock in 
 trade, consisting of merchandise not hazardous," the keep- 
 
 1 Rafferty v. New Brunswick Fire Ins. Co., 3 Harr. (N. J.) 480 ; post, §237. 
 
 2 Mayor, &o. v. Hamilton Fire Ins. Co. , 10 Bosw. (N. Y. Superior Ct.) 537 ; 
 Baxendale v. Harvey, 4 H. &N. (Exch.) 445. 
 
 s Duncan v. Sun Fire Ins. Co., 6 Wend. (N. Y.) 488. 
 
 460 
 
OH. XI.] SPECIAL PliOVISIOXS OF THE CONTRACT, ETC. [§ 232 
 
 ing of hazardous articles, though a part of the general stock, 
 so denominated in the memorandum, will avoid the policy, 
 since the very description of the subject-matter excludes 
 such hazardous articles. The doctrine, in such cases, is 
 well stated by Shepley, C. J., in Richards v. Protection 
 Insurance Company,^ where the policy was on "stock in 
 trade consisting of merchandise not hazardous," and where 
 the keeping of oil, tallow, and glass, enumerated as extra- 
 hazardous, as part of the stock, was held to avoid the policy. 
 And this doctrine has been recently applied in a case 
 where fireworks and other merchandise, hazardous and extra- 
 hazardous, were included in the policy, but which also 
 
 ^ 30 Me. 273. The judge said : "Four classes of hazards are named in the 
 conditions annexed to the policy, denominated not hazardous, hazardous, extra- 
 hazardous, and memorandum of special risks. The goods insured were by the 
 plaintiffs declared to lie of the first class. The goods before named were not of 
 that class, but were of the second class, denominated hazardous. (The plaintiffs 
 procured insurance 'on their stock in trade, consisting of not hazardous merchan- 
 dise.') Insurance is proposed to be made upon goods contained in these three 
 different classes at different rates of premium. The classes of hazard, and the 
 conditions of insurance annexed to the policy, form a part of the contract between 
 the parties. That contract requires mutual good faith and fair dealing. The 
 law presumes that the parties acted with intelligence. The defendants did not 
 propose to insure goods of the class denominated hazardous at the premium affixed 
 for the class denominated not hazardous. Nor did they propose to insure goods 
 composed partly of one class and yjartly of the other, at the rate of premium 
 affixed to the least hazardous. This appear-s from the language used ; for 
 ' groceries, with any hazardous articles,' are enumerated in the class of hazardous. 
 If the plaintiffs, having procured insurance on their stock in trade, consisting of 
 not hazardous articles, could have kept a stock of goods for sale composed entirely 
 of hazardous articles, and could hare recovered for a loss of them by fire, they 
 could do so only by compelling the defendants to become insurers, and to bear 
 the loss for a compensation less than the one affixed to such a class of goods, and 
 less than the one agreed upon by the parties as appropriate to such a risk. So 
 if they could have kept goods for sale composed partly of the first and partly of 
 the second class of risks, and could, after a loss of them by fire, have recovered 
 for them, the defendants would have been compelled to bear the loss for a 
 premium less than that for which they would have knowingly assumed the risk. 
 The injustice in the latter case would not be so great as in the former, but a 
 recovery would be equally unauthorized according to the terms of the contract. 
 The description of the property insured in the body of the policy, when the rate 
 of premium is thereby affected, operates as a warranty that the property is of the 
 character and class described ; and that the property is all, and not partly, of 
 that character and class. Such a warranty is in the nature of a condition pre- 
 cedent, and performance of it must be shown by the person insured before he can 
 recover upon his policy." See also Pindar v. Resolute Fire Ins. Co., 38 N. Y. 366, 
 
 461 
 
§ 233] INSUKANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 enumerated fireworks as in a different class. Thus, under 
 a policy insuring "fireworks, ordnance stores, and other 
 merchandise, hazardous and extra-hazardous," "in the sec- 
 ond class of hazards," in which were included fire-crackers 
 and matches, but putting "fireworks" in the specially haz- 
 ardous category of the third class, it was recently held in 
 New York that keeping that description of fireworks, which 
 was so specially dangerous as by the ordinance to be prohib- 
 ited storage in the city, if thereby the risk was increased, 
 and it seems if it was not, would avoid the policy. The 
 court said it could not be presumed that it was intended to 
 cover an article so specially hazardous as to be prohibited 
 storage, but only such as were permitted storage and to be 
 sold at retail. 1 And permission to keep fire-crackers does 
 not give the right to keep fireworks. Thus insurance "on 
 a stock of fancy goods and other articles in his line of busi- 
 ness," &c., and "privileged to keep ^TQ-crackers on sale," 
 does not authorize the keeping of ^XQ-works, since fireworks 
 are not included under the license to keep fire-crackers, and 
 they could not be included under the general words, " other 
 articles in his line of business," where by the terms of the 
 policy they are not covered unless specially permitted.^ 
 
 § 283. stock in Trade, such as usually kept. — • While, how- 
 ever, as we have seen in the preceding section, if the policy 
 insures only one class of articles and expressly excludes 
 other classes, the keeping of an article in the excluded class, 
 although it be usually kept with the class of goods actually 
 insured, will avoid the policy, yet if the policy describe the 
 
 1 Jones u. Fireman's Fundlns. Co., 2 Daly (N. Y.), 307, affirmed 51 N. Y. 
 318. 
 
 2 Steintaoh v. Relief Ins. Co., 13 Wall. (U. S.) 183. But in Steinbach v. 
 La Fayette Fire Ins. Co., 54 N. Y. 90, 95, which was a case upon similar facts, 
 the New York Court of Appeals referred to this case as not well considered, 
 and adhered to the settled line of decisions in that State to the contrary. And 
 this case is cited and approved hy Clifford, J., in James v. Lycoming Fire Ins 
 Co., 4 Cliff. C. Ct. 272. In Wood v. North Western Ins. Co., 46 N. Y. 421, where 
 the keeping of caniphene or " any other inflammable " liquid was prohibited, and 
 it was found that kerosene was kept, the court refused to set aside a verdict 
 .for the plaintiff, there being no proof that kerosene was inflammable, and they 
 would not assume it. 
 
 462 
 
CH. XI.] SPECIAL PROVISIONS OF THE CONTRACT, ETC. [§ 233 
 
 property, the stock insured, as such as is "usually kept in 
 a country store," this qualification enlarges the scope of the 
 policy, so that it will attach to and cover memorandum 
 articles, or any articles enumerated in the non-insured 
 classes.^ The keeping of the memorandum articles is usu- 
 ally made to avoid the policy, unless otherwise provided 
 therein. And this qualification of the description of the 
 subject-matter is equivalent to a provision in the policy 
 whereby the memorandum articles are permitted to be kept 
 and insured.^ So where the policy is upon "merchandise 
 such as is usually kept in country stores," Under such a 
 description of the risk, all articles such as can be shown to 
 be usually kept in country stores are covered and protected 
 by the policy, although they may be enumerated in the sec- 
 ond classes of risks. ^ [If fireworks are usually kept in con- 
 fectionery stores -the keeping of them will not violate a 
 policy covering the usual stock of such stores, although 
 
 1 [If a policy insures "drugs" and "such other merchandise as is usually- 
 kept in a country store," and the printed provisions except benzine unless per- 
 mission is obtained, it is competent to show that benzine is usually kept in a 
 country store, and that the general agent stated at the issue of the policy that 
 it included benzine. Oarrigan v. Insurance Co., 53 Vt. 418. When the printed 
 part of a policy of insurance on goods prohibited the keeping of saltpetre, but by 
 a written portion " all goods kept for sale in such stock " are permitted to be kept, 
 the latter was held to overcome the former ; Stout v. Commercial Union Ass. 
 Co., 11 Biss. 309, 313, 7th' Cir. Ind. 1882, 11 Ins. L. J. 688, 14 Rep. .577, dis- 
 tinguishing Steinbach v. Ins. Co., 13 Wall. 183, or trying to do so ; and even 
 the fact that gunpowder, also a prohibited article, was specially permitted 
 did not prove that it was the only prohibited article permitted. A policy on 
 « "stock of dry-goods, groceries, and merchandise usually kept in a country 
 stofe " will cover articles usually so kept, as gunpowder, although prohibited 
 by a general printed clause. But where in addition to such prohibition there 
 is a claiise allowing a specified and reasonable quantity of the article to be 
 kept, evidence is not admissible to show that country .stores usually keep a 
 larger quantity of it. Pittsburgh Ins. Co., v. Frazee, 107 Pa. St. 521. But 
 when the written part of a policy insured all goods commonly kept in a 
 country retail store against loss by fire, " except as hereinafter provided," 
 and a subsequent printed clause excepted benzine and turpentine, it was 
 held, overruling the decision qf the lower court, that the policy was avoided 
 by keeping turpentine. Lancaster Fire Insurance Company o. Lenheim, 89 
 Pennsylvania State Reports, 497, 502 ; Insurance Company v. Kroegher, 2 
 Norris, 64.] 
 
 2 Pindar v. King's County Ins. Co., 36 N. Y. 648. 
 
 ' Franklin Fire Ins. Co. v. Updegi-atf, 43 Pa. St. 350, 353. And see post, 
 §239. 
 
 463 
 
§ 233] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 they are expressly prohibited in the printed provisions. ^ (a) 
 Where the printed conditions exclude certain articles as 
 extra-hazardous, and the written description of the risk in- 
 cludes some of the articles, the writing over weighs the 
 print; but "family groceries, wines, liquors, tobacco, and 
 cigars " does not cover fireworks.^] But in the case of 
 Macomber v. Howard Fire Insurance Company,^ where the 
 policy was upon a stock in trade described as consisting 
 of "dry -goods, groceries,, hardware, crockery, glass and 
 wooden ware, Britannia and tin ware, stoves of various 
 kinds, and various other wares and merchandise," and pro- 
 vided that the use of the premises for the purpose of keep- 
 ing or storing any of the articles denominated hazardous or 
 extra-hazardous in the conditions annexed to the policy 
 should avoid the policy unless otherwise especially provided 
 for, and "groceries with any hazardous articles," "rags," 
 and other articles were enumerated as hazardous, and were 
 in fact kept upon the premises, the policy was held to be 
 void, although the excepted articles were such as were usu- 
 ally kept in such a stock in trade. Under the modern ten- 
 dency, however, to interpret liberally in favor of .the object 
 of the contract, and, in cases of doubt, strictly against the 
 insurer, it is doubtful if this case would be followed in other 
 courts except upon the same identical facts, and perhaps not 
 
 1 [PUnsky v. Germania Fire & Mar. Ins. Co., 32 Fed. Rep. 47 (Mich.), 1887.] 
 
 2 [Georgia Home Ins. Co. v. Jacobs, 56 Tex. 366.] 
 
 8 7 Gray (Mass.), 257. See also Wetherell v. City Fire Ins. Co., 16 Gray 
 (Mass.), 276, where the policy was upon a "store," and "sail-making" and 
 "confectionery" were introdaced, though prohibited. 
 
 {n) The insurer's permit to store fire- Phoenix Ins. Co. v. Flemming, 65 Ark. 
 
 works in the insured building for fifteen 54. The keeping of fireworks over the 
 
 days does not justify their retention night before the Fourth of July is within 
 
 there beyond that period, or waive any a condition of the policy avoiding it in 
 
 future forfeiture for this cause ; but at case the hazard is increased with the 
 
 the expiration of the fifteen days, the insured's knowledge, or if fireworks, 
 
 insured's failure to remove the fireworks &c. are allowed on the premises. Heron 
 
 makes the policy ipso facto void. v. Phcenix Mut. F. Ins. Co., 180 Penn. 
 
 Betcher v. Capital F. Ins. Co. (Minn.), St. 257. See Heffron o. Kittanning Ins. 
 
 29 Ins. L. J. 115; Heron v. Phoenix Co., 132 Penn. St. 580. 
 Mut. F. Ins. Co., 180 Penn. St. 257 ; 
 464 
 
CH. XI.] SPECIAL PROVISIONS OF THE CONTRACT, ETC. [§ 234 
 
 in the same court. ^ [There is, however, a case in Pennsyl- 
 vania where the policy provided that no petroleum, &c., 
 should be " had or kept " on the insured premises (the in- 
 surance being on a stock of merchandise in a common coun- 
 try store), and it was held that a charge of the lower court 
 that if petroleum was usual in the stock of that kind of a 
 store the assured could recover, was error. The court re- 
 marked that perhaps the very reason of the prohibition was 
 that such a custom existed. ^ It would be useless if such 
 goods were not so kept. And in Ohio, in case of a policy 
 on a "general stock of hardware and agricultural imple- 
 ments," evidence will not be admitted to show a custom 
 among hardware dealers in the villages of Ohio to keep 
 gunpowder and petroleum.^] 
 
 § 234. Permission strictly construed. — But nothing will 
 be allowable under such an implied permission not fairly 
 within the scope of the general words of qualification; and 
 though a policy prohibiting the use of premises for hazard- 
 ous purposes may in certain cases cover the keeping for sale 
 of hazardous articles, on the ground, by fair implication, 
 that they are included within the general stock insured, it 
 will not cover the use of such hazardous articles for lighting 
 or other like purpose, if their use be prohibited upon the 
 premises.* It is one thing to appropriate premises to the 
 keeping of a hazardous article for sale, and another to use 
 the hazardous article upon the premises for the purpose of 
 illumination or manufacture. A permission to keep kero- 
 sene or gunpowder for sale, it is obvious, cannot be fairly 
 construed into a permission to manufacture or use them upon 
 the premises, since the risks in the respective cases may 
 
 1 See Elliot v. Hamilton Mut. Ins. Co., 13 Gray (Mass.), 139 ; Whitmarsh v. 
 Conway Fire In.s. Co., 16 Gray (Mass.), 359. Insurance of a village "grocery " 
 covers liquors in tipper Canada, and the non-disclosure of the fact that liquors 
 are kept does not avoid the policy. Nicholson v. Phoenix Ins. Co., U. C. (Q. B.) 
 17 Can. L. J. 22, 1880. And s^epost, § 239. 
 
 2 [Birmingham Fire Ins. Co. v. Kroegher, 83 Pa. St. 64, 66.] 
 
 8 [Beer v. Forest City Mut. Ins. Co., 39 Ohio St. 109. See also § 238.] 
 
 * Meadu. Northwestern Ins. Co., 3 Seld. (N. Y.) 530 ; Westfall v. Hudson 
 
 River Fire Ins. Co., 2 Kern. (N. Y.) 289, reversing s. o. 2 Duer (N. Y. Superior 
 
 Ct), 490. 
 
 VOL. I. — 30 465 
 
§ 236] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 widely differ. ^ [Permission in a policy to keep "hazard- 
 ous " goods does not permit the keeping of goods especially 
 or extra hazardous. It is not used in a general sense, but is 
 a word well known to be subdivided in policies. ^ If a policy 
 prohibits the keeping of gasoline or benzine but authorizes 
 the use of gasoline gas, the latter authority does not permit 
 the keeping of gasoline or benzine on the premises for any 
 other purpose than the manufacture of gasoline gas.^] 
 
 § 235. Hazardous Goods defined. — Under the prohibition 
 of the storage of hazardous articles, a distinction has been 
 taken between those articles which are deemed hazardous by 
 reason of their greater liability to injury in case of fire, and 
 those which increase the risk of fire ; and it has been said 
 that it is only the latter class of articles which can be rea- 
 sonably regarded as coming within the prohibition, so as to 
 avoid the policy.* 
 
 § 236. Classification of Risks ; Hazardous Trades. — If the 
 terms of the policy classifying the risks are defined in the 
 policy itself, this will usually control the meaning. But if 
 at the time of issuing the policy any clause is inserted which 
 is inconsistent with the definition, or renders it doubtful 
 whether it ought to apply, the doubt will be resolved in 
 favor of the insured. For example, a policy provides in 
 writing, after a description of the premises, that they are 
 privileged to be occupied as hide, fat-melting, slaughter, 
 and packing houses, and stores and dwellings, and for other 
 extra-hazardous purposes. In the second class of risks are 
 included "hazardous No. 2," "extra-hazardous No. 2," 
 "extra-hazardous No. 8," and "specially hazardous." The 
 occupations specially privileged, such as "hide, fat-melting, 
 slaughter, and packing houses, &c.," do not fall within any 
 definition of "extra-hazardous," but do come within the 
 definition of "specially hazardous," to which class distil- 
 leries belong, and the building insured was used as a dis- 
 
 1 And see post, § 237. 
 
 2 [Pindar v. Continental In.s. Co., 38 N". Y. 364.] 
 
 8 [Liverpool, &c. Ins. Co. v. Gunther, 116 IT. S. 113, 130.] 
 * Eathbone v. City Fire Ins. Co., 31 Conn. 193. 
 
 466 
 
CH. XI.] SPECIAL PKOVISIONS OF THE CONTEACT, ETC. [§ 237 
 
 tillery. Upon these facts, and on the ground that where 
 there is an inconsistency between the written and printed 
 portions of the policy, the former must prevail, it was held 
 that the words in the policy, " or other extra-hazardous pur- 
 poses," must be taken to mean purposes of the same class, 
 and those like fat-melting houses, &c. , as if they read " other 
 like purposes ; " and as these were included in " specially 
 hazardous," and distilleries were included in the same class, 
 the use of the building as a distillery was permissible under 
 the policy, though not included in the definition of /'extra- 
 hazardous " risks, and this term as used in the policy must 
 be qualified accordingly as applicable to the particular 
 case.^ 
 
 § 237. An additional Use of the Same or Lower Grade of 
 those prohibited is fatal. — But it has been held that the right 
 to use a building for one hazardous or extra-hazardous pur- 
 pose does not carry with it the right to use it for another 
 additional and different purpose, though it be in the same 
 class of risks. While a substitution of one use for another 
 in the same class of risks would not increase the risk, an 
 additional use or business would have that effect. ^ [If a 
 
 1 Reynolds v. Com. Fire Ins. Co., 47 N. Y. 597. And see post, § 239, note. 
 
 2 Leeu. Howard Fire Ins. Co., 3 Gray (Mass.), 583, .592; Wash. Mut. Ins. 
 Co. V. Merch. & Manuf. Mut. Ins. Co., 5 Ohio St. 450, reversing s. c. 1 Handy 
 (Cincinnati Superior Ct.), 185. But see ante, § 231. In the case from Massa- 
 chusetts, the designated property was "a pail factory, chair-shop, saw-mill, and 
 stores connected therewith," with a provision that the property should not he 
 " applied or used to or for any trade, husiness, or vocation enumerated in the 
 class of hazards," which was thus expounded by Bigelow, J. : " It is conceded 
 that the premises insured, in addition to the purposes specified in the policy, were, 
 at the time of the fire, appropriated to carrying on a grist-mill. This was a dis- 
 tinct use of one of the buildings insured, not assented to by the defendants, for 
 an occupation included in the classes of hazards, annexed to the policy, as a 
 ' special hazard. ' It was therefore a violation of the express stipulation in the 
 policy, and by its terms avoids the contract. Nor does it at all affect the result, 
 that this additional unauthorized use of the premises was for a purpose compre- 
 hended within the same class of hazards as that which was specified in the policy, 
 and originally covered by the insurance. The manifest purpose of this stipulation 
 was to prevent any use of the premises for an occupation or business included in 
 any of the classes of risks denominated ' hazardous, extra-hazardous, or sj^ecial,' 
 without the express sanction of the company in writing. It was not intended to 
 limit the assured, in the use of his property, to the same kind of risks as those 
 specified in the policy, and to allow him to change the mode of its occupation, or 
 
 467 
 
§ 238] INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 policy on a spool-facbory is to be voided by the exercise of 
 any business denominated hazardous not specially allowed, 
 the manufacture of excelsior (a hazardous business) will be 
 fatal, although it appears by the evidence to be less hazard- 
 ous than the making of spools, and did not increase the 
 risk.i] 
 
 § 238. Effect of General Description of the Stock. — In Mas- 
 sachusetts^ it is also held,, contrary to the general current of 
 the authorities elsewhere,^ that an insurance on a building 
 " occupied as a provision and grocery store " becomes void by 
 keeping certain prohibited hazardous articles, though within 
 the usual line of goods kept in such a store, if elsewhere in 
 the policy there is a provision against keeping any articles 
 denominated hazardous in the classified risks. ^ This case 
 
 appropriate the premises to additional uses of the same grade of hazards, at his 
 pleasure. Such is not the import of the language used in the policy, nor would 
 such a construction of it be just or reasonable. To prevent the accumulations of 
 hazardous occupations in the same premises, without their assent, was the object 
 which the defendants sought to accomplish by this agreement. Each distinct use 
 of a building insured for a purpose or business of a hazardous nature might, in 
 the opinion of the insurers, increase the risk by fire ; and this might be so, 
 whether the additional use came within the same kind of hazards as that specified 
 in the policy, or belonged to a higher or lower class. " 
 
 1 [Sovereign Fire Ins. Co. v. Moir, 14 Can. S. C. E. 612; 6 Russ. & Geld. 
 (N'ova Sco.) 502.] 
 
 2 Whitmarsh o. Charter Oak Fire Ins. Co., 2 Allen (Mass.), 581 ; citing the 
 last case and also Macoraber u. Same, ante, § 233. In Whitmarsh v. Conway 
 Fire Ins. Co., 16 Gray, 359, the policy expressly covered goods usually kept in a 
 country store. 
 
 s See post, § 239. 
 
 ' Bigelow, C. J., said in 2 Allen, 582 : "The policy declared on contains a 
 stipulation that it shall cease and be of no force or effect if the assured shall keep 
 on the premises any of the articles, goods, wares, or merchandise denominated 
 hazardous, or extra-hazardous, or included among the special hazards enumerated 
 in the memorandum annexed to the policy. It is admitted that oil and sulphur, 
 which are expressly named as hazardous articles, and matches, which are deemed 
 extra-hazardous, and all of which subject the building and its contents to an in- 
 creased rate of premium, were kept on the premises at the time of the fire. This 
 was a clear violation of the stipulation in the contract of insurance, and put an 
 end to it ex vi termini. It is m-ged, on behalf of the plaintiff, that the general 
 description in the application and the policy of the purpose for which the build- 
 ing was occupied, 'as a provision and grocery store,' gives the right by implica- 
 tion to' keep these hazardous and extra-hazardous articles, as a part of the stock 
 appertaining to .such business. But there are two difficulties in the way of adopt- 
 ing such an interpretation of the contract, which are insurmountable. In the 
 first place, it militates with the clear and unambiguous terms of the agreement. 
 
 468 
 
CH. XI.] SPECIAL PEOVISIONS OF THE CONTRACT, ETC. [§ 239 
 
 has been followed in Virginia,^ where it was held that in- 
 surance upon a " stock of goods such as is usually kept in a 
 grocery store" did not cover "burning fluid," that being 
 elsewhere in the policy excepted from the risk. In Tennes- 
 see, also, the doctrine has been held ; but the policy prohib- 
 ited " vending, " and provided that " the use of general terms, 
 or anything less than a distinct specific agreement, clearly 
 expressed and indorsed on the policy, shall not be construed 
 as a waiver of any written or printed condition therein. "^ 
 So in Kansas, where the policy provided that no excepted 
 article should be kept, unless upon " special consent in writ- 
 ing indorsed on the policy, naming each article specially. " ^ 
 § 239. VThat Keeping or Use avoids the Policy ; General 
 Written Description controls the Printed Clauses. — And it 
 
 Hazardous and extra-hazardous articles are expressly prohibited, ' if not specially ' 
 provided for.' In the face of this language, it is impossible to hold that a general 
 description of the building, and the purpose for which it is occupied, will allow 
 the assured to keep articles of a dangerous and inflammable nature, which are not 
 necessarily comprehended within a fair and reasonable interpretation of the gen- 
 eral words used. In the next place, we cannot know, judicially, in the absence 
 of any proof or agreement of the parties, that such articles as oil, sulphur, and 
 matches are usually or properly kept in stores occupied for the sale of groceries 
 and provisions." This case may have been well decided on the failure of proof; 
 but upon the other point it certainly gives the insurer instead of the insured the 
 benefit of a doubt ; and, if carried to its logical results, would permit insurers to 
 take their premiums upon a building covering a stock of goods, the keeping of 
 every article of which is fatal to the very policy which professes to insure. No 
 one can suppose that any person seeking insurance would ever intentionally make 
 such a contract as that, and it is c^uite clear that if there are any insurers who 
 would, they ought not to receive any encouragement in a court of justice. If they 
 would, it would be a gross fraud. If they would not, this construction need- 
 lessly makes for the parties a, contract which neither intended to enter into. 
 Suppose a building occupied as a livery-stable is insured with a prohibition of 
 certain hazardous articles, amongst which horses, carriages, and hay are enumer- 
 ated. See ante, § 174 ; Van Schoick v. Niagara Ins. Co., 68 N. Y. 434 ; Collins 
 V. Farmville Ins. Co., 79 N. C. 279 ; Washburn v. Miami, &c. Ins. Co., C. Ct. 
 (Ohio), 2 Fed. Rep. 633. Such a provision against the use or keeping of hazard- 
 ous articles does uot apply to a condition requiring a statement of the nature of 
 the article insured, or to a condition that in case of other insurance only » pro- 
 portionate part shall be recovered, or to a condition requiring notice if the premises 
 shall become vacant, — there being conditions having special reference to hazard- 
 ous risks. 
 
 1 Portsmouth Ins. Co. v. Brinckley (Va.), 2 Ins. L. J. 842. 
 
 ° People's Ins. Co. v. Kuhn, 12 Heisk. 515; 1 Central L. J. 214, and note by 
 Hon. J. 0. Pierce. 
 
 ' Cobb V. Insurance Co. of N. A., 11 Kans. 93. 
 
 469 
 
§ 239] INSUEANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 may be stated as a general proposition that where, in the 
 designation of the subject-matter of insurance, a stock of 
 goods, or property embarked and used in a particular trade 
 or manufacture, or any branch of business, is stated to be 
 insured without qualification or exception, the policy covers 
 all such special articles of merchandise, processes, practices, 
 subordinate trades, and manufactures as are necessarily or 
 usually included in and incidental to the general subject- 
 matter of insurance, notwithstanding the policy may pro- 
 vide, by a general printed stipulation, that if the premises 
 shall be used for, or appropriated or applied to, the storing 
 or vending of articles, or the carrying on of any trade, voca- 
 tion, or business denominated hazardous, extra-hazardous, 
 or enumerated in the memorandum of special rates, the pol- 
 icy shall be void ; and such included and incidental matters 
 are within the excepted specifications. This rule is based 
 upon the presumed intent of the parties that the entire sub- 
 ject-matter as it is, and as it must necessarily exist, if it 
 exist at all, with all its incidents and without essential 
 changes, is to be protected,^ and upon the further presump- 
 tion that the written special description of the particular 
 subject-matter, wherever inconsistent with special printed 
 clauses, must control.^ And this general proposition has 
 been established and illustrated by numerous adjudged 
 cases. ^ Thus, though the trade of a carpenter is excepted 
 
 1 Delonguemare v. Tradesmen's Insurance Company, 2 Hall (N. Y. Superior 
 Ct.), 589. 
 
 2 Jefferson Ins. Co. v. Cotheal, 7 Wend. (N. Y. ) 72; -Goss v. Citizens' Ins. 
 Co., 18 La. An. 97 ; Benedict v. Ocean Ins. Co., 31 N. Y. 389 ; Phoenix Ins. Co. 
 V. Taylor, 5 Minn. 492 ; Citizens' Ins. Co. v. McLaughlin, 53 Pa. St. 485 ; Cush- 
 man v. North Western Ins. Co., 34 Me. 487 ; Moore v. Protection Ins. Co., 29 
 id. 97 ; Leggett o. Mtna Ins. Co., 10 Rich. Law (S. C), 202 ; Archer v. Mer- 
 chants' Manuf. Ins. Co., 43 Mo. 434 ; James v. Lycoming Fire Ins. Co., 4 Cliif. 
 C. Ct. (Mass.) 272. 
 
 » [A policy on a "general store" covers such quantities of gimpowder and 
 petroleum as can he shown to he customarily kept in such store. Barnard v. Nat. 
 F. Ins. Co., 27 Mo. App. 26. In Kentucky, however, it is held that where the 
 printed conditions ezclude, gunpowder, the mere fact that it is usually kept as 
 part of such a stock as is insured, or that the agent told the insured he could 
 keep gunpowder, cannot estop the company. The rule against parol evidence 
 applies. Western Ass. Co. v. Eector, 85 Ky. 294.] 
 
 470 
 
CH. XI.] SPECIAL PROVISIONS OF THE CONTEACT, ETC. [§ 239 
 
 as a hazardous trade, yet as in the manufacture of china a 
 carpenter is usually employed in the factory, and works with 
 bench and tools in making shelves, mouldings, boxes, and 
 racks, in furtherance of the general purpose of the business, 
 such employment will not avoid a policy issued " on build- 
 ings occupied as a china factory, and on stock finished and 
 unfinished therein." Nor is the employment of a carpenter 
 for making repairs "carrying on the trade" of a carpenter.^ 
 But a keeping for sale, as of saltpetre by a butcher, may be 
 fatal, while the keeping for use is permissible.^ 
 
 So an insurance of a " printing business " includes all that 
 is essential in conducting such business ; and if camphene is 
 a customary and necessary article used in such business, the 
 keeping of that article is permissible under the policy, 
 though it state that " the company will not be liable for a 
 loss by fire occasioned by camphene or other inflammable 
 fluid," and it appear that the fire was occasioned by the 
 accidental dropping of a match into a pan of camphene while 
 in use.^ And the same is true under a like insurance and a 
 similar cause of the loss, where the policy provided that 
 "camphene, spirit, gas, or burning fluid cannot be used in 
 the building where insurance is effected, unless permission 
 for such use be indorsed in writing on the policy, and is 
 then to be charged an extra premium," though no such per- 
 mission was indorsed and no extra premium paid. The use 
 of camphene thus prohibited was held to be its use for the 
 purposes of illumination, and not a use in the processes of 
 the business.* To take benzine upon the premises for the 
 
 1 Delonguemare u. Tradesmen's Ins. Co., 2 Hall (N. Y.), 589; Lounsbury u. 
 Protection Ins. Co., 8 Conn. 459 ; Sims v. State Ins. Co., 47 Mo. 64 ; West- 
 chester Fire Ins. Co. v. Foster, 8 Ins. L. J. 596. 
 
 2 Commercial Ins. Co. v. Mehlman, 48 111. 313. 
 
 " Harper v. City Ins. Co., 22 N. Y. 441 (see post, § 415), affirming s. c. 1 Bosw. 
 (N. Y. Superior Ct.) 520 ; Steinbach v. Lafayette Fire Ins. Co., 54 N. Y. 90, 95 ; 
 Hall V. Ins. Co. of N. A., 58 id. 292. 
 
 * Harper v. Albany Mut. Ins. Co., 17 JT. Y. 194. The keeping of cam- 
 phene for sale was also prohibited in the policy. Ditwiller v. Phoenix Fire Ins. 
 Co., 7 N. Y. (Sup. Ct.) 530. But in Putnam v. Com. Ins. Co., C. Ct. (N. Y.), 
 23 Alb. L. J. 239, a like prohibition of keeping or usirg naphtha was held to ad- 
 mit of its use for illumination. See also Buchanan v. Exchange Ins. Co. , 61 N. Y. 
 26 ; Wheeler v. American, &c. Ins. Co., Ct. of App. (Mo.), 8 Ins. L. J. 318. 
 
 471 
 
§ 239] INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 purpose of cleaning the machinery is not " to keep and have " 
 it there, which words are intended to prevent permanent or 
 habitual storage of the articles. ^ So " stock in trade " of a 
 furniture dealer covers paints, oils, and varnishes used to 
 finish, though in answer to an inquiry it was stated that no 
 explosive or highly inflammable matter was kept on the 
 premises. 2 So a policy issued upon "stock as rope manu- 
 factures " or " flax factory " covers the business of rope-mak- 
 ing, though that business isexcluded as specially hazardous.^ 
 But a "store house" cannot be used for hackling hemp, and 
 spinning it into rope yarn.* 
 
 So insurance " as a manufacturer of brass clock works " 
 permits the use of all such articles as are ordinarily em- 
 ployed in that manufacture, and the keeping them on hand, 
 and even the making them for that purpose, if such be the 
 ordinary course of the business, although the use or keeping 
 of such articles be prohibited by the printed terms of the 
 policy as extra-hazardous.^ So where the written portion 
 of the policy insured a steam-engine, but the printed condi- 
 tion excepted losses " caused by or consequent on the burst- 
 ing or collapsing of a steam-boiler or steam -pump," it was 
 
 1 Hears v. Humtoldt Ins. Co. (Pa.), 9 Ins. L. J. 139. In Morse v. BuflFalo 
 Fire & Marine Insurance Company the use or keeping of "campheue, spirit, gas, 
 naphtha, benzine or benzole, chemical, crude, or refined coal or earth oils," 
 was prohibited ; and it was held that, applying the maxim noscitur a sociis, only 
 those refined oils that were inflammable, like naphtha, &c., and equally danger- 
 ous, were prohibited, and that kerosene, not being of such a dangerous charac- 
 ter, was permitted. Whether a given article not specified in the policy is 
 within the scope of the term " inflammable " or " explosive," or has any other 
 special quality, is for the jury. Willis v. Germania, &c. Ins. Co., 79 N. C. 285 ; 
 Wood ;;. North Western Ins. Co., 46 N. Y. 421 ; Putnam v. Com. Ins. Co., 0. Ct. 
 (N. Y.), 23 Alb. L. J. 239 ; Hicks v. Empire Ins. Co. (Mo.), St. Louis Ct. of 
 App., 8 Ins. L. J. 319. So if the place be a " building," or the process a " manu- 
 facturing." Stovall V. Fireman's Ins. Co. (Md.), Sup. Ct. Bait., 9 Ins. L.J. 160. 
 A building fifty feet from another cannot be said to be " contiguous." The term 
 implies close proximity. Arkell v. Commerce Ins. Co., 69 N. Y. 191. 
 
 2 Haley v. Dorchester Fire Ins. Co., 12 Gray (Mass.), 546. 
 
 8 Wall V. Howard Ins. Co., 14 Barb. (N. Y. ) 383. It seems that " hackling 
 hemp and spinning it " is not " rope-making." Ibid. ; Aurora Fire Ins. Co. v. 
 Eddy, 55 111. 213, 222. 
 
 * Wall !). East River Ins. Co., 7 N. Y. 370. 
 
 5 Bryant v. Poughkeepsie Mut. Ins. Co., 21 Barb. (N. Y.) 154 ; s. c. 17 N. Y. 
 200. 
 
 472 
 
CH. XI.] SPECIAL PROVISIONS OF THE CONTRACT, ETC. [§ 239 
 
 held that, there being a repugnancy between the written and 
 printed portions of the policy, the written portion must 
 prevail.^ (a) 
 
 So " goods usually kept in a country store " covers clean 
 white cotton rags, it being shown that such rags usually 
 form part of the stock of country stores, though in the appli- 
 cation, which was made part of the contract, the question 
 whether " cotton or woollen waste or rags " were kept in or 
 near the premises was answered in the negative.^ (6) So a 
 policy on "such goods as are kept in a general retail store, "^ 
 or "the usual variety of a country store,"* covers such an 
 
 1 Hayward v. North Western Ins. Co., 19 Abb. Pr. (N. Y.) 116. But see 
 Hayward v. Liverpool, &c. Ins. Co., 2 Abb. App. Dec. 349 ; Evans •.-. Columbian 
 Ins. Co., 44 N. Y. 146. 
 
 2 Elliot I). Hamilton Mut. Ins. Co., 13 Gray (Mass.), 139. This case, how- 
 ever, was rather one of representation, and turned upon the point that " cot- 
 ton or woollen waste or vags " referred to waste or oily rags, such as are easily 
 inflammable, rather than clean white rags. 
 
 8 Phcenix Ins. Co. ... Taylor, 5 Minn. 492 ; ante, § 233. 
 
 4 Whitmarsh v. Conway Fire Ins. Co., 16 Gray (Mass.), 359. 
 
 (a) If benzine is insured in writing 
 in a policy, as part of a merchant's 
 stock, such written clause prevails over 
 a printed clause in the policy forbidding 
 it to be kept. Phoenix Ins. Co. v. 
 riemming, 65 Ark. 54; Russell o. 
 Manufacturers' & Builders' F. Ins. Co., 
 50 Minn. 409 ; see also Faust v. Ameri- 
 can F. Ins. Co., 91 Wis. 158; Boyd 
 V. Mississippi Home Ins. Co., 75 Miss. 
 47; Maril v. Conn. F. Ins. Co., 95 
 Ga. 604 ; supra,^ 144 D, and note (a). 
 (b) So under a, policy upon goods 
 "such as are usually kept in country 
 stores," and providing in print that it 
 shall he void if benzine and other in- 
 flammable substances are kept without 
 consent, the insured may prove that his 
 goods were such as are usual in country 
 stores. Tubb v. Liverpool, &o. Ins. 
 Co., 106 Ala. 651. 
 
 The knowledge and assent of the in- 
 surer's local agent as to the erection of 
 a gasoline plant on the insured property 
 after the delivery of the policy, and the 
 failure of the insurer to cancel the 
 
 policy, do not limit the insurer's rights 
 to insist upon a promissory warranty as 
 to gasoline. West End Hotel & Land 
 Co. V. American F. Ins. Co., 74 Fed. 
 Rep. 114 ; see Laclede Fire-Brick 
 Manuf. Co. v. Hartford, &c. Ins. Co., 
 60 id. 351. So the mere knowledge of 
 the insurer that a promissory warranty 
 that a clear space of one hundred feet 
 shall be maintained between the insured 
 property and any woodworking or 
 manufacturing establishment, is not 
 observed, and its failure to object 
 thereto, do not avoid a forfeiture for 
 this cause. Petit v. German Ins. Co., 
 29 Ins. L. J. 255 ; see Michigan Shingle 
 Co. V. State Inv. & Ins. Co., 94 Mich. 
 389 ; Collins o. North British Merc. 
 Ins. Co. (Mich.), 76 N. W. 487 ; Mer- 
 chants' Ins. Co. u. New Mexico Lumber 
 Co., 10 Col. App. 223; Liverpool, &c. 
 Ins. Co. V. Farnsworth Lumber Co., 72 
 Miss. 555 ; McCormick v. Pioyal Ins. 
 Co., 163 Penn. St. 184; James v. 
 Ins. Co. of North America, 90 Tenn. 
 604. 
 
 473 
 
§ 239] INSDEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 amount of gunpowder, matches, or other hazardous articles 
 as is usually kept for sale in such a store, though excepted 
 by the printed condition of the policy from being deposited, 
 stored, or kept. [Evidence of the usage of merchants may 
 be introduced to show that gunpowder comes within the fair 
 and understood meaning of the words used to describe the 
 risk as " general stock of merchandise, " or " dry goods and 
 groceries."^] "Oils and other spirituous liquors " may be 
 kept by a "grocer," the business of a grocer not being spe- 
 cified in the memorandum of excepted risks, though the spe- 
 cific articles are.^ So a policy on a stock of "dry goods" 
 covers cotton in bales, if ordinarily a portion of such a 
 stock, though the latter are enumerated as extra-hazardous.^ 
 And it seems that a housekeeper may keep such articles as 
 are incidental to house-keeping.* But gunpowder is not 
 included in a "general stock of iron and hardware,"^ nor is 
 "hat bleaching" any part of the dry-goods business.® In- 
 surance on a " steam-flouring mill " covers and permits a 
 corn-mill in connection with a kiln for drying c'orn meal, if 
 they are a usual or appropriate part of the business insured.' 
 [When a policy insured against fire on a photographer's 
 stock, it was held to cover such materials as were neces- 
 sarily and ordinarily used in that business, although by the 
 printed clause of the policy the keeping or use of such mate- 
 rials was prohibited.^] But the introduction of coopering 
 into an unused flour-mill and a prosecution for months of 
 the business are an appropriation to another purpose, and, 
 if it increases the risk, avoids the policy.^ Nor does the 
 insurance of a stock of " cabinet wares " permit the use of 
 
 1 [Liverpool, &c. Ins. Co. v. Van Os, 63 Miss. 431, 442.] 
 
 2 New York Equitable Ins. Co. v. Langdon, 6 Wend. (N. Y.) 623. 
 
 3 Moore v. Prot. Ins. Co., 29 Me. 97 ; Germania Fire Ins. Co. v. Francis, 52 
 Miss. 457 ; Collins v. Farmville Ins. Co. (N. C), 8 Ins. L. J. 453. 
 
 * Phcenix Ins. Co. v. Slaughter, 12 Wall. (U. S.) 404; Aurora Fire Ins. Co. 
 V. Eddy, 55 111. 222 ; Reaper City Fire Ins. Co. v. Jones, 62 111. 458. 
 6 Mason v. Hartford Fire Ins. Co., 29 U. C. (Q. B.) 585. 
 6 Merrick v. Provincial Ins. Co., 14 U. C. (Q. B.) 439. 
 ' Wash. Mut. Ins. Co. v. Merch. & Manuf. Ins. Co., 5 Ohio St. 450. 
 
 8 [Hall V. Ins. Co. of N. A., 58 N. Y. 292, 294.] 
 
 9 Harris v. Columbiana Mut. Ins. Co., 4 Ohio St. 285. 
 
 474 
 
CH. XI.J SPECIAL PROVISIONS OF THE CONTRACT, ETC. [§ 239 A 
 
 the premises in putting chairs together, the parts of which 
 are elsewhere manufactured, nor the use of alcohol, paint, 
 and varnish in the process, the policy prohibiting any trade 
 or occupation and the keeping of such articles. Such a pol- 
 icy covers only finished articles, and not at all any process 
 of manufacture or completion. ^ Making brooms in a build- 
 ing does not constitute it a manufactory, nor does the grind- 
 ing of corn in it necessarily make it a mill. The words are 
 to be taken in their common signification as describing a 
 certain kind of property, commonly regarded as a mill or 
 manufactory.^ So where the condition was that "applica- 
 tions for insurance on manufactories where steam is used 
 must be approved at the head office," it was held not to apply 
 to a vacant distillery, which it was not contemplated to put 
 in operation.^ And, generally, if the use, or trade, or 
 article kept on storage or for sale, is not incidental to that 
 which is the subject-matter o£ insurance, the policy not only 
 does not cover it, but is void.* 
 
 [§ 239 A. Gasoline ; Petroleum ; Gin ; Turpentine. — Light- 
 ing with gasoline is not devoting the premises to a more 
 hazardous business.^ A prohibition against keeping petro- 
 leum, or " refined coal and earth oils " is broken by keeping 
 gasoline.^ (a) 
 
 1 Appleby v. Astor Ins. Co., 54 N. Y. 253. 
 
 2 Franklin Fire Ins. Co. a. Brook, 57 Pa. St. 74. 
 
 * Rowe V. London, &c. Ins. Co., 12 Grant's Ch. (IT. C.) 311. 
 
 * As to property covered by policy, see post, § 420. 
 
 = [Mut. Fire Ins. Co. u. Coatesville Shoe Factory, 80 Pa. St. 407.] 
 6 [King's Co. Fire Ins. Co. i;. Swigert, 11 Brad. 590.] 
 
 (a) In the clause of a policy provid- 54 Kansas, 732. A condition of a fire 
 
 ing that it shall be void if gasoline " be policy upon a furniture factory against 
 
 kept, used, or allowed " on the premises, benzine being kept, used, or allowed on 
 
 the word "allowed" means "allowed the premises is not broken by such 
 
 to be kept or used." London & L. Fire keeping and use there of benzine as is 
 
 Ins. Co. V. Fischer, 92 Fed. Rep. 500, necessary and customary in the business 
 
 502 ; see McFarland v. St. Paul F. & of manufacturing furniture, or by the 
 
 Ins. Co., 46 Minn. 519. The policy is occasional use of it in small quantities, 
 
 avoided for this cause when the fire is Faust v. American F. Ins. Co., 91 Wis. 
 
 caused by gasoline kept by a third per- 158 ; Davis v. Pioneer Furniture Co., 
 
 son in the insured building with the 102 Wis. 394 ; Lancaster Silver Plate 
 
 insured's express or implied consent. Co. v. National F. Ins. Co., 170 Penn. 
 
 German F. Ins. Co. v. Commissioners, St. 151 ; Wheeler i'. Traders' Ins. Co., 
 
 475 
 
§ 239 A] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 Although among the articles forbidden by a policy on a 
 "manufacturing establishment," if petroleum is kept and 
 used to lubricate the machinery in a reasonable and proper 
 manner, and it is shown to be an appropriate and customary 
 article for such purposes, the policy is not broken. ^ When 
 the assured supposed that he was using "lard and sperm oil " 
 as per the policy, the mere fact that some petroleum was 
 used in compounding it unknown to him would not be a 
 breach of the condition^ allowing only lard and sperm oil 
 as lubricators, if in fact the petroleum mixture was equally 
 
 1 [Carlin v. West Ass. Co., 57 Md. 515, 529.] 
 
 2 [Copp V. German American Ins. Co., 51 Wis. 637, 641.] 
 
 62 N". H. 450 ; Ran v. Westchester F. 
 Ins. Co., 55 N". Y. S. 459 ; Hanover F. 
 Ins. Co. 0. Stoddard, 52 Neb. 745; 
 Bentley v. Lumbermen's Ins. Co., 191 
 Penn. St. 276. So insurance upon an 
 uncompleted building authorizes its use 
 in any common business to which its 
 construction is adapted, and a policy 
 which merely prohibits the storing of 
 dangerous articles therein does not pro- 
 hibit keeping them for sale in such 
 business. Renshaw v. Missouri State 
 Mut. F. & M. Ins. Co., 103 Mo. 595, 
 605 ; Phoenix Ins. Co. u. Flemming, 
 65 Ark. 641. The single negligent act 
 of buildiug a stove fire by adding a half- 
 pint of kerosene oil, whereby the build- 
 ing is destroyed, is not an " increase of 
 hazard." Angler v. Western Ass. Co. , 
 10 So. Dak. 82 ; 66 Am. St. Rep. 684, 
 691, and extended note. See White v. 
 Royal In.=i. Co., 149 N. Y. 485. The 
 word " kept," as used in a policy of in- 
 surance which provides that it shall be 
 void if certain oils and burning fluids 
 shall be kept on the premises, implies 
 a use of the premises as a place of de- 
 posit for the prohibited articles for a 
 considerable time, and where, while a 
 naphtha torch was being used to burn 
 off the old paint preparatory to repaint- 
 ing, the building caught fire and was 
 entirely consumed, the question was 
 whether such a change of use, increas- 
 ing the risk with the agency and consent 
 
 476 
 
 of the insured, was an alteration of 
 " the situation or circumstances affect- 
 ing the risk " within the meaning of the 
 policy, it was held, that, as the change 
 had existed continuously during the 
 working hours of every day for nearly a 
 month, and the work was not nearly 
 done when it was iuterrupted by fire, 
 the change of condition was so long con- 
 tinued as to amount to a change in ' the 
 situation or circumstances affecting the 
 risk." First Congregational Church v. 
 Holyoke Mut. F. Ins. Co., 158 Mass. 
 475. See Smith v. German Ins. Co., 
 107 Mich. 270. As to restrictions upon 
 the use of " dangerous or inflammable 
 substances," such as kerosene or chemi- 
 cal oils, camphene, &o., see also Lancas- 
 ter Silver Plate Co. v. Manchester F. 
 Ass. Co., 170 Penn. St. 166 ; Renshaw 
 V. Missouri State Mut. F. & M. Ins. 
 Co., 103 Mo. 595; 23 Am. St. Rep. 
 904, and note ; Maril v. Conn. F. 
 Ins. Co., 95 6a. 604 ; Grand Rapids 
 Hydraulic Co. v. American F. Ins. Cq., 
 93 Mich. 396; Pool v. Milwaukee 
 Mechanics' Ins. Co., 91 Wis. 530 ; 
 Snyder v. Dwelling-House Ins. Co., 69 
 N. J. L. 544 ; 59 Am. St. Rep. 625, and 
 note. As to portable engines, see Far- 
 mers' Mut. ¥. Ins. Co. V. Schaeffer, 82 
 Md. 377 ; Morris v. Farmers' Mut. F. 
 Ins. Co., 63 Minn. 420 ; Davis v. West- 
 ern Home Ins. Co., 81 Iowa, 496. 
 
CH. XI.J SPECIAL PEOVISIONS OF THE CONTEACT, ETC. [§ 239 B 
 
 as good and safe as pure lard and sperm oil. Where the 
 policy grants the use of kerosene for lamps to be filled by 
 daylight only, the drawing of the oil by lamplight to loan 
 to a neighbor, causing an explosion, avoids the policy.* 
 Where a policy provided that kerosene might be used for 
 light in dwellings, and kept for sale in stores, and where it 
 appeared that a kerosene lamp was kept burning in the store 
 during the night, and that the clerk and proprietor slept in 
 a back room of the store, the policy was held void, the loss 
 being occasioned by the said lamp.^ The said use of the 
 store did not constitute it a dwelling so as to escape the 
 clause of the policy prohibiting the use of kerosene in 
 the store. The court will not judicially recognize that gin 
 and turpentine are " inflammable liquids. " ^] 
 
 [§ 239 B. Gunpowder; Fireworks, &c. — Where the in- 
 sured is allowed to keep only seventy-five pounds of gun- 
 powder for sale, the mere casual or accidental presence of 
 more will not avoid the policy.* Whether "gunpowder" 
 includes blasting powder, qucere.^ A policy which forbids 
 nitroglycerine, excludes dynamite and giant powder.^ Where 
 the policy insured " goods and groceries " and provided that 
 no gunpowder should be kept "in or upon the premises" in- 
 sured, and that no camphene, or burning fluid or other in- 
 flammable liquids should "be kept in any building hereafter 
 insured in this company," it was held that "premises" and 
 " building " did not refer to " goods and groceries " but to 
 real estate, and if gunpowder and so forth were kept on 
 premises not insured the policy on the "goods" was not 
 affected.' The keeping of fireworks is not a breach of the 
 condition against keeping gunpowder on the premises.^ 
 
 1 [Gunther v. Liverpool, &c. Ins. Co., 34 Fed. Eep. 501 (N. Y.), 1888.] 
 
 2 [Cerf V. Home Ins. Co., 44 Cal. 320, 322.] 
 
 8 [Mosley v. Vt. Mut. Fire Ins. Co., 55 Vt. 142.] 
 
 * [Insurance Co. v. Hughes, 10 Lea (Tenn.), 46L The proof was conflicting 
 whether there was a little more or a little less than seventy-five pounds of powder 
 in the store. It does not appear that the powder occasioned the fire.] 
 ^ [Insurance Co. v. Hughes, 10 Lea (Tenn.), 461, 467-468.] 
 6 [Sperry v. Springfleld Fire & Mar. Ins. Co., 26 Fed. Rep. 234 (Col.), 1886.] 
 ' [Mosley v. Vt. Mvit. Fire Ins. Co,, 55 Vt. 142.] 
 8 [Tischler v. Cal. Farmers' Miit. Fire Ins. Co., 66 Cal. 178.] 
 
 477 
 
§ 240] INSLTEANCE : FIUE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 Evidence is admissible to show that fireworks conslitute aa 
 ordinary, usual, and recognized portion of a stock of fancy 
 goods and Yankee notions. A policy insuring such a stock 
 is not avoided by keeping fireworks although they are classed 
 as "specially hazardous," and it was specified that this class 
 to be covered must be specially written in the policy.^ Fire- 
 works are not included in "family groceries, wines, liquors, 
 tobacco, and cigars. " ^] 
 
 § 240. Working of Carpeilters ; Repairs. — Upon the same 
 general principles, when, from the character of the building 
 insured, and the use made of it, it is necessary to have 
 workmen constantly engaged in repairing, in order to keep 
 it in proper condition for the business done therein, the em- 
 ployment of such workmen is not a breach of the condition 
 that "working of carpenters," &c., altering or repairing, 
 will vitiate the policy, {a) Such condition has for its object 
 to prohibit such hazardous use as is generally denominated a 
 "builder's risk," which arises from placing the building 
 in the possession or under the control of workmen for alter- 
 ation or repairs, but does not refer to such indispensable 
 repairs as are necessary to the proper conduct of the busi- 
 
 1 [Barnum v. Merchants' Fire Ins. Co., 97 N. Y. 188.] 
 
 2 [Georgia Home Ins. Co. u. Jacobs, 56 Tex. 366.] 
 
 (a) Alterations and repairs in a Holyoke M. F. Ins. Co., 158 Mass. 475; 
 tuilding, to be material to the risk, Staiiffer v. Manheim M. F. Ins. Co., 150 
 must be of a permanent nature. Adair Penn. St. 531 ; Newport Ins. Co., v. 
 V. Southern Mut. Ins. Co., 107 Ga. 297. Home Ins. Co., 163 N. Y. 237 ; Mechan- 
 In Imperial F. Ins. Co. v. Coos County, ics' Ins. Co. w. Hodge, 149 111 298 ; Fire- 
 151 U. S. 452, a policy which contained men's Ins. Co. v. Appleton Paper Co., 161 
 the express provision that it should be III. 9 ; Manufacturers' Ins. Co. v. Arm- 
 void if "mechanics are employed in strong, 145111. 469 ; Schaefferr. Farmers' 
 building, altering, or repairing the prem- Ins. Co., 80 Md. 563; Monteleone v. 
 ises" without consent, was held avoided Koyal Ins. Co., 47 La. An. 1563 ; Lim- 
 by the employment of mechanics for six burg v. German F. Ins. Co., 90 Iowa, 709 ; 
 weeks iu Ijasement repairs, which were Phenix Ins. Co. i;. Coomes (Ky. ), 20 S. 
 fully completed before the fire, irrespec- W. 900. Consent to vacancy does not 
 tive of the question whether there was include consent to repairs. Hill v. Com- 
 an increase of risk. Sse also Hill v. mercial Union Ins. Co., 164 Mass. 406. 
 Middlesex Mut. Ass. Co., 174 Mass. 542. A tenant's in.surance of goods by a policy 
 As to repairs and alterations, see Lon- which allows limited repairs to realty 
 don Ass. Co. v Drennen, 116 U. S. 461 ; does not apply to the owner's repairs on 
 California Ins. Co. v. Union Compress the building. Mechanics' Ins. Co. v, 
 Co., 133 U. S. 387 ; First Cong. Church v. Hodge, 149 111. 298. 
 
 478 
 
CH. XI.] SPECIAL PROVISIONS OF THE CONTRACT, ETC. [§ 241 
 
 nes& to which the building is appropriated. ^ [Employing 
 carpenters to make extensive alterations is, however, a 
 breach of condition.^] 
 
 § 241. Use means Habitual Use. — Use for any purpose 
 prohibited means habitual use.** (a) Insurance on a building 
 where "no fire" is kept and no hazardous goods a,re classed 
 is as if the clause read "usually" kept and deposited.* The 
 introduction of a tar barrel, and lighting a fire for the pur- 
 pose of repairing the building insured, is not in contraven- 
 tion of the terms of a policy which provides that fire shall 
 not be kept nor hazardous goods deposited on the premises.^ 
 Nor is insurance upon a "kiln for drying corn in use" viti- 
 ated by the fact that the insured in a single instance allowed 
 the cargo- of a vessel laden with bark, which had sunk near 
 by, to be dried at the kiln. It is not a change of business 
 in the sense of the terms of the policy, which means perma- 
 nent change.^ Repairing the building insured by the ordi- 
 nary methods, and occupying it for that purpose, is not an 
 appropriation, use, or application thereof for carrying on a 
 
 1 Franklin Fire Ins. Co. v. Chicago Ice Co., 36 Md. 102. See also ante, § 224 ; 
 post, § 241. 
 
 2 [Mack V. Rochester German Ins. Co., 106 N. Y. 560.] 
 
 ' [Insurance Co. v. Hughes, 10 Lea (Tenn.), 461 ; Humholdt Fire Ins. Co. e. 
 Mears, 1 Pennypacker, 513. But a single occasion of use is sufficient if loss 
 thereby results. When a policy excepted liability for loss occasioned by kerosene, 
 &c. oils, and the barn was destroyed by carrying a lamp so filled therein, it was 
 held that the company was not liable. Matson v. Farm Buildings Insurance Co., 
 73 N. Y. 310, 313. Whether " keep or use " means on a single occasion or con- 
 tinuously, depends on the circumstances. A vial of naphtha in the pocket of one 
 working in the mill, or a drop taken there as medicine, might not create any 
 appreciable hazard, but a keeping or use which involves the mill in substantial 
 danger terminates the risk. Wheeler v. Insurance Co., 62 N. H. 326. In this 
 case the insured bought what he supposed was benzine to kill moths. It was 
 really naphtha. He sprinkled it on the wool in his mill, and a few hours after a 
 fire broke out. The policy was held void.] 
 
 * Dobson V. Sotheby, 1 Moo. & Mai. 90; Barrett v. Jermy, 3 Wels., Hurl. & 
 Gor. (Exch.) 535 ; Leggett v. Mtna. Ins. Co., 10 Rich. Law (S. C), 202 ; Insur- 
 ance Co. of N. A. V. McDowell, 50 111. 120. 
 
 6 Dobson V. Sotheby, 1 Moo. & Mai. 90 ; s. o. 22 E C. L. 481. 
 
 " Shaw V. Robberds, 6 Adol. & Ell. 75 ; s. o, 33 E. C. L. 12. 
 
 (a) As to increase of risk by the church to other uses, see School District 
 unauthorized change of a schoolhouse or v. German Ins. Co., 7 So. Dak. 458. 
 
 479 
 
§ 242] issuEANCE : fiee, life, accident, etc. [CH. XI. 
 
 trade or business of house building or repairing.^ Nor is 
 the making a fire therein for the purpose of extracting fat 
 from spoiled meat.^ The mixing and keeping of paints in 
 the barn, by the insured, for the purpose of painting his house, 
 is an ordinary and permissible use of the barn, although 
 it is described as used for "hay, straw, grain unthrashed, 
 stabling, and shelter."^ In an insurance upon a house in 
 process of building, a statement, in reply to an inquiry, that 
 there are no stoves in it, means that no stove is to be habit- 
 ually kept and used in it as stoves are ordinarily used in a 
 dwelling-house. The use of a stove for a few days subse- 
 quent to the effecting of the insurance, and for a purpose 
 connected with the finishing of it, is no violation of the 
 warranty,* or of a condition against alteration in use.^ The 
 casual use of camphene and friction-matches by workmen 
 employed about the premises, without the knowledge of the 
 insured and contrary to his orders, is no violation of a pro- 
 viso that they shall not be kept, used, or sold. A use to 
 work forfeiture must be a use known to, and permitted by, 
 the insured.^ The occasional use of articles denominated 
 hazardous, or the occupation of the premises insured for 
 purposes called hazardous, in the conditions annexed to a 
 policy, will not avoid the policy if such use and occupation 
 appertain to the general subject-matter of the risk.^ 
 
 § 242. Storing. — " Storing " has been defined to mean 
 " keeping for safe custody^ to be delivered out again in the 
 same condition, substantially, as when received," and to 
 apply only when the storing or safe-keeping is for trading 
 purposes, and is the sole or principal object of the deposit, 
 
 1 O'Niel V. Buflfalo Fire Ins. Co., 3 Comst. (N. Y.) 122 ; Grant v. Howard, 
 5 Hill (^^ Y.), 10. 
 
 2 Gates V. Madison County Mut. Ins. Co., 5 N. Y. 469. 
 
 8 Billings V. Tolland County Mut. Fire Ins. Co., 20 Conn. 139. 
 * Williams v. New England Mut. Fire Ins. Co., 31 Me. 219; Barrett v. Jermy, 
 3 Wels., Hurl. & Gor. (Exch.) 535. 
 
 5 Troy Fire Ins. Co. v. Carpenter, 4 Wis. 20. And see post, § 255. 
 
 6 Farmers' & Mechanics' Ins. Co. v. Simmons, 30 Pa. St. 299 ; White ». Mutual 
 Fire Ins. Co., 8 Gray (Mass.), 566 ; Sanford v. Mech. Mut. Fire Ins. Co., 12 Cush. 
 (Mass.) 541. 
 
 ' Mei-ch. & Manuf. Ins. Co. u. Washington Ins. Co., 1 Handy (Ohio), 181. 
 
 480 
 
CH. XI.] SPECIAL PROVISIONS OF THK CONTKAOT, ETC. [§ 242 
 
 and not when it is merely incidental, and the keeping is 
 only for the purpose of consumption; as when kerosene is 
 kept for the purpose of illumination, or saltpetre for the 
 purpose of curing meats. Wine sent to a warehouse to be 
 kept and returned when called for is "stored;" but wine 
 kept in one's cellar or garret, to be sold or consumed as 
 occasion may require, is not. Thus, a grocer, insured as 
 such, may keep wine and oil for sale, although they are 
 classed as hazardous articles ; and by the terms of the policy 
 hazardous articles are not to be "stored." i (a) [When a 
 policy prohibited the storing of oil, &c., it was held that a 
 keeping of the same in a retail store for the purpose of 
 
 ^ Langdon v. N. Y. Equitable Fire Ins. Co., 1 Hall (N. Y.), 226 ; s. o. 6 Wend 
 (N. Y.) 623 ; Phcenix Ins. Co. v. Taylor, 5 Minn. 492 ; Maj'or, &c. v. Hamilton 
 Ins. Co., 10 Bosw. (N. Y.) .^137; Rafferty v. N. B. Fire Ins. Co., 3 Harr. (N. J.), 
 480 ; Williams v. Mechanics', &c. Ins. Co., 54 N. Y. 577 ; Williams v. Fireman's 
 Fund Ins. Co., id. 569 ; Bayly v: London, &c. Ins. Co., C. Ct. (La.), 4 Ins. L. J. 
 603 ; Buchanan v. Exchange Fire Ins. Co., 61 N. Y. 26 ; Com. Ins. Co. o. Mehl- 
 man, 48 111. 313. 
 
 (a) Where, under a policy, with per- 
 mission to complete, on a block of un- 
 finished buildings which was built for 
 stores below and dwellings above, one 
 of the stores was occupied after com- 
 pletion by a retail grocer, who kept as 
 part of his stock gasoline and coal oil, 
 and a violent explosion having demol- 
 ished the building, and killed the grocer 
 and several members of his family, the 
 evidence showed that shortly before the 
 explosion there was a bright light and 
 probably fire in the store, and the de- 
 fence was that keeping gasoline voided 
 the policy under the condition which 
 excluded the storing of hazardous and 
 extra-hazardous articles, it was held 
 that "keeping" is not "storing;" 
 that a contract of insurance upon a 
 building made before its completion 
 authorizes the .use of the building 
 in any common business to which its 
 construction is adapted, and that when 
 the contract prohibits storing hazardous 
 articles, it does not prohibit keeping 
 them for sale in such business. Een- 
 VOL. I.— .31 
 
 shaw V. Missouri State Mut. F. & M. 
 Ins. Co., 103 Mo. 595. So of the keep- 
 ing of dynamite. Phenix Ins. Co. v. 
 Walters (Ind. App.), 56 N. E. 257. 
 Under a policy providing that coal oil not 
 exceeding five barrels, and gunpowder 
 not exceeding twenty-five pounds, and 
 other merchandise, "not more hazard- 
 ous," usual to general stocks of mer- 
 chandise, might be kept, the keeping of 
 three and a half boxes of squibs con- 
 taining about a pound of powder does 
 not render the policy void. Mechanics' 
 & Traders' Ins. Co. v. Floyd (Ky.), 28 
 Ins. L. J. 335. Where the insured 
 having purchased and stored a lot of 
 fireworks in his house for use on the fol- 
 lowing day, which was the Fourth of 
 July, they took fire and caused the 
 damage, the policy, which provided that 
 it should be void if the hazard were in- 
 curred with the knowledge of the in- 
 sured, or if fireworks, among other 
 things, were allowed on the premises, was 
 held to be avoided. Heron v. Phoenix 
 Mut. F. In?. Co., 180 Peun. St. 257. 
 
 481 
 
§ 242] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XL 
 
 replenishing stock, from time to time, and in quantities not 
 unusually large, did not vitiate the policy.^] It is the 
 appropriation to the business of storing that is prohibited 
 in a policy that inhibits the use of the insured premises for 
 the purpose of storing and keeping certain specified articles, 
 while insuring a stock of goods in which those articles are 
 ordinarily found. And it seems that raw material used in 
 a manufacture, and brought into and kept in the room where 
 it is to be manufactured, is not stored therein in the sense 
 of the policy which prohibits the use of any part of the pre- 
 mises for storing such articles.^ So, if the material has 
 been casually and temporarily left in a room, without any 
 purpose to appropriate that room to the use of keeping and 
 storing it.^ To use for "keeping and storing" is to appro- 
 priate the premises to that use as a principal use, and not 
 incidentally and for some other purpose to which the keep- 
 ing and storing is necessarily incidental. Articles kept in 
 a store are kept and stored for sale, but the use of the build- 
 ing is for selling, and not for keeping and storing.* Oil, 
 turpentine, and paint may be kept and stored in a building 
 in process of erection on which they are to be used, but the 
 building can in no proper sense be said to be used for keep- 
 ing and storing them.^ Gunpowder being one of the pro- 
 hibited articles, it appeared that the insured had kept it for 
 sale in his general stock. At the time of insurance he had 
 some still remaining on hand, but it was not offered for sale 
 after the policy issued ; and it was held that this was neither 
 a storing nor a keeping for sale.^ So where a party insured 
 a building which had been used for dressing flax, but before 
 effecting insurance the machinery had been removed from 
 
 1 [Langdon v. IT. Y. Eq.Ins. Co., 1 Hall (N. Y.), 226, 236.] 
 
 2 Vogel V. People's Mut. Fire Ins. Co., 9 Gray (Mass.), 23. 
 
 8 Hynds v. Schenectady County Mut. Ins. Co., 16 Bai'b. (N. Y.) 119 ; s. c. 
 affirmed, 11 N. Y. 554; Williams v. People's Ins. Co., 57 id. 274. See also 
 People's Ins. Co. i). Kuhn, 12 Heisk. (Tenn.) 515 ; s. c. 1 Cent. L. J. 214 and note. 
 
 * Moore v. Prot. Ins. Co., 29 Me. 97 ; Leggett v. jEtna Ins. Co., 10 Rich. Law 
 (S. C), 202 ; Phoenix Ins. Co. v. Taylor, 5 Minn. 492. 
 
 ° O'Niel V. Buffalo Fire Ins. Co., 3 Comst. (N. Y.) 122. 
 
 « Protection Ins. Co. v. Harmer, 2 Ohio St. (22 Ohio) 452. 
 482 
 
CH. XI.] SPECIAL PEOVISIONS OF THE CONTRACT, ETC. [§ 242 
 
 the building, though some unbroken flax — a prohibited 
 article — remained in one corner of a room till the time of 
 the fire, it was held that this did not constitute a use of the 
 building for the purpose of storing the flax, there being no 
 intention of having it regularly stored or kept there except 
 temporarily.! In Dobson v. Sotheby ^ the language of the 
 policy provides against the use of the buildings to " store or 
 warehouse " any hazardous goods, and it was held that the 
 introduction of a barrel of tar and its use in repairing the 
 building was no violation of the conditions of the policy. 
 But the supreme court of Massachusetts has repeatedly taken 
 it for granted that the keeping of an article for sale in a 
 general stock was an appropriation, application, and use of 
 the premises for the purpose of keeping and storing of the 
 particular article.^ In neither case, however, was the point 
 discussed or raised, and the cases are certainly counter to 
 the authorities where the point has been deliberately made. 
 So the introduction of the prohibited article for a special 
 purpose, even though that purpose be the destruction of the 
 building insured, is not a " storing " within the meaning of 
 the policy; as where gunpowder is introduced into a build- 
 ing for the purpose of blowing it up in order to stay the 
 progress of a conflagration.* But under a provision that the 
 policy should be void if there should be at any time more 
 than twenty -five pounds of powder on the premises, the plac- 
 ing of more than that upon the premises to await shipment, 
 expected to be in a day or two, with the assent of the in- 
 sured, was held to be a violation of the condition.^ A gen- 
 eral prohibition of a particular article is sometimes modified 
 by a permission to keep a certain amount of it.® [When the 
 company knows that the premises may be used for storing 
 
 1 Hynds v. Schenectady County Mut. Ins. Co., 16 Barb. (N. Y.) 119 ; s. c. 
 affirmed, 11 N. Y. 554. 
 
 2 1 Moo. & Mai. 90. 
 
 5 Whitmarsh v. Charter Oak Fire Ins. Co., 2 Allen (Mass.), 581 ; ante, § 238 ; 
 Macomber v. Howard Fire Ins. Co., 7 Gray (Mass.), 257 ; ante, § 234 ; Lee a. 
 Howard Fire Ins. Co., 3 Gray (Mass. ), 583 ; ante, § 237. 
 
 * City Fire Ins. Co. v. Corlies, 21 AYend. (N. Y. ) 367. 
 
 ' Faulkner v. Central Fire Ins. Co., 1 Kerr (N. B.), 279. 
 
 ' Bowman «. Pacific Ins. Co., 27 Mo. 152. 
 
 ■483 
 
§ 243] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 cotton, and the policy provides that the rate may be changed 
 if the building is used as a storehouse, the storing of cotton 
 will not avoid the policy. ^J 
 
 § 243. Keeping ; Premises. — A very nice point was made 
 and sustained by the Supreme Court of South Carolina in a 
 case where the policy provided that "the keeping of gun- 
 powder for sale or on storage upon or in the premises in- 
 sured, should render the policy void." The insurance was 
 upon " the stock of goods and merchandise contained in the 
 applicant's store," a part of which consisted of gunpowder. 
 But it was contended, and so held, that the word " premises " 
 referred to buildings insured; and as there was no insurance 
 upon the building, the gunpowder was not kept "upon or in 
 the premises insured," within the meaning of the stipula- 
 tion. ^ And upon the same principle a false representation 
 as to occupancy of a building not itself insured was held 
 immaterial.^ So a statement that the title of the insured 
 was a "fee-simple," was held to have no application to per- 
 sonal property insured.* So where property situated in a 
 certain building was stated to be unincumbered, the state- 
 ment was held to apply to the property insured, and not to 
 the building in which it was situated.^ So a prohibition of 
 "sale, conveyance, or change of title of the property insured " 
 refers only to the realty.^ But "premises" has been very 
 properly held to cover a ship insured, excluding the risk of 
 gunpowder.^ 
 
 1 [Steers v. Insurance Co., 38 La. An. 952.] 
 
 2 Lpggett V. iEtnalns. Co., 10 Rich. Law (S. C), 202 ; post, § 367. 
 
 3 Howard Fire & Mar. Ins. Co. o^ Cornick, 24 111. 455. But see Wilson v. 
 Herkimer, &c. Ins. Co., 6 N. Y. 53, doubting Trench v. Chenango, &c. Ins. Co., 
 7Hill(]Sr.Y.), 122. In Phcenix Ins. Co. «. Slaughter, 12 Wall. (U. S.) 404, where 
 the policy prohibited "gunpowder to be kept on the premises, and oampheue, 
 &c., to be kept for sale, stored, or used ou the premises in quantities exceeding one 
 barrel," it was held that as there was only a comma after the word "premises," 
 where it first occurs, instead of a semicolon, the clause restricting quantity 
 applied to gunpowder as well as to campheue. 
 
 * Butler V. Standard Fire Ins. Co., 4 Grit. App. E. 391. 
 5 Ashford v. Victoria Ins. Co., 20 U. C. (C. P.) 434. 
 8 Commercial Ins. Co. v. Spankneble, 52 111. 53. 
 
 ' Beacon, &c. Ins. Co. v. Gibb, 13 (L. C.) Dec. des Trib. 81. See also ante, 
 §228. 
 
 484 
 
GH. XI.] SPECIAL PEOVISIONS OF THE CONTKACT, ETC. [§ 244 
 
 § 244. Change in Surrounding Circumstances. — Where par- 
 ties have entered into an agreement, nothing beyond the 
 terms of the agreement can be required of either party ex- 
 cept good faith. And if a change in the use of the prem- 
 ises actually insured will not work a forfeiture, a fortiori a 
 change in the use of adjoining premises will not.^ If there 
 be no want of good faith in bringing about or permitting 
 any change increasing the risk, it is immaterial whether the 
 change causes the loss. But if there be bad faith, and the 
 loss is chargeable to the act done or permitted, then it be- 
 comes a defence to the action to recover the loss.^ Where a 
 
 1 "Western Farmers' Mut. Ins. Co. u. Miller, 1 Handy (Superior Ct., Cincin- 
 nati), 325 ; ante, § 225 ; post, § 259. 
 
 2 The grounds upon which this principle rests are thus stated in Stebbins v. 
 Globe Ins. Co., 2 Hall (N. Y. Superior Ct), 632' "The contract of insurance 
 has its foundation in the mutual good faith of the parties. If the assured violates 
 that good faith in any circumstance entering into the creation of the contract, it 
 is no doubt void. But if, subsequently to its formation, he acts with fraud or 
 gross negligence, or in bad faith, with respect to the subject-matter insured, his 
 rights under the contract are not impaired unless the loss which he seeks to 
 recover is the result of his own misconduct. It is a general principle that no 
 man can derive a right of action against another from his own violation of duty, 
 or from his own illegal acts. Thus there is no stipulation in this policy that the 
 assured shall not set fire to the buildings insured. If he had done so he could 
 not recover the loss, on the ground not that he had violated any stipulation in 
 the contract, but that he could not profit by the consequences of his own illegal 
 or fraudulent acts. If, however, he had set fire to an adjoining building with the 
 intent to consume the one insured, but no Injury to that had in fact ensued, it 
 could not have been contended that the policy was thereby rendered void, not- 
 withstanding the act would have been in the highest degree a violation of the 
 good faith which was pledged to the insurers, that the risk should not be in- 
 creased by any act of the assured. An erection of buildings on vacant ground by 
 the assured subsequently to the policy and contiguous to those insured, whereby 
 the risk is increased, stands upon the same principle. If buildings thus erected 
 should be removed before the occurrence of any loss, it could not be maintained 
 that the policy would be thereby annulled. The act not being in violation of 
 any express stipulation in the policy, and not resulting in any actual injury to 
 the insurers, the law would regard it as harmless and rightful ; and if this be so, 
 it seems clearly to follow that the continuance of such erections (as in the case 
 now before us) until the fire cannot change the legal consequences of the act of 
 erecting them, if they have in no way been the cause of the loss. The act of the 
 assured in erecting them may have been a breach of an implied understanding 
 between the parties that the situation of the insured premises, with respect to the 
 contiguous buildings, should not be changed by the act of the assured so as to 
 increase the risk ; but if such increase of risk has in fact been without injury to 
 the defendants, the policy is not affected by it." See also Denkla v. Insurance Co., 
 6 Phila, 233 ; Miller v. Western, &c. Ins. Co., 1 Handy (Cin. Supr. Ct.), 208 ; 
 Southern Ins. Co. o. Lewis, 42 Ga. 587. 
 
 485 
 
§ 245] INSURANCE : FIEE; LIFE, ACCIDENT, ETC. [CH. XI. 
 
 policy provided in one clause that a " change " without con- 
 sent should avoid the policy, and in another that the insurers 
 might terminate the contract if additional buildings were 
 erected, it was held that " change " did not include the erec- 
 tion of additional buildings, but referred rather to police 
 regulations against fire.^ It applies to change in the physi- 
 cal condition of the building, and not to such a change as 
 would be involved in becoming vacant.^ 
 
 § 245. Prohibited Use ; Suspension of Policy ; Smoking ; 
 Tavern-keeping ; Bawdy-house. — Some policies in prohibit- 
 ing the use of the buildings insured for certain purposes 
 provide that they shall be void only so long as the prohib- 
 ited use continues. In such cases, of course, although there 
 may have been during the currency of the policy a prohibited 
 use, yet if that use is not in fact made at the time of the 
 fire, but has before that happens been discontinued, there is 
 no forfeiture.^ But under a policy insuring property de- 
 scribed as a "back building and stores," and prohibiting 
 certain hazardous uses, the introduction of a prohibited use 
 
 1 Commercial Ins. Co. v. Melilman, 43 111. 313. See also ante, § 221. 
 
 2 Home Ins. Co. v. Einnier, 28 Grat. (Va.) 88. 
 
 .8 Lounsbury ■!;. Prot. Ins. Co., 8 Conn. 459 ; N. E. Fire & Mar. Ins. Co. v. 
 "Wetmore, 32 111. 221 ; Phoenix Ins. Co. v. Lawrence, 4 Met. (Ky.) 9. [If a tug- 
 boat goes out of the limits prescribed in the policy, and after returning to the 
 proper waters a loss occurs, the policy covers the loss. Hennessey o. Manhat- 
 tan Fire Ins. Co., 28 Hun, 98. It was formerly held in Massachusetts that a 
 temporary illegal use of Insured premises, as for a bowling-alley and pool-room, 
 after the expiration of a license for such use, will merely suspend the policy dur- 
 ing such unlawful use, and it will revive when such use ceases, unless it was con- 
 templated at the time of insuring to thus unlawfully continue said use, or the 
 temporary use injuriously affects the insurers after it had ceased. Hinckley v. 
 Germania Ins. Co., 140 Mass. 38. But in a subsequent case the court held that 
 an increase of risk by the illegal sale of liquors avoids the policy, although it was 
 only temporary, and ceased before the fire. " The contract of insurance depends 
 essentially upon an adjustment of the premium to the risk assumed. If the as- 
 sured by his voluntary act increases the risk, and the fact is not known, the 
 result is that he gets an insurance for which he has not paid. In its effect on 
 the company it is not much different from a misrepresentation of the condition 
 of the property." Eyte v. Commercial Union Ass. Co., 149 Mass. 116, 123, re- 
 viewing and shifting the ground of Hinckley v. Germania Ins. Co., 140 Mass. 38. 
 A change of use by introducing the shaving of hoops for a few days in a dwell- 
 ing-house, which was found not to materially increase the risk, and which ceased 
 three days before the fire, was not fatal. Kircher v. Milwaukee M. M. Ins. Co., 
 74 Wis. 470.] 
 486 
 
CH. XI.] SPECIAL PROVISIONS OF THE CONTRACT, ETC. [§ 245 
 
 or business will avoid the policy whether continued to the 
 time of the fire or not.^ So if in the description itself one 
 use is permitted but another forbidden, as where a building 
 is insured to be occupied as a store, but not as a coffee- 
 house. ^ So, also, if there be a prohibition against the in- 
 troduction of any specific article, as, for instance, steam or 
 a steam-engine, the introduction of the prohibited thing, 
 whether permanently or temporarily, — the policy being 
 made void by its terms by such introduction, — and whether 
 for a longer or shorter time, is equally fatal. ^ [But it has 
 been held that when the assured in violation of the policy 
 introduced gasoline for lighting, but removed it before the 
 fire, the policy was held good, although the policy was to 
 be, "immediately void" if gasoline, &c. were used.* And 
 it is immaterial that the assured may have been in the habit 
 of breaking a condition of a policy (as to keeping benzine, 
 for example), which only operated to make the latter void 
 so long as there was a breakage, if at the time of the loss he 
 was complying with the same.^] An agreement that smok- 
 ing shall be prohibited, and a statement that smoking is not 
 allowed upon the insured premises, mean simply that the 
 insured will not himself smoke on the premises, and will 
 prohibit, and take reasonable precautions to prevent, others 
 from smoking there. ^ So a by-law merely prohibiting in- 
 surance of an illegal business, and requiring the agent to 
 remove the danger incurred, works no forfeiture.'' If the 
 policy stipulates against an occupation of the premises for 
 purposes considered hazardous at any time when a fire shall 
 happen, but does not define the meaning of the word, nor 
 
 1 Mead v. N. W. Ins. Co., 3 Seld. (N. Y.) 530. 
 
 2 Lawless v. Tenn. Mar. & Fire Ins. Co., Circuit Ct. St. Louis, Mo. 1852 
 (cited by Angell, Ins. § 169, n.) ; s. 0. Hunt's Merch. Mag., Feb. 1853 ; 3 Bennett 
 Fire Ins. Gas. 499. 
 
 « Glen V. Lewis, 8 Wels., Hurl. & Gor. (Exch.) 607. 
 
 * [Mutual Fire Ins. Co. v. Coatesville Shoe Factory, 80 Pa. St. 407, 412.] 
 
 6 [Maryland, &c. Ins. Co. v. Whiteford, 31 Md. 219, 228.] 
 
 ° Insurance Co. of North America v. McDowell, 50 111. 120 ; Aurora Fire Ins. 
 
 Co. V. Eddy, 55 id. 213. 
 
 ' Behler v. German, &o. Ins. Co. (Ind.), 9 Ins. L. J. 778. See also ante, § 231 ;• 
 
 Com. Ins. Co. v. Mehlman, 48 111. 313. 
 
 487 
 
§ 246] INSURANCE: FIRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 contain any class of risks denominated hazardous, nor add 
 the test of increase of risk, it will of course be for the jury 
 to determine not only whether there has been a change of 
 use, but whether that change is considered hazardous; and 
 this would depend upon the degree of the increase of the 
 risk.i Keeping a bar-room in a boarding-house is not 
 " tavern-keeping "; 2 nor is the keeping a bawdy-house in a 
 house insured and described as a " dwelling-house " a con- 
 cealment, though the house was set on fire and destroyed by 
 a mob, such a result not being the natural consequence of 
 such a use.^ [But if the description is of a dwelling-house, 
 and the policy is to be void by change of use, keeping a 
 bawdy-house on the premises is fatal.* (a) If a policy re- 
 quires notice of a change of occupancy, a use of ordinary 
 sleeping apartments for purposes of assignation and prosti- 
 tution, without notice, is fatal. ^ The description of prem- 
 ises as a " saw-mill " does not restrict its use to such 
 purpose.^ 
 
 § 246. Unlawful Use ; Illegal Keeping. — That unlawful use 
 of the premises insured which will avoid a policy stipulating 
 against it, is not a mere casual use, or permission of use, 
 for an unlawful purpose, or the doing of a particular unlaw- 
 
 1 Robinson v. Mercer County Mut. Fire Ins. Co., 3 Dutch. (N. J.) 134. 
 
 2 Rafferty v. N. B. Fire Ins. Co., 3 Harr. (N. J.) 480. 
 
 8 Loehner v. Home Mut. Ins. Co., 17 Mo. 247 ; s. c. 19 id. 628. 
 * [Cedar Rapids Ins. Co. v. Shimp, 16 Brad. 248, 256.] 
 6 [Ind. Ins. Co. v. Brehm, 88 Ind. 578.] 
 
 8 [Frost's Detroit Lumber, &a. Works v. Millers', &c. Mut. Ins. Co., 37 Minn. 
 300.] 
 
 (a) See National F. Ins. Co. v. U. S. to increased risk. Bonenfaut v. Ameri- 
 
 Building&Loan .iss'n's Assignee (Ky. ), canF. Ins. Co., 76 Mich. 653. Where the 
 
 54 S. W. 714 ; Phenix Ins. Co. v. Clay insured house was described as " occu- 
 
 (101 Ga. ), 65 Am. St. Eep. 307, and pied as a sporting house," it was held 
 
 note. Insurance of a house used for that as the term "sporting house" has 
 
 prostitution is not invalid, if the policy an innocent as well as guilty meaning, 
 
 contains no stipulation against such it could not be said, without proof of 
 
 use. Phenix Ins. Co. o. Clay, 101 Ga. the sense in which it was used, that the 
 
 331. But if a house, being insured as a policy showed conclusively that the 
 
 dwelling-house and inn, is kept as a occupancy of the house was for unlaw- 
 
 house of prostitution and lewdness, it fill purposes. White v. Weston Ass. 
 
 renders the fire risk more hazardous and Co., 52 Minn. 352. 
 forfeits the conditions of the policy as 
 488 
 
CH. XI.J SPECIAL PEOVISIONS OF THE CONTKACT, ETC. | § 246 
 
 ful act therein, as the commission of a misdemeanop or 
 even a felony, — it must be in some substantial sense a use 
 for the alleged unlawful purpose. ^ But where there is a 
 constant, exclusive, and habitual use of the insured prem- 
 ises for unlawful purposes, or in contravention of a legal 
 restriction, as where the tenant of the insured for three 
 months prior to the fire unlawfully stored and kept intoxi- 
 cating liquors for sale, and nothing else, this was held to 
 be an insurance for the protection of the illegal acts, and to 
 violate a proviso that the policy should be void if the build- 
 ing insured should be "occupied or used for unlawful pur- 
 poses," although the owner and insured had no knowledge 
 in fact of such unlawful use.^ So where a hotel is kept 
 without a license,® or a billiard saloon.* On the other hand, 
 it has been held in Michigan ^ that, as under a prohibition 
 against keeping gunpowder or other articles " subject to legal 
 restriction " in " greater quantities or in a different manner 
 than prescribed by law," only such articles are included as 
 are of an intrinsically dangerous nature, the illegal keeping 
 of liquors for sale will not avoid the policy, and illegally 
 kept liquors may be insured. The court in that case say : 
 "It is claimed that if these liquors can be allowed to be 
 included in the policy, the policy will be to all intents and 
 purposes insuring an illegal traffic; and several cases were 
 cited involving marine policies on unlawful voyages, and 
 lottery insurances, which have been held void on that 
 ground. These cases are not at all parallel, because they 
 rest upon the fact that, in each instance, it is made a neces- 
 sary condition of the policy that the illegal act shall be 
 done. The ship being insured for a certain voyage, that 
 voyage is the only one upon which the insurance would 
 apply, and the underwriters thus become directly parties to 
 
 1 Boardman v. Merrimack, &c. Ins. Co., 8 Cush. (Mass.) 583. 
 
 ^ Kelly V. "Worcester Mut. Fire Ins. Co., 97 Mass. 284 ; Jones v. Fireman's 
 &c. Ins. Co., 2 Daly (JS. Y.), 307 ; Johnson v. Union, &c. Ins. Co., 127 Mass. 
 555; Lawrence v. National Fire Ins. Co., 127 Mass. 557. 
 
 3 Campbell v. Charter Oak Ins. Co., 10 Allen (Mass.), 213. 
 
 * Johnson v. Union, &c. Ins. Co., 127 Mass. 555. 
 
 s Niagara Fire Ins. Co. v. De Graff, 12 Mich. 124. 
 
 489 
 
§ 246 A] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 an illegal act. So insuring a lottery -ticket requires the lot- 
 tery to be drawn in order to attach the insurance to the risk. 
 If this policy were in express terms a policy insuring the 
 party selling liquors against loss by fire or forfeiture, it 
 would be quite analogous. But this insurance is only upon 
 property, and the risks insured against are not the conse- 
 quences of illegal acts, but of accident. Our statute does 
 not in any way destroy or affect the right of property in 
 spirituous liquors, or prevent title being transmitted, but 
 renders sales unprofitable by preventing the vendor from 
 availing himself of the ordinary advantages of a sale, and 
 also affixes certain penalties. ^ By insuring this property, 
 the insurance company have no concern with the use the 
 insured may make of it, and, as it is susceptible of lawful 
 uses, no one can be held to contract concerning it in an 
 illegal manner, unless the contract itself is for a directly 
 illegal purpose. Collateral contracts, in which no illegal 
 design enters, are not affected by an illegal transaction with 
 which they may be remotely connected."^ The engagement 
 in an illegal voyage of the person whose life is insured by 
 another, that other not having knowledge of the fact, and 
 there being no prohibition in the policy, is immaterial.^ 
 
 [§ 246 A. Knowledge of Agent or Officer ; * Parol Evidence. 
 — If the president of the company who has exercised the 
 power of making and renewing contracts, knows that the in- 
 sured is adding to his buildings under a verbal assent, the 
 company cannot avail itself of the increase of risk.^ Where 
 buildings had been used and insured for exhibition build- 
 ings, evidence of former insurance of this kind is admissible 
 to prove that the company knew for what purposes the build- 
 ings were to be used.^ When the "Crystal Palace " in New 
 
 ^ Hibbard v. People, 4 Micb. 125 ; Bagg v. Jerome, 7 id. 145. 
 
 2 Tbe court cites, in support of their last proposition, Ocean Ins. Co. v. Pol- 
 leys, 13 Pet. (U. S.) 157 ; Armstrong v. Toler, 11 Wheat. (U. S.) 258, which were 
 respectively cases of evasion of registry and revenue laws. See also § 327. 
 
 8 Lord ». Dall, 12 Mass. 115. 
 
 " [See also § 249 I, and ch. 7, anal. 5.] 
 
 6 [Martin v. Jersey City Ins. Co., 44 N. J. 273.] 
 
 8 [Mayor of New York v. Exchange Fire Ins. Co., 9 Bos. 424, 434.1 
 
 490 
 
CH. XI. J SPECIAL PROVISIONS OF THE CONTRACT, ETC. [§ 247 
 
 York was insured, it being well known to be an exhibition 
 building, the company were held to have known that fire and 
 steam heat, a restaurant, ovens, &c., were a necessary part 
 of the business to be carried on therein, and to have in- 
 tended to include all such uses and risks. ^ If before loss 
 the agent of the company knows of an increase of risk and 
 the company does not cancel the policy the objection is 
 waived.^ It is competent to show, at law, by parol evidence 
 that the company agreed to permit the use of kerosene, but 
 by mere forgetfulness omitted to indorse the permission on 
 the policy.^ The knowledge of an increase of risk by one 
 who acts as agent for the mortgagor and mortgagee in secur- 
 ing a renewal of insurance, binds the mortgagee, and if such 
 increase is not disclosed the new policy is void.*] 
 
 § 247. Occupancy ; Use. — If in the application the prop- 
 erty on which insurance is sought is denominated a " dwell- 
 ing-house," without any stipulation touching its use or 
 occupation, this is mere description, and amounts neither 
 to a representation that it is occupied, nor a warranty that 
 it shall be.* (a) If the property be denominated as the house 
 
 1 [Mayor of New York v. Hamilton Ins. Co., 10 Bos. 537, 552.] 
 
 2 [North Britisli, &c. Ins. Co. v. Steiger, 124 111. 81.] 
 8 [Insurance Co. v. Melvin, 1 "Walker (Pa.), 364.] 
 
 * [Cole V. Germania Fire Ins. Co., 99 N. Y. 36.] 
 
 6 [Woodruff w. Imperial Ins. Co. (N. Y.), 10 Ins. L. J. 125 ; Cumberland Valley, 
 &c. Ins. Co. V. Douglass, 58 Pa. St. 419 ; Rowe v. Liverpool, &o. Ins. Co., 12 Gr. 
 Ch. (U. C.) 311 ; Browning v. Home Ins. Co., 71 N. Y. 508. But see Alexander 
 V. Germania Fire Ins. Co., 66 id. 464. It has been held in New York that the 
 description of property as a " dwelling-house " is a warranty that the building 
 is, and is to be, used only as a dwelling-house. Sarsfield v. Metropolitan Ins. 
 Co., 61 Barb. (N. Y.) 479, following Wall v. East River Ins. Co., 7 N. Y. 370. 
 
 (a) In a fire policy covering a build- See Moody v. Amazon Ins. Co. (Ohio), 
 
 ing " occupied by assured as a dwelling- 38 N. E. 1011; Phenix Ins. Co. v. 
 
 house," and providing that " if the risk Martin (Miss.), 16 So. 417. Under a 
 
 shall be increased from any cause what- policy Insuring property as a building 
 
 ever, within the knowledge of the as- while occupied by assured as a store 
 
 sured, . . . the company shall not be and dwelling-house, and providing that 
 
 liable therefor," the phrase "occupied it should be void in case the prem- 
 
 by assuredasadwelling-honse," is not a ises became vacant or unoccupied, ces- 
 
 warranty, but a mere matter of descrip- sation of occupancy as a dwelling, with 
 
 tion, and a lease of part of the building continued occupancy as a store, is not 
 
 does not avoid the policy. Heffron v. a violation. Burlington Ins. Co. v. 
 
 Kittanning Ins. Co., 132 Penn. St. 580. Brockway, 138 111. 644. Where the 
 
 491 
 
§247] 
 
 INSUEAKCE : FIEE, LIFE, ACCIDENT, ETC. 
 
 [CH. XI. 
 
 occupied by a particular person, this is at most a warranty 
 that it isj and not that it shall continue to be, so occupied. ^ 
 And in neither case does the fact that the house is for a 
 time unoccupied — whether at the time of the insurance ^ or 
 afterwards,^ — or is used as a boarding-house,* vitiate the 
 policy, even though the loss happen while the dwelling-house 
 is vacant or so used, (a) And this is so, although the appli- 
 
 ^ Liverpool, &o. Ins. Co. v. McGujfe, 52 Miss. 227. 
 
