, h.F 
 
 ill!? 
 F *1 
 
 Cornell University Law Library 
 
 The Moak Collection 
 
 PURCHASED FOR 
 
 The School of Law of Cornell University 
 
 And Presented February 14, 1893 
 
 IN nEilORY OF 
 JUDGE DOUGLASS BOARDMAN 
 
 FIRST DEAN OF THE SCHOOL 
 
 By his Wife and Daughter 
 A. M. BOARDMAN and ELLEN D. WILLIAMS 
 
Cornell University Library 
 KF1196.F79 
 
 A treatise on warranty in fire insurance 
 
 3 1924 019 237 035 
 
The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924019237035 
 
A TREATISE 
 
 Warranty in Fire Insurance Contracts. 
 
 FONTAINE T. FOX, JR.,^, ; « 
 
 LATE VICE-CHANCELLOB OF THE LOTJI8VILLE CHANCERY COTJK1 
 
 CHICAGO: 
 OALLAGHAN & CO. 
 
 1883. 
 
^{fm>l 
 
I DEDICATE THIS BOOK TO 
 
 MX FATHER, 
 
 HON. F. T. FOX, Sr., 
 
 FOR MANY YEARS 
 
 JUDGE OF THE 8TH CIRCUIT, 
 
 IN THE 
 
 COMMONWEALTH OF KENTUCKY. 
 
THE DOCTRINE OF WARRANTY IN THE 
 
 FIRE INSURANCE CONTRACT, AND 
 
 COMPLIANCE THEREWITH. 
 
 Dissenting from the law of Warranty in the 
 Fire Insurance Contract, as presented by both 
 Mr. J. Wilder May and Mr. H. G. Wood in 
 their works on Insurance, I purpose in this 
 treatise to discuss the doctrine of " Warranty 
 in presenti," as it is technically called by the 
 judges and text-writers. I believe the doc- 
 trines, as stated by them, to be entirely wrong 
 in principle. I shall contend, ist, that a war- 
 ranty in presenti is an affirmative representa- 
 tion, and, therefore, evidential; 2d, that a 
 promissory warranty and a promissory repre- 
 sentation are each and both, in law and in 
 effect, executory agreements or contracts, and 
 to be enforceable must be inserted in the policy 
 or attached to it as part thereof; and 3d, that 
 
6 WARRANTY IN FIRE INSURANCE. 
 
 a warranty in the Fire Insurance contract is, 
 like any other warranty, a part of the contract 
 and continues during the existence of the con- 
 tract, in which time is of its essence, and is not 
 separable in its nature, but is an entirety as to 
 the contract and the risk covered by it. In 
 this treatise I shall use the words "policy" and 
 "insurance contract" as really and truly syn- 
 onymous in fact and in law. I believe the use 
 of the words "Warranty in presenti," as to the 
 Fire Insurance contract, to be an error, which 
 has crept into the common parlance of the 
 courts by loose thinkers at the bar and on the 
 bench, and the words have been retained in 
 their place as a legal expression or phrase by 
 the hasty writers of text-books. They have 
 also been used by writers on Fire Insurance, 
 on the theory that the law of Warranty in Fire 
 Insurance is like the law of Warranty in the 
 Life Insurance contract; than which there can 
 not be a greater error on this subject. Thus it 
 
WARRANTY IN FIRE INSURANCE. 7 
 
 would appear, that, even in law, words are only 
 the counters of wise men, but are really the 
 money of other men. 
 
 In the Life Insurance contract the doctrine 
 of Warranty in presenti is found in all its force, 
 and justly so, because there it is natural and at 
 home, springing from and in fact being inher- 
 ent in that contract. It is commonly stated by 
 the text-writers that the general principles rel- 
 ative to the Life and Fire Insurance contracts 
 are the same. No greater error can be com- 
 mited, and especially is this statement a very 
 grave and important error as to the doctrines 
 of Representation and of Warranty. The essen- 
 tial difference between the two contracts grows 
 out of the objects about which they are formed. 
 
 The Life Insurance contract is based always 
 on a written application, which contains ques- 
 tions and answers going into the minutest de- 
 tails of the applicant's past and present health, 
 and also that of his parents, and the tendencies 
 
8 WARRANTY IN FIRE INSURANCE. 
 
 of the family to certain diseases, hereditary or 
 other. It is not necessarily a contract for time. 
 The risk is radically different, and can only be 
 estimated upon the representations of the in- 
 sured himself, to be followed by the opinion of 
 a medical expert, as to the insurability of the 
 applicant. All these things are representative 
 in nature, and are open to proof even after the 
 policy is executed and delivered. 
 
 The Fire Insurance contract is essentially a 
 time contract. It is time that is bought by the 
 insured and sold by the insurer. The risks are 
 so numerous and so diverse in their nature 
 that experience has classified them as danger- 
 ous, hazardous, extra hazardous, etc. Their 
 nature is generally fixed and stable, such as 
 are susceptible of accurate description as to 
 kind and use. The contract always concerns 
 property of some kind which always remains 
 in the possession of the insured, subject to any 
 changes or alterations or use he may see fit to 
 
WARRANTY IN FIRE INSURANCE. 9 
 
 make or put it to. It is from the radical and 
 essential differences between the two here in 
 some measure pointed out that what are war- 
 ranties in the one remain or are only repre- 
 sentations in the other. The insured can by 
 warranties alone be restricted in the use of 
 his own property still in his own possession, 
 though insured, and be prevented from chang- 
 ing by this use the contract of insurance, 
 although the roof and flooring, walls and doors 
 of the property insured might continue the 
 same. The entire contract as to Fire Insur- 
 ance is set forth fully in the policy — in the 
 other it is never or rarely so stated. The ele- 
 ments which go to make the warranty, either 
 by express words or by implication of law in 
 the Fire Insurance contract are the factors 
 upon which the premium is estimated, each 
 one of them having a direct relation to the 
 risk and the time during which the insurers 
 assume it. Springing from these deep and 
 
l'O WARRANTY IN FIRE INSURANCE. 
 
 ineradicable differences are the principles of 
 law as to warranty in presenti and warranty 
 continuing during the running of the risk — the 
 former being predicated in point of sound law 
 almost exclusively of the Life Insurance con- 
 tract, and the latter almost exclusively of the 
 Fire Insurance contract. There are many prin- 
 ciples of law common to both contracts, such 
 as relate to agents, their appointment, nature, 
 power and duties, but the line of distinction 
 between them is very clear-cut, well-defined 
 and positive, and if it had always been recog- 
 nized by writers and courts, much confusion 
 would have been avoided and many errors 
 would not have been committed. 
 