 2 Diehl V. Adams County Mut. Ins. Co., 68 Pa. St. 443. Cmitra, if the policy 
 is to be Yoid if the premises are described otherwise than as they really are, and 
 they are occupied for more hazardous uses than that for which they are insured. 
 Martin v. Franklin Fire Ins. Co., 42 N. J. 46. See also Parmelee v. Hoffmaii 
 Ins. Co., 54 N. Y. 193. So if the policy state that buildings unoccupied are not 
 insured. Ashworth v. Builders', &c. Ins. Co., 112 Mass. 422. See also post, § 248. 
 
 8 O'Niel V. Buffalo Fire Ins. Co., 3 Comst. (N. Y.) 122 ; Cumberland Valley, 
 &c. Ins. Co. V. Douglass, 58 Pa. St. 419. 
 
 ■* Planters' Ins. Co. v. Sorrels, 1 Baxter (Tenn.), 352. 
 
 policy was on the " one-story frame 
 building and additions thereto with 
 shingle roof, occupied by assured as a 
 dwelling, . . . including . . . gas and 
 water pipes and fixtures for heating 
 and lighting as a part of the building," 
 and in the rear of the main building 
 were successively a laundry, a woodshed, 
 and a part used as a carriage-house 
 and stalls, all under the same shingle 
 roof and communicating by doors, and 
 above the carriage-house was the bed- 
 room of the hired man, who was also 
 a house servant, which was furnished 
 like the rest of the house, and had gas 
 and speaking-tubes connected with the 
 rest of the building, the policy was 
 held to cover the carriage-house. Han- 
 nan V. Williamsburgh City F. Ins. Co., 
 81 Mich. 556. The building, viz., "her 
 frame stable and carriage-house build- 
 ings, belonging with said dwelling and 
 on the same lot," was held to be within 
 the description of the policy, if it was 
 in psirt used by the plaintiff as a car- 
 riage-house, belonging with her dwell- 
 ing-house, and on the same lot, although 
 it was also used to some extent by per- 
 sons other than the plaintiff for other 
 purposes. Eobinson v. Pennsylvania 
 F. Ins. Co., 87 Maine, 399. 
 492 
 
 (a) A hotel is not a dwelling-house, 
 and cannot be insured as such. Thomas 
 V. Commercial Union Ass. Co., 162 Mass. 
 29 ; see State Ins. Co. v. Taylor, 14 Col. 
 499. But a boarding-house may prop- 
 erly be described as a dwelling ; and, if 
 it is not occupied, but is merely under 
 the care of a person- living in the same 
 inclosure, it is vacant within the mean- 
 ing of the policy. Burner v. German- 
 Am. Ins. Co. (Ky.), 45 S. W. 109. 
 When a. dwelling is insured with the 
 furniture therein, a day oversight of 
 both by the insured's hired man is 
 not equivalent to customary occupancy. 
 Hanscom v. Home Ins. Co., 90 Maine, 
 333 ; Agricultural Ins. Co. v. Hamilton, 
 82 Md. 88 ; Home Ins. Co. o. Wood, 47 
 Kansas, 521 ; see Moody v. Ins. Co., 52 
 Ohio St. 12. Where it was claimed that 
 the building insured as a dwelling was 
 used as a Keeley Institute, which called 
 for a different rate of premium, it was 
 held that the rule making parol evi- 
 dence inadmissible to vary a written 
 contract did not prevent the insured 
 from showing, by way of estoppel, a 
 knowledge of its real use by the general 
 agent through whom it was insured ; 
 and that, the application having been 
 prepared by such agent, the company 
 
CH. XI.] SPECIAL PROVISIONS OF THE CONTRACT, ETC. [§ 247 
 
 cation and conditions are made part of the policy, and one 
 of tlie conditions provides that the insurance shall be void 
 and of no effect if the risk shall be increased by any means 
 whatever within the control of the insured.^ So, if stated 
 to be used and occupied for farmer's use.^ So if a building 
 is stated to be fastened up, and only occupied for a certain 
 purpose, though the statement be made a warranty by the 
 terms of the policy, it is only a wai-ranty of the situation at 
 the time of effecting the insurance, and not that it shall so 
 continue during the whole terra of the risk. ^ (a) It would be 
 
 1 Joyce u. Maine Ins. Co., 45 Me. 168 ; Gilliat v. Pawtucket Mut. Fire Ins. 
 Co., 8 Rich. 282. 
 
 2 Ganiwell v. Merchants' & Farmers' Mut. Fire Ins. Co., 12 Gush. (Mass.) 167. 
 ' [The insurance of a house as occupied, without more, is not a promise that it 
 
 .shall remain so. Somerset County Mut- Fire Ins. Co. v. Usaw, 112 Pa. St. 80.] 
 
 was estopped to rely on a misdescrip- 
 tion. Glover v. National F. Ins. Co., 
 85 Fed. Rep. 125. 
 
 As to builder's and other permits for 
 temporary non-occupancy, see Hill v. 
 Commercial Union Ass. Co., 164 Mass. 
 406 ; Burnhara v. Royal Ins. Co., 75 
 Mo. App. 394 ; Dupny v. Delaware Ins. 
 Co., 63 Fed. Rep. 680; German Ins. 
 Co. V. Penrod, 35 Neb. 273 ; Newmar- 
 ket Say. Bank v. Royal Ins. Co., 150 
 Mass. 374 ; Des Moines Ice Co. v. 
 Niagara F. Ins. Co., 99 Iowa, 193; 
 Ranspach v. Teutonia F. Ins. Co., 109 
 Mich. 699 ; England v. Westchester 
 F. Ins. Co., 81 Wis. 583 ; Thomson v. 
 Southern Mut. Ins. Co., 90 Ga. 78 ; 
 Robin.son v. ^tna Ins. Co. (Ky.), 38 
 S. W. 693 ; Thomas v. Hartford F. Ins. 
 Co. (Ky.), 53 id. 297. 
 
 As to facts showing a waiver of the 
 permit required by the policy in case of 
 vacancy, see Trott v. Woolwich F. Ins. 
 Co., 83 Maine, 362 ; Quinsigamond Lake 
 S. Co. V. Phoenix Ins. Co., 172 Mass. 
 367; Strunk v. Firemen's Ins. Co., 160 
 Penn. St. 345. 
 
 (ffl) Vacancy of the premises without 
 the insurer's consent, before the policy 
 really becomes effective, does not avoid 
 *.he policy. Wainer v. Milford Mut. F. 
 
 Ins. Co., 153 Mass. 336. So if the in- 
 sured building is unoccupied when the 
 policy is issued, and this is known to 
 the insurer's agent who issues it, the 
 policy is valid. Hilton v. Phoenix Ass. 
 Co., 92 Maine, 272; Rochester Loan 
 Co. !>. Liberty Ins. Co., 44 Neb. 537. 
 Such agent may by parol waive a pro- 
 vision of the policy requiring the build- 
 ing to be completed and occupied \iithin 
 thirtj' days. Queen Ins. Co. v. Kline 
 (Ky.), 32 S. W. 214. See Hotchkiss v. 
 Phoenix Ins. Co., 76 Wis. 269 ; O'Brien 
 V. Prescott Ins. Co., 134 N. Y. 28 ; 
 Messelback v. Norman, 122 N. Y. 578 ; 
 Cross V. National F. Ins. Co., 132 N. Y. 
 133. In proving a loss, even misrepre- 
 sentations as to occupancj', when clearly 
 unintentional, do not avoid the policy. 
 Hilton V. Phoenix Ins. Co., supra. See 
 McNally v. Phcenix Ins. Co., 137 N. Y. 
 389. If the insured insists upon a per- 
 mit for vacancy, when he pays a pre- 
 mium note, and afterwards asks to have 
 tlie money returned on receiving no re- 
 ply, and repayment ia not made, the 
 insurer waives the condition as to occu- 
 pancy. Havens v. Home Ins. Co., Ill 
 Ind. 90 ; Phenix Ins. Co. v. Boyer, 1 
 Ind. App. 329. A clause in the policy 
 that it shall be inoperative during tem- 
 
 493 
 
§ 247] INSURANCE ; FIRE, LIFE, ACCIDENT, ETC, [CH. XI. 
 
 unreasonable, if not absurd, to suppose that the owner of a 
 building which may be usefully and profitably occupied could 
 intend by such a stipulation to deprive himself of such use 
 and profit during the entire term covered by the policy, un- 
 less so explicitly stated. That such is not the intention of 
 the insurers is to be inferred, especially if they provide else- 
 where in the policy against an increase of risk.^ Nor is it 
 material that there is a change in tenants ^ from a careful 
 to a negligent one,^ or from a reputable to a disreputable 
 one.* (a) In Catlin v. The Springfield Fire Insurance Com- 
 pany,^ the property was described as "at present occupied by 
 one Joel Rodgers as a dwelling-house, but to be occupied 
 hereafter as a tavern, and is privileged as such," and the 
 latter clause was held not to be either a warranty that the 
 house should be occupied as a tavern, or even a representa- 
 
 1 Blood V. Howard Fire Ins. Co., 12 Gush. (Mass.) 472; U. S. Fire & Mar._ 
 Ins. Co. V. Kimberly, 34 Md. 224. 
 
 2 Hobson V. Wellington Dist. Ins. Co., 6 U. C. (Q. B.) 536, 
 
 8 Gates V. Madison County Mut. Ins. Co., 1 Seld, (N. Y.) 469. 
 * Lyon V. Com. Ins. Co., 2 Rob. (La.) 266. 
 6 1 Sumner (U. S. C. C), 435. 
 
 porary vacancy is effective during the held not to affect the others, each being 
 
 periods of non-occupancy. Baldwin v. insured for a specific amount. In Bur- 
 
 Geraian Ins. Co., 105 Iowa, 379. The lington Ins. Co. c Brockway, 138 111. 
 
 assignee of a policy is bound by a stipu- 644, a building represented as occupied 
 
 lation therein against vacancy. Rans- as a store-house and dwelling-house, 
 
 pach V. Teutonia F. Ins. Co., 109 Mich, with a provision against vacancy, was 
 
 699. held not avoided by its occupancy only 
 
 In Worley v. State Ins. Co., 91 Iowa, as a store-house, as,the warranty related 
 
 150, the premium paid was a gross sum, only to use when insured, and express 
 
 and the policy insuring in specific sums words are necessary for a continuing 
 
 a house and barn, its provision against warranty. 
 
 the vacancy of both was held not vio- Occupancy for the fraudulent pur- 
 
 lated by the vacancy of one. In Conn, pose of burning the building or its 
 
 F. Ins. Co. V. Tilley, 88 Va. 1024, where contents is not such occupancy as is 
 
 eight double hou.ses, with lanes running intended by the policy. Names v. 
 
 between them, were insured as sixteen Dwelling-House Ins. Co., 95 Iowa, 642. 
 
 different houses, the separate valuation Vacancy in violation of an insurance 
 
 put upon them by the parties caused policy is matter of defence. Butternut 
 
 them to be treated as distinct matters Manuf. Co. u. Manufacturers' M. F. Ins. 
 
 of contract with'respect to the stipula- Co., 78 Wis. 202. 
 tion against vacancy of the "insured {a) See Bonenfant v. American F. 
 
 premises." In Speagle v. Dwelling- Ins. Co., 76 Mich. 653, 660; snpra, 
 
 House Ins. Co., 97 Ky. 646, the vacancy § 245, n. (a), 
 of two of several insured houses was 
 
 494 
 
CH. XL] SPECIAL PEOTISIONS OF THE CONTRACT, ETC. [§ 247 
 
 tion of the intention to occupy it as such. The insured was 
 the mortgagee, and if the language could fairly be treated as 
 his, it would import no more than a representation. But 
 the language cannot in strictness be treated as the language 
 of the mortgagee. He cannot be presumed, in the absence 
 of evidence, to intend to take possession and control of the 
 property. It is to be privileged by the company of course, 
 to be used as a tavern. This is their language, and iniports 
 a license or privilege granted by the insurers to use the 
 house as a tavern if the insured so desire, but by no means 
 an undertaking on his part that it shall be so used. And 
 in Boardman v. N. H. Mutual Fire Insurance Company^ it 
 was held that such descriptive words in an application were 
 not warranties, but mere representations, although expressly 
 made part of the contract by reference ; on the ground that 
 it could not reasonably be supposed that the insurers could 
 intend to make the validity of the policy dependent upon so 
 trifling a matter as a mere change of tenants, or a change 
 from occupancy to vacancy, unless they said so expressly. 
 Nor is a statement that the insured buildings are "occupied 
 as stores" a warranty that they shall all be occupied.^ But 
 such a statement is doubtless a warranty of the then existing 
 use or occupation. 3 A change from occupation to disuse is 
 a change in the "use or occupation" of the property within 
 the meaning of chapter 34 of the Laws of Maine, 1861.* (a) 
 
 1 20 N". H. 551. See also Billings .,. Tolland County Mut. Fire Ins. Co., 20 
 Conn. 139. 
 
 2 Carter v. Humboldt Fire Ins. Co., 17 Iowa, 456. 
 
 8 Farmers' & Drovers' Ins. Co. v. Curry, 13 Bush {Ky. ), 312. 
 
 * Cannell v. Phoenix Ins. Co., 59 Me. 582. That statute is as follows: "No 
 insurance company shall avoid payment of a loss by reason of incorrect state- 
 ments of value or title, or erroneous description by the insured in the contract of 
 insurance, if the jury shall find that the difference between the property described 
 and as really existing did not contribute to the loss, or materially increase the 
 risk ; any change in the property insured, its use or occupation, or breach of any 
 of the conditions or terms of the contract by the insured, shall not affect the con- 
 tract unless the risk was thereby materially increased." Laws of 1861, c. 34. 
 
 (a) Now, under the Maine Eev. occupancy materially increased the risk, 
 
 Stats., ch. 49, § 20, which places the such bui'den, in a case devoid of any 
 
 burden of proof on the insurance com- proof of the attendant circumstances, 
 
 pany to show, in case of loss, that non- may be sufficiently sustained in the first 
 
 495 
 
§ 248] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 But such a change is not "a change in the nature of the 
 occupancy," which means occupation for a different purpose.^ 
 § 248. Occupancy ; Vacation. — A statement in the appli- 
 cation that the unoccupied building insured is to be occu- 
 pied by a tenant, is not a warranty that it shall be so 
 occupied, but rather the representation of the insured's ex- 
 pectation that it will be so occupied, and not by himself, 
 and a reservation of the right to have it so occupied, to 
 avoid the inference that it is to remain unoccupied. Nor 
 does it exclude the insured from the right to occupy. This 
 is inferable from the obvious difficulty of fixing any time 
 when it could be alleged there was a breach of the warranty, 
 if it were a warranty.^ (a) Perhaps if the time were fixed 
 
 1 Gould V. Brit. Am. Ass. Co., 27 U. C. (Q. B.) 473. 
 
 2 Hough V. City Fire Ins. Co., 29 Conn. 101 ; Catlin v Springfield Fire Ins. 
 Co., 1 Sumner (U. S.), 434 ; Herrick o. Union Mut. Fire Ins. Co., 48 Me. 558 ; 
 Kelley v. Home Ins. Co., C. Ct. (Kans.), 5 Ins. L. J. 134. 
 
 instance by the natural presumption to 
 that effect based upon the observation 
 and experience of intelligent men gen- 
 erally. White V. Phoenix Ins. Co., 83 
 Maine, 279 ; 85 id. 97 ; Jones v. Gran- 
 ite State F. Ins. Co., 90 id. 40. 
 
 (o) What is meant by the clause 
 "vacant and unoccupied," in a policy 
 of insurance, is a question of law ; but 
 whether the building was at the time of 
 the loss vacant and unoccupied, within 
 the meaning of the policy, is a question 
 of fact. Thus, where a tenant had left 
 the house without notice, and a new 
 one, who was waiting to occupy it, had 
 begun to move in, it was held to be a 
 question of fact whether the premises 
 were vacant and unoccupied. Home 
 Ins. Co. V. Mendenhall, 164 111. 458, 
 469 ; see Richards v. Continental' Ins. 
 Co., 83 Mich. 508; Robinson v. Mtna, 
 Ins. Co. (Ky.), 38 S. E. 693 ; Dwelling- 
 House Ins. Co. v. O-sborn, 1 Kans. App. 
 197; Moody v. Ins. Co., 52 Ohio St. 12; 
 Roe V. Dwelling-Hou.se Ins. Co., 149 
 Penn. St. 94 ; Limburg v. German F. 
 Ins. Co., 90 Iowa, 709 ; 48 Am. St. Eep. 
 468, 478, note ; Moore v. Phcenix Ins. 
 
 496 
 
 Co. (N. H.), 10 id. 384, 390, note; 
 Worley v. State Ins. Co., 91 Iowa, 150 ; 
 Clifton Coal Co. v. Scottish Union & N. 
 Ins. Co., 102 Iowa, 300; German- 
 American Ins. Co. V. Buckstaff, 38 
 Neb. 135; Liverpool, &c., Ins. Co. v. 
 Buckstaff, id. 146 ; Moriarty o. Home 
 Ins. Co., 53 Minn, 649 ; Burlington Ins. 
 Co. V. Lowery, 61 Ark. 108 ; East Texas 
 F. Ins. Co. V. Kempner {Tex. Civ. 
 App.), 25 S. W. 999; Eureka F. & M. 
 Ins. Co. V Baldwin (Ohio), 57 N. E. 
 571. In such cases, the insurer, though 
 knowing of the vacancy, owes no duty 
 to the insured to prevent a forfeiture 
 by notifying bim thereof. Home Ins. 
 Co. V. Scales, 71 Miss. 975. Substan- 
 tial compliance with the contract is all 
 that is required, and a mere temporaiy 
 absence, which does not increase the 
 risk, is not fatal. Springfield F. & M. 
 Ins. Co. u. McLimans, 28 Neb. 846 ; 
 Johnson v. Norwalk F. Ins. Co. (175 
 Mass.), 29 Ins. L. J. 371. In all these 
 cases, the mere letter of the contract 
 may be disregarded in aid of its real 
 purpose. Thus, where a canning estab- 
 lishment was. at the ciosc or the season, 
 
CH. XI.J SPECIAL PROVISIONS OF THE CONTEACT, ETC. [§ 248 
 
 within which it should be occupied, or within which notice 
 of vacation should be given,^ the rule would be different.^ 
 If in the description the recital is that the property insured 
 is only to be used or occupied in a certain way, or not to be 
 used or occupied at all, this is an agreement, and must be 
 complied with;^ and so it is if the policy provides that 
 unoccupied buildings must be insured as such, and in case 
 the building becomes vacant the insured shall give notice, 
 or forfeit his right to recover.* Not unfrequently it is pro- 
 vided that if the occupant personally vacates the premises 
 insured, or the building becomes vacant, the policy will be 
 void, unless immediate notice ^ be given to the insurers and 
 
 1 Alston r. Old North State Ins. Co., 80 N. C. 326. 
 
 2 Bilbrough v. Metropolitan lus. Co., 5 Duer (N. Y.), 587 ; Devine v. Home 
 In.s. Co., 32 Wis. 471 ; Cardinal v. Dominion Ins. Co., 16 Can. L. J. (Q. B.) 335. 
 
 s Stout V. City Fire Ins. Co., 12 Iowa, 371. 
 
 4 Wiistum V. City Fire Ins. Co., 15 Wis. 138 ; Harrison v. City Fire Ins. Co., 
 9 Allen (Mass.), 231 ; Alston v. Old North State Ins. Co., 80 N. C. 326 ; ante, 
 §247. 
 
 ^ [And the notice given must ■ be truthful in its material details. A policy 
 contained the usual " vacant or unoccupied " clause with the addition " unless 
 
 insured as a place of storage, and the avoided because of vacancy ; and Nor- 
 polioy provided that it should be used val, C. J., said, in reference to the con- 
 fer storage only, the building of a fire dieting authorities: "The meaning of 
 under the boiler to blow the water out the words 'vacant and unoccupied,' 
 of the pipes and flues, was held not to when used in a policy upon a dwelling, 
 be a use of the premises for a purpose is not the same as when used in a con- 
 other than storage. Krug v. German tract of insurance on a store building, 
 F. Ins. Co., 147 Penn. St. 272. So a livery stable, or a .school-house. It will 
 provision that a factoi-y must be oper- hardly be contended that a policy on a 
 ated is not violated, upon the owner's school building is not in force during 
 insolvency, by his assignee renewing the the summer vacation of the school, 
 policy when the premises had ceased to although there is no person in the build- 
 be used for manufacturing, the fires ing during that period. The use to 
 being out, but were occupied by the which the building is adapted and 
 foreman for putting together and sel- devoted has much to do in determining 
 ling the machines already made. Bole whether it is vacant or unoccupied. 
 V. New Hampshire F. Ins. Co., 159 Each case must be determined upon its 
 Penn. St. 53. In German Ins. Co. v. own peculiar facts." 
 Davis, 40 Neb. 700, where tenants stip- In courts of equity, where forfeitures 
 ulated for in the policy, moved out in are not favored, the want of occupancy, 
 the evening a few hours before the fire, to be fatal to the insured, must be 
 and the owner, living in another city, shown to have been a contributing 
 could not be notified so as to attend to cause to the fire or to its continuance, 
 the matter, the policy was held not Traders' Ins. Co. v. Race, 142 111. 338. 
 VOL. I. — 32 497 
 
§ 248] INSUEANCE: FIRE, LIFE, ACCIDENT, ETC. [CIT. XI. 
 
 an additional premium paid. In such case, vacation with- 
 out notice and payment of the additional premium is of 
 course fatal to the right of the insured to recover for a loss, 
 and notice to a special agent, among other things, author- 
 ized to receive cash for premiums, is not sufficient, if the 
 premium be not also paid. It is indeed doubtful if the pay- 
 ment of the premium would help the matter, as it is ques- 
 tionable whether an agent to receive premiums fixed by the 
 company would have the i-ight to fix the rate of additional 
 premium.^ A mere "absence of the family on a visit, how- 
 ever, with no intention to remove and vacate the house, is 
 not a violation of a condition that it shall not be left vacant 
 and unoccupied; 2 (a) nor is the leaving a furnished summer- 
 house in the fall, with intent to return in the spring, the 
 house being meanwhile in the charge of a person who lived 
 near by.^ And it seems that the use and occupation of a 
 school -house in the usual manner, with stated vacations, 
 would be permissible; but not the removal of the school 
 
 notice of removal, with all particulars, be given the company." The assured 
 gave notice that he was to go on a three or four weeks' visit, but would leave 
 nearly all the household goods. On the contrary, practically all of them were 
 taken away, and it was held that the policy was avoided. A house containing 
 goods is more apt to be taken care of, and the company has a right to avail itself 
 of this security, so that the misstatement was material. Hill v. Equitable Mut. 
 Fire Ins. Co., 58 N. H. 82, 83.] 
 
 1 Harrison v. City Fire Ins. Co., 9 Allen (Mass.), 231 ; Wustuni v. City Fire 
 Ins. Co., 15 Wis. 138 ; Dennison v. Phcenix Ins. Co. (Iowa), 9 Ins. L. J. 65 ; Hill 
 V. Equitable Ins. Co. (N. H.), 6 Ins. L. J. 314 ; Paine v. Agricultural Ins. Co., 5 
 S. C. (N. Y.) 619 ; American Ins. Co. o. Padelfield, 78 111. 167 ; Cook v. Conti- 
 nental Ins. Co., 70 Mo. 610 ; McClure v. "Watertown Ins. Co. (Pa.), 9 In.-i. L. J. 
 209. 
 
 2 Stupetzki V. Transatlantic Fire Ins. Co., 43 Mich. 373. [Where a house was 
 left for a brief visit, the family leaving at home all but the few garments needed 
 while away, and the husband returned and stayed in the house overnight, occa- 
 sionally, and he and another were in it during the night of the fire, the house 
 was not "vacant and unoccupied." Occupancy only requires the presence of 
 human beings as at their customary abode ; not uninterruptedly but as the place 
 of usual return and habitual stoppage. Johnson v. N. Y. Bowery Fire Ins. Co., 
 39 Hun, 410. In this case the house was occupied in fact at the time of the fire. 
 Stupetzki V. Transatlantic Fire Ins. Co., 43 Mich. 373, 374.] 
 
 8 Herrman v. Merchants' Ins. Co. (N. Y.), 9 Ins. L. J. 658. 
 
 (a) Hill V. Ohio Ins. Co., 99 Mich. 466 ; McMurray v. Capital Ins. Co., 87 
 Iowa, 453. 
 
 498 
 
CH. XL] SPECIAL PROVISIONS OF THE CONTEACT, ETC. [§ 248 
 
 furniture, and the suspension of the school.^ Nor does a 
 mill become unoccupied by a mere temporary suspension of 
 its full operation, and while it is used for the storage and 
 delivery of goods, requiring daily visits from one or two 
 persons; 2 [nor by a stoppage for repairs, enough employees 
 being on hand to retain possession and keep watch. ^ Inter- 
 ruptions and the necessary disuse temporarily of a saw-mill, 
 by reason of low water, derangement of machinery, &c., do 
 not break the forfeited-if-vacant-clause in a policy.^] But 
 a warranty that a family shall live in the house throughout 
 the year is not kept by merely having two workmen occupy 
 it as a lodging-place taking their meals elsewhere.^ 
 
 If there is no express stipulation that the premises shall 
 not be left vacant, the policy will not be void, although the 
 risk be increased by the fact that they are so left, unless 
 perhaps when they are purposely so left.^ So, although 
 there be an express oral promise, if the promise be in good 
 faith. ^ And under an agreement that a vessel shall be pro- 
 vided with "master, officers, and crew," the giving up the 
 vessel to workmen for repairs is no violation of the con- 
 tract.^ So a temporary vacancy with intention to return is 
 not a "removal," it not being abandoned as a place of 
 abode.^(a) There is no implied obligation to keep a watch 
 
 1 American Ins. Co. v. Foster (111.), 9 Ins. L. J. 268. 
 
 2 Albion Lead Works v. Williamsburg, &c. Ins. Co., C. Ct. (Jlass.), 2 Fed. 
 Rep. 479. 
 
 3 [Brighton Maniif. Co. v. Eeading Fire Ins. Co., 33 Fed. Rep. 232. See also 
 234. American Fire Ins. Co. v. Brighton Cotton Mannf. Co., 24 Brad. 152 ; 
 American Fire Ins. Co. v. Brighton Cotton Mannf. Co., 125 111. 131.] 
 
 * [Whitney v. Black Rirer Ins. Co., 72 N. Y. 117, 120.] 
 
 8 Poor V. Humboldt, 125 Mass. 274. See also Cook v. Continental Ins. Co., 
 70 Mo. 610. 
 
 8 Gamwell v. Merchants' & Farmers' Mut. Fire Ins. Co., 12 Cush. (Mass.) 
 167 ; Foy v. Mtna, Ins. Co., 3 Allen (N. B.), 29. 
 
 ' Kimball v. jEtna Ins. Co., 9 Allen (Mass.), 640 ; Stout v. City Fire Ins. Co. 
 of New Haven, 12 Iowa, 371. 
 
 8 St. Louis Ins. Co. v. Glasgow, 8 Mo. 713. 
 
 ^ Cummins v. Agr. Ins. Co., 67 N. Y. 260 ; Phoenix Ins. Co. v. Zucker (III), 
 9 Ins. L. J. 193. But see Sleeper v. New Hampshire Fire Ins. Co., 56 N. H. 401. 
 
 (a) The terms " absence " and " re- against vacancy " by removal " for more 
 moval " differ widely when applied to a than thirty days is not violated, as 
 dwelling-house, and a clause providing matter of law, by an absence for healthj 
 
 499 
 
§ 249] ' INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 in or about a vacant house. ^ But when by express terms, 
 if the risk is increased in any manner by the permission of 
 the insured during the currency of the policy, it is to become 
 void, the voluntarily leaving a house, occupied when insured, 
 unoccupied for such a length of time and under such circum- 
 stances as to warrant an inference that it was purposely so 
 left unoccupied, will have the effect to avoid it.^ 
 
 §249. Change of Possession; Occupancy; Vacation. — Un- 
 der a provision that the' policy shall cease to protect the 
 property from the time when it shall be " levied on or taken 
 into possession or custody under an execution, or any pro- 
 ceeding in law or in equity," an unlawful levy, made upon 
 the property as that of. a person Other than the insured, will 
 not have the effect to invalidate the policy.^ And although 
 the mere notice of the levy, by the officer charged with the 
 duty, to the defendants, — the insured, — without taking the 
 property into possession or custody, may be good as a levy, 
 it will not be sufficient to defeat the policy. It is an actual, 
 not a constructive, change of possession that is contem- 
 plated.* [Chattel mortgages on growing crops do not in- 
 crease the risk until the crops are harvested.^] And the 
 ordinary going out of one tenant is not a change of tenancy 
 till the advent of a new tenant ; nor does the vacancy dur- 
 ing the intervening time constitute a change of occupancy. 
 Thus, under a provision that " if any change be made as to 
 the tenants or occupancy of the premises," without notice, 
 the policy shall be void, the fact that the premises were 
 unoccupied at the time of the fire, the tenant having vacated 
 
 1 Soye V. Merchants' Ins. Co., 6 La. An. 761. 
 
 2 Luce V. DoTcliester Ins. Co., 105 Mass. 297. 
 
 8 Phila. Fire & Life Ins. Co. v. Mills, 44 Pa. St. 241. 
 
 4 Cnra. Ins. Co. v. Berger, 42 Pa. St. 285. And see post, § 274. 
 
 5 [Tiefenthal v. Citizens' Mut. Fire Ins. Co., 53 Mich. 306.] 
 
 intended to continue for three months, " vacant by the removal of the occu- 
 
 when there is no change in the interior pant," see Stone v. Granite State F. Ins. 
 
 furnishings ; but the question is one of Co. (N. H. ), 45 Atl. 235 ; Johnson v. 
 
 fact for the jury. Stone v. Granite Norwalk F. Ins. Co. (Mass. ), 66 N. E. 
 
 State F. Ins. Co. (N. H.), 45 Atl. 235. 569. 
 As to the meaning of the clause 
 
 500 
 
CH. XI.] SPECIAL PEOVISIONS OF THE CONTRACT, ETC. [§ 249 A 
 
 the premises but a few days previous, and no new tenant 
 having taken possession, no notice at all is necessary until 
 the change takes place; that is, until a n^ew tenant is in 
 possession. A mere surrender of one tenant without the 
 entry of another is not such a change as is contemplated by 
 the words of the proviso. ^ Nor is the leaving a building 
 unoccupied after it has been vacated by a tenant an altera- 
 tion of the use to which the premises are applied. ^ On 
 the other hand, it is not sufficient to constitute occupancy, 
 within the meaning of a stipulation that the property in- 
 sured — a trip-hammer shop — shall not remain unoccupied 
 over thirty days, that the tools remain in the shop, and an 
 employee of the insured goes almost every day through the 
 shop to look around and see if everything is right, but no 
 practical use is made of the building.^ 
 
 [§ 249 A. Scope of the Terms "Vacant" and "Unoccu- 
 pied." — Vacant and unoccupied are not synonymous, and 
 both facts must concur to render a policy void. Vacant 
 means empty of everything but air; wherefore a house full 
 of furniture, clothing, &c., left in charge of servants, is not 
 vacant. Unoccupied means that no one has the actual use 
 or possession.* The words must be construed with refer- 
 ence to the kind of structure or building insured. As to a 
 saw-mill, total abandonment seems to be necessary.^ Oc- 
 cupancy means actual use as a dwelling-house, and leav- 
 ing some one to look after the house is not a sufficient 
 substitute for the care and supervision involved in occu- 
 
 1 McAnnally v. Somerset County Mut. Ins. Co., 2 Pittsburgh Rep. (Crumrine) 
 189 ; Alston v. Old North State Ins. Co., 80 N. C. 326 ; 8 Ins. L. J. 428. [A 
 stipulation against change of tenants or use of premises does not render the policy 
 void by reason of a change to no tenant and no use. Somerset County Mut. Fire 
 Ins. Co. V. Usaw, 112 Pa. St. 80.] But under such facts, a provision in the 
 policy that its protection shall he suspended while the house should be unoccu- 
 pied, was held to apply to a vacancy of six days between the outgoing and in- 
 coming tenants, the latter having waited for repairs. Mtna. Ins. Co. v. Meyers, 
 63 Ind. 238 ; s. c. and note, 8 Ins. L. J. 249 ; ante, § 191. 
 
 2 Hawkes v. Dodge County Mut. Ins. Co., 11 Wis. 188. 
 
 8 Keith V. Quincy Mut. Fire Ins. Co., 10 Allen (Mass.), 228. 
 * [Herrman v. Merchants' Ins. Co., 44 N. Y. Super. 444, 453.] 
 6 [Whitney v. Black River Ins. Co., 9 Hun, 37, 42.] 
 
 501 
 
§ 249 A] INSUEANOE : FIEE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 pancy.i Leaving a dwelling furnished and in charge of his 
 farmer who occupied the farmhouse near by, and whose wife 
 visited and aired the dwelling every few days, will not satisfy 
 the condition of occupancy. The house must be used by 
 human beings as their customary place of abode.^ In case of 
 a saloon it is enough if at the time of loss a clerk having 
 charge of the building was occupying it with appropriate 
 furniture, fitting it up for business and sleeping in it.^ A 
 purpose to move into the house, though partly executed by 
 filling it with furniture, will not aid the assured unless the 
 purpose is rendered complete by actual occupancy. If the 
 premises become unoccupied and remain so up to and at 
 the time of the fire, the condition is broken.* A condition 
 in a policy of insurance on a hog-house that the policy 
 should be void if the premises became vacant by the removal 
 of the owner or occupant, refers to the human occupant of 
 the whole premises to which the hog-house belongs, and not 
 to the absence of hogs, of the four legged variety.^ Where 
 the occupant moved out leaving only a bedstead and a strip 
 of carpet, and one of his sons slept in the house for a month 
 after, but afterward the house was entirely abandoned for 
 six or seven weeks before the fire, the court held the prem- 
 ises vacant, and the policy void not only as to the house but 
 also as to all the farm buildings insured, since the condition 
 as to occupancy of the premises applies to all the subjects 
 of the contract, and has a potent influence on the assump- 
 tion of the entire risk.^ If the policy covers several build- 
 ings, as a dwelling and outbuildings, the fact that the 
 outbuildings remain occupied will not save the contract if 
 ithe dwelling becomes vacant; the condition is to be applied 
 distributively.'^] 
 
 1 [Bonenfant v. Insijrance Co., 76 Micli. 654, 659, citing 55 Mich. 292, and 
 Ashworth v. Insurance Co., 112 Mass. 422.] 
 
 " [Herrman v. Adriatic Fire Ins. Co., 85 N. Y. 162.] 
 8 [Stensgaard ». National Fire Ins. Co., 36 Minn. 181.] 
 « [Barry v. Prescott Ins. Co., 35 Hun, 601, 604-605.] 
 6 [Kimball v. Monarch Ins. Co., 70 Iowa, 513.] 
 « [Hartshorne v. Agricultural Ins. Co., 50 KT. J. 427, 429.] 
 ' [Herrman v. Adriatic Fire Ins. Co., 85 N. Y. 163.] 
 502 
 
CH. XI.] SPECIAL PEOVISIONS OF THE CONTEACT, ETC. [§ 249 B 
 
 [§ 249 B. Vacancy not per se an Increase of Risk under 
 Ordinary Circumstances. — Ordinarily vacancy is not such an 
 increase of risk as will avoid a policy, without express agree- 
 ment to that effect.1 A building occupied as a dwelling- 
 house one quarter mile away from any other dwelling, was 
 insured as a dwelling-house, but for more than a year pi'ior 
 to its destruction by fire was untenanted. This was held 
 not to violate a condition in the policy, reading "Any mate- 
 rial increase of the risk shall avoid the policy. " ^ No 
 inquiry being made, a failure to state that the dwelling 
 insured is vacant is not breach of the condition avoiding the 
 policy for the omission of anything material to the risk.^ 
 When the policy contains no stipulation or condition against 
 vacancy of the insured premises it is incompetent to ask an 
 expert if the risk on a dwelling-house is increased by its 
 vacancy.* And it is error to charge that if the house was 
 vacant and if you believe the risk was thereby increased, the 
 policy is void.^ But where a dwelling-house was abandoned 
 by the assured, and an intruder came in and used it for a 
 liquor saloon during which use it was burned, the policy 
 was avoided by the increase of risk.^ A mere casual vacancy 
 caused by the difficulty of procuring a tenant for the insured 
 house, ought not to work a forfeiture of a policy ^ as an 
 increase of risk, and it is understood that in the absence 
 of a warranty the companies expect to cover such cases of 
 temporary vacancy. If a house is insured as a tenement, 
 temporary vacancies are contemplated by the parties as a, 
 part of the risk.^ In a later case the court held that 
 although the house was described as occupied by a tenant, 
 yet the leaving of the tenant at six o'clock in the evening 
 
 1 [Becker v. Farmers' Mut. Fire Ins. Co., 48 Mich. 610 ; Residence Fire Ins. 
 Co. V. Hanuawold, 37 Mich. 103, 107.] 
 
 2 [Gilliat V. Pawtucket Mut. Fire Ins. Co., 8 R. I. 282, 293.] 
 8 [Browning v. Home Ins. Co., 71 N. Y. 508, 511.] 
 
 « [Liverpool, &c. Ins. Co. v. MoGuire, 52 Miss. 227, 232.] 
 5 [Insurance Co. v. Long, 51 Tex. 89.] 
 ^ [Western Ass. Co. v. McPike, 62 Miss. 740.] 
 ' [Schultz V. Merchants' Ins. Co., 57 Mo. 331, 337.] 
 
 * [Lockwood V. Middlesex Mut. Ins. Co., 47 Conn. 553. See also Insurance 
 Co. V. Hannum, 11 Monaghan (Pa.), 369.] 
 
 503 
 
§ 249 C] INSUKANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 avoided the policy at once, and no recovery could be had for 
 a loss occurring at two o'clock the next morning. ^ The 
 cases differ in the fact that in the former there was no 
 specific provision that the policy should be void by vacancy, 
 while in the latter there was such a provision. In the early 
 case the vacancy could only avoid the policy as an increase 
 of risk not contemplated by the parties. In a still later 
 hearing of the Bennett case it was held that the policy was 
 not saved by the fact that the fire had actually commenced, 
 and was smouldering unobserved when the tenant moved 
 out. 2] 
 
 [§ 249 C. Vacant. — A vessel hauled up on the beach and 
 left alone is " unoccupied. " ^ A house that remains three 
 months vacant and is then let to a tenant who up to the loss 
 had done nothing but put into it implements for cleaning, 
 is unoccupied within the meaning of the policy.* When a 
 policy provided that if the insured house should be " vacant 
 or unoccupied " it should be void, it was held that a vaca- 
 tion of five days during the time only, that was necessary 
 for the changing of tenants of the assured, when the fire 
 occurred within that time, avoided the policy.^ Leaving a 
 few articles in the house, and non-delivery of the key by the 
 outgoing tenant to the owner, will not save the vacancy.^ 
 The mere presence of goods in the house and a supervision 
 over it is not an " occupancy. " That requires a " living " in 
 it.^ Where the tenant moved out September 26 and a fire 
 occurred October 1st, and the owner who lived a mile and a 
 half away had spent a part of each intervening day in clean- 
 ing the house, but did not stay there at night, the house was 
 held vacant.* Occupation of the land on which the building 
 
 1 [Bennett v. Agr. Ins. Co., 50 Conn. 420.] 
 
 2 [51 Conn. 504.] 
 
 8 [Reid V. Lan. Fire Ins. Co., 90 K Y. 382.] 
 
 * [Litoh V. North British, &c. Ins. Co., 136 Mass. 491.] 
 
 5 [Ridge V. Insurance Co., 9 Lea, 507, 515.] 
 
 ^ [American Ins. Co. v. Padfield, 78 111. 167 ; Corrigan v. Conn. Fire Ins. Co., 
 122 Mass. 298, 300.] 
 
 ' [Craig V. Springfield Fire & Mar. Ins. Co., 34 Mo. App. 481 ; Moore v. In- 
 .surance Co., 64 N. H. 140 ; Sonneborn v. Insurance Co., 44 K J. 220.] 
 
 8 [Feshe v. Council Bluffs Ins. Co., 74 Iowa, 676.] 
 504 
 
CH. XI. j SPECIAL PROVISIONS OF THE CONTRACT, ETC. [§ 249 D 
 
 is situated is not enough. The word " premises " in the 
 vacancy clause refers to the house. ^] 
 
 [§ 249 D. Not Vacant. — Temporary absence of the dweller 
 or tenant on the night of the fire is not a vacancy. ^ A tem- 
 porary absence from Wednesday till Monday to attend a 
 funeral is not a vacating of the premises that will avoid the 
 policy.^ It is sufficient for occupancy if a single person 
 remains in the house, though described at the time of insur- 
 ance as a "family residence."* Mere sleeping in an adjoin- 
 ing house, if by day the assured lives in the insured premises, 
 will not break the "vacant or unoccupied" condition in a 
 policy.^ When the assured had taken possession of the 
 house for the purpose of permanent occupancy, had moved 
 in her furniture and goods, and was cleaning up the house 
 preparatory to living in it, it was held that the house was 
 not "vacant or unoccupied "^ although she slept in a build- 
 ing a few rods distant, and did not eat or sleep in the house, 
 and after a few days went off on a business trip during 
 which the house was burned.^ Where a tenant moved out 
 on Tuesday, and the landlord on Wednesday took possession 
 with his servants and began clearing and moving goods 
 into the building until Friday night, intending to have the 
 family fully domiciled there on Saturday, but on Friday 
 night the house burned, it was held that the house was not 
 vacant.^ When a "ten tenement frame block" has two of 
 its tenements occupied, it is not " vacant or unoccupied " 
 so as to break that condition in a policy.^ A grain ele- 
 vator, though at times not in use, is not vacant when men 
 are in and out all the time and the owner keeps his papers 
 there. 10] 
 
 1 [Sexton V. Hawkeye Ins. Co., 69 Iowa, 99.] 
 
 2 [Laselle v. Insurance Co., 43 N. J. L. 468.] 
 
 » [Franklin Fire Ins. Co. v. Kepler, 95 Pa. St. 492.] 
 
 4 [Imperial Fire Ins. Co. v. Kiernan, 83 Ky. 468.] 
 
 6 [Gibbs V. Continental Ins. Co., 13 Hun, 611, 620.] 
 
 6 [Shackelton o. Sun Fire Office, 21 N. W. Eep. 343, 345.] 
 
 ' [Shackelton v. Sun Fire Office, 55 Mich. 288.] 
 
 8 [Eddy V. Hawkeye Ins. Co., 70 Iowa, 472.] 
 
 9 [Harrington v. Fitchburg Ins. Co., 124 Mass. 126, 129.] 
 
 If [Williams v. North German Ins. Co., 24 Fed. Rep, 625 (Iowa), 1885.] 
 
 505 
 
§ 249 F] INSURANCE : fire, life, accident, etc. [ch. XL 
 
 [§ 249 B. Vacant and so Remain. — Under a condition 
 that "if the assured shall allow the building to become 
 vacant and unoccupied and remain so," the policy shall be 
 void, the mere occurrence of a vacancy does not forfeit the 
 policy ; the building must remain vacant. If, however, it is 
 not occupied within a reasonable time, the company may 
 declare the contract forfeited. If the company does not 
 exercise its power during the breach of condition and the 
 premises again become occupied, its right to declare a for- 
 feiture ceases. In relation to such a clause, knowledge of 
 the agent at the time of consenting to a transfer, that the 
 premises were vacant, but without proof of consent that they 
 should remain so, could not estop the company in a case 
 where the building was vacant twenty months and then 
 destroyed by fire.^ A clause stating that if the insured 
 house " become unoccupied or vacant and so remain " means 
 so remain until the fire.^ And a vacancy cannot avail the 
 company if it ceased before loss.^] 
 
 [§ 249 F. Tenant's Removal. Diligence of assured does not 
 enter the question unless so expressed, where the policy is 
 to be void if the premises become vacant. It is error to 
 instruct that if the insured used due diligence to keep the 
 building occupied the policy was not avoided.* The perma- 
 nent removal of a lessee, though during his lease and with- 
 out knowledge of the insured, will be fatal under the 
 ordinary provision.® But where the policy was to be void 
 " if the premises shall be used or occupied so as to increase 
 
 the risk, or be or become vacant or unoccupied, or 
 
 or or , or by any means within the knowledge 
 
 and control of the assured," it was held that the latter 
 clause modified all the preceding, and that the removal of 
 a tenant on the day of the fire without knowledge of the 
 insured did not avoid the policy.^ When a policy prohibits 
 
 1 [Insurance Co. v. Garland, 108 111. 220.] 
 
 2 [Laselle v. Insurance Co., 43 IST. J. L. 468, 469.] 
 8 [Laselle v. Insurance Co., 43 N. J. L. 468.] 
 
 * [Niagara Fire Ins. Co. v. Drda, 19 Brad. 70.] 
 
 5 [Insurance Co. v. Wells, 42 Ohio St. 519, 521.] 
 
 6 [American Cent. Ins. Co. v. Clarey, 28 Brad. 198.] 
 
 506 
 
CH. XI.] SPECIAL PEOVISIONS OF THE CONTEACT, ETC. [§ 249 H 
 
 the vacation of the insured house by the insured's consent, 
 it is incumbent on the assured to prove that such a vacation 
 when established, was beyond his control, before he can 
 recover, i] 
 
 [§ 249 G. Answer ; Eeoccupancy before Fire ; Unreasonable 
 Condition ; Prior By-law ; Maine Statute. — An answer in the 
 application clearly false as to the occupancy of the premises 
 will prevent recovery.^ A policy once avoided by non- 
 occupancy for ten days, will not be revived by reoccupation.^ 
 A lot of distillery buildings, presumably available for no 
 other use, and unoccupied at the time of the issurance of the 
 policy, were insured, the policy stating that it should be 
 avoided by vacancy or disoccupancy, but expressly covering 
 a carpenter's risk, and also expressly prohibiting the dis- 
 tillery business. The carpenter's work was finished before 
 the expiration of the policy and the buildings remained un- 
 occupied, but it was held that the company would not be 
 heard to say that the policy was forfeited.* Practically the 
 condition forfeited the policy in any event. If the property 
 was used for a distillery there was forfeiture. It could not 
 probably be used for anything else, and yet if it was not 
 forfeiture also would result, — a condition too unreasonable 
 to stand. By-laws cannot destroy express contracts. Exist- 
 ing regulations enter into the agreement, but although a 
 policy is declared to be subject to the charter and by-laws, 
 a by-law to the effect that policies shall cease on twenty 
 days' vacancy of the building insured does not affect a 
 policy issued prior to its enactment.^ By the Maine statute, 
 vacating a building will not affect the policy unless the risk 
 is materially increased thereby.^] 
 
 [§ 249 H. Express 'Waiver. — When the assured moved out 
 of the insured premises more than thirty days before the fire 
 occasioning the loss, in violation of the stipulations of the 
 
 1 [North American Fire Ins. Co. v. Zsenger, 63 III. 464, 466.] 
 
 2 [Mullin V. Vt. Mut. Fire Ins. Co., 54 Vt. 223.] 
 8 [Moore v. Insurance Co., 62 N. H. 240.] 
 
 * [Alkan v. New Hampshire Ins. Co., 53 Wis. 136, 142.] 
 
 5 [Becker v. Farmers' Mut. Fire Ins. Co., 48 Mich. 610.] 
 
 6 [Thaj'er v. Providence, &c. Ins. Co., 70 Me. 631, 538.] 
 
 507 
 
§ 249 H] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 policy, but at the time went to the secretary of the company 
 and notified him of the same, he replying " We waive all 
 that," it was held that the policy was good.^ A general 
 agent is presumed to have authority to insert in the policy 
 permission that the premises may be vacant for a certain 
 time.^ And he may do the same orally, although the policy 
 requires indorsement, or even bind the company as to future 
 vacancies by modifying the contract. 
 
 A general agent of an insurance company may waive the 
 performance by the insured of conditions in the policy, and 
 bind the company by such waiver. Hence, when the policy 
 declared that a waiver of the " vacant or unoccupied " clause 
 should not avail unless indorsed on the policy, a general 
 agent by verbal agreement with the insured was held to 
 have legally waived this condition. ^ In this case the general 
 agent told the insured distinctly that it was not necessary to 
 have the matter indorsed on the policy. Where premises 
 were not to be left unoccupied, but on the day a vacancy 
 occurred a general agent of the company, being told of it, 
 wrote in the policy, "The dwelling-house being unoccupied 
 for a short time, but being in charge of a trusty person liv- 
 ing near by, shall be no prejudice to the policy," it was 
 held that this was a modification of the contract that cov- 
 ered other vacancies afterward occurring.* In one case, a 
 farm tenant left, and the owner told the agent that his men 
 would work the farm with other land, moving from fai'm to 
 farm, and while on the farm in question would live in the 
 buildings thereon. The agent then indorsed on the policy, 
 " It is understood that the buildings insured hereunder are 
 now occupied for dwelling and farming purposes. " It was 
 held that the premises were not occupied within the mean- 
 ing of the indorsement. Taylor and Orton, J J., however 
 dissented, and with much reason. It is absurd to allow an 
 agent to make an indorsement expressly to announce that a 
 
 1 [Adams v. Greenwich Ins. Co., 9 Hun, 45, 48.] 
 
 2 [Continental Ins. Co. v. Ruckman, 127 111. 364.] 
 
 3 [Walsh V. Hartford Fire Ins. Co., 9 Hun, 421, 423.] 
 « [Steen v. Niagara Fire Ins. Co., 89 N. Y. 315.] 
 
 508 
 
CH. XI.] SPECIAL PROVISIONS OF THE CONTRACT, ETC. [§ 249 I 
 
 certain state of facts shall be considered an occupancy, and 
 then hold that state of facts not an occupancy within the 
 meaning of the agent's indorsement.^ A permission to 
 leave a house vacant during the "summer" will be con- 
 strued in its broadest sense, and as equivalent to " farming 
 season. "2] 
 
 [§ 249 I. Knowledge of Agent.^ — If at the time of loss 
 the occupancy of the premises is in the same condition as 
 was known to the agent at the time of insurance, the com- 
 pany is estopped even though the applicant ignorantly 
 signed an application filled in by the agent containing an 
 erroneous statement on the subject. But if the premises 
 once become occupied after insurance, the condition takes 
 effect, and if the agent on knowing of a vacancy occurring 
 after insurance tells the assured that it will invalidate the 
 policy, or he is merely silent, the company is not estopped. 
 Nor will knowledge that a vacancy will be likely to occur, 
 as in case of a tenement or summer-house, estop the insurer. 
 
 If the agent knew the house was vacant when insured, the 
 company cannot claim a forfeiture under the occupancy 
 clause.* Knowledge of the agent is knowledge of the prin- 
 cipal, and if the agent knows the house is vacant at the 
 time of issuing the policy and receiving the premiums, the 
 condition of the policy against vacancy is waived.^ Although 
 the house was occupied by children only, a part of each 
 week, and was actually vacant at the time of the fire, yet as 
 its occupancy was in the same condition as it was at the 
 time of the insurance, which condition was then known to 
 the agent, it was held that the provision as to vacancy was 
 waived.^ Where the applicant stated that the premises 
 were unoccupied, but when occupied it was by a tenant, and 
 the agent wrote in the application that the premises were 
 
 1 [Fitzgerald v. Conn. Fire Ins. Co., 64 Wis. 463.] 
 
 2 [Vanderhoffu. Agricultural Ins. Co., 46 Hun, 328.] 
 8 [See also § 246 A, and ch. 7, anal. 5.] 
 
 * [Germania Fire Ins. Co. v. Klewer, 27 Brad. 590 ; affd in 129 HI. 599.] 
 ^ [Sentell v. Oswego County Farmers' Ins. Co., 16 Hun, 518; Jordan v. State 
 Ins. Co., 64 Iowa, 216.] 
 
 6 [Vanderhoif w. Agricultural Ins. Co., 46 Hun, 328.] 
 
 509 
 
§ 249 I] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 occupied by a tenant, and the application was signed by the 
 insured without knowledge of the misstatement, it was held 
 that the policy was not void, under the clause against 
 vacancy without assent; that the company must be held to 
 have known of the non-occupancy; that the policy really 
 was an insurance of unoccupied premises ; that it was proper 
 to amend the application so as to make it conform to the 
 insured's statement to the agent; and that a subsequent 
 vacancy after an intervening tenancy would not avoid the 
 policy, as it insured the building vacant. ^ It is error not 
 to submit to the jury the question of the knowledge of the 
 agent that the premises were vacant and unoccupied at the 
 time of issuing the policy, contrary to its provisions, for 
 such knowledge may estop the company. The law will not 
 impute the fraudulent intent involved in delivering and 
 receiving pay for an instrument known to be invalid.^ But 
 although a building may be unoccupied when insured, being 
 a new house insured a few days before completion and de- 
 scribed as a "dwelling-house, when completed to be occu- 
 pied as a private dwelling-house," yet, if it is once occupied, 
 and then left vacant for fourteen days without consent of 
 the insurer, during which time a fire occurs, the condition 
 against vacancy is broken. ^ An agent of a foreign company 
 may indorse consent of the company to non-occupancy, or he 
 may waive such indorsement by appropriate acts, but mere 
 silence with knowledge of the fact is not a waiver.* Where, 
 on renewing a policy the agent was told that the premises 
 were unoccupied, and he replied that the policy would be of 
 no effect unless the house should be occupied when a fire 
 occurred, and a loss occurred one week after while the prem- 
 ises were still vacant, it was held that the plaintiff could 
 not recover.^ Knowledge of the agent at the time of insur- 
 
 1 [Bennett v. Agricultural Ins. Co., 106 N. Y. 243.] 
 
 ^ [Short V. Home Ins. Co., 90 N. Y. 16. See also Haight i>. Continental Ins. 
 Co., 92N. Y. 51.] 
 
 8 [Lubelsky v. Royal Ins. Co., 86 Ala. 530 ; Royal Ins. Co. v. Lutelsty, IS 
 Ins. L. J. 868 (Ala.), April 9, 1889.] 
 
 * [Davey v. Glens Falls Ins. Co., 9 Ins. L. J. 494 (Minn.), 1879.] 
 
 6 [Hotohkiss V. Home Ins. Co., 58 Wis. 297.] 
 
 510 
 
CH. XI.] SPECIAL PROVISIONS OF THE CONTRACT, ETC. [§ 250 
 
 anco, that the house although then occupied was only used 
 as a summer residence, will not relieve the insured from 
 the effect of a subsequent vacancy.^ And so, though it is 
 known that the house was leased to tenants, and might 
 become vacant by the occasional change of occupants.^ The 
 true meaning of such clauses is that the policy is to be void 
 during the vacancy.] 
 
 [§ 249 J. Condition that Agent shall not waive. — A pro- 
 vision that no agent can waive conditions will not prevent 
 waiver of a vacancy known by the agent and treated as not 
 avoiding the policy.^ (a) But one having only authority 
 to make surveys and receive applications cannot waive a 
 vacancy of the premises in such a case.*] 
 
 § 250. Limitation of Risk ; Care ; Watch. — The CaseS upon 
 the effect of a statement as to circumstances material exist- 
 ing at the time of the making of the contract are perplex- 
 ingly conflicting. 
 
 On the one hand, they are held to be mere statements of 
 existing facts, for the truth of which alone the applicant is 
 responsible, and not warranties that the existing status shall 
 continue. So it has been held with reference to a statement 
 that a mill "is never left alone, there being always a watch- 
 man left in the building when it is not running," ^ that an 
 account of stock is taken once in three months.^ On the 
 other hand, it has been distinctly and repeatedly held that 
 a statement that a watchman is kept on the premises at 
 night and all other times when the mill is not in operation, 
 or when the workmen are not present, is a warranty that the 
 practice shall continue. '^ The same doctrine was held also 
 
 1 [Herrman v. Adriatic Fire Ins. Co., 85 N. Y. 163.] 
 
 ^ [Eidge V. Insurance Co., 9 Lea (Tenn.), 507.] 
 
 8 [Lamberton t'. Conn. Fire Ins. Co., 39 Minn. 130.] 
 
 * [Thayer v. Agricultural Ins. Co., 5 Hun, 566,] 
 
 5 Worswick o. Canada Fire Ins. Co., 3 App. Eep. (Ont.) 487; s. o. 15 Can. 
 L. J. N. s. 22 (1879). 
 
 Wynne v. Liverpool, &c.. Ins. Co., 71 N. C. 121 ; ante, §§ 191, 231 ; post, 
 §§ 255, 256. 
 
 ' Whitlaw V. Phcenix Ins. Co., 28 IT. C. (C. P.) 53; Blumer v. Phoenix Ins. 
 Co., 45 Wis. 622. In this case there was a dissenting opinion, and the whole 
 
 (a) See Anderson v. Manchester F. Ass. Co., 69 Minn. 182. 
 
 511 
 
§ 250] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 in another case in Wisconsin,^ where the statement was that 
 the machinery was "regularly oiled with lard and sperm oil 
 by the engineer and miller. " But as the statements were to 
 be true only so far as material to the risk, the case was 
 allowed to go to the jury, on the question whether the use of 
 a different oil by a different person was a violation of the 
 agreement.^ In another very late case,^ the very unsatisfac- 
 tory condition of the law upon this, point was thus stated : 
 " It is impossible to reconcile the decisions upon this ques- 
 tion of a continuing warranty. When an underwriter asks 
 about the particulars of a risk, he probably takes it for 
 granted that things will remain as they are ; but when the 
 courts are asked to convert this impression into a covenant, 
 and make words in the present tense operate as a stipulation 
 for the future, there is difficulty, and the authorities are 
 doubtful and divided. The result, so far as I can gather it, 
 is that when the fact appears to the courts to be a very 
 important one, such as the employment of a watchman, a 
 majority of them have said that this ought to be considered 
 a part of a continuing engagement. When the fact does not 
 appear to be so important, as that a dwelling-house is occu- 
 pied, or that a clerk sleeps in the store, it is not of that 
 character." It is obvious that the test here given — the 
 greater or less importance of the fact — is practically no test 
 at all ; and it is to be regretted that there has been any 
 departure from the salutary rule that the courts will not find 
 warranties where the parties have not clearly made thein. It 
 would have been fortunate if they had found more difficulty in 
 converting "impressions" or expectations into covenants.* 
 
 subject was very elaborately discussed, especially in the dissenting opinion, and 
 upon reargnment the decision was affirmed. 9 Ins, L. J. 444. See also May v. 
 Buckeye Ins. Co., 25 Wis. 291. 
 
 1 Redman u. Hartford Fire Ins. Co. (Wis.), 9 Ins. L. J. 222. See also Gar- 
 celon V. Insurance Co., 50 Me. 580. 
 
 2 See also post, §§ 251, 252 ; Miller v. Germania Fire Ins. Co., C. C. P. (Pa. ), 
 6 Ins. L. J. 373 ; Quiu v. National Ass. Co., J. & C. (Irish) 316 ; s. c. 1 Bennett 
 Fire Ins. Cas. 689. 
 
 3 Albion Lead Works v. Williamsburg City Fire Ins. Co., C. Ct. (Mass.), 
 Lowell, J., 2 Fed. Hep. 479. 
 
 * See ante, § 191. National Bank v. Insurance Co., 95 U. S. 673, 678 ; Ger- 
 hauser v. North British, &c. Ins. Co., 7 Nev. 174. 
 512 
 
CH. XL] SPECIAL PROVISIONS OF THE CONTRACT, ETC. [§ 250 
 
 When it is warranted that a watchman shall be kept on 
 the premises, this means that a watchman is to be kept 
 in the manner in which men of ordinary care and skill in 
 similar departments keep a watchman ; and to show this, 
 evidence of the usage in similar establishments may be 
 introduced. A substantial compliance, though not a con- 
 stant watch, uninterrupted either by unknown accident or 
 negligence, is required. ^ (a) And an occasional leaving of 
 the premises to look after property on the opposite side of 
 the street is no breach of the warranty. ^ And if the watch- 
 man is within the enclosure he is "on the premises."^ 
 What is a "suitable watch" depends upon the circum- 
 stances.* In Massachusetts, the questions arose in Parker 
 V. Bridgeport Insurance Company,^ what constituted a good, 
 
 '■ Crocker v. People's Mut. Fire Ins. Co., 8 Cush. (Mass.) 79. 
 
 2 Hovey v. Am. Mut. Ins. Co., 2 Duer (N. Y. Superior Ct.), 554. 
 
 8 Andes Ins. Co. a. Shipman, 77 111. 189. 
 
 * Peroival v. Maine Mut. Ins. Co., 33 Me. 242. 
 
 6 10 Gray (Mass.), 302. The case was thus staled by Shaw, C. J. : — 
 
 " In a policy of insurance upon a saw-mill, the assured covenanted ' that the 
 representation given in the application for this insurance contains a just, full, and 
 true exposition of all the facts and circumstances in regard to the condition, sit- 
 uation, value, and risk of the property insured, so far as the same are known to 
 the assured and material to the risk ; and that if any material fact or circumstance 
 shall not have been fully represented, the risk hereupon shall cease and determine, 
 and the policy be null and void.' The applicant, to the questions, ' Is a watch 
 kept upon the premises during the night ? Is any other duty required of the 
 watchman than watching for the safety of the premises ? ' answered, ' A good 
 watch kept ; men usually at work. Watchmen work at the saws ; ' and answered 
 in the negative this question : ' Is the building left alone at any time after 
 the watchman goes off duty in the morning till he returns to his charge in the 
 evening ? ' In fact, no watch was ever kept on the premises after twelve o'clock 
 on Saturday, or at all on Sunday, night, other than the workmen sleeping there, 
 who were instructed to, and habitually did examine the mill with 7-eference to 
 fires before going to bed ; and the fire occurred on Sunday night, when no one was 
 
 (a) See London & Lancashire F. Ins. by the law of that State. King Brick 
 
 Co. h. Gerteson (Ky.), 51 S. W. 617. Manuf. Co. v. Phosnix Ins. Co., 164 
 
 The words " constant watch " in a policy Mass. 291. "Constant watch " required 
 
 may amount to a description of the risk, by a fire policy may thus relate to a per- 
 
 and, if so, under a statute like that of manentor habitual change in the use or 
 
 the State of Maine, they constitute a occupation of the property, and not to 
 
 representation and not a warranty. Day the temporary absence of a watchman 
 
 !). Dwelling-House Ins. Co., 81 Maine, without the insured's knowledge. King 
 
 244. And where property so insured was Brick Manuf. Co. v. Phoenix Ins. Co., 
 
 situated in Maine, and the policy was 164 Mass. 291. 
 there issued, it was elsewhere construed 
 
 VOL. I.— 33 513 
 
§ 251] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 suitable, or proper watch, and whether such a one was kept, 
 at the times required by the terms of the contract; they were 
 held to be questions for the jury, 
 
 § 251. Limitation of Risk; Care of Premises; 'Watchman. — 
 Several other cases upon the meaning of a warranty to keep 
 
 on the premises. The inquiry is not as to watchman or watchmen ; the more 
 generic term ' watch ' embracing the various modes of watching such a factory. 
 It was a factory the machineiy of which was driven by water ; no steam was used ; 
 it was not a manufactory of metals, or one that required the use of fire. Upon an 
 examination of the bill of exceptions, it appears to us that there were several 
 points ruled positively as matter of law which should have been left to the jury ; 
 and this on several grounds. In the first place, if there was not an absolute stipu- 
 lation that a watch should be kept during the whole of every night in the week, 
 such a watch as would be necessary and proper to the .safety of such an establish- 
 ment against fire, then it was a question of fact whether the watch actually kept 
 was or not a good and suitable watch. (Crocker v. People's Mut. Fire Ins. Co., 
 8 Cush. (Mass. ) 79. See also Jones Manufacturing Co. v. Manufacturers', &c. Ins. 
 Co., 8 Cush. (Mass.) 82; ante, § 188.) If there is a real difference between the 
 requirement of a watch immediately after a working day, and Sunday, which is a 
 day of rest, then a watch might be deemed good and adequate on Sunday night, 
 which might not be after a working day. The causes of danger of fire in a factory, 
 we suppose, are lamps and stoves, after work is done ; friction, arising from the 
 great velocity and iiregular action of working machinery ; spontaneous combus- 
 tion ; incendiaries ; and lightning. The last, of course, no watch could aifect ; 
 the three first, perhaps the greatest, would be likely to disclose themselves within 
 a few hours after the close of work, and therefore would seem to exist in a less 
 degree on Sunday night. If there was ground to except Saturday night, 
 when the workmen, charged as watchmen, examined the premises after the close 
 of business, having an interest in the safety of a building in which they slept, or 
 if there was ground to except Sunday night, after a day in which no work had 
 been done, then it was incorrect to charge the jury that it was the duty of the 
 assured to have a person to keep a good watch in the building during the whole 
 of Saturday and Sunday nights ; othenrise they could not recover. But suppose 
 the sixteenth question and answer, by their proper construction, could be held to 
 be a representation that the plaintiffs had been accustomed to keep, and would in 
 future keep, a watch on the premises every night during the week, including 
 Sunday and Saturday, stUl the stipulation that this was a just and true exposition 
 is not absolute, but only sub modo ; the contract is, that is, so far as they are 
 known to the assured, and are material to the risk. The question therefore is, not 
 only whether the assured was substantially to comply with his stipulation that 
 the representation is true and just, but whether such compliance was material to 
 the risk. This is a question of fact, to be decided by the evidence. The insurer 
 may prescribe any conditions to his undertaking that he pleases, and if he makes 
 insurance on condition that a constant watch shall be kept on the premises, other- 
 wise the policy shall cease and be void, then if the assured fails to comply with 
 the conditions, his policy is to cease, and no question can be made whether com- 
 pliance affected the risk in any way. But when such condition is qualified by the 
 limitation that it is a failure dependent on the question whether it is material to 
 the risk, it opens that question in each particular case." 
 
 514 
 
CH. XI.] SPECIAL PROVISIONS OF THE CONTRACT, ETC. [§ 252 
 
 a watchman nights have been before the courts. In Con- 
 necticut it has been held that an answer to the question, 
 "Is there a watchman in the mill during the night? " that 
 "There is a watchman nights," carries with it an obligation 
 to keep a watchman in the mill every night in the week. 
 So that if it is left without a watchman on Sunday morning, 
 it is a breach of the contract which avoids the policy. ^ And 
 substantially the same doctrine has been laid down in New 
 York, where it has been held that a statement in answer to 
 a specific question, that there is a watchman nights, though 
 followed by a statement that the mill is left alone after the 
 watchman goes off duty in the morning, at meal times, and 
 on the Sabbath, and other days when the mill does not run, 
 requires that there should be a watchman on the premises as 
 late after shutting down on Saturday night as three or four 
 o'clock the next morning, and that loss by fire occurring at 
 that hour in the morning, in the absence of a watchman, is 
 not covered by the policy.^ Whether a warranty that a 
 watchman is to be on duty at all times is violated by the 
 watchman going to his meals, there being no exception of 
 such absence, has been held to be a question for the jury.^ 
 But where the mill was said to be constantly worked, and 
 in answer to a question whether a watch was kept, it was 
 said that there was "none, except people working in the 
 mill during the night," it was held that this did not amount 
 to a stipulation that the mill should be run every night, or 
 on the Sabbath.* 
 
 § 252. Limitation of Risk ; 'Watchman ; Excuse for Absence. 
 ■ — In First National Bank of Ballston v. Insurance Company 
 of North America, it appeared that the following interroga- 
 tory was propounded to the insured : " Watchman, — Is one 
 kept in the mill or on the premises during the night, and at 
 all times when the mill is not in operation, or when the 
 
 1 Sheldon v. Hartford Fire Ins. Co., 22 Conn. 235 ; Glendale Manuf. Co. v. 
 Prot. Ins. Co., 21 id. 19. See also ante, § 188. But see Ripley v. Astor Ins. Co., 
 17H0VV. Pr. (N. Y.)444. 
 
 2 Ripley v. jEtna Ins. Co., 30 N. Y. 136, reversing s. o. 29 Barb. (N. Y.) 550. 
 " Giteon V. Farmers', &c. Ins. Co., 1 Cin. Sup. Ct. 410. 
 
 * Prieger v. Exchange In."!. Co., 6 Wis. 89. 
 
 515 
 
§ 252] INSURANCE ; FIEE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 workmen are not present? " Answer: "Yes." And this 
 was held to be a warranty ; and that the fact that the day 
 before the fire the sheriff levied execution on the personal 
 property in the mill, excluding and locking the doors 
 against the employees, was no excuse for a breach; nor 
 could the deputy sheriff in custody, or a trustee of the 
 insured, both of whom were together in the office of the 
 mill, some two rods from it, but who did not in fact keep 
 watch, be considered a watch within the meaning of the 
 policy.^ [Having a man sleep on the premises is not a com- 
 pliance with a warranty to keep a watchman.^ A man who 
 works in the mill by day and sleeps at night too far away 
 from the mill to see it, does not fulfil the conditions of a 
 policy requiring a watchman to guard the premises when 
 idle.^ A warranty to keep a watchman on the premises 
 insured is fulfilled if, at the time of the loss, a watchman 
 is on the premises connected with the mill, and in a better 
 position to watch the mill than if he were in it.* (a)] 
 
 1 50 N. Y. 46. 
 
 2 [Brooks V. Standard Fire Ins. Co., 11 Mo. App. 349.] 
 8 [Wenzel v. Com. Ins. Co., 67 Cal. 438.] 
 
 * [Sierra Milling, &c. Co. v. Hartford Fire Ins. Co., 76 Cal. 235.] 
 
 (a) This case was decided under and watchmen are employed against all 
 
 § 2629 of the Cal. Civil Code, which dangers, and not merely against fire, 
 
 provides that " an insurer is not liable the word is to receive a reasonable con- 
 
 for a loss caused by the wilful act of the struction, and the court cannot in 
 
 insured ; but he is not exonerated by every case pass upon the word or his 
 
 the negligence of the insured, or of his care, as matter of law, without add- 
 
 agents, or others." A late decision holds ing to the contract. Power i'. City F. 
 
 that this statute, and a clause in the Ins. Co., 8 Phila. 566 ; Parrish v. Vir- 
 
 policy providing that " one or more ginia F. & M. Ins. Co. (N. C), 20 Ins. 
 
 watchmen shall be on duty constantlj', L. J. 95 ; Flyer v. German-Am. Ins. 
 
 day and night, in and immediately Co., 121 N. Y. 689 ; 31 N. Y. St. Kep. 
 
 about the said buildings or works," are 836. A foreman who with his men 
 
 not complied with by having a day kept watch of a vacant mill, which was 
 
 employe sleep in a house three hundred close to the adjacent yard where they 
 
 and fifty yards from the insured .saw-mill worked, was held to be a " watchman, " 
 
 and visit it twice at night, it not being though he could, when at work, see 
 
 fully visible from the house. McKenzie only one side of the mill, and not into 
 
 V. Scottish Union & N. Ins. Co., 112 it. Spies v. Greenwich Ins. Co., 97 
 
 Cal. 548, 559 ; Rankin v. Amazon Ins. Mich. 310 (Grant, J., dissenting) ; Au 
 
 Co., 89 Cal. 203. But as the word Sable Lumber Co. v. Detroit M. M. F. 
 
 "watchman" is Indefinite in meaning, Ins. Co., 89 id. 407. 
 516 
 
OH. XI.J SPECIAL PROVISIONS OJ? THE CONTEAOT, ETC. [§ 253 
 
 § 253. Limitation of Risk ; Working of Mills. — An answer 
 to the question, "During what hours is the factory worked? " 
 stating that it is " usually " worked certain hours in. the 
 summer, and certain other hours in the winter, and adding, 
 "Short time now," is, it seems, no warranty that the mill 
 shall not run at other hours. ^ [If the policy and applica- 
 tion are silent as to the number of hours the mill is to run, 
 the policy will not be affected by running it over hours. ^J 
 " Constantly worked " means worked during the usual and 
 customary working hours and days in the particular busi- 
 ness with reference to which the language is used.^ In 
 Mayall v. Mitford,* it was said that where certain mills 
 were warranted to be worked by steam, and by day only, it 
 was not enough to invalidate the policy to show that the 
 engine was kept running by night, but it must also appear 
 that the mills were kept going. The words " worked by day 
 only " refer to the mills, not the engine, and it is no breach 
 of the warranty that the engine is kept going all the time.^ (a) 
 
 1 North Berwick Co. v. IT. E. Fire & Mar. Ins. Co., 52 Me. 336. 
 
 ^ [German-American Insurance Co. u, Steiger, 109 Illinois, 254. See last 
 case in § 251.] 
 
 ' Pnegeiv. Exchange Mut. Ins. Co., 6 Wis. 89. 
 
 * 6 Adol. & Ell. 670. 
 
 5 [Whitehead v. Price, 2 Cr. M. & R. 447, 454. The words "worked hy 
 day only," in a policy, mean, working in its popular sense, not a mere turning of 
 shafts without anj' practical results. Whitehead v. Price, 5 Tyrw. 825, 832.] 
 
 (a) The insurer has the right to stipu- 7 Lea (Tenn.), 704. So if the policy 
 late against the cessation of the running expressly provides that the mill shall 
 of a mill without its consent, and for not he run after 10 p.m., and it is run 
 the care and supervision of skilled later, there is a forfeiture, especially 
 workmen necessarily employed in run- when a larger premium is charged for 
 ning it during the customary working running it at night. Alspaugh v. Brit- 
 season ; in such case, if watchmen are ish-American Ins Co., 121 N. C. 290. 
 substituted for workmen, the policy is A condition avoiding a policy upon a 
 voidable at the insurer's option. See manufactory if it ceases to be operated 
 Dover Glass-Works Co. v. American F. for more than ten consecutive days, does 
 Ins. Co., 1 Marvel (Del.), 32; City not apply to a temporary stoppage of 
 Planing & Shingle Mill Co. v. Mer- machinery from such causes as sickness, 
 chants' Mut. F. Ins. Co., 72 Mich, breakage, or low water, or the freezing 
 654 ; Stone v. Howard Ins. Co., 153 of the mill-race. Ladd v. jEtna Ins. 
 Mass. 475 ; Cronin v. Phila. Fire Ass'n Co., 147 N. Y. 478 ; Bellevue RoUer- 
 (Mich.), 82 N. W. 45 ; American F. Mill Co. v. London & L. F. Ins. Co, 
 Ins. Co. V. Brighton Cotton Manuf. Co., (Idaho), 39 Pao. 196. 
 125 111. 131 ; Poss v Western Ass. Co., 
 
 517 
 
§ 253 B] iNSUEANCB ; fiee, life, accident, etc. [CH. XI. 
 
 [§ 253 A. Mills ; Provisions against Stoppage. — The condi- 
 tion against ceasing to operate a factory is not broken by a 
 temporary suspension caused by an epidemic,^ or for repairs 
 which were permitted by the policy; nor by a temporary 
 suspension of parts of the business, the rest continuing; nor 
 by such a stoppage of all work as may result from want of 
 materials.^ But when the policy declares its suspension by 
 stoppage of the mill insured for more than twenty days from 
 any cause whatever, without notice to the company, a stop- 
 ping for necessary repairs is within the provision.^] 
 
 [§ 253 B. Mills ; Agent's Knovrledge before Issue of the 
 PoUcy. — If at the time of the fire a factory is operated in 
 the same manner as it is known to be at the time of insur- 
 ance, the policy will not be void under the clause against 
 ceasing operations, although the operation at both times 
 named was only a very slight one.* Knowledge of the agent 
 at the time of issuing the policy, no matter how obtained, 
 is knowledge of the company. If the agent knows that a 
 factory insured is to run at night and be lighted by kero- 
 sene, the policy will not be void by keeping kerosene for 
 that purpose, contrary to its provisions.^ The knowledge 
 of the general agent who countersigned and delivered the 
 policy on a distillery, that it had always been run at night, 
 is a waiver of the condition against night running.*" But 
 notice at the time of issuing the policy of an intention to do 
 an act in the future does not ripen into knowledge of the 
 existing fact, even when the specified period has passed, nor 
 will verbal consent of the company before issue of the policy, 
 that such an act may be done in the future, estop it.'^ And 
 in Massachusetts, in harmony with the decisions of that 
 State, spoken of in § 145 et seq., it is held that if a factory 
 
 1 [Poss V. Western Assurance Co., 7 Lea (Tenn.), 70i, 707.] 
 
 2 [American Fire Ins. Co. v. Brighton Cotton Manuf. Co., 125 111. 131.] 
 8 [Day V. Mill Owners' Mut. Fire Ins. Co., 70 Iowa, 710.] 
 
 ■* [I.ebanon Mut. Ins. Co. v. Erb. 112 Pa. St. 149.] 
 
 ^ [Couch V. Eochester German Fire Ins. Co., 25 Hun, 469 ; "Woodward v. Re- 
 public Fire Ins. Co., 32 Hun, 365.] 
 
 » [American Cent. Ins. Co. v. McCrea, Maury, & Co., 8 Lea (Tenn.), 513.] 
 ' [McNierney v. Agricultural Ins. Co., 48 Hun, 239.] 
 518 
 
CH. XI.] SPECIAL PKOVISIONS OF THE CONTRACT, ETC. [§ 254 
 
 is run at night in violation of a provision in the policy the 
 latter is avoided, and oral evidence that similar establish- 
 ments were usually so run and could not be successfully 
 carried on otherwise, and that the company's agent knew 
 these facts when he fixed the premium, is not admissible. ^J 
 
 8 254. Limitation of Risk ; Examination after Work. — In 
 Houghton V. Manufacturers' Mutual Fire Insurance Com- 
 pany,^ the court elaborately discussed the meaning and effect 
 of a statement that the premises insured were examined 
 after work, both as to what constitutes an examination and 
 when it should take place, that is, what point of time is 
 designated by the words "after work." Such statement was 
 held to be an executory representation, amounting to a 
 stipulation that the examination should continue during the 
 term of the insurance.^ 
 
 1 [Eeardon v. Faneuil Hall Ins. Co., 135 Mass. 121.] 
 
 2 8 Met. (Mass.) 114. 
 
 8 The opinion of Shaw, C. .T., upon this point was as follows : " One other 
 point was taken, respecting which an opinion was asked for and given at the trial. 
 It related to the representation and the practice in respect to the examination of 
 the factory. The representation was contained in the answer to the fourteenth 
 question, as follows : ' Is a watch kept constantly in the building ? If no watch 
 is constantly kept, state what is the arrangement respecting it.' Answer : 'No 
 watch is kept in or ahout the building; but the mill is examined thirty minutes 
 after work.' This question referred to the requirements of the office on the last of 
 the representations, amongst which is this, viz., that an examination will be had, 
 say thirty minutes after work. Question 21 was this : ' During what hours is the 
 factory worked ? ' The answer was : ' From 5 o'clock A. M. to 8J o'clock P. M. 
 Sometimes extra work will be done in the night.' Two questions were made at 
 the trial. First, whether the representation of the usual practice amounted to a 
 condition or stipulation that it should be continued. It was rnled at the trial, 
 and the whole court are now of opinion, that as this examination was manifestly 
 intended as a substitute for a constant watch ; as it was one which the assured 
 had it in their own power to make or cause to be made ; as it was one of the pre- 
 cautions tending to secure the property against danger of fire and tending to its 
 safety, — it was one which, as a general practice, the assured were bound to fol- 
 low, although an occasional omission, owing to accident, or to the negligence of 
 subordinate persons, servants, or workmen, not sanctioned nor permitted by the 
 assured, or by their superintendent, manager, or agent, might not be a breach or 
 non-compliance. The second question under this clause regarded the time at 
 which the examination was to be made. The question, as understood at the trial, 
 was this : Whether, if the factoiy work was continued during extra hours in the 
 night, that is, after half- past eight P. M., the examination should be made at half 
 an hour after the cessation of actual work, or half an hour after the time fixed in 
 the twenty-first answer, as the usual hour of the cessation of work ? On this 
 
 519 
 
§ 255] INSUKANCE : FIRE, LIFE, ACCIDENT, ETC. [OH. XI. 
 
 § 255. Limitation of Risk ; Warming ; Care of Stoves ; Ashes ; 
 Shutters. — In Aurora Fire Insurance Company v. Eddy,i one 
 
 question, considering the purpose of the examination, and considering that the 
 object of the examiner would be, by the sense of sight or smell to detect any 
 latent fire, or fire beginning to kindle, arising from sparks from the extinguished 
 lamps, spontaneous combustion, friction of machinery, or otherwise ; as this could 
 be best accomplished after the mills wei'e stopped, and the operations of the fac- 
 tory for the night had ceased, and the persons employed in it had left, I was of 
 opinion that the examination must be made at thirty minutes after the cessation 
 of the actual work of the factoiy, and that an examination at thirty minutes after 
 the time fixed by the twenty-first answer, as the usual time for closing work, if 
 the factoiy did continue in operation, was not a substantial compliance with this 
 stipulation. And the court are of opinion that this direction, in the case sup- 
 posed, was right, and that such is the correct construction of the contract. The 
 answer had represented that the usual hour of the cessation of work was half-past 
 eight, yet, having represented that the factory would sometimes be worked during 
 extra hours in the night, they had a right so to work without impairing the con- 
 tract. But if they thought fit, for any cause, to change the hour of work, so that 
 it should continue to a later hour of the night, they must see that the examina- 
 tion be made at thirty minutes after the actual cessation of work. But another 
 question is now presented, which was not distinctly raised at the trial, and in 
 regard to which the evidence was not fully reported ; and it is this : What is the 
 cessation or termination of work ? or, in other words, "What is the meaning of 
 thirty minutes after work , within the meaning of the answer to the fourteenth 
 question ? As there is to be a new trial on other grounds, we think it proper to 
 state the opinion of the court upon this point ; although, through misapprehen- 
 sion of the counsel, or of the court, or otherwise, it was not raised at the trial, 
 or presented on the report. The question as to what is a termination of work, 
 within the meaning of this contract, is partly a question of law and partly a 
 question of fact. The intentions of the parties, if they can be ascertained, are to 
 govern ; and these are to be learned from the language used construed in connec- 
 tion with every part and clause in the contract, the subject-matter respecting 
 which they are used, and the obvious purposes of each stipulation. That the as- 
 sured were bound to make an examination at thirty minutes after work is the 
 construction of law on the contract. What is the cessation of work is a question 
 of fact for the jury, depending upon the circumstances, and having in view the 
 object and purpose of the stipulation, which was to have an examination at such 
 time as will conduce to the safety of the building. As some of the sources of 
 danger are the continuance of fires and lights, and the friction of machinery, so 
 long as the general work of the factory and operation of the machinery continue, 
 a jury must find that the work had not then ceased, and could not be waiTanted 
 in finding otherwise. If, on the contrary, the gates were shut, the machinery all 
 stopped, the fires and lights extinguished, and the operatives generally retired, it 
 could hardly be said that the work had not ceased, although one or two persons 
 should remain to do something which should create no danger of fire. The fact 
 to be looked to is not that the persons employed have all left, or that the lights 
 are all extinguished, or that the machinery has wholly stopped, but the termina- 
 tion of the time during which the factory is worked ; and this is an inference of 
 
 1 55 111. 213. See also Schmidt v. Peoria Mar. & Fire Ins. Co., 41 111. 295. 
 520 
 
CH. XI.J SPECIAL PROVISIONS OF THE CONTRACT, ETC. [§ 255 
 
 of the questions in the application was, "How warmed, — 
 are any stoves used? " to which the answer was, " No stoves 
 used; " and it was held that this was a representation that 
 stoves were not used at the time when the representation 
 was made, and not a warranty that they should not be used 
 at all. And a warranty that stoves and pipes are well 
 secured, and shall be kept so, is not to be so strictly con- 
 strued as to be considered violated by an accidental occur- 
 rence, as by the fact that the wife of the insured, a few days 
 after the pipe had been partly removed in preparation for 
 removing both stove and pipe during summer, as was usual, 
 in a moment of forgetfulness carelessly kindled a fire in the 
 stove. 1 And an answer, "None," to the question whether 
 stoves were properly secured, referred to stoves for heating 
 purposes, and not to a stove used on board a steamboat for 
 refitting purposes.^ And a warranty that ashes are kept in 
 brick is complied with if they are kept in some other equally 
 safe way. 3 [When the insured stated that the ashes on the 
 premises were put into brick vaults and the policy stated 
 that the company would not be liable if they were left on 
 wood, the policy was held avoided by putting the ashes in 
 a wooden barrel in the woodhouse continuously for several 
 
 fact, which may be influenced more or less by all these considerations. Now be- 
 tween the full operation of the factory and the entire cessation of work, extremes 
 may be supposed on either hand, respecting which there could be no doubt. 
 There may be various intermediate stages in which it would be the duty of the 
 jury to determine, upon the particular combination of circumstances, whether 
 they constituted a cessation of working of the factory or not. If the general work 
 of the factory has ceased, although a single machine may remain in operation for 
 a special purpose, we think a jury should be instructed, that if such machine 
 should cause no danger of fire, the examination should be made at thirty minutes 
 after the cessation of the general work, and not after the stopping of the particu- 
 lar machine, and this the rather because the contract stipulates but for one ex- 
 amination after the cessation of the general work, which, being apparently most 
 for the interest of both parties, may be presumed to be most conformable to their 
 intentions. And so in the various cases it will be for the jury to say, under the 
 direction of the court, taking into view the purpose of the examination, and the 
 nature of the work done, and the risk attending it, whether, within the meaning 
 of this contract, the work of the factory, in the particular case, had terminated." 
 
 1 Mickey v. Burlington Ins. Co., 35 Iowa, 174. And see ante, § 241. 
 
 2 Lyon V. Stadacona Ins. Co., 44 U. C. (Q. B.) 472, 474. See also Madsden 
 V. Phcenix Ins. Co., 1 S. C. N. s. 24. 
 
 " Underbill w. Agawam Mut. Ins. Co., 6 Cush. (Mass.) 440. 
 
 521 
 
§ 256] INSUKAN-CE : FIEE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 weeks up to the time of the fire, though done by a boy with- 
 out orders, it appearing that there were no brick vaults as 
 stated.^] A statement in the description of the building 
 insured that it has "iron doors and shutters," is no war- 
 ranty that they shall be kept closed at any particular time.^ 
 
 § 256. Description ; Representation. — Matter of descrip- 
 tion, unless by the terms of the policy made to have greater 
 force, stands upon the footing of representations, and if facts 
 material to the risk are omitted it is a concealment."* (a) 
 And mere matter of immaterial description, so immaterial 
 as not presumably to have been regarded by either party as 
 of importance, contained in the application, will not by 
 reference be converted into a warranty. This was the doc- 
 trine declared in a case where a detailed description was 
 given as to the occupancy of the several rooms of a building 
 on which insurance was obtained, which was not in all 
 respects true, even at the time when the insurance was 
 effected.* And to the same effect is Frisbie v. Fayette 
 Mutual Insurance Company,^ where, amongst other state- 
 ments in the application, which was made part of the policy, 
 it was said that a clerk slept in the store. But this was 
 held to be mere description of the mode of occupancy at the 
 
 1 [Worcester v. Worcester Miit. Fire Ins. Co. , 9 Gray, 27, 29.] 
 
 2 Soott V. Quebec Ins. Co., 1 Stuart (Lower Canada), 147. 
 
 8 Casey v. Goldsniid, 4 L. C. (Q. B.), 107, reversing s. c. 2 id. 200 ; Perry Ins. 
 Co. V. Stewart, 19 Pa. St. 4.5 ; Baxendale v. Harvey, 4 H. & N. (Exch.) 445. A 
 statement that a threshing machine is ' ' stored in the barn " is mere matter of de- 
 scription. Material misdescription is such as is not substantially correct, and 
 such as leads to a lower rate of premium than if the description had been correct. 
 In re Universal, &c. Ins. Co., L. R. 19 Eq. 485 ; s. c. 5 Benn. Fire Ins. Cas. 
 688 ; Everett v. Continental Ins. Co., 21 Minn. 76. 
 
 * Boardman v. N. H. Mut. Fire Ins. Co., 20 N. H. 551. 
 
 6 27 Pa. St. 325. 
 
 (a) When there is no written appli- that a certain contract was secured by a 
 
 cation and the insured had correctly de- conditional mortgage on the property, 
 
 scribed the property to the agent, a which was incorrect as describing the 
 
 misdescription in the policy will not fact that the title itself was pledged, 
 
 defeat the contract, though the descrip- and the insurer knew the material facts, 
 
 tion was made part of the contract and the policy was held not to be defeated 
 
 a warranty. Dowling b. Merchants' by the erroneous description. Davis v. 
 
 Ins. Co., 168 Penn. St. 234 ; supra, § 181, Pioneer Furniture Co., 102 Wis. 394. 
 n. (a). Where the application stated 
 522 
 
CH. XI.J SPECIAL PROVISIONS OF THE CONTEACTj ETC. [§ 257 
 
 time, and not a warranty that the clerk should sleep there 
 every night. 
 
 A call for a true description of the house, building, or 
 place where the insured goods are kept, refers to the char- 
 acteristics of the house, not the interest of the insured in it. 
 And thei'efore a lodger in a room furnished by himself may 
 well say that the property insured — his furniture — is in 
 his dwelling-house. 1 And when the particular interest is 
 the subject-matter of the insurance, a misdescription of the 
 ownership or of the property to which the interest attaches, 
 in the absence of express stipulation to that effect, will not 
 avoid the policy.^ The description of a dwelling-house in 
 the application will not be held to be a warranty, unless the 
 policy shows it was so intended. ^ 
 
 § 257. Description ; Warranty ; Place. — It has been held 
 in some cases, however, that mere matter of description may 
 amount to a warranty. Thus it is said in Fowler v. Mtna, 
 Fire Insurance Company* that mere description of the sub- 
 ject-matter of insurance, as, for instance, that a house is 
 "filled in with brick," is a warranty, after the analogy of 
 marine insurance, as the estimate of the risk must generally 
 depend upon the description. But the case cited in support 
 of the opinion does not support it.^ The question in that 
 case was one of the materiality of an alteration of the build- 
 ing insured. And the same was said in Sillem v. Thorn- 
 ton,^ where the house was described as a two-story house, 
 when in fact it was at the time of insurance being converted 
 into a three-story house, — a change which was commenced 
 some months after the application was made.^ And this 
 
 1 Friedlander v. London Ass. Co., 1 M. & Eob. 171. 
 
 2 Fox V. Phoenix Fire Ins. Co., 62 Me. 333 ; Longhurst v. Conway Fire Ins. 
 Co., U. S. Dist. Ct. Iowa, 1861 ;' Dig. Ins. Cas. 3d ed.. by Bates. 
 
 ' Farmers' Ins. & Loan Co. v. Snyder, 16 Wend. (N. Y. ) 481, affirming s. c. 
 13 id. 92. But see ante, § 247, note. 
 
 4 6 Cowen (N. Y.), 673 ; s. c. 7 Wend. (N. Y.) 270. 
 
 s Stetson V. Mass. Mut. Fire Ins. Co., 4 Mass. 330, 337. And see post, § 262. 
 
 6 3 E. & B. 868. 
 
 ' See also, to the same effect. Wood v. Hartford Fire Ins. Co., 13 Conn. 633, 
 where, however, the point decided was that there had been no change from a 
 permitted to a prohibited use. 
 