 What is the nature of the Life Insurance 
 contract ? What is its object, and upon what 
 is it based ? The object of this contract is to 
 insure the life of some one,' and it is based 
 upon the representations of the insured or of 
 his agent to make the contract for him, or of 
 
WARRANTY IN FIRE INSURANCE. 11 
 
 the person who takes out the policy on his life 
 for his own protection or benefit. The ques- 
 tions asked are intended to ascertain the facts 
 as to the past and present health and physical 
 _ _ condition of the person whose life is to be 
 insured. In their very nature they are in- 
 tended and expected to be truthful representa- 
 tions of the facts as they exist at the date and 
 delivery, of the policy. They are, therefore, in 
 and from their very nature and purpose, a war- 
 ranty in presenti, and are bound so to be be- 
 cause upon them the contract is based and 
 formed, and when discovered to be intention- 
 ally false the contract is void — another expres- 
 sion for the old law-saying as to contracts — 
 that the minds of the parties did not meet. 
 
 A warranty in presenti is, therefore, simply 
 an affirmative representation that certain facts 
 stated by the applicant are true, and that they 
 exist — not that the applicant will not get sick 
 or will not die within a certain time, or will 
 
12 WARRANTY IN FIRE INSURANCE. 
 
 remain in the good health then enjoyed by 
 him. These affirmative representations being 
 simply a warranty in presenti, do not warrant 
 anything as to the future. They do not form 
 a promissory or continuing warranty. 
 
 In Horn vs. Amicable Mutual Life Insur- 
 ance Company, 64 Barbour, 81, Judge Leonard 
 said: "It is insisted for the defendant that the 
 statements of the insured in his application for 
 the policy must be taken as warranted. These 
 statements are incorporated and made part of 
 the policy, and if the knowledge of the insured 
 concerning his health or his vital organs is of 
 the same certain character as that of applicants 
 for marine and fire risks, there can be no 
 doubt that, the rule of construction should be 
 the same. 
 
 "In applications for marine and fire policies, 
 the statements relate to material facts, and it is 
 negligence or fraud on the part of the appli- 
 cant for a policy, if he does not truly represent 
 
WARRANTY IN FIRE INSURANCE. 13 
 
 the facts. There is every reason in favor of 
 holding such statements to be warranties. 
 
 "In respect to life policies it may be wholly 
 different. The applicant may not know enough 
 of the human system to be aware of the exist- 
 ence of some affection of a vital organ. The 
 victim of Bright's disease or of an affection of 
 the heart, liver or lungs, may be and often is 
 in the enjoyment of such a condition of health 
 and strength as to lead him to the belief that 
 his vital organs are -all sound. It would be 
 monstrous to hold in such a case that the ap- 
 plicant warranted himself to be sound as to 
 those organs by an answer to the effect that 
 he was never sick or had no disease of those 
 organs. 
 
 "The company retain their own medical ad- 
 visers for the purpose of making a careful and 
 scientific examination of all applicants for life 
 insurance, and they are far better able to detect 
 incipient disease than the subject in most cases. 
 
14 WARRANTY IN FIRE INSURANCE. 
 
 I think these statements are not understood or 
 intended by the parties as warranties. I think 
 the Judge at the trial properly held that the 
 inquiry was one of honesty and fair dealing on 
 the part of the applicant, and that the state- 
 ments concerning the condition of his health 
 were not warranties. The assured must state 
 all he knows bearing upon the condition of his 
 health, and any untrue statement or conceal- 
 ment in this respect ought justly to render the 
 policy void." 
 
 Although the language in the above extract 
 used by the distinguished Judge is loose and 
 not technical as it should be, the true princi- 
 ple of law can be deduced from this decision. 
 These representations must be marked by hon- 
 esty and fair dealing — that is, they must be 
 true at the time when they are made, and, 
 therefore, they are affirmative representations 
 of the facts, and for the truth of which the ap- 
 plicant is responsible, and if false the policy is 
 
WARRANTY IN FIRE INSURANCE. 15 
 
 by their falsity rendered void — in other words 
 they are really and technically a "warranty in 
 presenti." 
 
 This principle must be sound, good law, 
 because it is common sense and common hon- 
 esty combined. I do not intend to say that 
 there can not be a promissory warranty in a 
 life insurance contract. But the main ques- 
 tions at issue in the life insurance contract are 
 the truthfulness, correctness and fullness of the 
 answers of the applicant to the questions put 
 to him as to his health and his general phys- 
 ical condition, past and present, and his sur- 
 roundings, and the health and longevity of his 
 parents, and the tendencies of his family to 
 any hereditary disease. Mr. Bliss in his work 
 on Life Insurance, says on page 50, section 34: 
 
 "A warranty is a stipulation forming a part 
 of the contract as it has been completed, and 
 is construed as a condition precedent which 
 must be strictly complied with to the minutest 
 
16 WARRANTY IN FIRE INSURANCE. 
 
 detail, or else the contract is rendered void. 
 Words of affirmation affirming matters of fact 
 upon the faith of which the party contracts, 
 are as competent to make a warranty as any 
 strict technical terms." 
 
 By a warranty the applicant assumes more 
 legal responsibility than he -does by a repre- 
 sentation. By a warranty he precludes all 
 questions as to substantial compliance with it, 
 -or materiality or immateriality of his answers. 
 By a representation these questions are left 
 open for the jury upon proof by witnesses, but 
 still if the proof shows that the answers were 
 intentionally false, or so intentionally made as 
 to deceive or mislead, or were false through 
 ignorance or inadvertence, or through conceal- 
 ment or suppression of facts known to be ma- 
 terial, the policy will be rendered void in law, 
 because the representations were false or in- 
 tentionally deceptive or misleading, or con- 
 cealed or suppressed facts material to the risk 
 
WARRANTY IN FIRE INSURANCE. 17 
 
 at the time the policy issued. In the one they 
 are warranties in presenti, made so by agree- 
 ment of the parties, and in the other case they 
 are made so by the operation of law upon the 
 proof given at the trial of the case. 
 