 623 
 
§ 257] INStTEANCE : riEE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 case states the doctrine with the limitation that only such 
 descriptive matter as relates to the risk amounts to a war- 
 ranty. Probably that is all that was intended in either 
 case, as that was all that was required by the facts. In 
 Sillem V. Thornton,^ the policy was not issued till some 
 months after the application was made, and there had been 
 a change in the mean time in the status of the property, a 
 two-story house having been converted into a three-story 
 house; and the description of the house was held to be a 
 warranty. 2 So it has been held that if the property is de- 
 
 1 Vbi supra. 
 
 2 In Stokes v. Cox, 1 H. & N. (Exch.) 533, the court seemed to regard this 
 case as one not to be followed except upon identical facts. As Sillem v. Thorn- 
 ton goes to the extreme limits of strictness, and is ably stated, we give here liberal 
 extracts from the opinion of Lord Campbell, C. J.: "But we are further of 
 opinion that the description iu the policy amounts to a warranty that the assured 
 would not, during the time specified in the policy, voluntarily do anything to 
 make the condition of the building vary from this description, so as thereby to 
 increase the risk or liability of the underwriter. In this case, the description is 
 evidently the basis of the contract, and is furnished to the underwriter to enable 
 him to determine whether he will agree to take the risk at all, and if he does take 
 it, what premium shall he demand. The assured, no doubt, wished him to under- 
 stand that not only such was the condition of the jiremises when the policy was 
 to be effected, but, as far as depended upon them, it should not be altered so as 
 to increase the risk during the year for which he was to be liable if a loss should 
 accrue. Without such an assurance and belief the statement introduced into the 
 policy of the existing condition of the premises would be a mere delusion. Iden- 
 tity might continue, and yet the quality, condition, and incidents of the subject- 
 matter insured might be so changed as to increase tenfold the chances of loss, 
 which, upon a just calculation, might reasonably be expected to fall upon the 
 underwriter. Can it be successfully contended that, having done so, the assured 
 retain a right to the indemnity for which they had stipulated upon a totally dif- 
 ferent basis ? With respect to marine policies, we conceive that if there be a 
 warranty of neutrality, or of any other matter which continues of importance till 
 the risk determines, whether the policy be for a voyage or for a certain time, such 
 a warranty is continuous ; and if it be broken by a default of the assured, the 
 underwriter is discharged. The implied warranty of seaworthiness applies only to 
 the commencement of the voyage ; but even here, if the assured, during the voy- 
 age, were voluntarily to do any act whereby the ship was rendered unseaworthy, 
 and thereby a loss were to accrue, we conceive that they would have no remedy 
 on the policy. A distinction, however, is taken in this respect between a marine 
 policy and insurances of houses against fire. It would probably be allowed that 
 if during war there was a policy on a merchant ship described as carrying ten 
 guns, and employed in the coal-trade, and after the policy was effected the owner 
 should reduce the armament to five guns, or load her with oil of vitriol, the under- 
 writer would not be liable for a subsequent loss. But it is strenuously asserted 
 that if there be an insurance against fire upon a house, which is described in the 
 
 524 
 
CH. XI.] SPECIAL PROVISIONS OF THE CONTRACT, ETC. [§ 257 
 
 scribed as situated at a particular place, or in a particular 
 building, this is a warranty as to the locality.^ (a) 
 
 policy as teing of a particular specified description, and in which it is stated that 
 the occu|iler carries on a certain specified trade, — this being true at the date of 
 the policy, the assured, preserving the identity of the house, may alter its construc- 
 tion, so as to render it more exposed to fire, and may can-y on in it a different and 
 more dangerous trade, without prejudice to the right to recover for a subsequent 
 loss by fire, the warranty exteniling only to the state and use of the premises at 
 the moment when the policy was signed. This seems quite contrary to the principles 
 on which contracts are regulated. The construction and use of the premises in- 
 sured, as described in the policy, constitute the basis of insurance, and determine 
 the amount of the premium. But this calculation can only be made upon the 
 supposition that the description in the policy shall remain substantially true 
 while the risk is running, and that no alteration shall subsequently be made by 
 the assured to enhance the liability of the insurer. It seems strange, then, that 
 
 1 Bryce v. Lorillard Ins. Co., R5 N. Y. 240. It would be perhaps more cor- 
 rect to hold that a policy on property situated in one place never attached to 
 property situated at a different place, than to hold there was a breach of warranty. 
 See post, § 400 a. 
 
 (a) Where, the property being de- 
 scribed in the complaint as " lots 27 
 and 28, block 8, in Harlington addition 
 to Mt. Tabor," it appeared that there 
 was no such place, but that they were 
 as numbered in Harlem addition to 
 East Portland, the variance was held 
 not fatal. Baker v. State Ins. Co., 31 
 Oregon, 41. So, where the insured 
 building was described as situated on 
 lot 2, block 3, and there was evidence 
 of an incumbrance on the west seventy- 
 seven feet of the east ninety feet of 
 block 2, and all buildings thereon, this 
 was held not evidence of the incum- 
 brance of the insured building. Green- 
 lee u. Iowa State Ins. Co., 102 Iowa, 
 260. 
 
 Where a dwelling-house or personal 
 property is insured, and the policy by 
 mistake misdescribes the land on which 
 it is situated, this will not of itself 
 affect the risk or render the policy void, 
 and it is not necessary to reform the 
 policy, in case of a loss, to recover 
 thereon. Kansas Farmers' F. Ins. Co. 
 V. Saindon, 52 Kansas, 486 ; Omaha F. 
 Ins. Co. V. Dufek, 44 ISTeb. 241 ; Martin 
 0. Farmers' Ins. Co., 84 Iowa, 516. 
 
 But where a policy of insurance insured 
 buildings situated on section 31, it was 
 held, that, even if section 31 were in- 
 serted by mistake, the parties, intending 
 the insurance to be on buildings upon 
 section 32, no recovery can be had for a 
 loss to buildings on the latter section 
 without a reformation of the policy. 
 Collins V. St. Paul F. & M. Ins. Co., 
 44 Minn. 440. 
 
 Where, under a policy insuring 
 tobacco and cigars "contained in brick 
 block situated 82-90 Worthington St.," 
 a firm occupied the fifth story over 
 stores numbered 84 to 90 and also the 
 fifth story over a store numbered 80, 
 the only entrance to all being a door- 
 way numbered 82 ; and the building 
 had been, from time to time, extended 
 and remodeled and was owned by one 
 person, and a doorway and a hallway 
 connected 80 with 82, it was held that 
 the policy covered the contents of No, 
 80 ; and that where a policy describes 
 the building by its official number, the 
 unauthorized change to another number 
 by the owner does not affect the policy. 
 Westfield Cigar Co. ji. Ins. Co. of No. 
 America, 165 Mass. 541. 
 
 525 
 
§ 258] insurance: fike, life, accident, etc. [ch. xi. 
 
 § 258. Limitation of Hisk ; Description ; Surroundings ; Dis- 
 tance ; Contiguity. — With regard to the situation of the 
 property insured, its surroundings, its relation to other 
 buildings, and its exposure to risk from external sources, if 
 the insured warrant that he has made a full and true state- 
 ment, on penalty of forfeiture, he must take the consequences 
 of any real omission. If he will undertake to state all the 
 buildings exposed within a given distance, the penalty of 
 failure will be the loss of his right to recover.^ We say real 
 omission, because if the omission be of some insignificant 
 out-house, it will be of no importance.^ It is a question of 
 
 if a house be described in the policy as occupied hy the owner, carrying on the 
 trade of a butcher, so that the premium is on the lowest scale, he may immediately 
 afterwards, merely taking care that the walls and floors and roof remain, so that 
 it is still the same identical house, convert it into a manufactory for fireworks, a 
 trade trebly hazardous, for which the highest scale of premium would he no more 
 than a reasonable consideration for the stipulated indemnity. . . . Now, assum- 
 ing the law to be that upon an insurance against fire there is an implied engage- 
 ment that the assured will not afterwards alter the premises so that they shall not 
 agree with the description of them in the policy, and so that thereby the risk and 
 liability of the insurer shall be increased, we have only to consider whether, in 
 this instance, the assured have not done so by converting the house- insured from 
 ' a house composed of two stories ' into a house composed of three stories ; and 
 this really admits of no reasonable doubt. Mr. Bramwell very candidly admitted 
 that if the policy remained in force after the alteration, it covered the third story 
 as well as the other two. This being so, the increase of the area of the building- 
 by a third story must be considered by the court to have necessarily increased the 
 hazard or probability of fire about as much as if the addition to the house had 
 been lateral instead of vertical. 
 
 " But there is another consideration, which is quite decisive to show that by 
 the alteration the liability of the insurer is increased, and that his premium, if 
 previously fair, has now become inadequate. Upon an insurance of a house 
 against fire, the insurer must make good the whole of any partial loss, the owner 
 not being considered to stand his own insurer for the excess of the value of the 
 house beyond the sum for which the insurance is effected. The value of the ad- 
 ditional property here sought to be covered by the insurance must be taken to be 
 £1,000, and for the whole of this, or any part of it, the defendant is now liable to 
 the full amount of the sum for which he has subscribed the policy till he has paid 
 £1, 600, plus his liability to this amount for the destruction of any part of the 
 original house, valued at £4,000. We are of opinion that this additional liability 
 could not be thrown upon him, without any consideration and against his consent, 
 by the act of the assured in altering the house so as to make it no longer corre- 
 spond with the description of the house in the policy. If the liability cannot be 
 carried to this extent, it is entirely gone ; and, therefore, we pronounce judgment 
 for the defendant." 
 
 ^ Chaffee v. Cattaraugus County Mut. Fire Ins. Co., 18 N. Y. 376. 
 
 2 White V. Mut. Fire Ass. Co., 8 Gray (Mass.), 567. 
 
 526 
 
CH. XI.J . SPECIAL PROVISIONS OF THE CONTEACT, ETC. [§ 258 
 
 the substantial truth of the warranty. The more guarded 
 warranty, qualified by the limitation, " so far as is known to 
 the assured," will throw upon the insurers the burden of 
 proving the knowledge of the insured, without which proof 
 their responsibility cannot be avoided.^ So where the ques- 
 tion calls for the relative situation of other buildings and 
 the distance of the building insui'ed from each other build- 
 ing within a given distance, it must be answered with 
 substantial accuracy. ^ And the same is true whether the 
 answer be in detail, or generally, as by saying "see dia- 
 gram," or "see plan," the diagram or plan being annexed to 
 the application, which is made part of the policy by its 
 terms. ^ If the diagram, however, be not annexed to the 
 application, although referred to therein, it will not neces- 
 sarily be regarded as a warranty; certainly not except as to 
 such matters contained therein as are responsive to the par- 
 ticular interrogatories in the application.* And it may be 
 said generally with regard to such statements as are im- 
 ported into the contract by reference, and thus made war- 
 ranties, that, while the courts will not readily yield to the 
 claim that a merely literal and technical breach will avoid 
 the policy, they will be disposed to hold that a technical 
 compliance will be sufficient to prevent a forfeiture. Thus, 
 where, in answer to the question as to the relative situation 
 of other buildings, it was said that there were two within 
 fifty feet, this was held to be a literally truthful answer, and 
 sufficient to prevent a forfeiture, although in point of fact 
 
 1 Hall V. People's Mut. Ins. Co., 6 Gray (Mass.), 185. 
 
 2 Frost V. Saratoga County Mut. Fire Ins. Co., 5 Denio (F. Y.), 154 ; Susque- 
 hanna Ins. Co. V. Perrine, 7 Watts & Serg. (Fa.) 348; Jennings v. Chenango 
 County Mut. Ins. Co., 2 Denio (N. Y.), 75 ; Burritt v. Saratoga County Mut. 
 Ins. Co., 5 Hill (N. Y.), 188 ; Trench v. Chenango County Mut. Ins. Co., 7 id. 
 122 ; Hardy v. Union Mut. Fire Ins. Co., 4 Allen (Mass.), 217. The decision in 
 Trench's case, that the rule does not apply in cases of insurance on personal 
 property, is substantially overruled in Wilson v. Herkimer, &c. Ins. Co., 6 N. Y. 
 53. See also Kennedy v. St. Lawrence, &c. Ins. Co., 10 Barb. (N. Y.) 285 ; 
 Associated, &C. Ins. Co. v. Assum, 5 Md. 165. In the last case "premises" is 
 held to apply to "goods." Ante, §§ 228, 243. 
 
 3 Tebbetts v. Hamilton Mut. Ins. Co., 1 Allen (Mass.), 305 ; Abbott v. Shaw- 
 mut Mut. Fire Ins. Co., 3 Allen (Mass.), 213. 
 
 * Sayles v. North Western Ins. Co., 2 Curtis (U. S. C. Ct.), 610. 
 
 527 
 
§ 259] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 one of the buildings was within two feet of the insured 
 premises. 1 A building fifty feet away from another is not 
 "contiguous" to it.^ [Nor one twenty-five feet away.^] 
 
 § 259. Surroundings ; How Bounded ; Situation. — But a 
 slight variation in the language of the application may make 
 a very material difference. Thus, where the question, in- 
 stead of calling for the relative distance from other build- 
 ings and distance from each, is, "How bounded? and the 
 distance from other buildings if less than ten rods ? " it has 
 been held that a statement of the nearest contiguous build- 
 ings, without stating all within ten rods, was all that was 
 required. To say the least, such a form of inquiry left it 
 fairly open to the insured to infer that all he was called 
 upon to mention was such buildings as were contiguous to, 
 and bounded, the insured premises.* The less specific in- 
 quiry, as to "the relative situation of other buildings," with- 
 out any limitation as to distance, leaves the matter open to 
 the judgment of the assured; and it would seem to be all 
 that can reasonably be required that he, having regard to 
 the object of the inquiry and to the circumstances of the 
 case, should, in good faith, designate such buildings as he 
 believes, or has reason to believe, will fairly answer this 
 question.^ Upon this point a very interesting case was 
 early tried before Shepley, 0. J., in Maine, where the pol- 
 icy was to be void "if any circumstances material to the 
 risk be suppressed," and where to the questions, "What are 
 the buildings occupied for that stand within four rods ? how 
 many buildings are there to the fires of which this may be in 
 any case exposed ? " there was no answer; and to the farther 
 question, " What distances from other buildings ? " the an- 
 swer was, "East side of the block small one-story sheds, 
 
 1 Allen V. CharlestowD Mut. Ins. Co., 5 Gray Mass.), 384. See also Sajies 
 V. North Westevn Ins. Co., 2 Curtis (U. S. C. Ct.), 610. 
 
 2 Arkell v. Commerce Ins. Co., 69 N. Y. 191. 
 
 s [Olson u. St. Paul Fire & Mar. Ins. Co., 35 Minn. 432 (ambiguities go 
 against the company).] 
 
 4 Gates V. Madison County Mut. Ins. Co., 2 Comst. (N. Y.) 43 ; s. 0. 1 Seld. 
 (N. Y.) 469, reversing s. c. 3 Barb. (N. Y.) 73 ; Masters v. Madison County Mut. 
 Ins. Co., 11 id. 624. 
 
 6 Hall V. People's Mut. Ins. Co., 6 Gray (Mass ), 185. 
 
 52S 
 
Cir. XI.] SPECIAL PEOVISIONS OF THE CONTRACT, ETC. [§ 260 
 
 and would not endanger the building if they should burn." 
 The fact was that the fire broke out in a building across the 
 street, within less than fifty feet of the insured premises, 
 extended to the sheds, through which it was communicated 
 to the property of the insured. It was claimed that there 
 was concealment in not stating the existence of the building 
 in which the fire originated, and misrepresentation in stat- 
 ing that the sheds were such that if burned they would not 
 be a source of danger. But the court ruled that if the an- 
 swers were in good faith, and according to the best judg- 
 . ment of the insured, and if the opinion which he gave — the 
 questions being such as to involve in the answer, to a con- 
 siderable extent, matter of opinion — was honestly enter- 
 tained, however erroneous they might be viewed in the light 
 of subsequent events, he was entitled to recover. The plain- 
 tiff had a verdict, and, upon exceptions, the ruling was 
 sustained.^ 
 
 § 260. Description. — In the description of buildings on 
 which insurance is sought care should be taken to give not 
 only a description of the main building, but also of the sub- 
 ordinate structures attached, such as kitchens, sheds, store- 
 houses, and the like, as these latter, save in exceptional 
 cases, are part and parcel of the structure, and are there- 
 fore material. 2 Yet if the insurers have such a description 
 of the premises as, though leaving the matter open and 
 doubtful, puts them on inquiry, and they do not choose to 
 make further inquiry, but accept the application as it is,, 
 and issue a policy thereon, they cannot afterwards set up- 
 misrepresentation in defence, although the description be 
 inaccurate.*^ So if the answer be imperfect upon its face, 
 and does not convey, or pretend to convey, the information 
 required by the question, the company issuing a policy upon 
 
 ' We have given the opinion in another connection Dennison v. Thomas- 
 ton Mut. Ins. Co., 20 Me. 125 ; ante, § 211. See also Casey v. Goldsmid, 4 L. 
 0. (Q. B.) 107 ; reversing s. o. 2 L. G. 200 ; s. o. 3 Bennett, Fire Ins. Cas. 
 675. 
 
 2 Chase v. Hamilton Ins. Co., 20 N. Y. 52 j Day v. Conway Ins. Co., 62 
 Me. 60. 
 
 8 Woods V. Atlantic Mut. Ins. Co., 50 Mo. 112. 
 
 VOL. 1.— 34 529 
 
§ 261] insurance: fiee, life, accident, etc. [ch. XI. 
 
 such obviously imperfect answer will not be allowed to -set 
 up the imperfection in defence. ^ 
 
 § 261. Description; Evidence. — A technically untrue de- 
 scription may be shown to be true by proof of a usage, as by 
 showing that a house filled in with brick in front and rear, 
 and supported by brick buildings on the sides, is regarded 
 among insurers as a house " filled in with brick. " 2 And so 
 a builder may be permitted to testify that buildings, built, 
 the first two stories of brick, and above that by being filled 
 in with brick, would be regarded as " brick buildings. " ^ It 
 is a " brick building " within the meaning of the policy, if it 
 is so termed in common parlance, even though it may have 
 one wall which is partly or wholly constructed of wood.* 
 Indeed, a false description is in many policies only made a 
 ground of defence when it has the effect to obtain insurance 
 at a lower rate than if a true description had been given. 
 And this would seem to be a sensible as well as practical 
 standard; for if the insurers would have taken the risk at 
 the same rate had they known the truth, they ought not to 
 complain.^ If there is room to doubt, such matter of de- 
 scription will be regarded as inserted rather for the purpose 
 of identification than as a warranty."* (a) 
 
 1 Peoria Mar. & Fire Ins. Co. v. Perkins, 16 Mich. 381. 
 
 2 Fowler v. iEtna Fire Ins. Co., 7 Wend. (N. Y.) 270. 
 8 Mead v. Northwestern Ins. Co., 3 Seld. (N. Y.) 530. 
 
 4 Gerhauser v. North Brit. & Mer. Ins. Co., 7 Nev. 174. 
 6 Columbian Ins. Co. v. Lawrence, 2 Pet. (U. S. ) 25 ; Dobson v. Sotheby, 
 1 Moo. & Malk. 90 ; Moliere v. Pa. Fire Ins. Co., 5 Rawle (Pa.), 342. 
 6 Gerhauser v. North Brit. & Mer. Ins. Co., 7 Nev. 174. 
 
 (a) Thus, a mistake in a proof of thereon, his act does not bind the ten- 
 loss in regard to the number of the ant, in an action by him upon a fire 
 building does not affect the right of the policy on property contained in the 
 assured to recover if the description of building described by its changed num- 
 the building corresponds in other re- ber. "Westfield Cigar Co. v. Ins. Co. of 
 spects with that contained in the North America, 165 Mass. 541. 
 policy, and the insurer is not shown to If the defence to an action upon a 
 have been misled or prejudiced by the policy against loss by iire is that the 
 error. Faulkner v. Manchester Fire property in a certain room was not 
 Ass. Co., 171 Mass. 349. If the owner covered by the words in the policy 
 of land, without any authority, substi- "contained in brick block," the plain- 
 tutes another number for the official tiff, to show that his rooms were part 
 number of the entrance to the building of a single brick block, may show its 
 
 530 
 
CH. XI.J SPECIAL PROVISIONS OF THE CONTRACT, ETC. [§ 263 A 
 
 § 262. Description ; Estoppel. — But knowledge of the com- 
 pany or its agents of the untruthfulness of the statements as 
 to the distance of neighboring buildings, or of inaccuracy 
 or incompleteness in the description of the property, at the 
 time when the insurance is effected, by the general concur- 
 rence of the more recent decisions, will estop the insurers 
 from setting up such untruthfulness in defence.^ 
 
 § 263. Description of Person. — A statement of relation- 
 ship in the description of the person whose life is insured is 
 usually a matter of warranty, as where the applicant states 
 that the person for whose benefit the insurance is made is 
 his wife. If it be not expressly made a warranty, there can 
 be no doubt of its materiality. The interest of a mistress in 
 the preservation of the life might be much less than that of 
 a wife. Whether therefore such a statement be a warranty 
 or a misrepresentation it would be fatal to the policy. ^ 
 
 [§ 263 A. Covenants to keep Books in Safe, keep Stock up, 
 not to Question after Death ; Fall of Building, etc. — A mer- 
 chant's covenant to keep his books "in a safe at night," 
 does not mean from sunset to sunrise, but from the time the 
 business of the day is over, which may be 9 or 10 p.m. or 
 later.3(a) The company's agent for adjustment may waive 
 
 1 Ante, § 143 ; post 497 et seq. ; Clark §. Union Mut. Fire Ins. Co., 40 N. H. 
 333 ; Longhurst v. Conway Fire Ins. Co., U. S. Dist. Ct. Iowa, 1861 ; Clark's 
 Dig. Fire Ins. Cas. (3d ed.) p. 96 ; Plumb v. Cattaraugus County Mut. Ins. Co., 
 18 N. Y. 392 ; James River Ins. Co. v. Merritt, 47 Ala. 387. 
 
 2 Stanard v. Am. Pop. Life Ass. Co., Superior Ct., city of Buffalo, cited by 
 Bliss, Ins. 164. 
 
 8 [Jones V. Southern Ins. Co., 38 Fed. Rep. 19, 21 (Ark.), 1889.] 
 
 con.struction, ownership, appearance. Pottery building is covered by the 
 
 and use, and that it bore one name, policy, if there is nothing in the policy 
 
 and was commonly designated by that to indicate that any other structure was 
 
 name. WestHeld Cigar Co. o. Ins. Co. intended to be covered than the one 
 
 of North America, 169 Mass. 382 ; 165 building designated. Forbes v. Ameri- 
 
 Mass. 541. But, at the trial of an ac- can Ins. Co., 164 Mass. 402. 
 tion on a policy, in which the property (a) Upon the iron-safe clause, see 
 
 insured is described as a "three-story Parsons v. Knoxville F. Ins. Co., 132 
 
 brick building occupied as potteiy. Mo. 583 ; Brown v. Palatine Ins. Co., 
 
 situate in E., known as the Pottery 89 Texas, 590 ; Liverpool, &c. Ins. Co. 
 
 building," the plaintiff cannot success- v. Sheffy, 71 Miss. 919 ; Western Ass. 
 
 fully contend that another building Co. JIcGlathery, 115 Ala. 213. This 
 
 subsequently built on the end of the clause is not a warranty, ami substantial 
 
 531 
 
§ 263 A] INSUKANCE : fiee, life, accident, etc. [ch. XI. 
 
 the condition of the policy as to keeping the books and in- 
 voices in a fireproof safe, by demanding duplicates of the 
 burned invoices, and inducing the insured to incur trouble 
 and expense in obtaining them.^ A plea that the insured 
 promised to keep up his stock to |2,000, and that he failed 
 
 [Brown v. State Ins. Co., 74 Iowa, 428.] 
 
 compliance only is required. Liverpool, 
 &c. Ins. Co. V. Kearney (Ind. Ter.), 27 
 Ins. L. J. 873 ; Murphy u. Royal Ins. 
 Co. (La.), 29 id. 210. See Goldman v. 
 North British & Merc. Ins. Co., 48 La. 
 An. 223 ; Goddard v. East Texas F. 
 Ins. Co., 67 Texas, 69. When requir- 
 ing a fire-proof safe, it is not a warranty 
 that the safe will preserve the books. 
 Knoxville F. Ins. Co. v. Hird (Tex. Civ. 
 App.), 23 Ins. L. J. 16. 
 
 The covenant by the insured in the 
 policy to keep books and to keep them 
 at night in a fire-proof safe, or other 
 safe place, has been held not to affect 
 the risk and to be without considera- 
 tion, so that its violation does not work 
 a forfeiture. Phoenix Ins. Co. v. Angel 
 (Ky.), 26 Ins. L. J. 722; Mechanics' & 
 Traders' Ins. Co. v. Floyd (Ky.), 28 id. 
 335 ; Citizens' Ins. Co. v. Crist (Ky.), 
 56 S. W. 658 ; Kemendo v. "Western 
 Ass. Co. (Tex. Civ. App.), 57 S. W. 
 293. Contra, cases supra; Lozano v. 
 Palatine Ins. Co., 78 Fed. Eep. 278 ; 
 Niagara F. Ins. Co. v. Forehand, 27 
 Ins. L. J. 73; 58 111. App. 161. Where 
 the policy recited a single gross pre- 
 mium for indemnity of | "on the 
 
 following described property " : a cer- 
 tain amount on building, another on 
 .stock, and another on fixtures, a viola- 
 tion of the iron-safe clause was held not 
 to prevent recovery on the building 
 and fixtures. Hanover F. Ins. Co. v. 
 Crawford (120 Ala. ), 28 Ins. L. J. 945. 
 Where the clause is valid, the books 
 are required to be kept so as to be in- 
 telligible and accurate. Pelican Ins. Co. 
 V. Wilkerson, 63 Ark. 353. See Home 
 Ids. Co. v. Delta Bank, 71 Miss. 608. 
 
 The clause is complied with, when 
 during a fire, the books are removed un- 
 
 532 
 
 der a reasonable fear of the security of the 
 safe, some being dropped and burned, if 
 due care is used in the removal. East 
 Texas F. Ins. Co. v. Harris (Tex. Civ. 
 App.), 23 Ins. L. J. 552. See Liverpool, 
 &c. Ins. Co. V, Kearney, supra. Where 
 the insured store was kept open after 
 dark for business, as was the custom ; 
 but the door was kept locked, and cus- 
 tomers knocked for admission, and the 
 bookkeeper having left for a few min- 
 utes, intending to return, the fire oc- 
 curred during his absence, it was held 
 that the store was open for business 
 within the meaning of the policy clause, 
 which required the books to be locked 
 in an iron safe at night, and at all times 
 when the store was not open for busi- 
 ness. Sun Ins. Co. v, Jones, 54 Ark. 
 376. See Southern Ins. Co. v. Parker, 
 61 Ark. 207. The iron-safe clause may 
 by waived. Georgia Home Ins. Co. v. 
 Allen (119 Ala.), 28 Ins. L. J. 119. 
 
 An intentional failure to keep books 
 of account showing correct purchases 
 and sales, and to keep the books in 
 some place secure from fire, is a proper 
 plea, and establishes a defence when 
 such failure is made a ground of for- 
 feiture by the policy. A refusal to 
 submit such books and invoices for 
 examination after the loss, when re- 
 quired by the policy, is a bar to recov- 
 ery, and it is not sufficient to say they 
 were not kept. Niagara Fire Ins. Co. v: 
 Forehand, 27 Ins. L. J. 73. See Ameri- 
 can Central Ins. Co. v. Ware, id. 785 ; 
 Rissleri). American Cent. Ins. Co., 28 id. 
 615 ; Sun Mut. Ins. Co. v. Dudley, id. 
 44 ; Levine v. Lancashire Ins. Co., 
 26 id. 36 ; Liverpool, &c. Ins. Co. v. El- 
 lington, id. 492. 
 
CH. XI.J SPECIAL PROVISIONS OF THE CONTEACT, ETC. [§ 263 B 
 
 to do SO, is insufificient to defeat the plaintiff's suit. The 
 failure to perform a stipulation cannot be transformed into 
 a fraud in procuring the contract so as to avoid it. And as 
 in this case it seems that the insured allowed his stock to 
 fall far below the amount of the insurance, the company was 
 benefited and its risk reduced by the breach of agreement. ^ 
 A stipulation on the back of a policy that no question as to 
 the validity of the application or certificate shall be raised 
 after the death of the member binds the company, and evi- 
 dence of fraud and misrepresentation in the application will 
 be excluded. 2 A policy conditioned for forfeiture if, the 
 building falls, is not avoided by the fall of 'part of the struc- 
 ture.^ Otherwise if the condition specifies "the fall of the 
 building or any part of it. " *] 
 
 [§ 263 B. Substantial Compliance enough ; Failure by Fault 
 of Company ; 111- Worded Condition. — When a policy prohib- 
 ited the " keeping " of benzine in a store, but also gave per- 
 mission to keep one barrel of benzine or turpentine in tin 
 cans, and when it was brought to the store in a wooden bar- 
 rel and there transferred to the tin cans, during one of 
 which transfers an explosion and fire and loss occurred, it 
 was held that there was a substantial compliance with the 
 conditions, and therefore a recovery could be had.^ Sub- 
 stantial fulfilment of an agreement to keep buckets full of 
 water in certain places is sufficient. Literal compliance is 
 not enforced.^ Where the application states that no stove 
 pipes pass through floors or roofs, but all enter brick chim- 
 neys, there is no obligation to refrain from so passing a 
 pipe, if it is so secured as to be as safe as if it entered a 
 brick chimney. The risk must not be substantially in- 
 creased, that is all.'^ A plaintiff is discharged where per- 
 
 1 [Travis v. Peatody Ins. Co., 28 W. Va. 583, 597.] 
 
 2 [Wright V. Mut. Benefit Ass., 43 Hun, 61.] 
 8 [Security Ins. Co. v. Mette, 27 Brad. 324.] 
 1 [111. Mut. Ins. Co, V. Mette, id. 330.] 
 
 ° [Maryland Fire Ins. Co. v. "Whiteford, 31 Md. 219, 226. See § 218, sub- 
 stantial fulfilment suflBcient.] 
 
 6 [Cady V. Imperial Ins. Co., 4 Cliff. 203, 211.] 
 ' [Bankhead v. Des Moines Ins. Co., 70 la. 387.] 
 
 533 
 
§ 263 D] INSURANCE : fiee, life, accident, etc. [CH. XI. 
 
 formance of a condition is prevented by the defendant.-' 
 Failure of the insured to fulfil an agreement he made to in- 
 sure all goods consigned to or shipped by him in the same 
 company, will not avoid his policy, unless it is expressly so 
 conditioned in the policy.^ When the insurance was upon 
 goods, and a condition in the policy made it void for "light- 
 ing the premises insured by camphene, &c.," the condition 
 was held operative, although inapt in expression,^ the insur- 
 ance being on goods, not premises. ] 
 
 [§ 263 C. Evidence ; Burden of Proof. — Expert evidence 
 is not admissible to show that the erection of adjacent build- 
 ings increases the risk. No one can be deemed an expert as 
 to a matter of common experience.* Evidence of the cus- 
 tomary method of drying will not be received in determin- 
 ing the question whether ihe substitution of a fire-dryer for 
 a steam-dryer in a hominy mill was an increase of risk.^ 
 When the charter of a companj^, which was made a part of 
 the policy, provided that it should be void if any other build- 
 ings were "erected, alterations made, &c.," the burden of 
 proving a breach of this was held to be on the company.^] 
 
 [§ 263 D. Canada Statutes. — In Canada the conditions of 
 an insurance policy ai'e prescribed by law, and although they 
 may be varied by agreement of the parties, the courts are 
 watchful to exclude unreasonable changes. An insurance 
 • company that has not complied with the law of Canada in 
 regard to the printing of conditions, cannot set up against 
 the insured either his own or the statutory conditions.^ 
 Conditions in an Ontario policy varying the statutory con- 
 ditions must be stated as variations, or the policy will be 
 subject to the statute only.^ Where the statute prohibits 
 more than twenty-five pounds of powder, and the applicant 
 
 1 [Bowes V. Nat. Ins. Co., 20 N. B. R. 438.] 
 
 2 [Ark. Ins. Co. v. Bostick, 27 Ark. 539.] 
 
 3 [Stettiner v. Granite Ins. Co., 5 Duer, 594, 596.] 
 
 « [Franklin Fire Ins. Co. v. GruTer, 100 Pa. St. 266.] 
 
 5 [German-American Ins. Co. v. Steiger, 109 111. 254.] 
 
 6 [Ritter v. Sun Mut. Ins. Co., 40 Mo. 40, 41.] 
 
 ' [Citizens', &c. Ins. Co. v. Parsons, 4 Can. Supr. Ct. E. 215.] 
 8 [Hartney v. North British Fire Ins. Co., 13 Ont. R. 581, 583 ] 
 
 534 
 
CH. XL] SPECIAL PEOVISIONS OF THE CONTRACT, ETC. [§ 263 E 
 
 said he did not keep more than ten pounds, whereupon the 
 policy was drawn so as to prohibit more than ten pounds, 
 and a fire occurred when the plaintiff had more than ten and 
 less than twenty-five pounds, it was held that the statute did 
 not prevent the company from stipulating for a less quantity 
 of gunpowder, and the policy was void.^] 
 
 § 263 E. Massachusetts Standard Policy, (a) — "A company 
 may write upon the margin or across the face of a policy, or 
 write, or print in type not smaller than long primer, upon 
 separate slips or riders to be attached thereto, provisions 
 adding to or modifying those contained in the standard 
 form ; and all such slips, riders, and provisions must be 
 signed by the officers or agent of the company so using 
 them. 
 
 " The said standard form of policy shall be plainly printed, 
 and no portion thereof shall be in type smaller than long 
 primer, and shall be as follows, to wit: — 
 
 1 [Parsons v. Queen's Ins. Co., 2 Ont. R. 45 ; Armour, J., dissenting on the 
 ground that the condition being more onerous than the statute, was unjust and 
 unreasonable.] 
 
 (a) The legislature of a State cannot chusetts standard form signed by the 
 
 by statute delegate to its insurance com- proper officers, with authority to coun- 
 
 missioner legislative power to prepare tersign and issue such policies, and also 
 
 and adopt the standard form of policy to grant permits for vacancies and for 
 
 of such State. Anderson v. Manchester repairs by attaching written or printed 
 
 F. Ass. Co., 59 Minn. 182 ; Dowling v. permits to policies and sending copies 
 
 Lancashire Ins. Co., 92 Wis. 63. In thereof to the company, has no authority 
 
 New York a general statement by an to bind the company by an oral agree- 
 
 insurance agent to an applicant that he ment to grant such a permit. Hill v. 
 
 is "insured" amounts to - valid parol Commercial Union Ass. Co., 164 Mass. 
 
 insurance according to the standard fire 406. The insurer, after premiums have 
 
 policy of that State. Hicks v. British been long paid, will not be allowed to 
 
 America Ass. Co., 162 N". Y. 284. The defend on the ground that its policy is 
 
 insurer's agent cannot waive the stipu- not according to the standard form, 
 
 latioiis of a standard policy. See Hicks t). Armstrong o. "Western Manufacturers' 
 
 British America Ass. Co. , 162 N.Y. 284; Mut. Ins. Co., 95 Mich. 137. And the 
 
 Moore t). Hanover F. Ins. Co., 141 N.Y. requirement that policies are to be in 
 
 219; Bourgeois i). Northwestern Nat. Ins. the standard form does not prevent an 
 
 Co., 86 Wis. 606; supra, § 100, n. (a), oral agreement to insure during removal 
 
 In Massachusetts an agent of an insur- until the policy can be changed. Good- 
 
 ance company to whom the company has hue v. Hartford F. Ins. Co., 175 Mass. 
 
 intrusted blank policies of the Massa- 187. 
 
 535 
 
§ 263 E] insueance: fire, life, accident, etc. [ch. xi. 
 
 'No. 
 
 " [Corporate name of the company or association : its principal 
 place or places of business.] 
 
 " This company shall not be liable beyond the actual value of 
 the insured property at the time any loss or damage happens. 
 
 " In consideration of dollars to them paid by the insured, 
 
 hereinafter named, the receipt whereof is hereby acknowledged, do 
 insure against loss or damage by fire, to the amount of 
 
 dollars. 
 
 " (Description of property insured.) 
 
 "Bills of exchange, notes, accounts, evidences and securities of 
 property of every kind, books, wearing apparel, plate, money, 
 jewels, medals, patterns, models, scientific cabinets and collections, 
 paintings, sculpture, and curiosities are not included in said in- 
 sured property, unless specially mentioned. 
 
 " Said property is insured for the term of , beginning on 
 
 the day of , in the year eighteen hundred and 
 
 , at noon, and continuing until the day of , 
 
 in the year eighteen hundred and , at noon, against all loss 
 
 or damage by fiee originating from any cause except invasion, 
 foreign enemies, civil commotions, riots, or any military or 
 usurped power whatever ; the amount of said loss or damage to 
 be estimated according to the actual value of the insured property 
 at the time when such loss or damage happens, but not to include 
 loss or damage caused by explosions of any kind unless fire ensues, 
 and then to include that caused by fire only. 
 
 " This policy shall be void if any material fact or circumstance 
 stated in writing has not been fairly represented by the in- 
 sured, — or if the insured now has or shall hereafter make any 
 other insurance on the said property without the assent in writing 
 or in print of the company, — or if, without such assent, the said 
 property shall be removed, except that, if such removal shall be 
 necessary for the preservation of the property from fire, this policy 
 shall be valid without such assent for five days thereafter, — or if, 
 without such assent, the situation or circumstances affecting the 
 risk shall, by or with the knowledge, advice, agency, or consent of 
 the insured, be so altered as to cause an increase of such risks, or 
 if, without such assent, the said property shall be sold, or this 
 policy assigned, or if the premises hereby insured shall become 
 vacant by the removal of the owner or occupant, and so remain 
 536 
 
OH. XI.J SPECIAL PROVISIONS OF THE CONTEAOT, ETC. [§ 263 E 
 
 vacant for more than thirty days without such assent, or if it be a 
 inanufacturing establishment running in whole or part extra time, 
 except that such establishments may run in whole or in part extra 
 hours not later than nine o'clock p. m., or if such establishments 
 shall cease operation for more than thirty days without permission 
 in writing indorsed hereon, or if the insured shall make any at- 
 tempt to defraud the company, either before or after the loss, — or 
 if gunpowder or other articles subject to legal restriction shall be 
 kept in quantities or manner different from those allowed or pre- 
 scribed by law, — or if camphene, benzine, naphtha, or other 
 chemical oils or burning iluids shall be kept or used by the insured 
 on the premises insured, except that what is known as refined 
 petroleum, kerosene, or coal-oil may be used for lighting. 
 
 " If the insured property shall be exposed to loss or damage by 
 fire, the insured shall make all reasonable exertions to save and 
 protect the same. 
 
 "In case of any loss or damage under this policy, a statement 
 in writing, signed and sworn to by the insured, shall be forthwith 
 rendered to the company, setting forth the value of the property 
 insured, the interest of the insured therein, all other insurance 
 thereon, in detail, the purposes for which and the persons by whom 
 the building insured, or containing the property insured, was used, 
 and the time at which and manner in which the fire originated, so 
 far as known to the insured. The company may also examine the 
 books of account and vouchers of the insured, and make extracts 
 from the same. 
 
 "In case of any loss or damage, the company, within sixty days 
 after the insured shall have submitted a statement, as provided in 
 the preceding clause, shall either pay the amount for which it shall 
 be liable, or replace the property with other of the same kind and 
 goodness, — or it may, within fifteen days after such statement is 
 submitted, notify the insured of its intention to rebuild or repair 
 the premises, or any portion thereof separately insured by this 
 policy, and shall thereupon enter upon said premises and proceed 
 to rebuild or repair the same with reasonable expedition. It is 
 moreover understood that there can be no abandonment of the 
 property insured to the company, and that the company shall not 
 in any case be liable for more than the sum insured, with interest 
 thereon from the time when the loss shall becojne payable, as above 
 provided. 
 
 537 
 
§ 263 E] INSURANCE : riRE, LIFE, ACCIDENT, ETC. [CH. XI. 
 
 "If there shall be any other insueancb on the property in- 
 sured, whether prior or subsequent, the insured shall recover on 
 this policy no greater proportion of the loss sustained than the 
 sum hereby insured bears to the whole amount insured thereon. 
 And whenever the company shall pay any loss, the insured shall 
 assign to it, to the extent of the amount so paid, all rights to 
 recover satisfaction for the loss or damage from any person, town, 
 or other corjDoration, excepting other insurers; or the insured, if 
 requested, shall prosecute therefpr at the charge and for the account 
 of the company. 
 
 "If this policy shall be made payable to a mortgagee of the in- 
 sured real estate, no act or default of any person other than such 
 mortgagee or his agents, or those claiming under him, shall affect 
 such mortgagee's right to recover in case of loss on such real 
 estate (a) provided, that the mortgagee shall, on demand, pay ac- 
 cording to the established scale of rates for any increase of risks 
 not paid for by the insured; and whenever this company shall be 
 liable to a mortgagee for any sum for loss under this policy, for 
 which no liability exists as to the mortgagor, or owner, and this 
 company shall elect by itself, or with others, to pay the mortgagee 
 the full amount secured by such mortgage, then the mortgagee 
 shall assign and transfer to the companies interested, upon such 
 payment, the said mortgage, together with the note and debt 
 thereby secured. 
 
 " This policy may be cancelled at any time at the request of 
 the insured, who shall thereupon be entitled to a return of the por- 
 tion of the above premium remaining, after deducting the cus- 
 tomary monthly short rates for the time this policy shall have been 
 in force. The company also reserves the right, after giving writ- 
 ten notice to the insured, and to any mortgagee to whom this 
 policy is made payable, and tendering to the insured a ratable pro- 
 portion of the premium, to cancel this policy as to all risks subse- 
 quent to the expiration of ten days from such notice, and no 
 mortgagee shall then have the right to recover as to such risks. 
 
 "In case any difference of opinion shall arise as to the amount 
 of loss under this policy, it is mutually agreed that the said loss 
 
 (a) Under this clause, a fire policy by the mortgagor without the insurer's 
 
 continues in force for the mortgagee's consent. Palmer Sav. Bank v. Ins. Co. 
 
 benefit, so far as his interest appears, of North America, 166 Mass. 189. 
 although the insured estate is conveyed 
 
 538 
 
CH. XI.] SPECIAL PEOVISIONS OF THE CONTRACT, ETC. [§ 263 E 
 
 shall be referred to three disinterested men, the company and the 
 insured each choosing one out of three persons to be named by the 
 other, and the third being selected by the two so chosen, provided 
 that neither party shall be required to choose or accept any person 
 who has served as a referee in any like case within four months ; 
 and the decision of a majority of said referees in writing shall be 
 final and binding on the parties. 
 
 ' ' No suit or action against this company for the recovery of any 
 claim by virtue of this policy shall be sustained in any court of 
 law or equity in this commonwealth unless commenced within two 
 years from the time the loss occurred. 
 
 " In witness whereof the said company has caused this 
 
 policy to be signed by its president and attested by its secretary 
 [or by such proper officers as may be designated], at their office 
 in [date] " ^ 
 
 1 The whole of section 263 E has been extracted from the Public Statutes, 
 pp. 713-715. 
 
 539 
 
insurance: fire, life, accident, etc. [CH. XII. 
 
 CHAPTER XII. 
 
 ALIENATION. ^ 
 Analysis. 
 
 1. 
 
 Change of title by sale, gift, marriage settlement, devise, any way but 
 by descent, § 266, 
 is an alienation, and avoids the policy unless the insurers consent to it 
 expressly, or by implication from usage and the nature of the case, 
 as with a stock of goods ; see §§ 265, 278. 
 absolute alienation suspends policy, and destroys it if title is out of 
 the insured at time of loss, whether there is an express stipulatiou 
 to that effect or not, § 264. 
 a provision that the policy shall be " void " for alienation means void- 
 able, § 264. 
 even descent is fatal if the policy is to be void for change of title ' ' by 
 operation of law," § 266. 
 If the alienation is only executory, or is without authority, or in any 
 way incomplete or a failure, the policy is not affected, § 267 ; see 
 §§ 268-269 a. 
 So long as a scintilla of interest remains in the assured the policy is 
 good, § 268. 
 unless the legal estate is retained on purpose to defeat the conditions, 
 
 §267. 
 unconditional delivery of personal property is an alienation, § 268. 
 The object of provision against transfer is to prevent diminution of the 
 interest which tends to prevent the insured from carelessness or 
 fraud. Any change that substantially increases the motive to bum 
 the property is a violation of the provision, § 273. 
 a, change that increases the assured's motive for vigilance does not 
 avoid the policy though contrary to its letter, § 275. 
 An alienation by a mortgagor after assignment of the policy with consent 
 of the insurers is the act of a stranger and does not avoid the con- 
 tract, § 276. 
 
 2. MOETGAGE AND FORECLOSUHE. 
 A mortgage before complete and valid foreclosure, whether on real (§269), 
 or personal (§ 270) estate, is not an alienation, §§ 269, n., 269 a end, 
 and 276 C. Contra, Indiana and Michigan, § 269. 
 mere entry or commencement of foreclosure proceeding not fatal, 
 §§ 276 C, 269 a. 
 unless expressly so agreed, §§ 269 a, 276 C. 
 
 and even then knowledge of the agent may estop the company, 
 § 282 B. 
 
 1 See Appendix to this chapter. 
 
 540 
 
CH. XII.] ALIENATION. 
 
 and entry of foreclosure between the application and the issues of the 
 policy may not be covered by its terms, § 276 C. 
 foreclosure sale under valid mortgage is an alienation, § 273. 
 
 not so under an invalid mortgage, § 269 a. 
 if the period of redemption expires, consent of the mortgagee next day 
 
 to extend it cannot save the policy, § 276 C. 
 fire before foreclosure sale, though on same day, company liable, 
 
 § 276 C. 
 pending foreclosure, insurance in favor of mortgagee and assigns, 
 
 company bound, § 276 C. 
 foreclosure sale without deed or report of sale, not a transfer, § 276 C. 
 "judgment in foreclosure" to avoid must be one that of itself effects 
 a transfer, § 276 C. 
 Mortgage held an "alteration of ownership" and an "alienation in 
 
 part," § 271. 
 Conditional sale no alienation, nor, in equity, is an absolute sale if in- 
 tended only as security for debt ; but at law parol will not be ad- 
 mitted to show that a deed absolute on its face is really only a 
 mortgage, § 272 ; and see § 264. 
 and it is not necessary to have a defeasance dehors the deed recorded, 
 §272. 
 unless it is required by statute, § 272. 
 conveyance and reconveyance on trust for asssured, not an alienation, 
 neither is a lease, § 272. 
 Transfer from husband to wife through B. not fatal, § 273 ; contra, § 273. 
 Partners. Sale or mortgage or other transactions between partners or 
 joint owners not an alienation, according to the best view, §§ 279- 
 281; contra, § 280. 
 no new interest or element of carelessness is introduced, § 279. 
 but when this is done, as by taking in a new partner, the policy is 
 avoided. A renewal after the cliange is good, however, although 
 the company did not know of it, § 279. 
 in such cases there is apt to be trouble about the proper parties to the 
 action, and it is best on change of partnership property to assign 
 the policy with assent of the insurers, § 281. 
 transfer between co-tenants not fatal, § 280 ; contra, § 280. 
 levy of execution, § 274. 
 alienation must be by the one having the insured interest, §§ 267, end, 
 
 and 276. 
 transfer of one of several distinct parcels, § 278. 
 " change of possession." 
 
 change of tenants not, § 273 A. 
 nor possession under a revocable license, § 273 A. 
 refers to "right of possession," § 273 A. 
 a contract to sell, though with delivery aiid part payment, no alien- 
 ation, §§ 267, n., 276 B, and contra, § 267, n. 
 Sale, see next two heads. 
 Fatal Cases: 
 
 transfer in bankruptcy on insolvency, §§ 264, 276 A. 
 
 sale on credit, § 276 A. 
 
 sale and mortgage back, though vendor keeps possession, § 276 A. 
 
 541 
 
§ 264] insurance; fiee, life, accident, etc. [ch. xii. 
 
 deed absolute and return deed giving life-right of occupancy to ven- 
 dor, § 276 A. 
 
 sale to mortgagee, § 276 A. 
 Cases not fatal : 
 
 trust-deed, § 276 B, or deed with trust back, § 272. 
 
 a lease, §§ 272, 276 B. 
 
 selling off a stock of goods, §§ 265, 278. 
 
 sale by trustee to himself or for his benefit, § 276 B. 
 
 sale after cause of loss though before actual loss, § 276 B. 
 
 sale of part interest, § 276 B. 
 
 sale of land under insured buildings, § 276 B. 
 
 ultra vires sale by school committee, § 276 B. 
 
 sham sale to cheat creditors, § 276 B. 
 
 foreclosure ; see § 276 C, and above under " Mortgage." 
 Entire Contract. Where the premium is entire, alienation or other breach 
 of condition in respect to a part of the property vitiates the contract 
 as to all, § 277. 
 
 other cases hold however that a misrepresentation, sale, or other breach 
 of condition affecting only a part of the property merely avoids the 
 policy pro tanto, § 278. 
 
 true test, see § 277, first note. 
 
 if each has its specific premium the policy really includes several con- 
 tracts, and the avoidance of one may not affect the others, § 277. 
 
 and the same rule should apply where the premium is apportionable 
 on a clear and just principle, § 277, n. 
 
 if the assured has acted in good faith he should not lose his whole in- 
 S'arance by a breach as to part, unless such is the clear intent of the 
 agreement, or a just division of the contract is impossible. 
 Waiver, §§ 282-282 B. 
 
 assent to conveyance cures all preceding (§ 282), but not subsequent 
 transfers, § 282 A. 
 
 in general, assent of agent sufficient, § 282 A. 
 
 not if policy requires indorsement, § 282 A ; contra, § 282 A. 
 
 payment of dividend to partner after transfer to him is a, § 282 A. 
 
 consent to corresponding assignment of policy is a, § 2S2 A. 
 but indorsement " payable to " not, § 282 A. 
 unless with knowledge of the facts, § 282 A. 
 
 levy waived, § 282 A. 
 
 and sale of land under house, § 282 A. 
 
 knowledge of the agent and his omission of proper endorsement estops 
 company in case of ignorant applicant, § 282 B. 
 
 parol evidence that policy was to be drawn to cover intended transfer 
 not admissible ; suit should be for refonnation, § 282 B, New York. 
 
 § 264. Limitation of Risk ; Alienation. — It follows from 
 the general principle that the insured cannot recover save 
 in exceptional cases for a loss, unless it appear that he had 
 an interest in the subject-matter of insurance, as well at the 
 time of the loss as at the time when the insurance was 
 effected, that if he parts with his interest subsequent to the 
 542 
 
CH. XII.l ALIENATION, [§ 264 
 
 insurance, and at the time of the loss has no longer an in- 
 surable interest, he will have no claim upon the company. 
 This parting with his interest is termed in the law of insur- 
 ance an alienation. The term is derived from the law of real 
 property, and is there defined to be "any method of acquir- 
 ing title wherein estates are voluntarily resigned by one man 
 and accepted by another, whether that be effected by sale, 
 gift, marriage settlement, devise, or other transmission of 
 property by the mutual consent of the parties. " It is title 
 by purchase in contradistinction to title by descent. ^ And 
 this alienation, if absolute, works a forfeiture whether so 
 stipulated in the policy or not, if the property remains out 
 of the insured at the time of the loss.^ So does a donation 
 inter vivos, without restriction except that the donor shall 
 not alienate, or dispose of, except by will.^ And an abso- 
 lute deed, whether warranty or quitclaim, with a mortgage 
 back, or an unsealed agreement to reconvey on the payment 
 of a stipulated sum,* is an alienation.^ So is a conveyance 
 by a husband to a trustee for his wife, though the trust be 
 immediately executed.^ (a) So an absolute conveyance by a 
 mortgagor of his equity to the mortgagee, taking but not 
 recording a bond for reconveyance on payment of a certain 
 sum, is, in Massachusetts, an alienation, the statute of that 
 State providing that an absolute conveyance shall not be de- 
 feated by an unrecorded defeasance.^ So is a transfer to 
 
 1 2 Blackstone, Comm. 287; Burbank u. Rockingham Mut. Fire Ins. Co., 4 
 Fost.(N. H.) 550. 
 
 2 Wilson V. Hill, 3 Met. (Mass.) 66 ; Mtna. Ins. Co. o. Tyler, 16 "Wend. (N. Y.) 
 385. 
 
 8 Macarty v. Com. Ins. Co., 17 La. 365. 
 * Adams v. Eockingham Mut. Fire Ins. Co., 29 Me. 292. 
 s Ibid. ; Home Mut. Fire Ins. Co. v. Hauslein, 60 111. 521 ; Abbott v. Hamp- 
 den Ins. Co., 30 Me. 414. See aXso post, § 269. 
 
 ^ Oakes v. Manufacturing Ins. Co., Mass., April, 1881. 
 ' Foote V. Hartford Fire Ins. Co., 119 Mass. 259. 
 
 (a) Where, as in Nebraska, the stat- use and benefit, and subject to his con- 
 
 ute of uses is not in force, a conveyance trol, cannot be treated as an executed 
 
 by a husband to a third person, who use, making the husband still the owner, 
 
 conveys the property to his wife under Farmers' & M. Ins. Co. v. Jensen (Neb.), 
 
 agreement that she will hold it for his 78 N. W. 1054 ; 76 id. 577. 
 
 543 
 
§ 264] KSUEANCE : fire, life, accident, etc. [cH. XII. 
 
 the assignee, by decree of the court, of a bankrupt's estate, 
 under the bankrupt laws of the United States, upon the 
 bankrupt's petition. He is thereby divested of all his prop- 
 erty, and it becomes vested in the assignee. That the pro- 
 ceedings may be stayed, and thus the property become 
 revested in him, is a contingency too remote to be consid- 
 ered the foundation of a remaining insurable interest in the 
 bankrupt. He has no power to reclaim the property, and 
 has no right to it in law or equity by any contract executed 
 or executory. One may be interested in the avails of prop- 
 erty alienated, and yet have no right to the property itself.^ 
 And of course a voluntary assignment for the benefit of cred- 
 itors is equally a transfer,^ unless possession be retained by 
 the assignor.^ Even an assignment, fraudulent and void as 
 against creditors, by virtue of the insolvent laws, has been 
 held an alienation. As the case stood before the court the 
 assignment was as if it were valid, since the court held the 
 assignor estopped from setting up his own fraud for the pur- 
 pose of getting back to his original title.* And so, perhaps, 
 is a sale by a master in chancery of a mortgagor's interest 
 under a decree of foreclosure, with part payment of the pur- 
 chase-money and execution by the vendee of the articles of 
 sale, although the decree is not enrolled, and no deed is de- 
 
 ' Yomig V, Eagle Fire Ins. Co., 14 Gray (Mass.), 150 ; Adams c. Rockingham 
 Mut. Fire Ins. Co., 29 Me. (16 Sliep.) 292; Perry v. Lorillard Ins. Co., 6 Lans. 
 (N. Y. ) 201. Where tlie policy was upon personal property, and payable to the 
 mortgagee in case of loss, and the mortgage amounted to more than the value 
 of the property, it was held that an as.signment in bankruptcy did not work a 
 change in the title. Appleton Iron Co. v. Brit. Am. Ass. Co., 46 Wis. 23. The 
 case is distinguished from those cases where the insurance is upon real estate, as 
 a mortgage of personal property conveys the title to the mortgagor, while one on 
 real estate does not. In Starkweather v. Cleveland Ins. Co., C. Ct., 19 Am. Law 
 Reg. 333, 2 Abb. U. S. 67, 5 Bennett's Fire Ins. Oas. 328, it was held that an 
 assignment in bankruptcy in pursuance of involuntary proceedings was no viola- 
 tion of a provision against a change or transfer of title. 
 
 2 Dey V. Poughkeepsie Mut. Ins. Co., 23 Barb. (N. Y.) 623; Hazard v. Frank- 
 lin Mut! Fire Ins. Co., 7 R. I. 429 ; McQueen v. Phoenix Ins. Co., U. C. (Ct. of 
 App.) 15 Can. L. J. 190, overruling s. o. in Q. B. ; Little v. Eureka Ins. Co., Gin. 
 Sup. Ct., 5 Ins. L. J. 154. 
 
 8 Phcenix Ins. Co. v. Lawrence, 4 Met. (Ky.) 9. 
 
 4 Dadmun Maiiufacturing Co. v. Worcester Mut. Fire Ins. Co., 11 Met. (Mass.) 
 429 ; Birdsey v. City Fire Ins. Co., 26 Conn. 165 ; post, § 273. 
 544 
 
CH. XII,; ALIENATION. [§266 
 
 livered. The deed, when delivered, relates to the time of 
 the sale.^ We say "perhaps," because the rule is admitted 
 to be different in England, and the decision seems to rest 
 upon the practice in New York. The weight of authority 
 undoubtedly is, that the "transfer and change of title," to 
 use the language of the policy in this case, does not take 
 place till the deed is delivered, or there is a confirmation 
 by the court of the proceedings had under its order.^ [The 
 clause declaring that if the property "is alienated, the pol- 
 icy shall be void," is construed to mean that alienation 
 makes the policy voidable at the election of the company.^] 
 
 § 265. Temporary Alienation ; Parol Lease ; Sale of Part of 
 Property insured. — Where, however, a policy prohibiting 
 alienation, on penalty of avoiding the policy, was issued 
 upon a store and stock of goods, the oral lease of the store 
 and a sale of the stock of goods to the lessee, who before the 
 expiration of the policy re transfers both the store and the 
 remaining goods to the insured, have been held not to be a 
 violation of the prohibition. Nor would a sale from time to 
 time of a retail stock of goods, though during the currency 
 of the policy the whole stock might be changed, be a viola- 
 tion of such a condition.* 
 
 § 266. Change of Title by Descent does not Avoid the Policy 
 unless so expressed. — A transfer of title by descent is there- 
 fore, according to the definition given,^ no alienation. By 
 the death of the ancestor the property descends to the heir, 
 it is true ; but his title is not by what is technically under- 
 stood to be a conveyance, purchase, or alienation.^ [But if 
 
 1 McLaren v. Hartford Fire Ins. Co., 1 Seld. (N. Y.) 151. 
 
 2 Farmers' Mut. Ins. Co. v. Graybill, 74 Pa. St. 17 ; Manhattan Ins. Co. v. 
 Stein, 5 Bash (Ky.), 652. 
 
 8 [Grant v. Eliot, &c. Mut. Fire Ins. Co., 75 Me. 196.] 
 
 * Lane v. Maine Mnt. Fire Ins. Co., 3 Fairf. (Me.) 44 ; Power v. Ocean Ins 
 Co., 19 La. 28 ; "West Branch Ins. Co. v. Helfenstein, 40 Pa. St. 289 ; ante, § 101 ; 
 post, § 268. 
 
 5 Ante, § 264. See also Georgia Home Ins. Co. v. Kinnier, 28 Grat. (Va.) 88. 
 [The death of the insured by which his property descends to heirs or devisees is 
 not an alienation. Grant v. Eliot, &c. Mut. Fire Ins. Co., 75 Me. 196, 201.] 
 
 6 Burbank v. Rockingham Mut. Fire Ins. Co., 4 Post. (N. H.) 550. The lien 
 of the company (a mutual one) does not bind the heirs. Indiana Mut. Ins. Co. 
 V. Chamberlain, 8 Blackf. (Ind.) 150; and a descent into the possession of the 
 
 VOL. I. — 35 545 
 
§ 267] insurance: fike, life, accident, etc. [ch. xii, 
 
 a policy is to be void by any transfer, whether voluntary or 
 by operation of law, the death of the insured avoids it un. 
 less the consent of the company to the descent of the prop- 
 erty is obtained.^] 
 
 § 267. If Title not conveyed, no Alienation ; Hzecutory 
 Agreement. — In discussing its meaning as bearing upon the 
 subject of insurance, it has been said to import a conveyance 
 of the title, and that nothing short of this would amount to 
 an alienation.^ (a) [In general a condition restraining the 
 right of selling or assigning leasehold property is not broken 
 by any act of the lessee, which falls short of divesting his 
 legal estate, but if the legal estate is continued in him on 
 purpose to evade the condition, the rule is otherwise.-^] 
 "Transfer of the title in the property insured," means the 
 title and ownership of the property insured, and not the in- 
 terest of the insured therein.* And whether applied to real 
 or personal estate, it is a disposition by the owner of the 
 property, by which he parts with all his interest, and it 
 passes to another. An agreement, therefore, to sell though 
 
 heirs vitiates the policy under a condition that it shall he void if the property 
 comes into the possession of any other than the insured. Lappiu v. Charter Oak 
 Ins. Co., 58 Barb. (N. Y.) 325. Under a charter which gives a lien for premiums 
 and other dues during the continuance of the policy, and provides that the pol- 
 icy shall he avoided by alienation, the lien is not good as against the alienee. 
 McCulloch V. Indiana Mut. Fire Ins. Co., 8 Blackf. (Ind. ) 50. It might be other- 
 wise if the statute did not make the policy void. Kuas v. Mutual Ins. Co., 29 
 U. C. (Q. B.) 73. 
 
 1 [Hine v. Homestead Fire Ins. Co., 29 Hun, 84, 93 N. Y. 75 ; Sherwood v. 
 Agricultural Ins, Co., 73 N. Y. 447, 451.] 
 
 2 Masters v. Madison County Mut. Ins Co., 11 Barb. (N. Y. S. C.) 624. 
 8 [Livingston v. Stickles, 7 Hill, 253.] 
 
 4 Springfield Fire & Mar. Ins. Co. ... Allen, 43 N. Y. 389 ; post, § 273. 
 
 {a) Forward v. Continental Ins. Co., Thomas, 90 Va. 658 ; Pfister v. Gerwig, 
 142 N. Y. 382; McCoy v. Iowa State 122 Ind. 567. The clause against alien- 
 Ins. Co., 107 Iowa, 80 ; Ehrsam Ma- ation does not apply to a deed invalid 
 chine Co. v. Phenix Ins. Co., 43 Neb. because of the grantor's insanity. Ger- 
 554. The value of the consideration is ling v. Agricultural Ins. Co., 39 W. Va, 
 immaterial. Brown i'. Cotton & W. M. 689. A provision forbidding transfer 
 Ins. Co., 156 Mass. 587. A change of of the title applies to the interest ao 
 title by death of the insured does not quired by a new co-partner of the in- 
 work a forfeiture, the insurer not oh- snred. Germania F. Ins. Co. v. Home 
 jecting that a formal change is not Ins. Co., 144 N. Y. 195. 
 made, Virginia F. & M. Ins. Co. v. 
 
 546 
 
CH. XII.] ALIENATION. [§ 268 
 
 iu writing and with delivery of possession, and a receipt of 
 part of the purchase-money in payment, is no alienation, so 
 long as the title has not passed, and the property remains at 
 the risk of the vendor, though the agreement be executed 
 after the loss. ^ It can hardly be necessary to observe that 
 an unauthorized alienation, as a mortgage by a husband of 
 his wife's property, is in point of law no alienation as 
 against the wife.^ The alienation, unless otherwise stipu- 
 lated, must be by the one having the insured interest.^ 
 
 § 268. Alienation ; Personal Property ; Delivery. — In caseS 
 of personal property, as the title passes by delivery, unless 
 there is an agreement to the contrary, it is probable that an 
 unconditional delivery would be held to'amount to an alien- 
 ation, and not otherwise.* Worthington v. Bearse^ — a case 
 of marine insurance — shows that an agreement for a trans- 
 fer, so long as it is not completely executed, and so long as 
 a scintilla of interest remains in the insured, will not be 
 
 1 Boston & Salem Ice Co. v. Royal Ina. Co., 12 Allen (Mass.), 381 ; Davis v. 
 Qiiincy Mut. Fire Ins. Co., 10 id. 113 ; Masters v. Madison County Mut. Ins, 
 Co., 11 Barb. CS. Y.) 624 ; ISTorcross v. Franklin Ins. Co., 17 Pa. St. 429 ; Trum- 
 bull k. Portage Mut. Fire Ins. Co., 12 Ohio, 305; Hill v. Cumberland Valley 
 Mut Prot. Co., 9 P. F, Smith (Pa.) 474 ; Gilbert v. North Am. Fire Ins. Co., 23 
 Wend. (N. Y.) 43 ; Perry Ins. Co. v. Stewart, 19 Pa. St. 45 ; Shotwell v. Jeffer- 
 son Ins. Co., 5 Bosw. (N. Y. Superior Ct.) 247 ; Fire & Mar. Ins. Co. v. Moixi- 
 son, 11 Leigh (Va.), 354; Washington Ins. Co. v. Kelly, 32 Md. 421. [A contract 
 by the insured to convey at a future day is not a breach of the condition against 
 sale. Kempton v. State Ins. Co., 62 Iowa, 83. It has been held however that a 
 contract under seal to sell the insured premises, and part payment of the pur- 
 chase-money avoids a policy. Germond v. Home Ins. Co., 6 T. & C. (N. Y. ) 120, 
 121. And in an Iowa case the assured agreed to sell to L. on instalments, the 
 deed to be made when the money was all paid, and failure of any payment to 
 avoid the whole contract. L. took possession under the contract, and this was 
 held a sale which forfeited the policy. Davidson v. Hawkeye Ins. Co., 71 Iowa, 
 532, Reed, J., dissenting. The dissent, it seems to us, has far greater weight in 
 this case than the majority opinion. The contract with L. was not a sale, but an 
 executory contract for a sale. The title did not pass. L. was not entitled to a 
 conveyance of the property until he performed the conditions of the agreement.] 
 
 2 Commercial Ins. Co. v. Spankneble, 52 111. 53. 
 
 8 McEwan u. Western Ins. Co., 1 Mich. (X. P.) 118. 
 
 * M.XVX Ins. Co. V. Jackson, 16 B. Mon. (Ky.) 242 ; Phcenix Ins. Co. u. Law- 
 rence, 4 Met. (Ky.) 9 ; ITorcross 7). Insurance Co., 17 Pa. St. 429 ; Boston & Salem 
 Ice Co. V. Royal Ins. Co., 12 Allen (Mass.), 381 ; Tallmau v. Atlantic Ins. Co., 
 3 Keyes (40 N. Y.), 87. 
 
 '' 12 Allen (Mass. ), 382. 
 
 547 
 
§ 268] INSURANCE : riEE, LIFE, ACCIDENT, ETC. [OH XII. 
 
 treated as an alienation. The facts of the case were as fol- 
 lows : The action was on a policy of insurance for two thou- 
 sand dollars, payable to the plaintiff in case of loss, issued 
 by the defendants to David P. Nickerson, upon seven-eighths 
 of the schooner "William B. Castle," for one year from 
 April 8, 1860. Nickerson had mortgaged his interest in 
 the schooner to the plaintiff; and afterwards, on the 11th of 
 October, 1860, conveyed thirteen-sixteenths of the schooner 
 to George T. Lovell, receiving notes of Lovell, Atwood, & 
 Co. in payment, and Nickerson was to pay to the plaintiff 
 what was then due to him, namely, about four thousand dol- 
 lars. About the 20th of the same month, Lovell reconveyed 
 said interest to Nickerson, and took back the notes which 
 had been given in payment therefor, none of them having 
 become due. This interest was reconveyed to Nickerson, 
 because he could not carry out his contract to obtain a re 
 lease from the plaintiff, as the latter would not accept said 
 notes in payment thereof ; and on the part of Lovell, because 
 a person who was to be her master was dissatisfied with her ; 
 so that the parties acted from different motives, and each 
 party was ignorant of the motives of the other. Upon both 
 of these transfers, the papers were changed in the custom- 
 house. The schooner was totally lost on or about the 16th 
 of March, 1861. Nickerson then owned seven-eighths of 
 lier, subject to the mortgage of Worthington. Liability was 
 held to attach for the full amount insured.^ 
 
 1 Bigelow, C. J., here said : " We, entertain no doubt that the defendants are 
 liable for the full amount insured by the policy. This liability rests upon f\vo 
 grounds, either of which is suiKcient to sustain the plaintiff's claim. In the first 
 place, on the facts stated, the alleged sale by the assured of thirteen-sixteenths of 
 the vessel covered by the policy was incomplete, and never took effect so as to 
 extinguish his insurable interest therein. One of the essential stipulations of the 
 agreement of sale was not complied with. The vendor expressly agreed to pay 
 the amount due on the mortgage of his share of the vessel, and to procure a re- 
 lease from the mortgagee. This, the case finds, he did not and could not do. 
 Until this part of the contract was complied with, the vendee had a right to 
 avoid the sale and rescind the whole bargain. The delivery of the bill of sale 
 passed a title only at the election of the vendee. He might, within a reasonable 
 time after the failure of the assured to fulfil his contract of sale by procuring a 
 release of the mortgage on the vessel, elect to restore the legal title and recover 
 back the consideration of the transfer. During this time the plaintiff had a con- 
 tinuing and subsisting interest in the vessel. The transfer could not be regarded 
 
 548 
 
CH. XII.] ALIENATION. [§ 269 
 
 § 269. Mortgage, before Foreclosure, no Alienation or Change 
 of Title ; Entry for Foreclosure Merger of Title. — The charter 
 of a mutual insurance company provided that "when any 
 property insured in the company shall in any way be alien- 
 ated the policy thereupon shall be void;" and a by-law pro- 
 vided that '' when the title of any property insured shall be 
 changed by sale, mortgage, or otherwise, the policy shall 
 thereupon be void ; " and it was held that a mere mortgage 
 did not avoid the policy. A mortgage is not an alienation, 
 nor is it, without foreclosure, a change of title. ^ (a) The 
 
 as absolute and complete, but only conditional on a compliance with the terms of 
 the bargain. A mere transfer of the legal title of a vessel does not extinguish a 
 right to recover on a policy, if the party making the transfer still retains any 
 right or interest in the vessel or her proceeds. (Gordon v. Mass. Ins. Co., 2 Pick. 
 249; Lazarus v. Commonwealth Ins. Co., 19 Pick. 81; Wilson v. Hill, 3 Met. 
 66, 71.) The insured clearly had an interest in the preservation of the vessel, un- 
 til it was certain that the contract for her sale had become complete, and the title 
 to her had vested absolutely in the vendee. In this view of the facts, the insured 
 did not forego his right to recover on the policy pending the transactions in rela- 
 tion to the transfer of the vessel. The other ground of decision is stated ante, 
 § 101." 
 
 1 Shepherd v. Union Mut. Fire Ins. Co., 38 N. H. 232 ; Folsom v. Belknap 
 County Mut. Fire Ins. Co., 10 Fost. (N. H.) 231; Howard Ins. Co. v. Bruner, 
 23 Pa. St. (11 Harris) 50 ; Jackson v. Massachusetts Mut. Fire Ins. Co., 23 Pick. 
 (Mass.) ilS ; Conover v. Mut. Ins. Co. of Albany, 3 Denio (N. Y.), 254'; s. c. 1 
 Comst. (N. Y.) 290 ; Pollard v. Somerset Mut. Fire Ins. Co., 42 Me. 221 ; Smith 
 V. Monmouth Mut. Fire Ins. Co., 50 Me. 96; Button v. New England Mut. Fire 
 Ins. Co., 9 Fost. (N. H.) 153 ; Rollins o. Columbian Mut. Fire Ins. Co., 5 iJ. 
 200; Rice et al. v. Tower & Trs., 1 Gray, 426 ; Aurora Fire Ins. Co. v. Eddy, 55 
 111. 213 ; Com. Ins. Co. v. Spankneble, 52 111. 63 ; Hartford Fire Ins. Co. v. 
 Walsh, 54 id. 164 ; Kelley v. Liverpool, &c. Ins. Co., 1 Hannay (N. B.), 266 ; 
 Sands V. Standard Ins. Co., U. C. (Ch.), 15 Can. L. J. 49; post, § 272. [Byers 
 V. Farmers' Ins. Co., 35 Ohio St. 606; Friezen v. AUeniania Fire Ins. Co., 30 
 Fed. Rep. 352, Wis. 1887. A mortgage of property insured, without giving up 
 possession, is not a breach of the condition that the " entire unconditional and 
 sole ownership " must be in the assured, or of the conditions against selling, 
 transferring, or change of title or possession. Judge v. Conn. Eire Ins. Co., 132 
 Mass. 521.] 
 
 (a) See Peck v. Girard F. & M. Ins. v. Home Ins. Co., 79 Wis. 399 ; East 
 
 Co., 16 Utah, 121 ; Williamson v. On- Texas F. Ins. Co. v. Clarke, 79 Texas, 
 
 ent Ins. Co., 100 Ga. 791 ; Lancashire 23 ; National Bank v. Union Ins. Co., 
 
 Ins. Co. V. Boardman, 58 Kansas, 339 ; 88 Cal. 497 ; Koshland v. Hartford Ins. 
 
 Vaukirk v. Citizens' Ins. Co., 79 Wis. Co., 31 Oregon, 402. A deed absolute 
 
 627 ; Tarbell v. Vermont Mut. F. Ins. on its face, but intended only as secu- 
 
 Co., 63 Vt. 53 ; HoUoway v. Dwelling- rity, though really a mortgage, does not 
 
 House Ins. Co., 48 Mo. App. 1 ; O'Brien prevent the vendee being held the ' ' sole 
 
 54:9 
 
§ 269] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XII. 
 
 contrary doctrine has, however, been held in Indiana, though 
 with some hesitation. ^ And in Michigan ^ it has been held 
 that a conveyance absolute in form, but in fact merely as 
 security for a debt, though not a sale, is a transfer or change 
 of title which avoids a policy. "The words," say the court, 
 " transfer or change of title, are more comprehensive than the 
 word sale, which immediately precedes them. A sale is a 
 parting with one's interest in a thing for a valuable consid- 
 eration. This is what is generally understood by the word, 
 and in every sale there is a transfer or change of title from 
 the vendor to the vendee. But there may be a tra,nsfer or 
 change of title without a sale. Should A. convey a piece of 
 property to B. to hold in secret trust for him, there would 
 be a transfer or change of title from A. to B., but there 
 would not be a sale of the property, or an actual parting 
 with it to B. for a valuable consideration, although the con- 
 veyance on its face would import a sale from A. to B. And 
 if the trust, instead of being secret, appeared on the face of 
 the conveyance, there would still be a change of title. The 
 title would no longer be in A., but in B., his grantee. We 
 think such a conveyance would clearly come within the con- 
 dition of the policy and put an end to the insurance. " ^ (a) 
 
 1 McCuUooh V. Indiana Mut. Fire Ins. Co., 8 Blaokf. 50 ; Indiana Mut. Fire 
 Ins. Co. u. Coquillard, 2 Carter, Ind. 645. 
 
 2 Western Mass. Ins. Co. v. Kiker, 10 Mich. 279. 
 
 ^ And see ante, § 264. If the conveyance is in effect an equitable mortgage, 
 in the form of a deed of trust, it is not a change of title under the Georgia Code. 
 Virginia, &c. Ins. Co. «. Feagin (Ga.), 9 Eepr. 173. 
 
 and unconditional owner," if he is in nor a mortgage or deed of a homestead 
 
 possession and his claim is overdue, signed only by the husband. German 
 
 Carey v. Liverpool, &c. Ins. Co., 92 Ins. Co. v. York, 48 Kansas, 488. A 
 
 "Wis. 538 ; Sun Fire Office v. Clark, 63 lien for unpaid purchase-money is not 
 
 Ohio St. 414; Hawley v. London, &c. fatal under an answer in the application 
 
 Ins. Co., 102 Cal. 651 ; see Carey v. that there is no mortgage. Phenix Ins. 
 
 AUemania F. Ins. Co., 171 Penn. St. Co. v. Coombes (Ky.), 22 Ins. L. J. 155. 
 
 204. A fictitious mortgage made by As to alienations avoiding the policy, 
 
 one partner and kept by him is not an see further Morrison v. Tennessee M. & 
 
 incumbrance under the insurance law. F. Ins. Co. (Mo.), 58 Am. Dec. 299, and 
 
 Fitchner v. Fidelity Mut. F. Ass'n, 103 note. 
 
 Iowa, 276. Nor is a mortgage that was (a) See Sun Fire OflBoe v. Clark, 53 
 
 never delivered : Clifton Coal Co. v. Ohio St. 414 ; Gibb v. Phila. F. Ins. 
 
 Scottish Union Ina. Co., 102 Iowa, 300 ; Co., 59 Minn. 267 ; Green v. Brand, 
 
 550 
 
CH. XII.] ALIENATION. [§ 269 a 
 
 § 269 a. Mortgage ; Entry of Foreclosure. — In Mcllltire V. 
 Norwich Fire Insurance Company,^ the policy contained 
 among its various conditions a stipulation in these words: 
 " If the title of the property is transferred or changed, . . . 
 this policy shall be void ; and the entry of a foreclosure of a 
 mortgage . . . shall be deemed an alienation of the prop- 
 erty, and this company shall not be holden for loss or dam- 
 age thereafter. " It was held that the words " the entry of a 
 foreclosure " does not mean exactly the same as a consum- 
 mated foreclosure, and that any act, which, of itself, with- 
 out further formality or process on the mortgagee's part, 
 deprives the assured of all right and title in the property, 
 unless the debt is paid, terminates the risk.^ 
 
 1 102 Mass. 230. 
 
 ^ The court here said: "What are we to understand by the expression, ' the 
 entry of a foreclosure of a mortgage,' which, according to the terms of the con- 
 tract, ' shall be deemed an alienation of the property,' after which the defendants 
 ' shall not be holden for loss or damage ' ? It is a somewhat peculiar form of ex- 
 pression, not strict]}' and technically accurate, perhaps ; but to be interpreted in 
 such a manner as to carry out the true intent of the parties, so far as that intent 
 is discoverable. In the case of a mortgage upon real estate, the mortgagee, on 
 breach of condition, may enter for the purpose ,of foreclosure ; and, although his 
 title may become absolute by mere lapse of time, no other entry or formality may 
 be required on his part ; and there is nothing in any public record, or iu any 
 proceeding, which can literally be said to be an entry of foreclosure. In the case 
 also of a mortgage of personal property, the mortgagee gives notice of his inten- 
 tion to foreclose, in the form prescribed by statute, and his title afterwards may 
 become absolute without any further act or ceremony on his part. He cannot be 
 said to enter upon the property, nor can it in a literal sense be said that there is 
 
 1 C. & E. 410; Gerling o. Agr. Ins. Co., 44 Neb. 537 ; Phenix Ins. Co. o. 
 
 Co., 39 W. Va. 689 ; Small v. West- Bowdre, 67 Miss. 620. A general 
 
 Chester F. Ins. Co., 51 Fed. Rep. 789 ; assignment for the benefit of creditors 
 
 Georgia Home Ins. Co. o. Hall, 94 Ga. usually avoids a policy under a clause 
 
 630 ; Brick o. Campbell, 122 N. Y. therein against transfers. Orr v. Han- 
 
 337 ; Phoenix Ins. Co. v. Asberry, 95 over F. Ins. Co., 158 111. 149. But as 
 
 Ga. 792. When the beneficiary is in a receiver appointed by the court has 
 
 possession and pays the premium, and merely a right of custody, and the title 
 
 the policy is issued to his trustee, and to personalty is not changed by his ap- 
 
 these facts are made known to the in- pointment, such appointment is not a 
 
 surer's agent, there is no forfeiture for change of title by sale or judicial decree 
 
 non-ownership, or because the trustee as to property previously conveyed 
 
 afterwards conveys the property to the voluntarily to trustees to secure credi- 
 
 beneficiary. Rhode Island Underwrit- tors and insured by such trustees, 
 
 ers' Ass'n v. Monarch, 98 Ky. 305. See Georgia Home Ins. Co. v. Bartlett, 91 
 
 Rochester Loan & B. Co. v. Liberty Ins. Va. 305. 
 
 551 
 
§ 269 a] INSUEANCE : FIEE, life, accident, etc. [CH. XII. 
 
 When, however, the title becomes absolute in the mort- 
 gagee or his assigns, by foreclosure, or, what is tantamount 
 to a foreclosure, merger in the purchaser of the equity, who 
 subsequently takes an assignment of the mortgage, the trans- 
 fer is complete and the change of title is an alienation ; ^ 
 unless the insurance is by the mortgagor, for the benefit of 
 the mortgagee, who signs the premium note and pays assess- 
 ments, in which case, as the title and property remains 
 in the hands of the person liable to the company, fore- 
 closure is no alienation.^ And the foreclosure must be 
 absolute. If it be incomplete, and there is an outstanding 
 equity of redemption^ it is no sale or conveyance.^ But 
 
 an entry of foreclosure. In toth cases, the first step towards foreclosure is the 
 manifestation of the intent to foreclose, which is to be indicated in such manner 
 as the law points out, accompanied with a formal registration in the public 
 records. It is very manifest, as we think, that the words 'the entry of a fore- 
 closure,' as used in the policy, are not to be interpreted as meaning exactly the 
 same thing as a consummated and finished foreclosure. The policy provides not 
 merely for the transfer, but the change of title, and the insurer may very naturally 
 have considered an entry for foreclosure aa a material change in the title of the 
 assured, and in his relation to the property. The parties, in their contract, have 
 taken pains to avoid saying simply that ' the foreclosure of a mortgage ' shall he 
 deemed an alienation. There would be no occasion for them to say that, inasmuch 
 as the law would plainly have said it for them. The meaning of the policy, in 
 our judgment, is, that something short of an actual and complete foreclosure shall 
 be considered, for the purposes of their contract, as a transfer or change of title, 
 and that an entry for foreclosure, or an act which of itself, and without any fur- 
 ther formality or process on the part of the mortgagee, will deprive the assured of 
 all right and title in the property, unless he pay the debt, shall be deemed suffi- 
 cient to terminate the risk. The defendant might well be unwilling to continue 
 to insure property which is so situated that its destruction by fire might be the 
 easiest or only way to make it beneficial to the assured." In Colt v. Phoenix Ins. 
 Co., 54 N. Y. 595, the phrase " commencement of foreclosure proceedings" was 
 held to have no reference to proceedings to enforce a mechanic's lien. 
 
 1 Macomber ». Cambridge Mut. Fire Ins. Co., 8 Gush. (Mass.) 133 ; McLaren 
 t>. Hartford Fire Ins. Co., 1 Sold. (N. Y.) 151 ; Mt. Vernon Manufacturing Co. 
 .;. Summit County Mut. Fire Ins. Co., 10 Ohio St. 347 ; Brunswick v. Commer- 
 cial Ins. Co., 68 Me. 313. 
 
 2 Bragg V. N.E. Mut. Fire Ins. Co., 5 Fost. (N. H.) 289. 
 
 ^ Strong V. Manufacturers' Ins. Co., 10 Pick. (Mass.) 40 ; Loy v. Insurance 
 Co., 24 Minn. 315. See also McKissick u. Millowners' Ins. Co., 60 Iowa, 116, 
 where the foreclosure was held complete notwithstanding legal proceedings wore 
 pending to correct an error. The proceedings in this case were perfected and 
 a decree had. In a case where proceedings were pending and afterwards dis- 
 missed, the court held that there was no foreclosure. Georgia Home Ins. Co. ». 
 Kinnier, 28 Gratt. (Va.) 88. See also Bishop v. Clay Ins. Co., 45 Conn. 430. See 
 § 269, n. 
 
 552 
 
OH. XII.] ALIENATION. [§ 270 
 
 a complete foreclosure under an invalid mortgage is no 
 alienation.^ 
 
 § 270. Alienation ; Chattel Mortgage. — And a mortgage 
 of personal property would seem to stand upon the same 
 o-round,^ certainly while the mortgagor has the posses- 
 sion.^ (a) A mortgage is something less than an alienation.* 
 But in Tallman v. Atlantic Fire and Marine Insurance Com- 
 pany, it was held that the execution and delivery of a chat- 
 tel mortgage was a "sale, transfer, or change of title," 
 though it was not necessary for the court to go so far, as 
 in fact there had been in that case, prior to the loss, a 
 
 1 Scammon v. Commercial Union Ins. Co., Ct. of App. (111.), 9 InS' -L- J- 
 715 ; Jecko v. St. Louis, te. Ins. Co., 7 Mo. (Ct. of App.) 308. 
 
 2 Holbrook v. Am. Ins. Co., 1 Curtis (U. S. C. Ct.), 193 ; Van Deusen v. Char- 
 ter Oak Fire & Mar. Ins. Co., 1 Eobt. (N. Y. Superior Ct.) 55. [A provision 
 that " if the property be sold or transferred, or any change take place in title or 
 possession, whether by legal process and judicial decree, or voluntary transfer 
 or conveyance," the policy should be void, is not violated by giving a chattel 
 mortgage on the property. Hennessey v. Manhattan Fire Ins. Co., 28 Hun, 98; 
 Hanover Fire Ins. Co. v. Connor, 20 Brad. 297 (no breach until tlie mortgage 
 matures).] 
 
 8 Rice V. Tower, 1 Gray (Mass.), 426 ; Phoenix Ins. Co. v. Lawrence, i Met. 
 (Ky.) 9. [A deed pledging the property to secure a debt, the pledgor remaining 
 in possession, does not avoid the policy. Nussbaum u. Northern Ins. Co., 37 
 Fed. Rep. 52i (Ga.), 1889.] 
 
 1 Orrell v. Hampden Fire Ins. Co., 13 Gray (Mass.), 431. 
 
 (a) See Taylor v. Merchants' Ins. Co., Johansen v. Home F. Ins. Co., 54 Neb. 
 83 Iowa, 402 ; Olney v. German Ins. 548 ; Omaha F. Ins. Co. v. Dierks, 43 
 Co., 88 Mich. 94 ; Morotock Ins. Co. Neb. 473 ; Gould v. Dwelling-House 
 V. Eodefer, 92 Va. 747 ; Peet v. Dakota Ins. Co., 134 Penn. St. 570 ; Russell v. 
 F. & M. Ins. Co., 7 So. Dak. 410 ; Cedar Eapids Ins. Co., 78 Iowa, 216. 
 German-American Ins. Co. v. Hum- See German-American Ins. Co. u. Hum- 
 phrey, 62 Ark. 348 ; Caplis v. Ameri- phrey, 62 Ark. 348. A mere renewal, 
 can F. Ins. Co., 60 Minn. 376 ; First subsequent to the insurance, of existing 
 National Bank v. American Central Ins. incumbrances, with accrued interest 
 Co., 68 Minn. 492; Wilcox v. Conti- added, is not a new incumbrance within 
 nental Ins. Co., 85 Wis. 193 ; Smith v. the meaning of a fire policy. Kansas 
 Continental Ins. Co., 6 Dak. 433. A Farmers' F. Ins. Co. v. Saindon, 52 
 policy is only avoided by a change in Kansas, 486 ; 53 id. 623. Nor is the 
 the known incumbrances where there is substitution of a new mortgage of sub- 
 an increase as to the amount thereof ; stantially the same amount, when the 
 but even if personal property be charged mortgagee in the existing mortgage re- 
 with a mortgage after insurance thereof, quires payment at maturity. Koshland 
 contrary to its terms, this does not v. Home Ins. Co., 31 Oregon, 321 ; 
 prevent recovery if the mortgage is Koshland v. Fire Ass'n, id. 362. 
 discharged before the loss occurs. 
 
 553 
 
§ 272] INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XII. 
 
 foreclosure, with possession in the mortgagee, and no out- 
 standing equity of redemption. The case was afterwards 
 reversed, 1 under such a state of facts as brings the case into 
 accord witli the other authorities. 
 
 § 271. Mortgage is an Alteration of Ownership and Change 
 of Interest. — But a mortgage is an " alteration of ownership " 
 within the meaning of a policy which inhibits an alteration 
 of ownership upon penalty of forfeiture.^ And so it is a 
 violation of a provision against a sale or alienation "in 
 whole or in part." And, indeed, any disposition of the 
 subject-matter of insurance, such that any property therein 
 passes to another, amounts to an alienation of the property 
 in part.^ And where the insured sells the insured property, 
 receives pay in part, and retains a lien for a portion of the 
 purchase-money, it is a " change of interest " which avoids 
 the policy.* 
 
 § 272. Conditional Sale no Alienation ; Absolute Deed in- 
 tended as Seciuity; Lease. — A conditional sale is, however, 
 no alienation; as where the assured executed a warranty 
 deed of the premises, and at the same time received hack 
 from the grantee a deed of the same premises, with a condi- 
 tion that if he should pay to the assured a specified sum 
 within a limited time, meanwhile, and until that sum should 
 be paid the assured to retain possession of the premises, and, 
 upon payment, the second deed to be void, but otherwise in 
 force; and it appeared the grantee in the first deed never 
 paid or agreed to pay the sum mentioned, and it was entirely 
 optional with him whether to do so or not. The two deeds, 
 being executed at the same time, are to be regarded as one 
 contract, and were in effect the same as if the condition had 
 been inserted in the first deed.^ Nor will a sale, absolute 
 in form, if intended as security for a debt, nor any convey- 
 ance which a court of equity will treat as a mortgage, be 
 
 1 3 Keyes (N. Y.), 87. 
 
 2 Edmands v. Mut. Safety Fire Ins. Co., 1 Allen (Mass.), 311. 
 8 Abbott V. Hampden Mut. Fire Ins. Co., 30 Me. 414. 
 
 * Bates V. Com., &c. Ins. Co., 2 Cincinnati Superior Ct. Eeptr. 195 ; O'Keil o, 
 Ottawa Agr. Ins. Co., U. C. (C. P.) 15 Can. L. J. 207. 
 5 Tittemore v. Vermont Mut. Fire Ins. Co., 20 Vt. 546. 
 554 
 
Ca. XII.] ALIENATION. [§ 272 
 
 deemed an alienation, whether there be any agreement in 
 writing to that effect or not.^ And a sale, with an agree- 
 ment for resale, intended as a security, is no "transfer or 
 termination of interest. " ^ Nor is a sale of anything l6ss 
 than the whole interest.^ Proceedings "had, commenced, 
 or taken " for a sale refer to proceedings taken by the in- 
 sui-ed, and not to proceedings under a foreclosure of a mort- 
 gage.* Nor is an assignment as collateral security.^ Nor is 
 a conveyance by the insured, with a simultaneous reconvey- 
 ance to be held in trust for him.^ Nor is a lease.' And 
 when the policy stipulates against a "sale, transfer, or 
 
 1 Hodges V. Tenn. Mar. & Fire lus. Co., 4 Seld. (N. Y.) 416. [A policy is not 
 avoided by a deed intended only to secure a loan. Insurance Co. v. Gordon, 68 
 Tex. 144; Barry v. H. B. Fire Ins. Co., 110 N. Y. 1. Where the intent and 
 effect of a conveyance, though absolute in form, is really only security for debt, 
 or the performance of some condition, there is no " sale." In this case the in- 
 sured, I., conveyed to A. by deed absolute, A. executing a bond to reconvey on 
 performance by I. of a condition named. The bond was not recorded and the 
 company did not know of it. Subsequently, A., with the knowledge of I. and 
 for his benefit, mortgaged the property to C. After the loss by fire, the mort- 
 gage was discharged and A. reconveyed to I., and it was held that the property 
 had not been "sold." Bryan i>. Traders' Ins. Co., 145 Mass. S89. In Maine, 
 however, the defeasance must be recorded. A. mortgaged his insured piemises 
 to £. and released his equity of redemption to C, taking back a bond of defeas- 
 ance not recorded. This was held an alienation avoiding the policy. Tomlin- 
 son V. Monmouth Mut. Fire Ins. Co., 47 Me. 232, 237. By the express words 
 of the statute, a deed is not defeated unless the defeasance is recorded, the vendee 
 of the equity had the record title, and might have conveyed a good title, or 
 the land could have been attached as his property. In a court of law a deed 
 absolute in itself will avoid the policy, as a change of title, although there may 
 be an oral or written defeasance dehors the deed. The title passes by the deed 
 to the grantee, although he may be equitably bound to use it for the benefit of 
 the grantor, beyond the amount of the debt. " Oral evidence is not admissible 
 in a court of law to show that a deed absolute on its face was intended as a 
 mortgage." Barry v. Hamburg-Bremen Fire Ins. Co., 53 N. Y. Super. 249, 253 ; 
 Webb V. Rice, 1 Hill, 606.] 
 
 2 Holbrook v. Am. Ins. Co., 1 Curtis (0. S. C. C), 193. 
 
 ' Hitclicock V. Northwestern Ins. Co., 26 N. Y. 68. See also Savage u. Long 
 Island Ins. Co., 43 How. Pr. (N. Y.) 462. 
 
 * Michigan St. Ins. Co. v. Lewis, 30 Mich. 41. See also Strong v. Manufac- 
 turers' Co., 10 Pick. (Mass.) 40. 
 
 5 Ayres o. Hartford Ins. Co., 21 Iowa, 193, 198 ; Ayres v. Home Ins. Co., id. 
 185. 
 
 ^ Morrison v. Tenn. Mar. & Fire Ins. Co., 18 Mo. (3 Bennett) 262. 
 
 ' Lane v. Maine Fire Ins. Co., 3 Fairf. (Me.) 44 ; West Branch Ins. Co. v. 
 Helfenstein, 40 Pa. St. 289 ; Hobson v. Wellington Dist. Ins. Co., 6 U. C. (Q. B.) 
 536. 
 