 Take any other contract to which a warr 
 ranty is usually attached — for instance, the sale 
 of an horse warranted sound. The warranty 
 is not that he will continue sound, but that he 
 is sound when sold and delivered. The affirm- 
 ative representation as to his then present 
 physical condition is a "warranty in presenti," 
 or the warranty in presenti is simply an affirm- 
 ative representation of his condition and health 
 at the time of sale and delivery. Of course 
 there can be promissory warranties in any con- 
 tract if they are contracted for, but they are 
 not favorites of the courts and are difficult to 
 be raised through mere construction of the 
 contract by the courts. 
 
18 WARRANTY IN FIRE INSURANCE. 
 
 But the principle of law proposed herein is 
 the warranty in a fire insurance contract. Is 
 it only a warranty in presenti unless otherwise 
 agreed, or, rather, unless a promissory war- 
 ranty is by express, terms fixed in it, or by 
 irresistible and honest implication to be de- 
 • duced from the language as the clear intent of 
 the contracting parties ? What is the nature 
 of the fire insurance contract ? 
 
 It is not a divisible contract. No text- 
 writer says it is divisible, and from its very 
 nature must be indivisible. In saying it is not 
 a- divisible contract I do not mean that two 
 entirely distinct pieces of property different in 
 nature cannot be insured or covered by one and 
 the same policy or contract — as for instance a 
 house and a stock of goods, or a dwelling and 
 its furniture and a barn and agricultural imple- 
 ments, each at a different amount — at a differ- 
 ent rate. But when such a policy is written 
 the contract as to each kind of property is dis- 
 
WARRANTY IX FIRE INSURANCE. 19 
 
 tinct and indivisible, and does not relate to the 
 the other — two contracts are simply made or 
 included in one policy. 
 
 It is a contract of which time is of its very 
 essence — a time contract, and expressed on 
 its face in haec verba to begin at and from 
 noon (for instance), on 15th February, 1882; 
 and to end or expire at or on noon of 15th 
 February, 1883, covering the property insured 
 for one entire year —each and every day of 
 that whole year — not one day less nor one 
 day more. 
 
 It is, therefore, an indivisible contract of 
 which time is of its very essence, and is con- 
 tracted and paid for by the insured in a pre- 
 mium calculated and estimated upon that basis, 
 to-wit, for the entire year. 
 
 The insured or property-owner buys from 
 the insurer or company protection for, or in- 
 demnity for the loss of, his property during 
 that entire year, and on and during each day 
 
20 WARRANTY IN FIRE INSURANCE. 
 
 of that year, as much upon the day the policy 
 is issued as upon the day it expires — and dur- 
 ing each intervening day, so that the company 
 is not liable before noon of 15th February, 
 1882, to-wit, at 10 or 11 o'clock a. m. of that 
 day. Nor is the company liable after noon of 
 15th February, 1883, to-wit, at 1 or 2 o'clock 
 p. m. of that day. The premium paid by the 
 property-owner is estimated' at a rate sufficient 
 to cover the risk for the entire year, and not 
 for any portion of that year. -The contract is 
 understood by the parties to it to cover the 
 risk for the entire year, and not for any portion 
 of that year. The contract is understood by 
 the parties to it to cover the property for each 
 day of the year during which it is valid and 
 binding on the company. 
 
 Let us take a familiar illustration of this 
 contract — insurance on a building described 
 as a two-story, tin-roofed brick house, occu- 
 pied as a dwelling-house, insurance to begin 
 
WARRANTY IX FIRE INSURANCE. 21 
 
 at noon (12 11.) on 15th January, 1882, and to 
 expire at noon (12 m.) on 15th January, 1883. 
 In order to ascertain the basis upon which the 
 rate for this contract would be estimated, let 
 us analyze this contract in these terms: 
 
 The rate would be estimated upon this de- 
 scription of this house upon these facts : 
 
 1 st. That the house was covered with a tin 
 . roof. 
 
 2d. That it was built of brick. 
 
 3d. That it was occupied as a dwelling- 
 house at that time by the policy-holder or his 
 tenant. 
 
 4th. The time during which the risk was to 
 run was one entire year. The rate would have 
 been less for a shorter period of time. 
 
 The rate would have been greater if the 
 house had been unoccupied, or had been cov- 
 ered with shingles, or had been constructed of 
 wood. 
 
22 WARRANTY IN FIRE INSURANCE. 
 
 By this contract the policy-holder bought 
 and the company sold, upon a certain rate esti- 
 mated as above delineated, insurance upon a 
 two-story brick house, tin-roofed, occupied a"s 
 a dwelling-house, for one entire year and for 
 each day of that year. 
 
 Mr. May and Mr. Wood state the law to 
 be that the use and description of that house 
 as occupied is a warranty in presenti, . only, to 
 wit, to be true on the day and date of the issue 
 and delivery of the policy, and that it is not a 
 continuing or promissory, warranty that the 
 house is to be occupied as a dwelling house 
 during the running of the risk — to wit, for the 
 entire year, as well as each day of the year. 
 
 I contend that by this contract the policy- 
 holder had agreed that this house should re- 
 main tin-roofed and be occupied as a dwelling- 
 house for the entire year and during each day 
 of the year, and that the policy-holder bought 
 his insurance, and the company sold it upon 
 
WARRANTY IN FIRE INSURANCE. 23 
 
 this property, the rate upon which was esti- 
 mated that this condition would remain, and 
 that this occupancy would continue as speci- 
 fied during the running of the risk, to wit, for 
 the entire year contracted for — in other words, 
 that this use or occupancy and condition of the 
 property insured was a continuing or promis- 
 sory warranty, and as express as language 
 could make it. It is quibbling about words 
 and haggling on nice points of law which are 
 almost always shadowy and generally worth- 
 less, to talk of warranty in presenti, precedent 
 conditions, affirmative representations, or con- 
 tinuing promissory warranty. The great un- 
 derlying fact of this whole matter is — that the 
 parties have made a contract of insurance upon 
 a certain described house and none other, cov- 
 ered in a certain specified way and none other, 
 for a certain price or rate and none other, esti- 
 mated upon these terms and conditions and 
 none other. The policy-holder must keep this 
 
24 WARRANTY IN FIRE INSURANCE. 
 
 contract in all its terms and conditions during 
 its existence up to the fire or the company is 
 released or rather is not bound, because the 
 minds of the contracting parties met upon this 
 particular contract, and any change in it or addi- 
 tion to it by the policy-holder must be accepted 
 by the insurance company because by that 
 addition or change a new contract has been 
 formed upon which their minds did not meet, 
 and which was not agreed to or contemplated 
 by them at the day the policy was issued and 
 delivered. 
 