 555 
 
§ 273J INSURANCE : FIRE, LIFE, ACCIDENT, ETC. fCH. XII. 
 
 change of title," a mere agreement between the owner of 
 personal property insured and another person, to represent 
 to the creditors of the owner, in order to prevent attach- 
 ment, that it had been sold to such other person, amounts 
 to neither; although, doubtless, something less than an 
 alienation — as, for instance, a mortgage, or a conveyance 
 of a portion of the interest of the insured, or one invalid as 
 against creditors — would be a violation of the stipulation.^ 
 
 § 273. Transfer or Change of Title ; Interest. — As the ob- 
 ject of providing against a transfer or change of title is to 
 guard against a diminution in the strength of the motive 
 which the insured may have to be vigilant in the care of his 
 property, the substantial diminution of interest in the prop- 
 erty insured has been suggested as a test of the kind of 
 transfer or change of title which will avoid the policy. ^ A 
 voluntary conveyance, however, is a change of title ;2 and 
 so is a conveyance by husband and wife, with a simultane- 
 ous reconveyance to the wife, to carry out the provisions of 
 a will, devising the property to the wife.* [The conveyance 
 of a homestead by a husband to his wife is fatal as a change 
 of title.® Where a barn belonging to W. is insured to W. 
 and his wife, and afterward conveyed by W. to G. and the 
 same day over to W. 's wife, the policy was held avoided.® 
 But where A. transferred the property to B. and the latter 
 reconveyed at once to A. 's wife, it was held that as A. had 
 
 1 Orrell v. Hampden Fire Ins. Co., 13 Gray (Mass.), 431. 
 
 2 Thus, in Ay res v. Hartford Fire Insurance Company, 17 Iowa, 176, the 
 conrt in discussing what transfer or change of title would avoid the policy, held 
 the following language : " The object of the insurance company by this clause is, 
 that the interest shall not change so that the assured shall have a greater tempta- 
 tion or motive to burn the property, or less interest or watchfulness in guarding 
 and preserving it from destruction by fire. Any change in or transfer of the 
 interest of the insured in the property, of a nature calculated to have this effect, 
 is in violation of the policy. But if the real ownership remains the same, — if 
 there is no change in the /aci oi title, but only in the evidence of it, and if this 
 latter change is merely nominal, and not of a nature calculated to increase the 
 motive to burn, or diminish the motive to guard the property from loss by fire, — 
 the policy is not violated." 
 
 3 Baldwin v. Phoenix Ins. Go. (N. H.), 10 Ins. L. J. 32. 
 
 * Langdon v. Minnesota Mut. Ins. Co., 22 Minn. 193 ; avie, § 264. 
 ' [Milwaukee Mechanic's Ins. Co. v. Ketterlin, 24 Brad. 188.] 
 6 [Walton V. Agricultural Ins. Co., 116 N. Y. 317.] 
 
 556 
 
CH. XII.] ALIENATION. [§ 273 
 
 an insurable interest at issue and at loss (by virtue of the 
 curtesy initiate), the policy was not affected by the trans- 
 fer. 1 A. owned certain land which was sold for taxes, and 
 the purchaser conveyed the tax title to A. 's wife. A. in- 
 sured the buildings on the land. Then the wife conveyed 
 to C. the tax title, A. joining and releasing his curtesy. 0. 
 immediately conveyed the whole title to A. As A.'s cur- 
 tesy was a sufficient interest to sustain his policy, and as 
 the subsequent conveyances were simply for the purpose of 
 completing title in him, it was held that the policy was good 
 and that there was no breach of the condition against sale. 
 " The seisin of the third person was instantaneous only, and 
 he was a mere conduit through whom the full title was to be 
 passed to the plaintiff. To hold the conveyance by the wife, 
 her husband joining in it, to be a sale within the clause of 
 the policy, would be to construe it too strictly, and to at- 
 tribute to it a meaning which it was not intended to bear. "^ 
 The truth is simply that the reason for the condition against 
 sale, viz. to prevent separation of the interests in the policy 
 and in the property so tempting to its destruction, does not 
 apply to this case.] So is a conveyance in fee with a mort- 
 gage back,^ and the conveyance of an equity of redemption.* 
 And if there be a substantial diminution of interest, though 
 it might amount to a sale,^ or change of interest,'' yet it 
 would not amount to a "transfer or termination of the in- 
 terest " of the insured, not being a transfer of the whole 
 interest,' nor to a "change of title." ® But a mortgagee's in- 
 terest is changed to an absolute one by a foreclosure, and is 
 "a change in title or possession " which prevents recovery.^ 
 
 1 [Caldwell v. Stadacona Fire & Life Ins. Co,, 11 Can. Supr. Ct. 212.] 
 
 2 [Kyte V. Commercial Union Assurance Co., 144 Mass. 45.] 
 ' Savage v. Howard Ins. Co., 52 N. Y. 502. 
 
 ^ Little V. Eureka Ins. Co. (Cin. Supr. Ct), 5 Ins. L. J. 154. 
 
 '' Savage v. Howard Ins. Co., supra. 
 
 6 Bates V. Buckeye Ins. Co. (Cin. Supr. Ct), 4 Ins. L. J. 716. 
 
 ' Hitchcock V. Northwestern Ins. Co., 26 N. Y. 68. 
 
 8 Kitts V. Massasoit lus. Co., 56 Barb. (N. Y.) 177. See also Phelps v. Geb- 
 hard Ins. Co., 9 Bosw. (N. Y.) 404. 
 
 » Gaskin u. Pho3nix Ins. Co., 6 Allen (N. B.), 429. See also pos^, § 294. [A 
 foreclosure sale under a valid mortgage operates as a change of title. Cora. 
 Union Ass. Co. v. Scammon, 102 111. 46.J 
 
 557 
 
§ 274] INSURANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. XII. 
 
 [§ 273 A. Change of Possession. — A change of tenants, or 
 occupancy of the house by the owner is not a "change of 
 title or possession. " That clause refers to the right of pos- 
 session, not the occupancy.^ (a) When the assured had made 
 an oral executory contract to lease the insured premises, but 
 the intended lessee had only entered by virtue of a parol 
 license to make repairs, the clause in the policy prohibiting 
 a change of title or possession was held not violated. ^J 
 
 § 274. Alienation ; Levy of Execution. — A mere technical 
 levy upon real estate or personal property, unaccompanied 
 by change of possession or increase of risk, is not within the 
 meaning of a policy which provides that insurance shall 
 cease " if the property be levied upon or taken into posses- 
 sion or custody. " The words " levied upon " are to be taken 
 with what follows as explanatory.^ Nor is a wrongful levy, 
 or one based on an illegal assessment;^ nor a levy which 
 does not devest the title. ^ A seizure of the goods insured, 
 though taken into the actual possession of the sheriff, is not 
 an alienation, if there is no removal. The general property 
 in goods seized on execution remains in the debtor till they 
 are sold. The right of the sheriff by virtue of the seizure is 
 defeasible, it being his duty to release and restore the goods 
 to the defendant in the execution, upon a tender of the 
 
 1 [Pool V. Hudson Ins. Co., 2 Fed. Rep. 432, 1880 ; IstCir. (N. H.) 9 Ins. L. 
 J. 428 ; Rumsey v. Phcenix Ins. Co., 1 Fed. Rep. 396; 17 Blatch. 527, 2d Cir. 
 N. Y. 1880.] 
 
 2 [Alkan v. New Hampshire Ins. Co., 53 Wis. 136, 148.] 
 
 8 Commonwealth Ins. Co. v. Berger, 42 Pa. St. 285 ; Smith v. Farmers', &o. 
 Ins. Co., 89 Pa. 287. 
 
 ^ Philadelphia Ins. Co. v. Mills, 44 Pa. St. 241 ; Miami, &c. Ins. Co. v. Stan- 
 hope, Ham. Co. Dist. Ct. (Ohio), 10 Ins. L. J. 159 ; Runker v. Citizens' Ins. Co., 
 0. Ct. (Ohio), 6 Fed. Rep. 143. 
 
 ^ Pennebaker v. Tomlinson, 1 Tenn. Ch. 598. 
 
 {a) Such clause does not apply to a 416. A leasehold is an insurable inter- 
 surrender by the insured tenant to his est. Phila. Tool Co. v. British-American 
 landlord, if the insured's agent informs Ass. Co., 132 Penn. St. 236. As to 
 the latter, who notifies him, that the disclosing that the buildings are on 
 policy need not be changed. "West leased land, see Ins. Co. v. Nat'l Bank, 
 Coast Lumber Co. v. State Inv. & Ins. 88 Tenn. 369 ; West Coast Lumber Co. 
 Co., 98 Cal. 502. See Smith v. Phoenix u. State luv. & Ins. Co., supra. 
 Ins. Co., 91 Cal. 323 ; 21 Ins. L. J. 137, 
 558 
 
CH. XII.J ALIENATION. [§ 275 
 
 amount due.^ The same is true of a seizure of an equity of 
 redemption of real estate ; for after a sale of the equity there 
 is still left a right to redeem, — a right which may consti- 
 tute a valuable interest. So, at least, will the law presume, 
 in the absence of evidence to the contrary.^ (a) A sale in 
 -execution is an " incumbrance by a sale " while an equity of 
 redemption remains. When the equity is gone, such a sale 
 becomes an alienation. ^ [A sale of real estate upon execu- 
 tion is not a "levy." That word only applies to personal 
 property.* (5)] 
 
 § 275. Change of Title ; Increase of Interest. — It seems 
 hardly necessai'y to say that any change of title whereby the 
 interest of the insured becomes enhanced, and his incentives 
 to vigilance increased, as would be the case where a title 
 becomes absolute in the mortgagee by foreclosure, or a ten- 
 
 ■" Rice u. Tower, 1 Gray (Mass.), 426, 427. In this case Metcalf, J., said : 
 " There are obiter dicta in the books, that by a seizure on a Ji, fa. the debtor's 
 property in the goods is lost ; that the sheriff acquires a special property, but 
 that the general property of the debtor is devested and is in abeyance. But the 
 law ;riever was so." Referring to 1 Lev. 282 ; 1 Vent. 53 ; 6 Mod. 293 ; Holt, 
 647 ; 4 Mas.s. 403; 2 Mass. 517. See also May v. Standard Ins. Co., U. C. (Ct. 
 of App. , 16 Canada L. J. 271, reversing s.c. in 30 U. C. (C. P.) 666. See also 
 ante, § 249 ; Franklin Fire Ins. Co. v. Finlay, 6 Whart. (Pa.) 483. 
 
 2 Strong V. Manufacturers' Ins. Co., 10 Pick. (Mass.) 40, 44 -■ Clark i). New 
 England Mut. Ins. Co., 6 Cush. (Mass.) 342. 
 
 3 Campbell v. Hamilton Mut. Ins. Co., 51 Me. 69. 
 
 * [Hammel v. Queen's Ins. Co., 54 Wis. 72, 85 ; Shafer v. Phoenix Ins. Co., 
 53 Wis. 361, 369.] 
 
 (a) See Collins v. London Ass. Corp., 79 ; Browne Nat. Bank v. Southern Ins. 
 
 165 Penn. St. 298 ; Walradt v. Phcenix Co. (Wash.), 60 Pac. 1123. An actual 
 
 Ins. Co., 136 N. Y. 375. attachment by a duly authorized officer 
 
 (6) Where, as in New York, the is, however, treated as a change of pos- 
 effect of a sale of real estate is declared session under "legal process." Carey 
 by statute, the judgment debtor being v. German-American Ins. Co., 84 Wis. 
 there allowed fifteen months to redeem, 80 ; Lane v. Maine Mut. F. Ins. Co., 
 and meantime being entitled to the 28 Am. Dec. 150, 158, note. In gen- 
 possession and lase, or the rents and eral, any sale or alienation in invitum 
 profits, a mere sale on execution is not does not avoid when it is not valid as 
 such a change of title or possession as against the insured ; this applies to a 
 avoids a fire policy. Wood v. American voidable sale which, if not ratified by 
 F. Ins. Co., 149 N. Y. 382 ; Walradt v. the insured, will not defeat or delay re- 
 Phcenix Ins. Co., 136 N. Y. 375. See covery upon the policy for a loss ac- 
 Horton v. Va. L. Ins. Co., 122 N. C. 498 ; cruing before tlie sale is set aside. 
 Hanover F. Ins. Co. v. Bi'own, 77 Md. Niagara F. Ins. Co. c. Scammon, 144 
 64 ; Merchants' Ins. Co. v. Brown, id. 111. 490. 
 
 559 
 
§ 276] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XII. 
 
 ant for years or for life purchases the fee, - in other words, 
 a sale or conveyance to the assured, — though within the 
 words of the proviso against sale or transfer, is not within 
 its spirit and purpose, and will not vitiate the policy. ^ (a) 
 
 § 276. Alienation by Mortgagor after Assignment of Policy. 
 — Though it be stipulated that the policy shall be void by 
 alienation, this must be held to mean alienation by the party 
 insured. If the original insured, by the consent of the in 
 surers, assigns the policy, and the assignees agree with the 
 insurers to pay all assessments which shall thereafter be 
 made upon the policy, and that the property insured shall 
 remain subject to the same lien as before, the legal effect of 
 the transaction is to create a new, substantive, and distinct 
 contract with the assignees. It is substantially the same as if 
 the policy had been issued to them. An alienation, therefore, 
 by a mortgagor of his equity of redemption, after an assign- 
 ment of the policy, under the circumstances just stated, is not 
 an alienation by the assured, but rather by a stranger over 
 whom the assignees have no control, and for whose acts they 
 are not at all responsible, and does not avoid the policy.^ (J) 
 
 1 Bragg V. New England Mut. Fire Ins. Co., 5 Fost. (N. H.) 289 ; Heaton v. 
 Manhattan Fire Ins. Co., 7 K. I. 502 ; [Bailey v. American Cent. Ins. Co., 13 
 Fed. Rep. 250 ; 8th Cir. (Iowa), 188.2.] 
 
 2 Foster et al. v. Equitable Mut. Fire Ins. Co., 2 Gray (Mass. ), 216 ; Bragg v. 
 New England Mut. Fire Ins. Co., 5 Fost. (N. H.) 289; Boynton v. Clinton & 
 Essex Mut. Ins. Co., 16 Barb. (N. Y.) 254. And see also Fogg v. Middlesex 
 Mut. Fire Ins. Co., 10 Cush. (Mass.) 337 ; Francis u. Butler Mut. Fire Ins. Co., 
 7 R. L 159. 
 
 {n) A chaufte of title by which con- Boiler Insp. Co. v. Lasher Stocking Co., 
 
 tingent interests become absolute, or 66 Vt. 439 ; Collins v. Merchants' Mut. 
 
 which increases the insured'.s interest Ins. Co., 95 Iowa, 540 ; Koshland v. 
 
 from a Hen-holder to absolute owner- Hartford F. Ins. Co., 31 Oregon, 402. 
 
 ship, is not such a change of ownership The violation of a by-law of a mutual 
 
 as requires notice to the insurer un- company, which forbids transfer by 
 
 der a mortgage-subrogation agreement, mortgage, is fatal to a recovery on the 
 
 Dodge V. Hamburg-Bremen F. Ins. Co., policy. Pfister v. Gerwig, 122 Ind. 567. 
 
 4 Kans. App. 415 ; Continental Ins. Under the New Hampshire statute, the 
 
 Co. V. Ward, 50 Kansas, 346. assured's error, such as the omission to 
 
 (J) If the policy does not stipulate have an existing mortgage noted in the 
 
 against incumbrances, or if it requires application and policy, if occasioned by 
 
 disclosure of incumbrances, mortgages an innocent mistake, does not avoid the 
 
 upon the property made after the insur- policy. Ferry v. Dwelling-House Ins. 
 
 ance do not affect it. Hartford Steam Co., 67 N. H. 291. 
 
 560 
 
CH. XII.] ALIENATION. [§ 276 B 
 
 [§ 276 A. Fatal Cases. — Insolvency does not excuse the 
 effort to obtain consent to a change of interest.^ (a) If part- 
 nership property is put into the hands of a receiver before 
 loss, the transfer is an alienation that avoids the policy. 
 The same is true of an assignment in bankruptcy. ^ When 
 the policy is to be void, if the assured shall dispose of all 
 his interest in the property, and he makes a sale of it on 
 credit, his equitable lien for the purchase-money will not 
 keep the policy alive. ^ A policy with the customary clause 
 against alienation was avoided, when the assured sold the 
 premises to a third party, and took a mortgage for the price, 
 although the mortgagee was to retain possession until the 
 price was paid.* A deed absolute, a part consideration for 
 which is a return deed covenanting to permit the insured to 
 occupy the premises during his life, is a breach of the con- 
 dition against ti-ansfer or change of title. ^ A sale by the 
 heirs of the assured to a mortgagee, with no mention of the 
 mortgage, avoids a policy on the property.^] 
 
 [§ 276 B. Cases not Fatal. — The execution of a trust-deed 
 is not a transfer or change of title that will avoid a policy.' 
 If A. gives a trust-deed on his property to secure a debt, and 
 then insures, a sale by the trustee to himself or to me, for 
 his benefit, under a power in the trust-deed, will not avoid 
 the policy. The sale will be set aside.* A sale by a school 
 committee of a school-house, on credit, they being unauthor- 
 ized so to sell, and the act not being ratified, does not pass the 
 title thereto, and a renewal of a policy during the controversy 
 is binding, there being a good title in the original owners.® 
 
 1 [Hine v. Woolworth, 93 N. Y. 75.J 
 
 2 [Keeney v. Home Ins. Co., 3 T. & C. 478, 482.] 
 
 3 [Cal. State Bank v. Hamburg-Bremen Ins. Co., 71 Cal. 11.] 
 * [Tittemore v. Vt. Mut. Fire Ins. Co., 20 Vt. 546, 550.] 
 
 5 [Farmers' Ins. Co. v. Archer, 36 Ohio St. 608.] 
 
 6 [Dailey v. Westchester Fire Ins. Co., 131 Mass. 173, 174.] 
 
 ' [Nease v. Mtns. Ins. Co., 18 Ins. L. J. 541, ("W. Va.) March, 1889.] 
 
 8 [Com. Union Ass. Co. u. Scammon, 126 III. 355.] 
 
 ' [School Dist. in Dresden v. .ffitna Ins. Co., 62 Me. 330, 339.] 
 
 (a) See McElroy v. John Hancock In re Equitable Reserve Fund L. Ass'n, 
 Mut. L. Ins. Co., 88 Md. 137 ; Brown 131 N. Y. 354. 
 V. Cotton, &c. Ins. Co., 156 Mass. 587 ; 
 
 VOL. I. — 36 561 
 
§ 276 C] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XII. 
 
 On April 16, a ship received fatal injuries, but by great 
 exertion was kept afloat until May 5, when she was aban- 
 doned and went down. On April 24, one-quarter interest 
 was sold. It was held that the company was liable for 
 the whole loss, as the fatal injury occurred before the sale, 
 and so in legal construction the loss also.^ When a policy 
 provides that it shall be void if the property is sold or 
 conveyed, it is not avoided by the sale of a part interest 
 in the premises. The policy still covers the interest re- 
 maining in the assured.^ Sale of the land under the in- 
 sured buildings, reserving them, is not fatal to the policy. ^ 
 A mere agreement between the assured and a third party to 
 call the insured property sold, to prevent creditors from 
 attaching, is not an alienation sufficient to avoid the policy.* 
 Giving a lease with the privilege of purchase at a price 
 named, is not an alienation.^] 
 
 [§ 276 C. Foreclosure. — Where a fire occurs on the very 
 day of a foreclosure sale, but before it the loss occurs before 
 alienation. s When mortgaged property is insured pending 
 foreclosure proceedings, for the benefit of the mortgagee and 
 his assigns, the company cannot defend on the ground of 
 change of ownership by the foreclosure sale." A sale on 
 foreclosure, no deed having been executed or report of sale 
 made, does not violate the condition against transfer.^ And 
 the deed must not only be made but delivered.^ When the 
 policy is to be void for selling or transferring or making a 
 change in the title or possession, it is held that neither a 
 mortgage nor foreclosure proceedings before the equity of 
 redemption has expired avoid it.^''(a) But if property on 
 
 1 [Duncan v. Great Western Ins. Co., 3 Keyes (N. Y.), 394, 396.] 
 
 2 [Scanlon v. Union Fire Ins. Co., 4 Biss. 511, 512.] 
 
 8 [Washington Mills Emery Manuf. Co. u. Commercial Fire Ins., 12 Ins. L. J. 
 181 ; 1st Cir. (Mass.) 1883.] 
 
 1 [Orrell v. Hampden Fire lus. Co., 13 Gray, 431, 434.] 
 5 [Planters' Mut. Ins. Co. v. Rowland, 66 Md. 236.] 
 8 [Pearman v. Gould, 42 N". J. Eq. 4.] 
 ' [German Ins. Co. v. Churchill, 26 Brad. 206.] 
 
 8 [Haight V. Continental Ins. Co., 92 N. Y. 51.] ^ 
 
 s [Marts V. Cumberland Ins. Co., 44 N. J. 478.] 
 M [Loy V. Home Ins. Co., 24 Minn. 315, 318. See §§ 269-269 a.] 
 
 (a) See Brown v. Cotton & W. M. Ins. Co., 156 Mass. 587. 
 562 
 
CH. XII.] ALIENATION. [§ 277 
 
 which a mortgage has been foreclosed is insured, the policy 
 becomes void when the period of redemption expires, for the 
 property is then alienated, and a vote of the mortgagee next 
 day extending the time of redemption cannot save the pol- 
 icy. It comes too late, and it is an agreement without 
 consideration and not binding.^ A decree for sale in an 
 ordinary foreclosure suit is not such "a judgment in fore- 
 closure proceedings " as will avoid a policy. ^ To have such 
 consequences it mast be a judgment that will of itself effect 
 an alienation. And the mere commencement of foreclosure 
 proceedings will not affect the policy ; the foreclosure must 
 be complete and valid (§ 269 a near the end). Such com- 
 mencement isi not a " change of ownership or increase of haz- 
 ard."^ If however the policy expressly provides that the 
 commencement of foreclosure proceedings shall avoid it, the 
 condition will be enforced.* But where an applicatioa truly 
 stated that no foreclosure proceedings had been begun and 
 the policy stipulated that the commencement of any fore- 
 closure proceedings shall immediately render this policy 
 void, and no such proceedings were begun after the policy 
 was issued, but there were such begun between the date of 
 the application and the date of the policy, it was held that 
 the company was bound, and the policy was not forfeited. 
 The insurer must stipulate for the intervening period if he 
 would cover it.^ (a)] 
 
 § 277. Alienation ; Entire Contract. — As a general rule, a 
 breach of condition, where the contract is entire, ^ affects all 
 
 1 [Essex Savings Bank v. Meriden Ins. Co., 57 Conn. 335.] 
 
 2 [Kane v. Hibemia, 38 N. J. L. 441, 456.] 
 
 3 [Phcenix Ins. Co. v. Union Mut. Life Ins. Co., 101 Ind. 392.] 
 
 * [Meadows v. Hawkeye Ins. Co., 62 Iowa, 387.] 
 5 [Day V. Hawkeye Ins. Co., 72 Iowa, 597, 599.] 
 
 * [The language used by May in this and the following section might lead 
 one to suppose that although the contract were entire it might not be avoided 
 
 (a) See Breedlove v. Norwich Union Wash. 175 ; Same v. St. Paul F. & M. 
 
 F. Ins. Co., 124 Cal. 164 ; Hanover F. Ins. Co., 68 Minn. 170 ; Washburn 
 
 Ins. Co. V. Brown, 77 Md. 64 ; Conti- Mill Co. v. Phila. Fire Ass'n, 60 Minn, 
 
 nental Ins. Co. v. Anderson, 107 Ga. 68 ; Bellevue Roller-Mill Co. v. London 
 
 641 ; Hartford F. Ins. Co. v. Keating, & L. Ins. Co. (Idaho), 39 Pac. 196 ; 
 
 86 Md. 130 ; Pioneer Sav. & L. Co. v. Tierney v. Phenix Ins. Co., 4 No. Dak. 
 
 Providence- Washington Ins. Co., 17 565. 
 
 563 
 
§ 277] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XII. 
 
 the pi-operty insured, though it may be of different kinds 
 and separately appraised in the policy. ^ If the premium be 
 entire, separate valuations upon separate parcels of property 
 have only the effect to limit the risk on each parcel. ^ Thus 
 the alienation of a house vitiates the policy both as to the 
 house and the furniture in it.^ So, also, the sale by a part- 
 ner of his undivided interest avoids a policy containing a pro- 
 hibition of such sale as to the interests of the other partners.* 
 Misrepresentation as to the title to a store, or amount 
 
 by a breach as to part of the property. I have seen no case which holds this. 
 The question is in every case whether the contract is entire. If it is, a breach as to 
 part breaks it all, if not entire, a part may still be good. The difficulty is to 
 arrive at a test of entireness. The cases look to the premium, the apportion- 
 ment of the insurance, and the language of the conditions. There are three 
 <piestions in such cases. (1) Is it possible to separate the policy? (2) If so, 
 have the parties clearly indicated an intent that it should not be separated ? 
 (3) If fiot, and separation is possible, is it fair and just that it should be made ? 
 It is not just if there is bad faith on the part of the assured. One who en- 
 deavors to defraud should not be aided by the law. But in case of breach 
 without bad faith, division should be made if it can be done without injustice 
 to the insurer, and in deciding this point the test used in a recent Indiana case 
 seems valuable. The court said that where the property is so situated that the 
 risk on one specific item in the policy affects the others, the contract is entire, 
 but where it does not so affect the others the contract is separable ; for example, 
 a policy on a barn and a house standing apart is separable. Phenix Ins. Co. v. 
 Pickel, 18 Ins. L. J. 592 (Ind.). The premium was entire in this case, but the 
 insurance was apportioned.] 
 
 1 [As a rule a policy void in part is void in toto. McGowan v. People's Mut. 
 Fire Ins. Co., 54 Vt. 211. If there is bad faith in any way entering into the 
 contract, the insured ought to lose the whole benefit. Good faith is a condition 
 distributed over the whole agreement. If however he has acted in good faith and 
 the policy is divisible, as where the insurance on the different items is separately 
 named, and the premium is apportioned, or is apportionable by plain mathe- 
 matical principles, as in case of the insurance of three houses all just alike, 
 then an avoidance as to one part should not affect the rest. It must be confessed, 
 however, that the authorities as a whole by no means take a view so free of 
 technicalities. In case of a divisible policy where actual fraud is absent, a mis- 
 representation will only cause a forfeiture in respect to the property affected 
 by the untruth. Insurance Go. of N. A. v. Hofing, 29 111. App. 180. A policy 
 insuring several detached buildings is not avoided as to all by a breach of warranty 
 respecting some. Pickel v. Phenix Ins. Co., 18 Ins. L. J. 598, (Ind.) June, 1889.] 
 
 2 Plath V. Minnesota Farmers' Ins. Co., 23 Minn. 479; [Garver v. Hawkeye 
 Ins. Co., 69 Iowa, 202.] 
 
 3 Barnes v. Union Mut. Fire Ins. Co., 51 Me. 110. See also ante, § 189 ; [In- 
 .surance on a house and its furniture is .substantially one risk. Havens a. Home 
 Ins. Co., Ill Ind. 90.] 
 
 4 Dix V. Mercantile Ins. Co., 22 111. 272. 
 
 564 
 
CH. XII.] ALIENATION. [§ 277 
 
 of incumbrance thereon, or other material fact, vitiates 
 the insurance both upon the store and the stock of goods 
 therein. 1 [A breach of warranty as to some of the property 
 covered by an entire policy avoids it as to the whole, though 
 there are several different kinds of -property insured.^ When 
 a policy insured against fire three adjoining buildings for 
 $666. 66| on each building, and when in one house business 
 was carried on which avoided the policy, and which caused 
 an explosion whereby all three houses were injured, it was 
 held that the contract was entire and there could be no re- 
 covery,^ although the owner did not know that the tenant 
 kept gunpowder in the house.] Additional insurance, with- 
 out notice, on stock vitiates the policy both on the stock and 
 fixtures.* The appropriation of one of two buildings, both 
 included in the policy and insured for distinct amounts to a 
 more hazardous use, vitiates the policy as well upon the one 
 not so appropriated as upon the other. ^ So false swearing 
 as to value of goods lost vitiates policy upon both building 
 
 1 Gould V. York County Mut. Fire Ins. Co., 47 Me. 403 ; Lovejoy v. Augusta 
 Mut. Fire Ins. Co., 45 id. 472 ; Friesmutli v. Agawam Mut. Ins. Co., 10 Gush. 
 (Mass.) 587 ; Brown v. People's Mut. Ins. Co., 11 Gush. 280 ; Richardson v. 
 Maine Ins. Co., 46 Me. 394 ; Day v. Charter Oak Fire Ins. Co., 51 id. 91 ; 
 Hinman v. Hartford Fire Ins. Co., 36 Wis. 159 ; Bleakley v. Niagara Dist. Mut. 
 Fire Ins. Co., 16 Grant, Gh. (U. C.) 198 ; ante, § 189 ; post, § 290 ; JEUia. Ins. 
 Co. V. Resh (Mich.), 9 Ins. L. J. 549 ; Schunilsch v. American Ins. Go. (Wis.), 
 9 Ins. L. J. 56 and note ; Gottsman v. Fenn. Ins. Co., 56 Pa. St. 210 ; Whitwell 
 V. Putnam Ins. Co., 6 Lans. (N. Y.) 166. The law in Canada seems to be un- 
 settled, the latest case, by a divided court, holding that, where there are dis- 
 tinct subjects of insurance at specified amounts, misrepresentation as to one 
 does not prevent recovery on the other, although the premium paid is but a 
 single sum applicable to both. See Samo v. Gore Dist. Mut. Fire Ins. Co., 1 
 Out. App. Eep. 375, where the .several opinions seem to cover the whole field 
 of Canadian jurisprudence on this point. This case was, however, reversed on 
 appeal, 2 Can. Supr. Ct. Eep. 411, that court holding the law to be in accord- 
 ance with the doctrine of the text. See also Euss v. Mut. Fire Ins. Co., 29 
 U. C. (Q. B.) 73. 
 
 2 [Cuthbertson v. Insurance Co., 96 N. C. 480, 487.] 
 8 [Fire Ass. v. Williamson, 26 Pa. St. 196, 198.] 
 
 * Kimball v. Howard Fire Ins. Co., 8 Gray, 33 ; Associated Firemen's Ins. 
 Co. V. Assum, 5 Md. 165 ; Uanisay et al. u. Mut. Fire Ins. Co., 11 U. C. (Q. B.) 
 516 ; Bellington v. Can. Mut. Fire Ins. Co., 39 U C. (Q. B.) 433 ; Elliott v. Ly- 
 coming, &o. Ins. Co., 66 Pa. St. 22. Otherwise if insured in two distinct policies. 
 Franklin, &c. Ins. Co. v. Brock, 57 Pa. St. 74. 
 
 ^ Lee v. Howai-d Fire Ins. Co., 3 Gray (Mass.), 583; Fire Association of 
 Phila. u. Williamson, 26 Pa. St. 196. 
 
 565 
 
§ 278] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [OH. XII. 
 
 and merchandise.^ [So where a joint policy was taken out 
 on the several interests of a widow and her children, and 
 the premium was not apportioned, but was paid as a whole 
 consideration, it was held that if action was barred by limi- 
 tation or breach of condition or attem"pt of one party to de- 
 fraud the company, the whole policy was avoided.^] And an 
 alienation by a mortgagor of part of the premises upon which 
 he had effected insurance, after an assignment of the policy 
 with the consent of the insurers to the mortgagee, who 
 signed the premium note, will avoid the policy in toto as to 
 the mortgagor's interest. ^ If the premium be entire, and 
 likewise the deposit note, and the lien for the assessment on 
 the same attach to all the separate parcels, the contract is 
 entire, and if void at all is void in toto, although several 
 sums are designated as insured upon the several parcels. 
 But if the several parcels are insured in several sums, each 
 having its specific premium and deposit note, and for which 
 a distinct lien can be asserted, then an alienation of one 
 parcel is only an avoidance of the policy pro tantoJ 
 
 § 278. Alienation of one of several Distinct Parcels of Prop- 
 erty. ■ — But the authorities are not all agreed upon the point 
 that a violation of a condition, or a misrepresentation as to 
 part of the property insured, avoids the policy as to the 
 whole when the contract is entire. [In a New Hampshire 
 case it was said, when the assured alienates without the 
 company's consent one of several parcels of real estate cov- 
 ered by a policy which stipulated against alienation, the 
 policy is avoided as to all unless the court can say as a 
 matter of law that the risk is not increased.^] In Loehner 
 V. Home Mutual Fire Insurance Company,^ it was held that 
 
 1 Cushman v. Liverpool, &c. Ins. Co., 6 Allen (N. B.), 246. [Although the 
 policy insures the building and its contents by separate amounts. Harris v. 
 Waterloo Mut. Fire Ins. Co., 10 Ont. R. 718, (so provided by statute).] 
 
 2 [Monaghan v. Agri. Fire Ins. Co., 53 Mich. 238, 252-253.] 
 
 8 Boynton v. Clinton & Essex Mut. Ins. Co., 16 Barb. (N. Y.) 254. 
 
 4 Friesmuth <;. Agawam Mut. Ins. Co., 10 Cush. (Mass.) 587 ; ante, §§ 189, 
 228. 
 
 5 [Baldwin v. Hartford Fire Ins. Co., 60 N. H. 422, 424.] 
 
 " 17 Mo. 247 ; s. c. affirmed, 19 Mo. 628. See also Commercial Ins. Co. v. 
 Spaukneble, 52 111. 53 ; Koontz v. Hannibal, &c. Ins. Co., 42 Mo. 126. 
 
 566 
 
OH. XII.] ALIENATIOK. [§ 278 
 
 a misrepresentation as to the title of the house insured only 
 vitiates the policy as to the house, and that a recovery might 
 be had for the loss of furniture insured in the same policy 
 under a separate valuation. " With respect to the furniture 
 and the piano," say the court, "although they may be re- 
 garded as being insured in the building covered by the pol- 
 icy, yet, because the statute arbitrarily avoids the policy as 
 to the building for want of a disclosure of the fact which 
 did not at all affect the risk, we cannot come to the conclu- 
 sion that the policy was likewise void as to the furniture 
 and piano." And in Phoenix Insurance Company v. Law- 
 rence,^ where the interest of the insured in a storehouse was 
 untruly stated, it was nevertheless held that the plaintiff 
 might recover for the goods therein insured in the same 
 policy, and upon a distinct and separate valuation, although 
 the premium paid was an entire sum. In the last case, the 
 case of Clark v. New England Mutual Fire Insurance Com- 
 pany 2 was relied upon, where the court held that, there 
 being separate and distinct insurance upon two buildings, 
 alienation of one would not avoid the policy as to the other.^ 
 And a sale by the insured of one of several distinct parcels 
 of real estate covered by the policy, that part forming a dis- 
 tinct item, with separate and distinct valuation, does not 
 avoid the policy except pro tanto ; as to the property still 
 held by the insured at the time of the loss, he is entitled to 
 recover according to the terms of the policy.* Nor does the 
 assignment of part of a mortgage debt.^ Nor upon prin- 
 ciple does it seem to be of any consequence whether the val- 
 
 1 4 Met. (Ky.) 9. 
 
 == 6 Cuah.(Mass.) 342. 
 
 ' The report does not show whether the premium was an entire sum or not ; 
 hut on reference to the record it is found that the plaintiff was insured for 
 $2,500, — .$2,200 on his tavern-house and $300 on his shop, — for which was 
 paid a cash premium of |5, and a deposit note of $371 given. Upon these 
 facts the case is not now law in Massachusetts, though it does not appear to 
 have been overruled or even referred to in the subsec[uent cases. See the pre- 
 ceding section. 
 
 * Clark V. New England Mut. Fire Ins. Co., 6 Gush. (Mass.) 342. And see 
 also Bodle et al. v. Chenango Mut. Ins. Co., 2 Comst. (N. Y.) 53. 
 
 6 Rex V. Ins. Co., 2 Phila. (Pa.) 357. 
 
 567 
 
§ 278] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XII. 
 
 uation be separate and distinct or not. Surely a merchant 
 who insures his store and stock in trade, or a farmer who 
 insures his barn and contents, may recover for the unsold 
 balance of his stock, notwithstanding he daily sells a por- 
 tion of it. The diminution of insurable interest coincides 
 with a diminution of the right to claim for loss, and rela- 
 tively there is no change in the situation. To say that the 
 policy is thereby pro tanto avoided, is not so correct an ex- 
 pression as to say that the amount which the insured would 
 have the right to I'ecover under it is pro tanto reduced.^ Nor 
 will the result be different, though it be stipulated that the 
 policy is to be void upon a sale of the whole or any part of 
 the property insured. Nothing short of a sale of the whole 
 will deprive the insured of his right to recover at all. If he 
 sells a part, he merely forfeits the right to claim for the loss 
 of that part, and for the simple and obvious reason that, 
 having sold it prior to the fire, he did not, and could not, 
 lose it. But if he keeps up his stock he recovers to the full 
 amount.^ So where one horse is exchanged for another.^ 
 And so it has been held that where a policy provides that 
 if the property shall be sold without consent of the company, 
 the policy should be void, and also provides that where the 
 property is sold, the insurance on such property shall termi- 
 nate, a sale of part of the property does not avoid the policy 
 except as to that part.* In some cases the policy provides 
 that the insurance shall be void only as to those parcels with 
 reference to which the breach takes place. ^ [When different 
 goods are specifically and severally insured in the same pol- 
 icy, the amount and value of each being specified, the as- 
 sured may abandon some one kind in case of loss and retain 
 the rest as though they were insured in separate policies.® 
 
 1 Lane v. Maine Mut. Fire Ins. Co., 3 Fairf. (Me.) 44 ; Hobbs et al. v. Mem- 
 phis Ins. Co., 1 Sneed (Tenn. ), 444. 
 
 2 Wolfe V. Security Fire Ins. Co., 39 N. Y. 49 ; Peoria Mar. & Fire Ins. Co. 
 V. Anapow, 51 111. 283. 
 
 8 Mills V. Farmers' Ins. Co., 37 Iowa, 400. 
 * Quarrier v. Insurance Co., 10 W. Va. 507. 
 
 5 Daniel v. Robinson, Batty (Irish), 650. 
 
 6 [Diedericks v. Com. Ins. Co., 10 Johns. 234, 236.] 
 
 568 
 
CH. XII.] ALIENATION. [§ 279 
 
 Where two persons jointly insured a building and it turned 
 out that one of them had no insurable interest, the other 
 could nevertheless recover on the policy, i] 
 
 § 279. Alienation by one Joint Owner to another. — Much 
 discussion has been had in the courts upon the question 
 whether a sale by one joint owner to another is an aliena- 
 tion which avoids the policy; but the better opinion seems 
 to be that it is not strictly speaking an alienation, a trans- 
 fer from one to another, but rather a shifting of interests 
 amongst joint owners, without the introduction of any 
 stranger to the number of the insured. So far as the con- 
 tract is based upon the personal qualities of the insured, 
 there is no increase of risk, because no element of improvi- 
 dence or carelessness is introduced, and the property in- 
 sured will still be under the care and management of the 
 original parties.^ But the rule was held to be otherwise in 
 Dey V. Poughkeepsie Mutual Insurance Company,^ if by the 
 
 1 [Perry v. Mechanics' Mut. Ins. Co., 11 Fed. Ecp. 478 ; 11 las. L. J. 409 
 1st Cir. (R. I.) 1882.] 
 
 2 Hoffman v. iEtna Fire Ins. Co., 1 Robt. (N. Y. Superior Ct.) 501 ; s. c. af- 
 firmed, 32 N. Y. 405 ; Pierce v. Nashua Fire Ins. Co., 50 N. H. 297 ; Burnett v. 
 Eufaula Home Ins. Co., 46 Ala. 11 ; Buffalo Steam Engine Works v. Sun Mut. 
 Ins. Co., 17 N. Y. 401, 412 ; Tallman v. Atlantic Ins. Co., 29 How. (N. Y.) 71 ; 
 Tillou V. Kingston Mut. Fire Ins. Co., 7 Barb. (N. Y. Sup. Ct.) 570 ; Wilson v. 
 Genessee County Mut. Ins. Co., 16 id. 511 ; West v. Citizens' Ins. Co., 27 Ohio 
 St. 1 ; Cowan v. Iowa St. Ins. Co., 40 Iowa, 551. See also Judge Bennett's note 
 to Hobbs V. Memphis Ins. Co., 3 Ben. Fire Ins. Cas. 49. [Sale or mortgage of 
 other transactions between partners relative to partnership property constitute 
 no violation of the condition against transfer or change of title. Dresser v. 
 United Fireman's Ins. Co., 45 Hun, 298 ; New Orleans Ins. Ass. v. Holberg, 
 64 Miss. 51 ; Combs v. Shrewsbury Ins. Co., 34 N. J. Eq. 403, 412 ; Texas Bank- 
 ing & Ins. Co. V. Cohen, 47 Texas, 406, 412 (sale and retirement) ; Klein v. 
 Union Fire Ins. Co., 3 Ont. R. 234. When a policy prohibits assignment it does 
 not include the assignment of one partner to the other. The transfer from 
 cue partner to another is an occurrence so common in business that the parties 
 are presumed to have contracted in reference to it. If they wished to exclude it, 
 a stipulation to that effect should have been inserted in the policy. Dermani v. 
 Home Ins. Co. of N. Y., 26 La. An. 69, 71. A sale alone or a sale and mort- 
 gage back between partners of the partnership property is not a breach of the 
 condition against sale, nor does it as a matter of law increase the risk. Part- 
 ners are to be regarded as so far one person in regard to partnership property 
 that dealings among themselves do not fall fairly within the meaning of the 
 prohibitions of the policy. Powers v. Guardian Ins. Co., 136 Mass. 109.] 
 
 8 23 Barb. (N. Y.), 623 ; [Card v. Phoenix Ins. Co., 4 Mo. Ap. 424, 427. 
 If the policy is to be void in case of transfer or change of title, a dissolution 
 
 569 
 
§ 279] INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XII. 
 
 change in the partnership a new member is introduced.^ It 
 has also been held that where such a change of property has 
 been made, recovery can be had only for the loss of so much 
 as has not been transferred, — i.e. the interests of the re- 
 maining parties.^ But upon principle it seems to be rea- 
 sonable that the plaintiffs, being owners at the time of the 
 insurance and thence to the loss, should recover the entire 
 loss. And such seems to be the weight of authority. " (a) 
 
 of the partnership and division of goods before loss, or a transfer by one 
 partner to a stranger, is fatal. Card v. Phcenix Ins. Co., 4 Mo. App. 427 ; cit- 
 ing Savage v. Insurance Co., 62 N. Y. 506 ; Dreher v. Insurance Co., 18 Mo. 
 128. The taking in of a partner by one who is insured individually is such a 
 change of title and possession as avoids the policy. Malley v. Atlantic Ins. Co., 
 51 Conn. 222. A change of a stock of goods, selling and replacing, does not 
 avoid a policy ; but a sale in mass, or a diminution of the owner's interest, or 
 the introduction of a new member into the firm, as in this case is fatal : Biggs v. 
 Insurance Co., 88 N". C. 141, 144 ; citing Dey v. Poughkeepsie Mut. Ins. Co., 
 23 Barb. 623 ; [and not alone as to the goods or interest sold, but the contract 
 being entire is wholly avoided. Id., &c. ; Quarrier v. Peabody Ins. Co., 10 W. 
 Va. 507.] 
 
 1 [In Maryland it is held that taking in a new partner without notice to 
 the company does nut affect the validity of a, renewal made after the change. 
 A renewal receipt is a new parol contract, and absence of notice to the company 
 that a new member has come into the firm since the original insurance, is not 
 material. The new contract is made with the firm as constituted at the time of 
 'it. Firemen's Ins. Co. ■;. Floss & Co., 67 Md. 404.] 
 
 " Hobbs V. Memphis Ins. Co., 1 Sneed (Tenn.), 444. 
 ' s Hoffman v. Mtna. Ins. Co., 32 N. Y. 415 ; West v. Citizens' Ins. Co., 27 
 Ohio St. 1. 
 
 (a) Agreements between co-partners N. Y, 195 ; Roby v. American Central 
 
 as to the firm's personalty or change of Ins. Co., 120 N. Y. 510 ; Hanover F. 
 
 members are now generally treated as Ins. Co. v. Lewis, 28 Fla. 209 ; Southern 
 
 not working a material change of title. Fertilizer Co. v. Keams, 105 N". C. 283. 
 when the hazard is not increased. Partition is a change of title ; but a 
 
 Georgia Home Ins. Co. o. Hall, 94 Ga. change of ownership as to a building 
 
 630 ; Runkle v. Hartford Ins. Co., 99 does not forfeit as to personalty therein, 
 
 Iowa, 414 ; Phenix Ins. Co. v. Hoi- when they are separately insured. Tra- 
 
 conibe, 57 Neb. 622, 629 ; Virginia F. bue y. Dwelling-House Ins. Co., 121 Mo. 
 
 & M. Ins. Co. V. Vaughan, 88 Va. 832 ; 75 ; Coleman v. New Orleans Ins. Co., 
 
 Brigham v. Wood, 48 Minn. 344 ; New 49 Ohio St. 310 ; Barnes v. Union Mut. 
 
 Orleans Ins. Ass'n v. Holberg, 64 Miss. F. Ins. Co., 51 Maine, 110. In general, 
 
 61 ; Allemania F. Ins. Co. v. Peck, 133 consent to the transfer of the policy is 
 
 111.220 ; Blackwell v. Ins. Co., 48 Ohio consent to a transfer of the property. 
 
 St. 533. See Jones «. Phoenix Ins. Co., Small v. Westchester F. Ins. Co., 51 
 
 97 Iowa, 276 ; American Credit Ind. Fed. Rep. 789 ; see Brennan v. Crouch, 
 
 Co. V. Wood, 73 Fed. Eep. 81 ; Ger- 125 N. Y. 763. A contract of sale 
 
 mania F. Ins. Co. u. Home Ins. Co., 144 which passes the equitable title and 
 
 570 
 
CH. XII.] ALIENATION. [§ 281 
 
 § 280. Change amongst Joint Owners. — On the other hand, 
 there are numerous and respectable authorities not only that 
 a dissolution of the partnership and a division of the prop- 
 erty amongst the copartners is a "transfer or change of 
 title," within the meaning of a provision making the policy 
 void on such transfer or change, ^ but also that a sale by one 
 partner to his copartners of his interest, and withdrawal 
 from the firm, is an alienation. ^ And so it has been held, 
 that a sale by one tenant to his co-tenant is an alienation;^ 
 [and also that it is not;* the alienation contemplated by this 
 policy being held in Connecticut to be a transfer from a 
 party insured to one not insured]. So a division on petition 
 for partition by one co-tenant against another has been held 
 to be a change in the title, though not strictly an alienation.^ 
 
 § 281. Change of Ownership ; Right of Action. — And the 
 same difference of opinion prevails as to the proper parties 
 to the action in the respective cases. By some of the 
 authorities it is held that, in case of the sale and transfer 
 by one partner to his copartners of his interest, and his 
 retirement from the firm, an action cannot be maintained 
 in the name of the joint insurers, since it cannot be truly 
 alleged that all the parties were interested at the time of 
 the loss, and, of course, there being no joint property there 
 could be no joint loss.^ The prudent course in cases where. 
 
 1 Dreher v. Etna Ins. Co., 18 Mo. (3 Bennett) 128. 
 
 2 Dix V. Mercantile Ins. Co., 22 111. 272 ; Keeler v. Niagara Fire Ins. Co., 16 
 "Wis. 523 ; Hartford Fire Ins. Go. v. Boss, 23 Ind. 179 : Finley v. Lycoming 
 County Mut. Ins. Co., 30 Pa. St. 311 ; Portsmouth Ins. Co. u. Brinckley (Va,), 
 2 Ins. L. J. 843. We do not find this case in the Virginia Reports. [Hathaway 
 V. State Ins. Co., 6i Iowa, 229; Keeler v. Niagara Fire Ins. Co., 16 "Wis. 550, 
 564. An indorsement on the policy by the company with knowledge "payable 
 to C," waives the forfeiture. Id., 565.] 
 
 8 Buckley v. Garrett e,t al., 47 Pa. St. 280. 
 
 * [Lockwood V. Middlesex Mut. Ass. Co., 47 Conn. 553.] 
 
 5 Barnes v. Union Mut. Fire Ins. Co., 51 Me. 110. 
 
 s Dix V. Mercantile Ins. Co., 22 111. 272 ; Murdock v. Chenango County Mut. 
 Ins. Co., 2 Comst. (N. Y.) 210 ; Howard et al. v. Albany Ins. Co., 3 Denio (N. Y.), 
 301 ; Bronson, J., dissenting. 
 
 beneficial interest is a violation of the change take place in title or possession, 
 policy provision making it void if the Cottingham v. Fireman's Fund Ins. Co , 
 property be sold or transferred, or any 90 Ky. 439. 
 
 571 
 
§ 282] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XII. 
 
 the title to the property has been so changed is to assign the 
 policy and obtain the assent of the insurers to the assign- 
 ment, when, upon all the authorities, the remaining owner 
 or owners may sue in their own names. 
 
 It is, however, elsewhere held that the action must be 
 joint, and that if the sale or transfer, as of one partner of 
 his interest to the other, is without the consent of the in- 
 surers, the plaintiff will recover only the value of his inter- 
 est: while, if it is with their consent, he will recover to the 
 same ^extent as if there had been no transfer.^ And in still 
 another case it was held, that where the surviving partner, 
 by one of the articles of copartnership, became sole owner 
 on the death of his copartner, he might recover in his own 
 name for the loss of the goods formerly the property of the 
 firm, destroyed by fire, though the insurers were ignorant of 
 the agreement.^ And where a sole trader sells an undivided 
 interest in the insured property to another, who thereby be- 
 comes a partner, the insurers assenting to the transfer, and 
 that the policy should remain good to the new firm, and 
 making the alienee a member of their company by the entry 
 of his name in their books as such, it has been held, some- 
 what strictly, perhaps, that no action at law could be main- 
 tained by either of the parties severally, or by both jointly, 
 since neither jointly nor severally did they own the property 
 at the time of the insurance and at the time of the loss. 
 But since, under the circumstances, there was no adequate 
 remedy at law, a joint bill in equity to recover the loss was 
 sustained.^ 
 
 § 282. Waiver; Consent. — But a forfeiture by alienation 
 may be waived by the insurers or their agent; and a consent 
 by the agent, who, after notice of the alienation by the in- 
 
 1 Hobbs et al. v. Memphis Ins. Co., 1 Siieed (Tenn.), 444. In this case the 
 court say, referring to the New York cases in the 2d of Comstock and the 3d 
 of Denio, before cited, that they have carefully considered them, and do not 
 concur in the doctrine thereof, nor consider it founded in piinciple or authority, 
 s. 0. 3 Ben. Fire Ins. Cas. 37, and note, 49. 
 
 2 Wood V. Rutland & Addison Mut. Fire Ins. Co., 31 Vt. 552. And see also 
 Baltimore Fire Ins. Co. v. McGowan, 16 Md. 47. 
 
 8 Bodle et al. v. Chenango County Mut. Ins. Co., 2 Comst. (N. Y.) 53. But 
 see Foster et al. v. Equitable Mut. Fire lus. Co., 2 Gray (Mass.), 416. 
 
 572 
 
OH. XII. J ALIENATION. [§ 282 A 
 
 sured, forwards the policy to his principals for their ap- 
 proval, that the policy shall remain good till the assent of 
 the insurers to the assignment can be procured, is such 
 waiver.^ An assent to a sale generally is an assent to all 
 the terms of the sale, and covers a mortgage back to secure 
 the purchase-money;^ but a consent to the assignment of the 
 policy, indorsed thereon after a sale, is not necessarily a 
 consent to a mortgage back to secure the purchase-money.^ 
 And consent to the last of several conveyances is a waiver of 
 forfeiture by reason of either.* 
 
 [282 A. But consent to one alienation does not waive a 
 subsequent transfer.^ In general assent of the agent is a 
 waiver.^ If, however, alienation is to avoid the policy un- 
 less the consent of the company is indorsed thereon, mere 
 notice to the company of the transfer is not sufficient, nor 
 is the company bound to express its disapproval.' Contra, 
 in Texas. If the agent knows of a transfer and assents to 
 it, the company is estopped to set up the provision as to in- 
 dorsement of transfers.^ Payment of a dividend to a part- 
 ner after knowledge that the firm insured has dissolved and 
 the property transferred to the said partner, is a waiver of 
 objection on such ground.^ A transfer is ratified or waived 
 by consenting to a corresponding assignment of the policy, 
 and failure of the company for a year after notice to make 
 objection to the act of the agent in assenting to such an 
 assignment was a ratification of his action.^" Though a policy 
 is to be void by levy of execution on the property, yet if the 
 company with knowledge of such levy and sale consent to an 
 
 1 niiuois Mut. Fire Ins. Co. v. Stanton, 57 111. 354. And see also, post, chap- 
 ter on "Waiver and Estoppel, § 555. 
 
 2 Fanners' Ins. Co. v. Ashton, 31 Ohio St. 477. 
 
 ^ German Nat. Bank v. Agricultural Ins. Co., St. Louis Ct. of App. 9 Ins. 
 Law J. 556. 
 
 * Gilliat V. Pawtuckefc Mut. Fire Ins. Co., 8 R. I. 282. As to notice, see post, 
 §368. 
 
 1^ [Moulthrop V. Fanners' Mut. Fire Ins. Co., 52 Vt. 123.] 
 
 6 [Fire Ins. Co. v. Building Ass., 43 N. J. 652.] 
 
 ' [Girard Fire & Mar. Ins. Co. v. Hebard, 95 Pa. St. 45.] 
 
 8 [Fire Ins. Ass. v. Miller, 2 Tex. Civ. Cas. 333. 
 
 s [Combs V. Shrewsbury Ins. Co., 34 N. J. Eq. 403, 412.] 
 
 1° [Benninghoff v. Agricultural Ins. Co., 93 N. Y. 495.] 
 
 573 
 
§ 282 B] INSURANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. XII. 
 
 assignment of the policy to the purchasei', a new contract is 
 thereby made unaffected by the forfeiture.^ But an indorse- 
 ment on the policy "payable in case of loss to A." and an 
 indorsement of consent thereto by the company, do not imply 
 a knowledge or a consent to a sale of the goods insured. ^ 
 Knowledge of the facts and tne purpose of the indorsement 
 may, however, be shown. Oral evidence is admissible to 
 show that the plaintiff informed the company (after issue of 
 a policy conditioned to be void upon conveyance) that there 
 had been a conveyance of the property, at the same time 
 telling them of an outstanding mortgage and requesting 
 them to cure the defect, and that they indorsed on the policy 
 an assent to an order of the plaintiff for the payment of the 
 policy to a third party in case of loss.^ A sale of the land 
 under the insured buildings will not avoid a policy where 
 the agent has full knowledge of it and makes indorsements 
 on the policy in reference to it.*] 
 
 [§ 282 B. Agent's Knowledge. — The commencement of 
 foreclosure proceedings will not avoid the policy; although 
 it so declares, where the agent of the company knew of the 
 existence of an overdue mortgage, and omitted accidentally 
 the clause making the insurance payable to the mortgagee, 
 the insured being ignorant of English and relying on the 
 agent. ^ In an action on a policy parol evidence that the in- 
 sured told the agent about an intended transfer of the prop- 
 erty, and the agent said the policy could be so drawn as to 
 cover it, is inadmissible to vary the policy from its actual 
 terms. The suit should be for reformation.^] 
 
 1 [Steen v. Niagara Fire Ins. Co., 89 N. Y. 315.] 
 
 2 [Bates V. Equitable Ins. Co., 10 "Wall. 33, 37.] 
 
 8 [Oakes v. Manufacturers' Ins. Co., 135 Mass. 248.] 
 
 * [Bonenfant v. Insurance Co., 76 Mich. 653.] 
 
 6 [Butz V. Farmers' Ins. Co., 76 Mich. 263.] 
 
 6 [Walton V. Agricultural Ins. Co., 116 N. Y. 317.] 
 
 574 
 
CH. XII.J APPENDIX. 
 
 APPENDIX. 
 
 The following "abstract of decisions upon alienation 
 clauses in insurance policies " will be found of great use to 
 the profession. It is the work of Augustus Russ, Esq., of 
 the Boston bar, to whose courtesy and that of the publishers 
 of the " Insurance Law Journal " we are indebted for the 
 privilege of inserting it here. 
 
 Abstract of Decisions upon Alienation Clauses in Insurance 
 
 Policies. 
 
 1. " Shall be alienated." Rollins v. Columbia Ins. Co., 5 Fost. (N. H.) 200 
 (1852) ; 3 Fire Ins. Cas. 393. 
 
 2. " Alienated (or aliened) by sale or otherwise." Lane v, Maine Mut. Fire 
 Ins. Co., 12 Me. 44 (1835), 1 Fire Ins. Cas. 482 ; Jackson v. Mass. Mut. Fire Ins. 
 Co., 23 Pick. (Mass.) 418 (1839), 1 Fire Ins. Cas, 764 ; Neely v. Onondago Mut. 
 Fire Ins. Cas. 7 Hill (N. Y.), 49 (1844) 2 Fire Ins. Cas. 344; McCulloch v. 
 Indiana Mut. Fire Ins. Co., 8 Blaokf. (Ind.) 50 (1846), 2 Fire Ins. Cas. 475 ; Til- 
 limon V. Vermont Mut. Fire Ins. Co., 20 Vt. 546 (1848), 2 Fire Ins. Cas. 683 ; 
 Adams v. Rockingham Mut. Fire Ins. Co., 29 Me. 292 (1849), 3 Fire Ins. Cas. 
 30 ; Tillon v. Kingston Mut. Ins. Co., 5 N. Y. 405 (1851), 3 Fire Ins. Cas. 238 ; 
 Burbank v. Rockingham Mut. Fire Ins. Co., 4 Fost. (N. H.) 550 (1852), 3 Fire 
 Ins. Cas. 367 ; Rice v. Tower, 1 Gray (Mass.) 426 (1854), 3 Fire Ins. Cas. 725 ; 
 Finley v. Lycoming Mut. Fire Ins. Co., 30 Pa. St. 311 (1858), 4 Fire Ins. Cas. 330; 
 Hoxie V. Providence Mut. Fire Ins. Co., 6 R. I. 517 (1860), 4 Fire Ins. Cas. 484 ; 
 Buckley v. Gannett, 47 Pa. St. 204 (1864), 4 Fire Ins. Cas. 793 ; Cowan v. Iowa 
 St. Ins. Co., 40 Iowa, 561 (1876), 5 Fire Ins. Cas. 766 ; Lawrence v. Holyoke Ins. 
 Co., 11 Allen (Mass.), 387 (1865), 5 Fire Ins. Cas. 65 ; Hill v. Cumberland Val- 
 ley Mut. Protection Co., 59 Pa. St. 474 (1868) ; Miner v. Judson, 5 T. & C. 
 (N". Y. ) 46 (1874) ; Masters v. Madison City Mut. Ins. Co., 11 Barb. (N. Y.) 624 
 (1852), 3 Fire Ins. Cas. 398 ; Farmers' Mut. Ins. Co. v. Gray Bill, 74 Pa. St. 17 
 (1873), 5 Fire Ins Cas. 527 ; Folsom v. Belknap City Fire Ins. Co., 10 Fost. 
 (N. H.), 231 (1855) ; Burger v. Farmers' Mut. Ins. Co., 71 Pa. St. 422 (1872), 
 5 Ins. Cas. 454 ; Conover v. Mat. Ins. Co. of Albany, 1 N. Y. 290 (1848), 2 Fire 
 Ins. Cas. 677. 
 
 3. "Alienated the property in whole or in part." Tomlinson v. Monmouth 
 Mut. Fire Ins. Co., 47 Me. 232 (1859), 4 Fire Ins. Cas. 447 ; Smith v. Monmouth 
 Mut. Fire Ins. Co., 50 Me. 96 (1863), 4 Fire Ins. Cas. 723. 
 
 4. "Alienated by sale, mortgage, or otherwise." Shephard v. Union Mut. 
 Fire Ins. Co., 38 N. H. 232 (1859), 4 Fire Ins. Cas. 408 ; New Hampshire Sav- 
 ings Bank v. Union Mut. Fire Ins. Co., 38 N. H. 232 (1859), 4 Fire Ins. Cas. 408. 
 
 5. " Alienated by sale, assignment, or otherwise." Campbell v. Hamilton Ins. 
 Co., 51 Me. 69 (1863), 4 Fire Ins. Cas. 723. 
 
 575 
 
INSUEANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. XII. 
 
 6. " In case of any sale, alienation, transfer, or change of title." Van Dusen 
 V. Charter Oak Ins. Co., 1 Robt. (N. Y.) 55 (1863), 4 Fire Ins. Cas. 694. 
 
 7. " Shall be alienated by death, sale, or any other means." Stetson v. Mass. 
 Mut. Fire Ins. Co., 4 Mass. 330 (1808), 1 Fire Ins. Cas. 81. 
 
 8. " Shall have sold or alienated the property in whole or in part.'' Abbott 
 V. Hampden Mut. Fire Ins. Co., 30 Me. 414 (1849), 3 Fire Ins. Cas. 86. 
 
 9. " Shall be taken possession of by a mortgagee or in any way alienated." 
 Young V. Eagle Fire Ins. Co., 14 Gray (Mass.), 160 (1859), 4 Fire Ins. Cas. 417. 
 
 10. " When any property . , . shall in any way be alienated. " Clark w. N. E. 
 Mut. Fire Ins. Co., 6 Cush. (Mass.) 342 (1850), 3 Fire Ins. Cas. 131. 
 
 11. "The alienation in anyway of any property insured." Dadmun Manu- 
 facturing Co. V. Worcester Mut. Ins. Co., 11 Md. 429 (1846), 2 Fire Ins. Cas. 488; 
 Wilson V. Trumbull Mut. Fire Ins. Co., 19 Pa. St. 372 (1852), 3 Fire Ins. Cas. 
 496. 
 
 12. " Any alienation or sale of the property." Mount Vernon Manufacturing 
 Co. u. Summit City Mut. Fire Ins. Co., 10 Ohio St. 347 (1859), 4 Fire Ins. Cas, 
 432. 
 
 13. " Shall alienate or sell any house or building insured." Trumbull v. Port 
 age City Mut. Ins. Co., 12 Ohio 305 (1843), 2 Fire Ins. Cas. 289. 
 
 14. "If the title to the property, or any part thereof, shall be alienated.' 
 Davis V. Quincy Mut. Fire Ins. Co., 10 Allen (Mass.), 113 (1865), 5 Fire Ins, 
 Cas. 35. 
 
 15. "Alienation" with the words "the commencement of foreclosure pro 
 ceedings or the levy of an execution shall be deemed an alienation of the prop' 
 erty." Colt v. Phcenix Fire Ins. Co., 54 N. Y. 595 (1874), 5 Fire Ins. Cas. 537. 
 
 16. "In case of any sale, alienation, transfer, conveyance, or any change of 
 title in the property insured by this company or of any interest therein, . . . 
 and an entry for foreclosure of mortgage, or the levy of an execution, or an 
 assignment for the benefit of creditors, shall be deemed an alienation of the 
 property." Commercial Ins. Co. v. Spankneble, 52 111. 53 (1869), 5 Fire Ins. 
 Cas. 248. 
 
 17. "All alienations and alterations in the ownership, situation, or state of the 
 property insured in any material particular shall make void any policy cover- 
 ing such property." Edmunds v. Mut. Safety Fire Ins. Co., 1 Allen, 311 (1801), 
 
 4 Fire Ins. Cas. 540. 
 
 18. " Sale." Norcross v. Insurance Companies (Franklin Fire Ins. Co., Spring 
 Garden Fire Ins. Co.), 17 Pa. St. 429 (1851). 
 
 19 " Sold or conveyed." Buchanan v. Exchange Fire Ins. Co., 61 N. Y. 36 
 (1874), 5 Fire Ins. Cas. 591 ; Bates v. Equitable Ins. Co., 10 Wall. 33 (1869), 
 
 5 Fire Ins. Cas. 274 ; Bates v. Equitable Ins. Co., 3 Cliff. 215 (1868) ; Keeler v. 
 Niagara Fire Ins. Co.. 16 Wis. 523 (1863), 4 Fire Ins. Cas. 653 ; Washington Ins. 
 Co V. Kelly, 32 Md. 421 (1870) ; Hoffman v. jEtna Ins. Co., 1 Robt. (¥. Y.) 501 
 (1863) ; Hoffman v. jEtna Ins. Co., 32 N. Y. 405 (1865), 5 Fire Ins. Cas. 60 ; 
 Heaton t;. Manhattan Fire Ins. Co., 7 R. I. 502 (1863), 4 Fire Ins. Cas. 699; Wash- 
 ington Ins. Co. V. Hayes, 17 Ohio St. 432 (1867), 5 Fire Ins. Cas. 139. 
 
 20. " Sell, convey, or assign the subject insured." Fayette City Mut. Ins. 
 Co. V. Neel, 19 Albany L. J. (Pa.) 75 (1878). 
 
 21. "Sold or conveyed in whole or in part." Strong u. Manufacturers' Ins. 
 Co., 10 Pick. (Mass.) 40 (1830), 1 Fire Ins. Cas. 326; Loring v. Manufacturers' 
 Ins. Co., 8 Gray (Mass.), 28 (1857), 4 Fire Ins. Cas. 172 ; Hazard v. Franklin 
 Mut. Fire Ins. Co., 7 R. I. 429 (1863), 4 Fire Ins. Cas. 656. 
 
 22. "Sold or conveyed or the interest of the parties therein changed." Bur- 
 
 576 
 
CH. XII.] APPENDIX. 
 
 nett V. Eufaula Home Ins. Co., 46 Ala. 11 (1871), 5 Fire Ins. Cas. 362 ; Ayers v. 
 Home Ins. Co., 21 Iowa, 185 (1866), 6 Fire Ins. Cas. 94; Gerniond v. Home Ins. 
 Co., 2 Hun (N. Y.), 640 (1874) ; Germond v. Home Ins. Co., 5 T. & C. (N. Y.) 
 120 (1874). 
 
 23. "Shall be sold, assigned, transferred, or pledged." Atherton o, Phcenix 
 Ins. Co., 109 Mass. 32 (1871). 
 
 24. "Sale, transfer, or change of title.'' CNeil i). Hampden Fire Ins. Co., 
 13 Gray (Mass.), 431 (1859), 4 Fire Ins. Cas. 415; Western Ins. Co. v. Ricker, 
 10 Mich. 279 (1862), 4 Fire Ins. Cas. 604; Home Fire Ins. Co. of Chicago o. 
 Hausline, 60 111. 521 (1871), 5 Fire Ins. Cas. 373; Ayres u. Hartford Fire Ins. 
 Co., 17 Iowa, 176 (1864), 4 Fire Ins. Cas. 776. 
 
 25. " When the title of any property shall he changed by sale, mortgage, or 
 otherwise." Barnes v. Union Mut. Fire Ins. Co., 51 Me. 110 (1863), 4 Fire Ins. 
 Cas. 728. 
 
 26. "Transfer hy sale or otherwise." Texas B. & Ins. Co. v. Cohen, 47 Tex. 
 406 (1877) ; Dernaui u. Home Ins. Co. of New Orleans, 26 La. Ann. 69 (1874), 
 5 Fire Ins. Cas. 534. 
 
 ' 27. " In case of any transfer or termination of the interest of the assured by 
 sale or otherwise." Smith v. Saratoga Mut. Fire Ins. Co., 1 Hill (N. Y.), 497 
 (1841), 2 Fire Ins. Cas. 94 ; Smith v. Saratoga ut. Fire Ins. Co., 3 Hill (N. Y.), 
 508, 2 Fire Ins. Cas. 94 ; Power v. Ocean Ins. Co., 19 La. 28 (1841), 2 Fire Ins. 
 Cas. 81 ; Shotwell v. Jefferson, 5 Bosw. (N. Y.) 247 (1859), 4 Fire Ins. Cas. 409 ; 
 Hooper u. Hudson Fire Ins. Co., 17 N. Y. 424 (1858), 4 Fire Ins. Cas. 266; 
 Phelps v. Gebhard Fire Ins. Co., 9 Bosw. 404 (1862), 4 Fire Ins. Cas. 624 ; 
 Phcenix Ins. Co. v. Lawrence, 4 Met. (Ky.) 9 (1862), 4 Fire Ins. Cas. 628 ; Grov- 
 enor v. Atlantic Fire Ins. Co., 17 N. Y. 391 (1858), 4 Fire Ins. Cas. 254 ; Hitch- 
 cock V. N. W. Ins. Co., 26 N. Y. 68 (1862), 5 Fire Ins. Cas. 488, note. 
 
 28. " In case of any sale, transfer, or change of title in the property insured or 
 of any interest therein or possession by another of the subject insured." Lap- 
 pen V. Charter Oak Fire & Mar. Ins. Co., 58 Barb. (K. Y.) 325 (1870), 5 Fire Ins. 
 Gas. 328. 
 
 29. " If the property shall be sold, or transferred, or any change take place in 
 title or possession, whether by legal process or judicial decree, or voluntary transfer 
 or conveyance." PeiTv v. Lorillard Fire Ins. Co., 61 N. Y. 214 (1874), 5 Fire Ins. 
 Cas. 597 ; Savage v. Howard Ins. Co., Savage v. Long Island Ins. Co., 52 N". Y. 
 502 (1873), 5 Fire Ins. Cas. 484; Miner v. Phcenix Ins. Co., 27 Wis. 693 (1871), 
 5 Fire Ins. Cas. 350; Sherman u. Niagara Ins. Co., 2 Sweeney (N. Y.), 470 
 (1870), 5 Fire Ins. Cas. 384; Sherman v. Niagara Ins. Co., 40 Howard Practice 
 (N. Y.), 393 (1870), 5 Fire Ins. Cas. 384 ; Sherman v. Niagara Ins. Co., 46 N. Y. 
 526 (1871), 5 Fire Ins. Cas. 384 ; Keeney v. Home Ins. Co. of Columbus, 3 T. & 
 C. (N. Y.) 478 (1874), 5 Fire Ins. Cas. 555 ; Keeney v. Home Ins. Co. of Colum- 
 bus, 7 Ins. L. J. 108, Court of Appeals, N. Y. (1877) ; Browning ;;. Home Ins. 
 Co. of Columbus, 7 Ins. L. J. 428, Court of Appeals, N. Y. (1877) ; Langdon «. 
 Minn. Mut. Fire Ins. Co., 22 Minn. 193 (1875) ; Gerraania Fire Ins. Co. v. Thomp- 
 son, 7 Ins. L. J. 13, U. S. S. C. (1877) ; Germania Fire Ins. Co. o. Thompson, 
 16 Albany L. J. 477, 6 Central L. J. 134 ; Loy v. Home Ins. Co. of Columbus, 
 2 N. W. Rep. (Minn.) 83 (1878) ; Loy v. Home Ins. Co. of Columbus, 7 C. L. J. 
 274, and Rep. 587 ; Brunswick Savings Institution v. Commercial Ins. Co., 18 
 Albany L. J. (Me.) 460 (1878) ; Brunswick Savings Institution v. Commercial Ins. 
 Co., 19 Albany L. J. 181 ; Appleton Iron Co. v. Brit. Am. Ass. Co., 19 Albany L. 
 J. (Wis.) 215 (1879). 
 
 30. " If any change took place in the title or possession of the property, 
 
 VOL. I. — 37 577 
 
INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XII. 
 
 whether by sale, lease, legal process, judicial decree, or volimtary transfer." 
 McEwan v. Fraser, 1 Mich. (N. P.) 118 (1869). 
 
 31. " In case any change takes place in the title or possession of the property, 
 whether by sale, legal process, judicial decree, voluntary transfer or conveyance." 
 Batohelder v. People's Fire Ins. Co., 40 Conn. 56 (1873), 5 Fire Ins. Cas. 482. 
 
 32. " In case of any assignment, transfer, or termination of the interest of the 
 insured or of any such claim by sale or otherwise." Day v. Poughkeepsie Mut. 
 Ins. Co., 23 Barb. 623 (1857), 4 Fire Ins. Cas. 181. 
 
 33. "In case of any sale, transfer, or change of title in the property hereby 
 insured, or of any part of it, or of any incumbrance or change of interest in any 
 wise of the assured, or the foreclosure of a mortgage or levy of an execution, or 
 possession by another of the subject insured." Pratt v. New York Central Ins. 
 Co., 65 N. Y. 505 (1874), 5 Fire Ins. Cas. 537. 
 
 34. " In case of any sale, transfer, or change of title in property insured by 
 this company or of any (undivided) (individual) interest therein, . . . and the 
 entry of a foreclosure of a moitgage or the levy of an execution, shall be deemed 
 an alienation." Ayres v. Hartford lus. Co., 21 Iowa, 193 (1866), 5 Fire Ins. Cas. 
 94 ; Ayres v. Hartford Ins. Co., 17 Iowa, 176 (1864), 4 Fire Ins. Cas. 776 ; Hart- 
 ford Ins. Co. V. Ross, 23 Ind. 179 (1864). 
 
 35. " Where property (insured by this policy) or any part thereof shall be 
 alienated or, in case of any transfer or change of title to the property insured, 
 or any part thereof, or of any interest therein, ... or if the property insured 
 shall be levied upon, or taken into possession or custody on any legal process, or the 
 title to or possession be disputed in any proceeding at law or in equity, this policy 
 shall cease." Sossaman v. Pamlico B. & Ins. Co., 7 Ins. L. J. 398 (N. C), (1878). 
 
 36. " If the assured shall transfer." Walker v. Firemen's Ins. Co., 2 Handy 
 (Ohio), 256 (1856). 
 
 37. " If the title to the property is transferred or changed.'' Mclntire v. Nor- 
 wich Fire Ins. Co., 102 Mass. 230 (1869), Fire Ins. Cas. 251 ; Starkweather v. 
 Cleveland Ins. Co., 2 Abb. (U. S.) 67 (1870), 5 Fire Ins. Cas. 328 ; Geo. Home 
 Ins. Co. V. Kinnear, 28 Graft. (Va.) 88 (1876). 
 
 38. "In case of any transfer or change of title in the property insured." 
 Dreher v. Mtna. Ins. Co., 18 Mo. 128 (1853), 3 Fire Ins. Cas. 514 ; Dix v. Mer- 
 cantile Ins. Co., 22 m. 272 (1859), 4 Fire Ins. Cas. 380 ; Dix v. Chicago City Ins. 
 Co., 22 111. 272 (1859), 4 Fire Ins. Cas. 380. 
 
 39. "A transfer or change of interest." Bates v. Commercial Ins. Co., 2 Cin. 
 (Ohio) 195 (1872). 
 
 40. " In case of any transfer, partial transfer, or change of title in the property 
 insured." West Branch Ins. Co. v. Helfinstein, 40 Pa. St. 289 (1861), 4 Fire Ins. 
 Cas. 565. 
 
 41. " If any change takes place in the title or possession." Amazon Ins. Co. 
 V. Wall, 17 Albany L. J. (Ohio) 489 (1878). 
 
 42. " In case of any change of title in the property hereby insured." Knetts 
 V. Massasoit Ins. Co., 56 Barb. 177 (1867), 5 Fire Ins. Cas. 488, note; Spring- 
 field Fire & Mar. Co. v. Allen, 43 N. Y. 389 (1871). 
 
 43. "Any change of interest in whole or in part." Fernandez v. Great West- 
 em Ins. Co., 3 Robt. (N. Y.) 457 (1865). 
 
 44. "If any change should occur affecting the title, condition, or occupancy 
 of the property, whereby the risk will be increased." Residence Fire Ins. Co. v. 
 Hannanold, 37 Mich. 103 (1877). 
 
 45. " If the property was levied on or taken in custody by the law.'' Mills v. 
 Ins. Co., 5 Phila. 28 (1862), 4 Fire Ins. Cas. 653. 
 
 578 
 
CH. XII.J APPENDIX, 
 
 46. " The insurance shall cease from the time that the property hereby in- 
 sured shall be levied on or taken into custody under an execution or other pro- 
 ceeding at law or equity." Philadelphia Fire & Life Ins. Co. v. Mills, 44 Pa. St. 
 241 (1863), 4 Fire Ins. Cas. 730. 
 
 47. " This policy ceases to be in force as to any property hereby insured 
 which shall pass from the insured to any other person otherwise than by will or 
 operation of law." Forbes v. Border Counties Fire Office, Cases in the Court of 
 Sessions, 3d series, vol. xi. 278 (1873), 5 Fire Ins. Cas. 460. 
 
 48. " If said property shall be sold or conveyed, or the interest of the parties 
 therein be changed in any manner, whether by act of the parties or by operation 
 of law, or the property shall become incumbered by mortgage, judgment, or 
 otherwise." Sherwood v. Agricultural Ins. Co., 7 Ins. L. J. 520, Court of Ap- 
 peals, N. Y. (1878) ; Sherwood v. Agricultural Ins. Co., 17 Albany L. J. 433, 
 6 Eep. 213. 
 
 49. " In case of any transfer or termination of the interest of the insured, or 
 any part of his interest in the property hereby insured, either by sale, contract, 
 or otherwise, or in case any mortgage, lien, or incumbrance, shall be executed 
 thereon, or shall attach thereto, or if the title thereto shall be in any way 
 changed or affected after the date of this policy, or if any proceedings for sale 
 thereof shall be had, commenced,\or taken, or if the title thereto shall be or be- 
 come less than an absolute and perfect one." Michigan State Ins. Co. v. Lewis, 
 30 Mich. 41 (1874), 5 Fire Ins. Cas. 559. 
 
 50. " The insurance under this policy shall cease at and from the time the 
 property hereby insured shall be levied on or taken into possession or custody 
 under any proceeding in law or equity, and should there, during the life of this 
 policy, an incumbrance fall or be executed upon the property insured sufficient 
 to reduce the real interest of the insured in the same to a sum only equal to or 
 below the amount insured." Smith v. Farmers' & Mechanics' Mut. Fire Ins. Co., 
 8 Ins. L. J. (Pa.) 828 (1879). 
 
 579 
 
INSUKANCE : FIRE, LIFE, ACCIDENT, E*C. [CH. XIII. 
 
 CHAPTER XIIL 
 
 TitLB AND INCUMBRANCE. 
 
 Analysis. 
 
 1. Title. 
 
 " Property " means the thing insured ; "title," the right to or inter- 
 est in it, § 283. 
 the title is no part of the description of the property, or its con- 
 dition, situation, value, or risk, § 283. 
 Unless inquiry is made the title need not be stated ; it being suf- 
 ficient if in fact the assured has an insurable interest, 
 §§ 284, 285. 
 and where such is the case, there is a strong tendency to 
 hold the company if the assured's representations can be 
 made to fit the facts either substantially or literally, § 284. 
 no misrepresentation that does not diminish the risk will 
 
 be fatal, § 287, n. 
 it is sufficient if the title is actually good, though it appears 
 defective on the records, § 285, n. 
 Where no inquiry is made calling the property "his" or him- 
 self the " owner" is right, if in any substantial sense it is 
 his, although (§ 285) — 
 it is on the land of another, § 285. 
 or attached, § 285. 
 or he is only tenant for life, § 285. 
 or for years, § 285. 
 or joint owner, § 285. 
 or vendee with deed passed to third person for him, 
 
 § 285. 
 or possessor under a contract of purchase, §§ 285, 287 
 
 (even though parol). 
 or holder of a claim enforceable in equity, § 285, and 
 notes, 
 it is not misrepresentation for the equitable owner 
 to claim full title, § 285, n. 
 or vendor before delivery, § 285. 
 or judgment creditor to whom the property has been set 
 
 off subject to mortgage, § 287. 
 or purchaser at foreclosure or sheriff's sale before deed 
 
 acknowledged or passed, § 287. 
 or grantor with defeasance back unrecorded, § 285, n. 
 or mortgagor before redemption expires, § 285, n. ; other- 
 wise after. 
 
 580 
 
CH. XIII.] TITLE AND INCUMBRANCE. 
 
 whether holder of title-bond from one who was suing in 
 equity to perfect Ms title, is owner, for the jury to 
 decide, § 284. 
 a sheriff's sale before insurance and annulled afterwards does 
 not affect the ownership, § 285. 
 Particular interest need not be stated ; the insurance may be 
 general, and recovery according to the interest proved, 
 § 285, n. 
 except in reassurance, bottomry, and freight, profits, &c., in 
 some cases, § 285, n. 
 If the "true title " is called for it must be stated with substantial 
 accuracy, § 287. 
 it will not do to call the property "his" when he is only a 
 tenant by curtesy, §§ 287, 289. 
 part owner, § 287. 
 stockholder, § 287. 
 mortgagee, § 287. 
 mortgagor, § 287. 
 if the charter requires statement of title if less than a fee- 
 simple, an omission to state title is a warranty of a fee-simple, 
 §287. 
 individual may insure his property under his trade name though 
 
 it makes the insurer think it is corporate property, § 287. 
 " good and perfect unincumbered title," mortgage paid but not 
 discharged of record is a breach, § 289. 
 Fee-simple, " if title less than, it must be stated," § 289. 
 
 verbal gift cannot create, and though deed made and delivered 
 
 before loss, policy void, § 289. 
 mortgagee under absolute deed may so state his title, § 289, end. 
 fee of undivided portion of land under buildings not sufficient, 
 
 § 289. 
 husband cannot call wife's property " his " when charter re- 
 quires fee-simple, § 289. 
 see, where agent knows the facts, § 294 E. 
 warranty of fee-simple true if he can enforce specific perform- 
 ance of a bond to convey, § 289. 
 if several persons are insured in respect to the same property, 
 the condition applies to the sum of their interests, § 289. 
 " Sole and unconditional owner: " 
 
 mortgagor of chattels is, § 286. 
 " Entire, unconditional, and sole owner : " 
 valid condition, § 287 A. 
 breach fatal, § 287 A. 
 
 so is failure to disclose true title if not as required by policy, 
 though no question asked at time of application, § 287 A. 
 mortgagor in possession in some States is, § 287. 
 in general mortgage must be stated, § 287. 
 contra, § 287 C, even as to absolute deed intended as a 
 mortgage, 
 vendee though giving mortgage for price, § 287 C. 
 
 or allowing the vendor to retain the legal title as security, 
 § 287 C. 
 
 581 
 
INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIII. 
 
 a lien does not affect, § 287 C. 
 nor a conditional sale, § 287 C. 
 
 nor an agreement to give clerk a share of profits, § 287 C. 
 nor a dry legal title in another, § 287 C. 
 sole beneficial right sufficient, § 287 C. 
 equitable owner is, in respect to insurance, § 287 C. 
 one in possession under a valid contract of purchase is, 
 § 287 C. 
 
 though he has assigned his contract as collateral, § 287 C. 
 but mere verbal promises to convey are not sufficient, § 287 C. 
 if the description says " held in trust " or otherwise, the com- 
 pany has notice, the condition does not apply, § 287 C. 
 Not entire, unconditional, and sole owner. 
 
 if there is any outstanding right, legal or equitable, § 287. 
 
 as tax-title, &c., § 287, end. 
 stockholder as to corporate property though pledged to him, 
 
 § 287, n. 
 ' holder under quitclaim from second mortgagee, § 287 B. 
 leasehold and contract of purchase of personalty, price unpaid, 
 
 § 287 B. 
 surviving partner, § 287 B. 
 life tenant, § 287 B. 
 Leasehold interest. Absolute interest : 
 interest and title are not synonymous, 
 if the loss would fall on A, his interest is absolute, § 288. 
 possessor under contract of purchase with part payment, § 288 
 
 (absolute) ? § 288. 
 pledgor, § 288. 
 lessee owning building to be left on land at end of lease, not 
 
 leasehold, § 288. 
 mechanics' lien, § 288. 
 not stating leasehold when required by policy, fatal, though 
 
 no question asked at application, § 288. 
 
 2. Incumbrance. 
 The object of inquiring about incumbrances is to aid in determin- 
 ing the motive of the assured to preserve the property, and 
 in case of mutual companies to know the value of their lien 
 for premiums, § 290. 
 The sanje thing may be an incumbrance or not according to cir- 
 cumstances and the disposition of the court, §§ 291-294. 
 and the language of the policy may make it void, only for 
 burdens put on the property by consent of the assured, 
 §§ 292, end, 292 A (as where the condition runs against 
 incumbrances "without consent of the company," for 
 the assured could not get assent for a lien put on by 
 some one else, perhaps witheut his knowledge, § 292). 
 or it may be void for any burden though placed by the law, 
 
 and even unknown to the assured, § 291 A. 
 an "incumbrance on the property " means on the whole prop- 
 erty insured, and an incumbrance on part of it will not 
 be fatal, § 291 (strict construction). 
 
 582 
 
CH. XIII.] TITLE AND INCUMBEANCB. 
 
 "WTiat is an ineiimlirance, §§ 291, 291 A. 
 What is not, §§ 292, 292 A. 
 
 assessment of deposit note (?), §§ 291, 292. 
 
 attachment may be, § 291. 
 
 bond for support not, § 292 ; contra, § 292, n. 
 
 nor bond to convey where the time named has passed, § 292. 
 
 curtesy, if contingent, not, § 292. 
 
 power, if contingent, not, § 292. 
 
 judgment, see lien. 
 
 lease for years not, § 292 A. 
 
 lien may be, §'291 ; or not, §§ 292, 292 A. 
 
 for taxes may be, § 291 ; or not, § 292 A. 
 not, if assessment is illegal, § 292 A. 
 for purchase-money may be, § 291 ; or not, § 292. 
 of a judgment may be, § 291, 291 A ; or not, § 292. 
 not if paid though undischarged of record, 
 § 291, M. 
 by collateral deposit of deeds, § 291. 
 mechanics' lien may be, § 291. 
 mortgage is, §§ 291, 292 B. 
 
 though fiaudulent and unrecorded, § 291. 
 so partner's mortgage to outsider, § 291 A. 
 but not if paid, though undischarged of record, § 292. 
 
 the presumption is that a mortgage is not paid, § 294. 
 nor if barred by statute of limitations, § 292. 
 house on blocks held encumbered by mortgage on land, 
 § 294 F. 
 sale on execution is, § 291. 
 seizure on execution is, § 291. 
 
 but not levy of goods left with debtor, § 291 n. 
 tax title that is a constructive trust not, § 292. 
 Misrepresentation or concealment of an incumbrance will be fatal 
 when the application questions, or the policy or the organic 
 law requires disclosure (§ 292 B) ; a requirement in the by- 
 laws not a part of the policy, and unknown to the assured, 
 would not probably be sufScient (see § 294 a). Where the 
 questions asked are fairly and honestly answered by the as- 
 sured, a condition as to disclosure in the after coming policy 
 ought not to affect him (see § 292 A ; 125 Pa. St. ). The com- 
 pany should call for the information they want in the applica- 
 tion, not in the policy, 
 where the assured says there is no incumbrance, which is true, 
 but he believes there is, not knowing that a mortgage has been 
 paid, his bad faith avoids the policy (§ 292 B). The moral 
 hazard is the same as if the mortgage was good. 
 materiality for jury, § 292 B. 
 misstatements as to incumbrances on other land not material, 
 
 § 292 B. 
 if the representation is substantially true a»d in good faith, tak- ' 
 ing into account all the equities and even parol agreements 
 void under the statute of frauds, the policy will be upheld 
 (§ 292 B). A stranger to the agreement cannot raise such a plea, 
 
 583 
 
INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIII. 
 
 stating that there is an incumbrance without the amount, suf- 
 ficient, § 292 B. 
 omission not fatal if all company's questions are truly answered, 
 § 292 B. 
 Subsequent incumbrance, § 294. 
 
 if paid before loss policy good, § 294. 
 Paying ofi:' old incumbrance and a new one arising, § 294, end. 
 if the total incumbrance is less than at the time of insurance 
 the policy ought not to be void, unless the express proyisions 
 are inconsistent with any other construction, §§ 294, end, 
 and 291 A. 
 If the policy permits inciynhranee only to a certain amount, going 
 
 beyond it is fatal, § 291 A. 
 Notice of incumbrance ; 
 
 must be given if required, § 294 a. 
 delay of fifty days unreasonable, § 294 a. 
 indorsement "loss payable to mortgagee," is notice, § 294, a. 
 putting in mail is prima facie, § 294 a. 
 provision for, in by-laws alone not sufficient, § 294 a. 
 Waiver (and estoppel) : 
 of statement of title, 
 
 by insurance " as interest may appear," § 294 C. 
 by soliciting agent, § 294 0. 
 of condition as to sole ownership, 
 
 cannot make policy cover goods of strangers, § 294 C. 
 of incumbrance, 
 
 by indorsing policy payable to mortgagee, § 294 C. 
 assent to substituted mortgage waives old one, § 294 0. 
 neglect of agent to ask any question about incumbrance 
 estops company in case, of one ignorant of English ; 
 signing application agent said was all right, § 294 : 
 in general, such neglect is not a waiver of the " sole " 
 &c.j condition in the policy, § 294 G. 
 if answer or omission is bona fide made by advice of 
 agent, company estopped to object to it, § 294 b. 
 if the description is inconsistent with absolute ownership, or 
 shows that required facts are omitted, or in any way the 
 company has notice, issue of a policy is a waiver, 
 §§ 294 D, 294 b. 
 by adjustment of loss by agent with knowledge of facts, 
 
 § 294 b. 
 or neglect to endorse or make proper statement, § 294 b. 
 knowledge of the agent at the time of insurance or before 
 issue of a policy that there is a lien or mortgage or 
 other incumbrance, or that the insured is not the sole 
 owner, &c., is a waiver, if the assured acted in good 
 faith, although the policy declares there shall be no 
 waiver except in writing, and sole ownership, &c., is 
 warranted, § 294 E. 
 but otherwise if the assured actually knows of the war- 
 ranty or erroneous information that goes to the com- 
 pany, § 294 E. 
 
 584 
 
CH. XIII.J TITLE AND INCUMBRANCE. [§ 283 
 
 and failure at trial to prove the truth of the facts stated 
 to the agent is fatal, § 294 E. 
 Contra, it has been held that one signing a document must' 
 
 know its contents, § 294 F. 
 and if policy says " no waiver by agent " there can be none, 
 § 294 F. 
 no waiver or estoppel — 
 
 by admission of a director or by vote of directors authoriz- 
 ing settlement, if assured has not changed his position in 
 consequence, § 294 G. 
 by sending adjuster before company knows facts, § 294 G. 
 by a verbal agi-eement (before policy, but left out of it) to 
 allow insured to mortgage, § 294 G. 
 
 § 283. Title and Property distinguished. — Inquiries about 
 a greater or less interest and a more or less perfect title 
 usually refer to the quality of the estate, having reference to 
 its duration, whether an estate in fee, for life, for years, or 
 at will, to what is vested in distinction from what is condi- 
 tional or contingent, and not to questions of incumbrance as 
 affecting the quantity of the estate.^ "Title " has respect to 
 that which is the subject of ownership, and is that which is 
 the foundation of ownership, and with a change of title the 
 right of property — the ownership — passes, (a) " Property " 
 is a thing owned, that to which a person has, or may have, 
 a legal title. Both words are inappropriate to describe the 
 insurable interest which exists solely by reason of the per- 
 sonal liability of the insured for the payment of a sum of 
 money charged upon the building or goods insured. When, 
 therefore, the word " property " is used in the clause forbid- 
 ding alienation, it is used to designate the thing insured, 
 and not the interest of the insured in the thing; and "change 
 or transfer of title " in the property insured is change or 
 transfer of title and ownership of the thing insured. ^ The 
 title or interest of the assured in the property insured is no 
 part of the description of the property, and need not there- 
 
 1 Hough V. City Fire Ins. Co., 29 Conn. 10 ; Wooddy v. Old Dominion Ins. 
 Co., 31 Grat. (Va.), 362. 
 
 2 Springfield Fire & Mar. Ins. Co. v. Allen, 43 ST. Y. 389. 
 
 (a) The word "interest" has a Gibb v. Phila. F. Ins. Co., 59 Minn, 
 broader meaning than " title," and in- 267. See Sun Fire Office v. Clark, 63 
 eludes both legal and equitable rights. Ohio St. 414. 
 
 585 
 
§ 284] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIII. 
 
 fore be mentioned in answer to a call for a true description 
 of the property ^ or under a requirement to state the " condi- 
 tion, situation, value, or risk" of the property insured.2(a) 
 And where the insurance is "as interest may appear," the 
 whole question of interest, title, and ownership is an open 
 one, and the insurers cannot, after loss, predicate upon such 
 an uncertain phrase, misrepresentation, or concealment, upon 
 either of the questions so left open.^ In many of the States, 
 misrepresentations as to title and interest, unless fraudulent 
 and material, are now rendered harmless by statute. 
 