 I will, give certain extracts from the treat- 
 ises of Mr. May and Mr. Wood, which, I 
 believe, will bring the question at issue fairly 
 and fully before the profession. 
 
 Mr. May says, in section 156: "An express 
 warranty is a stipulation inserted in writing on 
 the face of the policy, on the literal truth or 
 fulfillment of which the validity of the entire 
 contract depends. 
 
WARRANTY IN FIRE INSURANCE. 25 
 
 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 prom- 
 ised be unfulfilled. 
 
 A warranty is an agreement in the nature 
 of a condition precedent, and, like that, must 
 be strictly complied with. • Indeed, one of the 
 very objects of the warranty is to preclude all 
 controversy about the materiality or immateri- 
 ality of the statement. The only question is, 
 has the warranty been kept ? There is no room 
 for construction; no latitude; no equity. Any 
 statement or stipulation, upon the literal truth 
 or fulfillment of which in the intention of the 
 parties, the validity of the contract is made to 
 depend, whether appearing as a condition or 
 warranty or however otherwise, amounts to a 
 warranty." 
 
26 WARRANTY IN FIRE INSURANCE. 
 
 Section 183: "A warranty enters into and 
 forms a part of the contract itself. It defines 
 by way of particular stipulation, description, 
 condition or otherwise, 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." 
 
 Section 184:. ''In case of warranty the ques- 
 tion of materiality does not arise." 
 
 Section 157: "Warranties are distinguished 
 into two kinds: affirmative, or those which al 1 
 lege the existence at the time of insurance of a 
 
WARRANTY IN FIRE INSURANCE. 27 
 
 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 be done or omitted, according to 
 the terms of the warranty." 
 
 Section 182: "Representations, like warran- 
 ties, may be affirmative or promissory. The 
 former are those which affirm the existence of 
 a particular state of things at the time the con- 
 tract of insurance is made and becomes opera- 
 tive. The latter are those which are made by 
 the assured concerning what is to happen dur- 
 ing the term qf the insurance, stated as mat- 
 ters 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 prom- 
 ise to be performed after the contract has come 
 into existence." 
 
28 WARRANTY IN FIRE INSURANCE. 
 
 What is the difference in law or in lan- 
 guage between warranties and representations 
 as stated by Mr. May in these two sections, 
 157 and 182? There is none whatever — not 
 the slightest perceptible to the human mind, 
 unless the difference rests in the fact that the 
 warranty "is a part of the contract and the rep- 
 resentation is collateral thereto." That amounts 
 to absolutely nothing in the practical operation 
 of these principles, as ( an actual case on trial 
 will most certainly prove. There is a legal 
 distinction between a warranty and a represen- 
 tation, but Mr. May neglects to draw it when 
 he describes them as he has done in these two 
 sections. In section 183 he says this distinc- 
 tion is to be carefully observed, as it carries 
 with it important consequences. He has mis- 
 led himself by confounding the warranty in 
 the Life Insurance contract with that in the 
 Fire Insurance contract. 
 
WARRANTY IN FIRE INSURANCE. 29 
 
 Let us recur to his elaborate statement of 
 the law and nature of a warranty as given with 
 so much accurate fullness in 183d section. It 
 is penetrable to a very simple analysis. 1st. It 
 is a part of the contract. 2d. It defines the 
 precise limits of the obligation of the company. 
 3d. There is no liability beyond those limits. 
 4th. To fix that liability upon the company the 
 entire contract must be kept according to those 
 identical terms within those precise limits. 5th. 
 The proof must be made by the policy-holder 
 that his claim is within those limits and con- 
 forms to the terms under which the risk was 
 written. 
 
 Bearing in mind the analysis of the Fire In- 
 surance contract heretofore set forth, we will 
 recur to the example of such a contract hereto- 
 fore used. A two-story tin-roofed brick build- 
 ing occupied as a dwelling-house, insurance to 
 begin at noon, 15th January, 1882, and to ex- 
 pire at noon, 15th January, 1883. According 
 
30 WARRANTY IN FIRE INSURANCE. 
 
 to Mr. May's explanation of an affirmative war- 
 ranty and of an affirmative representation, as 
 stated in sections 157 and 182, and according 
 to his examples and quotations from judicial 
 opinions given in sections 247 and 248, upon 
 use, occupancy and vacation, that contract is 
 only^an affirmative representation, or, at best, 
 only a warranty in presenti. What are the lim- 
 its of this contract — or, rather, what is the 
 entire contract ? For one entire year; not a 
 day less nor a day more. What are its pro- 
 visions, terms, conditions, description and risk 
 within which his proof must show that he has 
 brought his claim in order to comply with this 
 contract ? The risk is upon a two-stofy tin- 
 roofed brick building. The nature of the risk 
 is an occupied dwelling house. Each and every 
 one of these elements was a factor in making 
 the estimate for the rate to be charged, and 
 without which that particular rate or premi- 
 um would not have been charged. All these 
 
WARRANTY IN FIRE INSURANCE. 31 
 
 elements constitute the warranty or contract 
 which the insured made to justify the insurer 
 to assume the risk on an house- occupied as a 
 dwelling house. The loss must have happened 
 upon a two-story brick building, tin-roofed, and 
 occupied at the time of the fire as a dwelling- 
 ing-house. The validity of this entire contract 
 depends upon the literal fulfillment of all these 
 terms and conditions, as much as upon any one 
 and every day of the year as during the entire 
 year during which the house was to be occu- 
 pied as a dwelling-house, because if the words 
 "occupied as a dwelling-house" formed "a war- 
 ranty in presenti" only covering the day of the 
 issue and delivery of the policy and no longer, 
 then the policy-holder or his tenant could have 
 moved out the next day and left the house 
 vacant or unoccupied and the company would 
 have been responsible no matter when the 
 fire occurred. Throwing aside all questions of 
 good faith and fraud in the formation of the 
 
32 WARRANTY IN FIRE INSURANCE. 
 
 contract, and of negligence in keeping it, does 
 the law as it is found in the reported cases sus- 
 tain Mr. May ? When I come to discuss the 
 law as to compliance with the warranty in the 
 Fire Insurance contract, I believe I will be able 
 to show that Mr. May has failed in sections 
 247 and 248 to examine the cases used by him 
 with correct analysis, or to distill from them all 
 the law ' they contain. Mr. Wood states the 
 doctrine as to the law of compliance with this 
 warranty much more accurately and fully than 
 Mr. May. Mr. May does not go far enough 
 in saying that this warranty forms a part -of 
 the contract, and through this error he is led 
 into the additional and much more important 
 one that it is a "warranty in presenti only" — 
 covering the risk at the time the policy is is- 
 sued and delivered. This warranty is the very 
 contract itself, containing all its terms, condi- 
 tions, provisions, limits and descriptions within 
 all which the policy-holder must bring his claim 
 
WARRANTY IN FIRE INSURANCE. 33 
 
 in order to recover the loss sustained under the 
 policy. 
 