 So where no condition as to statement of title is contained 
 in the policy, great liberality both of proof and construction 
 will be allowed the applicant to enable him to recover, as 
 that by relations with his partner he is equitably sole owner.* 
 
 § 28 i. Title. — In general, unless the title, ownership, or 
 interest in the insured property is required by the conditions 
 of the policy to be specifically, and with particularity and 
 accuracy, set forth, it will be sufficient if the insured has an 
 insurable interest, under any status of ownership or posses- 
 sion. And the fact that the statements in the application 
 are by reference made a part of the contract, and thus be- 
 come warranties, will have no effect in extending the force 
 or effect of these statements beyond their actual^ import. 
 Thus, where a married woman had been abandoned by her 
 husband, but, with the family, remained on the homestead, 
 which had been occupied by them before the separation, and 
 with her own earnings made improvements from time to 
 
 Franklin Ins. Co. v. Coates, 14 Md. 285. 
 
 2 Kerr v. Hasting.s Mut. Fire Ins. Co., 41 U. C. (Q. B.) 217 ; Kerr w. Gore 
 Dist. Mut. Fire Ins. Co., 1 Ont. App. Rep. 375. 
 
 a Daldn v. Liverpool, &c. Ins. Co., 13 Hun (N. Y.), 122; 8 Ins. L. J. 579 ; 
 Ramsey v. Phcenix Ins. Co., C. Ct. (N. Y.) 2 Fed. Rep. 429. 
 
 ^ Liverpool, &c. Ins. Co. v. McGuire, 52 Miss. 227. See also Continental Ins. 
 Co. V. Ware (Ky.), 9 Ins. L. J. 519. 
 
 (a) If the insured shoves that in- not their owner when the policy was 
 
 sured chattels belong to him at the taken out. Morris v. Imperial Ins. Co., 
 
 date of the fire, or that he then had 106 Ga. 461. It is the insurer's duty 
 
 possession coupled with a bona fide to make due inquiries when the policy is 
 
 claim of right to them, the burden is issued, and not later. Peet v. Dakota 
 
 upon the insurer to show that he was F. & M. Ins. Co., 1 So. Dak. 462. 
 
 586 
 
CH. XIII.] TITLE AND INCUMBRANCE. [§ 284 
 
 time, it appearing that the husband, on leaving, made a 
 verbal gift of the property to her, it was held that she had 
 an insurable interest. Application vras made for insurance 
 upon one dwelling-house and certain personal property 
 therein contained, and to the question whether the title 
 was a warranty deed or a bond, the answer was, " W. D. " 
 And to the further question, "Is your property incum- 
 bered ? " the answer was, " None." These being all the state- 
 ments in the application touching the title of the insured, it 
 was alleged in defence that there was a breach of warranty, 
 and no proof of ownership in fee, but the court did not take 
 this view.^ [The courts manifest a strong tendency to hold 
 
 1 The court said, " "We fail to find by the application of the meaning attached 
 to words that the insured represented herself as holding any particular kind of 
 title." The words ' one dwelling-house ' do not import title of any kind. The 
 letters 'W. D.' have no such meaning; nor has the question, ' Is your property 
 incumbered ? ' If the letters ' "W. D.' mean a warranty deed, it must appear from 
 extrinsic evidence, if that could be received. They have no such fixed and defi- 
 nite meaning in the law, nor in any common use, nor even in the connection in 
 which they are, employed. That may be their meaning, but it is not apparent. 
 But if it was conceded that they mean that the insured's title was a warranty 
 deed, still that is not an assertion that such title is a fee. A warranty deed may 
 pass a term of years, a life-estate, a fee, or less estate, or it may pass no estate 
 whatever. It conveys only the estate of the grantee, whatever that may be. 
 If we have none, it can pass none to the grantee. "We then look in vain for 
 any assertion in the application as to the kind of title, or the nature of the estate 
 she claimed. It then does not appear from the application that she was required 
 to prove that she held a fee or other absolute estate in the lot and house. Then, 
 under the averment in the declaration, what was she bound to prove ? Mani- 
 festly that she held and owned an insurable interest, — such a title as if there 
 should be loss it would fall upon, and have to be boi-ne by her. In a declaration 
 on a policy of insurance, the averment that the insured was the owner of the 
 property destroyed must be considered with reference to the contract of insurance. 
 It amounts to an averment that the insured had an iusurable interest, and not 
 that he was the absolute owner of the property. "When he sues, his right to re- 
 cover depends upon whether he was the owner of an insurable interest, and not 
 whether he was the absolute owner, and the averment must be so construed. It 
 cannot be construed as it would be in a contract or covenant to convey land, as in 
 such case the thing sold and purchased is the land ; and when the vendor says, 
 in his covenant, that he is the owner, and agrees to convey it to another,the law 
 holds that as the parties understood by the covenant that it was the land that 
 was sold, that the assertion of ownership implied that the vendor held the abso- 
 lute title, and had agreed to convey such a title as would vest in the vendee 
 absolute ownership. Language not having a technical meaning must be con- 
 strued with reference to the subject to which it is applied. Thus, under either 
 the application for the insurance or the averment in the declaration, the insured 
 was bound only to prove that she held an insurable interest, and all questions be- 
 
 587 
 
§ 284] INSUEA.NCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIII. 
 
 the company if the assured has an insurable interest, and in 
 such cases show great ingenuity in making his answers fit 
 the facts, sustaining them if either substantially or literally 
 (though only literally and not substantially) they can be ad- 
 justed to the truth. When the assured in answer to the 
 question " What is your title to or interest in the land ? " 
 answered "Deed," she having only an inchoate right of 
 dower, but her husband's title having come by deed, it was 
 held to be no breach of warranty sufficient to work a forfeit- 
 ure.i In answer to the question "What title has the occu- 
 pant ? " he said, " Warranty deed ; " " Number of acres ? " — 
 "160." He had warranty deeds for the whole, but for 120 
 acres the deeds were given to him in order thab he might 
 sell the land for the owner. The deeds were absolute on 
 their face, there being no mention of the trust; wherefore 
 it was held that his answer was sufficient. If the company 
 wished to know the equities they should have inquired about 
 them. 2 Where the insured who described the property as 
 "his" had bought a fee simple, and held a title bond from 
 the vendor, whose title was imperfect by reason of a rever- 
 sionary interest of one- seventh belonging to another, and 
 who was pushing a chancery suit to perfect his title, it was 
 held that the question whether the defect was material should 
 have gone to the jury.^] 
 
 yoiid that were immaterial." Rockford Ins. Co. u. Nelson, Sup. Ct. El. 2 Ins. 
 L. J. 341. In Catron v. Tennessee Insurance Company, 6 Humph. (Tenn. ) 176, 
 a tenant in common owning one-half, applied for insurance in these words : " I 
 wish a furnace and forge insured," without anything further said, or required to be 
 said, about the title or interest of the insured. And the court held this a mis- 
 representation as to the interest, which avoided the policy. But neither the cases 
 cited and relied upon by the court, nor any others that we have been able to find, 
 support so extravagant aMoctrine. There were other and suiBcient grounds for 
 the decision, and it is evident, from an examination of the opinion, that the court 
 were penetrated, if not influenced, by a confident belief that the insured set fire 
 to his own property. And the early cases in the Supreme Court of the United 
 States (Columbian Ins. Co. v. Lawrence, 2 Peters, 25; s. c. 10 id. 507; and 
 Carpenter u. Prov. Wash. Ins. Co., 16 id. 495), opposed to the doctrine stated 
 in the text, have not received the approbation of the State courts. Franklin 
 Fire Ins. Co. v. Coates, 14 Md. 285. And see § 285. 
 
 1 [Daoey v. Agricultural Ins. Co., 21 Hun, 83, 87.] 
 
 ^ [Pavey v. American Ins. Co., 56 Wis. 221.] 
 
 8 [Williams v. Buffalo German Ins, Co., 17 Fed. Kep. 63 ; 12 Ins. L. J. 374.] 
 588 
 
CH. XIII.] TITLE AND INCUMBRANCE. [§ 285 
 
 §285. Title; Ownership; Interest. — The insured is not 
 bound to state the nature or particulars of his title, unless 
 they are inquired about, or required to be disclosed by the 
 provisions of the policy.^ (a) A statement that he is the 
 owner, that being an indefinite term, or that the property is 
 his, if in fact^ it be his in some substantial sense, is suffi- 
 cient; as where the property insured stands upon the land 
 of another, the buildings belonging to the assured ; ^ or has 
 
 1 [Trade Ins. Co. v. Barracliff, 45 N. J. 543 ; Guest v. Fire Insurance Co., 66 
 Mich. 98 ; Castner v. Farmers' Mut. Fire Ins. Co., 46 Mich. 15, 18. Under a 
 general policy on goods the assured is not required to state the particular inter- 
 est or proportion of interest which he intends to have insured. He may recover 
 according to his interest. Whether it be a distinct or an undivided share can- 
 not he material. Lawrence v. Van Home, 1 Caines, 276, 284. The nature of 
 the interest of the assured need not be specified in the policy except in cases of 
 re-assm-ance, and insurance by the holder of a bottomry or respondentia bond, 
 and insurance on freight, profits, and commissions ; and even these cases will 
 not be exceptions if they may be regarded as the subject-matter of insurance, 
 rather than the interest of the party in the subject-matter. White v. Hudson 
 River Ins. Co., 7 How. Pr. 341, 348.] 
 
 2 [It is enough if the title is actually good, though apparently defective on 
 the records. Lockwood v. Middlesex Mut. Ass. Co., 47 Conn. 653.] 
 
 ■< Curry u. Commonwealth Ins. Co., 10 Pick. (Mass.) 535; Fletcher v. Com- 
 monwealth Ins. Co., 18 id. 419 ; Morrison v. Tenu. Mar. & Fire Ins. Co., 18 Mo. 
 262 ; Sussex County Mut. Ins. Co. v. Woodruff, 2 Dutch. (N. J.) 541 ; Hopkins 
 V. Provincial Ins. Co., 18 U. C. (C. P.) 74 ; Sinclair v. Canadian, &c. Ins. Co., 40 
 U. C. (Q. B.) 206, 211. [Where the owner of property on which there was in- 
 surance, sold the land, retaining the buildings, and took out new insurance on 
 
 (a) In general, when there is no in an application for a fire policy are 
 
 fraudulent intent, the assured's neglect usually treated as warranties. Stevens 
 
 to disclose and define incumbrances or v. Queen lus. Co., 81 Wis. 335 ; West- 
 
 his interest, beyond what he is asked Chester F. Ins. Co. v. Weaver, 70 Md. 
 
 about, in the property, does not invali- 536 ; Cerys r. State Ins. Co., 71 Minn, 
 
 date the policy. Hall v. Niagara F. 338 ; German-American Ins. Co. v. 
 
 Ins. Co., 93 Mich. 184 ; Cross v. Na- Hart, 43 Neb. 441 ; State Ins. Co. ^. 
 
 tional F. Ins. Co., 132 N. Y. 133 ; Gray, 44 Kansas, 731 ; Morris a. Im- 
 
 Dooly V. Hanover F. Ins. Co., 16 Wash, perial Ins. Co., 106 Ga. 461. 
 155 ; Seal v. Farmers' Ins. Co. (Neb.), As to the agent's consent to transfer 
 
 80 N. W. 807 ; £oshland v. Hartford of title, see St. Onge v. Westchester F. 
 
 F. Ins. Co., 31 Oregon, 402 ; Morotock Ins. Co., 80 Fed. Rep. 703 ; Graham v. 
 
 Ins. Co. V. Rodefer, 92 Va. 747; Hart American F. Ins. Co., 48 S. C. 195. 
 
 V. Niagara F. Ins. Co., 9 Wash. 620 ; If the agent knowingly writes in the 
 
 Knop V. National F. Ins. Co., 101 application false answers as to title 
 
 Mich. 359 ; German Ins. Inst'n u. Kline, when the truth is told, the insurer is 
 
 44 Neb. 395 ; Queen Ins. Co. v. Kline liable. Greed v. Sun Fire Office, 101 
 
 (Ky. ), 25 Ins. L. J. 236. But actual rep- Ala. 622., 
 resentations made as to incumbrances 
 
 589 
 
§ 285] INS'JEANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. XIII. 
 
 been seized on execution;^ or the insured is tenant for 
 years ;^ or there is an outstanding agreement to sell,^ or a 
 parol agreement to purchase, upon which a portion of the 
 purchase-money has been advanced;* or the insured is a 
 joint owner, in which case he may recover to the extent of 
 his interest,^ especially if his copartner be only interested in 
 the profits.^ The interest of the partner in such a case, who 
 in fact owns the stock of goods, is an absolute equitable in- 
 terest, and is protected by a pdlicy which is to be void if the 
 interest of the insured be not an absolute one.^ So where 
 the insured, in reply to a question, — the policy containing 
 no stipulation as to disclosure of title, — answei-ed that the 
 land on which the insured building stood was hers, when in 
 fact she had only a life-estate therein, but her husband's 
 will had made no disposition of the remainder, and the 
 heirs, during the twelve years which had passed since the 
 probate of the will, had made no claim to the property, it 
 
 them without saying anything about the change of title to the land, and being 
 asked no questions about the land title, it was held that there was no conceal- 
 ment. It was the carelessness of the company if it did not make specific inqui- 
 ries about such a matter. AVashington Mills Manuf. Co. v. Weymouth Ins. Co., 
 13.5 Mass. 505.] 
 
 1 Strong V. Manufacturers' Ins. Co., 10 Pick. (Mass.) 40. 
 
 2 Niblo V. North American Ins. Co., 1 Sand. (N. Y. Sup. Ct.) 551 ; Sauvey v. 
 Isolated Ins. Co., U. C. (Q. B.), 16 Can. L. J. 30 (1880). In Crockford v. Lon. & 
 Liverpool Fire Ins. Co., 5 Allen (N.B.), 152, it appeared that the plaintiff, the ten- 
 ant of a lessee, had an agreement with his landlord for an assignment of the lea^e, • 
 which, however, had, before the insurance was eflFected, been assigned to another 
 person. It was held that the plaintiff was at most a tenant from year to year, 
 and not an owner in such a sense as the policy contemplated. 
 
 8 Davis V. Quincy Mut. Fire Iris. Co., 10 Allen (Mass.), 113; Dohn v. Farm- 
 ers' Joint Stock Ins. Co., 5 Lans. (N. Y.) 275 ; Lorillard Fire Ins. Co. v. Mc- 
 CuUoch, 21 Ohio St. 176 ; Laidlaw v. Liverpool, &c. Ins. Co. (U. C), 13 Grant, 
 Ch. 377 ; Bon ham v. Iowa, &c. Ins. Co., 25 Iowa, 328. Where there is an out- 
 standing tax-title in litigation, quaere. Hurd v. St. Paul, &c. Ins. Co., 39 Mich. 
 443. 
 
 < Brogden v. Manufacturers', &c. Ins. Co., IT. C. (C. P.) 15 Can. L. J. 31 
 (1879). 
 
 ^ Hartford Prot. Ins. Co. v. Harmer, 2 Ohio St. 452. And see also Peck v. 
 New London Mut. Ins. Co., 22 Conn. 575. 
 
 * Irving V. Excelsior Fire Ins. Co., 1 Bosw. (N. Y. Superior Ct. ) 507. [A 
 part-owner may insure his individual interest without specifying that interest. 
 Turner v. Burrows, 5 Wend. 541, 546.] 
 
 ' Ibid. And see also Collins v. Charlestown Mut. Fire Ins. Co., 10 Gray 
 (Mass.), 155 ; Gould v. York County Mut. Ins. Co., 47 Me. 403. 
 
 590 
 
CH. XIII.J TITLE AND INCUMBEANCE. [§ 285 
 
 was held that the answer was substantially true.^ So if the 
 insured is in possession of a house under an executory con- 
 tract on which part payment has been made, or which can 
 be enforced in equity.^ So if the insured be in possession 
 in right of his wife, under a verbal agreement that upon cer- 
 tain conditions — part already executed — he shall have the 
 legal title. 3 And a conveyance by the owner to a fictitious 
 person, with a reconveyance in the name of the fictitious per- 
 son to the owner, leaves the title in the owner.* And he 
 may describe himself as owner who, as cestui que trust, can 
 enforce his title in equity.^ But a mere promise by a pur- 
 chaser, at a sale on execution, to reconvey on the payment 
 of the purchase-money, there being no promise on the part 
 of the execution debtor to pay, nor other consideration, will 
 not support a representation that the property is the appli- 
 cant's.^ If the insurer be the owner of an equity of re- 
 demption, it is likewise sufficient;^ (a) since an equity of 
 
 1 Allen V. Charlestown Mut. Fire Ins. Co., 5 Gray (Mass.), 384. 
 
 2 jEtua Ins. Co. w. Tyler, 16 Wend. (N. Y.) 385 ; s. 0. 12 Ind. 507 ; Franklin 
 Fire Ins. Co. v. Martin (N. J.) 8 Ins. L. J. 135 ; Ramsay v. Phoenix Ins. Co., C. 
 Ct. (N. Y.), 2 Fed. Rep. 429 ; Dohn v. Farmers' Ins. Co., 5 Lans. (N. Y.) 275. 
 
 8 Farmers' Ins. Co. v. Fogleman, 38 Mich. 481 ; Southern Ins. Co. u. Lewis, 
 42 Ga. 587. 
 
 4 David V. Williamsburgh, &o. Ins. Co. (N. Y.), 10 Ins. L. J. 150. 
 
 5 Newman v. Springfield Ins. Co., 17 Minn. 123. [An equitable interest is 
 enough to sustain a recital of ownership. Guest v. Fire Insurance Co., 66 Mich. 
 98. Such a statement is not a material misrepresentation. Dohn v. Farmers' 
 Joint Stock Ins. Co., 5 Lans. 275, 279. The equitable ownership is equivalent 
 to the fee, for the purposes of insurance, and where the equitable owner repre- 
 sents that the title was in her name, the company will not be allowed to defend 
 on that ground. Pennsylvania Fire Ins. Co. v. Dougherty, 102 Pa. St. 568. 
 When A. described the insured property as his, when in fact previous to the in- 
 surance he had conveyed it to B. by a warranty deed, B. giving a defeasance deed 
 in return, which latter had not been recorded, the policy was held good. Walsh 
 V. Philadelphia Fire Ass., 127 Mass. 383, 385. In the absence of express in- 
 quiry, the interest of the insured as equitable owner upon whom the whole loss 
 must fall, was sufficient.] 
 
 6 Mers V. Franklin Ins. Co., 68 Mo. 127. 
 
 ^ [A mortgagor on whose property the mortgage had been foreclosed, but the 
 period of redemption had not expired, took out insurance without any written 
 application, or any statement of the condition of his title, and it was held that in 
 the absence of fraud the insurance of the property as his own was valid. It 
 was otherwise with a policy issued after the redemption expired. Essex Savings 
 Bank v. Meriden Ins. Co., 57 Conn. 335.] 
 
 (o) See infra, § 449, new note. 
 
 591 
 
§ 286] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIII. 
 
 redemption is a right, and is a real interest in the land, 
 created and secured by the law, to which a lien will attach, 
 so that when the insured states the property in his posses- 
 sion to be his, he sufficiently states the true title, in the 
 absence of specific inquiries. ^ And though the vendor makes 
 out a bill of sale of personal property, and receives a note 
 secured by a mortgage in consideration for the sale, if there 
 be no delivery of the bill of sale, the property will not 
 thereby be devested out of the vendor, so that a warranty 
 that the property is his will be broken. ^ [Where the prop- 
 erty had been deeded to the insured and the deed left with a 
 third person to be delivered to the insured, but was not so 
 delivered till after the fire, it was held that she was the 
 owner. 3 A sheriff's sale afterward annulled will not affect 
 the title of the insured, nor his right to claim under a pol- 
 icy obtained by him as owner after such sale of his land and 
 before it was set aside.*] 
 
 § 286. Mortgagor of Personal Property. — And it is also 
 held that the mortgagor of chattels is the " sole and uncon- 
 ditional owner " of the mortgaged property. ^ 
 
 ^ Buffum «. Bowditoh Mut. Fire Ins. Co., 10 Cush. (Mass,) 540 ; Washington 
 Ins. Co. u. Kelley, 32 Md. 421 ; Kronk v. Birmingham Ins. Co. (Pa.), 9 Ins. L. J. 
 26. 
 
 2 Vogel V. People's Mut. Fire Ins. Co., 9 Gray (Mass.), 23. 
 
 * [Mattocks V. Des Moines Ins. Co., 74 Iowa, 233.] 
 
 « [Kearman r. Gould, 42 N. J. Eq. 4.] 
 
 6 Huhhard et al. v. Hartford Fire Ins. Co., 33 Iowa, 325. But Miller, J., in 
 his dissenting opinion in this case, takes a distinction between mortgages of 
 real and mortgages of personal property, hased upon the statute, which, as the 
 statutes of other States may have similar proyisions, it may he of importance to 
 note. " Without stopping to inquire," says the learned judge, " into the rights 
 of mortgagors at common law, it is sufficient to show that by our statute, in the 
 absence of stipulations to the contrary, the mortgagor of real property retains the 
 legal title and right of possession thereof, tut in the case of personal property, the 
 mortgagee holds that title and right. Here the statute confers the title and the 
 rights of possession on the mortgagee of chattels, the mortgagor having a naked 
 equity of redemption, a mere right to defeat the title of the mortgagee by a per- 
 formance of the condition of the mortgage, and on a failure to comply with those 
 conditions the mortgagee becomes the absolute owner. Bean «. Barney, Scott 
 & Co., 10 Iowa, 498. The mortgagor of personal property is so far from having 
 any owner.ship in the goods covered by the mortgage, that he has no interest 
 therein which can be levied npon and sold under execution ; unless by the terms 
 of the mortgage, he is entitled to, and in fact retains, the possession. Campbell v. 
 Leonard, 11 Iowa, 489 ; Rindskoff Bros. & Co. v. Lyman, 16 id. 260. In what 
 
 592 
 
CH. XIII.J TITLE AND INCUMBEANCE, [§ 287 
 
 § 287. True Title ; Entire, Unconditional, and Sole Owner- 
 ship. — If, however, the "true title " is called for, — and this 
 is generally the case in mutual insurance companies, as the 
 lien which they rely upon as security depends upon the title, 
 — a failure to set forth the title with substantial accuracy 
 will amount to a misrepresentation or a concealment, as the 
 case may be : ^ as where the insured describes the property 
 as his when he has only a bond for a deed ; ^ or is a stock- 
 holder in a corporation which owns the property ; ^ or is 
 only a tenant by the curtesy ; * or a lessee with or without 
 an agreement for purchase;^ or the assignee of a lessee with 
 right to purchase;^ or a mortgagee;' or has only an imper- 
 fect tax title ;^ or for the purpose of defrauding his creditors, 
 has conveyed away his estate, without consideration, to an- 
 other, who promises to reconvey upon request;^ or is the 
 owner of only one of seven parcels of the property insured, i" 
 One who holds as trustee under a will has not an "absolute 
 title. " 1^ In such case the policy will not cover even that the 
 
 sense, then, can it be said that the mortgagor of personal property is ' con- 
 sidered the owner ' ? None whatever ; much less can it be maintained that he is 
 the ' sole and unconditional owner.' ' 
 
 1 [If the policy does not require a statement of title, a misrepresentation will 
 not be fatal that does not diminish the risk or lower the premium, but if the pol- 
 icy require the true title, a failure to state the truth vitiates the contract. Ad- 
 ema v. Insurance Co., 36 La. An. 660.] 
 
 2 Smith V. Bowditch Mut. Ins. Co., 6 Gush. (Mass.), US ; Brown v. Williams, 
 28 Me. 252 ; Falls i;. Conway Mut. Fire Ins. Co., 7 Allen (Mass.) 46 ; Birming- 
 ham u. Empire Ins. Co., 42 Barb. (N. Y. ) 457. 
 
 3 Philips V. Knox County Mut. Ins. Co., 20 Ohio, 174 ; Abbott v. Shawmut 
 Mut. Fire Ins. Co., 3 Allen (Mass.), 213. [The insured is not sole owner of 
 goods belonging to a company of which he is a stockholder, and which are held 
 by him as security for advances to the corporation. McCormick v. Springfield 
 Fire & Mar. Ins. Co., 66 Cal. 361.] 
 
 * Leathers v. Insurance Co., 4 Fost. (U". H.) 259 ; Eminence Mut. Ins. Co. v. 
 Jesse, 1 Met. (Ky.) 623. 
 
 6 Shaw V. St Lawrence County Mut. Ins. Co., 11 U. C. (Q. B.) 73; Marshall 
 tf. Columbian Mut. Ins. Co., 7 Fo.st (N. H.) 157. 
 
 6 Walroth v. St. Lawrence County Mut Ins. Co., 10 U. C. (Q.B.) 525. 
 
 T Jenkins v. Quincy Mut. Fire Ins. Co., 7 Gray (Mass.), 370 ; Brown v. Gore 
 Dist. Mut. Ins. Co., 10 U. C. (Q. B.) 353. 
 
 8 Pinkham v. Morang, 40 Me. 587. 
 
 8 Treadway v. Hamilton Mut. Ins. Co., 29 Conn. 68. 
 
 w Day V. Charter Oak Fire & Mar. Ins. Co., 51 Me. 91. 
 
 11 Murphrey v. Old Dominion Ins. Co., C. Ct. (N. C.) 5 Ins. L.J. 297. 
 VOL. I. — 38 593 
 
§ 287] INSUEANOE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIII 
 
 title to which is truly represented.^ [The omission to state 
 the true title amounts to a warranty of such title as the 
 charter of the company requires. The extent of the as- 
 sured's interest is always considered by the insurers, and if 
 the estate be less than an unincumbered fee simple it should 
 be disclosed.^] If, however, the policy of a mutual insurance 
 company, whose charter gives a lien upon real estate, does 
 not call specifically for the true title, no description of the 
 title need be given. A general answer that the property be- 
 longs to the insured, or to that effect, is sufficient.^ And in 
 Clapp V. Union Mutual Insurance Company,* a judgment 
 creditor, to whom the insured property had been set off on 
 execution, subject to two mortgages to other parties, and to 
 the debtor's unexpired equity of redemption, was held not 
 to have misrepresented his title and interest in stating the 
 property to be his own. In like manner, in Chase v. Hamil- 
 ton Mutual Insurance Company,^ the insured, who had been 
 in possession of the land several years under an executory 
 agreement for the purchase thereof, and had erected thereon 
 the building insured, and before the application for insur- 
 ance had paid all the purchase-money, though he had not 
 then taken the legal title, was held to have stated his "true 
 title and interest," in representing the house and land to be 
 his. So where the purchase was at a sale under foreclosure 
 of a mortgage, and the property was destroyed before the 
 deed was passed, it was held that when the deed was passed 
 it took effect as of the day of the sale, and that the insured 
 then had the legal title, subject to an equity of redemption, 
 and truly answered that they were the owners.^ [A pur- 
 
 1 Wilbur V. Bowditch Mut. Fire Ins. Co., 10 Cnsh. (Mass.) 446. 
 
 2 [Illinois Mut. Ins. Co. v. Marseilles Manuf. Co., 6 111. 236, 267-268.] 
 
 8 Allen V. Mut. Fire Ins. Co., 2 Md. 111. In this case the title was in point 
 of fact such as to give a lien. Allen v. Charlestowu Mut. Fire Ins. Co., 5 Gray 
 (Mass.), 384. In this case the title was a life-estate under a -will, subject to con- 
 tingent possible reduction to an estate in dower. Sussex County Mut. Ins. Co. 
 V. Woodruflf, 2 Dutch. (N. J.) 541. Contra, Mutual Ass. Co. v. Mahon, 5 Call 
 (Va.), 517 ; Mutual Ins. Co. v. Deale, 18 Md. 26. 
 
 « 7Fost. (N. H.) 143. 
 
 " 22 Barb. (N. Y.) 527. 
 
 8 Gaylord v. Lamar Fire Ins. Co., 40 Mo. 13. 
 
 594 
 
CH. XIII.] TITLE AND INOUMBKANCE. [§ 287 
 
 chaser at a sheriff's sale before acknowledgment of the deed, 
 applied for insurance, stating that he owned the premises, 
 and it was held no such misstatement as to avoid the pol- 
 icy, i] An answer to a question as to incumbrances, stating 
 that the applicaiit, a mortgagee in possession, was first mort- 
 gagee, taken together with the fact that the application was 
 for insurance on "dwelling-house," not stated to be the 
 applicant's, is a sufficient statement of the "true title" of 
 the insured. 2 And a description of the insured as mort- 
 gagees is a sufficient statement of the interest of the insured, 
 under a provision that if the interest of the insured be " any 
 other than the entire, unconditional, and sole ownership of 
 the property for the use and benefit of the insured," it must be 
 so expressed in the written part of the policy, and is a true 
 statement of their interest as "mortgagee or otherwise."^ 
 So a vendee in possession after part payment, there being no 
 outstanding lien or incumbrance, though he has not received 
 his deed, has such an ownership.* So where two agree to 
 carry on a cotton plantation, one to furnish stock, money, 
 and supplies, the other to furnish the plantation and to 
 superintend the business; the former to be indemnified for 
 his advances out of the proceeds of the cotton, and the stock 
 and implements used to be equally divided at the end of the 
 year, it was held that, the cotton not being worth enough to 
 pay the advances, the partner who had made them was the 
 sole and unconditional owner of the cotton, but not of the 
 stock and implements.^ In some States, the mortgagor in 
 possession is the owner of the fee, and when his estate is in 
 fee-simple, and there is no joint tenancy, he has the sole, 
 entire, and unconditional ownership.^ And where the prop- 
 
 1 [Susquehanna Mut. Fire Ins. Co. i'. Staats, 102 Pa. St. 529.] 
 
 2 Wj'man v. People's Equity Ins. Co., 1 Allen (Mass.), 301. 
 8 "Williams v. Roger Williams Ins. Co., 107 Mass. 377. 
 
 * Bonham v. Iowa, &o. Ins. Co., 25 Iowa, 328 ; Insurance Co. v. Wilgus, 7 W. 
 N. C. (Pa.) 24; Hinman v. Hartford Fire Ins. Co., 36 Wis. 159 ; Eamsey v. 
 Phcenix Ins. Co., C. Ct. (N. Y.), 2 Fed. Rep. 429. 
 
 5 Noyes v. Hartford Fire Ins. Co., 54 N. Y. 668. 
 
 6 Dolliver v. St. Joseph, &c. Ins. Co., 128 Mass. 315 ; Clay, &c. Ins. Co. v. 
 Beck, 43 Md. 358 ; Washington Ins. Co. v. Kelly, 32 id. 421 ; Manhattan Ins. 
 Co. u. Barker, 7 Heisk. (Tenn.) 503 ; Insurance Co. v. Haven, 95 U. S. 242. As 
 to mortgagor of personal property, see post, § 286. 
 
 595 
 
§ 287] INSUEANCE : riKE, LIFE, ACCIDENT, ETC. [CH. XIII. 
 
 erty belonged to a corporation, but the record title was in 
 fact in the name of an individual corporator, who held for 
 the corporation, the latter was held to be "entire, unquali- 
 fied, and sole owner," within the meaning of the contract.^ 
 Such ownership is entirely consistent with outstanding liens 
 and incumbrances.^ When the policy required that if the 
 " interest " was other than the " entire, unconditional, and 
 sole ownership," it must be so expressed in the "written 
 part " of the policy, it was held that an outstanding mort- 
 gage ought to have been declared and inserted in the policy.^ 
 But a purchaser at sheriff's sale, no purchase-money having 
 been paid, and there being an outstanding right to claim the 
 premises, has not such an ownership;* nor a tenant in pos- 
 session under a partly executed agreement to purchase, there 
 being an outstanding tax-title ; ^ nor has the holder of a mere 
 legal title, while the equitable estate and interest and the 
 right to be immediately invested with the legal title are in 
 another.^ Where the use of real estate is contributed as a 
 partner's share of the capital, there being no deed, directly 
 or in trust, the firm cannot truly describe the property as 
 "theirs," nor have they an entire, unconditional, and sole 
 ownership.^ And a mortgage must be disclosed where the 
 "true title and interest" are required.^ [If the policy is to 
 
 1 American Basket Co. y. Farmville Ins. Co., C. Ct. (Va.), 8 Ins. L. J. 331. 
 See also Quarrier v. Insurance Co., 10 W. Va. 507. 
 
 2 Manliattan Fire Ins. Co. v. "Weill, 28 Grat. (7a.) 389. 
 
 8 McLeod V. Citizens' Ins. Co., 3 R. & C. (Nova Scotia) 156. 
 
 * Secnvity Ins. Co. i-.Bronger, 6 Bush (Ky.), 146. 
 
 6 Hinman v. Hartford Fire Ins. Co., 36 Wis. 159. 
 
 6 Clay Ins. Co. v. Huron, &c. Co., 31 Mich. 346; Farmers' &c. Ins. Co. v. 
 Curry, 13 Bush (Ky.), 312. 
 
 1 Citizens' Ins. Co. v. Doll, 35 Md. 89. 
 
 8 Bowditch ilut. Fire Ins. Co. v. Winslow, 3 Gray (Mass. ), 415 ; S. c. 8 id. 38. 
 The plaintiff had lived with his father for about thirty-seven years on land be- 
 longing to the town. A barn had been built on it, resting upon abutments of 
 loose stones, which the plaintiff, in October, 1867, insured with defendants. In 
 December, 1867, a patent issued to one F., and in June, 1869, S., claiming 
 through the patentee, recovered judgment m ejectment against the plaintiff and 
 his father, and placed a hab. fac. in the sheriffs hands. A few days after, and 
 before it had been executed, the barn was burned. Proceedings in chancery 
 were then pending by the plaintiff, contesting the claim of S. The policy re- 
 quired that the plaintiff in his account of the loss should show the true state of his 
 
 596 
 
CH. XIII.] TITLE AND INCUMBRANCE. [§ 287 B 
 
 be void when the interest of the insured as owner, trustee, 
 consignee, mortgagee, &c., is not truly stated, the failure to 
 disclose a mortgage is fatal. A mortgage may be very ma- 
 terial to the underwriter. The interest of the assured in 
 property mortgaged to many times its value is hardly equal 
 to that of an absolute owner, especially if the mortgagor has 
 nothing else with which to pay his debts. ^ J J. Miller and 
 Irving dissented on the ground that in the enumeration of 
 the policy, a mortgagee was mentioned as bound to disclose 
 the particular state of his interest, but not a mortgagor, and 
 that the insertion of one word and omission of the other was 
 strong evidence of an intent to exclude mortgagors from the 
 clause, except as they come under the word " owner. " When 
 one takes as his trade name "National Slipper Co." and in- 
 sures in that name hona fide, it is not a breach of the con- 
 dition to truly state the interest, and an action thereon can 
 be maintained. 2 The belief of the company that it was in- 
 suring a corporation is immaterial.] 
 
 [§ 287 A. A condition that if the insured is not the sole, 
 entire, and unconditional owner the policy shall be void is 
 reasonable and valid, ^ and violation of it will prevent recov- 
 ery.* And failure to disclose the real state of the title if 
 not sole, &c. will be fatal although the insured was not ques- 
 tioned as to that fact.®] 
 
 [§ 287 B. When the conditions require the applicant to 
 have the " entire, unconditional, and sole ownership " a pol- 
 
 title at the time of the fire ; and the plaintiff in such account stated that he was 
 ho'na fide owner, and that his title was by possession for thirty years by himself 
 and his father. Held, that the account did not gire a true statement of plain- 
 tilT's title ; that the barn was part of the freehold ; and that he could not recover. 
 Wilson, J., dissenting, on the grounds that the plaintiff, being in possession, and 
 prosecuting his claim in equity, had an insurable interest ; that as against an 
 adverse claimant he might treat the barn as a chattel which he could remove ; 
 and in this view his statement of title was correct. Sherboneau v. Beaver Mut. 
 Fire Ins. Ass., 30 U. C. (Q. B.) 472. 
 
 1 [Westchester Fire Ins. Co, v. Weaver, 70 Md. 536.] 
 
 2 [Clark V. German Mut. Fire Ins. Co., 7 Mo. App. 77, 82.] 
 
 3 [Barnard v. National Fire Ins. Co., 27 Mo. App. 26.] 
 
 * [Farmville Insurance, &c. Co. i^. Butler, 55 Md. 233.] 
 6 [Waller v. Northern Ass. Co., 2 McCrary, 637, 641 ; Reithmueller v. Fire 
 Assurance, 20 Mo. App. 246.] 
 
 597 
 
§ 287 B] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. XIII. 
 
 icy issued to one who described the property as "his frame 
 dwelling-house," when his only title was under a quitclaim 
 deed from a second m,ortgagee, avoids the policy under the 
 sole ownership clause.^ If the policy issued to the insured 
 describes the policy as Ai's, this implies sole and uncondi- 
 tional ownership, and if he had only a leasehold in the real 
 estate, and a contract for purchase of the personalty, never 
 
 having paid the price, the policy is avoided. ^ (a) A surviv- 
 
 • 
 
 1 [Southwiek v. Atlantic Fiiv, & Mar. Ins. Co., 133 Mass. 457.] 
 ^ [Brown v. Commercial Fire Ins. Co., 86 Ala. 189.] 
 
 (a) Misrepresentations as to the in- 
 sured's ownership are fatal only when 
 fraudulent or material to the risk. 
 Kenton Ins. Co. v. Wigginton, 89 Ky. 
 330 ; "Western & Atlantic Pipe Liner v. 
 Home Ins. Co., 145 Penn. St. 346. 
 Where by an accident policy the benefi- 
 ciary was warranted to be the assured's 
 wife, when in fact she was his mistress, 
 there was held to be a misrepresentation 
 which forfeited the policy. Travelers' 
 Ins. Co. V. Larapkin, 5 Col. App. 177. 
 But where the as.sured in good faith 
 had his life policy made payable to his 
 wife Mary, whom he had married, and 
 with whom he was liifing, she was held 
 entitled to its proceeds, though the 
 marriage was void because he was not 
 divorced from his former wife, who was 
 still living. Overbeck v. Overbeck, 
 155 Penn. St. 5. 
 
 An assured who represents himself as 
 "owner" of realty is, when not pressed 
 for accurate information, required only 
 to show an insurable interest. Man- 
 chester F. Ass. Co. V. Abrams, 89 Fed. 
 Eep. 932 ; Phcenix Ins. Co. v. Wilson 
 (Ind.), 20 Ins. L. J. 73 ; Phoenix Ins. 
 Co. V. Munger Mauuf Co., 92 Texas, 
 277 ; Sisk v. Citizens' Ins. Co., 16 Ind. 
 App. 565; Home Ins. Co. v. Mendenhall, 
 168 111. 458 ; Foley v. Manufacturers' 
 F. Ins. Co., 152 N. Y. 131. If, in his 
 application he answers merely "deed" 
 to the question as to his title, this does 
 not warrant absolute ownership in fee, 
 as his deed may be any kind of a deed. 
 Clawson u. Citizens" Mut. F. Ins. Co., 
 
 598 
 
 (Mich.) 80 N. W. 573. See Lindner v. 
 St. Paul F. & M. Ins. Co., 93 Wis. 526 ; 
 East Texas F. Ins. Co. v. Crawford 
 (Texas), 21 Ins. L. J. 39. 
 
 " Sole and unconditional ownership " 
 is satisfied, as a requirement of the 
 policy, when the insured is the actual 
 and substantial owner, though his title 
 is subject to restrictions, or his power 
 of alienation is limited : Yost v. MoKee, 
 179 Penn. St. 381 ; but not by a part 
 ownership. Liverpool, &c. Ins. Co. i;. 
 Cochran (Miss.), 29 Ins. L. J. 374. A 
 condition requiring for the future "en- 
 tire, unconditional, unencumbered, and 
 sole ownership" has been held not to 
 be violated by a written contract to 
 convey. Arkansas F. Ins. Co. v. Wil- 
 sou (Ark.), 65 S. W. 933 ; see 14 Harv. 
 L. Eev. 157. It is not "sole owner- 
 ship " to possess a half interest in the 
 insured propert)' and a contract for the 
 purchase of the other half; Liverpool, 
 &c., Ins. Co. V. Cochran (Miss.), 26 So. 
 932. See Clapp v. Farmers' Mut. F. 
 Ins. Ass'n (N. C), 29 Ins. L. J. 468 ; or 
 to be interested in realty which, when 
 the application for insurance was made, 
 has been sold under the foreclosure of 
 a mortgage, the period for redeeming 
 which has expired. Planters' Mut. Ins. 
 Co. V. Lloyd (Ark.), 56 S. W. 44. 
 
 Policies conditioned on "sole and 
 unconditional ownership " have been 
 held valid : — where the insured, though 
 equitably owner, and entitled by bond 
 to the benefits of the property, has not 
 paid all the purchase money, nor ob- 
 
CH. XIII.J TITLE AND INCUMBRANCE. [§ 287 B 
 
 ing partner is not the sole and unconditional owner of the 
 
 tained a deed, but has fully performed 
 his part up to date, and holds the laud 
 under a contract providing that failure 
 to make payments when due should 
 work a forfeiture of all rights there- 
 under ; he can insure for the payments 
 made : see Manchester F. lus. Co. v, 
 Abrams, 89 Fed. Eep. 932, 934 ; Prin- 
 gle o. Des Moines Ins. Co., 107 Iowa, 
 742 ; Baker v. State Ins. Co., 31 Ore- 
 gon, 41 ; Davis u. Phoenix Ins. Co., Ill 
 Cal. 409 ; Grable v. German Ins. Co., 
 32 Neb. 645 ; Loventhal v. Home Ins. 
 Co., 112 All. 108; Home Ins. Co. v. 
 Bethel, 142 lU. 537 - where a husband 
 insured, as his own, furniture belong- 
 ing to his wife before their marriage, 
 the law of their residence giving to him 
 the " sole management and control of 
 his wife's separate property " : Georgia 
 Home Ins. Co. v. Brady (Tex. Civ. 
 App.), 41 S. W. 513 ; where the in- 
 sured was in possession under a verbal 
 contract to convey, and had made im- 
 provements, although the policy called 
 both for sole ownership and title in 
 fee-simple ; Queen Ins. Co. v. May (Tex. 
 Civ. App.), 35 S. W. 829 ; see Liberty 
 Ins. Co. V. Bonlden, 96 Ala. 508 ; (Con- 
 tra, as to the vendor in such case : Ham- 
 iltou V. Dwelling-House Ins. Co., 98 
 Mich. 535) ; where the gi-antor's wife 
 did not join in his deed to the insured : 
 Ohio Fanners' Ins. Co. o. Bevis, 18 Ind. 
 App. 17 ; where the plaintiffs advanced 
 money to a partnership to purchase 
 grain, and held warehouse receipts of 
 the Una for their advances, the insur- 
 ance having been obtained upon the 
 grain as the property of one member of 
 the iirm, with the loss payable to the 
 plaintiffs : Traders' Ins. Co. v. Pacaud, 
 150 111. 245 ; see also Manchester F. 
 As. Co. t-. Abrams, 89 Fed. Rep. 932 ; 
 Westchester F. Ins. Co. v. Wagner (Tex. 
 Civ. App.), 26 Ins. L. J. 261 ; Morotook 
 Ins. Co. V. Cheek, 93 Va. 8 ; Traders' 
 Ins. Co. V. Pacaud, 150 111. 245 ; Pelzer 
 Manuf. Co. V. Sun Fire Office (S. C), 21 
 Ins. L. J. 952 : where a deed was held 
 
 in escrow, running to the insured who 
 was in posses.sion, and deliverable on 
 performance of a condition : Davis v. 
 Pioneer Furniture Co., 102 Wis. 394 ; 
 where the two persons insured were 
 sole owners of the stock of a corporation 
 which had title to the insured proi)erty : 
 North British & Mercantile Ins. Co. v. 
 Bohn, 49 Neb. 572 ; Syndicate Ins. Co. 
 V. Bohn, 65 Fed. Rep. 165 ; where the 
 insured had the entire beneficial interest, 
 but the naked legal title was in his 
 wife : McCoy a. Iowa State Ins. Co., 
 107 Iowa, 80 ; where the husband in- 
 sured as sole owner, but his wife had an 
 equal interest ; Miotke v. Milwaukee 
 Mechanics' Ins. Co., 113 Mich. 166 ; 
 Phenix Ins. Co. v. Angel (Ky.), 26 
 Ins. L. J. 722 ; Schroedel v. Humboldt 
 F. Ins. Co. (Tenn.), 23 Id. 240 ; Diffen- 
 baugh V. Union F. Ins. Co., 150 Penn. 
 St. 270; Glaze v. Three Rivers Far- 
 mers' Mut. F. Ins. Co., 87 Mich. 349 ; 
 Pelican Ins. Co. v. Smith, 92 Ala. 
 428 ; German Ins. Co. v. Hyman, 34 
 Neb. 704 ; Trott v. Woolwich Mut. F. 
 Ins. Co., 83 Maine, 362; see Graves v. 
 Merchants' Ins. Co., 82 Iowa, 637 ; 
 Webster v. Dwelling-House Ins. Co., 
 53 Ohio St. 558 : where by mistake 
 the insured's building was erected chiefly 
 on his own land, but also partly on the 
 street and partly on adjacent land : 
 Haider v. St. Paul F. & M. Ins. Co., 
 67 Minn. 614 ; where the insured, be- 
 ing owner, uses another's name in his 
 business : Phoenix Ins. Co. v. McKer- 
 nan (Ky.), 27 Ins. L. J. 870 ; or the 
 policy is issued to a partnership having 
 but one member, and this is known to 
 the insurer's agent. In re Pelican Ins. 
 Co., 47 La. Ann. 935. See McFetridge 
 V. Phenix Ins. Co., 84 Wis. 200. 
 
 On the other hand, a contract of sale 
 which passes the equitable title and 
 beneficial interest violates a policy pro- 
 vision against change of title or posses- 
 sion. Cottingham v. Fireman's Fund 
 Ins. Co., 90 Ky. 439. Where the title 
 under a contract was in the vendor, 
 
 599 
 
§ 287 C] INSTJEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIIL 
 
 firm goods. ^ Warranting that he has the sole ownership 
 when he really has only a life estate is fatal to the insured.^] 
 [§ 287 C. The "entire ownership " clause does not neces- 
 sitate statement of a mortgage. If the company desired in- 
 formation as to mortgages they should have used language 
 to which no doubt could attach. ** A mortgage for the pur- 
 chase-money or a lien for it by contract, or by the retention 
 of the title by the vendor as security, does not affect the 
 risk nor prevent the insured from being the entire and sole 
 owner. The equitable owner is the entire and sole owner.* 
 And an absolute deed intended as a mortgage does not falsify 
 the claim of sole ownership.^ Entire ownership for insur- 
 ance is not prevented by a lien, or a conditional sale, the 
 vendor remaining in possession.^ A warranty of sole owner- 
 ship is not broken by proof of the pendency of an action not 
 intended to question the ownership but only to establish a 
 lien.'' An agreement by the insured with W. that the said 
 
 1 [Crescent Ins. Co. . Camp, 64 Tex. 521 ; Insurance Co. i. Camp, 71 Tex. 
 503.] 
 
 2 [Gavver v. Hawkeye Ins. Co., 69 Iowa, 202.] 
 
 s [Clay Fire & Mar. Stock Ins. Co. v. Beck, 43 Md. 858, 359 ; Ellis ,.. In- 
 surance Co., 32 Fed. Rep. 646 (Iowa), 1887 ; Friezen v. AUeniania Fire Ins. Co., 
 30 Fed. Rep. 352 (Wis.) 1887.] 
 
 * [Insurance Co. Crockett, 7 Lea (Tenn ), 725, 729 ; Millville Mut. Fire 
 Ins. Co. V. Wilgus, 88 Pa. St. 107, 110.] 
 
 5 [Dfi Armand v. Home Ins. Co., 28 Fed. Rep. 603 (Mich.) 1886.] 
 
 ^ [Carrigan v. Insurance Co., 53 Vt. 418.] 
 
 ' [Lang i>. Hawkeye Ins. Co., 74 Iowa, 673.] 
 
 and the yendee was in possession, the Ga. 791 ; Manchester F. Ass. Co. v. 
 latter's assignee of that contract, who Feibelman, 118 Ala. 308 ; Cooper v. 
 holds his assignment merely as a pledge Penn. State Ins. Co., 96 Wis. 362 ; 
 to secure him for moneys advanced, Cushman v. New England F. Ins. Co., 
 though having an insurable interest, is 65 Vt. 569 ; Phila. Fire Ass'n v. Flour- 
 not the unconditional and sole owner of noy, 84 Texas, 632 ; Hall v. Niagara F. 
 the contract, and his policy as such Ins. Co., 93 Mich. 184 ; Met'n L. Ins. 
 owner is void, especially ifhis interest is Co. v. Anderson, 79 Md. 375. See fur- 
 less than the insurance. Gettelman v. ther on this clause, Carey v. Liverpool, 
 Commercial Union Ass. Co., 97 Wis. 237. cSbc. Ins. Co., 92 Wis. 538 ; Sun Ins. 
 So an assignment for creditors, as au- Co. v. Greenville B. & L. Ass'n, 58 
 thorized by a State statute, avoids the N. J. L. 367 ; Ins. Co. of North Ameri- 
 policy. Orr v. Hanover F. Ins. Co., ca v. Johnson, 70 Fed. Rep. 794 ; Kells 
 158 111.149. Other decisions in which v. Northwestern Live-stock Ins. Co., 
 the above clause was held not applicable 64 Minn. 390. 
 are, Williamson v. Orient Ins. Co., 100 
 
 600 
 
CH. XIII.] TITLE AND INCUMBRANCE. [§ 287 C 
 
 W. shall have a share in the profits of the goods insured in 
 consideration of certain services, does not prevent the in- 
 sured from having the "entire, unconditional, and sole 
 ownership" of the goods for his own "use and benefit."^ 
 Where the insured had a brother who was claimed to be 
 only an employee, although he shared in the profits and 
 losses, and the business was in the name of plaintiff "and 
 brother," and the proofs represented the property as partner- 
 ship goods, the evidence was given to the jury on the ques- 
 tion of no partnership and consequent sole interest.^ One 
 who is the sole beneficial owner of property is the sole and 
 absolute owner in respect to insurance, so that the policy 
 will not be void by his failure to state the equitable charac- 
 ter of his title. 3 The equitable owner in fee is the sole and 
 unconditional owner in respect to insurance.* As where the 
 naked legal title is in A. but the whole beneficial interest 
 and the possession are in B., B. has the entire, uncondi- 
 tional, and sole ownership.^ One who has the exclusive use 
 and enjoyment of property without any assertion of an ad- 
 verse claim by any other person, may insure as sole and 
 unconditional owner. ^ One in possession under a valid con- 
 tract of purchase is the sole, &c. owner. ^ And an assign- 
 ment of a contract of purchase of land to secure a debt and 
 future advances does not divest the assignor of the "entire, 
 unconditional, and sole ownership " required to recover on 
 the policy.^ But mere verbal promises without consideration 
 that the plaintiff should be allowed to buy such interests in 
 
 1 [Boutelle v. "Westchester Fire Ins. Co., 51 Vt. 4.] 
 
 2 [Pittsburgh Ins. Co. v. Frazee, 107 Pa. St. 521 .] 
 
 3 [Lebanon Mut. Ins. Co. v. Erb, 112 Pa. St. 149.] 
 
 4 [Imperial Fire Ins. Co. v. Dunham, 117 Pa. St. 460, 475 ; Elliott w. Ashland 
 Mut. Fire Ins. Co., 117 Pa. St. 548.] 
 
 5 [Martin v. State Ins. Co., 44 N. J. 485 ; Watertown Fire Ins. Co. v. Simons, 
 96 Pa. St. 520, 522, 527.] 
 
 6 [Miller v. Alliance Ins. Co., 7 Fed. Rep. 649, 2ndCir. N. Y. 1881, 19 Blatch. 
 308, 12 Rep. 4.] 
 
 ' [Lewis V. N. E. Fire Ins. Co., 29 Fed. Rep. 496 ; 24 Blatch. 181 (Vt.), 1886 ; 
 Dupreau v. Insurance Co., 76 Mich. 615 (vendee legally in possession under part 
 paid contract); Johannes w. Standard Fire Office, 70 Wis. 196 (vendee "not ia 
 default.")] 
 
 8 [Chandler v. Commerce Fire Ins. Co., 88 Pa. St. 223, 227.] 
 
 601 
 
§ 288] INSUEANCE : EIRE, LIFE, ACCIDENT, ETC. [CH. XHI. 
 
 the property as were not already his (promises made by the 
 holders of such interests), will not prevent the policy from 
 being void under the clause requiring the entire interest to 
 be in the assured.^ When the property is described as be- 
 longing to the insured or "held in trust by him " the printed 
 condition about sole ownership does not apply. ^ When the 
 assured represented himself to be the owner of the insured 
 property, but in answer to the question as to incumbrances, 
 said " Held by contract, " the latter answer precluded a war- 
 ranty of absolute ownership.^] 
 
 § 288. Title ; Absolute Interest ; Leasehold Interest. — When 
 the policy provides that if the interest to be insured be a 
 leasehold interest, or any interest not absolute, it must be 
 so represented, upon penalty of forfeiture, reference is made 
 to the character, not the quantity, of the interest. An abso- 
 lute interest is equivalent to vested interest, or an interest 
 so completely vested that the party owning it cannot be de- 
 prived of it without his consent. Interest and title are not 
 synonymous. Thus, where the insured had entered into 
 possession, and made valuable Improvements, under a parol 
 contract of purchase at an agreed price, part of which had 
 been paid, and his interest was such that the loss would fall 
 upon him if the property should be destroyed, it was held 
 that a statement by the insured that the property was his, 
 was true, and his interest was an absolute one.* So the pur- 
 chaser of personal property who leaves it with an auctioneer 
 to sell, with instructions to pay a portion of the proceeds to 
 the owner, and to hold the goods generally as security for 
 any advances by the auctioneer, has an "absolute interest."^ 
 And where the insured owned the building insured, — a 
 four-story brick building, — and had a lease of the land 
 
 1 [Miller v. Amazon Ins. Co., 46 Mich. 463.] 
 
 2 [Grandin v. In.surance Co., 107 Pa. St. 26.] 
 
 8 [MoCulloch V. Norwood, .58 N. Y. 562, 572.] 
 
 * [Hough V. City Fire Ins. Co., 29 Conn. 10. And see also Irving v. Excelsior 
 Fire Ins. Co., 1 Bosw. (N. Y. Superior Ct.) 507 ; ante, § 285. But see this sec- 
 tion further on, A mere intruder in possession may have such title as possession 
 gives, and that may be absolute, but he has not an "absolute interest." Porter 
 V. jEtna Ins. Co., C. Ct. (Mich.), 6 Ins. L. J. 928. 
 
 6 Franklin Fire Ins. Co. v. Vaughan, 92 U. S. 516. 
 602 
 
CH. XIII. ] TITLE AND INCUMBRANCE. [§ 288 
 
 upon which it stood, stipulating that a two-story brick build- 
 ing should be left upon the land at the expiration of the 
 term, the interest was held to be properly stated as his own, 
 and was not a leasehold interest. ^ So where the policy was 
 to be void if the interest in the property insured was a lease- 
 hold, or other interest not absolute, and the insured owned 
 the buildings, but had only a lease for years of the land 
 upon which they stood, with the right to remove the build- 
 ings at the end of the term, it was held that the insured 
 might recover. 2 But where the insured was in possession 
 only under an agreement to purchase, having paid but a part 
 of the purchase-money, the policy was heM to be void, the 
 insured not having an absolute estate.^ So an interest under 
 a statutory mechanic's lien, not yet confirmed by a decree of 
 court, upon a building standing upon leased land, is covered 
 by a policy which is by its terms to be void if the interest of 
 the insured be a leasehold or other interest not absolute.^ (a) 
 But a building standing on leased land, and not described as 
 such, will not be protected by a policy expressly excluding 
 such property from its protection, unless specifically so de- 
 scribed and insured as such.^ Where lessees of land for a 
 term of years erected thereon a building which was to be- 
 come the lessor's at the expiration of the term, and insured 
 the property, describing it as "their . . . building," "situ- 
 ated on leased land," their intei'est was held to be "truly 
 stated " in the policy.^ [Violation of a condition in the pol- 
 
 1 David V. Hartford Fire Ins. Co., 13 Iowa, 69. 
 
 2 Hope Ins. Co. v. Brolaskey, 35 Pa. St. 282. 
 
 8 Reynolds v. State Mut. Ins. Co., 2 Grant (Pa.), 326 ; Mers v. Franklin Ins. 
 Co., 68 Mo. 127. 
 
 * Longhurst v. Conway Fire Ins. Co., U. S. Dist. Ct. Iowa, 1861, cited in 
 Digest of Fire Insurance Decisions, 2d ed., by Clarke, p. 584. 
 
 5 Kibbe i: Hamilton Mut. Ins. Co., 11 Gray (Mass.), 163. 
 
 6 Fowle i". Springfield, &c. Ins. Co., 122 Mass. 191. 
 
 {a) A mechanic's lien is an "incum- 225. A sale under such lien does not 
 
 brance " within the meaning of a fire increase the risk when the period for 
 
 policy, and a suit thereon works a for- redemption has not expired. Greenlee 
 
 feiture under a condition against pro- v. North British and Mercantile Ins. 
 
 ceedings affecting the title. Smith o. Co., 102 Iowa, 427. 
 St. Paul F. & M. Ins. Co., 106 Iowa, 
 
 603 
 
§ 289] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIII. 
 
 icy that if the building is on leased ground it must be so 
 expressed, will be fatal although no question was asked in 
 the application in respect to the matter.^ And land held 
 under a lease to A. and his heirs and assigns forever, re- 
 serving a perpetual rent to the grantor, is a leasehold. ^J 
 
 § 289. Fee-Simple ; Good and Perfect unincumbered Title ^ 
 Absolute and unconditional Fee-Simple. — An equitable fee- 
 simple is a title in fee-simple, though the legal title do not 
 pass. Thus, a purchaser in possession, but under a defec- 
 tively executed deed, has an equitable title in fee-simple. 
 A "less estate" than a fee-simple means an estate of Jess 
 duration than a fee-simple.^ "A good and perfect unincum- 
 bered title" implies a title good both at law and in equity; 
 and an outstanding mortgage undischarged of record, though 
 in fact paid, is a breach of a condition that the property in- 
 sured has such a title. An insurance company which relies 
 upon its lien might find difficulty in enforcing its lien 
 against such an outstanding mortgage. The proof of pay- 
 ment might not be obtainable, and it is not unreasonable to 
 suppose that a perfect title is required expressly to avoid 
 such difficulties.* An "absolute and unconditional fee- 
 simple " does not exist when the title is by verbal gift, 
 though the donee ma,y have been long in possession and may 
 have made valuable improvements, and though the gift be 
 with a promise of a deed which was in fact executed and 
 delivered before the loss.^ Nor can a husband truly state 
 that real estate belonging to his wife is his, when the char- 
 ter of the company requires that the assured must have a 
 fee-simple estate, or if less than that, the true interest must 
 be stated or the policy will be void.^ A mortgagee, in fact, 
 however, who holds by an absolute deed, may describe his 
 
 1 [Eoss V. Citizens' Ins. Co., 19 N. B. E. 126.] 
 
 2 [Dowd V. Amer. Fire lus. Co., 41 Hun, 139.] 
 
 8 Swift V. Vermont Mut. Fire Ins. Co., 18 Vt. 305. 
 
 ' Warner v. Middlesex Mut. Ass. Co., 21 Conn. 444. But see post, § 292. 
 
 6 Wineland v. Security Ins. Co. (Md.) 9 Ins. L. J. 551. 
 
 ^ Eminence Mut. Ins. Co. «. Jesse, 1 Met. (Ky. ) 563. In this case the ques- 
 tion was, " Have you a clear title to the property which you wish to be insured ? " 
 to which the answer was, " It was the house of J. P. Foree, whose title was as 
 good as any man's in the country, and who was the father of my wife." 
 
 604 
 
CH. XIII.] TITLE AND INCUMBRANCE. [§ 290 
 
 title as a fee-simple.^ [An insured having only a life estate, 
 and not so stating, the policy is void.^ If the policy is to be 
 void provided the insured is not the owner in fee-simple of 
 the land under the buildings insured, unless the fact be ex- 
 pressed in the policy, a verdict for the insured in a case 
 where it was shown that he was only owner in fee of an 
 undivided portion of the land, and no waiver was proved, 
 should be set aside. ^ But a warranty that the insured has 
 the fee-simple is not broken if he is in condition to enforce 
 specific performance of a bond to convey to himself.* When 
 several persons interested in the same property are insured 
 in respect to it, the provision that any interest other than 
 a fee-simple must be stated, applies to their united interest, 
 and unless that is less than a fee-simple the provision is in- 
 operative.^ A warranty of ownership in fee-simple is not 
 broken where the insured is in a condition to enforce specific 
 performance of a bond to convey.^] 
 
 § 290. Incumbrance. — The general object of the inquiry 
 as to incumbrance is to ascertain the amount of the interest 
 of the insured in the property as affecting the judgment of 
 the insurers upon the value of the risk, by taking into con- 
 sideration the motive which the insured may have in the 
 preservation of the property. Mutual insurance companies 
 are also interested to know the amount of the incumbrance 
 with reference to the value of any lien which they may-have 
 for the security of the payment of assessments. Statements 
 as to incumbrance are material, and have regard to the risk.^ 
 If no inquiry be made, nothing but good faith is necessary, 
 touching the title or interest. ** Where the fact of incum- 
 
 1 White V. Agr. Mut. Ins. Co., 22 0. C. (C. P.) 98. 
 
 2 [Davis V. Iowa State Ins. Co., 67 Iowa, 494.] 
 
 3 [Scottish Union, &c. Ins. Go. v. Petty, 21 Fla. 399.] 
 * [East Tex. Fire Ins. Co. b. Dyches, 56 Tex. 565.] 
 
 6 [Eankin v. Andes Ins. Co., 47 Vt. 144, 146.] 
 
 8 [East Tex. Fire Ins. Co. v. Dyches, 56 Tex. 565.] 
 
 ' Friesmuth v. Agawam Mut. Ins. Co., 10 Cush. (Mass.) 588 ; Patten v. 
 Merchants' & Farmers' Ins. Co., 38 N. H. 338 ; Richardson o. Maine Ins. Co., 46 
 Me., 394 ; Gahagan v. Union Mut. Ins. Co., 43 N. H. 176 ; Schumitsch v. Amer- 
 ican Ins. Co., 48 Wis. 26 ; Byers v. Farmers' Ins. Co., 35 Ohio St. 606. 
 
 » West Rockingham, &c. Ins. Co. v. Sheets, 26 Grat. (Va.) 854 ; Morrison v, 
 Tennessee, &c. Ins. Co., 18 Mo. 262. 
 
 605 
 
§ 291] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIII. 
 
 brance is required to be stated by special conditions or by 
 specific inquiry, a general statement of the fact, without giv- 
 ing the particulars of the amount, is sufficient, even though 
 the amount be called for, if a policy be issued upon the in- 
 complete and general answer. The acceptance of the risk 
 and issue of the policy on the general answer will be deemed 
 a waiver on the part of the insured of further particulars.^ 
 But if the insured undertake to state the number of mort- 
 gages, and does not state thera truly, his policy will be void.^ 
 And a substantially untrue statement of the amount, with 
 the accrued interest, will also avoid the policy.^ And that, 
 too, without reference to the fact that the company is a for- 
 eign one, and has no hen in the State where the insurance 
 is made.* 
 
 § 291. Incumbrance, what is. — A mortgage, of course, is 
 an incumbrance,^ though without consideration, and there- 
 fore fraudulent and void as against creditors,^ and though un- 
 recorded, if delivered;'' although the insured did not acquire 
 title till after the date of the mortgage.^ So is a lien for 
 taxes ;^ and a mechanic's lien, if initiatory steps to enforce it 
 have been taken ; i" and an attachment, if judgment follows ; ^^ 
 
 1 Nichols V. Fayette Mut. Fire Ins. Co., 1 Allen (Mass.), 63 ; Wyman v. Peo- 
 ple's Equity Ins. Co., ] Allen (Mass.), 301 ; Dohn v. Farmers' Joint-Stock Ins. 
 Co., 5 Lana. (N. Y.) 275. 
 
 2 Towne v. Fitchburg Mut. Fire Ins. Co., 7 Allen (Mass.), 51 ; Smith v. Em- 
 pire Ins. Co., 25 Barb. (N. Y.) 497 ; Battles v. York County Mut. Ins. Co., 41 
 Me. 208. 
 
 8 Lowell y. Middlesex Mut. Fire Ins. Co., 8 Cush. (Mass.), 127 ; Hayward v. 
 New England Mut. Ins. Co., 10 Cush. (Mass.) 444 ; Jacobs v. Eagle Mut. Fire 
 Ins. Co., 7 Allen (Mass.), 132. 
 
 * Davenport v. l5"ew England Mut. Ins. Co., 6 Cush. (Mass.) 340. 
 
 5 Masters v. Madison County Mnt. Ins. Co., 11 Barb. (N. Y.) 624 ; Mina. 
 Ins. Co. V. Eesh, 40 Mich. 241 ; [Mallory v. Fanners' Ins. Co., 65 Iowa, 
 450]. 
 
 8 Treadway v. Hamilton Mut. Ins. Co., 29 Conn. 68. 
 
 ' Hutchins v. Cleveland Mut. Ins. Co., 11 Ohio St. 477. Otherwise if not 
 delivered. Olmstead v. Iowa Mut. Ins. Co., 24 Iowa, 503. 
 
 ^ Packard v. Agawam Mut. Fire Ins. Co., 2 Gray (Mass.), 334. 
 
 " Wilbur V. Bowditoh Mut. Ins. Co., 10 Cush. (Mass.) 446. 
 
 1" Longhurst v. Conway Fire Ins. Co., U. S. Dist. Ct. Iowa, 1861, cited in 
 Digest of Fire Ins. Decisions (2d ed. ), p. 247 ; Kedmon v. Phoenix Ins. Co. 
 (Wis.) 11 Reptr. 687 ; s. o. 10 Ins. L. J. 287. 
 
 1' Brown v. Commonwealth Ins. Co., 41 Pa, St. 187. 
 
 606 
 
CH. xiil] title and incumbrance. [§291 a 
 
 and a seizure on execution ;i and a title under a sale on 
 execution, subject to the debtor's equity of redemption j^ 
 and an assessment upon a deposit note to pay a loss;' 
 and a lien for a balance due of the purchase-money where 
 the purchaser is in possession under an agreement for pur- 
 chase, having paid part of the purchase-money,^ and a judg- 
 ment lien existing at the time of insurance.^ (a) [A deposit 
 of title-deeds upon an advance of money creates an equitable 
 lien.^ But the mere possession of title-deeds without ex- 
 planation or evidence of how they were obtained, does not 
 create an equitable mortgage or lienJ] 
 
 [§ 291 A. Incumbrance Fatal. — If the policy is to be void by 
 an incumbrance, without written consent of the company, such 
 incumbrance avoids it, whether known to the assured or not.^{b) 
 
 1 Penn. Ins. Co. v. Gottsman, 48 Pa. St. 151, 158. [But the insured is not 
 bound to disclose a levy and execution on goods still in Ma possession unless 
 such information is specially called for, or he knows that the levy increases the 
 risk. There was nothing in the policy to warn liim that the company regarded 
 the levy as an increase of risk, nor was there any suspicion that the transaction 
 and loss were not honest. Niagara Fire Ins. Co. a. Miller, 120 Pa. St. 504, 516.] 
 
 2 Campbell v. Hamilton Mut. Ins. Co., 51 Me. 69. 
 
 8 Jackson w. Farmers' Mut. Fire Ins. Co., 5 Gray (Mass.), 52; Tuttle u, Rob- 
 inson, 33 N. H. 104. 
 
 ^ Reynolds v. State Mut. Ins. Co., 2 Grant (Pa.), 326. 
 
 5 Bowman v. Franklin Ins. Co., 40 Md. 620 ; Gottsman v. Penn. Ins. Co., 56 
 Pa. St. 210 ; Merrill v. Agr. Ins. Co., 73 N. Y. 452 ; [Leonard v. American Ins. 
 Co., 97 Ind. 299. But the warranty against incumbrances is not broken by the 
 existence of judgments, receipts for the satisfaction of which can be shown, 
 although they are not satisfied of record. Lang v. Hawkeye Ins. Co., 74 Iowa, 
 673. And where a policy covering real and personal property is to be void if any 
 incumbrance is put upon the property without the company's consent, a judg- 
 ment against the assured not being an incumbrance on the whole property in- 
 sured, but only on the real estate, is not fatal, for the clause strictly construed 
 refers to incumbrances on the whole property, and it must be strictly construed, 
 the defence being merely technical. Bailey v. Homestead Fire Ins. Co., 16 Hun, 
 503, 506.] 
 
 6 [Langston, Ex parte, 17 Vesey, 227 ; Wells v. Archer, 10 S. & R. 412 ; 
 Whitbread, Ex parte, 19 Vesey, 209 ; Kensington, Ex parte, 204, 379.] 
 
 ' [Chapman v. Chapman, 13 Beav. 308.] 
 
 8 [Hench v. Insurance Co., 122 Pa. St. 128, if continued to the time of loss ; 
 Ellis V. State Ins. Co., 61 Iowa, 577.] 
 
 (a) There is an incumbrance of the Renninger v. Dwelling-House Ins. Co., 
 
 title as to insurance if the insured takes 168 Penn. St. 350. 
 the property under a will at a stated (5) A stipulation in a policy against 
 
 sum, to be paid in annual instalments, incumbrances without the insurer's con- 
 
 607 
 
§ 291 A] INSURAKCE : FIKE, LIFE, ACCIDENT, ETC. [CH. XIII. 
 
 A judgment on an official bond though unknown to the 
 insured will avoid his policy, on failure to give the com- 
 pany notice of the incumbrance and pay the additional 
 premium. 1 In this case the mortgage on the property at the 
 time of insurance had been reduced more than the amount 
 of the judgment, so that the total incumbrance was less in 
 amount than at first. The court hinted that on another trial 
 this fact might carry the case against the company. ^ A., 
 while building a house, negotiated with an insurance agent 
 to insure it. Among the questions asked as a part of the 
 application which the agent was to fill out was, if there was 
 any incumbrance on the building, the answer being no, but 
 that the plaintiff owed for materials and was intending to 
 incumber it to pay for them. In answer to " How much " he 
 was to incumber, he replied that he really did n't know, "not 
 less than $1000." The agent inserted in the application 
 "incumbrance of $1000," did not read the same to the plain- 
 tiff, and the policy was so made out, with a condition avoid- 
 
 1 [Penn. Mut. Fire Ins. Co. v. Schmidt, 119 Pa. St. 449.] 2 [Id. 461.] 
 
 sent relates to voluntary incnmbranoes, judgment on tax lien in invitum. against 
 and not to judgment liens or other the insured while the policy is in force, 
 liens created by law. Lodge v. Capital further than to make it voidable accord- 
 Ins. Co., 91 Iowa, 103 ; Phenix Ins. ing to such conditions as the policy 
 Co. V. Picke.l, 119 Ind. 155. But see contains. Gerling v. Agricultural Ins. 
 Capital City Ins. Co. v. Autrey, 105 Co., 39 W. Va. 689 ; Dover Glass 
 Ala. 269; Carey v. German-American "Works Co. v. American F. Ins. Co., 
 Ins. Co., 84 Wis. 80 ; Walradt v. 1 Marvel (Del.), 32 ; Lodge v. Capital 
 Phcenix Ins. Co., 136 N. Y. 375. Ins. Co., 91 Iowa, 103. But an express 
 " Attacjied," when stipulated against, provision avoiding the policy if the in- 
 usually refers to personalty only, at- sured projierty is levied upon or taken 
 tended by a change of possession, into possession or custody under any 
 Tefft V. Providence- Washington Ins. legal process, is valid ; and even if a 
 Co. (E. I.), 32 Atl. 914. See Carey w. part only of such property is attached, 
 German-American Ins. Co., 84 Wis. 80; the contract, being indivisible, is wholly 
 Carey u. Phenix Ins. Co., id. 208; void. Burr w. German Ins. Co., 84Wis. 76. 
 Wheeler v. Real Estate Title Ins. Co., A stipulation avoiding the policy if 
 160 Penn. St. 408. "Increase of risk," the insured property becomes involved 
 when provided against in a policy, re- in litigation is not against public policy, 
 lates to change of structure, heating, Small v. Westchester F. Ins. Co., 51 
 &o., and not to sales under existing Fed. Rep. 789. That clause refers only 
 judgments. Collins v. London Ass. to litigation respecting the insured's 
 Corp., 165 Penn. St. 298. A provision title or possession, and not to a suit to 
 against incumbrances by mortgage,, eject a tenant. Hall v. Niagara F. Ins. 
 judgment liens, &c., does not cover a Co., 93 Mich. 184. 
 
 608 
 
CH. XIII. ] TITLE AND INCUMBRANCE. [§ 292 
 
 ing it, if the amount was increased without the company's 
 consent. A. subsequently gave a mortgage for $1500 on it, 
 and the policy was held avoided.^ A partner's mortgage of 
 his interest to a third party violates the condition against 
 incumbrance of the firm property insured.^] 
 
 § 292. Incumbrance, what is not. — A mortgage which has 
 been paid, though not discharged of record, is no longer an 
 incumbrance.^ Nor is an invalid mortgage.* [Nor a mort- 
 gage barred by the statute of limitations at the time the pol- 
 icy is issued.^] Nor is a bond for the conveyance of the 
 premises insured, upon the payment of the purchase-money 
 at a specified time, although the forfeiture on account of 
 the expiration of the time has been waived, if, in fact, the 
 money has not been paid ; ^ nor a bond by the grantee in a 
 deed to support the grantor, given as a part of the consider- 
 ation for the conveyance ; '' nor a vendor's lien ; ^ nor is a 
 judgment against one of several insurers.^ In Jackson v. 
 Farmers' Mutual Fire Insurance Company,!" ^j,g question 
 arose whether a liability for an assessment on a deposit 
 note, laid under a policy which was afterwards declared void 
 on account of an increase of the risk, was an incumbrance 
 such as ought to have been disclosed by the insured in a new 
 policy taken out from another company after the increase of 
 
 1 [Sentell v. Oswego Co. Farmers' Ins. Co., 16 Hun, 516, 519.] 
 
 2 [Hicks V. Fanners' Ins. Co., 71 Iowa, 119,] 
 
 8 Hawke.s v. Dodge County Mut. Ins. Co., 11 Wis. 188 ; Merrill v. Agr. Ins. 
 Co., 73 ISr. Y. 452. But see Warner v. Middlesex Mut. Ass. Co., 21 Conn. 444 ; 
 ante, § 289. And an outstanding undischarged mortgage has been held to be an* 
 incumbrance, though actually paid by services rendered to the mortgagee by the 
 mortgagor, and while the former was ready to cancel the mortgage. Muma v. 
 Niagara, &c. Ins. Co., 22 U. C. (Q. B.) 214 ; [The doctrine of the text is afBrmed 
 in Smith v. Niagara Fire Ins. Co., 60 Yt. 682, citing all the cases of this note.] 
 
 * Watertown Fire Ins. Co. v. Grower, &o. Co., 41 Mich. 131. 
 
 5 [Lockwood V. Middlesex Mut. Ass. Co., 47 Conn. 553.] 
 
 6 Newhall i>. Union Mut. Fire Ins. Co., 52 Me. 180. 
 
 ' Mason v. Agr. &c. Ass. Co., 18 U. C. (C. P.) 19. [In Canada, however, it 
 has been held that concealment of the fact that property is charged with the main- 
 tenance of the plaintiff's father is the concealment of an incumbrance, but bad 
 faith must be shown. Reddick v, Saugeen Mut. Fire Ins. Co., 14 Out. R. 506.] 
 
 8 Dohn V. Farmers' Ins. Co., 5 Lans. (N. Y.) 275. 
 
 " Miller ii. Germania Ins. Co., C. C. P. (Pa.), 6 Ins. L. J. 873. 
 
 w 5 Gray (Mass.), 52. 
 
 VOL. I. —39 609 
 
§ 292 A] INSUEANOE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIII. 
 
 risk and before the policy was declared void, and was dis- 
 cussed, though not decided, with an evident inclination to 
 the negative. "It will be a grave question, we think," says 
 Shaw, C. J., "whether a remote contingent liability or pos- 
 sibility of charge for a very minute assessment is an incum- 
 brance within the meaning of this contract of insurance. 
 Perhaps a different rule may apply in covenants against in- 
 cumbrances, because founded on a different reason; thus a 
 purchaser, having paid a full compensation for the estate, 
 with all its benefits, has a right to expect in his grant and 
 covenants an indefeasible title without further charge. . . . 
 It is, m effect, a stipulation that if there be any charge 
 upon the estate, known or unknown, the vendor of the estate 
 will pay the expense of removing it. Should the same rule 
 apply to this subject of representation with a view to in- 
 surance, every married man making application for an in- 
 surance, in answer to the question whether his estate is 
 incumbered, must state that he has a wife living, otherwise 
 the policywould be void. " A tax-title held by a third party 
 whose relations are such that he would be held in equity as 
 trustee, has been held to be no incumbrance. ^ And a con- 
 tingent right of dower or curtesy is no incumbrance.^ It 
 may be otherwise where, after the death of the husband, 
 dower has attached.^ Incumbrances "without the consent" 
 of the company do not include those liens and claims — 
 such, for instance, as judgment liens — which are enforce- 
 able against the will of the insured, but only such as may 
 be created by his consent, and on application to the com- 
 pany for its consent* 
 
 [§ 292 A. No Incumbrance. — The word " incumbrance " 
 has no reference to an involuntary lien effected by the law, 
 where the condition is "If the property shall hereafter be- 
 
 1 Newman v. Springfield Fire & Mar. Ins. Co., 17 Minn. 123. 
 
 2 Virginia Fire, &c. Ins. Co. w. Kloeber (Va.), 9 Ins. L. J. 354 ; Commer- 
 cial Ins. Co. <j. Spankneble, 52 111. 53 ; Virginia Ins. Co. «. Kloeber (Va.), 9 Ins. 
 L. J. 30. 
 
 ' Security Ins. Co. v. Bronger, 6 Bush (Ky.), 147. 
 
 * Green o. Homestead Ins. Co. (If. Y.) 10 Ins. L. J. 175 ; Baley v. Homestead 
 Ins. Co., 80 N. y. 21 ; [Steen i-. Niagara Falls Ins. Co., 61 How. Pr. 144, 148]. 
 610 
 
CH. XIII.J TITLE AND INCUMBRANCE. [§ 292 B 
 
 come mortgaged or incumbered. "^ The question "Is there 
 a mortgage, deed of trust, lien, or incumbrance of any kind 
 on property ? " relates only to incumbrances created by act 
 or consent of the party, and an omission to state a statute 
 lien for unpaid taxes is no breach of warranty.^ The court 
 gives no reason for this opinion. If the reason for wishing 
 to know of incumbrances is to gauge the applicant's interest 
 to care for the property, then a statute lien is as much 
 within the reason as any other if the assured knows of it. 
 It certainly is covered by the words "lien or incumbrance 
 of any kind," and unless the applicant was ignorant of the 
 fact that taxes were a lien, which fact did not appear, he 
 should have stated the tax lien. If the assessment is illegal 
 of course there is no incumbrance by it.^ Neither the entry 
 of land in an assessment roll nor the assessment and subse- 
 quent levy of a tax thereon is a breach of a covenant against 
 incumbrances in a deed of the land made after completion 
 of the assessment roll but before a levy of the tax.* A pol- 
 icy, to be void if the property is incumbered by mortgage or 
 otherwise, is not rendered invalid by the existence of a lien, 
 if no questions were asked or representations made about the 
 matter at the time of application or issuance of the policy.^ 
 A lease of five years is not an incumbrance.^] 
 
 [§ 292 B. Misrepresentation and Concealment. — Conceal- 
 ment of an existing incumbrance avoids a policy when the 
 act of incorporation so provides.^ Failure to state a mort- 
 gage of $450 and falsely affirming that there were no incum- 
 brances is fatal. ^ So, alleging the amount of incumbrance 
 to be " about |.3,000 " when in fact it was $4,000.9 g^^ grat- 
 ing an incumbrance of $4,400 at $3,000.^0 If the insured 
 
 1 [Phenix Ins. Co. v. Pickel, 18 Ins. L. J. 592 (Ind.) May, 1889.] 
 
 2 [Hosford V. Hartford Five Ins. Co., 127 U. S. 404.] 
 
 8 [Runkle v. Citizens' Ins. Co., 11 Ins. L. J. 94 ; 6th Cir. (OMo), 1882.] 
 4 [Barlow v. St. Nicholas Nat. Bank, 63 N. Y. 399, 404.] 
 6 [iDwelling-House Ins. Co. v. Hoffman, 125 Pa. St. 626.] 
 6 [Lockwood V. Middlesex Mut. Ass. Co., 47 Conn. 553.] 
 ' [Gahagan v. Insurance Co., 43 N, H. 176, 177.] 
 8 [Indiana Ins. Co. v. Brehm, 88 Ind. 678.] 
 8 [Hayward v. New Eng. Mut. Fire Ins. Co., 10 Cush. 444, 445.] 
 10 [Glade v. Germania Fire Ins. Co., 56 Iowa, 400.] 
 
 611 
 
§ 292 B] INSURANCE, FIEE, LIFE, AfcCIDENT, ETC. [CH. XIH. 
 
 warrants that he has given all information material to the 
 risk, it is a breach if he says nothing about a mortgage 
 which he believes to be outstanding on the property, although 
 the mortgage may in fact have been paid without his knowl- 
 edge. The moral hazard is the same if he believes the place 
 to be mortgaged, as if it were so. ^ If an applicant states 
 that there is no incumbrance when in fact there is a 
 mortgage, the materiality of the misstatement is for the 
 jury. 2 
 
 A. sold an estate to B., covenanting for a perfect title and 
 agreeing to pay off an old mortgage of 1200, B. gave the 
 vendor back a mortgage and insured, representing that the 
 latter was the only incumbrance. It was held that in equity 
 this was so, since B. could extinguish the old mortgage by 
 the amount he would have to pay on his own, and the court 
 would not allow the insurer to avoid the policy for mere 
 technical and formal defects.^ Where an incumbrance of 
 $37,000 on the property insured has been changed by parol 
 agreement to one of $12,000, which is named to the insur- 
 ance company, the latter cannot avoid the policy on the 
 ground that in reality the parol agreement was void under 
 the statute of frauds, wherefore the real incumbrance was 
 $37,000. A stranger to the contract cannot raise such a 
 plea.* Misstatements of incumbrances or subsequent incum- 
 brances on portions of the plaintiff's farm, none of which 
 incumber the land on which the insured building stands, do 
 not avoid the policy.^ When a policy stipulated that it 
 should be void unless the incumbrance, if any, was expressed 
 therein, it was held that the mere stating that there was an 
 incumbrance without stating the amount was a sufficient 
 compliance with the requirement of the policy and charter.^ 
 Where the questions and answers were: "Is there any in- 
 cumbrance on the property ? — Yes. If mortgaged, state the 
 
 1 [Smith V. TSTiagara Fire Ins. Co., 60 Vt. 682, 690.] 
 
 2 [Sweat V. Piscataquis Mut. Ins. Co., 79 Me. 109.] 
 
 8 [Ring V. "Windsor Co. Mut. Fire Ins. Co., 54 Vt. 434.] 
 * [Mutual Mill Ins. Co. „. Gordon, 20 Brad. 565.] 
 5 [Eddy V. Hawkeye Ins . Co., 70 Iowa, 472.] 
 8 [Bersche v. St. Louis Ins. Co., 31 Mo. 555, 560.] 
 
 612 
 
CH. XIII. J^ TITLE AND INCUMBEANCE. [§ 294 
 
 amount. — $3,000," an omission to state other incumbrances 
 did not avoid the policy. i] 
 
 § 293. Incumbrance ; Several Mortgages. — If a mortgagee 
 insures his interest as mortgagee, under a provision calling 
 for incumbrances calculated to affect the interest, other 
 mortgages should be stated.^ But where the insurance is 
 specifically upon the particular interest, and not upon the 
 property, other incumbrance upon the property need not be 
 stated ; as where a " mechanic's lien on the Lawrence Block " 
 was specified as the subject-matter of insurance, and a nega- 
 tive answer to the question whether " it " was incumbered 
 was given, it was held that this was no misrepresentation, 
 although there were other liens upon the same block. ^ 
 
 § 294. Incumbrance made after Application ; Reduction of 
 Interest. — In Howard Fire Insurance Company v. Bruner,* 
 application was made for insurance July 17, and the policy 
 countersigned and issued on the 25th of the same month. A 
 mortgage existing on the 17th was disclosed in the applica- 
 tion, but a mortgage executed on the 25th, and after the 
 delivery of the policy, was not disclosed. And it was held 
 that it need not be, as it was a subsequent incumbrance, 
 whereas the inquiry related only to existing incumbrances, (a) 
 And in Dutton v. New England Mutual Fire Insurance Com- 
 pany,^ a mortgage executed on same day when the policy 
 was issued, but whether before or after delivery of the policy 
 did not appear, was held to be a subsequent incumbrance 
 which the applicant was not bound to disclose in reply to 
 the interrogatory on that point, whether executed before or 
 
 1 [Hcsford V. Germania Fire Ins. Co., 127 U. S. 399.] 
 
 2 Addison v. Kentucky & Louisiana Ins. Co., 7 B. Mon. (Ky.) 470 j Smith 
 V. Columbia Ins. Co., 17 Pa. St. 253; Rex v. Insurance Companies, 2 Phila. 
 (Pa.) 357. 
 
 ' Longhurst v. Conway Fire Ins. Co., U. S. Dist. Ct. Iowa, 1861. 
 
 * 23 Pa. St. 50- 
 
 " 9Fost. (N. H.)153. 
 
 (a) A clause in a policy providing affect statements and acts of agents and 
 
 that the company shall not be bound by others after the delivery and acceptance 
 
 any act of or statement to the agent not of the policy. Hoose v. Prescott Ins. 
 
 contained in the policy or the written Co., 8i Mich. 309 ; Ahlberg t. German 
 
 application for insurance, and other Ins. Co., 94 id. 259. 
 preliminary papers, is held only to 
 
 613 
 
§ 294] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIII. 
 
 after the delivery of the policy, as it was not an incum- 
 brance when the application was filed and the answer made, 
 five days before. What would be the effect if the mortgage 
 was in contemplation at the time the application was filed, 
 and purposely kept open till after the delivery of the policy, 
 was not decided. But it was intimated that such facts might 
 amount to a fraudulent concealment of a fact material to the 
 risk. Where a policy was assigned by consent of the in- 
 surers to the plaintiffs, and aftferwards the insured mortgaged 
 the property insured to the plaintiffs to protect them as 
 accommodation indorsers for the insured, it was held that 
 this was not such an incumbrance as was contemplated in 
 the policy, which provided for notice of any incumbrance 
 " sufficient to reduce the real interest of the insured to a sum 
 only equal to, or below, the amount insured."^ The confes- 
 sion of a judgment to a greater amount than the value of the 
 insured property is a sufficient reduction of the assured 's in- 
 terest therein " below the amount insured " to work a forfeit- 
 ure of a policy having a condition against such a reduction, 
 though no execution issue upon the judgment. ^ If the con- 
 dition be against incumbrances made by the applicant, one 
 made by the assignee of the property does not work a for- 
 feiture.^ [When a mortgage, given without the company's 
 knowledge and in violation of a condition in the policy, is 
 produced in evidence, the presumption, in the absence of 
 evidence to the contrary, is that the amount for which the 
 mortgage was given is still due thereon.* An incumbrance 
 in violation of the policy only suspends it, and if paid before 
 loss the policy revives.^ 
 
 1 Allen V. Hudson River Miit. Ins. Co., 19 Barb. (N. Y.) 443. It certainly 
 seeras an extremely liberal interpretation in favor of the insured, to protect him 
 against the consequences of a material change, effected by himself, in the status 
 of the property insured, between the time of the application and that of issuing 
 the policy, by holding that the insurance is by relation from the date of filing the 
 application. Besides opening a wide door to fraud, it does not seem to be in 
 accordance with the well-settled doctrine that a material change intervening, pend- 
 ing the negotiations, ought to be disclosed. See ante, § 190. 
 
 2 Kensington Bank v. Yerkes, 86 Pa. St. 227. 
 
 8 Richardson v. Canada, &c. Ins. Co., 16 U. C. (C. P.) 430. 
 
 4 [Gould V. Holland Purchase Ins. Co., 16 Hun, 538, 540.] 
 
 5 [Kimball v. Monarch Ins. Co., 70 Iowa, 513.] 
 
 614 
 
OH. XIII.] TITLE AND INCUMBRANCE. [§ 294 6 
 
 Paying off an old mortgage and giving a new one. — If the 
 policy is conditioned against mortgaging without consent, 
 the paying off of an existing mortgage does not authorize the 
 giving of a new one, however small, to another party. ^ But 
 in Iowa it is held that if at the time of insurance there is a 
 mortgage on the property and this is subsequently paid off 
 and a new one put on, the question, is whether the risk has 
 been increased.^] 
 
 § 294 a. Notice. — [A condition in a policy that any lien 
 or judgment upon the property insured must be made known 
 to the company or the policy will be void, is a warranty on 
 the part of the assured that must be strictly complied with.^ 
 A delay of giving notice for fifty days after mortgaging the 
 property is unreasonable and avoids the policy. *] Deposit- 
 ing notice in the mail with the proper address is prima facie, 
 and only prima facie, evidence that it was received.* An 
 indorsement on the policy that the loss is to be payable to 
 the incumbrancer, is notice that the property is incumbered. ^ 
 [Although the by-laws provide that notice of incumbrances 
 shall be given, yet an incumbrance without notice will not 
 avoid the policy unless it is expressly so stipulated either in 
 the policy or the organic law.'] 
 
 § 294 h. Waiver. — But here, as in other cases of defective 
 or untrue statements, knowledge of the untruth at the time 
 of the issue of the policy is a waiver of the right to avoid 
 the policy therefor.^ So if the answer, erroneous in fact, is 
 made by the advice of the agent as a proper answer ; ^ or he, 
 
 1 [Hankifis v. Rockford Ins. Co., 70 Wis. 1, 4.] 
 ^ [Russell V, Cedar Rapids Ins. Co., 71 Iowa, 69.] 
 
 3 [Egan V. Mutual Ins. Co., 5 Denio, 326, 328 ; Seytert's Adm. v. Penn. Mut. 
 Fire Ins. Co., 103 Pa, St. 282.] 
 
 * [McGowan v. People's Mut. Fire Ins. Co., 54 Vt. 211.] 
 s Platli V. Minn. Ins. Co., 23 Minn. 479. 
 
 6 Insurance Co. v. M'Dowel, 50 111. 120. 
 
 7 [Tiefenthal v. Citizens' Mut. Fire Ins. Co., 53 Mich. 306, 308-309.] 
 
 8 Union Ins. Co. v. Ohipp, 93 111. 96. 
 
 3 ^tna, &c. Ins. Co. v. Olmstead, 21 Mich. 246. [The omission of an in- 
 cumbrance caused by the advice of the agent cannot be taken advantage of 
 by the company in the absence of fraud. Oarr v. Fire Ass. Assoc, 14 Ont. E. 
 487.] 
 