 The cases referred to as involving the com- 
 pliance with the warranty will throw much 
 light upon the nature, effect and extent of the 
 warranty itself, because the risk assumed arises 
 not only from the property and its kind, but 
 also from the uses to" which it is devoted at the 
 time of the insurance, which enter into and fix 
 the rate of premium on that particular house. 
 And this is the true reason why the policy- 
 holder must comply with this warranty to show 
 that he kept strictly the conditions under which 
 the risk was assumed. To illustrate — the risk 
 in the example used was assumed upon a brick 
 building occupied as a dwelling-house — the 
 risk was to run for one year and the condi- 
 tions were occupancy of the house and occu- 
 pancy of it as a dwelling-house. This point 
 will be more clearly brought out by recurring 
 for a moment to his statement of an affirmative 
 
34 WARRANTY IN FIRE INSURANCE. 
 
 warranty and of an affirmative representation, 
 between which, as stated by Mr. May, there is 
 no real difference. If Mr. May had defined an 
 affirmative warranty thus : " It alleges the exist- 
 ence at the time of the insurance, of a particu- 
 lar use, description or condition of the property 
 insured," or some other particular fact which, if 
 relative to the risk assumed and inserted in the 
 policy, partakes of the nature of a condition 
 precedent and must be strictly kept during the 
 running of the risk and the existence of the 
 contract, or the policy is void and no liability 
 attaches to the company, he would have stated 
 the law correctly. 
 
 Section 247 — Occupancy, Dwelling-house 
 — Mode of Occupancy. 
 
 If in the application the property 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 
 
WARRANTY IN FIRE INSURANCE. 35 
 
 occupied, nor a warranty that it shall be. If 
 the property be denominated as the house oc- 
 cupied by a particular person, this is at most a 
 warranty that it is, and not that it will continue 
 to be so occupied. And in neither case does 
 the fact that the houses are for a time unoccu- 
 pied — whether at the time of the insurance or 
 afterwards — vitiate the policy, even though the 
 loss happen while the dwelling-house is vacant. 
 And this is so, although the application and 
 conditions are made part of the policy, and one 
 of the 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 warranty of the situa- 
 tion at the time of effecting the insurance, and 
 
36 WARRANTY IN FIRE INSURANCE. 
 
 not that it shall continue during the whole 
 term of the risk. 
 
 And in Boardman vs. N. H. Mutual Fire 
 Insurance Company, 20 New Hampshire, 551, 
 it was held that such descriptive words in an 
 application were not warranties, but mere rep- 
 resentations, 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 ex- 
 pressly. Nor is a statement that the insured 
 buildings are "occupied as stores" a warranty 
 that they shall all be occupied. 
 
 Section 248 — Occupancy — Vacation. 
 
 A statement in the application that the un- 
 occupied building insured is to be occupied by 
 a tenant, is not a warranty that it shall be so 
 occupied, but rather the representation of the 
 
WARRANTY IX FIRE INSURANCE. 37 
 
 insured's expectation that it will be so occu- 
 pied, 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. Perhaps if the time were 
 fixed within which it should be occupied, 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 agree- 
 ment, and must be complied with: and so it is 
 if the policy provides that unoccupied build- 
 ings must be insured as such, and in case the 
 building becomes vacant the insured shall give 
 notice, or forfeit his right to recover. Not un- 
 frequently it is provided that if the occupant 
 personally vacates the premises insured the 
 
38 WARRANTY IN FIRE INSURANCE. 
 
 policy will be void, unless immediate notice be 
 given to the insurers and an additional pre- 
 mium paid. In such case, vacation without 
 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, authorized to re- 
 ceive cash for premiums is not sufficient, if the 
 premium be not also paid. It is indeed doubt- 
 ful if the payment of the premium would help 
 the matter, as it is questionable whether an 
 agent to receive premiums fixed by the com- 
 pany would have the right to fix the rate of 
 additional premium. 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 pur- 
 posely so left. 
 
 So, although there be an express oral prom- 
 ise, if the promise be in good faith, there is no 
 
WARRANTY IX FIRE INSURANCE. 39 
 
 implied obligation to keep a watch in or about 
 a vacant house. But when by express terms, 
 if the risk be increased in any manner by the 
 permission of the insured during the currency 
 of the policy, it is void, the voluntarily leaving 
 a house, occupied when insured, unoccupied 
 for such a length and under such circum- 
 stances as to warrant an inference that it was 
 purposely so left unoccupied, will have the 
 effect to avoid it. 
 
 Section 249: — Change of Possession — Oc- 
 ' cupancy — Vacation. 
 
 On the other hand, it is not sufficient to 
 constitute occupancy, within the meaning of a 
 stipulation that the property insured — a trip- 
 hammer shop — shall not remain unoccupied 
 over thirty days, that the tools remain in the 
 shop, and an employe 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. 
 
40 WARRANTY IN FIRE INSURANCE. 
 
 From Mr. Wood's work these extracts are 
 taken. 
 
 Section 139, p. 276: "The description of 
 the risk amounts to a warranty that the risk is 
 as described, but not necessarily that it shall 
 remain so. Thus, where the property is des- 
 cribed as a frame house filled in with brick, 
 the policy is void unless the house is in fact 
 filled in with brick, and it has been held that in 
 such cases the falsity of the application was 
 known to the agent who drew it, the company 
 were not estopped from replying upon its fals- 
 ity in defense, but this is hardly expressive of 
 the rule as generally held." 
 
 This is simply an affirmative representa- 
 tion of a certain fact upon which a contract of 
 insurance was formed; it was false in fact, con 
 sequently the minds of the contracting parties 
 had not met. It could not from any point of 
 view be considered a warranty, but if it had 
 been predicated of a frame house to be filled 
 
WARRANTY IX FIRE INSURANCE. 11 
 
 in with brick, it would have been a warranty, 
 and if not kept the policy would have been 
 void. 
 
 Section 167, p. 320: "The rule is, that rep- 
 resentations in a policy are construed to be 
 warranties when it is apparent that they had in 
 themselves or in the view of the parties, a ten- 
 dency to induce the company to enter into the 
 contract on terms more advantageous to the 
 insured than without them." 
 
 Section 171, p. 330: "Generally it may be 
 said that a description relating to the occu- 
 pancy of a building .is a warranty in presenti, 
 and does not amount to a warranty that such 
 occupancy shall continue during the life of the 
 policy, or that a certain state of things shall 
 continue, but it does import a warranty that 
 the hazards of the risk shall not be materially 
 increased; but any change not producing such 
 a result is not a breach of warranty." 
 
42 WARRANTY IN FIRE INSURANCE. 
 
 Section 176, p. 335: "A warranty, affirma- 
 tive or promissory, is in the nature of a condi- 
 tion precedent; an affirmative warranty is the 
 positive and unqualified statement of a fact as 
 then existing, and for the truth of which the 
 assured vouches to the insurer, and which is 
 satisfied if the fact is as stated at the time when 
 the contract is entered into. They are some- 
 times denominated warranties in presenti;- that 
 is, warranties that a certain state of facts exists 
 in relation to the risk at the time when they 
 are made. All warranties aretreated as affirm- 
 ative, unless from the language used, and the 
 subject matter of the risk, a contrary construc- 
 tion is inevitable. Thus, the words, "occupied 
 as a dwelling," "as a hotel," "as a paper mill," 
 merely relate to the present condition or use 
 of the property, and are not to be construed as 
 warranties that they shall be used for no other 
 purpose ; but they are warranties that the prem- 
 
WARRANTY IN FIRE INSURANCE. i3 
 
 ises shall be used for no other purposes mate- 
 rially increasing the risk." 
 
 Section 177, p. 342: "A representation pre- 
 cedes the contract, and being only the induce- 
 ment thereto, need only be true as to matters 
 material to the risk and that influences the 
 insurer in taking or rejecting the risk or in 
 fixing the rate of premium therefor." 
 
 Section 178, p. 345: "Any representation 
 of the assured, in reference to the property, 
 that is material to the risk, and influences the 
 insurer either in taking or rejecting it, and 
 affects the rate of premium at which the risk is 
 assumed, if relied upon by the insurer and is 
 untrue, avoids the policy, and thus applies to 
 representations as to the title, the character of 
 the risk, or as to any matter in relation to the 
 risk stated by the assured." 
 
 It is hardly necessary to go into an analysis 
 of these quotations to show how they contra- 
 dict one another, or if one is law the other can 
 
44 WARRANTY IN FIRE INSURANCE. 
 
 not be. If it will be noted that Mr. Wood's 
 definition of a warranty in presenti is identical 
 in principle with Mr. May's definition of an 
 affirmative representation ; if any one will take 
 the thoughtful pains to study these extracts ' 
 from Mr. Wood's treatise, he can get the true 
 rule in a measure, though the author seems to 
 be restrained by some unseen power from stat- 
 ing the law correctly. Can it be possible that 
 the examination of his authorities was done for 
 him at second hand? They unquestionably, 
 in some instances, do not support the text, as 
 will be seen hereafter, as many of the authori- 
 ties used herein are also those referred to by 
 him. Upon the subject of compliance with the 
 warranty, Mr. Wood says, in Section 89, p. 
 180: "When the policy specially provides that 
 in case the premises ' shall be left unoccupied,' 
 or 'shall remain unoccupied,' or shall 'become 
 vacant' or 'unoccupied,' or 'shall be vacated,' 
 or shall 'become vacant or unoccupied,' or 
 
WARRANTY IN FIRE INSURANCE. 45 
 
 shall be ' vacant or unoccupied when insured,' 
 a practical occupancy consistent with the pur- 
 poses or uses for which it was insured, is 
 intended, and an occupancy that measurably 
 lessens the vigilance and care that would be 
 incident to its use for such purpose is not an 
 occupancy within the meaning of the terms as 
 thus employed. The intent of the parties, in 
 respect to occupancy, is to be gathered from 
 the usual and ordinary use of the premises for 
 the purposes to which they are devoted." 
 
 Mr. May has, in these sections taken from 
 his work, mixed his examples of warranty with 
 his illustrations of what is or is not a compli- 
 ance with the warranty. 
 
 Angell, on Fire Insurance, says, in Section 
 145, page 192: "Still the distinction between 
 affirmative and promissory warranties has been 
 considered to be rather one of form than sub- 
 stance ; many warranties that are in form affirm- 
 ative being in fact also promissory." 
 
46 WARRANTY IN FIRE INSURANCE. 
 
 Arnold, in his work on Insurance, page 
 578 (Perkins' edition), states the principle as 
 Angell does, and gives this illustration: that 
 the warranty that the ship is neutral not only 
 affirms that she is so at the date of the policy 
 but also engages that, as far as depends on the 
 assured, she shall continue neutral throughout 
 the whole duration of the risk. 
 
 The really essential distinction between a 
 warranty and a representation in the insurance 
 contract is, that the contract or policy, or a 
 paper constituting a part of it, proves the war- 
 ranty; no other proof is admissible. It then 
 cuts off all other questions. The court con- 
 strues the contract, and if it appears to be a 
 warranty, and is so construed to be by the 
 court, the only question left open is, has it 
 been complied with, and, if so, how? 
 