 615 
 
§ 294 C] INSUKANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIII. 
 
 being duly informed of the facts, neglects to make the proper 
 statement or indorsement of the facts so stated ; ^ (a) or ad- 
 justs the loss.** 
 
 [§ 294 C. It has been held that a policy insuring A. B. " as 
 his interest may appear," waives the conditions requiring a 
 specific statement of such interest in the policy.^ An agent 
 to solicit insurance and issue policies countersigned by him- 
 self, may waive the condition requiring specification that the 
 ground is leased.* The condition as to sole ownership may 
 be waived, but not so as to make the policy cover goods not 
 described in it, and owned by persons not named in it.* 
 Where the company, ten days after issue of the policy, in- 
 dorsed it as payable to the mortgagee, the breach of con- 
 dition as to ownership which the formerly undisclosed 
 mortgage constituted was held to be waived.^ Although the 
 applicant represents that there is no incumbrance when 
 really there is a mortgage, if before the fire a new mortgage 
 is substituted for the old one and the company assents to 
 the new one, it is estopped to set up the misrepresentation.^ 
 Where an agent made out the application in his office in the 
 absence of the plaintiff, and later took it and the policy made 
 out and signed to the plaintiff, and did not read to him (he 
 being a foreigner and unable to understand English) nor 
 cause to be translated to him the same, but told him it was 
 all right, and obtained his signature; if no inquiries as to 
 incumbrances were made of the plaintiff, — it is a waiver of 
 
 1 Eichinond v. Niagara Fire Ins. Co., 79 N. Y. 230 ; 9 Ins. L. J. 117 ; Smith 
 V. Commonwealtli Ins. Co., 49 Wis. 322. 
 
 2 Eagan v. ^tna, &c. Ins. Co., 10 W. Va. 583. See also Titus v. Glens Falls 
 Ins. Co. (N. Y. ), 9 Ins. L. J. 664 ; Van Schoick v. Niagara, 68 N. Y. 434 ; State 
 Ins. Co. V. Todd, 83 Pa. St. 272. 
 
 s [De Wolf V. Capital City Ins. Co., 16 Hiin, 116, 118.] 
 
 * [Home Ins. Co. v. Duke, 84 Ind. 253.] 
 
 6 [Fuller V. Phcenix Ins. Co., 61 Iowa, 350.] 
 
 « [Lewis V. Council Bluffs Ins. Co., 63 Iowa, 193.] 
 
 ' [Lebanon Mut. Ins. Co. v. Losch, 109 Pa. St. 100.] 
 
 («) " Indorsements on the policy " the policy is issued. Hoose «. Prescott 
 of the title or changes therein, or of Ins. Co., 84 Mich. 309, 322. 
 mortgages, relate to transactions after 
 
 616 
 
CH. XIII.] TITLE AND INCUMBRANCE. [§ 294 E 
 
 the company's right to have the plaintiff disclose the fact of 
 a mortgage on his property. ^ (a)] 
 
 [§ 294 D. Knowledge of the Company. — A description 
 which gives the company constructive notice that the build- 
 ings are on United States land, destroys the condition that 
 the insured must have the fee-simple. ^ If the policy requires 
 that the insured shall be the fee-simple owner, but the appli- 
 cation which is made a part of the policy shows clearly that 
 such is not the case, the condition is waived by the issue of 
 the policy on the basis of the application.* If the applicant 
 says that an incumbrance exists without stating the amount, 
 the issue of a policy waives any further disclosure.* When 
 at the time of issuing the policy the company knew of the 
 existence of a mortgage on the insured property, they can- 
 not set it up as a defence to an action on the policy on the 
 ground of breach of warranty.^] 
 
 [§ 294 E. Knowledge of the Agent. — If the agent knows 
 at the time of issuing the policy that the building is on 
 leased ground, though no mention is made of the fact in the 
 application, it will not avail the company. The issue of a 
 policy on a known state of facts waives all conditions incon- 
 sistent therewith." (6) If the agent read the lease, the policy 
 
 1 [Geib V. Insurance Co., 1 Dillon, 443.] 
 
 2 [Broadwater v. Lion Fire Ins. Co., 34 Minn. 465.] 
 
 8 [Lamb v. Council Bluffs Ins. Co., 70 Iowa, 238. See however, Eminence 
 Mut. Ins. Co. V. Jesse, 1 Met. (Ky.) 563 ; supra, § 289, n. 3.] 
 
 * [Nichols V. Fayette Mut. Fire Ins. Co. , 1 Allen, 63.] 
 
 6 [Bid well V. North "West Ins. Co., 24 N. Y. 302, 304.] 
 
 ^ [Gemiania Fire Ins. Co. u. Hick, 125 111. 361 ; Phcenix Ins. Co. v. Copeland, 
 86 Ala. 551 ; Holmes v. Drew, 16 Hun, 491, 493 ; Sentell v. Oswego Co. Farmers- 
 Ins. Co., 16 Hun, 516, 518 ; Boetcher v. Hawkeye Ins. Co., 47 Iowa, 253, 255.] 
 
 (a) If the applicant is not asked as when the applicant is not questioned 
 
 to existing incumbrances, his failure to thereon, especially when the facts are 
 
 disclose an existing mortgage on the known to the insurer's agent. Cross v. 
 
 property is not such concealment or National F. Ins. Co., 132 N. Y. 133. 
 
 misrepresentation as avoids the policy. Intent to deceive the insurer is not pre- 
 
 Koshland v. Hartford Ins. Co., 31 Ore- sumed from the simple fact of falsity in 
 
 gon, 402 ; Seal v. Farmers' & Merchants' a statement by the insured. Dolan v. 
 
 Ins. Co. (Neb. ), 80 N. W. 807 ; see Mutual Reserve Fund Life Ass'n, 173 
 
 Sproul V. Western Ass. Co., 33 Oregon, Mass. 197. 
 
 98. So conditions in the policy as to (6) London & L. Fire Ins. Co. v. 
 
 title and vacancy are deemed waived, Fischer, 92 F. 500. 
 
 617 
 
§ 294 E] INSDEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIII. 
 
 cannot be avoided on the ground that the interest of the 
 assured was not a fee-simple, or that the lessor had by the 
 lease a lien on the buildings for the rent.-' When the assured 
 had a fee-simple title subject to a f 10, 000 incumbrance, 
 which was known to the agent, but the assured answered 
 " fee-simple " in response to the question as to interest, and 
 it so appeared in the policy, it was held that the policy was 
 not avoided, though it contained a forfeiture clause if the 
 question should be wrongly answered.^ Parol evidence is 
 admissible to show that the assured stated to the company's 
 agent that there was an incumbrance on the property, al- 
 though the policy declares there is none.^ The applicant 
 stated to the agent that he was in possession under a con- 
 tract for purchase. The policy contained no such state- 
 ment, but was conditioned to be void if the insured was not 
 the sole, absolute, and unconditional owner, and also pro- 
 vided that no agent of the company should be held to have 
 waived any condition of the policy unless such waiver were 
 indorsed thereon. It was held that the company was es- 
 topped by the knowledge of the agent, (a) The court said, 
 quoting a former case : " The principle that if statements in 
 the application, relied upon as breaches of warranty, are in- 
 serted by the agent of the insurers without any collusion or 
 fraud on the part of the insured, the insurer is estopped 
 
 1 [Dresser v. United Firemen's Ins. Co., 45 Hun, 298.] 
 
 2 [Home Mut. Fire Ins. Co. v. Garfield, 60 111. 124, 127.] 
 
 3 [Boetcher ti. Hawkeye Ins. Co., 47 Iowa, 243, 25.').] 
 
 (a) See London & L. F. Ins. Co. v. v. Security F. Ins. Co., 99 Iowa, 382 ; 
 
 Fischer, 92 Fed. Kep. 500 ; Ins. Co. of Greenlee v. Iowa State Ins. Co., 102 
 
 North America v. Bachler, 44 Neb. 549 ; Iowa, 260 ; Robbins v. Springfield F. & 
 
 McGonigle v. Susquehanna Mut. F. lus. M. Ins. Co., 149 N. Y. 477 ; Frane v. 
 
 Co., 168 Penn. St. 1; McGonigle v. Burlington Ins. Co., 87 Iowa, 288; 
 
 Agricultural Ins. Co., 167 id. 364 ; Beebe v. Ohio Farmers' Ins. Co., 93 
 
 Sproul V. Western Ass. Co. (Oregon), Mich. 514; McFetridge y. American F. 
 
 54 Pao. 180; Phenix Ins. Co. v. Hart, Ins. Co., 90 Wis. 138; McFarland v. 
 
 149 111. 513 ; Summerfield v. North Kittanning Ins. Co., 134 Penn. St. 590 ; 
 
 British & Merc. Ins. Co., 62 Fed. Eep. Bosworth v. Merchants' F. Ins. Co., 80 
 
 249 ; Phoenix Ins. Co. v. Warttemberg, Wis. 393 ; Gristock v. Royal Ins. Co., 
 
 79 id. 245 ; McElroy v. British America 87 Mich. 428 ; Lyon v. Dakota Ins. Co., 
 
 Ass. Co., 94 id. 990 ; Arthur v. Palatine 6 Dak. 67. 
 Ins. Co. (Oregon), 57 Pac. 62 ; Corkery 
 618 
 
CH. XIII.] TITLE AND INCUMBRANCE. [§ 294 E 
 
 from setting up their error or falsity, seems now well set- 
 tled." ^ Where the insured, B., told the agent that the 
 property belonged to his wife, but the agent, contrary to 
 instructions and without the knowledge of B. made the pol- 
 icy in B. 's name, it was held that B. could sue in his own 
 name for the use of his wife, though the policy contained a 
 provision that if the insured is not the absolute owner the 
 fact must be expressed in writing on the policy. ^ And where 
 a husband took out insurance on his wife's property in his 
 own name, the agent knowing the facts and failing to state 
 the wife's interest in the policy, it was held that the com- 
 pany was chargeable with his knowledge, and the husband 
 could sue in his own name for his wife's loss.^ Orally the 
 applicant stated all incumbrances. The agent, without 
 knowledge of applicant, made out an application omitting 
 the incumbrances. It was held that the applicant was not 
 bound by the written application, and that there was no 
 breach of the condition in the policy requiring statement of 
 incumbrances in the application.* When the assured stated 
 in his application that there were no incumbrances on the 
 property, and on the trial the defendants proved that there 
 were, evidence was held admissible to explain that the com- 
 pany's agent knew of this at the execution of the policy.^ (a) 
 
 1 [Miaghan v. Hartford Fire Ins. Co., 24 Hun, 58, 60. See also Mai-k v. Na- 
 tional Fire Ins. Co., 24 Hun, 565. The policy contained a similar clause as to 
 whole ownership, and the agent knew that Mark was not sole owner of the boat 
 insured. ] 
 
 2 [Deitz V. Insurance Co., 31 W. Va. 851.] 
 
 8 [Hunt V. Mercantile Ins. Co., 22 Fed. Rep. 503 (Mo.) 1884.] 
 
 4 [Benninghoff v. Agricultural Ins. Co., 93 N. Y. 495.] 
 
 6 [Patten v. Merchants' & Farmers' Mut. Fire Ins. Co., 40 N. H. 375, 380.] 
 
 (a) The insurer's agent may waive Bank, id. 449 ; Carpenter v. German 
 unconditional ownership. Bateman v. American Ins. Co., 135 N. Y. 298 ; 
 Lumbermen's Ins. Co., 189 Penn. St. McMurray u. Capital Ins. Co., 87 Iowa, 
 465 ; Breedlove v. Norwich Union F. 453 ; Robison v. Ohio Farmers' Ins. Co., 
 Ins. Co., 124 Gal. 164; London & L. F. 93 Mich. 533. Where the policy re- 
 Ins. Co. 0. Gerteson (Ky. ), 28 lus. L. J. quires a mortgagee to notify the insurer 
 653 ; Graham v. American F. Ins. Co., of change of title or increase of risk, 
 48 S. C. 195 ; Dupuy v. Delaware Ins. and to have the same indorsed on the 
 Co., 63 Fed. Rep. 680; Rockford Ins. policy, notice thereof to a former agent, 
 Co. V. Farmers' State Bank, 50 Kansas, given in ignorance that his agency had 
 427 ; Capital Ins. Co. v. Pleasanton ceased, is a sufficient compliance with 
 
 619 
 
§ 294 P] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. XIII. 
 
 Where the statement of the assured does not amount to a 
 warranty and was made without fcaud, knowledge of the 
 agent binds the company, A report of the agent stating 
 that there are no incumbrances subsequent to the applica- 
 tion, and without knowledge of the assured, does not bind 
 the latter. 1 But if a warranty that there are no incum- 
 brances is written with the assent of the insured, who states 
 to the agent that he don't know for certain whether there 
 are any or not, and the statement turns out untrue, the pol- 
 icy is void. The fact that the agent was a director is im- 
 material; there is a clear breach of warranty.^ And failure 
 at the trial to prove the title which the insured told the 
 agent he possessed, it appearing on the contrary that the 
 title to the property is in another, will prevent recovery by 
 the insured. 2] 
 
 [§ 294 P. On the other hand, it has been held that if the 
 policy prohibits waiver by the agent, the assured is bound 
 by the provision, and an attempted waiver of the condition 
 against incumbrance will not avail.* In the absence of 
 fraud or mistake, a party will not be heard to say he was 
 ignorant of the contents of a document signed by him with- 
 out compulsion." Where the applicant told the agent that 
 
 1 [Phenix Ins. Co. v. LaPointe, 17 Brad. 248.] 
 
 2 [Blooming Grove Mut. Fire Ins. Co. v. McAnerney, 102 Pa. St. 335.] 
 ^ [Carpenter v. German- American Ins. Co., 52 Hun, 249.] 
 
 * [Hankins v. Rockford Ins. Co., 70 Wis. 1.] 
 6 [Cuthbertson v. Insurance Co., 96 N. C. 480.] 
 
 sucli stipulation. Whitney w. American Wooliver v. Boylston Ins. Co., 104 
 
 Ins. Co. (Cal. ), 56 Pac. 50. Knowledge Mich. 95 ; Home Ins. Co. v. Gibson, 
 
 of such an agent, when the insurance is 72 Miss. 58 ; Westchester F. Ins. Co. v. 
 
 effected, of the state of the title, when Wagner, 10 Tex. Civ. App. 398. But 
 
 acquired verbally or by the answers in written statements of the agent, with- 
 
 the application, is equivalent to actual out such knowledge, do not hind the 
 
 notice given by the insured, and over- company. Cornell v. Tiverton Mut. F. 
 
 rides the conditions in the policy. Ins. Co. (R. I.), 35 Atl. Rep. 579. A 
 
 Cowart V. Capital City Ins. Co., 114 defect in pleading on a fire policy, in 
 
 Ala. 356 ; Schaeffer v. Farmers' M. F. not stating the plaintiff to be owner, is 
 
 Ins. Co., 80 Md. 563 ; Home Ins. Co. v. cured by a verdict in his favor. West- 
 
 Mendenhall, 168 111. 458 ; Davis </. ern Ass. Co. v. Ray (Ky.), 49 S. W. 
 
 Phoenix Ins. Co., Ill Cal. 409 ; Parsons 326 ; but see Western Ass. Co. v. Mc- 
 
 V. Knoxville F. Ins. Co., 132 Mo. 583 ; Carty, 18 Ind. App. 449. 
 
 620 
 
CII. Xni.J TITLE AND INCUMBEAKCE. [§ 294 G 
 
 there -was a mortgage on the land, but none on the house 
 which he held in fee unincumbered, and the application said 
 "title in fee" and "no incumbrance," it was held that the 
 policy was void for non-disclosure of incumbrances, the house 
 being insured not as a chattel but as realty. Armour, J., 
 however, properly dissented, holding that the house was 
 really a chattel resting merely on blocks, and that the mort- 
 gage was not in the least material. i] 
 
 [§ 294 G. No Waiver or Estoppel. — When the policy pro- 
 vides that if the interest of the assured be other than sole, 
 unconditional, &c., it must be so expressed in the policy, 
 the insured if owner otherwise thaii as above must state his 
 interest, and the fact that the agent made no inquiry and 
 the assured no statement of the same, is not a waiver by the 
 company.^ A vote of the company's directors, authorizing 
 one of their number to settle the claim, part payments made 
 by them to plaintiff's creditors when summoned as trustee, 
 and the statements of one of the directors that the claim 
 ought to be paid, — will not estop them from defending 
 against the action ^ of the assured, on the ground of fraudu- 
 lent and untrue statements as to incumbrances in the appli- 
 cation, which is part of the policy, if the assured has not 
 changed his position in consequence of the action of the 
 company. Failure to state that the ground is leased is fatal 
 to a policy requiring such statement, and employment of an 
 adjuster by the company before it knows of the plaintiff's 
 title, is not a waiver.* A verbal agreement during the nego- 
 tiations that the insured may mortgage the premises at a 
 future day, which agreement is not mentioned in the policy, 
 is no part of the contract of insurance, and if the insured 
 does so mortgage, the condition against incumbrances is 
 violated.^] 
 
 1 [Phillips V. Grand Riv. F. Mut. Fire Ins. Co., 46 U. C. R. (Q. B.) 334.] 
 
 2 [Waller v. Northern Ass. Co., 10 Fed. Rep. 232, 235; 2 McCrary, 637 i_ 
 8th Cir. Iowa, 1881.] 
 
 8 [Murphy v. People's Eq. Mut. Fire Ins. Co., 7 Allen, 239.] 
 * [Security Ins. Co. v. Mette, 27 Brad. 324 ; Illinois Mut. Ins. Co. o. Mette, 
 Id. 330.] 
 
 6 [McNierney b. Agricultural Ins. Co., 48 Hun, 239. See § 192.] 
 
 621 
 
INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIV, 
 
 CHAPTER XIV. 
 
 HEALTH, HABITS, AGE, ETC. 
 
 Analysis. 
 
 § 295. " Good health'' and "sound health " mean reasonahle, not perfect 
 
 health. A healthy life is one insurable at ordinary rates. 
 Freedom from serious disease is sufficient. Slight dys- 
 pepsia no breach of the warranty, but Bright's disease 
 or drunkenness fatal. Tendency to shorten life means 
 substantial tendency ; all disorders do so in some degree. 
 Wound affecting bladder, spasms, gout, dyspepsia. 
 Consumption. 
 
 Honest answers liberally construed. 
 § 296. " Tendency to shorten life ; " drunkenness a breach of the warranty 
 
 "no habit obviously tending to shorten life." 
 Serious illness or injury is one that permanently impairs the con- 
 stitution and increases the risk. No absolute test is possi- 
 ble. It has been said that an honest belief in the truth of 
 the answer is all that is required ; but there is authority 
 that due care must be ezercised in forming the belief (see 
 also next section). Failure to speak of illnesses so slight as 
 to be beyond the reasonable contemplation of the parties, is 
 of no effect. "Hereditary disease," "local disease," "dis- 
 ease requiring confinement." Malaria, rupture, tubercles, 
 sunstroke, pneumonia. Company must show not only 
 insanity in ancestor, but also that it is hereditary. ' 
 § 297. The insured must answer in good faith and according to the 
 
 knowledge he has, or as an ordinarily intelligent man should 
 have, about himself. Knowledge of the life-subject is im- 
 putable to the assured if he undertake for the truth of the 
 "life's" statements, § 297. Fits, gout, vertigo. 
 False answer to a specific question avoids the policy, though 
 the matter was not material, otherwise with a mere 
 want of fulness, § 300. 
 § 298. "Afflicted with disease." Consumption, spitting of blood, 
 
 &c. 
 fits, diseases of liver or throat. 
 § 299. Habit is a question for the jury. Means more than a single 
 
 excess, but does not require daily and continuous 
 use. Intemperance, opium ; see also §§ 300-302. 
 § 301. If death by intemperance is to avoid the contract, the death must 
 
 be traced clearly to intemperance as the proximate cause. 
 Neither intemperance combined with other causes, nor as 
 a predisposing cause, will avoid the policy. If delirium 
 
 622 
 
CH. XIY.] HEALTH, HABITS, AGE, ETC. [§295 
 
 tremens with care and skill might not have heen mortal, 
 but by over-doses of morphine the man died, intemperance 
 is not the proximate cause of death. If excess of liquor 
 not taken by medical advice impairs the health or causes 
 death though without delirium, the policy is void, though 
 the insured was not habitually intemperate, or had even 
 been habitually temperate up to the fatal debauch. 
 Medical Examination. 
 § 303. Statements in regard to applicant's wealth, &c., made at 
 
 such examination may be material. 
 If examiner misleads assured into making a wrong answer, 
 or writes a falsa one without assured's knowledge, the 
 company i.s estopped, 
 the applicant is not bound by the doctor's opinions. 
 if the company issues a policy knowing the examiner is 
 the beneficiary, he will not have to prove the transac- 
 tion fair and just. 
 § 304. "Family physician," "medical attendance," &c. 
 
 a warranty that insured had not consulted a physician is 
 broken by a consultation, though only for a cold. 
 § 305. Age, misstatement fatal. Agent's knowledge estops company ; 
 
 so if applicant says he don't know and the agent makes 
 his own estimate. Residence. Prison. Relationship. 
 § 306. Occupation at the time must be stated, not that of the past ; see 
 
 also § r88 A. 
 but all occupations need not be stated ; one is enough {qucere as 
 to fairness of this rule ; the one omitted may be more haz- 
 ardous than the one stated). 
 
 § 295. Good Health ; Healthy Life ; Tendency to shorten 
 Life. — In the early history of life insurance in England, and 
 before the officers had acquired the art or indeed seen the 
 necessity of hedging the insured about with warranties, in 
 Ross V. Bradshaw,^ it was held, by Lord Mansfield, that a 
 warranty of good health meant simply that the applicant 
 was in a reasonably good state of health, and was such a 
 life as ought to be insured on common terms. ^ That it did 
 
 1 1 "W. Bl. 312 A. D. 1760. 
 
 2 [A warranty of the health of a third person does not require absolute free- 
 dom from illness or disease, but only that the person does not manifest symp- 
 toms of disease, and to the ordinary observation of a friend or relative, is well. 
 Grattan v. Mut. Life Ins. Co., 92 N. Y. 274. Sound health does not mean abso- 
 lute freedom from infirmity, slight dyspepsia yielding readily to treatment and 
 not known to be organic and excessive, is not inconsistent with such a represen- 
 tation. Morrison v. Wisconsin 0. F. Mut. Life Ins. Co,, 59' Wis. 162. "Sound 
 health '' means freedom from serious disease, or grave, important, weighty trouble. 
 A mere indisposition that does not tend to undermine the constitution, may 
 exist, but Bright's disease is serious and dangerous, and inconsistent with sound 
 
 623 
 
§ 295] insukance: fire, life, accident, etc. [ch. xiv- 
 
 not mean that he was free from every infirmity, and in fact 
 though he had one, the life might be a good one ; and the 
 fact that insured had several years before received in battle 
 a wound in the loins which so affected him that he could not 
 retain his urine or faces, though not mentioned, was not 
 inconsistent with a good insurable life. And about twenty 
 years later, in Willis v. Poole, ^ where it appeared the insured 
 was at times troubled with spasms from violent fits of the 
 gout, though at the time of insurance in his usual state of 
 health, Lord Mansfield said : "The imperfection, of language 
 is such that we have not words for every different idea, and 
 the real intention of the parties must be found out by the 
 subject-matter. By the present policy the life is warranted 
 to some of the underwriters, in health; to others, in good 
 health. And yet there is no difference in point of fact. 
 Such a warranty can never mean that a man has not in him 
 the seeds of some disorder. We are all born with the seeds 
 of mortality in us. A man subject to the gout is a life cap- 
 able of being insured, if he has no sickness at the time to 
 make it an unequal contract." In Watson v. Mainwaring^ 
 there was a warranty that the insured was free from any 
 "disorder tending to shorten life," while in fact the appli- 
 cant was afflicted with a disorder of the bowels, which might 
 proceed either from a defect of the internal organs, which 
 would tend to shorten life, or it might proceed from dys- 
 pepsia, which would not, unless organic and excessive; and 
 it was left to the jury to say whether it was dyspepsia or 
 not, and, if so, whether it was organic and excessive. "All 
 disorders," said Chambre, J., "have, more or less, a ten- 
 dency to shorten life ; even the most trifling, — corns may 
 
 health. Brown v. Metropolitan Life Ins. Co., 65 Mich. 306. A warranty of 
 good health does not require perfect and absolute health. No definite rule can 
 he laid down for the determination of the matter. It becomes usually a question 
 for the jury on all the facts. When there are no reasonable grounds to suspect 
 fraud, the questions and answers should be liberally construed in favor of the 
 assured. Maine Benefit Ass. v. Parks, 81 Me. 79. See, for general discussion 
 as to representations concerning health, Hoffman v. Supr. Council of American 
 Legion of Honor, 35 Fed. Rep. 252 (Va.), 1888.] 
 
 I 2 Parke, Ins. 650. 
 
 " 4 Taunt. 763. 
 624 
 
CH. XIV.J HEALTH, HABITS, AGE, ETC. [§ 295 
 
 end in mortification. That is not tlie meaning of the clause. 
 If dyspepsia were a disorder that tended to shorten life 
 within the exemption, the lives of half the members of the 
 profession of the law would be uninsurable." A disease 
 tending to shorten life is one which has a continuing ten- 
 dency, and not stating one which might or might not have 
 produced that result is no concealment. ^ Of course if there 
 is no warranty the insurers take every risk, where there is 
 no fraud, as by misrepresentation or concealment.^ "Good 
 health " does not import a perfect physical condition. The 
 epithet " good " is comparative, and does not ordinarily mean 
 that the applicant is free from infirmities. Such an inter- 
 pretation would exclude from the list of insurable lives a 
 large proportion of mankind. The term must be interpreted 
 with reference to the subject-matter and the business to 
 which it relates. Slight troubles, not usually ending in 
 serious consequences, and so unfrequently that the possibil- 
 ity of such result is usually disregarded by insurance com- 
 panies, may be regarded as included in the term "good 
 health."^ Good health means apparent good health, with- 
 out any ostensible, or known, or felt symptom of disorder, 
 and does not exclude the existence of latent unknown de- 
 fects.* The fact that death may ensue, and in fact does un- 
 expectedly ensue in the particular case, from one of these 
 slight troubles, or from the disease which the applicant has 
 represented that he did not have nor never had, is of little 
 importance.® But a predisposition to a disease, — dyspep- 
 sia, for instance, — of such a character and to such a degree 
 as to seriously affect the health and to produce bodily in- 
 firmity, is incompatible with a warranty of good health.^ 
 
 1 Rose V. Star Ins. Co., 2 Irish Jurist, o. s. 206. 
 
 2 Stackpole v. Simon, 2 Parke, Ins. 648. 
 
 3 Peacock v. N. Y. Life Ins. Co., 20 N. Y. 293, affirming s. c. 1 Bosw. (N. Y. 
 Superior Ct.) 338. 
 
 * Hutchinson v. Nat. Loan Ass. Soc, 7 Ct. of Sess. (Scotch) 2d ser. 467 ; s. c. 
 2 Big Life & Aco. Ins. Cas. 444. 
 
 ^ Watson V. Mainwaring, 4 Taunt. 763 ; Fahrenkrug v. Electric &c. Ins. Co., 
 63 111. 463. See also Edington v. Mtna Life Ins. Co., 77 N. Y. 564. 
 
 6 New York Life Ins. Co. v. Flack, 3 Md. 34L 
 
 VOL. I. — 40 625 
 
§ 296] insurance: fire, life, accident, etc. [ch. xiv. 
 
 The fact, however, that some six months or a year previous 
 to the insurance the applicant had suffered from dyspepsia 
 while afflicted with an abscess is not conclusive evidence of 
 a breach of warranty that he was not "subject to dyspep- 
 sia. " ^ Nor is the fact that a man was pardoned out of the 
 State prison on the ground that he had had hemorrhage of 
 the lungs conclusive evidence that some months afterwards 
 he had, as a disease, consumption, hemorrhage of the lungs, 
 or spitting of blood. ^ A "healthy life" is a good life, one 
 that would be taken at common rates ; and one which would 
 be charged higher than the usual rate of premium is not a 
 healthy life.^ And a "drunken fellow" is not a good life.* 
 Equivocation in the answers touching health is of course as 
 fatal as falsehood.^ [Where the questions were, "State so 
 far as you know what was the age at death, cause of death, 
 &c., of each of the following persons if deceased. What is 
 the age and present state of health of each of them if now 
 living 1 Are you now in good health and is your health 
 usually good ? " it was held that " so far as you know " did 
 not qualify the last question, and as the answers were made 
 warranties any falsity in fact in the answer to the last ques- 
 tion would avoid the policy.®] 
 
 § 296. Serious Illness ; Serious Injury ; Tendency to shorten 
 Life ; Local Disease. — The ordinary question whether the 
 applicant has ever had any serious illness — as the word 
 " serious " is a relative term, involving a question of degree, 
 and it being certain that there are all degrees of illness, 
 from the slightest, about which no concern is felt by any 
 one, to the most aggravated, attended by the most alarming 
 developments and the most serious consequences, about which 
 there is everywhere the highest degree of concern, and as 
 
 1 World, &c. Ins. Co. v. Sohultz, 73 111. 686. 
 
 2 Equitable Life Ins. Co. v. Patterson, C. Ct. (Mass. ) 10 Ins. L. J. 384. 
 » Brealey v. Collins, 1 Yon. 317 ; Boss v. Bradshaw, 1 W. Bl. 312. 
 
 * Weskett, Ins. 335. In Taylor's Medical Jurisprudence may be found many 
 valuable suggestions on the subject of representation as to health and disease 
 and personal habits, with references to some cases not elsewhere reported. 
 Phila. ed. 1866, 738 et seq. 
 
 6 Smith V. Mtna, Life Ins. Co., 49 N. Y. 211. 
 
 6 [Mayer v. Equit. Eeserre Fund L. Ass., 49 Hun, 836.] 
 
 626 
 
OH. XIV.J HEALTH, HABITS, AGE, ETC. [§ 296 
 
 even a disease regarded in its course as of the most trivial 
 in its cliaracter may be followed by the most serious results 
 — seems to be a question of opinion, the expression of which 
 should be based upon intelligence and good faith. Nor does 
 it include the ordinary malarial diseases of the neighboring 
 country, which yield readily to medical treatment, and when 
 ended leave no permanent injury to the physical system ; but 
 refers to those severe attacks which often leave a permanent 
 injury and tend to shorten life, and which might be fairly 
 regarded as likely to influence the insurers in determining 
 whether they would insure.' [Excessive drinking of liquor 
 is a violation of a warranty that the insured "will not prac- 
 tise any pernicious habit that obviously tends to shorten 
 life. "^] Whether the injury is serious or not depends as 
 much upon the impression produced at the time when it 
 happened as upon its history and consequences.^ What one 
 may call serious another might not ; and where there is no 
 test furnished by the insurers by which the applicant can 
 know what serious illness means, his failure to mention one 
 which he does not regard as serious works no forfeiture of 
 the policy, though in fact the illness not mentioned was a 
 serious one.* A "serious illness" must be one which per- 
 manently impairs the constitution and renders the risk more 
 hazardous.^ So, if the inquiry be as to the prior existence 
 of disease having a tendency to shorten life, or rendering an 
 assurance upon it more than usually hazardous. An honest 
 belief in the truth of his answer is all that is required of the 
 applicant.^ He may have had repeated attacks of disease, 
 
 1 Holloman v. Life Ins. Co., 1 Woodfs (U. S. C. Ct.), 674. 
 
 2 [Schultz V. Mut. Life Ins. Co., 10 Ins. L. J. 171, 2d Cir. (N. Y.) 1881 ; 
 Brockway v. Mut. Benefit Life Ins. Co., id. 762.] 
 
 3 Insurance Co. v. Wilkinson, 13 Wall. (U. S.) 222. And see post, § ^S9. 
 
 4 Hogle V. Guardian Life Ins. Co., 6 Eob. (N. Y. Superior Ct. ) 567 ; Hollo- 
 man V. Life Ins. Co. (C. Ct.), 1 Woods, 674. 
 
 6 Illinois Mason's Soc. v. Winthrop, 85 lU. 537. See also ante, §§ 193, 210. 
 
 8 [Where the applicant was required to state whether he had had certain dis- 
 eases, and he replied that he had not, the court held upon examination of the 
 whole policy that the intent was only to require good faith, and that although 
 the insured might have had one or more of the diseases, — scrofula, asthma, and 
 consumption, in this case, — yet if at the time of application he did not know or 
 believe that he had ever been afflicted with either of them in a sensible, appre- 
 
 627 
 
§ 296] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIV. 
 
 but if he does not know or have reason to believe that they 
 corae within the range of the inquiry, his failure to answer 
 is immaterial, even though in point of fact they had a ten- 
 dency to shorten life and to increase the hazard of the risk.^ 
 In such cases the rule seems to be that if the inquiry call for 
 an answer which involves a matter of opinion, the applicant 
 is answerable only for the honesty of his opinion, although 
 the answer be untrue in fact So, where it was untruly 
 stated that the party had not had rupture.^ And substan- 
 tially the same rule was laid down in Hutchinson v. National 
 Loan Assurance Society,^ where the inquiry was whether any 
 material circumstances touching health or habits of life with 
 which insurers ought to be made acquainted was withheld, 
 and it was decided that the answer was only a warranty to 
 the extent of the knowledge and reasonable belief of the in- 
 
 ciable form, the policy was not avoided, Moulor i;. American Life Ins. Co., Ill 
 U. S. 339, 340. It has been held, however, that if the plaintiff has Bright's dis- 
 ease so well defined as to cause functional derangement, the policy is void whether 
 the plaintiff knew of the disease or not. An ailment, however, which produces 
 no functional disorder, and of which the person affected is unconscious, can hardly 
 be called a disease within the meaning of an insurance contract. Continental Life 
 Ins. Co. u. Yung, 113 Ind. 159. In construing the question "Have you had 
 finy . . . open sores, lumps, or swellings of any kind, ... or any malformation, 
 illness, or injury," sores must result from functional derangement and not from 
 wounds, and whether any injury was of so slight a character as to be unworthy of 
 mention as beyond the reasonable contemplation of the parties is a question for 
 the jury. Home Mut. Life Ass. v. Gillespie, 110 Pa. St. 84.] 
 
 1 "In the argument," said the court, in Jones v. Provincial Ins. Co., 3 C. B. 
 N. s. 6.5, "we were referred by the defendant's counsel to several authorities, — 
 amongst others, Lindeneau v. Desborough, 8 B. & C. 586, — establishing the 
 proposition, which, as a rule, is indisputable, that it is the duty of a party effect- 
 ing an insurance on life or property to communicate to the underwriters or other 
 insurer all material facts within his knowledge touching the subject-matter of 
 insurance, and that it is a question for the jury whether any particular fact was 
 or was not material to be communicated. It is, however, equally clear that the 
 underwriters may in any particular case limit their right in this respect to that of 
 being informed of what is in the knowledge of the assured, not only as to its 
 existence in point of fact but as to its materiality ; and in our opinion that is the 
 effect of the limited declaration required in the present case as to disorders or cir- 
 cumstances tending to shorten life or to render an insurance upon the life insured 
 more than ordinarily hazanious." 
 
 2 Life Association v. Foster, 11 Ct. of Sess. Cas. 2d ser. 351, an elaborate and 
 well-considereil case ; ante, § 175. 
 
 3 7 Ct. of Sess. Cas. 2d ser. (Scotch) 467 ; Mallory u. Travelers' Ins. Co., 47 
 N. Y. 52 ; 2 Ins. L. J. 839. 
 
 628 
 
CH. XIV.] HEALTH, HABITS, AGE, ETC. [§ 296 
 
 sured. " A disease requiring confinement " seems to be one 
 calling for the attendance of a physician.^ And it has been 
 held as matter of law that tubercular affection of the lungs, 
 or tubercles upon the lungs, or tubercles on the brain, or 
 consumption, either of them constitutes "local disease."^ 
 But generally whether a disease or injury is in fact one, or 
 is serious, slight, local, or otherwise qualified, or not, will 
 certainly, if there be any discrepancy in the testimony or 
 doubt as to its meaning, be a question for the jury.'' Where 
 the inquiry is whether the life insured has had "insanity, 
 scrofula, &c.," of a hereditary character, or "other heredi- 
 tary disease," the word "hereditary" qualifies the several 
 specified diseases.* [In a case where it was provided that 
 any untrue or fraudulent statements in the application should 
 vitiate the policy, it appeared that in answer to the question 
 whether certain of his relatives had any hereditary disease, 
 the applicant. A., said, "No hereditary taint of any kind in 
 family on either side of house, to my knowledge." The 
 company proved that an uncle of A. had been insane, and 
 died in an insane asylum about twenty years before the ap- 
 plication. The jury were instructed to find for the plaintiff, 
 and the United States Supreme Court held the instruction 
 right. The company was bound to prove not only B. 's in- 
 sanity, but that it was hereditary, and that both facts were 
 known to A. when he answered the question.^ So when the 
 assured stated that his relations had not been afflicted with 
 
 1 Cazenove v. Brit. Eq. Ass. Co., 6 C. B. N. s. 437. 
 
 2 Scoles V. Universal Life Ins. Co., 42 Gal. 523. 
 
 » Southern Life Ins. Co. u. Wilkinson, 13 Wall. (U. S.) 222. See also ante, 
 § 187; Boos V. World, &o. Ins. Co., 64 N. Y. 236 ; Moulor v. American Life Ins. 
 Co., 101 U. S. 708; Mutual Life Ins. Co. v. Snyder, 93 id. 393 ; Manhattan Life 
 Ins. Co. V. Francisco, 17 Wall. (U. S.) 67^ ; Watson v. Mainwaring, 4 Taunt. 
 763 ; ante, § 295 ; Moore v. Connecticut, &c. Ins. Co., Sup. Ct. (Dom.), reversing 
 s. c. 3 Ont. Ct. of App., Ontario Dig. Insurance addenda, 1880 ; Newton v. Mut- 
 ual Ben. Life Ins. Co., 76 N. Y. 426 ; Trefz v. Knickerbocker Life Ins. Co., C. Ct. 
 (N. J.), 6 Ins. L. J. 850 ; Conover v. Massachusetts Ins. Co., 3 Dill. C. Ct. (Minn.) 
 224 ; post, § 581. 
 
 4 Newton o. Mutual Benefit Life Ins. Co., 76 N. Y. 426; Peasley v. Safety 
 Deposit Company, 15 Hun (N. Y. ), 227 ; Sinclair v. Phoenix Life Ins. Co., C. 
 Ct. (Minn.) 9 Ins. L. J. 523 ; North Western Life Ins. Co. v. Gridley, 100 U. S. 
 614 ; Southern Life Ins. Co. v. Wilkinson, 53 Ga. 536. 
 
 6 [Insurance Co. v. Gridley, 100 U. S. 614, 616, 1879.] 
 
 629 
 
§ 297j INSUEANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. XIV. 
 
 insanity, it was held that proof of a mere temporary case of 
 insanity in one of them was not a defence, it must appear 
 to have been constitutional and hereditary in its nature.^ 
 Whether or not sunstroke and pneumonia are " serious dis- 
 eases " is for the jury, when expert evidence conflicts. ^] 
 
 § 297. Subject to or afflicted with Disease. — And the same 
 rule is applicable to inquiries whether the applicant has been 
 afflicted with any particular disease or symptoms of disease. 
 He is bound to answer in goftd faith and according to his 
 knowledge, — that knowledge which a man of ordinary in- 
 telligence ought to have, and in, law is presumed to have, 
 touching matters relating to his own physical condition and 
 history. Though some of the cases make use of language 
 strong enough to require that he must answer truthfully at 
 his peril, without regard to the applicant's knowledge of, or 
 reason to believe, the truth of the fact as stated or omitted, 
 yet, as we have before seen,^ the facts in those cases did not 
 require so extreme a ruling; and it may be doubted if, in 
 view of the current of opinion, in a case presenting the exact 
 point, the courts using this language will not be found in 
 accord with the other authorities. Thus, where the state- 
 ment in answer to an inquiry as to a particular disease or 
 infirmity, as that the party has not been " afflicted with " or 
 " subject to " fits, for instance, the interpretation to be put 
 upon the clause is not that the person never had a fit acci- 
 dentally, but that he was not at the time of the insurance a 
 person habitually or constitutionally afflicted with fits, or a 
 person liable to fits from some peculiarity of temperament, 
 either natural or contracted, from some cause or other. * [A 
 false statement by the insured that he never had "vertigo" 
 is not material, if it was merely a temporary result of in- 
 
 i [Westover v. Mtna. Life Ins. Co., 2 How. Pr. n. s. 163.] 
 
 2 [Boos V. World Mut. Life Ins. Co., 6 T. & C. 364, 367.] 
 
 8 Ante, §§ 202-205. 
 
 4 Chattock V. Shawe, 1 Mood. & Kob. 498 ; World, &c. Ins. Co. v. Schultz, 73 
 111. 586 ; Sinclair ;;. Phoenix, &c. Life Ins. Co., C. Ct. (Minn.) 9 Ins. L. J. 523 ; 
 ante, § 295. Otherwise, if the question be whether he " ever had " fits. Fletcher 
 V. Mtna. Life Ins. Co., Supreme Ct. Montreal, 4 Ins. L. J. 236 ; France v. .ffltna 
 Life Ins. Co., C. Ct. (Fa.) 2 Ins. L. J. 567 ; 94 U. S. 561. 
 
 630 
 
CH. XIT.] HEALTH, HABITS, AGE, ETC. [§ 298 
 
 digestion. 1] So, where the question was whether the appli- 
 cant had ever been afflicted with the gout. " As to the first 
 answer," said Cockhurn, C. J., in his charge to the jury, in 
 Fowkes V. Manchester and London Life Insurance Company,^ 
 " to the question whether he had ever been afflicted with the 
 gout, no doubt it must be considered with some reasonable 
 latitude, and the answer would not be false merely because 
 he had had some symptoms which an experienced medical 
 man might see indicated the presence of gout in the system. 
 You will probably consider whether there was gout in a sen- 
 sible, appreciable form; and in considering that question 
 you will bear in mind that the medical man himself de- 
 scribed the only attack which preceded the policy as the 
 slightest possible case of gout, and that there is no positive 
 evidence that the deceased knew that he had the gout." 
 Where the insurance is upon the life of a third party, the 
 knowledge and good faith of the third party will be imput- 
 able to the insured, if he undertake for the truth of the state- 
 ments of the "life. "3 
 
 § 298. Afflicted with Disease. — In Vose v. Eagle Life and 
 Health Insurance Company,* the questions were whether the 
 applicant or any of his family had been afflicted with pul- 
 monary complaints, consumption, or spitting of blood, or 
 whether he was afflicted with any disease or disorder, and 
 the court thought he ought to have stated the " symptoms of 
 consumption which he had, and which he knew he had, and 
 which he had had for five months previous," in answer to 
 the last interrogatory. But whether this were so or not, the 
 denial that he had been afflicted with pulmonary complaints, 
 consumption, or spitting of blood, under such circumstances, 
 whether regarded as a warranty or representation, avoided 
 
 1 [Mutual Beneat Life Ins. Co. v. Daviess' Ex'x, 87 Ky. 541.] 
 
 2 3 F. & F. 440. 
 
 8 Duckett V. Williams, 2 CaiT. & Marsh. 348 ; Mutual Benefit Life Ins. Co. v. 
 Cannon, 48 Ind. 264 ; Forbes v. Ed. Life Ass. Co., 10 Ot. of Sess. Cas. (Scotch) 
 451. In Duckett v. Williams it was held that a warranty by the assured, that 
 the life is a good one, cannot be avoided by a want of knowledge and proof of 
 good faith. But see Life Ass. v. Foster, 11 Ct. of Sess. Cas. 2d ser. 351 ; ante, 
 §§ 202-204 ; Archibald v. Mut. Life Ins. Co., 38 Wis. 542. 
 
 4 6 Gush. (Mass.) 42. 
 
 631 
 
§ 298] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIV. 
 
 the policy. In a later case, in the same State, where the 
 question was whether the insured had been " subject to or at 
 all affected by spitting of blood, "^ the appellate cour held 
 the following language : — 
 
 " The court instructed the jury that the repeated spitting 
 of blood, accompanied by a cough, was so far an indication 
 of disease, that' if the applicant had suffered from it he was 
 bound to have so stated ; that if he was subject to occasional 
 spitting of blood, accompanied by a cough, he was bound to 
 have stated that fact, and that the same was true if he had 
 spit blood in a single instance, if recent, and such as to ex- 
 cite apprehension in his own mind that it was the result of 
 disease. 
 
 " Considering the various forms and degrees in which the 
 spitting of blood with a cough may manifest itself, the un- 
 certainty as to its source and cause, and the character of the 
 facts which the testimony in this case tended to prove, we 
 cannot say that the rulings of the court ought to have gone 
 further than this in favor of the propositions of the defend- 
 ant. The mere raising of a small quantity of blood with a 
 cough in a single instance is not necessarily an indication of 
 disease or a material circumstance, so that such an occur- 
 rence, however slight, at any time during the previous life 
 of the applicant, would make his answer such a misrepre- 
 sentation as to require that the court should so declare it as 
 a matter of law. " 
 
 And in the same case, on exceptions after another trial, 
 the question being whether the insured had truly answered 
 the same question relative to "bronchitis," the court say: 
 " It was for the jury to decide whether ' chronic bronchitis ' 
 or ' bronchial difficulty, ' or any other bodily affection or con- 
 dition to which the assured was found by them to have been 
 subject, amounted to bronchitis, consumption, disease of the 
 lungs, or some other of the infirmities stated in the applica- 
 tion, and relied on by the defendants ; and whether the spit- 
 ting of blood by him, if proved to have taken place, was 
 
 1 Campbell ii. New England Mut. Life Ins. Co., 98 Mass. 381. See also Har- 
 tigan V. International Life Ass. Co., 8 L. C. Jour. 203. 
 
 632 
 
CH. XIV.] HEALTH, HABITS, AGE, ETC. [§ 298 
 
 under such circumstances as to indicate disease in his throat, 
 lungs, air passages, or other internal organs." So where 
 the application states that the insured had not had "any 
 spitting of blood, consumptive symptoms," &c., the "spit- 
 ting of blood " must be taken to mean a symptom of disease 
 tending to shorten life, the mere fact being of no signifi- 
 cance, as it may happen from the mere pulling a tooth. Yet 
 the court were of the opinion that if a single instance of 
 spitting of blood was the " result of the disease called spit- 
 ting of blood," it ought to be stated. ^ If he had "spit blood 
 from his lungs, no matter in how small quantity, or even 
 had spit blood from an ulcerated sore throat, he would be 
 bound to state it ; " and one of the learned judges. Pollock, 
 C. B., went so far as to say that "one single act of spitting 
 of blood " ought to have been mentioned, though he had just 
 before said that the expression " spitting of blood " no doubt 
 meant the disorder so called, whether proceeding from the 
 lungs, the stomach, or any other part of the body, leaving 
 it fairly to be inferred that he intended to go no further 
 than his brethren in respect to the single act.^ In Fried v. 
 Royal Insurance Company, the question tried was whether 
 the " spitting of blood " proceeded from the lungs or from the 
 stomach, under a representation by the insured that he was 
 not afflicted with spitting of blood or disease of the lungs. ^ 
 The propriety of submitting the question in this form to the 
 jury seems not to have been contested in either of the appel- 
 late courts, the Supreme Court,* or the Court of Appeals.^ 
 [In answer to the questions, " Has the party had any of the 
 
 1 [But in Michigan it was more sensibly held that a mere temporary ailment, 
 as slight lung trouble, and spitting of blood, that does not undermine the consti- 
 tution, will not affect a policy issued on an application that declares that the 
 plaintiff had never been afflicted with the disease of asthma or blood spitting. 
 Pudritzky v. Knights of Honor, 76 Mich. 428.] 
 
 2 Geach v. Ingall, 14 Mees. & Wels. 95. The court will, in its discretion, order 
 the defendant to file a bill of particulars, setting forth when and where the facts 
 alleged in defence occurred. Dwight v. Germania Life Ins. Co. (N. Y.J, 10 Ins. 
 L. J. 295. 
 
 8 So stated in Bliss on Insurance, p. 159. 
 4 47 Barb, (N. Y.) 127. 
 s 2 Ins. L. J. 126. 
 
 633 
 
§ 298] insurance: fire, life, accident, etc. [ch. xiv. 
 
 following complaints . . . (16) pneumonia, . . . spitting or 
 raising of blood, (20) any disease of the lungs ? " the assured 
 said " No, " and it was held that there was no warranty that 
 the assured never had spitting or raising of blood, but only 
 that he never had it in such form as to constitute a dis- 
 ease. ^ (a)] Fainting fits are not "epileptic or other fits," and 
 1 [Dreier ... Coutiuental Life Ins. Co., 24 led. Rep. 670 (Ind.) 1885.] 
 
 (a) The applicant's answers as to 
 his previous health are warranties and 
 material to the risk. Hambrough v. Mut- 
 ual L. Ins. Co., 72 L. T. 140 ; Maier v. 
 Fidelity M. L. Ass'n, 78 Fed. Rep. 566 ; 
 Nelson v. Nederland L. Ins. Co. (Iowa), 
 81 N. W. 807 ; Petitpain v. Mut. Reserve 
 Fund L. Ass'n (La.), 27 So. 113 ; Aloe 
 V. Mutual Reserve Fund L. As'n, 147 Mo. 
 561 ; Reilly v. Chicago Guaranty Fund 
 L. Society, 75 Minn. 377 ; Boland v. In- 
 dustrial B. Ass'n, 74 Hun, 385 ; Red- 
 mond V. Industrial B. Ass'n, 78 Hun, 
 104; Sternman v. Met'u L. Ins. Co., 63 
 N. Y. S. 674 ; Jerrett v. John Hancock 
 M. L. Ins. Co., 18 R. I. 754. But his war- 
 ranty is, not that the statements in his 
 application are absolutely correct, but 
 that he has not consciously or wilfully 
 falsified. Keatley v. Travellers' Ins. Co., 
 187 Penn. St. 1 97. Some diseases or bod- 
 ily conditions are of such a nature that 
 the question whether they increase the 
 risk of loss is for the jury. See Freeman 
 V. Mercantile Mut. Ace. Ass'n, 156 Mass. 
 . 351 ; Dorey !>. Met'n L. Ins. Co., 172 
 Mass. 234 ; Life Ins. Clearing Co. v. 
 Altshuler, 55 Neb. 341. Rupture is said 
 to be of that class. Levie v, Met'n Ins. 
 Co., 163 Mass. 117 ; see Travelers' Ins. 
 Co. u. Murray, 16 Col. 296. So of tem- 
 porary heart prostrations, especially 
 when the evidence is conflicting. Smith 
 V. Met'n L. Ins. Co., 183 Penn. St. 504 ; 
 Commercial Travellers' Mut. Ace. Ass'n 
 V. Fulton, 79 Fed. Rep. 423. So of 
 "head-aches" : see Mutual L. Ins. Co. 
 !>. Simpson, 88 Texas, 333 ; Petitpain v. 
 Mut. Reserve Fund L. Ass'n (La.), 27 
 So. 113; of "fainting spells": see 
 Manufacturers' Ace. Ind. Co. v. Dorgan, 
 58 Fed. Bep. 945, and of "bronchial 
 
 634 
 
 affections," or the " spitting of blood " : 
 See Mutual Benefit L. Ins. Co. v. Robi- 
 son, 68 Fed. Rep. 723 ; White v. Pro- 
 vident S. L. Ass. Society, 163 Mass. 
 108 ; March v. Met'n L. Ins. Co., 186 
 Penn. St. 629 ; Smith v. Northwestern 
 Mut. L. Ins. Co. (Penn.), 46 Atl. 426. 
 On the other hand, there are conditions 
 and diseases of a nature which requires 
 it to be held, as matter of law, that a 
 misrepresentation as to them is one as 
 to a matter which increases the risk of 
 loss. That the applicant was addicted 
 to the excessive use of intoxicating 
 liquors was held to be such matter in 
 Rainger v. Boston M. L. Ass'n, 167 
 Mass. 109. Consumption developed in 
 the applicant or his .ancestors is also of 
 the latter class. Brown v. Greenfield L. 
 Ass'n, 172 Mass. 498 ; March v. Met'u 
 L. Ins. Co., 186 Penn. St. 629 ; 'Jerrett 
 V. John Hancock M. L. Ins. Co., 18 R. I. 
 754 ; Knights of Pythias v. Rosenfeld, 
 92 Tenn. 508; Met'n L. Ins. Co. i;. 
 Dempsey, 72 Md. 288. 
 
 Under the statute of Iowa providing 
 that when the applicant is declared by 
 the company's medical examiner to be a 
 fit subject of insurance, the company 
 shall be estopped to deny that he was in 
 the required condition of health, unless 
 the policy was procured by fraud or de- 
 ceit, false answers as to health by the in- 
 sured cannot be set up in the absence of 
 evidence that the physician was deceived 
 or was in collusion with insured. Wei- 
 mer v. Economic Life Ass'n (Iowa), 79 
 N. W. 123. The parties cannot contract 
 as to the statements which shall be ma- 
 terial when a statute provides that they 
 must be material in order to affect the 
 risk, but the materiality of the state- 
 
OH. XIV.] HEALTH, HABITS, AGE, ETC. [§ 299 
 
 are consistent with the truth of a representation that the 
 applicant is not subject to "epileptic or other fits."^ And 
 where one is asked whether he has had disease of the liver 
 or throat, this means something more than a temporary ail- 
 ment which indicates no constitutional vice, and leaves no 
 permanent consequences.^ [The length of time before the 
 application that an attack of apoplexy occurred may be ma- 
 terial, in view of the fact that the longer the person lives 
 without a new attack the less likelihood there is of further 
 trouble. ^] 
 
 § 299. Habits ; Intemperance ; Opium-eating. — A warranty 
 that the insured is of sober and temperate habits means that 
 at the time of insurance, and for such a reasonable time 
 prior thereto as would allow of a man evincing a habit, the 
 insured was a temperate man. The question is not whether 
 he was intemperate to such a degree as to injure his health. 
 The insurers have a right to protect themselves by guarding 
 against the risks of pernicious habits; and if one who stipu- 
 lates for habitual sobriety and temperance is an habitual 
 drunkard, he loses his protection under such a warranty, 
 though his health may be good and his constitution unim- 
 paired.* [The questions "Has the party ever been intem- 
 perate ? " " Is he now of temperate habits ? " refers to habits 
 and not to occasional practices.^ If the ordinary habits of 
 a person are temperate, his representation that he was a 
 man of temperate habits is not untrue, though from excep- 
 
 1 Shilling V. Accidental Death Ins. Co., 1 F. & F. 116. 
 
 2 Cushman v. United States Ins. Co., 70 N. Y. 72 ; Eisner v. Guardian Life 
 Ins. Co., C. Ct. (Mo.) 5 Ins. L. J. 613. 
 
 8 [^Vebsteru. Mutual Relief Soc, 20 U. S. R. 347.] 
 
 ■• Southcombe v. Merriman, Carr. & Marsh. 286. 
 
 5 [Union Mut. Life Ins. Co. v. Reif, 36 Ohio St. 596.] 
 
 nients must be determined judicially, application, the by-laws, and the policy 
 
 Even when statements as to diseases in of an assessment association made the 
 
 the application are material, the insured application a warranty, an untrue an- 
 
 is not obligated to remember all his swer as to health avoids the policy, 
 
 temporary ailments and functional dis- though not material to the risk. Aloe 
 
 eases which did not permanently impair v. Mut. Eeserve Fund L. Ass'n, 147 
 
 his health. Fidelity Mut. L. Ass. v. Mo. 561. 
 Miller, 92 Fed. Rep. 63. When the 
 
 635 
 
§ 299] INSUKANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIV. 
 
 tional overindulgence he may have had the delirium tremens.^ 
 I doubt if these rulings are fair. A man who drinks in such 
 a way that he has had the delirium tremens, whether as the 
 result of a single debauch or otherwise, is liable to have an- 
 other debauch and another attack. He is not a temperate 
 man in the true sense and spirit of the question, who is open 
 to such excess, nor does his answer disclose what the com- 
 pany manifestly desires to know, viz. the danger to his life 
 by reason of his appetite for dsink. Literally it is true that 
 one is not less of intemperate habit because he is sober now 
 and then, and so the general habit of a man may be tem- 
 perate and yet he may at times be drunk; but the spirit 
 should govern the letter, and the insured should be held to 
 state facts so manifestly germane to the motive of the ques- 
 tion, if they are near enough in time to be material and in 
 his memory. Technicalities and literalities should not pro- 
 tect the insured any more than the company. Except in 
 very ■c\ea.r cases, the question if habitual intemperance ex- 
 isted is for the jury.^ And it is error to charge that a con- 
 tinuous and daily use of liquor is necessary to constitute a 
 habit. ^ Where it was agreed that if the habits of the in- 
 sured should change so as to increase the risk, the policy 
 should be void, and he became intemperate during the year 
 before his death, but medical opinion was divided on the 
 question of the materiality of the change, it was held, that 
 the change in its nature increased the risk.*] Especially 
 have the insurers a right to know that the insured had had 
 delirium tremens within one year prior to the issuing the 
 policy, and that during the year prior to that he had been 
 attended by his physician on account of the effects of ex- 
 cessive drinking.® In Scotland it is held that the habit of 
 using opium, laudanum, or spirituous liquor to such an ex- 
 tent as to impair the health is one that ought to be disclosed. 
 
 1 [Insurance Co. v. Foley, 105 TJ. S. 350, 354.] 
 
 2 [Northwestern Ins. Co. v. Muskegon Bank, 122 U. S. 501.] 
 s [Union Mut. Life Ins. Co. v. Reif, 36 Ohio St. 696.] 
 
 ^ [Boyoe v. Phcenix Mut. Ins. Co., 14 Can. S. C. R. 723 (three judges dis- 
 senting. ] 
 
 6 Hutton V. Waterloo Life Ass. Soc, 1 F. & F. 735. 
 
 636 
 
CH. XIV.J HEALTH, HABITS, AGE, ETC. [§ 299 
 
 And a policy was held void for non-communication of this 
 fact, the applicant having stated that he was in perfect 
 health, and a negative answer by both the medical and other 
 referees to the question whether "they knew any reason why 
 an insurance on the life would be more than usually hazard- 
 ous " having been given.i If the agreement is that at the 
 time of the insurance the insured is a man of sober and 
 temperate habits, and that is not the fact, it is no answer 
 to say that the habits were not such as to injure the health. ^ 
 Addicted to the excessive use of intoxicating liquor means 
 habitual excessive use, not occasional. There is no sharp 
 division between ebriety and inebriety, what is habitual and 
 what occasional, what is temperate and what is intemperate. 
 The words, however, are not technical, and it is for the jury 
 to say whether the circumstances bring the insured within 
 either category.2(a) Habits of intemperance acquired sub- 
 
 1 Forbes v. Ed. Life Ass. Co., 10 Ct. of Sess. Cas. (Scotch) 1st ser. 451. 
 
 2 Southcombe v. Merriman et al., Carr. & Marsh. 286 ; McGinley v. United 
 States Life Ins. Co., 77 N. Y. 495 ; affirming s. c. in the C. C. P., 7 Ins. L. J. 791 ; 
 Fox V. Pennsylvania, &c. Ins. Co., Dist. Ct. Phila., 4 Big. Life & Ace. Ins. Cas. 
 458 ; Furniss v. Mut. Ins. Co., Supr. Ct. (N. Y.) 11 Reptr. 98. 
 
 3 MovTry v. Home Ins. Co., 1 Big. Life & Ace. Ins. Cas. 698 ; 9 E. I. 346 ; 
 Swick V. Home Life Ins. Co., 2 Dill. C. Ct. 160; John Hancock, &c. Ins. Co. w. 
 Daly, 65 Ind. 6 ; Holterhoff v. Mutual Benefit Life Ins. Co., 3 Am. Law Record, 
 272 ; s. 0. 4 Big. Life & Ace. Ins. Cas. 395. In this case the court distinguished 
 between periodical "sprees" and habitual intemperance, unless the "sprees" 
 were frequent and aroused an uncontrollable appetite while they continued, in 
 which case the habit of intemperance might be said to exist ; and Tilden, .1., thus 
 defined "habit :" "A habit ... is a disposition or condition of the mind or 
 body, — a tendency or aptitude for the performance of certain actions acquired 
 by custom or frequent repetition of the same acts. Habit is that which is held 
 or retained, — the effect of custom or frequent repetition. Hence we speak of 
 good habits or bad habits." See also Union Ins. Co. v. Reif (Ohio), 10 Ins. L. J. 
 428. 
 
 (a) See Hanna v. Conn. Mut. L. Ins. of using intoxicating liquors to excess 
 
 Co., 150 N. Y. 526; Janneck v. Met'n increases the risk of loss in life insur- 
 
 L Ins. Co., 162 N. Y. 574 ; Masons' ance, and a misrepresentation as to such 
 
 Union L. Ins. Ass'n u. Brockman, 20 habit by the assured in his application 
 
 Ind. App. 206 ; Waters v. Supreme for insurance avoids the policy, under 
 
 Conclave Knights of Damon, 105 Ga. Mass. St. 1895, c. 271, whether he did 
 
 151 ; Ins. Co. v. Lauderdale, 94 Tenn. or did not actually or knowingly intend 
 
 635 ; Mutual L. Ins. Co. v. Thomson, to deceive the insurer by such state- 
 
 94 Ky. 253 ; Union Central L. Ins. Co. ment. Rainger v. Boston Mut. L. Ass'n, 
 
 u. Lee (Ky.), 47 S. W. 614. The habit 167 Mass. 109. There must be a habit 
 
 637 
 
§ 299] INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIV. 
 
 sequent to the insurance, even though the cause of death, 
 will not avoid the policy, unless expressly so stipulated.^ 
 And a declaration by the assured that he " does not now, nor 
 will he, practise any pernicious habit that obviously tends to 
 the shortening of life," as to the latter clause is a mere dec- 
 laration, and not a covenant the violation of which will work 
 a forfeiture of the policy.^ And that the insured died from 
 an injury received while intoxicated is immaterial,^ unless 
 the policy provides to the contrary.* But a man cannot 
 truly be said always to have been sober and temperate, who, 
 though usually of sober and temperate habits, occasionally 
 indulges in drunken debauches, which sometimes terminate 
 in delirium tremens.^ (a) And that one's habits were intem- 
 perate recently prior to the application is evidence of his 
 habits at that time.^ And where such habits, "seriously 
 
 1 Eeichard v. Manhattan Life Ins. Co., 31 Mo. 518; Horton v. Equitable Life 
 Ass. Soc. of the United States, C. C. P. (N. Y.) 1870 ; s. o. 2 Big. Life & Ace. 
 Ins. Cas. 108. 
 
 2 Kneoht v. Mutual Life Ins. Co. (Pa.), 90 Pa. St. 118. But see contra, Hoi- 
 terhoff V. Mutual Life Ins. Co., in/ra. 
 
 » Ibid. 
 
 * Shader y. Railway, &o. Ins. Co., 5 T. & C. (N. Y.) 643. 
 6 Mutual Benefit Life Ins. Co. c. Holterhoff, 2 Cincinnati Sup. Ct. Rep. 379. 
 But see John Hancock, &c. Ins. Co. v. Daly, supra. 
 
 6 Daly V. John Hancock Ins. Co., Sup. Ct. (Ind.), 8 Ins. L. J. 319. 
 
 of using alcoholic stimulants, and not a that the applicant had taken the " Kee- 
 
 single or occasional use, to establish the ley cure " waives conditions in the pol- 
 
 falsity of an applicant's answer that he icy as to intemperance, so far as such 
 
 uses no such stimulants. Grand Lodge cure applies thereto. DeWitt v. Home 
 
 V. Belcham, 145 111. 308 ; Meacham v. Forum Benefit Order, 95 Wis. 305. 
 New York State Mut. Ben. Ass'n, 120 (a) See Provident Savings L. Ass. 
 
 N. Y. 237. The word "temperate," in Society v. Llewellyn, 68 Fed. Rep. 940 ; 
 
 a policy or application, refers to absti- Malicki v. Chicago Guaranty Fund L. 
 
 nence from excessive or injurious use, Society (Mich.), 77 N. W. 690. When 
 
 not to total abstinence. Ibid. ; Cham- this ground is relied upon, the impair- 
 
 bers V. Northwestern M. L. Ins. Co., 64 ment of health caused by the use of in- 
 
 Minn. 495. Impairment of health or toxicating liquors must be serious and 
 
 death re.sulting from alcoholic stimu- permanent. jEtna L. Ins. Co. v. Dem- 
 
 lauts, when taken in good faith under ing, 123 Ind. 384. The insurer has the 
 
 competent medical advice, was held not burden to show that death resulted from 
 
 to violate a stipulation in a life policy this cause. Malicki o. Chicago Guar- 
 
 against their use in .ffltna L. Ins. Co. anty Fund L. Society, supra: jEtna L. 
 
 V. Ward, 140 U. S. 76 ; 123 id. 743. Ins. Co. v. Hanna, 81 Texas, 487. 
 Knowledge of the insurer's secretary 
 
 638 
 
CH. XIV.] HEALTH, HABITS, AGE, ETC. [§ 300 
 
 impairing the health, or inducing delirium tremens," acquired 
 after insurance, are made a ground of forfeiture, evidence 
 that he was a drunlcard before, and that the amount which 
 he drank both before and after was sufficient to impair his 
 health, not amounting to evidence that his health was im- 
 paired or delirium induced by the subsequent intemperance, 
 is inadmissible.^ 
 
 § 300. Same Subject; Distinction bet-ween Ans-wer to Spe- 
 cific Question and a 'Want of Fulness in answer to a General 
 Question. — The Same general questions as to health and 
 habits came before the court in a case where certain of the 
 questions were somewhat different in form from any of those 
 we have been considering, — one, especially, calling for an 
 answer whether the habits of the insured were unifoi-mly and 
 strictly sober and temperate, and it was held that the occa- 
 sional use of intoxicating liquors by the insured did not 
 make his answers untrue.^ 
 
 1 Odd Fellows Mut. Life Ins. Co. v. Rohkopp (Pa.), 9 Ins. L. J. 787. 
 
 2 Swick V. Home Life Ins. Co., 2 Dill. C. Ct. (Mo.) 160. The case was tried 
 before Dillon and Treat, JJ., and seems to have been carefully considered. In 
 charging the jury the court used the following language : " The main defence 
 upon the trial has been rested upon alleged misrepresentations by the assured in 
 the application, respecting his health and his habits as to the use of alcoholic 
 drinks. In the application the following questions were asked of Henry, and 
 answered by him : 6. 'Is your health good (and, as far as you know) free from 
 any symptoms of disease ? ' Answer : ' Yes.' 9. ' Are your habits uniformly 
 and strictly sober and temperate ? ' Answer : ' Yes.' 10 [a). ' Have you ever 
 been addicted to the excessive or intemperate use of any alcoholic stimulant or 
 opium?' Answer: 'No.' 10(6). 'Do you use habitually intoxicating drinks 
 as a beverage ? ' Answer: 'No.' By the terms of the contract between these 
 parties, these answers are warranted to be true ; and it is agreed in the policy 
 that if these answers are untrue or deceptive in any respect, the policy shall be 
 void and of no effect. The parties have the right thus to agree, and are bound by 
 their agreement, and hence the importance of understanding what the questions 
 asked were, and the answers given thereto. This is the more important, because, 
 if the answers given are untrue, the policy is avoided, although there are no in- 
 tentional or fraudulent misstatements, and although the party's habits as to intox- 
 icating drinks did not in fact cause or even accelerate his death. "We remark to 
 you, first, that the questions as to health and habits in respect to intoxicating 
 drinks will be taken to mean what the words employed by those questions usu- 
 ally and commonly mean. They are not words of art, but words of every-day 
 meaning ; and this is a contract not between professional men or lawyers, but a 
 contract that these companies profess to make with the world, and when they ask 
 a man if his health is good, there is no mystery in the question. If you find from 
 the evidence that at the date of the application Henry's health was not good, or 
 
 639 
 
§ 301] IXSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIV. 
 
 § 301. Death by Intemperance ; Proximate Cause — If a 
 policy is by its provisions to be void when the insured shall 
 
 if Henry knew of any symptom of disease which he did not disclose, then there 
 can be no recovery on the policy. If you Hnd the fact to be, as the company 
 contends it was, that Henry's general health was at the time impaired by ex- 
 posure, or from the use of intoxicating liquors, or from any other cause, there 
 can be no recovery on the policy. But if it was shown to the company, or its 
 agent taking the risk, that the assured had, as certified by the family physician 
 to the company, been sick a few days before, and if this was a mere temporary 
 illness which was over at the time, and was disregarded by the company, or its 
 agent taking the risk, as not being within lihe purview of the question asked of the 
 ■ assured in this respect, the policy would not be thereby avoided. Now as to the 
 question respecting intoxicating liquors. These relate to the habits of the party. 
 The applicant stated that he had never been addicted to the excessive or intem- 
 perate use of alcoholic stimulants. This is not a statement that he liad never 
 been addicted to the use of intoxicating liquors at all, but a statement that he 
 had never been addicted to the excessive and intemperate use of them ; and it is 
 untrue if Henry had, and only in case he had, been addicted to the excessive or 
 intemperate use of alcoholic stimulants. The application, in answer to other 
 questions, stated that his habits were uniformly and strictly sober and temperati', 
 and that he did not habitually use intoxicating drinks as a beverage. These 
 questions and answers, you will perceive, relate to the habits of the party in that 
 respect. If the company did not intend to insure any person who used intoxi- 
 cating liquors at all, it would be very easy to ask such a question. But they 
 have not done so. The occasional use of intoxicating liquors by the applicant 
 would not make these answers untrue ; nor would they be rendered untrue by any 
 use of intoxicating drinks which did not make his habits those of a man not uni- 
 formly and strictly sober and temperate, or which did not amount to habitual use 
 of such drinks as a beverage. It is your province to decide from the evidence 
 whether the assured was or was not, at the time the ajiplication was made, a man 
 whose habits were uniformly and strictly sober and temperate, or whether he did 
 or did not habitually use intoxicating stimulants as a beverage ; and if you find 
 his answer to either question to be untrue, there can be no recovery on this policy, 
 although, as above remarked, he did not intentionally make false answers, and 
 although those habits did not in fact cause, hasten, or contribute to the death. 
 We have been asked by the defendant to instruct you that if the answers as to 
 the health and habits are not full, correct, and true, the plaintiff cannot recover, 
 even though the failure to make full answers was unintentional. The application 
 referred to and made part of the policy contains the provision ; ' The undersigned 
 does hereby covenant . . . that the preceding answers and this declaration shall 
 be the basis of the policy ; that the same are warranted to be full, correct, and 
 true, and that no circumstance is concealed, withheld, or uumentioned in relation 
 to the past or present state of health, habits of life, or condition of the said party 
 whose life is to be assured, which may render an insurance on his life more than 
 usually hazardous, or which may affect unfavorably his prospects of life ; ' and 
 that 'if the foregoing answers and statements be not in all respects full, true, and 
 correct, the policy shall be void.' The policy repeats or adopts this jirovision. 
 Now a distinction is to be taken, we think, between untruthful answers to spe- 
 cific questions and the mere failure to make full answers. Such failure, under 
 these provisions, to defeat the policy must relate to some circumstance which 
 might render an insurance on his life more than usually hazardous, or which 
 
 640 
 
CH. XIV. J HEALTH, HABITS, AGE, ETC. [§ 301 
 
 die by reason of intemperance in the use of intoxicating 
 liquor, it must appear that intemperance is the paramount 
 and proximate cause of death. It is not enough that the 
 insured may have been addicted to habits of intemperance, 
 indulged in for a considerable period prior to his death. Such 
 habits doubtless have a tendency to shorten life, but if on 
 this ground payment of a loss may be resisted, no insurance, 
 though knowingly taken, upon the life of an intemperate 
 man would be of any value. To warrant such a defence, it 
 should appear that intemperance was the cause of death, so 
 recently prior to the death, and having such an obvious con- 
 nection with it, that the death may be clearly traceable to 
 it, and fairly be said to have been produced by it. If in- 
 temperance is only a contributory cause, and not the sole, 
 or at least paramount, cause of death, the defence cannot 
 avail ; as in actions for negligence, the plaintiff cannot re- 
 cover unless it be shown that the negligence of the party to 
 be charged is something more than a contributory cause of 
 the injury. Neither intemperance combined with other 
 causes, nor intemperance as a secondary, remote, and pre- 
 disposing cause, even though it may have rendered the in- 
 sured more susceptible to the attack and less capable of 
 resisting the ravages of disease, the disease being the con- 
 trolling and efficient cause of death, will avoid the policy.^ 
 The intemperance or intoxication must also be voluntary,, 
 and not in pursuance of the prescription of a physician, 
 treating him in sickness, though such sickness may have 
 
 might aflfect unfavorably his prospects of life ; while an untruthful or incorrect 
 answer to the specific questions asked renders the policy absolutely Toid, though 
 made in relation to a matter not material to the risk." See also Wilkinson v. 
 Union Mut. Ins. Co., 2 Dill. C. Ct. 570. 
 
 1 Miller v. Mutual Benefit Life Ins. Co., 31 Iowa, 216 ; Holterhoff w. Mutual, 
 &c. Ins. Co. (Cincinnati Snpr. Ot.), 3 Am. L. Rec. 272 ; s. o. 4 Big. Life & Ace. 
 Ins. Cas. 395. Some observations fell from Daly, J., in Horton v. The Equitable 
 Life Assurance Company of the United States (N. Y. Ct. Com. Pleas, 1870, ubi 
 supra), not entirely consistent with the doctrine stated in the text. But they 
 were obiter, and perhaps not well considered. The point decided was that on an 
 issue of the truth of a statement, the truth of which was warranted, that at the 
 time the insurance was effected the insured had never been addicted to habits ot 
 intemperance, the fact that the death occurred from an injury received while 
 intoxicated, and because ot the intoxication, was irrelevant, — a decision which 
 was no doubt correct. See Watson v. Mainwaring, 4 Taunt. 763 ; ante, § 295. 
 VOL. I. — 41 641 
 
§ 302] insurance: fire, life, accident, etc. [ch. xiv. 
 
 been caused by the voluntary excessive use of the prohibited 
 article.^ [If a policy is to be void if the insured becomes 
 " so far intemperate as to impair health or induce delirium 
 tremens," and the death was substantially caused by the ex- 
 cessive use of alcoholic stimulants, not taken for medical 
 purposes or under medical advice, then the assured's health 
 was impaired by intemperance within the meaning of the 
 policy, although he might not have had the delirium tremens, 
 and although he had not indulged in strong drink enough to 
 become habitually intemperate.^ And in another case it 
 was held that if the insured died from a single debauch, 
 continued for one or for ten days, he did become "so far 
 intemperate as to impair his health," although he had, pre- 
 viously to his last illness, led a temperate, or even strictly 
 abstemious life.^] 
 
 § 302. Death from Intemperance. — In another action 
 against the same company,* substantially the same question 
 again arose. The policy provided that the insurers should 
 not be liable if the insured should " die by reason of intem- 
 perance from the use of intoxicating liquors." That the in- 
 sured so died was set up in defence ; and there was evidence 
 to establish the defence, and that the insured had delirium 
 tremens or mania a potu, caused by such intemperance, and 
 that such disease is often fatal. It was also in evidence 
 that morphine, amongst other medicines, was administered 
 in large' quantities to the insured by the physician called to 
 take care of him, as a remedy. The plaintiff claimed that 
 the treatment was improper, and that if the plaintiff had 
 delirium tremens, the death of the insured resulted directly 
 and immediately from the excessive amount of opium ad- 
 ministered, and not from the disease. The defendants 
 requested the court to rule that " if the assured, by intem- 
 perance caused by the use of intoxicating liquors, brought 
 upon himself a disease, fatal in its nature, and a physician 
 
 1 Holterhofif v. Mutual Benefit Life Ins. Co., supra. 
 
 2 [^tna Life Ins. Co. v. Davey, 123 U. S. 739.] 
 
 » [Davey v. jEtna Life Ins. Co., 38 Fed. Rep. 650, 656 (N. J.), 1889.] 
 * Eanney v. Mutual Benefit Life Ins. Co., tried in the Circuit Court of tho 
 United States for the First Judicial District (Mass. ), before Shepley, J., March, 1873. 
 
 642 
 
CH. XIV.] HEALTH, HABITS, AGE, ETC. [§ 302 
 
 was called in who, in good faith and with intent to cure, 
 administered medicines which in fact contributed to, or 
 even caused, the death of the insured," he could not recover. 
 This instruction was refused, but the court did instruct the 
 jury as follows: "The real question in this case is, whether 
 intemperance from the use of intoxicating liquors was the 
 cause of death. If the disease from which the insured was 
 suffering was delirium tremens or mania a potu, or other dis- 
 ease resulting from intemperance from the use of intoxicat- 
 ing liquors, and that disease, though not necessarily mortal, 
 yet from want of helpful application, or neglect of proper 
 care or treatment, produced exhaustion or fever, and conse- 
 quent death, the death would properly be considered as re- 
 sulting from the intemperance, even if the disease were not 
 so mortal in itself but that with good care and under favor- 
 able circumstances the insured might have recovered ; yet if 
 it became the cause of death by reason of the most efficacious 
 mode of treatment not having been adopted, then the plain- 
 tiff would not be entitled to recover. If the death of the 
 assured was caused by any drug administered to him in the 
 course of medical practice for the purpose of cure, in suffi- 
 cient quantity to produce death, and death was the effect of 
 the drug and not of the disease, then, in such case, the death 
 could not properly b'e considered as resulting from the in- 
 temperance in the use of intoxicating liquors, and the plain- 
 tiff upon that branch of the case would be entitled to 
 recover." And the court further instructed the jury "that 
 they were to consider whether the insured caused his own 
 death by the use of intoxicating drinks, or whether the 
 physician caused the death by the use of narcotic drugs ; 
 whether the death resulted from that alone, or whether the 
 man was in a condition in which they failed to relieve him 
 from the disease, and left the disease to cause the death 
 itself; or whether it was of itself the active and immediate 
 cause of the death, and he would have recovered but for 
 that, — is a question of fact for vour determination. " ^ 
 
 1 See also New York Life Ins. Co. v. Boiteaux (Cincinnati Superior Ct.), 5 
 Big. Life & Ace. Ins. Gas. 437 ; s. c. 4 Am. Law Record, 1. 
 
 643 
 
§ 303] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. XIV. 
 
 § 803. Materiality of Statements at the Medical Examina- 
 tion ; Evidence ; Agency. — In a strongly contested ease in 
 New York, the question arose whether the examining physi- 
 cian might testify whether the statement made by the appli- 
 cant, during that application, that he was a man of means, 
 influenced his judgment upon the general question whether 
 the applicant was afflicted with any disease tending to 
 shorten life, and whether the life was one which he could 
 recommend. This evidence was admitted, upon the ground 
 that such a statement was material, and might properly in- 
 fluence the mind of the medical examiner, for the same rea- 
 son that any statements, though not strictly relating to the 
 risk, if they are calculated to determine the question in the 
 mind of the insurer whether he will assume the risk or not, 
 are material, and, if false, avoid the policy. The social 
 relations, the pecuniary circumstances, the fact that others 
 skilled in insurance had taken the same risk, and many 
 other facts not having a direct bearing upon the risk itself, 
 may, and doubtless often do, influence the judgment in de- 
 termining whether to assume the risk. ^ (a) The object of a 
 physical examination of a person proposing to insure his life 
 by a competent physician, it was observed by the court, is 
 to ascertain whether he is laboring under, or is subject to, 
 any disease or defect which may have the effect to shorten 
 life. The inquiry involves an examination not only into 
 the present state of the various organs and functions of the 
 body, but into the tendency of these organs and functions to 
 take on diseases as affected by habits of mind as well as of 
 
 1 Sibbald v. Hill, 2 Dow, 263 ; Anderson v. Fitzgerald, 4 H. of Lds. Gas. 484. 
 
 {a) See Patten i'. United Life & Ace. Ass'n, 60 Fed. Rep. 727 ; Fidelity Mut. 
 
 Ins. Ass'n, 133 N. Y. 450 ; Cobb v. L. Ass'n v. Ficldin, 74 Md. 172 ; 
 
 Covenant Mut. Benefit Ass'n, 153 Mass. Providence L. Ass. Society v. Reutlin- 
 
 176 ; White v. Provident Savings L. ger, 58 Ark. 528 ; Germania L. Ins. 
 
 Ass. Society, 163 Mass. 108 ; Brown v. Co. v. Lnnkenheimer, 127 Ind. 536 ; 
 
 Greenfield L. Ass'n, 172 Mass. 498 ; O'Hara v. United Brethren Mut. Aid 
 
 Finch V. Modern Woodmen of America, Society, 134 Penn. St. 417 ; Kelly v. 
 
 113 Mich. 646; Smith v. Met'n L. Ins. Life Ins. Clearing Co., 113 Ala. 453 ; 
 
 Co., 183 Penn. St. 504 ; Mutual L. Ins. Mutual Life Ins. Co. v. Nichols (Tex. 
 
 Co. It. Arhelger (Ariz.), 36 Pac. 895; Civ. App.), 26 S. W. 998 ; Stewart ». 
 
 Aloe V. Mutual Reserve Fund L. Ass'n, Equitable Mut. L. Ass'n (Iowa), 81 
 
 147 Mo, 561 ; Brady v. United L. Ins. N. W. 782. 
 644 
 
CH. XIV.] HEALTH, HABITS, AGE, ETC. [§ 303 
 
 body, temperament, tendency to disease from hereditary 
 causes, and the occupation and condition in life of the sub- 
 ject. Of two persons of the same age and present bodily 
 health, the one may present a risk entirely safe, the other 
 unsafe. It is impossible to fix limits to the subject into 
 which it is not only proper, but necessary, for an examining 
 physician to inquire, in order to enable him to arrive at a 
 conclusion upon which he can properly advise the accep- 
 tance or rejection. The fact that the applicant declares 
 himself to be a man of means may affect his judgment in 
 such case, and, if so, an answer to that question is material. 
 The physician may therefore be properly inquired of if that 
 statement affected his judgment in recommending the risk.^ 
 On the other hand, it has been held that where the medical 
 examiner had testified that he had been influenced by the 
 fact that the insured had spoken of his great powers of 
 endurance, he could not be asked, on cross-examination, 
 whether if he had known of a certain other fact touching 
 his physical condition, several years previous, that would 
 have influenced his judgment in recommending the risk.^ 
 
 If the medical examiner, however, it being made his duty 
 to explain, mislead the applicant into untrue statements as 
 to his health, the insurers will be estopped to set up such 
 untrue statement as a defence.^ [If the applicant makes a 
 true answer, but the medical examiner writes a false one, 
 unknown to the applicant, the company is responsible for 
 the falsehood.* (a) An applicant for insurance is not bound 
 
 1 Valton V. National Loan Fnnd Life Ass. Soo., 1 Keyes (N. Y. ), 21, revers- 
 ing s. c. 17 Abb. Pr. Rep. (N. Y.) 268. 
 
 2 Mutual, &c. Ins. Co. v. Wise, 34 Md. 582. 
 
 3 Connecticut Life Ins. Co. v. McMurdy (Pa.), 8 Ins. L. J. 509 ; Hurd v. Ma- 
 sonic, &c. Soe. (Indianapolis Supr. Ct.), 6 Ins. L. J. 792; Flynn v. Equitable 
 Life Ass. Soc, 7 Hun (N. Y.), 387; s, c. 78 N". Y. 568. Seealsoante, §§ 123, 214. 
 
 4 [Grattan v. Met. Life Ins. Co., 92 N. Y. 274.] 
 
 (a) This is true even when the appli- serve Fund Life Ass'n, 80 Fed. Rep. 681; 
 
 cation declares the examiner to be the and when such examiner's report is 
 
 applicant's agent: Royal Neighbors of accepted by the company, although he 
 
 America v. Boman, 177 111. 27 ; Mass. was not originally authorized to make 
 
 Benefit Life Ass'n v. Robinson, 104 Ga. the examination. Knights of Pythias 
 
 256 ; but see Hubbard v. Mutual Re- v. Cogbill, 99 Teun. 28 ; 41 S. "W. 340. 
 
 645 
 
§ 304] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIV. 
 
 by the conclusions of the examining doctor from his state- 
 ments, or by the doctor's opinion in regard to them.^ Al- 
 though the medical examiner is the agent of the company, (a) 
 if he is also the beneficiary, and the company knowing this 
 issues the policy on his examination, he will not be com- 
 pelled to show that the transaction was "in every respect, 
 just, fair, upright and clear of all objection. " The burden 
 is on the company to show that his representations were 
 false, to the knowledge of the examiner, or that he did not 
 fairly and fully state the applicant's health. 2] 
 
 § 304. Family Physician; Medical Attendant. — A "family 
 physician " is the physician who usually attends and is con- 
 sulted by the members of a family in the capacity of physi- 
 cian.^ And where the usual medical attendant is inquired 
 for, the one who has been accustomed to attend, and not the 
 one who has occasionally attended, should be mentioned,* 
 although the usual attendant be a quack. ^ But where the 
 usual medical attendant has not been called in for several 
 years, and another is in attendance at the time the policy is 
 applied for, it is for the jury to say, if, in answering the 
 question, " Who is your medical attendant ? " he gives the 
 name of the usual attendant, and does not give the name of 
 his attendant for the time being, the answer is true.^ So 
 is it generally a question for the jury, whether the inquiry 
 about medical attendant is truly answered. '^ The object of 
 
 1 [Lueder's Ex'r ?>. Hartford Life & Ace. Ins. Co., 4 McCrary, 149, 155.] 
 
 2 [Fairchild v. ITorth Eastern Mut. Life Ass., 51 Vt. 613.] 
 
 8 Price V. Phoenix Mut. Life las. Co., 17 Minn. 497 ; Keid v. Piedmont, &c. 
 Ins. Co., 58 Mo. 421. 
 
 * Huckman v. Fernie, 3 Mees. & Wels. 505 ; Monk v. Union Life Ins. Co., 6 
 Eobt. (N. Y. Superior Ct.) 455. 
 
 s Everett v. Desborough, 5 Bing. 503. 
 
 6 Maynard v. Rhode, 1 C. &. B. 360. 
 
 ' Scoles V. Universal Life Ins. Co., 42 Cal. 523 ; Cushman v. United States, 
 &c. Ins. Co., 70 N. Y. 72; Edington v. Mut. &c. Ins. Co., 5 Hun (N. Y.) 1 ; 
 Scanlon v. Sceales, 13 Irish (Law), 71. 
 
 (a) A by-law authorizing the execu- attempt to appoint a medical examiner 
 
 tive officers or trustees of a life com- for life thereunder. Carney v. New 
 
 pany to appoint employees and fix their York L. Ins. Co., 162 N. Y. 453 ; Beers 
 
 compensation is invalid in so far as they v. New York L. Ins. Co. , 66 Hun, 75. 
 
 646 
 
CH. XIV.] HEALTH, HABITS, AGE, ETC. [§ 304 
 
 reference to the medical attendant is to obtain the best in- 
 formation as to the quality of the life proposed, and it would 
 seem that whatever be the form of the inquiry, the answer 
 should be such as the applicant has reason to believe will 
 best accomplish that object. Thus, in Hutton v. Waterloo 
 Life Assurance Society, ^ where special inquiry was made as 
 to sobriety and temperance, and also for the name and ad- 
 dress of the medical attendant of the insured, and the an- 
 swer affirmed habits of sobriety and temperance, and gave 
 the name of a casual medical attendant, but did not give the 
 name of a physician who had then recently attended him, 
 while under delirium tremens, it was held to have been the 
 duty of the applicant to have disclosed the name of the 
 physician who attended him for delirium tremens, although 
 the jury found the answer was not fraudulent. In Forbes v. 
 Edinburgh Life Assurance Company, ^ the insured was asked 
 to refer to a "medical man" (if possible, his usual medical 
 attendant) to ascertain the present and general health of the 
 party to be assured, and gave the name of a physician who 
 could give little information on this point, but omitted to 
 mention the name of one who might have been useful in that 
 particular; and though the case was decided upon another 
 point, the Lord President expressed himself very strongly 
 against this as a fraud which would vitiate the policy. And 
 when one is shown to have been the usual medical attend- 
 ant, the relation will be presumed to be continued, unless 
 a change be shown, within reasonable limits; so that an 
 answer by an applicant that he has no usual medical attend- 
 ant, when in fact he has had one who was in attendance 
 within a month prior to making the application, — there 
 being no evidence of discharge, — is false, and avoids the 
 policy.^ But a former attending physician, who has retired 
 from practice, and has recently attended in a single in- 
 stance, gratuitously and as a friend in an emergency, pend- 
 ing the arrival of another physician who had been sent for, 
 
 1 1 F. &. F. 735. See also Abbott . Howard, Hayes (Irish), 381. 
 
 2 10 Ct. of Sess. Cas. (Scotch) 451. 
 
 8 Monk V. Union Mut. Life Ins. Co., 6 Kobt. (N. Y. Superior Ct.) 455. 
 
 647 
 
§ 304] INSUEANOE : FIBB, LIFE, ACCIDENT, ETC. [CH. XIV. 
 
 is not, as matter of law, an attending physician. At most, 
 it would be a question for the jury.^ An answer to the 
 
 1 Gibson v. American Mut. Life Ins. Co., 37 N. Y. 580. In the case in 
 Minnesota, cited at the beginning of this section, as to the meaning of the phrase 
 "family physician," arriving at the conclusion above given, and for the fol- 
 lowing reasons, Berry, J., speaking for the majority of the court, said ; " The 
 phrase, ' family physician,' is in common use, and has not, so far as we are aware, 
 any technical signification. As used in this instance, and for the purposes of the 
 testimony appearing in this case, the Chief Justice and myself are of opinion that 
 it may be sufficiently defined as signifying the physician who usually attends, 
 and is consulted by the members of a famil^', in the capacity of a physician. We 
 employ the word 'usually,' both because we do not deem it necessai'y to consti- 
 tute a person a family physician, as the phrase is used in this instance, that he 
 should invariably attend and be consulted by the members of a family in the 
 capacity of physician, and because we do not deem it necessary that he should 
 attend and be consulted as such physician by each and all of the members of a 
 family. For instance, the testimony in this case shows that at the time when the 
 application for insurance was made, the family of Richard Price consisted of himself, 
 his wife, and two or three children. We think that a person who usually at- 
 tended, and was consulted by the wife and children of Eichard Price as' a physi- 
 cian, would be the family physician of Richard Price in the meaning of the above 
 twenty-fifth interrogatory, although he did not usually attend on, and was not 
 usually consulted as a physician by, Richard Price himself." The dissenting 
 opinion by McMillan, J., was as follows : " One ground of defence set up is, that 
 at the time the application was made and the policy executed, Richard Price, the 
 deceased, had a family phj-sician. No other issue is taken upon this interroga- 
 tory. It does not appear that the term ' family physician ' has any technical 
 signification ; it is, therefore, for the court to determine the meaning of the 
 phrase, ' family physician of the party. ' As here used, the purpose of the inter- 
 rogatory was to obtain the name and residence of the medical attendant best able 
 to give an account of the physical condition, at the times referred to, of the per- 
 son whose life was assured. Bliss on Life Ins. 171. This intention would be best 
 effected by obtaining a reference to' the physician who was the medical adviser of 
 such person. The interrogatory, it seems to me, was made to embrace the two 
 questions contained in it, and put in the alternative, in order that a true aflirma- 
 tive answer to either would elicit the address of the physician who had charge of 
 the assured as his medical adviser. In both questions the inquiry is for the 
 physician of the party : yet if the phrase, ' family physician of the party,' does 
 not necessarily include the person assured, a true answer in many cases may be 
 given to the first question embraced in the interrogatory, without disclosing the 
 name of the physician of the assured ; for instance, the person whose life is 
 assured may have one person as his individual physician, and a diSerent person 
 as the physician of all the rest of his family ; yet if the construction given by my 
 brethren to the phrase, 'family physician of the party,' be correct, it seems to me 
 he might, in answer to the inquiry for his family physician, truthfully give the 
 name of the physician attending the other members of his family, and without 
 the name of his personal physician ; for, according to this construction, the 
 terms of the question call for nothing more. It may be that such answer would 
 be a true answer to the entire interrogatory, but that is not the question before 
 us ; the only point for us to determine is, whether Price's answer is false in this, 
 that he had a family physician at the time, and answered that he had none. I am 
 
 648 
 
CH. XIV.] HEALTH, HABITS, AGE, ETC. [§ 305 
 
 question, " Have you employed any physicians ? If so, give 
 name or names," giving the name of one, while others had 
 been employed, has been held to be " full, true, and correct, " 
 so far as it went, according to what might be fairly expected 
 from the indefiniteness of the question in point of time.^ [A 
 warranty that the insured had not in a time named " con- 
 sulted, or been prescribed for by a physician," is falsified by 
 proof of such prescription, though it were only for a cold.^] 
 
 § 305, Age ; Residence ; Relationship. — A substantial mis- 
 representation or equivocation as to the age is material, — 
 although a fact not entering into the risk, — in that the age 
 is important in determining the premium, that being at a 
 greater or less rate as the age is more or less advanced.* 
 "It is trifling," said Pollock, C. B., in the case last cited, 
 " to say that that is a true answer which requires something 
 to be added to make it true. " Where there was a mistake 
 of one year in the statement of the age, the court instructed 
 the jury that they might find from certain circumstances 
 that the insurers were estopped to deny the truth of the 
 statement, and if they did so find, the verdict should be for 
 the amount which the premium paid would insure at the 
 actual age. *(a) [An insurance company, however, is charge- 
 unable, therefore, to concur with my brethren in the construction they give to the 
 jjhrase, ' family physician of the party.' I think the phrase, as used in this in- 
 stance, means the physician who usually attends and is consulted by all or most 
 of the members of the family of the person whose life is assured, and that the 
 person thus assured, if he has medical attendance, must be one of the members 
 attended by such physician." 
 