 A representation is the inducement to or 
 facts upon which the contract was formed, and 
 all questions as to materiality or immateriality, 
 
WARRANTY IN FIRE INSURANCE. 47 
 
 fullness of statement, — whether through inten- 
 tion, mistake, inadvertence or ignorance, — are 
 for the jury under instructions as to the law to 
 be given by the court upon the testimony in 
 the case. These questions generally arise upon 
 the application for insurance. Many of the 
 text-writers and judges speak of a warranty in 
 presenti and of warranty in the Fire Insurance 
 contract as a condition precedent. What is a 
 condition precedent, and what is its effect upon 
 the contract? If the contract is an indivisible 
 one, which cannot be apportioned as to its 
 subject matter, and of which time is of its very 
 essence, — being the thing contracted for, — it 
 would seem to be good sense and sound law 
 to hold that a condition precedent to such a 
 contract ran with and covered the entire con- 
 tract from its beginning to its end. The com- 
 mon definition of this condition is that it is an 
 act to be performed by plaintiff (the insured) 
 before the accruing of the defendant's (in- 
 
48 WARRANTY IN FIRE INSURANCE. 
 
 surer's) liability under his contract. Plaintiff 
 must plead performance, or his readiness to 
 perform, or his offer to perform; in a word, he 
 must show that he is not in default by his own 
 conduct, so as not to free the defendant from 
 his obligation which came into immediate exist- 
 ence on the performance of the condition, or a 
 legal excuse for non-performance. Now, what, 
 under Mr. May's rule, is the condition preced- 
 ent in this contract? The answer is, that the 
 house was occupied as a dwelling-house on the 
 day the policy was issued and delivered. In 
 pleading performance of this condition he must 
 aver performance, and state how it was ful- 
 filled. It would then be sufficient for him to 
 plead that he and his family occupied said 
 house as a dwelling-house on 15th Jan'y, 1882, 
 to wit, the day the policy was issued and de- 
 livered. The defendant pleads that plaintiff 
 left the house the day after, to wit, on the 16th 
 Jan'y, 1882, and took with him his family and 
 
WARRANTY IX FIRE INSURAXXE. 49 
 
 all his furniture, and said house was vacant 
 and unoccupied ever after until the fire, to wit, 
 until the 5th Dec, 1882. Would any court 
 sustain a demurrer to that answer or plea? I 
 do not think one could be found that would do 
 so, notwithstanding the loose language that is 
 so constantly used about warranties in opinions 
 of judges and in the statements of principles 
 by text-writers. When that issue was pre- 
 sented, the judge would fall back upon the 
 rule in the Stebbins case, 2 Hall (N. Y. Supe- 
 rior ct.), -631, and say that owing to the good 
 faith required of the plaintiff, and his negli- 
 gence in leaving his house in so unprotected a 
 condition, greatly increasing the risk on it, 
 which he had not paid for, the warranty was a 
 promissory one and must be kept. occupied by 
 plaintiff during the running of the risk or the 
 existence of the contract. 
 
 In Kimball vs. v^tna Insurance Company, 9 
 Allen (Mass.), 540, Justice Gray, speaking for 
 
50 WARRANTY IN FIRE INSURANCE. 
 
 the court, said: "Such statements (when not 
 expressed in the form of a distinct and explicit 
 warranty which must be distinctly complied 
 with), are sometimes called promissory repre- 
 sentations to distinguish them from those re- 
 lating to facts or 'affirmative representations.' 
 And these words express the distinction: 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. Falsehood in the affirmation pre- 
 vents the contract from ever having any life; 
 breach of the promise could only bring it to a 
 premature end. " If the facts are not as repre- 
 sented, then the minds of the parties did not 
 meet, and there was,no contract. This affirm- 
 ative representation as described by Justice 
 Gray, is the warranty in presenti of Mr. May 
 and Mr. Wood. The proof of this false repre- 
 sentation is made not to vary or contradict but 
 to show that no contract has ever existed. 
 
WARRANTY IN FIRE INSURANCE. 51 
 
 Phillips, in his work on Insurance, p. 442, 
 Sec. 771, 1 Vol., says: "A warranty has been 
 defined to be a condition precedent, but this 
 definition is applicable only to a warranty re- 
 lating to the commencement of the risk." This 
 is only another form of the "affirmative repre- 
 sentation." Whenever this affirmative repre- 
 sentation is introduced into and is made a part 
 of the contract, or is written in the policy 
 itself, it ceases to be a representation and be- 
 comes a warranty. What Justice Gray calls 
 and so well defines as a "promissory represen- 
 tation" is in reality and effect, as it is in law, 
 an executory contract attached to the policy, 
 which is valid and binding and continues to 
 exist between the parties until the breach of 
 this executory agreement, when the policy 
 comes to its premature end, and whenever it is 
 introduced into the contract as one of its com- 
 ponent parts, or is written in the policy itself, 
 then it becomes a promissory warranty, to 
 
52 WARRANTY IN FIRE INSURANCE. 
 
 which attention will be called in using the case 
 of Poor vs. Humboldt Ins. Co., 125 Mass., 274, 
 where it was given in these words : " War- 
 ranted a family to live in said house through- 
 out the year." Greenleaf, in his "Evidence," 
 2d Vol., Sec. 383, in his chapter on Insurance, 
 says: "All express warranties and all affirma- 
 tive averments are in the nature of conditions 
 precedent to the plaintiff's right to recover." 
 Plaintiff in such cases must prove his right to 
 recover by showing that he has kept his war- 
 ranty, and how, but in the case of the affirma- 
 tive representation, i. e., the warranty in pre- 
 senti, he would be required to prove only that 
 the representation was true when made, at the 
 time or commencement of the contract. That 
 it was a warranty (inserted in the policy) ren- 
 dered unnecessary and impertinent all testi- 
 mony as to materiality or immateriality of the 
 statement as to the risk. I make this ex- 
 tract from a very learned note to Yanden- 
 
WARRANTY IN FIRE INSURANCE. 53 
 
 heuvel vs. the United Insurance Company', 2 
 Johnson Cases, 129: "The breach of a .war- 
 ranty consists either in the falsehood of an 
 affirmative or the non-performance of an ex- 
 ecutory stipulation, in either case the con- 
 tract is void ab initio, the warranty being a 
 condition precedent; and whether the thing 
 warranted was material or not, whether the 
 *breach of it proceeded from fraud, negligence, 
 misinformation or any other cause; the conse- 
 ' * quences are the same. The warranty makes 
 the contract hypothetical: that is, it shall be 
 binding if the warranty is complied with. With 
 respect to the compliance with warranties there 
 is no latitude, no equity; the one question is, 
 has the thing warranted taken place or not ? 
 If not, the insurer is not answerable for any 
 loss, even though it did not happen in conse- 
 quence of the breach of the warranty." The 
 great error in this statement of the law here 
 laid down is as to the executory stipulation, 
 
54 WARRANTY IN FIRE INSURANCE. 
 
 which is not void ab initio, but binding and 
 good until broken by non-performance. It is 
 almost an hopeless task to bring about a cor- 
 rect use of the terms "affirmative and promis- 
 sory representations" and of "conditions pre- 
 cedent" in their relations to warranty in the 
 Fire Insurance Contract; even this author uses 
 warranty in the contract and affirmative repre- 
 sentations as being identical in law. Repre- 
 sentations are facts, and must be true as stated 
 by the insured, but by the agreement of the ' 
 parties they can be converted into warranties 
 or used as the basis or elements of executory 
 stipulations or contract, or be made to form 
 "conditions precedent," but so long as they 
 retain their evidential nature — of the nature 
 of facts to be proved, they are simply facts 
 and nothing more — upon which the contract 
 was formed and the policy was issued and 
 delivered. 
 