 1 Dilleber v. Knickerbocker Life Ins. Co., 76 N. Y. 567. 
 
 ^ [Metropolitan Life Ins. Co. v. MoTague, 49 N". J. 587.] 
 
 8 Cazenove v. Brit. Eq. Ass. Co., 6 C. B. N. s. 437 ; Murphy v. Harris, Batty 
 (Irish), 206 ; Wray v. Manchester Provident Ass. Co., Nisi Prias, cited from the 
 London Times of March, 1871, by Bliss, Ins. 165 ; Murphy v. Harris, Batty 
 (K. B.), 206 ; France v. ^Etna, &c. Ins. Co., 0. Ct. (Pa.), 2 Ins. L. J. 657 ; Ort- 
 lieb V. Northwestern Ins. Co., C. C. P. Ham. Co. (Ohio), 4 Ins. L. J. 311 ; "West- 
 ropp V. Bruce, Batty (K. B.), 155 ; Continental Ins. Co. o. Goodall (Superior Ct., 
 Cincinnati), 3 Am. Law Rec. 338 ; s. c. 5 Big. Life & Ace. Ins. Cas. 422. [A 
 statement by the applicant for admission to a company which did not receive per- 
 sons over sixty years old, that he was fifty-nine when he was really sixty-four, 
 invalidates the contract. Swett v. Citizens' Mut. Relief Soc, 78 Me. 541.] 
 
 * Epes V. Arlington Ins. Co. (Va.), 8 Ins, L. J. 342. 
 
 (a) The jury are to be instructed the risk as matter of law. Dolan v. 
 that an understatement of age increases Mutual Reserve Fund Life Ass'n, 173 
 
 649 
 
§ 306] INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XIV. 
 
 able with knowledge of all the facts stated by the applicant 
 to the agent as to the time of his birth, and he having truly 
 stated them the agent's misstatement will not avoid the pol- 
 icy. ^ A German applicant understanding English very im- 
 perfectly, when asked his age, said he could not tell; the 
 agent made an estimate of his own and inserted it in the 
 application, which the German signed without knowledge of 
 the statement ; the company was held estopped to set up the 
 error as to age."''] And it has been held that where the 
 applicant truly answered the question as to residence, but 
 failed to disclose the fact that she was in prison at the place 
 of residence, it might be material; and it was for the jury 
 to say whether it was or not, and this although there was 
 nothing in the policy which could be construed as requiring 
 the imprisonment to be stated.^ And in the Superior Court 
 at Buffalo it was held, where the statements were war- 
 ranties, that a representation that the person for whose 
 benefit the policy was taken out was the wife of the appli- 
 cant, when in fact she was not, was untrue and worked a 
 forfeiture.* 
 
 § 306. Occupation. — An untrue statement in the applica- 
 tion, which is made a part of the policy, as to the occupa- 
 tion at the time the application is made, will avoid the 
 
 1 [McCall V. Phcenix Ins. Co., 9 W. Va. 237, 243.] 
 
 2 [Miller v. Phcenix Mut. Life Ins. Co., 107 N. Y. 292.] 
 ' Huguenin v. Rayley, 6 Taunt. 186. 
 
 * Stannard v. Am. Pop. Life Ins. Co., cited in Bliss, Ins. 164. And so it was 
 held in Holabird «. Atlantic Mut. Life Ins. Co., 2 Dillon, U. S. C. Ct. 166. 
 
 Mass. 197. See Mutual L. Ins. Co. v. A misrepresentation as to .sex may 
 
 Blodgett, 8 Tex. Civ. App. 45. The also be material to the risk and fatal to 
 
 question of age is so material that sub- a recovery on the policy, as where the 
 
 stantial falsity in a statement in regard owner was represented to be a success- 
 
 to it is fatal, whether the statement be ful business man, when in fact the 
 
 regarded as a representation or a war- owner was a woman who gave no atten- 
 
 ranty. McCarthy v. Catholic Knights, tion to the risk. Freedman v. Phila. 
 
 102 Tenn. 345, 351 ; Preuster v. Su- F. Ass'n, 168 Penn. St. 249. See 
 
 preme Council, 135 N. Y. 417 ; Albert Mechanics' & Traders' Ins. Co. f. Floyd 
 
 V. Mutual L. Ins. Co., 122 N. C. 92 ; (Ky.), 28 Ins. L. J. 335. 
 
 Vivar v. Knights of Pythias (N. J.) 20 That an age limit may be waived by 
 
 Ins. L. J. 373 ; Wolf v. District Grand the insurer, see Wiberg v. Minnesota 
 
 Lodge, 102 Mich. 23. S. E. Ass'n, 73 Minn. 297. 
 650 
 
CH. XIV.j 
 
 HEALTH, HABITS, AGE, ETC. 
 
 [§306 
 
 policy, (a) What is necessary to be stated is the occupation 
 in which the insured is engaged at the time, and not the 
 occupation in which he may have been generally engaged 
 before that time.^ If one who is in fact a farmer, and has 
 followed that business from his youth up, is occupied in any 
 other pursuits, as a business, at the time he seeks insurance, 
 the special occupation should be stated, and not the general 
 one. The existing status of the applicant, in this particu- 
 lar, is that about which the insurers are interested to know, 
 
 [See § 188 A.] 
 
 (a) See 'Wright v. Vermont Life Ins. 
 Co., 164 Mass. 302; Aldrich u. Mer- 
 cantile Mut. Ace. Ass'n, 149 Mass. 457 ; 
 Kenyon v. Knights Templar Ass'n, 
 122 N. Y. 247 ; Guiltinan v. Met'n L. 
 Ins. Co., 69 Vt. 469 ; Dailey v. Pre- 
 ferred Masonic Mut. Ace. Ass'n, 102 
 Mich. 289 ; Pacific Mut. L. Ins. Co. v. 
 Snowden, 58 Fed. Kep. 342; Triple 
 Link Mut. Ind. Ass'n v. Williams (Ala.), 
 26 So. 19 ; Fidelity Mut. L. Ins. Co. v. 
 Ficklin, 74 Md. 172 ; Perrin v. Pruden- 
 tial Ins. Co., 61 N. Y. S. 249 ; Malicki 
 V. Chicago Guaranty Fund L. Society 
 (Mich.), 77 N. W. 690 ; Standard Life 
 & Ac. Ins. Co. V. Ward, 65 Ark. 295 ; 
 Knights of Maccabees o. Volkert (Ind. 
 App.), 57 N. E. 203. The fact that 
 the insured is killed or injured while 
 engaged temporarily in an act or occu- 
 pation classed as more hazardous than 
 the one in which he was accepted, does 
 not limit his recovery to the amount 
 provided for such more hazardous risk 
 or occupation, when there has been no 
 fraudulent intent to mislead. The mer- 
 chant who at one time measures a few 
 bushels of grain, at another time hangs 
 a few rolls of wall-paper upon his own 
 premises, at another drives horses in a 
 carriage or wagon, or at another rows a 
 boat for exercise or recreation, does not 
 change his occupation so as to change 
 his class under the insurer's classifi- 
 cation of risks, or become at these sev- 
 eral times, a grain measurer, a paper 
 
 hanger, a teamster, or a boatman ; but 
 the word " occupation " refers only to 
 the vocation, profession, trade, or call- 
 ing in which the assured is engaged for 
 trade or profit, and does not preclude 
 him from performing such individual 
 acts and such duties as are mere inci- 
 dents in the daily life of men in any 
 occupation, or from engaging in acts 
 of exercise or diversion. Berliner v. 
 Travelers' Ins. Co., 121 Cal. 458 ; 
 Union Mut. Ace. Ass'n o. Frohard, 
 134 111. 228 ; Stone v. IT. S. Casualty 
 Co., 34 N. J. L. 371 ; Hess v. Preferred 
 Masonic M. Ace. Ass'n, 112 Mich. 196 ; 
 Johnson v. London Guaranty & Ac. 
 Co., 115 id. 86; Perrin v. Prudential 
 Ins. Co., 62 N. Y. S. 720. So a parti- 
 cular hazardous exposure, not a part 
 of the insured's occupation, does not 
 necessarily affect the policy. Ibid. ; 
 Eaton V. Atlas Ace. Ins. Co., 89 Maine, 
 570 ; Kentucky Life & Ac. Ins. Co. v. 
 Franklin (102 Ky.), 43 S. W. 709 ; 
 Berliner v. Travelers' Ins. Co., 121 Cal. 
 451, 458 ; Murphey v. American Mut. 
 Ac. Ass'n, 90 Wis. 206 ; Fox v. Masons' 
 Fraternal Ace. Ass'n, 96 Wis. 390 ; 
 Holiday v. American Mut. Ace. Ass'n, 
 103 Iowa, 178. The contract made by 
 the policy is not affected, as to the in- 
 sured's occupation, by subsequent by- 
 laws made by the insurer on that 
 subject. Hobbs v. Iowa Mut. Ben. 
 Ass'n, 82 Iowa, 107. 
 
 651 
 
§ 306] msuBANCE : fire, life, accident, etc. [ch. XIV. 
 
 and substantial untruth relative thereto is fatal. ^ In Eng- 
 land, it has been held that a representation that the appli- 
 cant was an " esquire " is sufficient, if true, although he was 
 then engaged in business as an iron-monger. Such a state- 
 ment, said Hill, J., "is not untrue, but simply imperfect. 
 Suppose the applicant had been a wine-merchant and a 
 banker, and had put down only that he was a banker, could 
 it have been said that that was an untrue statement ? I 
 think not." The majority of the judges in the Queen's 
 Bench thought the word designated an occupation, and, 
 being true as far as it went, was sufficient; though Cock- 
 burn, C. J., thought the answer tantamount to saying that 
 he had no occupation, and was untrue. ** But the judgment 
 was affirmed in the Exchequer Chamber.^ "It is said," said 
 Williams, J., "the statement of the plaintiff that he was an 
 esquire was an untrue statement, because it was a suppres- 
 sion of the truth ; the truth being that he was also an iron- 
 monger. But there is no foundation for the argument. The 
 plaintiff said, in effect, I am in that position in life in which 
 people are usually addressed as esquires. A man who is in 
 such a position is no more deserving of the imputation of 
 telling an untruth by calling himself an esquire, without 
 adding his trade, than a peer of the realm would be who 
 should describe himself as such, and not also state that he 
 was a brewer, banker, or ironmaster, as the case might be." 
 But the position of the defendant's counsel, that, " in with- 
 holding the fact that he was an ironmonger he was guilty of 
 a suppressio veri tantamount to a positive statement that he 
 had no occupation," does not seem to be satisfactorily an- 
 swered. The language of Williams, J., shows that esquire 
 was a mere title of courtesy indicative of social position, and 
 if this case is law, then a man who is actually engaged in 
 the business of manufacturing nitro-glycerine or gunpowder, 
 if he happen to be a peer, need only state the latter fact. 
 Yet a peer would know, presumably, that the fact that he 
 
 1 Hartman v. Keystone Ins. Co., 31 Pa. St. 466. 
 
 2 Perrins v. Mar. & Gen. Tr. Ins. Co., 2 E. & E. 317. 
 
 3 2 E. & E. 324. 
 
 652 
 
CH. XIV.] HEALTH, HABITS, AGE, ETC. [§ 306 
 
 was a peer was of little or no moment to the insurers, while 
 the fact that he was engaged in a hazardous business was of 
 the greatest moment. It would seem that if a man have two 
 or more occupations, if he be not required to state all, he 
 ought at least to state that one which he has reason to be- 
 lieve the insurers are most interested to know, and whether 
 he had done this in the particular case would be for the jury 
 to say. Perhaps, as was said by Black, J., in the case from 
 Pennsylvania, above cited, where the warranty was that the 
 statement was in all respects true, such warranty ought not 
 to be held to include " inaccuracies which are not material. " 
 But substantial truth certainly is required both by the con- 
 ditions of the contract and by the good faith which ought to 
 inspire the answers to such questions.^ And there is no 
 such substantial difference between a "soda-water maker" 
 and a vender of soda-water as to work a forfeiture.^ If the 
 statement of present occupation be true, however, any subse- 
 quent change will not avoid the policy, if not so stipulated.^ 
 
 1 And see Smitli v. Mtna. Life Ins. Co., 49 N. Y. 211. 
 
 2 Grattan v. Metropolitan Ins Co., 80 N. Y. 281. 
 
 3 Provident Life Ins. of Chicago v. Fennell, 49 111. 180. 
 
 653 
 
INSURANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. XV. 
 
 CHAPTER XV. 
 
 SUICIDE. 
 
 Analysis. 
 
 § 307. "Taking one's own life," or "death by one's own liands," is 
 
 usually excepted in life policies, 
 a policy obtained with intent to commit suicide would be 
 
 void without any proviso, § 307, n. 
 but one bona fide taken, with no provision covering self-de- 
 struction, or contemplation of it, should be sustained 
 in the absence of a clause of exception; the point how- 
 ever is doubtful on authority ; see below, §§ 323-324. 
 when there is an exception, voluntary death by one in pos- 
 session of his faculties is within it by all authorities, 
 §307. 
 while accidental, unintended death is not, though by one's 
 own act ; (see also § 321). 
 ailthough the policy expressly excludes death by tak- 
 ing poison, such taking by mistake is not fatal to 
 the policy, though it may be to the man, § 307. 
 but in regard to suicide by an insane person, opinions 
 differ, § 307 ei seq. 
 § 308. " Death by his own hand " held to mean the same as suicide, felo 
 
 de se, criminal self-destruction (see also § 316). Every 
 man in providing for his family must contemplate that 
 insanity is one of the diseases by which he may die. 
 Three opinions (or two at least) as to when the excep- 
 tion applies. 
 (1) Insured must be morally responsible and not under irresistible 
 impulse. 
 In order to avoid the policy the insured must be able to appre- 
 ciate the nature and quality of his action, and must act 
 voluntarily in the sense of being morally responsible, and 
 not under the control of an irresistible impulse, §§ 307, u., 
 308, 316. The person whose life is insured gets no 
 money, and the love of life is strong enough generally to 
 guard against death for the benefit of others. One who 
 dies by his own insane act dies by disease, and the form it 
 takes does not alter the fact, § 311. Even clear intelli- 
 gence has been held not to bring the case within the 
 exception, where the will was subordinated to uncontrol- 
 lable emotion, § 312. 
 
 654 
 
CH. XV.] SUICIDE. 
 
 § 309. (2) Clear understanding of physical nature of the act enough. Some 
 
 cases hold that the exception applies if the assured knew 
 what he was doing and that the consequence of his act 
 would he death, but that if unconscious of what he was 
 doing, and acting under an insane delusion overpowering 
 his will, it does not apply, §§ 307, 309 ; see also §§ 317, 
 318. 
 This is the best view ; see next paragraph. 
 § 310. (3) Evidence of insanity excluded. Some cases go as far as that in 
 
 their assertions, saying that the act of self-destruction 
 brings the case within the letter of the agreement, and that 
 the court could not qualify the contract made by the par- 
 ties, § 310. The case, however, as qualified in the opin- 
 ion, seems identical in principle with the second group. 
 The court say that moral responsibility does not affect the 
 question. It was against intentional self-destruction that 
 the company provided, to secure Itself against any motive 
 of the insured to provide for his dear ones by taking him- 
 self off ; and such a motive may act on a diseased mind 
 as well as on one that is sound ; (see also § 316, 2). 
 
 This seems the sense and spirit of the matter. The letter 
 covers all self- killing ; but the reasmi of the exception must 
 govern, and the policies should protect the beneficiaries so 
 far as possible. They need it as much in case of suicide 
 as in any other. On the other hand, to hold " death by 
 his own hand " identical with criminal suicide, and to re- 
 quire moral responsibility and freedom from irresistible 
 impulse, is clearly making a new contract very different 
 from the plain sense and spirit of the words. It is a ques- 
 tion if any impulse that causes action is resistible. The 
 prospect of providing for wife and family may in some 
 states of mind be an irresistible motive, yet it is the very 
 one the company wishes to exclude. 
 
 One thing is clear, there must be an intent to take his life, 
 §321. 
 accident, overpowering force, or a fit of delirium or frenzy 
 are not within the stipulation, §§ 310, 5, 320 ; but if ' 
 the will acts though the person is not responsible, the 
 policy is void, §§ 313-315. 
 § 322. The insurers may eliminate the que.stion of insanity by express 
 
 words, but they will have to be very careful to make those 
 words strong and clear. " Die by his own hand under any 
 circumstances " is not enough, nor ' ' sane or otherwise, "nor 
 " voluntary or involuntary; " but " felonious or otherwise " 
 has been held suflicient, and " sane or insane " is certainly 
 so, — at least the courts have not yet found a way to over- 
 come it. 
 
 a by-law subsequent to the policy will not do. 
 
 sometimes there is a provision to pay back the premiums and 
 interest in case of suicide. 
 § 323. Suicide in a fit of insanity does not affect the policy unless there is 
 
 an express provision, § 323. 
 
 655 
 
§ 307] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. XV. 
 
 and there is some authority that no suicide will affect heirs 
 and beneficiaries unless so provided, § 324 ; a policy 
 issued for the benefit of a third person is not affected by 
 suicide, although voluntary and sane. 
 An express insurance against voluntary suicide is void as against 
 public policy. 
 § 324. except as in favor of one bona fide interested in the policy 
 
 for value. 
 
 § 307. Suicide; Death by One's own Hands; Taking One's 
 own Life. — Prominent among the causes which insurance 
 companies have provided^ shall exempt them from liability 
 under life policies is death by suicide; or, as it is sometimes 
 expressed, if the insured ''shall die by his own hands," or 
 "take his own life." It is prominent also in the difficulty 
 which has been found in determining the meaning of the 
 provision, and the learning and ability which has been dis- 
 played in the attempt. The courts seem to delight in its 
 discussion. There seems to be about this question a fasci- 
 nation which the judicial mind is unable to resist; and 
 whenever the question presents itself, whether in the courts 
 of Westminster Hall, or those of our western wilderness, it 
 has given rise to so many and such interesting opinions as 
 to have secured for the student, if not relief from his per- 
 plexing doubts, at all events recreation and instruction 
 while he is devoting himself diligently to inquiries which 
 he hopes may result in such relief. 
 
 Upon the question of voluntary suicide intentionally com- 
 mitted by a sane man in the possession of his faculties, 
 knowing how to adapt means to ends, and conscious of the 
 immorality of the act, there is not, as indeed there could not 
 well be, any difference of opinion, and all authorities agree 
 that such a suicide is within the exemption. And all the 
 authorities likewise agree that an accidental death, as by 
 taking poison ^ by mistake, or shooting one's self with a 
 
 1 [A policy obtained with intent to commit suicide is void for fraud in its 
 inception, without any clause concerning self-destruction. Smith v. National 
 Ben. Soc, 51 Hun, 576.] 
 
 ^ [Even a policy which expressly excludes death " by taking poison " does not 
 cover a case of taking poison by mistake, and the beneficiai'y in such a case can- 
 not recover. Pollock ti. United States Mut. Ace. Ass., 102 Pa. St. 230.] 
 
 656 
 
CH. XV.] SUICIDE. [§ 307 
 
 pistol, supposing it not to be loaded, or falling from a 
 building, or death happening in any way by the unintended 
 act of the party dying, is not within the exemption. ^ But 
 whether suicide by an insane man is also within the exemp- 
 tion has been the question in dispute, and upon this two 
 prominent and different doctrines have been maintained. 
 On the one hand, it is maintained that if the act be volun- 
 tarily done in pursuance of an intelligent purpose, and in- 
 tentionally and intelligently carried out by the proper 
 adaptation of means to ends, it is suicide on the part of 
 the insured, or death by his own hands, although insanity 
 exist to such an extent that he may not be able to appreci- 
 ate the moral qualities of the act.^ On the other hand, it is 
 maintained with equal vigor, that, however intelligently the 
 act may be done, if at the time the will be overpowered by 
 an uncontrollable impulse, or the party be unable to appre- 
 ciate the moral character of the act, it is not within the 
 meaning of the provision.^ [Where the insured fell, and 
 
 1 [A death by accidental or unintentional self-killing, is not suicide voluntary 
 or involuntary. Keels v. Mutual Reserve Fund Ass., 29 Fed. Rep. 198 (S. C), 
 1886. And a condition for avoidance in case the assured shall die by his own 
 hand, sane or insane, does not cover a case of death by act of the insured not 
 intended to cause death, as by an overdraught of whiskey taken as medicine in a 
 weak state of health. Northwestern Mut. Life Ins. Co. a. Hazelett, 106 Ind. 
 212.] 
 
 ^ [The company must show that the insured knew the physical nature of his- 
 act, and that it would result in self-destruction ; but is not bound to show that 
 he was legally or morally responsible. Mutual Ben. Life Ins. Co. v. Daviess' 
 Ex'x, 87 Ky. 541. It makes no difference that he was incapable of knowing the- 
 moral nature of his act. Nimick v. Mutual Ins. Co., 10 Am. L. Reg. H. s. 101 ; 
 3d Cir. (Pa.) 1881 ; Gay v. Union Mut. Life Ins. Co., 9 Blatch. 142.] 
 
 ' [If the reason of the insured is so far impaired that he does not understand 
 the general nature, consequences, and moral character of his act, or if he is im- 
 pelled to it by an insane impulse that he has not the power to resist, the death 
 is not within the contemplation of the parties to the exception, and the company 
 is liable. Life Ins. Co. u. Terry, 15 Wall. 580 ; Waters v. Conn. Mut. Life Ins. Co., 
 2 Fed. Rep. 892 ; 9 Ins. L. J. 337. It is difficult to see what this leaves of the 
 exception, for every suicide is due to "an insane impulse which the victim has not 
 the power to resist." Suppiger v. Covenant Mut. Ben. Ass., 20 Brad. 595. Sui- 
 cide and self-destruction are synonymous, and in law imply capacity to form a 
 legal intention and deliberate action. Wherefore if the insured was not able to 
 understand the moral nature of his act, or was impelled by an impulse too strong 
 for him to resist, it is not self-destruction, although he knew and intended that 
 the result of his act should be fatal. New Home Life Ass. o. Hagler, 29 111. App. 
 VOL. I. — 42 657 
 
§ 309] INSUKANCE: FIRE, LIFE, ACCIDENT, ETC. [CH. XV. 
 
 about six weeks after became insane, and took his life, it 
 was held that the question whether the fall was the cause of 
 the killing was too conjectural to be submitted to the jury 
 as a direct cause of self-destruction. ^ Stating the disease of 
 which the insured died is a satisfactory mode of excluding 
 the hypothesis of self-destruction, &c.^] 
 
 §§ 308, 309. " Death by his own Hand." — And hereupon 
 there has been hitherto, and still is an irreconcilable con- 
 flict of opinion, both among different courts and among the 
 different judges of the same court. And while at one time 
 it seemed that the former opinion was likely to become the 
 prevailing one, both from the character and from the num- 
 ber of the courts and judges who adopted it, at this moment 
 it must be admitted that there is little reason upon such 
 grounds to look for such a result ; and the question, in this 
 country at least, must still be considered an open one, with 
 the preponderance, perhaps, in favor of the latter view. We 
 have therefore no alternative but to give its history, and by 
 so doing we shall best show the present state of the question. 
 The question first arose in New York, in a case " of self- 
 destruction by drowning, where the defence was suicide, to 
 which there was a reply that the insured was insane at the 
 time, and this reply was demurred to. The insurers were 
 
 437. A self-killing by an insane person, understanding the physical nature and 
 consequences of his act, but not its moral aspect, is not a death by suicide. J. 
 Gray, in Manhattan Life Ins. Co. u. Broughton, 109 U. S. 121. A policy against 
 " bodily injuries effected through external, accidental, and violent means," ex- 
 cept those "caused wholly or in part by bodily infirmities or disease, or by sui- 
 cide or self-inflicted injuries," covers a death by hanging one's self while insane. 
 The act of an insane person is no more his act in the sense of the law than if he 
 had been impelled by irresistible physical power. By the decisions of this court, 
 whether the unsoundness of mind is such as to destroy understanding of the phys- 
 ical nature and consequences of the act, or only to obliterate the perception of 
 its moral nature, self-killing by an insane person is not suicide, or death by his 
 own hand. Insanity, moreover, is not a "bodily " disease, but a mental disease, 
 and so not within the excepting clause. Accident Ins. Co. v. Crandal, 120 U. S. 
 527, 531-534.] 
 
 1 [Streeter v. Insurance Co., 65 Mich. 199.] 
 
 8 [Covenant Mut. Ben. Ass. v. Hoffman, 110 111. 608.] 
 
 s Breasted v. Farmers' Loan & Trust Co., 4 Hill (N. Y.), 78. The English 
 cases are all cited, and their results sufficiently stated in the American cases 
 referred to. 
 
 658 
 
CH. XV.] SUICIDE. [§ 309 
 
 not to be liable if the assured should die by his own hand. 
 The plaintiii's had judgment upon the demurrer, and this 
 judgment was afterwards affirmed by the Court of Appeals.^ 
 
 1 Nelson, C. J., here said : " The question arising upon the demurrer is, 
 whether Comfort's self-destruction in a fit of insanity can be deemed a death 
 by his own hand, within the meaning of the policy. I am of opinion that it 
 ■ cannot. . . . The connection in which the words stand in the policy would seem 
 to indicate that they were intended to express a criminal act of self-destruction, 
 as they are found in conjunction with the provision relating to the termination ol 
 the life of the insured in a duel, or by his execution as a criminal. This associ:i- 
 tion may well characterize and aid in determining the somewhat indefinite and 
 equivocal import of the phrase. Speaking legally, also (and the policy should be 
 subjected to this test), self-destruction by a fellow-being, bereft of reason, can 
 with no more propriety be ascribed to the act of his own hand, than the deadly 
 instrument that may have been used for the purpose. The drowning of Comfort 
 was no more his act, in the sense of the law, than if he had been impelled by 
 irresistible physical power ; nor is there any greater reason for exempting the 
 company from the risk assumed in the policy, than if his death had been 
 occasioned by such means. Construing these words, therefore, a.ccording to 
 their true, and, as I apprehend, universally received meaning among insurance 
 offices, there can be no doubt that the termination of Comfort's life was not 
 within the saving clause of the policy. Suicide involves the deliberate termina- 
 tion of one's existence while in the possession and enjoyment of his mental 
 faculties. Self-slaughter by an insane man or a lunatic is not an act of suicide 
 within the meaning of the law." 4 Bl. Comm. 189 ; 1 Hale's P. C. 411, 412. 
 
 Ten j'ears later this judgment was affirmed in the New York Court of Appeals. 
 8 N. Y. 299. (Five judges for affirmation, three for reversal.) The case was 
 sent to a referee, and on appeal from his finding Willard, J., for the majority, 
 said : " It is material to determine, in the first place, what is meaijt by the term, 
 death by his own hand, which is to avoid the policy. If the words are construed 
 according to the letter, an accidental death caused by the instrumentality of the 
 hand of the insured would fall within the exception. Thus, should the insured, 
 by mistake, swallow poison, and thereby terminate his life, his representatives 
 could not recover on the policy if the poison was conveyed to his mouth 
 by his own hand. The same rule of construction applied to the words, death 
 by the hands of justice, in the same connection, would take the case out 
 of the exception, if the death was occasioned by strangulation hj a rope instead 
 of the hands of the minister of justice. But it is too plain for argument 
 that the literal meaning is not the true meaning of either phrase. ... In 
 popular language, the term death by his own hand means the same as suicide, or 
 felo de se. The first two, indeed, are not technical terms, and tnay be used in a 
 sense excluding the idea of criminality. The connection in which they are used 
 in this policy indicates that the phrase d,eath by his own hand meant an act of 
 criminal self-destruction. Provisos declaring the policy to be void in case 
 the assured commit suicide or die by his own hand, are used indiscriminately 
 as expressing the same idea. In the note to Borradaile v. Hunter, 5 Man. & Gr. 
 639, 648, are given the forms of the proviso used by seventeen- of the principal 
 London insurance companies. In eight of them the exception is of a death by 
 suicide, and in nine of a death by the assured's men hands. In two, separate 
 provision is made in case of a death by suicide not /cZo de se, and in two others in 
 
 659 
 
§ 310] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XV. 
 
 §310. Life Insurance; Suicide. — The question next came 
 
 case of a death by Ms own hands, not felo de se. It is obvious, therefore, that 
 the phrase, death by his own hand and death by suicide mean the same thine, 
 and that both, unless qualified by some other expressions, import a criminal 
 act of self-destruction. The connection in which they stand in this policy 
 iavors this construction. The first four exceptions in the policy are of acts 
 innocent in themselves, three of which become inoperative if the defendants give 
 their consent and have it indorsed on the policy. Then follow the last four 
 exceptions ; viz., if he shall die by his ovm hand, or in conseqiieiice of a duel, or 
 by the hands of justice, or in the known violation of any law, &o. By the 
 acknowledged rule of construction, noscitur a sociis, the first member of the sen- 
 tence, if there be any doubt as to its meaning, should be controlled by the other 
 members, which' are entirely unequivocal, and should be construed to mean a 
 felonious killing of himself. Broom's Maxims, 293, 450. It is a note laid down 
 by Lord Bacon that copulatio verborum indicat acceptiojiem in eodem sensu; the 
 coupling of words together shows that they are to be understood in the same 
 sense. And when the meaning of any particular word is donbtful or obscure, or 
 when the expression, taken singly, is inoperative, the intention of the parties 
 using it may frequently be ascertained and carried into effect by looking at the 
 adjoining words, or at expressions occurring in other parts of the same instru- 
 ment, for qum 7ion valeant singula juncta juvant. Bacon's Works, vol. iv. p. 26 ; 
 2 Buls. Broom's Maxims, 293. Besides, the words in this case are those of 
 the insurer, and, if susceptible of two meanings, should be taken most strongly 
 against him. It was not contended on the j)art of the defendant that the policy 
 would be avoided by a mere accidental destruction of life by the party himself. 
 It was urged that it would be, if the act was done intentionally, although under 
 circumstances which would exempt the party from all moral culpability. It was 
 insisted that the expression must be taken to mean a death by his own act. It 
 seems to me that this is a yielding of the whole question. An insane man, 
 incapable of discerning between right and wrong, can form no intention. His 
 acts are not the result of thought or reason, and no more the subject of punish- 
 ment than those which are produced by accident. The acts of a madman, which 
 are the offspring of the disease, subject him to no criminal responsibility. If the 
 insured, while engaged in his trade as a house-joiner, had accidentally fallen 
 through an opening in the chamber of a house he was constructing, and lost his 
 life, the argument concedes that the insurer would have been liable. The 
 reason is that the mind did not concur with the act. How can this diflfer in 
 principle from a death in a fit of insanity, when the party had no mind to concur 
 in or oppose the act ? It must occur to every prudent man seeking to make pro- 
 vision for his family by an in.surance on his life, that insanity is one of the 
 diseases which may terminate his being. It is said the defendants did not insure 
 the continuance of the intestate's reason. Nor did they in terms insure him 
 against the small-pox or scarlet-fever ; but had he died of either disease, no 
 doubt the defendants would have been liable. They insured the continuance of 
 his life. What difference can it make to them or to him, whether it is ter- 
 minated by the ordinary course of a disease in his bed, or whether in a fit of 
 delirium he ends it himself? In each case the death is occasioned by means 
 within the meaning of the policy, if the exception contemplates, as I think it 
 does, the de.straction of life by the intestate while a rational agent, responsible for 
 his acts. ... It is urged that because a person non compos mentis is liable civilifer 
 for torts committed while in a state of insanity, therefore insanity has no effect 
 
 660 
 
CH. XV.] SUICIDE. [§310 
 
 before the Supreme Court of Massachusetts, in 1862,^ and 
 
 to qualify thia exception in the policy. That conclusion is not a legitimate 
 deduction from the premises. A rational man is liable civilitef for an injury 
 occasioned by an accident, unless it be an inevitable one, and yet no one 
 pretends that the insurer is not liable for a death by accident, whether inevitable 
 or not. Indeed, the liability for death by accident was conceded on the argu- 
 ment. A death by accident, and a death by the ]iarty's own hand, when 
 deprived of reason, stand on principle in the same category. In both cases the 
 act is done without a controlling mind. If the insurer is liable in the one case, 
 he should be in the other. If the insured was compelled by duress to take his 
 own life, it will hardly be contended that the insurers could avoid payment. In 
 what consists the difference between the duress of men and duress of Heaven ? 
 Can a man be said to do an act prejudicial to the insured when he is compelled to 
 do it by irresistible coercion ? and can it make any difference whether this 
 coercion come from the hand of man or the visitation of Providence ? 
 
 " But it is urged that this is a civil action, and the contract of insurance a 
 civil contract. Be it so. A person so destitute of reason as not to know the con- 
 sequences of his acts can make no valid contract. Whether the incompetency be 
 the result of disease or of intoxication, his contracts made while in that condition 
 are void. Barrett v. Buxton, 2 Aikens (Vt.), 167, approved by Chancellor Wal- 
 worth in Prentice u. Achorn, 2 Paige, 31, and by Chancellor Kent, in 2 Comm. 
 451 ; Smith's Law of Contracts, 329, 333, and notes. If the party could do no 
 act to bind himself, he certainly could do none to bind the insurer. If he could 
 not make a bond, he could not make a release. If he could not make a will, he 
 could not revoke one. The liability of a lunatic for necessaries rests upon the 
 ground that the law will raise a contract by implication on the part of the luna- 
 tic, in favor of the party who has supplied them in good faith, and therefore does 
 not affect the present question. Wentworth v. Tubb, 1 Younge &Coll. Ch. 171. 
 The cases on this head are analogous to that of an infant. See Smith's Law of 
 Contracts, 325 et seq., and notes, where the cases are collected and reviewed. 
 The law, to prevent a failure of justice, will imply a promise by a party incapable 
 of making a contract; but it will never imply that a party ini:apable of distin- 
 guishing between right and wrong was guilty of a fraud. At the time this case 
 was decided by the Supreme Court on the demurrer there had been no case, either 
 in this country or in England, in which the same question had arisen. The case 
 of Borradaile v. Hunter, 5 Man. & Gr. 639, decided by the English Common 
 Pleas in 1843, has since been reported. That action was brought by the executor 
 of the insured upon a life policy containing a proviso that in case the assured 
 should die by his own hands, or by the hands of justice, or in consequence of a 
 duel, the policy should be void. The assured threw himself into the Thames and 
 was drowned. Upon an issue, whether the assured died by his own hands, the 
 jury found that he voluntarily threw himself into the water, knowing at the time 
 that he should thereby destroy his life, and intending thereby to do so ; but at 
 the time of committing the act he was not capable of judging between right and 
 wrong. It was held by a majority of the court, Tindal, C. J., dissenting, that 
 the policy was avoided, as the proviso included all acts of voluntary self-destruc- 
 tion, and was not limited by the accompanying proviso to acts of felonious sui- 
 
 1 Dean v. American Life Ins. Co., 4 Allen (Mass.), 96. The opinion was 
 by Bigelow, C. J. : — (1) "There can be no doubt that the facts agreed 'ny 
 the parties concerning the mode in which the assured destroyed his own life 
 
 661 
 
§ 310J INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XV. 
 
 was very elaborately considered. The insured had cut his 
 
 cide. The three judges who formed the majority laid the main stress upon the fact 
 that the jury found the act of self-destruction to be voluntary, that he knew when 
 he threw himself into the river he should thereby destroy his life, and that he 
 intended thereby to do so. The referees in the present case have not found that 
 the intestate acted voluntarily, or that he knew the consequence of his act. They 
 merely find that while insane, for the purpose of drowning himself, he threw himself 
 into the river, not being mentally capable of distinguishing between right and wrong. 
 If Borradaile v. Hunter be an authority which we ought to follow, it differs so 
 much from the case before us, that we are at liberty to decide it upon principle. 
 
 " After the case of Borradaile v. Hunter, the case of Schwabe v. Clift was tried 
 at Nis-i Prius, before Ci'esswell, J. It was upon a policy upon the life of the 
 plaintiffs intestate, containing the proviso that if the assured should 'commit 
 suicide, or die by duelling or by the hands of justice,' the policy should be void. 
 The assured died from the effects of sulphuric acid taken by himself, but evidence 
 was given tending to show that at the time he took the sulphuric acid he was in 
 part of unsound mind. In his charge to the jury, the learned judge said that, to 
 bring the case within the exception, it must be made to appear that the deceased 
 died by his own voluntary act ; that at the time he committed the act he could 
 distinguish between right and wrong, so as to be able to understand and appre- 
 ciate the nature and quality of the act he was doing ; and that, therefore, he was 
 at that time a responsible being. The jury found for the plaintiff." 2 Car. & 
 Kirwan, 134. This cause was afterward.s brought into the Court of Exchequer 
 Chamber on the bill of exceptions, and will be found in 3 Man. & Gr. 437, by the 
 title of Clift V. Schwabe. That court, by a vote of four to two, ordered a new 
 trial, holding that the direction was erroneous ; for that the terms of the condi- 
 tion included all acts of voluntary self-destruction, and therefore, if A. voluntarily 
 killed himself, it was immaterial whether he was or was not a responsible moral 
 agent. The case is open to the same remark as Borradaile v. Hunter, supra. It 
 turned upon the assumed fact that the act of suicide was voluntary, a fact not 
 found by the referees in this case. In the above quoted case, Gardner, J., dissent- 
 ing, said : " It is by the finding established that the assured cast himself into the 
 river for the purpose of drowning himself. The act committed by him was there- 
 fore voluntary, and accompanied by so much intelligence as to enable the agent 
 to contemplate a particular result, and adopt the means requisite to accomplish it. 
 His object was self-destruction bj' drowning. For this purpose be cast himself 
 into the river, and thereby effected it. If this was not ' dying by his own hand,' 
 within the spirit and intent of this clause of the policy, it is difficult to attach 
 any legal significance to such language. If, under the same circumstances, the 
 assured had destroyed the property or assaulted the person of a citizen, he would 
 have been civilly responsible for all the damages sustained by the latter. Weaver 
 V. Ward, Hob. 134; Cross v. Andrews, Cro. Eliz. 622. Insanity, unless it sus- 
 pended the power of volition, would be no justification ; still less a want of moral 
 perception to distinguish between right and wrong. I can perceive no reason 
 why upon the same principle he should not be held responsible for a wilful breach 
 of contract resulting from self-destruction, where it was premeditated, and accom. 
 
 bring this case within the strict letter of the proviso in the policy, by which 
 it was stipulated that it should be void and of no effect if the assured 
 should 'die by his own hand.' The single question, therefore, which we 
 have to determine is, whether, on the well-settled principles applicable 
 
 662 
 
CH. XV.] SUICIDE. [§ 310 
 
 throat with a razor, and the plaintiffs, in answer to the 
 
 plished by means usual and appropriate to effect hia design. In Bagstei v. Earl 
 of Portsmouth, 7 Dowl. & Ryl. 614, it was held that a lunatic was capable of con- 
 tracting for necessaries. 'Imbecility of mind,' says Abbott, C. J., 'may, or 
 may not, be a defence in the case of an unexecuted contract.' These cases show 
 that the assured, although insane, is a responsible agent for some purposes, and 
 consequently, a fortiori, that he can be affected and bound by a condition which 
 qualifies the liability of the insurers, and which, in terms, is made to depend 
 upon an act to be performed by the former. In Borradaile v. Hunter, 5 Man. & 
 Gr. 639, in a life policy containing the same proviso found in the one before us, 
 the jury found that the insured ' voluntarily threw himself into the water, know- 
 ing at the time that he should thereby destroy his life, and intending thereby to 
 do so, but at the time of committing the act he was not capable of judging be- 
 tween right and wrong.' It was held that the policy was avoided. The proviso 
 included all acts of self-destruction, and was not limited by the accompanying 
 provisos to acts of felonious suicide. This decision was pronounced in 1843, and 
 the case is not distinguishable from the one under consideration. The case cited 
 was argued and decided as one of insanity, in which, however, the assured was 
 capable of voluntary action. Erskine, J., remarked, 'that all the contract re- 
 quired was, that the act of self-destruction should be the voluntary and wilful act 
 of a man having at the time sufficient power of mind to understand the physical 
 nature and consequence of the act, and having the intention to choose his own 
 death.' In that case, and in the present, the incapability of distinguishing be- 
 tween right and wrong was the measure of the insanity of the assured. Four years 
 afterwards, C'lift v. Schwabe was decided in the Exchequer Chamber, 3 C. B. 437; 
 3 Man., Gr. & Scott, 437, upon a policy in which the word ' suicide ' occurred in 
 place of the phrase ' dying by his own hands.' The issue was upon the fact of sui- 
 cide, and an exception to the charge of the judge ; it was held that the terms of the 
 condition included all acts of voluntary self-destruction, and if the insured vol- 
 untarily killed himself, it was immaterial whether he was or not a responsible moral 
 agent. These cases are directly in point ; that last mentioned is much stronger 
 for the assured than the one now under consideration. When this case was before 
 the Supreme Court on demurrer, the replication averred that when the assured 
 drowned himself he was of unsound mind and wholly unconscious of the act. This 
 was admitted by the demurrer, and the question whether voluntary action can 
 exist without some degree of consciousness, is very different from the one pre- 
 sented by the finding before us." The phrase "wholly unconscious of the act" 
 refers to the real nature and character of the act, as a crime, and not to the mere 
 act itself. Bigelow v. Berkshire Life Ins. Co., 93 U. S. 284. 
 
 to the construction of contracts, we can so interpret the language of the 
 policy as to add to the proviso words of qualification and limitation, by which ' 
 the natural import of the terms used by the parties to express their meaning 
 will be so modified and restricted that the case will be taken out of the pro- 
 viso, and the policy be held valid and binding on the defendants. In other 
 woids, the inquiry is whether the proviso can be so read that the policy was to be 
 void in case the assured should die by his own hand, he being sane when the 
 suicide was committed. If these or equivalent words cannot be added to the pro- 
 viso, or if it cannot be held that they are necessarily implied, then it must follow 
 that the language used is to have its legitimate and ordinary signification, by 
 which it is clear that the policy is void. (2) In considering this question, we 
 
 663 
 
§ 310] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. XV, 
 
 objection that his death was by his own hands, offered to 
 
 are relieved of one difficulty which has embarrassed the discussion of the saiue 
 subject in other cases. If the proviso had excepted from the policy death by 
 ' suicide,' it would have been open to the plaintiffs to contend that this word was 
 to have a strict technical definition, as meaning in a legal sense an act of criminal 
 self-destruction, to which is necessarily attached the moral responsibility of takiug 
 one's life voluntarily, and in the full exercise of sound reason and discretion. But 
 the language of the proviso is not necessarily limited by the mere force of its 
 terms. The words used are of the most comprehensive character, and are suf- 
 ficiently broad to include every act of self-destruction, however caused, without 
 regard to the moral condition of the mind of the assured, or his legal responsibility 
 for his acts. (3) Applying, then, the first and leading rule by which the con- 
 struction of contracts is regulated and governed, we are to inquire what is a 
 reasonable interpretation of this clause according to the intent of the parties. It 
 certainly is very difficult to maintain the proposition that, where parties reduce 
 their contract to writing, and put their stipulations into clear and unambiguous 
 language, they intended to agree to anything different from that which is plainly 
 expressed by the terms used. It is, however, to be assumed that every part of a 
 contract is to be construed with reference to the subject-matter to which it relates, 
 and with such limitations and qualifications of general words and phrases as pro|i» 
 erly arise and grow out of the nature of the agreement in which they are found. 
 Giving full force and effect to this rule of interpretation, we are unable to see that 
 there is anything unreasonable or inconsistent with the general purpose which the 
 parties had in view in making and accepting the policy, in a clause which excepts 
 from the risks assumed thereby the death of the assured by his own hand, irre- 
 spective of the condition of his mind, as affecting his moral and legal responsibil- 
 ity at the time the act of self-destruction was consummated. Every insurer, in 
 assuming a risk, imposes certain restrictions and conditions upon his liability. 
 Nothing is more common than the insertion, in policies of insurance, of exceptions 
 by which certain kinds or classes of hazards are taken out of the general risk whicli 
 the insurer is willing to incur. Especially is this true in regard to losses which 
 may arise or grow out of an act of the party insured. Such exceptions are 
 founded on the reasonable assumption that the hazard is increased when the in- 
 surance extends to the consequeuces which may flow from the acts of the person 
 who is to receive a benefit to himself or confer one on others by the happening of 
 a loss within the terms of the policy. Where a party procures a policy on his 
 life, payable to his wife and children, he contemplates that, in the event of his 
 death, the sum insured will inure directly to their benefit. So far as a desire to 
 provide in that contingency for the welfare and comfort of those dependent on him 
 can operate on his mind, he is open to the temptation of a motive to accelerate a 
 claim for a loss under the policy by an act of self-destruction. Against an in- 
 crease of the risk arising from such a cause, it is one of the objects of tlie proviso 
 in question to protect the insurers. Although the assured can derive no pecuniary 
 advantage to himself by hastening his own death, he may have a motive to take 
 his own life, and thus to create a claim under the policy, in order to confer a 
 benefit on those who, in the event of his death, will be entitled to receive the sum 
 insured on his life. Unless, then, we can say that such a motive cannot operate 
 on a mind diseased, we cannot restrict the words of the proviso so as to except 
 from the risk covered by the policy only the case of criminal suicide, where the 
 assured was in a condition to be held legally and morally responsible for his acts. 
 It certainly would be contrary to experience to affirm that an insane person can- 
 
 664 
 
CH. XV.] SUICIDE. [§ 310 
 
 show that the death was caused during a state of insanity. 
 But this was held inadmissible. 
 
 not be influenced and governed in his actions by the ordinary motires which 
 operate on the human mind. Doubtless there may be cases of delirium or raving 
 madness where the body acts only from frenzy or blind impulse, as there are cases 
 of idiocy or the decay of mental power, in which it acts only from the prompt- 
 ings of the lowest animal instincts. But in the great majority of cases where 
 reason has lost its legitimate control, and the power of exercising a sound and 
 healthy volition is lost, the mind still retains sufficient power to supply motives 
 and exert a direct and essential control over the actions. In such cases, the effect 
 of the disease often is to give undue prominence to surrounding circumstances 
 and events, and, by exaggerating their immediate effects or future consequences, 
 to furnish incitement to acts of violence and folly. A person may be insane, en- 
 tirely incapable of distinguishing between right and wrong, and without any just 
 sense of moral responsibility, and yet retain sufficient powers of mind and reason 
 to act with premeditation, to understand and contemplate the nature and conse- 
 quences of his own conduct, and to intend the results which his acts are calculated 
 to produce. Insanity does not necessarily operate to deprive its subjects of their 
 hopes and fears, or the other mental emotions which agitate and influence the 
 minds of persons in the full possession of their faculties. (4) On the contrary, 
 its effect often is to stimulate certain powers to extraordinary and unhealthy ac- 
 tion, and thus to overwhelm and destroy the due influence and control of the 
 reason and judgment. Take an illustration. A man may labor under the insane 
 delusion that he is coming to want, and that those who look to him for support 
 will be subjected to the ills of extreme poverty. The natural effect of this species 
 of insanity is to create great mental depression, under the influence of which the 
 sufferer, with a view to avoid the evils and distress which he imagines to be im- 
 pending over himself and those who are dependent upon him for support, is 
 impelled to destroy his own life. In such a case, suicide is the wilful and volun- 
 tary act of a person who understands its nature, and intends by it to accomplish 
 the result of self-destruction. He may have acted from an insane impulse, which 
 prevented him from appreciating the moral consequences of suicide ; but, never- 
 theless, he may have fully comprehended the physical effect of the means which he 
 used to take his own life, and the consequences which might ensue to others from 
 the suicidal act. It is against risks of this nature — the destruction of life by the 
 voluntary and intentional act of the party assured — that the exception in the 
 proviso is intended to protect the insurers. The moral responsibility for the act 
 does not affect the nature of the hazard. The object is to guard against loss 
 arising from a particular mode of death. The causa causans, the motive or in- 
 fluence which guided or controlled the will of the party in committing the act, is 
 immaterial, as affecting the risk which the insurers intended to except from the 
 policy. This view is entirely consistent with the nature of the contract. It is the or- 
 dinary case of an exception of a risk which would otherwise fall within the general 
 terms of the policy. These comprehended death by disease, either of the body 
 or brain, from whatever cause arising. The proviso exempts the insurers from 
 liability when life is destroyed by the act of the party insured, although it may be 
 distinctly traced as the result of a diseased mind. It may well be that insurers 
 would be willing to assume the risk of the results flowing from all diseases of the 
 body, producing death by the operation of physical causes, and yet deem it ex- 
 pedient to avoid the hazards of mental disorder, in its eff'ects on the will of the 
 assured, whether it originated in bodily disease, or arose from external circum- 
 
 ■ 665 
 
§ 311] insurance: fire, life, accident, etc. [CH. XT. 
 
 § 311. Afterwards, in 1866, the question arose in the 
 
 stances, or was produced by a want of moral and religious principle. (5) It was 
 urged very strongly by the learned counsel for the plaintiffs, that this view of the 
 construction of the contract was open to the fatal objection that it would neces- 
 sarily lead to the absurd conclusion that death occasioned by inevitable accident 
 or overpowering force, or in a fit of delirium or frenzy , if the proximate and im- 
 mediate cause was the baud of the person insured, would be excepted from the 
 risks assumed by the defendants. But this objection is sufficiently answered by 
 the obvious suggestion that such an interpretation, although within the literal 
 terms of the proviso, would be contrary to a reasonable intent, as derived from 
 the subject-matter of the contract. An argument having for its basis a reductio 
 ad absurdu7n. is not entitled to much weight when it is necessary to ascertain 
 the intention of the parties to a contract, and to conform to that intention in 
 giving an interpretation to the language used. Indeed, when it becomes 
 necessary (as the case on the part of the plaintitf requires) to desert the literal 
 import of terms adopted by parties to express their meaning, as it cannot 
 be reasonably supposed that they intended to enter into stipulations which 
 would be unreasonable or absurd, all conclusions which tend to establish 
 such a result are necessarily excluded. The question in such cases is not how 
 fai' can the literal meaning of words be extended, but what is a reasonable limita- 
 tion and quajification of them, having regard to the nature of the contract and 
 the objects intended to be accomplished by it. Applying this principle to the 
 present proviso, and assuming that the plaintitfs are right in their position, that 
 the words used are not to be interpreted literally, it would seem to be reasonable 
 to hold that they were intended to except from the policy all cases of death 
 caused by the voluntary act of the assured, when his deed of self-destruction was 
 the result of intention, by a person knowing the nature and consequences of the 
 act, although it may have been done under an insane delusion, which rendered 
 the party morally and legally irresponsible, incapable of distinguishing between 
 right and wrong, and which, by disturbing his reason and judgment, impelled 
 him to its commission. If the suicide was an act of volition, however excited or 
 impelled, it may in a just sense be said that he died by his own hand. But be- 
 yond this it would not be reasonable to extend the meaning of the proviso. If 
 the death was caused by accident, by superior and overwhelming force, in the 
 madness of delirium, or under any combination of circumstances from which it 
 may be fairly inferred that the act of self-destruction was not the result of the 
 will or intention of the party adapting means to the end, and contemplating the 
 physical nature and effects of the act, then it may be justly held to be a loss no' 
 excepted within the meaning of the proviso. A party cannot be said to die by 
 his own hand in the sense in which these words are used in the policy, whose 
 self-destruction does not proceed from the exercise of an act of volition, but is the 
 result of a blind impulse, of mistake or accident, or of other circumstances over 
 which the will can exercise no control. (6) In seeking to ascertain the inten- 
 tion of parties, some weight is to be given to the practical results which would 
 be likely to follow from the adoption of a particular construction of the words of 
 a contract. It is reasonable to suppose that these were in contemplation of the 
 insurers at the time the policy was issued. Certainly it is fair to infer that they 
 intended to put some material limitations upon their liability by the insertion of 
 this proviso. But if it is to be construed as including only cases of criminal 
 self-destruction, it would rarely, if ever, effect this object. Those familiar with 
 the business of insurance, and with the results of actions on policies of insurance 
 
 666 
 
CH. XV.] SUICIDE. [§ 311 
 
 Supreme Court of Maine, in Eastabrook v. Union Mutual 
 
 in courts of law, know how difficult it is to establish a case of exemption from 
 liability under an exception in a policy, where it depends on a 'question of fact to 
 be decided by the verdict of a jury. If this is true in regard to ordinary claims 
 under policies, it is obvious that the difficulty would be greatly enhanced in cases 
 like the present, where it would be sufficient, in order to take a case out of the 
 operation of the proviso, to prove that self-destruction was the result of insanity. 
 It would not be hazardous to affirm that, in all cases where such an issue was to 
 be determined by a jury between an insurance company and the representatives of 
 the deceased, the act of suicide would be taken as proof of insanity. Such con- 
 siderations were not likely to have escaped the intention of practical men in 
 framing this general proviso ; and in a doubtful case of construction, they are 
 not to be overlooked in giving an interpretation to the words used by them. 
 
 (7) The learned counsel for the plaintiffs have insisted with great force on an 
 argument drawn from the context, to show that the proviso was intended to 
 embrace only a case of criminal self-destruction by a reasonable and responsible 
 being. But it seems to us that the maxim noscitur a sociis, on which they rely, 
 does not aid the construction for which they contend. The material part of the 
 clause is, that the policy shall be void if the assured ' shall die by his own hand, 
 or in consequence of a duel, or by the hands of justice, or in the known violation 
 of any State, national, or provincial law.' Now the first and most obvious con- 
 sideration suggested by other parts of this clause is, that in enumerating the 
 causes of death which shall not be deemed to be within the risks covered by the 
 policy, one of them is in terms made to depend on the existence of a criminal in- 
 tention. It is a ' known violation of law ' which is to avoid the policy. This 
 tends very strongly to show that where an act producing death may be either 
 innocent or criminal, if it is intended to except only such as involves a guilty 
 intent, it is carefully so expressed in the proviso. The inference is very strong 
 that if they designed to conline the exception in question to cases of criminal , 
 suicide, it would have been so provided in explicit terms. So far, the argument 
 drawn from the context does not support the plaintiffs' claim. Take, then, 
 another of the causes of death, death in a duel, enumerated in the proviso. 
 
 (8) It seems to us to be a petitio principii to assume that death in consequence 
 of a duel necessarily implies an act for which the party would be criminally 
 responsible. Why is not this part of the proviso open to the same argument as 
 that which is urged in regard to the clause relating to self-destruction ? A duel 
 may be fought by a party acting under duress, or impelled thereto by an insane 
 delusion, which might blind his moral perceptions and render him legally irre- 
 sponsible. If so, then the same answer to a defence set up against a claim under 
 the policy would be open under this clause, as the one now urged in behalf of the 
 plaintiffs ; and the argument founded on the assumption that "■ forfeiture under 
 this part of the proviso necessarily involves a criminal violation of law, falls to 
 the ground. Therefore the inference that a guilty intention is communicated 
 from this branch of the proviso to that relating to death by the act of the assured, 
 seems to us to be unfounded. The only remaining clause is that which provides 
 for the case of death by the hands of justice. This undoubtedly implies that the 
 person insured has been found guilty of a criminal act by a judicial tribunal, 
 according to the established forms of law. But it is not correct to say that it 
 involves the existence of a criminal intent, because it might be shown that the 
 conviction of the assured was erroneous, and that he was in fact innocent of the 
 crime for which he suffered the penalty of death. So far, therefore, as any 
 
 667 
 
§311] insueance: fire, life, accident, etc. [CH. XV. 
 
 Life Insurance Company, ^ where it was held that the repre- 
 
 argument can te justly drawn from the connection in which the words as tq' 
 self-destruction stand in relation to other parts of the proviso, it leads to the 
 conclusion that it was not solely death occasioned by acts of the assured involving 
 criminal intent or a wilful violation of law by a person morally and legally 
 responsible, which was intended to be excepted from the risks assumed by the 
 insurers ; but that, with the exception of death in a known violation of law, the 
 proviso embraces all cases where life is taken in consequence of the causes specified, 
 without regard to the question, whether at the time the assured was amenable 
 for his act, either in foro conscientice or in the tribunals of justice. (9) It 
 may be added that a departure from the literal terms of a contract is always 
 attended with great difficulty and danger, because it is apt to lead to great lati- 
 tude of construction, and to give uncertainty to the language which the parties 
 have adopted to express their meaning. It certainly never should be extended 
 beyond the clear intent of the parties, as derived from other parts of the agree- 
 ment, or the subject-matter to which the contract relates. This position may be 
 illustrated by reference to another part of the policy declared on. The proviso 
 which precedes that on which the present question has arisen contains a stipula- 
 tion that the policy shall be void if the assured, without the consent of the 
 defendants in writing, shall during certain portions of the year visit the more 
 southerly parts of the United States, or shall pass without the settled limits of 
 the United States. If the assured in a fit of insanity should wander from his 
 home and go within the prohibited territory, would the policy be void ? If he 
 was taken prisoner and went thither with his captors, would he lose his claims 
 under the policy ? These and similar questions which might arise under other 
 clauses of the policy, seem to show that it is more safe to adhere to the strict 
 letter of the contract, and to hold parties to the salutary rule which requires them to 
 express in clear and unambiguous terms any exceptions which they desire to en- 
 graft on the general wonls of a contract. (10) So far as the adjudicated cases 
 bear on the question which we have considered in the present case, the weight of 
 authority is against the claim of the plaintiffs under the policy. In the case of 
 Borradaile v. Hunter, 5 Man. & Gr. 639, where the policy contained a proviso 
 very similar to that found in the policy declared on, it was held that the policy 
 was avoided, as the proviso included all cases of voluntary self-destruction, and 
 was not limited to acts of criminal suicide. Fi'om this opinion there was a dis- 
 sent by the Chief Justice. In Clift v. Schwabe, 3 C. B. 437, a similar decision 
 was made by the Exchequer Chamber, two of the judges dissenting. These cases 
 seem now to be regarded as having settled the law of England in conformity with 
 the opinion of the majority of the judges. Dufaur v. Professional Life Ass. Co., 
 25 Beav. 599, 602. A different opinion was arrived at in Breasted v. Farmers' 
 Loan and Trust Company, 4 Hill (N. Y.), 74, and 4 Selden, 299, from which, 
 however, several of the most learned justices of the Court of Appeals dissented. 
 (11) In 1 Phil. Ins., sect. 895, it is stated that any mental derangement sufficient 
 to exonerate a party from a contract would render a person incapable of occa- 
 sioning the forfeiture of a policy under a clause like the one in question. In 
 support of this proposition no authorities arS cited except the cases above named 
 of Borradaile v. Hunter and Breasted v. Farmers' Loan and Trust Company, as 
 reported in 4 Hill. If it is intended by it to assert that the principle on which a 
 contract made with an insane person is held to be void as to Mm, applies to this 
 
 1 54 Me. 224. 
 668 
 
CH. XV.J SUICIDE. [§ 311 
 
 sentatives of an insane suicide might recover upon the pol- 
 icy, the facts being fully stated in the opinion. The policy 
 provided that in case the insured should ''die by his own 
 hand, or in consequence of a duel, or by the violation of 
 any State, national, or provincial law, or by the hands of 
 justice," it should be void. The death was by suicide in a 
 fit of insanity, and death under such circumstances was held 
 not to be within the condition. ^ 
 
 clause so as to exclude from its operation all cases of self-destruction occasioned 
 by insanity, it seems to us that the position is untenable. The reason for the 
 rule which exempts a person from liability on a contract into which he entered 
 when insane is, that he is not deemed to have been capable of giving an intelli- 
 gent assent to its terms. But this rule is not applicable where a contract is made 
 with a person in the full possession of his faculties, and he subsequently, in a fit 
 of insanity, commits a breach of it, or incurs a penalty under it. He is then 
 bound by it. His mind and will have assented to it. No subsequent mental in- 
 capacity will absolve him from his responsibility on it, unless from its nature it 
 implies the continued possession of reason and judgment and the action of an in- 
 telligent will. A party may be liable on an unexecuted contract, after he has 
 lost the use of his mental faculties, as he may be held responsible cinliter for his 
 torts. Bagster v. Portsmouth, 7 Dowl. & Ryl. 614; Weaver v. Ward, Hob. 134 ; 
 Cross V. Andrews, Cro. Eliz. 622. (12) To say that insanity exonerates a party 
 from a forfeiture under such a proviso in a policy, is to assume that this was the 
 intention of the parties when the contract of insurance was entei'ed into. But if 
 .such was not the intention, then it follows that the assured gave an intelligent 
 assent to a contract, by which he stipulated that if he took his own life volunta- 
 rily, knowing the consequences of his act, lie would thereby work a forfeiture of 
 his claim under the policy, although he may have acted under the influence of 
 insanity in committing the suicidal act. So that, after all, we are brought back 
 to the inquiry, what was the intention of the parties to the contract, in order to 
 ascertain the true construction of the proviso. (13) The result to which we have 
 come, after a careful and deliberate consideration of the question, during which we 
 have felt most sensibly the very great difficulties and embarrassments which sur- 
 round the subj«ct, is that the plaintiffs are not entitled to iTcover. The facts 
 agreed by the parties concerning the mode in which the plaintiffs' intestate took 
 his own life leave no ro(?m for doubt that self-destruction was intended by him, 
 he having sufficient capacity at the time to understand the nature of the act which 
 he was about to commit, and the consequences which would result from it. Such 
 being the fact, it is wholly immaterial to the present case that he was impelled 
 thereto by insanity, which impaired his sense of moral responsibility, and ren- 
 dered him to a certain extent irresponsible for his actions." 
 
 1 The learned judge, after adverting to the diversity of judicial opinions, both 
 in England and in this country, proceeds as follows . " In this conflict of author- 
 ity, it may not be amiss to briefly examine the qirestion, and to endeavor to de- 
 termine what conclusions will best accord with the object of the policy and with 
 the intent of the parties as ascertainable from the language upon the recognized 
 princiijles of interpretation. Appleton, C. J., in Eastabrook v. Union Mut. Life 
 Ins. Co., 54 Me. 224; Kent, J., dissented, but delivered no opinion. An in- 
 surance upon life is of comparatively recent date. A creditor may in.sure upon 
 
 669 
 
§ 312] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XV. 
 
 § 312. The doctrine laid down in Dean v. American Mut- 
 
 the life of his debtor, or one may insure upon his own life for the henefit of his 
 family. In no event can the person upon whose life the policy is eflfectnd be bene- 
 fited by his own death. Death, whether by disease, by accident, or the result 
 of insanity, is in each case within the general object of the policy. The terms 
 ' suicide ' and ' dying by one's own hand ' are generally used synonymously. Some- 
 times one form of expression is used, and sometimes the other. They have the 
 same meaning. Dying by one's own hand is but another form of expression for 
 suicide. The phrase, ' die by one's own hand, ' may include all cases of death by 
 the person upon whose life the policy is effected, or it may receive limitations. 
 If limitations, then the inquiry arises as to the extent of those limitations. The 
 authorities concur in this, that the expressi9n does not embrace all cases of death 
 by one's own hand. If the insured kill himself by drinking poison, not being 
 aware that it was poison ; or by snapping a loaded pistol, ignorant that it was 
 loaded ; or by leaping from a window in the delirium of a fever, — it is conceded 
 that he would not die by his own hand, within the meaning of the clause under 
 consideration, though he might literally die by his own hand, that is, by his own 
 act. ' It is to be observed,' remarks Tindal, C. J., in Borradaile v. Hunter, 'that 
 the words of the proviso are the words not of the assured, but of the in.surers, in- 
 troduced by themselves for the purpose of their own exemption and protection 
 from liability ; both in reason and good sense, therefore, no less than upon the 
 acknowledged principles of legal construction, they are to be taken most strongly 
 against those who speak the words, and most favorably for the other party. For 
 it is no more than just that, if the words are ambiguous, he whose meaning they 
 are intended to express, and not the other party, shall suffer by the ambiguity.' 
 That they are ambiguous is conceded, for the courts in no cases have given them 
 a literal construction. When death is the result of insanity, it is equally the re- 
 sult of disease, for which the insane is in no respect responsible. It is a well- 
 settled physiological principle ' that disturbed intelligence has the same relation 
 to the brain that disordered respiration has to the lungs and pleura.' Death, 
 then, by an insane suicide is as much death by disease as though it were death by 
 fever or consumption. Death by accident or mistake, though by the party's own 
 hand, is not within the condition. Death by disease is provided for by the pol- 
 icy. Insanity is disease. Death, the result of insanity, is death by disease. The 
 insane suicide no more dies by his own hand, than the suicide by mistake or acci- 
 dent. If the act be not the act of a responsible being, but is the result of any 
 delusion or perversion, whether physical, intellectual, or moral, it is not the act 
 of the man. ' If they [the insurers] intended the exception to extend both to the 
 case of felonious self-destruction, and self-destruction not felonious, they ought,' 
 observes Tindal, C. J., in Borradaile v. Hunter, ' so to have expressed it clearly in 
 the policy ; and that, at all events, if they have left it doubtful on the face of the 
 policy whether it is so confined or not, that doubt ought, in my opinion, to be 
 determined against them ; for it is incumbent on them to bring themselves within 
 the exception, and, if their meaning remains in doubt, they have failed so to do.' 
 The different English life insurance companies (when unwilling to incur the risk 
 of suicidal insanity) have guarded against such risk by language clearly excluding 
 it from the policy. Thus, the Equitable has the condition, ' if the insured shall 
 die by his own hand, being at the same time sane or insane ; ' the Eagle, ' if he 
 shall die by his own act, whether sane or insane.' In the policies of the Solici- 
 tors' and General Life Assurance, the condition is, if he die by his own act, 
 ' whether felonious or not.' The policy in the clause under consideration refers 
 to death by his own hand, or in consequence of a duel, or the violation of any 
 
 670 
 
CH. XV.] SUICIDE. [§ 312 
 
 ual Life Insurance Company,^ has since been adopted and 
 
 state, national, or provincial laws, or by the hands of justice. All the other 
 cases after the first involve criminal delinquency. They involve intentional mis- 
 doing. They assume criminal intention. They are cases where death occurs in 
 consequence of committing a felony or other violation of law on the part of the 
 insured. There must in all he moral, as well as legal, responsibility. Noscitur 
 a sociis is a familiar maxim in the interpretation of covenants. The other mem- 
 bers of the sentence, connected with the verb 'die,' imply death as the result of 
 crime committed by a responsible being. The first of these conditions, to which 
 the others refer, and with which they are connected, must equally with the others 
 refer to a felonious death, to the case of felo de se, not to the ease of a death with- 
 out legal or moral blame, — the result of accident, mistake, or disease. The 
 madman who in a fit of delirium commits suicide as much dies by his own 
 hand as does the individual who accidentally and unintentionally takes his own 
 life. They each die by their own hands, but without moral responsibility or 
 legal blame. One is no more within the conditions of the policy than the other. 
 In each case it should receive the same construction. That a jury would be 
 likely to regard suicide as proof of insanity does not affect the conclusion. If 
 suicide is to be regarded as evidentiary of insanity, as it unquestionably is in 
 most cases, then they generally arrive at correct results. If it is not properly to 
 be so regarded, it may be an argument against a trial by jury, that the tribunal is 
 one which allows itself to be governed by its prejudices rather than by the proofs ; 
 but it is none against the construction of the policy that death by the hands of 
 the insured, whether by accident, mistake, or in a fit of insanity, is to be gov- 
 erned by one and the same rule. Nor does the case of suicide, by one insane, fall 
 within the danger to guard against the occurrence of which this condition was in- 
 serted. ' A policy,' observes Maule, J., in Borradaile v. Hunter, ' by which the 
 sum is payable on the death of the person assured in all events, gives him a 
 pecuniary interest that he should die immediately, rather than at a future time, 
 to the extent of the excess of the value of a present payment over a deferred one, 
 and offers a temptation to self-destruction to that extent. To protect the insurers 
 against the increase of risk arising out of this temptation, is the object for which 
 the condition is inserted.' The reason here given assumes, or presupposes, sanity 
 on the part of the insured. It implies a motive acting on a sane mind, for sanity 
 is in all cases to be presumed. But, in fact, there is very slight foundation for 
 any sucli reasoning. The person whose life is insured never receives money after 
 his death. Suicide for the benefit of others is rare, exceptional, and Quixotic. 
 The love of life, the strongest sentiment of our nature, affords reasonable security 
 against a danger so remotely probable. An insane man would be little likely to 
 calculate the difference in value between a payment to be made immediately and 
 one indefinitely deferred, and kill himself that some one else might receive the 
 money at an earlier date in consequence of his committing suicide. The evidence 
 aff'ords not the slightest indication that any such motive had any influence in the 
 present case. Where the policy is on the life of a mariner, as in the one under 
 consideration, ' the insurance can be no inducement to a criminal act, and may 
 be reasonably construed to cover this as well as every other risk. There is, indeed, 
 no reason why it should not do so ; for the general tables of mortality , which 
 form the basis of the calculations upon which the policy is founded, include this 
 as well as every other cause of death, so that the particular risk is actually 
 insured against.'" Bunyon on Life Insurance, 73. 
 1 4 Allen (Mass.), 96. 
 
 671 
 
§ 313] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XV. 
 
 followed by Mr. Justice McKennan in the Circuit Court of 
 the United States for the Western District of Pennsylvania, ^ 
 and in Kentucky.^ In the cdse from Kentucky the follow- 
 ing instructions were held to be erroneous: "That although 
 the jury may be satisfied that Leslie C. Graves, whose life 
 was insured by the defendant, committed suicide, and that 
 when he did his intellect was unimpaired, and that he knew 
 it was forbidden both by moral and human law; yet if they 
 believe, from all the evidence, J;hat at the instant of the 
 commission of the act his will was subordinated by an un- 
 controllable passion or emotion, causing him to do the act, 
 it was an act of moral insanity," and would not avoid the 
 policy. In England, the rule laid down by the majority of 
 the judges in the cases of Borradaile v. Hunter and CHft v. 
 Schwabe was followed in White v. The British Empire Mut- 
 ual Life Assurance Company,^ in which the Vice-Chancellor 
 (Malins) took occasion to intimate that that opinion was so 
 clearly the better law that he did not wish to hear any argu- 
 ment on behalf of the defendants. In Stormont v. Waterloo 
 Life and Casualty Assurance Company,* the insured com- 
 mitted suicide by throwing himself out of the window, and 
 tlie court told the jury that the question was, did the assured 
 know that he was throwing himself out of the window ? If 
 he did, no recovery could be had under the policy. Other- 
 wise, if he did not. Such, also, appears to be the rule in 
 Ohio-^ and in Maryland.^ It is also said to be the law in 
 Germany, Holland, and Prance.' 
 
 § 313. Later the Supreme Court of Massachusetts, having 
 occasion to reconsider the question,^ adhered to its former 
 decision, and thus stated the position of the question. 
 
 1 Nimick v. Mut. Benefit, Life Ing. Co., 3 Brewster (Pa.), 502 ; s. c. Am. Law 
 Leg. Feb. 1871. So also by Cadwallader, J., C. Ct. (Pa.) in Snyder v. Mut. Life 
 Ins. Co., i Big. Life & Ace. Ins. Cas. 424. 
 
 2 St. Louis Mut. Life Ins. Co. v. Graves, 6 Bush (Ky.), 268. 
 8 38 L. J. N. s. Ch. 53. 
 
 4 1 F. & F. Msi Prius, .22. 
 
 ^ Harttnann v. Connecticut, &c. Ins. Co., 4 Ins. L. J. 159. 
 
 8 Knickerbocker, &c. Ins. Co. v. Peters, 42 Md. 414. 
 
 ^ 6 Ins. L. J. 719. 
 
 8 Cooper V. Massachusetts Mut. Life Ins. Co., 102 Mass. 227. 
 
 672 
 
CH. XV.] SUICIDE. [§313 
 
 "The proviso in the policy is, that it shall be void if the 
 assured 'shall die by suicide.' The plaintiff offered to prove 
 that the assured, at the time of committing the act of self- 
 destruction, was insane ; that he acted under the impulse of 
 insanity; and that his act of self-destruction was the direct 
 result of his insanity. The question presented is, whether 
 if these facts are true, the act of self-destruction avoids the 
 policy, within the terms of the proviso. The subject has 
 been so fully discussed in the cases cited that further argu- 
 ment is needless. We need only collate the cases. 
 
 "In Borradaile v. Hunter^ the words were, 'if the assured 
 should die by his own hand. ' He drowned himself in the 
 Thames ; and the jury found that he did it voluntarily, but 
 that he was not capable of judging between right and wrong. 
 It was held that the proviso was not limited to acts of felo- 
 nious suicide, and that the policy was void. Tindal, C. J., 
 dissented. But the jury were instructed that it must appear 
 that the assured was conscious of the probable consequences 
 of his act, and did it for the express purpose of destroying 
 himself voluntarily, having at the time sufficient mind and 
 will to destroy himself. 
 
 "In Clift V. Schwabe^ the words were, 'should commit 
 suicide.' The assured swallowed a quantity of sulphuric 
 acid, sufficient to occasion death, for the purpose of killing 
 himself, of which he died the next day. It was held by 
 Parke and Alderson, BB., Patteson, J., and Rolfe, B., to be 
 immaterial whether he was a responsible agent. Pollock, 
 C. B. , and Wightman, J., dissented. But Alderson, B., 
 says the words do not apply to cases in which the will is 
 not exercised at all, as when death results from an accident 
 or delirium, but when the destruction is voluntary, though 
 the will may be perverted. 
 
 "In Dean v. American Insurance Company,^ the words 
 were, like those in Borradaile v. Hunter, 'shall die by his 
 own hand. ' The assured cut his throat with a razor. The 
 plaintiff, however, alleged and offered to prove that the act 
 whereby the death was caused was the direct result of in- 
 
 1 Man. & Gr. 639. 2 3 c. B. 439. ^ 4 Alien (Mass.), 96. 
 
 VOL. I.— 43 673 
 
§ 313] INSUKANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. XV. 
 
 sanity ; that the insanity was what is called suicidal depres- 
 sion, impelling him to take, his life, and that suicide is the 
 necessary and direct result of such insanity or disease ; and 
 it was held that this avoided the policy. But Bigelow, C. 
 J., in giving the opinion, adverts to the word 'suicide,' and 
 avoids discussing its signification ; thereby leaving the pres- 
 ent case undecided by this court. But he says that if the 
 death is caused in the madness of delirium, or under any 
 combinatictn of circumstances from which it may be fairly 
 inferred tl;iat the act of self-destruction was not the result 
 of the will and intention of the party, adapting the means to 
 the end, and contemplating the physical nature and effects 
 of the act, it would not be within the policy. This limita- 
 tion is, in substance, the same with that which is quoted 
 from the other cases cited. 
 
 "In Eastabrook ?;. Union Insurance Company,^ the words 
 were 'shall die by his own hand.' The jury found that the 
 self-destruction was the result of a blind and irresistible 
 impulse over which the will had no control, and was not an 
 act of volition. It was held that this did not avoid the pol- 
 icy; and Appleton, C. J., in a very elaborate opinion, says 
 the decision was in entire conformity with the law as stated 
 in Dean v. American Insurance Company, referring to the 
 limitation stated above. But Kent, J., dissented. 
 
 "In Breasted «. Farmers' Loan and Trust Company,^ the 
 words were 'should die by his own hand.' It was held by 
 a majority of the Court of Appeals, three of the justices dis- 
 senting, that, if the assured was insane, and incapable of 
 discerning between right and wrong, his suicide did not 
 avoid the policy. This decision is at variance with the 
 other authorities cited, and is contrary to our own interpre- 
 tation of the same words in Dean v. American Insurance 
 Company. 
 
 " Upon a careful consideration of the elaborate discussion 
 of the matter in the cases above cited, by the dissenting 
 judges as well as by those in the majority, we think that, as 
 applied to this case, there is no substantial difference of sig- 
 
 1 54 Me. 224. 2 4 Seld. (N. Y.) 299. 
 
 674 
 
CH. XV.] SUICIDE. [§ 316 
 
 nification between the phrases 'shall die by his own hand,' 
 'shall commit suicide,' and 'shall die by suicide; ' and that 
 they include self-destruction under the influence of insanity 
 within the limitation above stated. In the present case, 
 there was no offer to prove madness of delirium, or that the 
 act of self-destruction was not the result of the will and in- 
 tention of the party, adapting the means to the end, and con- 
 templating the physical nature and effects of the act. The 
 insanity therefore was not such as to take the case out of 
 the proviso." 
 
 § 314. In Fowler v. Mutual Life Insurance Company, ^ the 
 facts made it so plain that the insured was a voluntary sui- 
 cide, that the court refused to submit the question whether 
 the act was an insane or an involuntary one to the jury, 
 after intimating that the question would be, if there were 
 any question on the evidence, whether the act was volun- 
 tarily done, without reference to the question whether the 
 insured was, or was not, a responsible moral agent. 
 
 § 315. In Mallory v. Travelers' Insurance Company,^ the 
 court instructed the jury that if the condition of the deceased 
 at the time of death was such that he could not distinguish 
 between right and wrong, if it was such that he did not 
 know that he was doing an act which would produce death, 
 the plaintiff might recover, — a rule indicating a tendency 
 to adopt the doctrine of the Massachusetts cases, and said, 
 on appeal to the general term of the same court, to have 
 been an instruction quite as favorable to the defendants as 
 the rule in New York would allow. 
 
 § 316. In the case of Van Zandt v. Mutual Benefit Life 
 Insurance Company,^ in New York, the court adheres to the 
 rule theretofore laid down in that State that the suicide must 
 be felonious, and by one who was able to appreciate the 
 moral effect and consequences of his act, in order to prevent 
 a recovery, and distinctly refused to sustain the doctrine 
 
 1 4 Lans. (17. Y. ) 202. 
 
 2 N. Y. Sup. Ct. 1870 ; s. c. 47 N. Y. 52, where, however, this ruling, it not 
 having been excepted to, was not considered. 
 
 3 New York Supreme Court, Gen. Terra, 4th Dept., June, 1872. 
 
 675 
 
§ 316] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XV. 
 
 that if the insured destroy his own life voluntarily and wil- 
 fully, having at the time sufficient power of mind and reason 
 to understand the physical nature and consequences of such 
 an act, and having the- purpose and intention to cause death 
 by the act, he cannot recover. And it was also held in the 
 same case that there was no essential difference whether the 
 provision was " in case he shall die by his own hand, in or 
 in consequence of a duel, or by reason of intemperance," or 
 " in case he shall die by his owni hand in consequence of a 
 duel," &c.^ In a still later case the same court held that an 
 
 ^ Oil appeal, the court, after explaining that Breasted's case is not opposed to 
 Borradaile v. Hunter, used the following language; (1) "It is contended that 
 the case of Breasted ti. The Farmers' Loan and Trust Company, 4 Hill, 73, and 
 8 N. Y. 299 ; 1 Big. Life & Ace. Ins. Cas. 341, 343, establishes a different doctrine 
 in this State. In 4 Hill, 73, the case came before the court on demurrer to a re- 
 plication, which aveiTed that when the assured drowned himself he was of un- 
 sound mind, and wholly unconscious of the act. Nelson, C. J., in delivering the 
 opinion of the court, placed the decision npon the ground that, speaking legally, 
 such drowning was no more the act of the assured than if he had been impelled 
 by irresistible physical power. The learned judge also intimates that the connec- 
 tion in wliich the words stand in the policy would seem to indicate that they 
 were intended to express a criminal act of self-destruction, as they are found in 
 conjunction with the provisions relating to the termination of the life of the 
 insured in a duel, or his execution as a criminal. But he does not place the deci- 
 sion on that gronnd, nor could it well stand there if the language of the policy 
 in that case was the same as in the present, because in this policy the provisions 
 in conjunction with which the words are used relate as well to acts not criminal 
 as to criminal acts ; the same sentence embracing the visiting of prohibited terri- 
 tories, engaging in sei'vice upon the seas, or in military semce, death from intem- 
 perance, &c. The maxim noscitur a sociis cannot, therefore, afford a reliable rule 
 of interpretation. See opinion of Grover, J., in Bradley v. Mutual Benefit Life 
 Insurance Company. 45 N. Y. 434; 2 Big. Life & Ace. Ins. Cas. 117. In 
 8 N. V. 299, the case of Breasted came before the Court of Appeals on appeal 
 from the decision of the Supreme Court upon the demurrer, and also upon a judg- 
 ment on the report of the referee on issues of facts which had been joined in the 
 action. The referee had found that the assured threw himself into the river while 
 insane, for the purpose of drowning himself, not being mentally capable at the 
 time of distinguishing between right and wrong. There was no finding that the 
 act was voluntary or wilful. Such a finding would have established that the man 
 was not deprived of his power of will, and that he could have restrained himself 
 from the commission of the act, and would have negatived any insane impulse 
 which he could not resist. Bearing in mind the well-established principles upon 
 which judgments based upon findings of fact by a court or referee are reviewed in 
 this appellate tribunal, and that in regard to matters of fact all intendments of 
 which the evidence in the case, or the findings, are fairly susceptible, must be in 
 support of such judgments, and that the finding in general terms of insanity may 
 have comprehended a deprivation, not merely of moral sense, but of any rational 
 will, the court could hardly have come to any other conclusion than it did. The 
 
 676 
 
CH. XV.] SUICIDE. [§ 316 
 
 act done under the control of an insane impulse caused by 
 
 whole reasoning of the opinion of Willard, J., which prevailed over the dissents 
 of Gardner, Jevvett, and Johnson, jj., shows that he regarded the point raised 
 upon the demurrer, viz. that the assured at the time of destroying his own life 
 was of unsound mind and wholly unconscious of the act, and that presented by 
 the finding, as identical, and that the learned judge regarded the finding as es- 
 tablishing that the insured was so insane as not to be capable of forming an inten- 
 tion, and that he had not sufficient mind to concur in the act. The learned 
 judge does not undertake to overrule the cases of Borradaile v. Hunter and Clift 
 V. Schwabe, but expressly distinguishes those cases from the one befoi-e him by 
 pointing out that they assumed that the act was voluntaiy, which fact he holds 
 that the finding in the case of Breasted failed to establish. A finding, in the 
 language of the request in the present case, that the deceased had sufiicient power 
 of mind and reason to understand the physical nature and consequences of the 
 act, and that he committed it voluntarily and wilfully, and in pursuance of a pur- 
 pose and intention thereby to cause his own death, would have established that 
 insanity did not exist to such a degree as to prevent him from forming an inten- 
 tion, or being conscious of the act he was doing. It would have established that 
 his mind did concur with the act, and that this, being voluntary, was not the 
 result of any insane impulse or want of power of self-control. Whether so much 
 power of reasoning and of self-control could be left in a mind so impaired as to be 
 incapable of appreciating the moral obliquity of the crime of suicide, is rather a 
 scientific than a legal question. (2) Judge Willard, in the Breasted case, 8 N. Y. 
 299, 305, expresses the opinion that a man so insane as to be incapable of dis- 
 cerning between right and wrong can form no intention. This, it must be observed 
 in passing, is a much broader proposition than that the failure to appreciate the 
 wrong of a particular act evinces a total deprivation of reason. Tlie loss of moral 
 sense, even to that extent, in one who had previously possessed it, would un- 
 doubtedly be a fact bearing strongly upon the question whether he retained his 
 other faculties. But in the practical administration qf justice in cases of this 
 description, it seems to us a dangerous doctrine to hold that the attention of the 
 jury should be directed principally to the degree of appreciation which the de- 
 ceased had of the moral nature of his act, and that this question, most specula- 
 tive and difficult of solution, should be made the test by which it should be 
 determined whether he had knowingly and voluntarily violated the condition of 
 his insurance. The real question i.s, whether he did the act consciously and volun- 
 tarily, or whether from disease his mind had ceased to control his actions. Sup- 
 posing a man to be in possession of his will and of the ordinary mental faculties 
 necessary for self-preservation, but that his mind has become so morbidly diseased 
 on the subject of suicide that he cannot appreciate its moral wrong, and in this 
 condition of mind he takes his own life voluntarily and intentionally, perhaps 
 with the very object of securing to his family the benefits of an insurance upon 
 his life, it is difficult to say that this is not a death by his own hand within the 
 meaning of the policy. It has been doubted whether public policy would permit 
 an insurance covering the case of intentional suicide by the assured while sane. 
 But however this may be, no rational doubt can be entertained that a condition 
 exempting the insurers from liability in case of the death of the assured by his 
 own hand, whether sane or insane, would be valid if mutually agreed upon be- 
 tween the insurer and the insured. When nothing is said in the policy with 
 respect to insanity, the words ' die by bis own hand ' in their literal sense com- 
 prehend all cases of self-destruction. The exceptions which have been engrafted 
 
 677 
 
§ 316] msuKANCE : fiee, life, accident, etc. [oh. XV. 
 disease and derangement of the intellect, and deprivation of 
 
 upon these words by judicial decisions must rest upon the ground that the ex- 
 cepted cases could not have been within the meaning of the parties to the policy. 
 The intent on the part of the insurer in inserting the condition is evident. The 
 policy creates in the assured a pecuniary interest iu his own death. To a man 
 laboring under the pressure of poverty and the urgent wants of a dependent 
 family, or of inability to discharge sacred pecuniary obligations or other similar 
 causes, the policy offers a temptation to self-destruction. To protect the insurers 
 against the increase of risk arising out of this temptation is the object for which 
 the condition in question is inserted. Per Maule, J., 5 M. &. Gr. 653. The con- 
 dition ought, therefore, to be so construed as to exclude only those cases in which 
 these motives could not have operated, such as accident or delirium. Ibid. So 
 far as considerations of public policy have any place in determining such a ques- 
 tion, they are undoubtedly in favor of confining the exceptions to the condition to 
 cases in which the self-destruction is clearly shown to have been accidental or 
 involuntary. (3) I do not find that any of the cases have gone so far as to ad- 
 judicate that a mere want of capacity to appreciate the moral wrong involved in 
 the act, when it was voluntary and intentional, unaccompanied by any want of 
 appreciation of its physical nature and consequences, or by any insane impulse, or 
 want of power of will or self-control, is sufficient to take a case out of the proviso. 
 (4) The contrary has been held in several cases, and the doctrine of Borradaile v. 
 Hunter adopted. Dean v. The American Mut. Life Ins. Co., 4 Allen, 96 ; 1 Big. 
 Life & Ace. Ins. Cas. 195 ; Cooper v. The Massachusetts Mutual Life Ins. Co., 
 102 Mass. 227 ; 1 Big. Life & Ace. Ins. Cas. 758 ; Nimick v. Insurance Co., 10 
 Am. Law Reg. N. s. 101, 102; 1 Big. Life & Ace. Ins. Cas. 689; Gay v. Union 
 Mutual Life Ins. Co., 9 Blatchf. 142; 2 Big. Life & Ace. Ins. Cas. 4; Wharton & 
 Stille, Med. Jur. § 240 ; Fowler v. The Mutual Life Ins. Co. of N. Y., 4 Lans. 
 202 ; 3 Big. Life & Ace. Ins. Cas. 673. In the case of St. Louis Mutual Insurance 
 Company v. Graves, 6 Bush (Ky.), 268 ; 1 Big. Life & Ace. Ins. Cas. 736, the 
 Court of Appeals of Kentucky was equally divided. (5) The only case cited in 
 support of the respondents' view, in addition to the case of Breasted v. The Fann- 
 ers' Loan and Trust Company, which has already been commented upon, is the 
 case of The Mutual Life Insurance Company v. Terry, 15 Wall. 580 ; 3 Big. 
 Life & Aoc. Ins. Cas. 819. But it will be found upon an examination of that case 
 that the question of the capacity of the deceased to appreciate the moral character 
 of the act was not involved, and that all that is said upon that subject in the 
 opinion is obiter. The judge at the trial expressly instructed the jury that it was 
 not every degree of insanity which would so far excuse the party taking his own 
 life as to make the party insuring liable ; but that the mind of the deceased must 
 have been so far deranged as to have made him incapable of using a rational judg- 
 ment in regard to the act he was committing, or he must have been impelled by 
 some insane impulse which the reason that was left him did not enable him to 
 resist. Not a word was said to the jury in respect to his consciousness of the 
 moral quality of the act. 1 Dill. C. C. R. 404. The requests to charge which 
 were refused required the submission to the jury only of the question of the 
 capacity of the deceased to understand the nature and consequences of the act, 
 and did not require them to find that it was voluntary, and therefore did not 
 exclude the hypothesis of an insane impulse which he could not resist. (6) The 
 questions raised by the exemptions in that case differ widely from the present, 
 and the judgment therein is not inconsistent with the doctrine of Borradaile o. 
 Hunter, and the other cases cited. The opinion delivered in the Supreme Court 
 678 
 
CH. XV.] SUICIDE. [§317 
 
 the capacity of governing the conduct in accordance with 
 reason, could not be regarded as voluntary, or within the 
 proviso against self-destruction. ^ 
 
 § 317. In Isett v. American Life Insurance Company,^ the 
 insured committed suicide by shooting himself with a pistol, 
 and the policy provided that if the insured " die by his own 
 hand " the insurer should not be liable. The jury were in- 
 structed that if the insured at the time of his death was 
 conscious that his death would follow the discharge of the 
 pistol in his hands, though he was laboring under mental 
 depression or disturbance of mind, or if he destroyed his 
 life because he was suffering from some physical infirmity, 
 and for the purpose of escaping from such infirmity, there 
 could be no recovery; that sanity was to be presumed and 
 insanity to be proved by the party alleging it, and that sui- 
 cide is not of itself proof of insanity, but to be considered 
 with other facts and circumstances in the case,^ On appealj 
 the Supreme Court say : " We understand the fair import of 
 the instruction to be this : if the insured possessed sufficient 
 
 in the Terry case contains the same general language, which goes far beyond the 
 charge in the Circuit Court, and was not necessary to sustain the judgment. I 
 refer to that part of the opinion which is relied upon in the points of the respond- 
 ent in this case, and in which the learned judge says that ' if the death is caused 
 by the voluntary act of the assured, he knowing and intending that his death 
 shall be the result of his act, but when his reasoning faculties are so far impaired 
 that he is not able to understand the moral character, the general nature, conse- 
 quences, and effect of the act he is about to commit, or when he is impelled 
 thereto by an insane impulse which he has not the power to resist,' the insurer is 
 liable. (7) The precise effect of this passage is not very clear to us, as it includes 
 several conditions which can hardly coexist. It can be conceived that the act 
 might have been voluntary and the self-destruction intentional, though the as- 
 sured failed to appreciate its moral character ; but it is difficult to conceive how 
 the act could have been voluntary and intentional when the faculties of the 
 deceased were so impaired that he was not able to understand ' the general nature, 
 consequences, and effect of the act he was about to commit,' or when he was 
 impelled thereto by an insane impulse which he had not the power to resist. 
 (8) Even if the decision in the Terry case were an authority binding upon us, we 
 should not regard it as overruling the case of Borradaile v. Hunter, and kindi'ed 
 cases. The first request to charge was framed in accordance with the doctrine of 
 those cases, and we think that it should have been granted. " 
 
 1 Newton v. Mutual Benefit Life Ins. Co., 76 N. Y. 426. 
 
 2 Court of Common Pleas, Blair County, Penn., May, 1872, 1 Ins. L. J. 715. 
 ' See also Stratton v. North American, &c. Ins. Co. (C. C. P. Pa.), 7 Leg. Gaz. 
 
 313 ; s. 0. 5 Big. Life & Ace. Ins. Cas. 504. 
 
 679 
 
§ 318] INSURANCE : riEE, LIFE, ACCIDENT, ETC. [CH. XV. 
 
 mental capacity to form an intelligent intent to take his 
 own life, and was conscious that the act he was about to 
 commit would effect that object, it avoided ,the policy. If, 
 however, his mind was so far impaired that he was incap- 
 able of forming such an intent, and was unconscious of the 
 effect of his action upon his life, a recovery could be 
 had. So understanding it, we cannot say there is any error 
 therein. " The court further observe that the cases of Hart- 
 man V. Keystone Insurance Company ^ is not in conflict with 
 the instruction, and as the question based upon the distinc- 
 tion between a perception of the physical and moral char- 
 acter of acts does not arise, they decline to go into that 
 question.^ In a subsequent case in the Common Pleas, sui- 
 cide being defined as malicious self-murder, the rule was 
 stated as follows : " If the insured was impelled to the act 
 by an insane impulse, which the reason which was left in 
 him did not enable him to resist, or if his reasoning powers 
 were so far overthrown by his mental condition that he could 
 not exercise his reasoning faculties on the act he was about 
 to do, he did not die by his own hand."^ And in a still 
 later case the court, while admitting that the "preponder- 
 ance of decisions" is in favor of the English doctrine, ex- 
 press their preference for the doctrine of Terry's case.* 
 Suicide implies self-destruction by a person of sound mind.® 
 § 318. In Gay v. Union Mutual Life Insurance Company, 
 tried before Woodruff and Shipman, JJ.,^ where the insured 
 shot himself in the head with a pistol, the jury were charged 
 that if the insured at the time he fired the pistol was con- 
 scious of the act he was committing, intended to take his 
 own life, and was capable of understanding the nature and 
 consequences of the act, the insurers were not liable; that 
 
 1 21 Pa. St. 466 ; post, § 323. 2 74 pa. St. 176. 
 
 8 Bank of Oil City v. Guardian, &c. Ins. Co., 4 Ins. L. J. 472. 
 
 4 Connecticut, &c. Ins. Co. v. Groom, 86 Pa. St. 92. 
 
 5 Ibid. See also remarks of Bigelow, 0. J., ante, § 310 ; and Phadenhauer v. 
 Germania Ins. Co., 7 Heisk. (TeTin.) 567, where the policy used the words "by 
 suicide or by his own hands." See also Bigelow v. Berkshire Life Ins. Co., 93 
 U. S. 284. 
 
 6 9Blatchf. C. Ct. (U.S.) 142. 
 
 680 
 
CH. XV.] SUICIDE. [§ 320 
 
 if the act was thus committed, it was immaterial whether 
 he was capable of understanding its moral aspects, or of 
 distinguishing between right and wrong; and that if he was 
 not thus conscious, or had no such capacity, but acted under 
 an insane delusion overpowering his understanding and will, 
 or was impelled by an uncontrollable impulse which neither his 
 understanding nor will could resist, the insurers were liable. 
 
 § 319. In Terry v. Life Insurance Company,^ Mr. Justice 
 Miller ruled that there is no presumption of law that self- 
 destruction is caused by insanity, and stated the conclusions 
 at which he had arrived as the result of an examination of 
 the authorities, in his charge to the jury. 
 
 § 320. The doctrine of this case was affirmed on appeal to 
 the Supreme Court of the United States,^ Mr. Justice Hunt 
 delivering the opinion of the court. 
 
 1 1 Dill. C. Ct. (V. S.) 8th Circuit, 403. The judge said: "It being agreed 
 that the deceased destroyed his life Ijy taking poison, it is claimed by the de- 
 fendants that he ' died by his own hand,' within the meaning of the policy, and 
 that they are therefore not liable. This is so far true, that it devolves on the 
 plaintiff to prove such insanity on the part of the deceased, existing at the time 
 he took the poison, as will relieve the act of taking his own life from the effect 
 which, by the general terms used in the policy, self-destruction was to have, 
 namely, to avoid the policy. It is not every kind or degree of insanity which 
 will so far excuse the party taking his own life as to make the company insuring 
 liable. To do this, the act of self-destruction must have been the consequence of 
 insanity, and the mind of the deceased must have been so far deranged as to have 
 made him incapable of using a rational judgment in regard to the act which he 
 was committing. If he was impelled to the act by an insane impulse, which the 
 reason which was left him did not enable him to resist, or if his reasoning powers 
 were so far overthrown by his mental condition that he could not exercise his 
 reasoning faculties on the act he was about to do, then the company was liable. 
 On the other hand, there is no presumption of law, prima facie or otherwise, that 
 self-destruction arises from insanity ; and if you believe, from the evidence, that 
 the deceased, although excited or angry, or distressed in mind, formed the deter- 
 mination to take his own life, because in the exercise of his usual reasoning facul- 
 ties he preferred death to life, then the company is not liable, because he died by 
 his own haud within the meaning of the policy." 
 
 2 Mut. Life lus. Co. v. Terry, 15 Wall. (0. S.) 580. The judge here says : 
 "This action was brought to recover the sum of two thousand dollars, claimed to 
 be due upon a policy of insurance on the life of George Terry, made and issued to 
 the plaintiff, his wife. The policy contained a condition, of which a portion was 
 in the followiug words, viz. : ' If the said person whose life is hereby insured 
 . . . shall die by his own hand, . . . this policy shall be null and void.' Within 
 the terms of the policy George Terry died from the effects of poison taken by him. 
 Evidence was given tending to show that at the time he took the poison he was 
 insane. Evidence was also given, tending to show that at that time he was sane, 
 
 681 
 
§ 321] INSURANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. XV. 
 
 § 321. Mistake ; Accident. — In the Equitable Life Assur- 
 
 and capable of knowiug the consequences of the act he was about to commit. 
 Thereupon the counsel for the defendant asked the court to instruct the jury, 
 1. If the jury believe, from the evidence in the case, that the said George Terry 
 destroyed his own life, and that, at the time of self-destruction, he liad sufficient 
 capacity to understand the nature of the act which he was about to commit, and 
 the conse(juence3 which would result from it, then, and in that case, the plaintiff 
 cannot recover on the policy declared on in this case. 2. That if the jury believe 
 from the evidence that the self-destruction of the said George Terry was intended 
 by him, he having sufficient capacity at the time to understand the nature of the 
 act which he was about to commit, and th(3 consequences which would result 
 from it, then, and in that case, it is wholly immaterial in the present case that 
 he was impelled thereto by insanity, which impaired his sense of moral responsi- 
 bility, and rendered him, to a certain extent, irresponsible for his action. Which 
 instructions, and each one bf said instructions, the court refused to give to the 
 jury, but the court did charge the jury as follows. [See preceding section.] . . . 
 The request proceeds upon the theory that if the deceased had sufficient mental 
 capacity to understand the nature and consequence of his act, — that is, that he was 
 about to take poison, and that his death would be the result, — he was responsible 
 for his conduct, and the defendant is not liable ; and the fact that his sense of 
 moral responsibility was impaired by insanity does not affect the case. The charge 
 proceeds upon the theory that a higher degree of mental and moral power must 
 exist ; that although the deceased had the capacity to know that he was about to 
 take poison, and that his death would be the result, yet if his reasoning powers 
 were so far gone that he could not exercise them on the act he was about to com- 
 mit, its nature and effect, or if he was impelled by an insane impulse which his 
 impaired capacity did not enable him to resist, he was not responsible for his 
 conduct, and the defendant is liable. It may not be amiss to notice that the case 
 does not present the point of what is called emotional insanity, or mania tran- 
 sitoria ; that is, the case of one in possession of his ordinary reasoning faculties, 
 who allows his passions to convert him into a temporary maniac, and while in 
 this condition commits the act in question. This case is expressly excluded by 
 the last clause of the charge, in which it is said that anger, distress, or excitement 
 does not bring the case within the rule if the insured possesses his ordinary 
 reasoning faculties. The case of Borradaile v. Hunter, [5 Man. & Gr. 639], is cited 
 by the insurance company. The case is found also in 2 Bigelow's Life and Acci- 
 dent Insurance Cases, p. 280, and in a note appended are found the most of the 
 cases upon the subject before us. The jury found in that case that the deceased 
 voluntarily took his own life, and intended so to do, but at the time of commit- 
 ting tlie act he was not capable of judging between right and wrong. Judgment 
 went for the defendant, which was sustained upon appeal to the full bench. The 
 counsel for the company argued that where the act causing death was intentional 
 on the part of the deceased, the fact that his mind was so far impaired that he 
 was incapable of judging between right and wrong did not prevent the proviso 
 from attaching ; that moral or legal responsibility was irrelevant to the issue. 
 The court adds : ' It may very well be conceded that the case would not have 
 fallen within the meaning of the condition had the death of the assured resulted 
 from an act committed under the influence of delirium, or if he had in a paroxysm 
 of fever precipitated himself from a window, or, having been bled, removed the 
 bandages, and death, in either case, had ensued. In these and many other cases 
 that might be put, though, strictly speaking, the assured may be said to have 
 
 682 
 
CH. XV.] SUICIDE. [§ 321 
 
 ance Society v. Paterson,^ the insured had taken laudanum 
 
 died by his own hands, the circumstances clearly would not be such as the parties 
 contemplated when the contract was entered into.' In delivering the opinion of 
 the court, Erskine, J., says all that the ' contract requires is, that the act of self- 
 destruction should be the voluntary and wilful act of a man having at the time 
 sufficient powers of mind and reason to understand the physical nature and con- 
 sequences of such act, and having at the time a purpose and intention to cause 
 his own death by that act, and the question, whether at the time he was capable 
 of understanding the moral nature and quality of his purpose, is not relevant to 
 the inquiry further than as it might help to illustrate the extent of his capacity 
 to understand the physical character of the act itself.' Chief Justice Tindal dis- 
 sented from the judgment. In speaking of the verdict, he says : ' It is not, per- 
 haps, to be taken strictly as a verdict that the deceased was iion compos mentis at 
 the time the act was committed, for if the latter was the meaning of the jury, the 
 case would then fall within that description mentioned in the argument to be 
 without the reach of the proviso, namely, the case of death inflicted on himself 
 by the party while under the influence of frenzy, delusion, or insanity.' This 
 authority was followed in Clift v. Schwabe, 3 C. B. 437, where it was substan- 
 tially held that the terms of the condition included all acts of voluntary self- 
 destruction, and that whether the party is a voluntary moral agent is not in 
 issue. These decisions expressly exclude the question of mental soundness. They 
 are in hostility to the tests of liability or responsibility adopted by the English 
 courts in other cases, from Coke and Hale onwards. Coke said, ' A little mad- 
 ness deprives the lunatic of civil rights or dominion over property, and annuls 
 wills.' But, to exempt from responsibility for crime, he says, ' Complete igno- 
 rance of the knowledge of right and wrong must exist.' Lord Mansfield holds 
 the legal test of a sound mind to be the knowledge of right and wrong, good and 
 evil ; of which the converse is ignorance of knowledge of right and wrong, of good 
 and evil. Lord Lyttleton held the test to be the state called compos mentis, or 
 sound mind. Lord Erskine, in his Defence of Hadfield, defined it to be the ab- 
 sence of any practicable delusion traceable to a criminal or immoral act. In 
 1 Prichard, p. 16 (on the different forms of insanity), will be found the somewhat 
 lengthy definition of insanity by Lord Lyndhurst, 1 Shelf. Lun. 46. The Eng- 
 lish judges refuse to apply to the act of the insured in causing his death the 
 principles of legal and moral responsibility recognized in cases where the contract, 
 the last will, or the alleged crime of such person may be in issue. . . . There is a 
 conflict in the authorities which cannot be reconciled. The propositions embodied 
 in the charge before us are in some respects diS'erent from each other, but in 
 principle they are identical. They rest upon the same basis, the moral and 
 intellectual incapacity of the deceased. In each case the physical act of self- 
 destruction was that of George Terry. In neither was it truly his act. In the 
 one supposition he did it when his reasoning powers were overthrown, and he 
 had not power or capacity to exercise them upon the act he was about to do. It 
 was in effect as if his intellect and reason were blotted out or had never existed. 
 In the other, if he understood and appreciated the effect of his act, an uncon- 
 trollable impulse, caused by insanity, compelled its commission. He had not the 
 power to refrain from its commission, or to resist the impulse. Each of the prin- 
 ciples put forth by the judge rests upon the same basis, that the act was not the 
 
 1 41 Ga. 338 ; s. c. 5 Am. Rep. 535. See also^osi!, §§ 325, 514. 
 
 683 
 
§321] insurance: fike, life, accident, etc. [ch. XV. 
 while drunk. The plaintiff claimed that it was by mistake ; 
 
 voluntary, intelligent act of the deceased. The causes of insanity are varied as 
 the varying circumstance of man. 
 
 " ' Some for love, some for jealousy. 
 For grim religion some, and some for pride, 
 Have lost their reasoa ; some for fear of want. 
 Want all their lives ; and others every day, 
 For fear of dying, suffer worse than death.' 
 
 [Armstrong on Health, book iv. ver. 113-118. Cited in 1 Shelf. Luu. In. 43.] 
 " When vpe speak of the 'mental condition' of a person we refer to his senses, 
 his perceptions, his consciousness, his ideas. If his mental condition is perfect, 
 his will, his memory, his understanding are perfect, and connected with a healthy 
 bodily organization. If these do not concur, his mental condition is diseased or 
 defective. Excessive action of the brain whereby the faculties become exhausted, 
 a want of proper action whereby the functions become impaired and diminished, 
 the visions, delusions, and mania which accompany irritability, or the weakness 
 which results from an excess of vital functions, indigestion and sleeplessness, are 
 all a result of a disturbance of the physical system. The intellect and intelli- 
 gence of man are manifested through the organs of the brain, and from these, 
 consciousness, will, memory, judgment, thought, volition, and passion, the func- 
 tious of the miud do proceed. Without the brain these cannot exist. With an 
 injured or diseased brain, their powers are impaired or diminished. We have not 
 before us the particular facts on which the question of the sanity of Terry was pre- 
 sented. We may assume that proof was given upon which the propositions of the 
 charge were based. We do not know whether he was sleepless, unduly excited, 
 or unnaturally depressed ; whether he had abandoned his accustomed habits and 
 pursuits and adopted new and unusual ones ; from a quiet, orderly man, he had 
 become disorderly, vicious, or licentious ; whether his fondness for his wife and 
 children had changed to dislike and abuse ; or jealousy, pride, the fear of want, 
 the fear of death had overtaken him. He may have realized the state supposed 
 by the couusel in arguing Borradaile v. Hunter, viz. that his death might have 
 resulted from an act committed under the influence of delirium, or. that in a 
 paroxysm of fever he might have precipitated himself from a window, or having 
 been bled he might have torn away the bandages. Whether he swallowed poison, 
 or did the other insane acts, might result from the same condition of body and 
 mind. Delirium, fever, tearing away the bandages for preserving the life, the 
 taking of poison, in a ca^ie like that before us, are all results of bodily disease. 
 If bodily disease in these, or other forms, overthrew Terry's reasoning faculties, 
 in other words, destroyed his consciousness, his judgment, his volition, his will, 
 he remained the form of the man only. The reflecting, responsible being did not 
 exist. In the language of the successful counsel in Borradaile v. Hunter, ' in 
 these and many other cases, though, strictly speaking, the assured may be said to 
 have died by his own hands, the circumstances clearly would not be such as the 
 parties contemplated when the contract was entered into.' That form of insanity 
 called impulsive insanity, by which the person is irresistibly impelled to the 
 commission of an act, is recognized by writers on this subject. It is sometimes 
 accompanied by delusions, and sometimes exists without them. The insanity 
 may be patent in many ways, or it may be concealed. We speak of the impulses 
 of persons of unsound mind. They are manifested in every form, — breaking of 
 windows, destruction of furniture, tearing of clothes, firing of houses, assaults, 
 murders, and suicides. These cases are to be carefully distinguished from those 
 
 684 
 
CH. XV.] SUICIDE. [§ 321 
 
 and the court said there must be an intent to commit sui- 
 cide, and if the intent exists, the fact that the man is maud- 
 lin from drink, and could have no very intelligent conception 
 of his surroundings, does not help the case. Death from 
 laudanum, taken by a drunken man with the intent to de- 
 
 where persons in the possession of their reasoning faculties are impelled by 
 passion merely in the same direction. [See Blundford on Insanity, — "Impulsive 
 Insanity."] Dr. Ray, cited by Fisher, approves the charge of the judge in 
 Haskell's case, where he says: " The true test lies in the word yowcr. Has the 
 defendant in a criminal case the power to distinguish right from wrong, and the 
 poxver to adhere to the right and avoid the wrong!' Fisher on Insanity, p. 83. 
 The question of sanity has usually been presented upon the validity of an agree- 
 ment, the capacity to make a will, or upon responsibility for crime. If Terry 
 had made an agreement under the circumstances stated in the charge, a jury or 
 conrt would have been justified in pronouncing it invalid. - A will then made by 
 him would have been rejected by the surrogate if offered for probate. If upon 
 trial for a criminal offence, upon all the authorities, he would have been entitled 
 to a charge that, upon proof of the facts assumed, the jury must acquit him. 
 [Freeman v. People, 4 Denio, 9 ; Willis v. People, 32 N. Y. 715, 719 ; Seamen's 
 Friend Soc. u. Hopper, 33 id. 619 : The Marquis of Winchester's Case, Coke's 
 Reports, 3d volume, 303 or part vi. 23 a ; Combe's Case, Moore (folio), 759.] 
 We think a similar principle must control the present case, although the stand- 
 ard may be different. We hold the rule on the question before us to be this : If 
 the assured, being in the possession of his ordinary reasoning faculties, from 
 anger, pride, jealousy, or a desire to escape from the ills of life, intentionally 
 takes his own life, the proviso attaches, and there can be no recovery. If the 
 death is caused by the voluntary act of the assured, he knowing and intending 
 that his death shall be the result of his act, but when his reasoning faculties are 
 so far impaired that he is not able to understand the moral character, the general 
 nature, consetjuences, and effect of the act he is about to commit, or when he is 
 impelled thereto by an insane impulse, which he has not the power to resist, such 
 death is not within the contemplation of the parties to the contract, and the in- 
 surer is liable. In the present instance, the contract of insurance was made be- 
 tween Mrs. Terry and the company, the insured not being in form a party to 
 the contract. Such contracts are frequently made by the insured himself, the 
 ]iolicy stating that it is for the benefit of the wife, and that in the event of death 
 the money is to be paid to her. We see no difference in the cases. In each it 
 is the case of a contract, and is to he so rendered as to give effect to the intention 
 of the parties. Nor do we see any difference for this purpose in the meaning of 
 the expressions, 'commit suicide,' 'take his own life,' or 'die by his own hands.' 
 With either expression, it is not claimed that accidental self-destruction, death in 
 endeavoring to escape from the flames, or the like, is within the proviso. The 
 judgment must be affirmed." Mr. Justice Strong dissented. This case, of course, 
 gives the rule for the Federal courts. And perhaps it would he followed in Michi- 
 gan, John Hancock, &c. Ins. Co. v. Moore, 34 Mich. 41 ; and Louisiana, Phillips 
 V. Louisiana Ins. Co., 26 La. An. 404. And it is distinctly adopted in Tennessee, 
 Phadenhauer v. Germania Ins, Co., 7 Heisk. 567, and Scheffer v. National Ins. 
 Co., 25 Minn. 534 ; and has also been followed in Vermont. Hathaway ;;. National 
 Life Ins. Co,, 48 Vt. 335. 
 
 685 
 
§ 322] INSUEA.NCE : FIEE, LIFE, ACCIDENT, ETC. [CH. XV. 
 
 stroy life, would be "dying by his own hands," while with- 
 out that intent, and by accident or mistake, it would not.^ 
 And in Fowler v. Mutual Life Insurance Company,^ the facts 
 showed such a case of deliberate suicide that the court re- 
 fused to allow the question of insanity, or of voluntary or 
 involuntary suicide, to go to the jury, and directed a ver- 
 dict for the defendant. 
 
 § 322. Suicide; Sane or Insane. — [An insurance company 
 may lawfully stipulate for forfeiture if the insured takes his 
 own life while insane.^ But it must be very careful about 
 the wording of the provision, or the courts will sail round 
 it. The clause "under any circumstances die by his own 
 hand " is to be understood as though it read " die by his 
 own hand;" the phrase "under any circumstances" is too 
 vague and indefinite to serve any purpose. The meaning of 
 the clause "die by his own hand " has been fixed by the law. 
 It is synonymous with "suicide." It means criminal self- 
 destruction, and the death of the insured is not within the 
 proviso if he was under the controlling influence of insan- 
 ity, though he understood the physical nature of his act. In 
 other words no matter how plainly the policy may declare 
 against liability for self-destruction, the courts are bound to 
 cover insanity if any shadow of a rule of law can be found 
 to support the ruling.* The dissent of J J. Granger and 
 Dickman is much more sensible. They say in effect that if 
 the phrase " die by his own hand " under any circumstances 
 does not include death by his own hand while insane, it is 
 difficult to rely upon the English language to express any 
 idea. When a policy exempts the company from liability 
 in case of self-destruction voluntary or involuntary, and 
 death comes from an overdose of laudanum taken to relieve 
 pain, the proper inquiry is whether the act was a culpable 
 one. The exemption of the company does not depend on 
 the degree of negligence of the insured but upon its culpa- 
 
 1 Penfold V. Universal Ins. Co. (N. Y.), 10 Ins. L. J. 521. 
 
 2 4L-ans. (N. Y.) 202. 
 
 8 [Supreme Commandery, &g. v. Ainsworth, 71 Ala. 436.] 
 4 [Schultz V. Insurance Co., 40 Ohio St. 217.] 
 
 686 
 
CH. XV.] SUICIDE. [§ 322 
 
 hility.^ It is a question with us how culpability can be a 
 necessary element in "involuntary" self-destruction.] In 
 Jacobs V. National Life Insurance Company^ the words of 
 exception were "if he shall die by his own hand or act, vol- 
 untary or otherwise ; " and it was held that the words " or 
 otherwise " were nugatory as of uncertain meaning. Where 
 the policy was to be void "in case of the death of the in- 
 sured, by his own act and intention, sane or insane," it was 
 held that no recovery could be had if the insured did what 
 he intended, whether he was aware of the moral quality of 
 the act or not. The addition of the words "sane or insane " 
 the court held to be a successful attempt to eliminate 
 from the case the question of the moral responsibility of the 
 insured. 2 (a) In Wisconsin the words " sane or insane " were 
 held to have the like effect upon the preceding words, " shall 
 die by suicide, felonious or otherwise."* [So in Michigan, 
 a clause against death by one's own hand, sane or insane, 
 covers all conscious acts resulting in death. ^ Of course the 
 
 1 [Mutual Life Ins. Co. o. Lawrence, 8 Brad. 488, 491.] 
 
 ^ Sup. Ct. D. C, 5 Big. Life & Aco. Ins. Cas. 42. See also Penfold's Case, 
 supra. 
 
 8 Adkins v. Columbia Life Ins. Co., 70 Mo. 27, following Bigelow v. Berkshire 
 Life Ins. Co., 93 U. S. 284, and regarding the word "act" in that case as the 
 equivalent of the words "act and intention " in the case under discussion. So 
 held, also, in Chapman v. Republic Life Ins. Co. (C. Ct. 111.), 5 Big. Life & Ace. 
 Ins. Cas. 110, where the words were the same as in Adkins's case. 
 
 * Pierce o. Travelers' Ins. Co., 34 Wis. 389. See also Mallory v. Travelers' 
 Ins. Co. (N. Y.), 2 Ins. L. J. 839. ["Self-destruction, felonious or otherwise," 
 includes all cases of voluntary self-destruction, sane or insane. Eiley v. Hartford 
 Fire, &c. Ins. Co., 25 Fed. Rep. 315 (Mo.), 1885, citing 15 Wall. 580 ; 111 U. S. 
 612.] 
 
 6 [Streeter v. Insurance Co., 65 Mich. 199.] 
 
 (a) As to the effect of this clause in U. S. 691. Suicide of the as.sured, 
 
 the policy, see Rens v. Northwestern when insane, is not within the condi- 
 
 Mut. Relief Ass'n, 100 Wis. 266 ; tion of a policy avoiding it in case of 
 
 Tritschler u. Key.stone Mut. Ben. Ass'n, "death by his own hand." Manhat- 
 
 180 Penn. St. 205 ; Spruill v. North- tan L. Ins. Co. v. Broughton, 109 U. S. 
 
 western Mut. L. Ins. Co., 120 N. C. 121 ; Accident Ins. Co. v. Crandal, 120 
 
 141 ; Billings v. Accident Ins. Co. IT. S. 527 ; Mut. L. Ins. Co. v. Leubrie, 
 
 (Vt.), 17 L. E. A. 89, and note ; 71 Fed. Rep. 843 ; 42 Cent. L. J. 267, 
 
 Sabin u. Senate of the National Union, and note; Kerr O.Minnesota M. Ben. 
 
 90 Mich. 177; Salentine v. Mutual Ass'n, 39 Minn. 174 ; 12 Am. St. Rep. 
 
 Benefit L. Ins. Co., 79 Wis. 580; 631, and note; Michigan Mut. L. Ins. 
 
 Home Benefit Ass'n v. Sargent, 142 Co. v. Naugle, 130 Ind. 79. 
 
 687 
 
§ 323] I^iSUKANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XV. 
 
 court does not mean to include cases of accidental death. ^ 
 And the United States Supreme Court holds that under a 
 policy which expressly covers only "external, violent and 
 accidental " means of injury, and excludes death by inten- 
 tional injury inflicted by others or by suicide, felonious or 
 otherwise, sane or insane, no recovery can be had in case of 
 death by self, whether insane or not, nor in case of death 
 caused by injuries intentionally inflicted by others. ^J In 
 New York the insurers were held to be protected by a clause 
 exempting them from liability if death ensues "from any 
 physical movement of the hand or body of the insured, pro- 
 ceeding from a partial or total eclipse of the mind. "^ If 
 the insanity is produced by intemperate habits, which the 
 insured agrees to avoid on penalty of forfeiture of his right 
 to indemnity, it is a complete defence.* [Sometimes it is 
 agreed that in case the insured shall die by his own hand 
 while insane, the company shall only pay back the premi- 
 ums received, with interest.^ A by-law of a mutual com- 
 pany exempting it from liability in case of suicide and 
 passed subsequently to the issue of a certificate to B., can- 
 not affect B. 's rights, no such power being reserved in the 
 contract with B.^] 
 
 § 328. Suicide in a Fit of Insanity does not avoid a Policy 
 unless Death by Suicide be excepted from the Risk ; Express 
 Agreement to insure against Voluntary Suicide void as against 
 Public Policy. — Suicide in a fit of temporary insanity does 
 not avoid a policy which does not contain an express provi- 
 sion that death by such means shall avoid it.'^(a) That such 
 
 1 [Sen § 307. Scarth v. Security Mut. Lifo Soc, 75 Iowa, 346.] 
 
 2 [Travelers' Ins. Co. v. McConkey, 127 U. S. 661, 667.] 
 
 ^ De Gogorza o. Knickerbocker Life Ins. Co., 65 N. Y. 232. To the game 
 effect is Schmidt v. Home Life Ins. Co. (Superior Ct. Cincinnati), 8 Ins. L. J. 
 77, where the language was " suicide, voluntary or involuntary, sane or insane." 
 * Javvis V. Conn. Mut., &c.. Ins. Co., C. Ct. (111.), 5 Ins. L. J. 507. 
 5 [Salentine v. Mutual Ben. Life Ins. Co., 24 Fed. Rep. 159 (Wis. ), 1885.] 
 ^ [Northwestern Ben. & Mut. Aid Ass. v. Wanner, 24 Brad. 361.] 
 ' Horn V. The Anglo-Australian & Universal Family Life Ass. Co., 7 Jur. 
 K. s. 673. "It appears to me clear," says Wood, V. C, in this case, "that 
 
 {a) The term " insanity," used as a deranged condition of the mental and 
 defence, means such a perverted and moral faculties as to render a person 
 
 688 
 
CH. XV.J SUICIDE. [§ 323 
 
 an agreement is void as against public policy was also the 
 opinion of Lord Campbell, as expressed by him in Moore v. 
 Woolsey.^ So the owner of a ship, who insures her for a 
 year, cannot recover upon the policy if, within the year, he 
 causes her to be sunk. And such no doubt would be the 
 case where the plaintiff claims under a policy on the life of 
 a person whose death he has caused ; ^ so, if the insured set 
 fire to his own house. ^ 
 
 Perhaps there may be something in the distinction be- 
 tween a sane and an insane suicide under such a policy. 
 And it has been said, in this country, in a case where the 
 
 where there is no express provision in the policy, that in the event of the insured 
 dying hy his own hand the policy shall become void, that policy is not vacated 
 by the circutastance of his having died by his own hand while in a state of tem- 
 porary insanity. It was held by the House of Lords, in Fauntleroy's case. The 
 Amicable Insurance Society v. Bolland, 2 Dow & C. 1 ; s. o. 4 Bligh, n. s. 194, 
 that it would be contrary to public policy to insure a man a benefit upon his dy- 
 ing by the hand of public justice ; and as it would be contrary to the policy of the 
 law for any such express conti-adt to be made, so no contract could be implied in 
 the policy to pay the amount in such an event ; and accordingly, although noth- 
 ing was said in the policy, one way or the other, the law would infer as a condi- 
 tion that the execution of the insured, in consequence of a crime committed by 
 him, was not one of the cases in respect of which the policy would become paya- 
 ble. So the argument might be pursued, although I do not know that any case 
 has so decided, to the same extent, in the case of a person committing suicide 
 while in a sane state of mind, thus committing a felony, and losing his life 
 thereby ; but I know of no rule of law that can justify me in extending that to 
 the case of a person committing suicide while in a state of insanity,, and therefore 
 committing no legal offence." 
 
 1 4 E. & B. 243 ; S. c. 28 Eng. L. & Eq. 248. 
 
 2 Reed v. Royal Exch. Ass. Co., Peake's Add. Cas. 70. 
 2 Washington Ins. Co. v. Wilson, 7 Wis. 169. 
 
 incapable of distinguishing between Mutual L. Ins. Co. v. Wiswell (56 Kan- 
 right and wrong, or unconscious, at the sas, 765), 35 L. R. A. 258, and note, 
 time, of the nature of the act he is com- Suicide, though evidence of insanity, 
 mitting ; or where, though conscious of does not establisli it as a fact, and the 
 it and able to distinguish between right presumption of sanity places the burden 
 and wrong, and knowing that the act is of proof upon the party alleging in- 
 wrong, yet his will, by which is meaut sanity. IngersoU v. Knights of the 
 the governing power of the mind, has Golden Rule, 47 Fed. Rep. 272 ; Rit- 
 been otherwise than voluntarily so com- ter o. Mutual Life Ins. Co., 69 id. 505 ; 
 pletely destroyed or mystified that his 169 U. S. 139 ; Jones v. Gorham, 90 
 actions are not subject to it, but are Ky. 622; Bachmeyeri). Mutual Reserve 
 bevond his control. Davis o. United Fund L. Ass'n, 82 Wis. 255 ; Agen v. 
 States, 165 U. S. 373, 378 ; Ritter v. Met'n L. Ins. Co. (104 Wis.), 80 N. W. 
 Mutual L. Ins. Co., 169 U. S, 139, 149 ; 1020. 
 
 VOL, 
 
 I.— 44 689 
 
§ 324] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XT. 
 
 suicide was by taking arsenic, and no question of insanity 
 was raised, that a man who commits suicide is guilty of 
 such a fraud upon the insurers, that for that reason alone 
 he cannot recover, even though there be no such condition 
 in the policy. ^ But the case did not require the decision of 
 this point. And in Dormay v. Borradaile,^ the question 
 being upon a covenant in a marriage settlement to keep a 
 policy alive, and whether suicide was a violation of that 
 covenant, it was held that it was not. The covenant was 
 "to do and perform all such acts, matters, and things as 
 shall be requisite for continuing and keeping on foot a pol- 
 icy," and it was held not the equivalent of a covenant not 
 to do anything whereby the policy should become forfeited ; 
 and a suicide (the same as in Borradaile v. Hunter) who 
 drowned himself, voluntarily and intending it, though found 
 by the jury not to be at the time capable of distinguishing 
 between right and wrong, was held not to have violated his 
 covenant. 
 
 § 324. Bona fide Holder for Value ; Beneficiary. — To a life 
 policy which provided that if the party die by his own hands 
 the policy should be void except to the extent of any hona 
 fide intei'est which a third person might have acquired, it 
 was objected that the exception was an incentive to suicide, 
 and that the policy was void as against the policy of the 
 law. But the court thought that, though a stipulation that 
 the policy should be paid in case of suicide of the insured 
 would be obnoxious to that objection, yet a stipulation that 
 if the policy should be assigned hona fide, for a valuable con- 
 sideration, or a lien upon it should afterwards be acquired 
 hona fide, for valuable consideration, it might be enforced 
 for the benefit of others, whatever be the means by which 
 death is occasioned, was not open to the objection. That 
 such stipulation may promote evil by leading to suicide is 
 too remote and improbable a contingency to be allowed to 
 counterbalance the many obvious advantages which would 
 
 1 Hartmau v. Keystone Ins. Co., 21 Pa. St. 466 ; Bank of Oil City v. Guar- 
 dian, &c. Ins. Co., C. C. P. (Pa.), 5 Big. Life & Aoc. Ins. Cas. 478. 
 
 2 10 Beav. 335. 
 
 690 
 
CH. XV.] SUICIDE. [§ 324 
 
 result from holding the stipulation valid. ^ But an assignee 
 in bankruptcy is not such a bona fide holder for valuable 
 consideration. He is an assignee by operation of law and 
 not by contract.^ So where there is a condition in a life 
 policy that in the event of the assured dying by his own 
 hand the policy shall be void, except to the extent of any 
 bona fide interest, which, at the time of his death, shall be 
 vested in any other person or persons for his or their own 
 benefit, the exception applies as much when that interest is 
 vested in the assurers themselves as when it is vested in a 
 third party. 
 
 Therefore, where one effected a policy of insurance upon 
 his life, with the above condition and exception, and depos- 
 ited the same with the insurers by way of collateral security 
 for a loan from them to him, it was held that, notwithstand- 
 ing the suicide of the insured, the policy was good to the 
 extent of the debt for which it was held as security, and 
 therefore that the debt was extinguished by the moneys 
 which became payable under the policy.^ So, in the ab- 
 sence of express stipulation to the contrary, suicide by the 
 life insured will not avoid a policy issued on that life for 
 the benefit of his wife and children.* (a) 
 
 1 Per Lord Camptell, Moore v. 'Woolsey, 28 Eng. L. & Eq. 248 ; s. c. 4 E. & 
 B. 243; White v. British Empire Mut. Life Ass. Co., 7 Law Kep. Eq. 394. 
 
 2 Jackson v. Forster, 1 El. & El. 463 (Q. B.); affirmed in Exch., id. 476. 
 
 8 38 L. J. N. s. Ch. 53 ; The Solicitors' & General Life Ass. Co. v. Lamb, 1 
 Hem. & M. 716 ; affinned on appeal, 2 De Gex, J. & S. 251 ; s. c. 33 Law J. Eep. 
 N. s. Ch. 426 ; Dufaur v. The Professional Life Ass. Co., 25 Beav. 699 ; s. o. 27 
 Law J. Rep. N. s. Ch. 817; Jones v. The Consolidated Investment & Ass. Co., 
 26 Beav. 256 ; s. C. 28 Law J. Rep. N. s. Ch. 66. 
 
 * Fitch V. Am. Popular, &c. Ins. Co., 69 N". Y. 557. [If there is nothing in 
 the policy nor the constitution and by-law to prevent, the heirs or beneficiary of 
 a member of a mutual benefit association may recover, althounh he committed 
 suicide. Mills v. Rebstock, 29 Minn. 380 ; Kerr v, Minneapolis Mut. Ben. Ass. 
 39 Minn. 174.] 
 
 (a) In Ritter v. Mutual L. Ins. Co., Under a policy which contains no sui- 
 
 169 U. S. 139 ; 70 Fed. Rep. 954, it was cide clause, the suicide of an insane 
 
 held that there can be no recovery on a person is insured against. Graml Lodge 
 
 life policy by the executor of one who, v. Wieting, 168 111. 408, 418. In Spiler 
 
 while sane, intentionally took his own v. Economic L. Ass'n, 105 Iowa, 87, it 
 
 life, even though the policy contains no was held that such a policy, if taken 
 
 clause of forfeiture because of such act. out in good faith, is not avoided, as 
 
 691 
 
§ 325] inscteance: fire, life, accident, etc. [ch. xv- 
 
 § 325. Evidence ; Suicide ; Insanity ; Negligence ; Accident. 
 — When the dead body of the insured is found under such 
 circumstances and with such injuries that the death may 
 have resulted from negligence, accident, or suicide, the pre- 
 sumption is against suicide, as contrary to the general con- 
 duct of mankind, a gross moral turpitude not to be presumed 
 in a sane man ; ^ and whether it was from one or the other, 
 if there is any evidence bearing upon the point, is for the 
 jury ; as for instance, whether the taking of an overdose of 
 laudanum was intentional or by mistake. If the latter, it 
 was accidental and not suicidal. ^ Where the question arises 
 whether the death is by suicide, evidence that the deceased 
 was an infidel or an atheist or a spiritualist, is inadmissible 
 as affording an inference of greater probability of suicide. 
 The inference of one fact from the proof of the existence of 
 another depends upon the observed connection of the two in 
 the relation of antecedent and consequent, — a relation 
 which, so far as the two facts in question are concerned, is 
 so entirely unsupported by experience and observation as to 
 belong rather to the domain of conjecture than of proof. ^ 
 [The burden of proof is upon the company setting up suicide 
 
 1 Mallory v. Travelers' Ins. Co., 47 N. Y. 52; Same v. Same (N. Y.), 2 Ins. 
 L. J. 839. [Contra. There is no legal presumption that the insured did not kill 
 himself. Mutual Ben. Life Ins. Co. v. Daviess' Ex'x, 87 Ky. .541.] 
 
 ^ Pierce v. Travelers' Ins. Co., 34 Wis. 389 ; ante, § 321 ; Lawrence v. Mutual 
 Life Ins. Co. (App. Ct. of 111.), 9 Ins. L. J. 313 ; Shank u. United Brethren, &c. 
 Soc, 84 Pa. St. 385 ; Newton v. Mutual Benefit, &o. Ins. Co., 2 Dill. C. Ct. 154. 
 
 8 Gibson v. American Mut. Life Ins. Co., 37 N. Y. (10 Tiff.) 580 ; Continental, 
 &c. Ins. Co. V. Delpeuch, 82 Pa. St. 225. 
 
 against the ienefieiary named therein, stipulation against death by " taking 
 because the insured, while sane, pur- poison " does not apply to an accidental 
 posely took his own life. But see Hop- taking thereof Menneiley v. Employ- 
 kins V. Northwestern L. Ass. Co., 94 ers' L. As. Corp., 148 N. Y. 596; Early 
 Fed. Rep. 729. If not taken out in v. Standard L. Ins. Co., 113 Mich. 68 ; 
 good faith, fraud through suicide for Travelers' Ins. Co. v. Dunlap, 160 111. 
 the benefit of friends or creditors is a 642 ; Met'n Ac. Ass'n v. Froiland, 161 
 good defence. See Smith v. National 111. 30; MUler v. Fidelity & Cas. Co., 
 Benefit Society, 123 N. Y. 85. The 97 Fed. Eep. 836. So of the accidental 
 exception in a policy of "death by sui- "inhaling of gas." Menneiley «. Em- 
 cide, whether felonious or otherwise," ployers' L. As. Corp., supra; Pickett v. 
 includes death by poison taken aceiden- Pacific M. L. Ins. Co., 144 Penp. St. 
 tally, by mistake for medicine. Cole v. 79 ; Fidelity & Cas. Co. o. Waterman, 
 Accident Ins. Co., 61 L. T. 227. But a 161 111. 632. 
 692 
 
CH. XV.J 
 
 SUICIDE. 
 
 [§325 
 
 as a defence. 1] And the burden is upon the party alleging 
 insanity to prove it.^(a) There is no presumption of law, 
 prima facie or otherwise, that self-destruction arises from 
 
 1 [Goldschmidt v. Mut. Life Ins. Co. , 102 N. Y. 486.] 
 
 2 Terry v. Life Ins. Co., ante, §§ 319, 320. 
 
 (a) The insurer has the burden of 
 proof upon the issue of suicide as a de- 
 fence, the presumption being against 
 suicide. Knights of Pythias v. Beck, 
 94 Fed. Rep. 751 ; Standard L. & Ace. 
 Ins. Go. V. Thornton, 100 id. 582 ; Wal- 
 cott V. Met'n Ins. Co., 64 Vt. 221; 
 Carnes v. Iowa State T. M. Ass'n, 106 
 Iowa, 281 ; Dennis v. Union Mut. L. 
 Ins. Co., 84 Cal. 570 ; Ins. Co. u. Ben- 
 nett, 90 Tenn. 256 ; Supreme Council v. 
 Brashears, 89 Md. 624 ; Fidelity Mut. 
 L. Ass'u V. Miller, 92 Fed. Rep. 63 ; 
 Merrett v. Preferred Masonic Mut. Ace. 
 Ass'n, 98 Mich. 338 ; Leman v. Man- 
 hattan L. Ins. Co., 46 La. Ann. 1189 ; 
 Hale V. Life Ind. Co., 61 Minn. 516 ; 
 Travellers' Ins. Co. v. Nitterhouse, 11 
 Ind. App. 155 ; Agen v. Met'n L. Ins. 
 Co. (Wis.), 29 Ins. L. J. 37 ; see Fidel- 
 ity & Cas. Co. V. Weise (111.), id. 74 ; 
 Home Benefit Ass'n v. Sargent, 142 
 U. S. 691 ; Conadeau v. American Ace. 
 Co., 95 Kj'. 280. The same presumption 
 applies to murder as a defence in the 
 law of accident insurance. See Ins. Co. 
 V. Bennett, 90 Tenn. 256 ; Warner v. 
 U. S. Mut. Ace. Ass'n, 8 Utah, 431. As 
 to the right of an assignee for value to 
 recover in case of suicide, see City Bank 
 V. Sovereign L. A. Co., 32 W. R. 658 ; 
 50 L. T. 565. As to the evidence that 
 is admissible and sufficient to overcome 
 such presumptions, see above cases ; 
 Travelers' Ins. Co. v. Melick, 65 Fed. 
 Rep. 178 ; Conn. Mat. L. Ins. Co. v. 
 McWhirter, 73 id. 444 ; Sharland v. 
 Washington L. Ins. Co., 101 id. 206; 
 Home Benefit Ass'n v. Sargent, 142 U. 
 S. 691 ; Mutual L. Ins. Co. v. Tillman, 
 84 Texas, 31 ; Mutual L. Ins. Co. v. 
 Hayward (Tex. Civ. App. ), 23 Ins. L. J. 
 694 ; Williams v. U. S. Mut. Ace. Ass'n, 
 133 N. Y. 366. It is a question of law 
 for the court to decide whether the evi- 
 
 dence shows a reasonable probability of 
 suicide, and, if such probability exists, 
 then it is for the jury to decide upon the 
 conflicting evidence. Agen v. Met'n L. 
 Ins. Co., 29 Ins. L. J. 37 ; Reus v. North- 
 western Mut. Befl. xiss'n, 100 Wis. 266. 
 Death from accident, or from " external 
 violence and accidental means, " is pre- 
 sumed when the evidence as to suicide or 
 murder is conflicting and about evenly 
 balanced, and positive proof of the cause 
 of death is not required by the policy. 
 IngersoU v. Knights of the Golden Rule, 
 47 Fed. Rep. 272 ; Burnham o. Inter- 
 state Cas. Co., 117 Mich. 142 ; Konrad 
 V. Union Cas. Co., 49 La. Ann. 636 ; 
 Ins. Co. V. Bennett, 90 Tenn. 256 ; see 
 to the effect that the claimant has the 
 burden of proof upon an accident policy. 
 Fidelity & Cas. Co. v. Weise (III), 29 
 Ins. L. J. 74 ; Carnes v. Iowa State T. 
 M. Ass'n, 106 Iowa, 281 ; Brown v. 
 Sun L. Ins. Co. (Tenn.), 57 S. W. 415. 
 As to the effect of suicide after an as- 
 sault that must speedily result in death, 
 see People v. Lewis, 124 Cal. 551 ; 34 
 Am. L. Rev. 442. If the assured takes his 
 own life when he is mentally incapable 
 of comprehending his act morally, 
 though fully understanding its physical 
 nature, the insurer may still be liable, 
 though the policy exempt it from suicide 
 resulting directly from involuntary dis- 
 ease or accident. Manhattan L. Ins. Co. 
 V. Broughton, 109 U. S. 121 ; Conn. 
 Mut. L. Ins. Co. «. Akens, 150 U. S. 
 468 ; Ritter v. New York Mut. L. Ins. 
 Co., 69 Fed. Rep. 505 ; 169 U. S. 139 ; 
 see Accident Ins. Co. v. Crandal, 120 
 U. S. 527 ; Johns v. Northwestern Mut. 
 Relief Ass'n, 90 Wis. 332 ; Cotter v. 
 Royal Neighbors (Minn.), 79 N. W. 
 542 ; Burnham v. Interstate Casualty 
 Co., 117 Mich. 142 ; Cochran u. Mutual 
 L. Ins. Co., 79 Fed. Rep. 46. As 
 
 693 
 
§ 325] INSURANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. XV. 
 
 suicide ; but suicide threatened or attempted, or actually 
 committed, is competent evidence upon that issue. ^ The 
 opinion of unprofessional witnesses as to whether a person 
 under a given state of facts, if sane, would have taken his 
 own life, is not competent evidence.^ Nor is evidence of a 
 current rumor to show the probable motive of an act, as of 
 suicide, admissible, unless it be shown that the rumor was 
 known to the party before he committed the act.^ [When 
 the question was whether the assured, X., died by his own 
 hand, the declaration of A., since dead, that on the night 
 of the assured's death, he saw a man, B., come from X. 's 
 room saying "something about a man having shot himself," 
 that A. then went into the room and found that X. was 
 dead, and that no one else was around at the time, was 
 admitted as a part of the res gestae, both A. and B. being 
 dead.* A letter left by the suicide requesting that the re- 
 volver with which he was going to shoot himself be preserved 
 for a keepsake for his darling boy, and telling of a voice he 
 thought his mother's calling him to die, is evid-ence for the 
 jury of an insane impulse.^ The finding of the coroner's 
 jury is prima facie evidence of the manner and cause of 
 
 1 Mutual Life Ins. Co. v. Terry, ante, § 319 ; Wolff v. Connecticut, &o. Ins. 
 Co., C. Ct. (Mich.), 8 Ins. U J. 97 ; Coverston i;. Connecticut, &c. Ins. Co., C. 
 Ct. (Mo.), 1 Am. L. T. Rep. N. s. 239 ; S. O. 4 Big. Life & Ace. Ins. Cas. 169 ; 
 Moore v. Connecticut, &c. Ins. Co., C. Ct. (Mich.), 1 Am. L. T. Kep. 319 ; s. c. 
 4 Big. Life & Aoc. Ins. Cas. 139 ; McClure v. Mut. Life Ins. Co., 55 N". Y. 651 ; 
 Coffey V. Home, &c. Ins. Co., 44 How. Pr. (N. Y.) 481; Mallory v. Travelers' 
 Ins. Co., 47 N. Y. 62 ; Bank of Oil City v. Guardian, &c. Ins. Co., C. Ct. (Pa.), 
 4 Ins. L. J. 473 ; Hartman !'. Connecticut, &c. Ins. Co. (Ohio), 4 Ins. L. J. 159 ; 
 Weed V. Mutual Benefit Life Ins. Co., 35 Superior Ct. (N. Y.), 386; Hiatt v. 
 Mutual Life Ins. Co., 2 Dill. C. Ct. 572 ; Isett v. American Life Ins. Co., ante, 
 § 317. As to evidence of Insanity, see also Higbie v. Guardian Mut. Life Ins. 
 Co., 53 N. Y. 603. 
 
 2 St. Louis Mut. Life Ins. Co. v. Graves, 6 Bush(Ky.), 268. 
 
 5 Ibid. See also post, § 584. 
 
 * [Newton V. Ins. Co., 2 Dill. 154, 155.] 
 
 6 [Meachani v. N. Y. State Mut. Benefit Ass., 44 Hun, 365.] 
 
 to statutory provisions reducing the ciety, see Supreme Lodge v. La Malta, 
 
 amount to be paid in case of. suicide, 95 Tenn. 157 ; Jarman o. Knights Tem- 
 
 see Keller w. Travelers' Ins. Co., 58 Mo. plars' L. Ind. Co., 95 Fed. Rep. 70; 
 
 App. 557. As to subsequent regulation Knights of Pythias v. Stein, 75 Miss, 
 
 by the insurer or by a benevolent so- 107. 
 694 
 
CH. XV. J SUICIDE. [§ 325 
 
 death. 1 Proofs of death including the coroner's inquest and 
 verdict of the coroner's jury are not admissible except for 
 the purpose of showing performance of the conditions in 
 regard to preliminary proofs. Neither can the testimony 
 of the wife at the inquest be introduced to contradict her 
 evidence in a suit against the company by her, as adminis- 
 tratrix, she being called to the stand by the company. ^ In 
 this case the wife testified clearly before the coroner that 
 her husband shot himself, but in the suit against the com- 
 pany denied the facts, and denied that she so testified before 
 the coroner. An allegation that the insured "did immor- 
 ally, wrongfully and wickedly " commit suicide is equivalent 
 to an allegation of self-destruction while sane.^] 
 
 1 [Walther v. MuWal Life Ins. Co., 65 Cal. 417.] 
 
 2 [United States Life Ins. Co. v. Kielgast, 26 Brad. 567, 571-572.] 
 
 ^ [Northwestern Benevolent & Mut. Aid Ass. v. Bloom, 21 Brad. 159.] 
 
 695 
 
§ 326] INSUKANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XVI. 
 
 CHAPTER XVI. 
 
 OP DEATH BY LAW, OB WHILE VIOLATING IT, BY VIOLENCE, 
 CASUALTY, OR WAR; AND OP RESTRICTIONS UPON RESIDENCE 
 AND TRAVEL. 
 
 Analysis. 
 
 § 326. "Death by the hands of justice" is excepted, impliedly, whether 
 
 there is any express provision or not, and indeed could not be 
 covered even if expressly agreed upon. 
 
 § 327. Death in the known violation of law. If two men quarrel, and A. 
 
 flees, is followed, and slain by B., under circumstances that 
 would have justified A. in killing B. in self-defence, A. does 
 not die in the known violation of law, § 327 ; see § 327 A. 
 presumption as to foreign law, § 331. 
 
 § 327 A. One retreating from assault or robbery. Suicide as a crime. Sui- 
 cide to avoid arrest for a prior crime is uot death in conse- 
 quence of a violation of law. 
 
 § 328. One shot in the act of unhitching his debtor's horses in order to 
 
 take them as redress for his debt is within the exception. 
 
 § 329. In Massachusetts the act must be a criminal one. 
 
 in New York the tendency is to hold any unlawful act that 
 might lead to conflict or otherwise tend to endanger life is 
 within the intent, whether prohibited by the criminal code or 
 not. So in Indiana ; see § 327 A. 
 if the violation of law has no causative relation to the death it 
 is immaterial, as, where a man is killed by accident while 
 swearing, § 329. 
 
 § 330. Death by violence is covered by policy unless expressly excepted. 
 
 § 332. War. Death by casualty or in consequence of war. Permit. 
 
 §§ 333-334. What constitutes entering military service. 
 
 §§ 335-339. Eestrictions upon residence and travel, 
 license, 335, 338. 
 "settled limits," § 337. 
 
 waiver by company or by agent receiving premiums with knowl- 
 edge of breach, § 339. 
 
 § 326. Death by the Hands of Justice. — Usually associ- 
 ated with the exception of liability for death by suicide is 
 that of "death by the hands of justice." This is defined by 
 Tindal, C. J., as dying in "consequence of a felony previ- 
 ously committed. " ^ It is death under and by virtue of a 
 
 1 Borradaile v. Hunter, 5 M. & G. 639. 
 
 696 
 
OH. XTI.J OF DEATH BY LAW, ETC. [§ 327 
 
 judicial sentence for some crime, and not merely a rightful 
 Ifilling, as in case of a runaway slave shot by a patrolman 
 who was attempting to apprehend him, as it was his legal 
 right and duty to do.^ Death under such circumstances is 
 not "by means of any invasion, insurrection, riot, or civil 
 commotion, or of any military or usurped authority, or by 
 the hands of justice."''* 
 
 An exception of liability in case of " death by the hands 
 of justice " has been held to be unnecessary, as it is against 
 public policy to insure against the consequences of a capital 
 felony ; and such a risk could not be covered by the policy 
 even if expressly agreed upon. As the law will not permit 
 an express stipulation that a man shall derive pecuniary 
 benefit upon his dying by the hands of public justice, as 
 against public policy, it will not imply any such stipula- 
 tion. Death, therefore, at the hands of public justice works 
 a forfeiture of all right to indemnity under a policy, whether 
 it does or does not contain such stipulation.^ 
 
 § 327. Death in known Violation of Law. — Another excep- 
 tion from liability is that of " death in the known violation 
 of law ; " and what constitutes " death in the known viola- 
 tion of law " has been the subject of considerable discussion ; 
 but it cannot be said that the law is settled upon this point. 
 In Harper v. Phoenix Insurance Company,* the question 
 arose whether killing in self-defence was within the pro- 
 viso; but as the facts found and reported did not fully pre- 
 sent this case, it was sent back for a new trial, when the 
 facts were agreed; and these, with the opinion of the court 
 thereon, are stated in the note.^ 
 
 1 Spruill V. North Carolina Mut. Life Ins. Co., 1 Jones (N. C.) Law, 126. 
 
 2 Ibid. 
 
 3 The Amicable Ins. Soc. v. BoUand, 2 Dow & C. 1 ; s. c. 4 Bligh, N. s. 194, 
 overruling s. c. Bolland v. Disney, 3 Russ. 350. 
 
 « 18 Mo. 109. 
 
 * " On the 6th day of February, 1850, and in the year within the time for 
 which the life of said Edmund Harper was insured, one Coryell was talking to a 
 man named Wilson, standing about forty paces from B. Harper's store, where the 
 said Edmnnd Harper, the deceased, then was. The deceased spoke to the said 
 Wilson, and asked him if he knew to whom he was speaking, and admonished 
 him to keep his hand on his pocket. Coryell then approached the deceased, and 
 
 697 
 
§ 327 A] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. XVI. 
 
 [§ 327 A. Where the insured and another, attacked B., 
 who drew a pistol, and while the insured was retreating B. 's 
 
 inquired if that insult wiis intended for him. The deceased replied that it was. 
 The parties quarrelled, the deceased drew a pistol with a single barrel and snapped 
 it at Coryell, who thereupon drew a revolver and advanced upon the deceased, 
 standing on the sill of B. Harper's store door, who threw his pistol, which had 
 missed fire, and struck Coryell. The deceased then stepped into the store of B. 
 Harper, and said Coryell, standing in the door of said store, with his revolver 
 shot at and missed said deceased, who was inside the store, and eight or ten feet 
 from the door. The deceased then retreated precipitately behind an ofl'set formed 
 by a stairway, six or eight feet, and picked up a stick of wood, and raised it in a 
 threatening position over his head, but did not advance upon said Coryell, nor 
 attempt to use said stick in any other manner. Coryell then fired again with his 
 revolver, and shot the deceased through his body, of which he died in a few 
 minutes. The whole difficulty was one continuous quarrel. 
 
 " Upon these facts the court found for the defendant, whereupon the plaintiff 
 sued out this writ of error : 1. In the construction of the contract which has 
 given rise to this controversy, we are not authorized to be influenced by any con- 
 siderations affecting the preservation of the peace and order of society, or of the 
 morals of the party insured. Whilst the law will not countenance contracts 
 against its policy, it does not look for a support to itself in the stipulations of 
 men. In life policies the insurer has a guaranty against increasing the risk in- 
 sured, by that love of life which nature has implanted in every creature. In 
 such policies, unless it is otherwise stipulated, the insurer takes the subject in- 
 sured with his flesh, blood, and passions. The dangers to which the lives of 
 men are exposed from sudden ebullitions of feeling are a lawful matter of insur- 
 ance. When this cause was formerly here, the idea intended to be conveyed in 
 the opinion given was that a person could not be said to have died in the known 
 violation of a law of this State, when a crime attached to the individual by whom 
 he was slain. It was not supposed that therefore it followed that iu all cases 
 when the killing was without crime, that the person slain died in the known 
 violation of the law. We see no reason to change the opinion then hazarded. 
 Although conditions in policies, similar to that now under consideration, are not 
 unusual, we have not been enabled to find any case in which its interpretation 
 has come up for adjudication. We must then, as in all other cases involving the 
 construction of contracts, look to the intent of the parties, as gathered from the 
 instrument embodying their minds. It is obvious that, in giving the words of 
 the condition a literal meaning, cases will be embraced which no one will main- 
 tain were in the contemplation of the parties. If the person whose life is insured 
 uses off'ensive language to one whilst they are engaged in an unlawful game of 
 chance, which language is concerning the game, and he is shot down for the 
 provocation, it would not be maintained that he died in the known violation of a 
 law of the land, within the meaning of the contract. So if he is riding a race in 
 a public highway, which is forbidden, and his horse falls, and he is thrown and 
 his neck broken, he does not die in the known violation of the law of the land, 
 within the meaning of the terms of the condition. So, also, in a quarrel, if he 
 assails another with his open hand, and is thereupon instantly shot down, he 
 does not die in the known violation of a law within the intent of the policy. 
 Many similar instances might be put, which, it is clear, were not within the 
 meaning of the parties, and, if they were, the contract would be much narrowed 
 
 698 
 
CH. XVI. J OF DEATH BY LAW, ETC. [§ 327 A 
 
 pistol, by iatention or by accident in the struggle with the 
 other assaulter, went off, and killed the insured, it was held 
 
 in its operation. If, then, the literal sense of the words of the policy leads to 
 conclusions which are inadmissible, we are necessarily driven to some other mode 
 in order to ascertain the meaning of the parties. lu the interpretation of con- 
 tracts of insurance, the maxim noscitur a sociis obtains. When a clause stands 
 with others, its sense may be gathered from those which immediately precede 
 and follow it. The clause in the policy which immediately goes before that under 
 consideration is, ' If the party shall die by the hands of justice.' Now, do not 
 these words cleai-ly indicate the idea in the minds of the parties at the time ? 
 Do they not show that it was a justitiable killing ? There are other modes of killing 
 justifiable besides execution by the law. Dying by the hands of justice means dying 
 by the execution of the sentence of law. The fourth section of the second article 
 of the act concerning crimes and punishments enumerates many instances of 
 justifiable homicide. These are, in resisting any attempt to murder or to comndt 
 any felony on the person or in a dwelling-house ; in a lawful defence of the 
 person, where there is reasonable cause to apprehend a design to commit a felony ; 
 when necessarily committed in attempting, by lawful ways and means, to appre- 
 hend any person for any felony committed, or in lawfully suppressing any riot or 
 insurrection, or in lawfully keeping or preserving the peace. Here are abundant 
 instances in which the words of the condition can have play, without resorting 
 to a latitude of construction which so extends its sense as to embrace cases which 
 were never in the contemplation of the parties. As there was but one mode of 
 justifiable killing expressed, it was necessary to use general words to include 
 all other modes of such killing, as they were equally within the meaning of 
 the contract. The other clause in the condition is that if the party shall 
 die in consequence of a duel. If a man falls in a duel, his slayer is guilty 
 of murder. A duel is a deliberate act, and the parties voluntarily, in viola- 
 tion of law, expose themselves to death. The kindred clauses of the con- 
 dition thus show that a dying in consequence of a felony in the very act or 
 eourse of being committed by the insured, and a dying in consequence of a 
 felony previously committed by him, were in the contemplation of the parties. 
 Now it would seem that, upon the acknowledged rule of construction, noscitur a 
 sociis, the last clause in the condition, being left in doubt as to its meaning, 
 should be construed only to extend to instances in which the party died in the 
 commission of a felony. It has been shown that a literal interpretation of this 
 clause would embrace cases not within the intention of the parties. Now the 
 words of the condition are the words not of the assured, but of the insurers, in- 
 troduced by themselves for the purpose of their own exemption and protection 
 from liability ; both in reason and justice, therefore, no less than upon acknowl- 
 edged principles of legal construction, they are to be taken most strongly against 
 those that speak the words, and most favorably for the other party ; for it is no 
 more than justice that if the words are ambiguous, he whose meaning they are 
 intended to express, and not the other party, should suffer by the ambiguity. 
 5 M. & G. 639. See note siih fin. The facts of this case clearly show that the 
 person slaying Harper was guilty of a crime. There is no proof of the fact set up 
 as a bar that Coryell slew Harper in self-defence. Harper had abandoned the 
 conflict, retreated as far as possible, and endeavored to screen himself from the 
 attack of his assailant. His having a stick of wood in his hand at tlie time he 
 was slain did not, in the least, extenuate the guilt of Coryell. Under the circum- 
 
 699 
 
§ 327 A] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XVI. 
 
 that the death was the result of a Yiolation of law by the 
 insured, and the policy was void.^ But where G., a con- 
 spirator to rob the State treasury, on coming out of the door 
 with the money was shot down by the watchman (unneces- 
 sarily, since he could easily have been captured without fir- 
 ing, in all probability), it was held that he did not die while 
 violating the law in such sense as to avoid the policy, the 
 judge comparing the case to one where a man makes an 
 assault in a building, and on coming out of it is attacked 
 and killed.^ We do not think the decision or the attempted 
 parallel correct. He had not ceased to violate the law in 
 the case at bar, as in the case supposed. Every step with 
 the State's money away from the bank was a part of the 
 action necessary to complete his crime, get the booty into 
 his safe custody, and deprive the State of it. Every such 
 step was a violation of law. It was in consequence of his 
 violation of law and during it that he was killed, and a re- 
 covery was absurd. And it is of no consequence whether 
 the death resulted from the violation of criminal law, or of 
 a rule of civil law, if the breach was such as increased the 
 risk and led naturally to death or to injuries causing it. 
 One who violently assaults the wife of another must know 
 that he endangers his life through the probable action of her 
 husband.^ In New York under the code successful suicide 
 is not a crime, and does not avoid a policy under the clause 
 
 stances Harper would have been justified had he slain Coryell. This is made so 
 by our statute. He would have been excused by the common law. If A. upon a 
 sudden quarrel assaults B. first, and upon B.'s returning the assault A. really and 
 bona fide flees, and, being driven to the wall, turns again upon B. and kills him, 
 this is se defendendo. 1 Hale, 480 ; Foster, 273. By the twelfth section of the 
 second article of the act concerning crimes and punishments, it is enacted that 
 every person who shall unnecessarily kill another, either while resisting an at- 
 tempt by such other person to commit any felony or do any other unlawful act, 
 after such attempt shall have failed, shall be deemed guilty of manslaughter in 
 the second degree. Now if one dies under circumstances which would justify him 
 in slaying his adversary, and when the person causing his death is thereby guilty 
 of a felony, is it not a gross perversion of language to say that the person died in 
 the known violation of a law of the land ? " Overton v. St. Louis, &e. Ins. Co., 
 39 Mo. 122. 
 
 1 [Murray v. New York Life Ins. Co., 30 Hun, 428 ; 96 N. Y. 614.] 
 
 2 [Griffin v. Western Mut. Ass., 20 Neb. 620.] 
 
 8 [Bloom V. FrankUn Life Ins. Co., 97 Ind. 478.] 
 700 
 
CH. XYI.] OF DEATH BY LAW, ETC. [§ 328 
 
 against liability in case of death "in violation of, or at- 
 tempt to violate, any criminal law.^(a) But an unsuccessful 
 attempt to commit suicide is criminal.^ Suicide to avoid 
 arrest and trial for a crime committed is not death " in con- 
 sequence of a violation of law." The crime is not the 
 proximate cause of death, and the suicide itself is not a 
 crime within the meaning of the clause.^ In Massachusetts 
 an attempt to commit suicide is not indictable.*] 
 
 § 328. In a case in Massachusetts,^ in which it appeared 
 
 ' [Darrow v. Family Fund Soc, 42 Hun, 245 ; Freeman v. National Benefit 
 Soc, 42 Hun, 252, and next note.] 
 
 '' [Id. and Darrow v. Family Fund Soc, 116 N. Y. 537. New York believes 
 in success in all undertakings, and discourages failure.] 
 
 ^ [Kerr v. Minneapolis Mut. Ben. Ass., 39 Minn. 174.] 
 
 * [Commonwealth v. Dennis, 105 Mass. 162.] 
 
 * Cluff V. Mut. Ben. Life Ins. Co., 13 Allen (Mass.), 308. The same case was 
 again before the court, reported ut supra, when, by Foster, J. , it took occasion 
 to state its views more at large: " In the opinion of the court, the condition that 
 the policy should be null and void, among other grounds, in case the insured should 
 die ' by the hands of justice, or in the known violation of any law ' of the State 
 or country where he resided, or which he was permitted to visit, must be con- 
 strued to refer to a voluntary criminal act on the part of the insured, known by 
 him at the time to be a crime against the law of such State or country. Applying 
 the maxim noscitur a sociis, and remembering that such a clause ought not to be 
 so interpreted as to work a forfeiture unless that intention is apparent, as well as 
 from the natural import of the words 'known violation of law,' we conclude that 
 they do not extend to mere trespasses against property or other infringements of 
 civil laws to which no criminal consequences are attached. The forcible taking 
 of the horses from Cox, if done under an honest claim of right, however ill- 
 founded, would not constitute the crime of robbery or larceny ; because where a 
 party sincerely, although erroneously, believes that he is legally justified in tak- 
 ing property, he is not guilty of the felonious intent which is an essential ingre- 
 
 («) This is also the rule in Wiscon- serve Fund L. Ass'n, 62 Minn. 39. In 
 
 sin, although suicide is there treated as Missouri, suicide is by statute not a 
 
 technically a crime at common law, nn- defence unless contemplated by the as- 
 
 der a policy excluding death In violation sured in applying for the policy. See 
 
 of law, containing no suicide clause, and Knights Templar Ind. Co. v. Berry, 50 
 
 making the policy incontestable, except Fed. Kep. 511; iEtna L. Ins. Co. v. 
 
 for non-payment of premiums or misrep- Florida, 69 id. 932 ; Ticktin u. Fidelity 
 
 resentation of age. Patterson u. Natu- & Cas. Co., 87 id. 543; Christian v. 
 
 ral Premium M. L. Ins. Co., 100 Wis. Conn. Mut. L. ins. Co., 143 Mo. 460 ; 
 
 118, 126. As to such incontestable Jarman v. Knights Templars' L. lud. 
 
 clause, see Clement v. New York L. Co., 95 Fed. Eep. 70 ; Haynie v. 
 
 Ins. Co. (Tenn.), 42 L. R. A. 247, note ; Knights Templars' L. Ind, Co., 139 
 
 Mass. Benefit L. Ass'n v. Robinson, 104 Mo. 416 ; McDonald o. Bankers' L. 
 
 Ga. 256 ; Simpson v. Va. L. Ins. Co., Ass'n (Mo.), 55 S. W. 999. 
 115 N. C. 393; Mareok v. Mutual Re- 
 
 701 
 
§ 328] INSURANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. ^VI. 
 
 that the insured was killed in an altercation, brought on by 
 an attempt on his part to unhitch a pair of horses attached 
 
 dient of these crimes. Neither does the taking of liorses from a vehicle to which 
 they are harnessed amount to an assault upon the driver, unless accompanied hy 
 violence or threats of violence against him. An assault is an intentional attempt 
 by force to injure the person of another. Commonwealth v. Ordway, 12 Cush. 
 270. A battery is committed whenever the menaced violence of an assault is done 
 in the least degree to the person. Either an assault or battery would be a crime 
 within the condition of the policy, unless justified as a measure of necessary self- 
 defence. Assuming that Cluff did commit a criminal assault, it may not neces- 
 sarily follow that he died in the known violation of law. If he was shot while 
 the assault continued, such would be the case. But if it had ceased and Clufl 
 was not threatening to renew it, and Cox had withdrawn out of his reach and 
 then shot him, not in the course of the affray, but merely to revenge himself for 
 what had been done, or to prevent the seizure of the horses, then at the time he 
 was killed Clutf was not engaged in a known violation of the law, within the 
 meaning of the policy. For he must have received the mortal wound during and 
 while engaged in the commission of a crime, not merely in couseq^uence of it after- 
 wards. But the jury, upon all the evidence, should consider whether, if he is 
 proved to their satisfaction to have been once engaged in a criminal assault, he 
 can be deemed to have desisted from it, while persisting continuously in the very 
 act in the course of which the affray occurred. Their attention should be called 
 distinctly to the question whether, if Cluff had committed a criminal assault, it 
 was so far ended when he was fired upon that the fatal shot is to be regarded as 
 a new and independent event, rather than a mere continuation of the original 
 affray. If Cluff committed a criminal assault on Cox, which the latter immedi- 
 ately returned by a fatal blow, then the death would have been occasioned in a 
 known violation of law, although the jury might believe that Cluff was not at the 
 moment intending to commit any further assault. The question to be considered 
 is, were the two acts — the assault by Cluff and the firing of the pistol by Cox — 
 a part of one conflict for the possession of the horses, or had Cox abandoned his 
 attempt to regain the custody of the horses, and had Cluff desisted from his as- 
 sault ? Was the fight over, or had Cox merely retired to a more advantageous 
 position ? In short, if Cluff in the first instance did commit a criminal assault, 
 and the firing of the pistol was a part of the same continuous transaction, then the 
 condition of the policy was violated. It must also appear that the death was 
 caused or occasioned by, or resulted from, the criminal act. The loss of life must 
 be connected with the crime as its consequence. By reason of the guilty act the 
 death must have occurred, so that without its commission it would not have taken 
 place. In the opinion of a majority of the court it is not, however, essential that 
 the deceased should have known, or have had reason to believe, that his criminal 
 act would or might expose his life to danger. The fact that the crime actually did 
 produce the death is sufficient to avoid the policy, without regard to the proba- 
 bility tha* such "■ result would ensue." To this extent the ruling of the court, 
 when it first came before them, and not then requiring any more explicit ruling 
 upon this point, was modified in the second consideration of the case. On excep- 
 tions after a third trial, it was held that the honest belief in the right to do the 
 act, while doing which the insured was shot, must be a belief in his legal right 
 to do the acts, and not a mere belief in the right of self-redress on account of the 
 disturbed condition of the country, the inefficient administration of the laws, or 
 otherwise. 99 itfass. 317. 
 702 
 
CH. XVI.J OF DEATH BY LAW, ETC. [§ 329 
 
 to the wagon of another, who, the insured alleged, owed him 
 a bill, and while the insured was proceeding to take posses- 
 sion of the horses, as a means of enforcing the payment of 
 the bill alleged to be due him, when he was shot by the 
 driver of the horses, the court held, on a question as to 
 whether there was evidence for a jury, that if the insured 
 when he was shot was engaged in a criminal violation of 
 law (of which there was evidence to go to a jury), known by 
 him to be so, and if such violation of law might have been 
 reasonably expected to expose him to violence which might 
 endanger life, the case was within the exception. 
 
 § 329. In Bradley v. Mutual Benefit Life Insurance Com- 
 pany, ^ which was an action upon substantially the same 
 form of policy, and upon the same life, the views of the court 
 were substantially in accordance with those of the Supreme 
 Court of Massachusetts, except upon the point that the vio- 
 lation of law must be a criminal act. Upon this point the 
 Supreme Court held that any act in violation of law which 
 would naturally lead to a conflict by which the life of the 
 insured would be endangered would come within the excep- 
 tion. But the case was sent back on another point, and the 
 question is still an open one in New York.^ The majority 
 of the Court of Appeals seem to have been inclined to take 
 the same view of the import of the proviso as had already 
 been taken by the Supreme Courts of Massachusetts and 
 Missouri ; while the minority held that the proviso embraced 
 the violation of any law when the violation was of such a 
 character as to tend directly to endanger life.*^ 
 
 1 3 Lans. (N". Y.) 341 ; s. c. in the Court of Appeals, 45 N. Y. (6 Hand.) 422. 
 
 ^ The proviso excepted liability from death ' ' in case the insured sliall die 
 by his own hand, or in consequence of a duel, or by reason of intemperance 
 from the use of intoxicating liquors, or by the hands of justice, or in the known 
 violation of law of these States or of the United States." 
 
 " The argument in favor of this view is well stated by Mr. Justice Grover in 
 his dissenting opinion, who, after stating the doctrine as held by the Massachu- 
 setts Supreme Court, thus proceeds: "This was so held . . . upon an applica- 
 tion of the maxim noscitur a sociis. How this maxim can apply to the present 
 case, or, if applied, how the conclusion deduced by the court therefrom follows, I 
 am unable to perceive. Among the associates is that of the death happening by 
 reason of intemperance from the use of intoxicating liquors. It is obvious that, 
 if the death happened from this cause, the case would come within the proviso 
 
 703 
 
§ 329] INSURANCE : FIKE, LIFE, ACCIDENT, ETC. [CH. XVI. 
 
 In a still later case, where it appeared that the insured 
 came to her death by reason of a miscarriage, produced bj 
 an illegal operation performed upon her, and voluntarily 
 
 whether such use of intoxicating liquors was prohibited by the criminal law 
 of the State where it occurred or not ; applying the maxim to this, it might with 
 equal propriety be argued that it was not the criminal law that was had in view 
 by the parties, as that it was such law, because death by the hands of justice is 
 also included by the same proviso. To arrive at the intention of the parties to 
 the contract we must consider the subject-matter in reference to which the 
 language was used. What was the risk to be incurred by the defendant in 
 insuring the life of Cluff ? From the policy it appears that the defendant was 
 willing to assume all the general risks to be incurred by such insurance to the 
 extent of the amount insured. From the proviso it appears that the defendant 
 was unwilling to incur, and therefore refused to assume, the additional risks to 
 his life incurred while the assured was engaged in the prohibited acts specified in 
 the proviso, and therefore carefully provided that it should not be liable in 
 case of death while engaged in the prohibited acts. Keeping these considera- 
 tions in view, there will be but little difficulty in arriving at the intention 
 of the parties, and, consequently, at the correct construction of the proviso. 
 It is obvious that the violation of law in which the insured is engaged, 
 whether such law be criminal or civil, must have some connection with the 
 death, as cause and effect, — not necessarily the immediate cause, as it is suffi- 
 cient if it puts in operation that cause. To illustrate : The sale of lottery- 
 tickets is prohibited by the criminal law of New York. No one would contend 
 that had the assured died in the State of New York from heart disease, while 
 engaged in selling lottery-tickets, the case would have come within the proviso. 
 It mit'ht have been within the strict letter, but not at all within the intention 
 of the°parties, for the reason that the violation of law, although criminal, bad no 
 possible connection with the death, and in no possible way increased the risk. 
 Again, the criminal law of New York prohibits profane cursing and swearing. 
 Suppose the death happened from some accident while the assured was violating 
 the law, would this bring the case within the proviso? Clearly not, for the 
 reasons above stated. (See also ante, § 246.) Again, suppose the death occurred 
 from injury received while the as.sured was attempting to obtain by force the 
 possession of a chattel of which another was in peaceable possession, the title to 
 which was claimed by both, but which was really in the assured, the case would 
 come within the proviso, for the reason that the risk was increased and the death 
 caused by the violation of law by the assured, although such law was the civil law 
 only, the deceased having committed no breach of the peace or any indictable 
 offence. The Massachusetts court held in the same case, when again before it 
 (99 Mass. 318), that the case would have come within the proviso had the assured 
 at the time of being shot, in furtherance of his attempt to get the horses from 
 Cox, been committing an assault and battery upon him. The court, I think, must 
 have overlooked the fact that the violation of law in which the insured was 
 engaged was eminently calculated to cause violence dangerous to his life to be 
 inflicted upon him, and that the very object of the proviso was to exonerate the 
 defendant from liability should death incur from this voluntary increase of risk. 
 It follows that when the death occurs during the known violation of law by the 
 assured, when such violation eminently tends to violence dangerous to life, 
 the case comes within the proviso." 
 
 704 
 
CH. XVI.J 0? DEATH BY LAW, ETC. [§ 332 
 
 submitted to by her, with intent to cause an abortion, 
 without any justifiable medical reasons, it was held on 
 grounds of public policy that there could be no recovery. ^ 
 The death must also happen while in the violation of law, 
 though the language of the condition be " in consequence of. " 
 Thus, if a man be killed while in the act of adultery, the 
 policy is void. If he be afterwards killed on account of the 
 adultery as a provocation, the policy is not void.^ 
 
 § 330. Death by Violence covered by Policy unless ex- 
 pressly excepted. — A life policy covers death by violence in 
 whatever form, as well as from natural causes, unless the 
 particular form of violence is an expressly excepted clause.^ 
 
 § 331. Violation of Law ; Evidence. ■ — ■ All the authorities 
 agree that, unless it appear to the contrary, the criminal 
 laws of all civilized countries will be presumed to be the 
 same as those having jurisdiction of the case.* 
 
 § 332. Military Service ; Death by Casualty or Consequence 
 of War ; BelUgerent Forces ; Permit. — The force and effect 
 of the not uncommon exemption from liability if the insured 
 shall enter into the military service, and the scope of a per- 
 mit to disregard the condition of the policy against residing 
 beyond a certain degree of latitude, were considered in Welts 
 V. Connecticut Mutual Life Insurance Company," where it 
 was held that death from a roving band of banditti, thieves, 
 and robbers, such as usually disturb communities during 
 insurrectionary periods, is not one of the "casualties or con- 
 sequences of war or rebellion," nor is it a death from "bel- 
 ligerent forces." And it was also held that under a permit 
 to reside in a district known to be in a state of war, when 
 hostile armies are contending for its possession, subject to 
 
 1 Hatch V. Mut. Life Ins. Co., 120 Ma.s.s. .550. 
 
 2 Goetzmann c. Conn., &c. Ins. Co., 5 T. & C. (N. Y.) 572. See also post, 
 § 530. 
 
 3 Spruill V. North Carolina Mut. Life Ins. Co., 1 Jones (North Carolina) 
 Law, 126. 
 
 4 Cluff V. Mut. Ben. Life Ins. Co., 13 Allen (Mass.), 308 ; Arayo u. Currel, 
 1 La. 528 ; Savajre v. O'Neil, 42 Barb. (\. Y.) 374 ; Holmes u. Broughton, 10 
 Wend. (N. Y.) 75 ; Bradley v. Mut. Ben. Life Ins. Co., 3 Lans. (N. Y.) 341 ; 
 S. 0. 45 N. Y. 422. 
 
 6 46 Barb. (N. Y.) 412. 
 
 VOL. I.— 45 705 
 
§ 332] insurance: fire, life, accident, etc. [oh. xvi. 
 
 the stipulation that the insurers shall not be liable on ac- 
 count of a death happening from such casualties or forces, a 
 condition in the policy against entering military service is 
 so far modified that the insured may engage in the inci- 
 dental service of bridge building, not in the vicinity of any 
 hostile force, without prejudice to his right to recover under 
 the policy. 1 
 
 ^ The facts in the case, and the conclusioiis of the court tliereon, are thus 
 stated by Smith, J. : " By this permit Welts -vi-as permitted to pass, by the 
 usual route and means of public travel, to any part of the United States south of 
 the thirty-sixth degree of north latitude, and reside there, or return, during the 
 term of one year from the date of such permit, without prejudice to said policy ; 
 provided, and the said permit was issued with the understanding and agreement 
 of the parties in interest, ' that the said Welts was not insured by said policy 
 against death from any of the casualties or consequences of the war or rebellion, 
 or from belligerent forces, in any place where he maybe.' If this permit had not 
 been given when all that part of the United States .south of the thirty-sixth 
 degree of north latitude was in a state of insurrection and war, and covered more 
 or less with hostile armies, I should have considered that Welts came to his death 
 from the causes covered by the proviso, and excepted from the policy. But he 
 was permitted to go into any or all the insurrectionary States south of the line of 
 the thirty-sixth degree of north latitude ; the insurers well knowing, as well 
 as the assured, of the existence of the war of the rebellion in all of these States. 
 The assured paid an extra premium for such permit. He was killed where, 
 under the permit, he had a right to be ; he was not killed by rebels in any 
 encounter of arms ; he was engaged in no battle, or near any ; he was twenty 
 miles or more in the rear of the United States forces at Nashville, and it does not 
 appear that there was any rebel force at the time north of the Cumberland ; he 
 was not exposed to any war peril, except such as existed through all the peaceful 
 parts of Kentucky and Tennessee. Having the right to be in the place in which 
 he was killed, the risk Welts then ran was one covered by the permit. He 
 was engaged in no warlike enterprise. He was simply rebuilding railroad bridges 
 far in the rear of, and away from any hostile forces. The band by which he was 
 killed were, it seems, mere roving robbers, robbing Union men anil rebels alike. 
 They did not interfere with the work in which Welts was engaged. They did 
 not destroy railroads or bridges, or make prisoners of any persons in Welts' com- 
 pany, or others. They merely robbed the members of the company of their money, 
 making no demonstrations indicating that they were Confederate soldiers, or act- 
 ing in the interest of the rebel government. It is true that Welts ran the peril of 
 encountering such I'obbers by going into Tennessee ; but this, I think, was part 
 of the risk contemplated by the permit. The same peril would have been encoun- 
 tered if he had been travelling quietly in that section of country, simply passing 
 from one place to another in any part of the United States south of the line of 
 thirty-six degrees of north latitude. This permit is to be construed with refer- 
 ence to the known condition of the country at the time it was given, and the 
 parties must both be deemed to have known what the ordinary perils were in the 
 country where the insured proposed to go, and their contract must be interpreted 
 in the light of this assumption." 
 
 706 
 
CH. XVI.] OF DEATH BY LAW, ETC. [§ 335 
 
 This case was affirmed by the Commission of Appeals,^ 
 the court observing, amongst other things, " that the general 
 understanding of the term includes such persons only as are 
 liable to do duty in the field as combatants." But death 
 in the military service of an enemy, whether excepted from 
 the risk or not, or referred to, or even specially permitted, 
 would doubtless be held to be not within the protection of 
 a policy of insurance as against public policy. ^ 
 
 § 333. Military Service, What constitutes entering. — In 
 Mitchell V. Mutual Life Insurance Company of New York,^ 
 it appeared that the insured went South after the breaking 
 out of the rebellion, and served on the staff of several gen- 
 erals, though he received no commission. And the court 
 thought that if the insured connected himself in any form 
 with the belligerent force, whether he had a commission or 
 not, he entered the military service, within the meaning of 
 the policy. But a mere clerical position in the office of the 
 Adjutant-General, subject to no military order or service, 
 is not entirely such service within the meaning of the 
 policy.^ 
 
 § 334. Military Service, Voluntary or Involuntary. — In Dil- 
 lard V. Manhattan Life Insurance Company,^ the insured, 
 threatened with conscription, entered the Confederate ser- 
 vice, and occupied the position of brigade-post-quarter- 
 master. It was claimed by the plaintiff that this was 
 substantially an involuntary entering the service on the 
 part of the insured, and if not, was for the benefit of the 
 insurers, as the risk was less than it would have been to 
 take the chances of compulsory service through conscription. 
 But the court did not sustain these views. 
 
 § 335. Restrictions upon Residence ; License to Travel. — 
 Where, by the terms of the policy, the residence of the in- 
 sured is restricted within certain specified limits, and a 
 license is given to remain without those limits till a cer- 
 
 i 48 N. Y. 34. 2 Ante, § 37. 
 
 2 Decided in the Superior Court of Baltimore, and cited by Bliss, Ins. 643. 
 
 « New York Life Ins. Co. v. Hendren, 24 Grat. (Va.) 536, 540. 
 
 s 44 Ga. 119. 
 
 707 
 
§ 336] INSURANCE : FIEE, LIFE, ACCIDENT, ETC. [CH. XVI. 
 
 tain period, inability by reason of siciiness and death to 
 return within the time stated in the license was held not to 
 work a forfeiture, as the assured was excused on account of 
 his inability, which was the act of God.^ 
 
 It has since, however, been held that if such facts consti- 
 tute an excuse in any case, they do not apply where the in- 
 sured, already in feeble health, goes without the restricted 
 limits, and remains there until he is too feeble to return. 
 In such case the insured takes the risk, and cannot allege 
 the impossibility of return as an excuse.^ 
 
 § 886. Restrictions upon Residence and Travel. — But where 
 there was a condition that the insured should not remain 
 more than five days within certain limits, on penalty of 
 forfeiture, and the insured remained there ten days, when 
 he was taken sick, and died within the prohibited limits, it 
 was held that there could be no recovery under the policy,^ 
 whether the violation of the condition was, or was not, in 
 any way the cause of the death. In another case, where 
 there was a permit to travel by one route, and the insured 
 travelled by another, but the change had no materiality to 
 the risk, the court were divided in opinion as to whether 
 this would be a defence.^ The indorsement upon a policy, 
 however, of a permit which purports to grant privileges for 
 a consideration paid therefor, which are only such as may be 
 enjoyed under the provisions of the policy, will not restrict 
 the rights of the insured under the policy, — rights for which 
 he had already contracted and paid. These rights may be 
 availed of as if no permit had been indorsed;* and if such 
 
 1 Baldwin v. New York Life Ins. Co., 3 Bosw. (N. Y. Superior Ct.) 530. 
 Hoffman, J., also gave a sepai-ate opinion to the same effect, in which the 
 cases illustrative of tlie doctrine that non-performance of an obligation may be 
 excused when it becomes impossible by the act of God, are carefully collected 
 and stated. 
 
 2 Evans v. United States Life Ins. Co., 64 N. Y. 804, affirming s. c. 3 Hun, 
 587, and apparently overruling the case of Baldwin v. New York Life Ins. Co., 
 supra. See Wheeler v. Conn. Life Ins. Co. (N. Y.) 10 Ins. L. J. 116, 120. See 
 also pnst, § 352. 
 
 8 Nightingale v. State Mut. Life Ins. Co., 5 R. I. 38. 
 
 4 Bevin v. Conn. Mut. Life Ins. Co., 23 Conn. 244. 
 
 5 Forbes v. American Mut. Life Ins. Co., 15 Gray (Mass.), 249. 
 
 708 
 
CH. XVI.] OF DEATH BY LAW, ETC. [§337 
 
 an indorsement be made at the time the policy is issued, it 
 is to be regarded as part of the policy, modifying any condi- 
 tion to which it relates.^ But a permit to proceed to a par- 
 ticular place without the limits to which the insured is 
 restricted by the terms of the policy, written on a receipt 
 for the premium paid at the time of taking out the policy, 
 is no part of the policy, but a separate and independent 
 agreement. Such a permit authorizes the insured to go be- 
 yond the restricted limits, but not to reside there, except as 
 allowed under the terms of the policy.^ (a) 
 
 § 337. Restrictions upon Residence and Travel ; Settled 
 Limits. — The "settled limits" of the United States means 
 the established boundaries of the Union, and a death be- 
 yond the region of actual settlement is covered by the policy. 
 The word "settled" in such a case, and in its connection, 
 "with the word "limits," is equivalent to "fixed" or "estab- 
 lished." In the sense of occupied or inhabited, it would 
 give rise to great, if not insurmountable, difficulties of 
 proof, and would be so vague and uncertain, that courts 
 should not uphold such a view unless upon the clearest evi- 
 dence that such was the intention of the parties.^ "The 
 primary definition of the word 'settled,'" said Selden, J., 
 "is fixed, placed, established. It is true it is also, though 
 more rarely, used as descriptive of a section of country that 
 is ' planted with inhabitants;' bvit it is obvious that it can 
 never, with propriety, be used in the latter sense in con- 
 nection with the word 'limits.' Limit means boundary, 
 border, the outer line of a thing, and nothing else, except 
 when used to convey the idea of restraint. There may be 
 
 1 Rainsfoi'd v. Royal Ins. Co., 1 Jones & Spencor (N. Y. Superior Ct. ), 453. 
 
 2 Ibid. 
 
 3 Casler v. Conn. Mut. Life Ins. Co., 22 N, Y. (8 Smith) 427. — Comstock, 
 C. J., and two other jndges dissenting, who held that the words were equivalent 
 to the "region of settlement." 
 
 (a) A permit to travel in regions are accustomed to do. Converse v. 
 
 where the policy prohibits residence is Knights Templars' Ind. Co., 93 Fed. 
 
 construed liberally, so as to give the Rep. 148, 151 ; Benefit L. Ins. Co. v, 
 
 privilege of going and making reason- Martin (Ky.), 55 S. W. 694. 
 able stops as passengers and travellers 
 
 709 
 
§ 339] INSUEANCE : FIRE, LIFE, ACCIDENT, ETC. [CH. XVI. 
 
 a settled region, a settled country, or a settled territory, 
 but there can be no such thing as a settled limit, in the 
 sense contended for." And it was held not to be suscep- 
 tible of meaning "the region of settlement,^' as contended 
 for by the insurers. 
 
 § 338. Restrictions upon Residence and Travel ; Iiicense ; 
 Construction. — A license or permit about which there is any 
 ambiguity will be construed most strongly against the com- 
 pany. Thus a permit' setting forthf that the insured is about 
 to proceed to, and reside at, Belize, and granting liberty to 
 reside there for one year, may be availed of for any year 
 thereafter during the currency of the policy.^ So a permis- 
 sion to go by sea in a first-rate vessel is not restrictive -of 
 the mode of travel, whether by steerage or in the cabin. ^ 
 But a permit, clear in its terms, must be strictly followed, 
 or it will afford no protection. Thus a permit to make a 
 voyage, out and home, to California, round Cape Horn or by 
 the way of Vera Cruz, will not authorize making the voyage 
 by the way of Panama, though this may be the safer route. ^ 
 A permit to engage in sea service "on the prior payment 
 any year of an additional premium " does not authorize the 
 continuance of the service beyond the year without the pay- 
 ment of an additional premium, and such continuance works 
 a forfeiture of the policy.* The condition remains in force 
 in all its stringency, except so far as it may be modified by 
 the terms of the permit. 
 
 I 339. Restrictions upon Residence and Travel ; Waiver. — 
 But the right to insist upon a compliance with such restric- 
 tions may be waived ; and a receipt of the premium by the 
 insurers after a known violation of the condition against 
 residence abroad, or of the terms of the permit granted, is a 
 waiver of their right to claim a forfeiture by reason of such 
 violation.^ And this is true whether the knowledge be actual 
 
 1 Notman v. Anchor Ass. Co., 4 C. B. n. s. 476. 
 
 2 Taylor v. Mtna Life Ins. Co., 13 Gray (Mass.), 434. 
 
 8 Hathaway v. Trenton Mut. Life Ins. Co., 11 Cush. (Mass.) 448. 
 * Ayer v. N. E. Mut. Life Ins. Co., 109 Mass. 430. 
 5 Bevin v. Conn. Mut. Life Ins. Co., 23 Conn. 244. 
 
 710 
 
CH. XVI.] OF DEATH BY LAW, ETC. [§ 339 
 
 or constructive, as where the violation is known to the agent 
 of the insui'ers who received the premium;^ unless where the 
 policy contains a notice to the insured that the agent has no 
 authority to waive the condition ;2 and even then, if the con- 
 duct of the insurers misleads the insured to his prejudice.^ 
 [But where one whose life was insured went without permis- 
 sion of the company south of the line to which his policy 
 ran at that season of the year, and died there, a relative, 
 ignorant of the death, paid the price for a permit to go south 
 to the company's agent, who forwarded it requesting a per- 
 mit. Eleven days after, learning of the death, the company 
 tendered back the money received from the relative, and it 
 was held that there had been no waiver of the forfeiture.*] 
 
 1 Wing V. Harvey, 5 De G., M. & G. 265 ; s. c. 27 Eng. L. & Eq. 140 ; Gar- 
 beru. Globe, &c. Ins. Co., C. Ct. (Mo.) 5 Big. Life & Ace. Ins. Cas. 221. And 
 see also Girdlestone v. N. B. Mar. Ins. Co., 11 L. E. (Eq.) 197. 
 
 '^ Loi-ie V. Connecticut, &c. Ins. Co., C. Ct. (Mo.) 5 Big. Life & Ace. Ins. 
 Cas. 233. See also post, § 511 a. 
 
 3 Post, § 356. 
 
 * [Bennecke v. Insurance Co., 105 U. S. 355, 361.] 
 
 711 
 
 END OF VOL. I. 
 

 Date Due 
 
 ' 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 1 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 Library Burea 
 
 LI Ca*. No. 1137 
 
 
KF 11614- l4t-6 1900 1 
 
 Author Vol. 
 
 May, John Wilder 
 
 Title jhe law of insurance as copy 
 applied to fire, life, accident... 
 
 
 
 Date 
 
 Borrower's Name 
 
"^iZ'-.^^^M^-'i^-'-pV':]^ -tjZLi^ ., j^