WARRANTY IN FIRE INSURANCE. 55 
 
 Marshall, in his work on Insurance, gives 
 the best definition of what is meant by repre- 
 sentation — "a collateral statement, either by 
 writing not inserted in the policy or by parol, 
 of such facts or circumstances relative to the 
 proposed adventure, as are necessary to be 
 communicated to the underwriters, to enable 
 them to form a just estimate of the risks." 
 Duer, in his work on Insurance, while object- 
 ing to it for many, and grave reasons, admits it 
 has been generally followed and taken to be 
 correct, and in commenting on it, says: "There 
 are cases in which a representation and a war- 
 ranty, embracing the same facts, are the same 
 in their legal construction and effect. Such is 
 the result when from the nature of the subject 
 to which the representation relates, any change 
 in the facts that it affirms or implies, must be 
 material." This is another form of confound- 
 ing a warrant in presenti with an affirmative 
 representation, or rather of trying to state it as 
 
56 WARRANTY IN FIRE INSURANCE. 
 
 a principle of law that there is any difference 
 between them. 
 
 Marshall does not pretend to touch that 
 question. I have already shown that they are 
 one and the same in law and in their effect and 
 in the proof necessary to meet the issue — if 
 the facts are not true as represented the minds 
 of the parties did not meet, and if they are 
 true then there was a contract. Representa- 
 tions can not, from their very nature and office 
 in relation to the policy, form a part of the 
 contract. Whenever they are inserted in the 
 policy as a part of the contract; as a controll- 
 ing element relative to the risk in the estimate 
 of the rate charged, they lose their nature and 
 office as facts upon which the contract was 
 made, and become either warranties or execu- 
 tory contracts, attached to the policy — to use 
 Justice Gray's words — "a promise, to be per- 
 formed after the contract has come into exist- 
 ence," but so long as they retain their original 
 
WARRANTY IN FIRE INSURANCE. 57 
 
 nature and perform their original office, no 
 matter where found, whether in the survey, or 
 the application, or in the policy itself, they are 
 still the facts to be proved, upon which the 
 contract was formed, the inducement to it, the 
 basis of it. They are a part of the preliminary 
 proceedings, and in support of these views, I 
 refer to these cases : 
 
 Pierce vs. The Empire Insurance Company, 
 62 Barbour, 636. 
 
 Mayor of New York vs. Brooklyn Fire 
 Insurance Company, 4 Keyes, 465. 
 
 Commonwealth Insurance Comp'y vs.Mon- 
 ninger, 18 Indiana, 352. 
 
 Glendale Woolen Co. vs. Providence Insur- 
 ance Company, 21 Connecticut^ 19. - 
 
 Williams vs. New England Mutual Insur- 
 ance Company, 31 Maine, 210. 
 
 Gerhauser vs. North British and Mercantile 
 Insurance Company, 7 Nevada, 174. 
 
58 WARRANTY IN FIRE INSURANCE. 
 
 In the case reported in 4 Keyes the court 
 held it to be good law that a promissory repre- 
 sentation must be inserted in the policy, and 
 could not be shown by parol, because all nego- 
 tiations are closed and consummated by the 
 written policy, and this principle is correct, be 
 cause they are in effect and in law executory 
 contracts attached to the policy, and must be 
 proved by the policy, or a part of the policy 
 would be in writing and part in parol. As 
 long as they remain evidential in their nature 
 and office they are the facts upon which the 
 contract was formed, but when they become 
 contractual in their operation they become war- 
 ranties, and if promissory must be inserted in 
 the policy to bind the policy-holder. In Hig- 
 ginson vs. Dall, 13 Massachusetts, 101, I find 
 the principle stated in this way: ''Representa- 
 tions, however, of the state of the vessel, and 
 giving a description of the voyage, may be 
 proved by oral or written testimony when the 
 
WARRANTY IN FIRE INSURANCE. 59 
 
 object is to falsify those representations — for 
 many things material to the risk are stated in 
 the application for insurance, which are not 
 usually made a part of the policy ; and it is a 
 part of the law of insurance that such represen- 
 tations may be so proved. Warranties, how- 
 ever, must always be inserted in the policy, as 
 also any agreements as to the policy being 
 vacated on the happening of any event agreed 
 on by the parties." 
 
 I will now discuss some cases supporting 
 these views: 
 
 Wood vs. Hartford Fire Ins. Co., 13 Con- 
 necticut, 533. 
 
 Facts: Insurance was on the one half of 
 the paper mill owned by the plaintiff, with one 
 half of the machinery, gearing, &c, from nth 
 Febr'y, 1837, to nth Febr'y, 1838, — the other 
 half owned by Wm. Buddington. On 9th 
 Sept., 1837, the mill with its contents fully 
 destroyed by fire. The plaintiff lived in New 
 
60 WARRANTY. IN FIRE INSURANCE. 
 
 York city, and leased the premises to Bud- 
 dington before insuring it. Buddington was 
 in possession, and used it as a paper mill till 
 23d May, 1837. Having discontinued the paper 
 mill, he introduced into it some stones to grind 
 grain — these stones being turned by the water T 
 wheel of the paper mill. All the machinery of 
 the mill remained in it except the duster and 
 rag-cutter, which had been taken down to give 
 place to the grinding stones. 
 
 The question before the court was,, is this 
 description a warranty, and, if so, has it been 
 kept. by plaintiff ? Note this fact! The policy 
 simply describes the nature of the house— no 
 qpalification of its, use or occupancy. It is not 
 described as used or occupied as a paper, mill, 
 nor was the insurance effected by the. occu- 
 pant, who was the other half owner- of the mill. 
 
 The court held (Sherman* J.): "Any state- 
 ment or description, or s any undertaking on 
 the part of the insured, on the face of the 
 
WARRANTY IN FIRE INSURANCE. 61 
 
 policy which relates to the risk, is a warranty. 
 Whether this is declared to be a warranty in 
 totidem verbis, or is ascertained to be such by 
 construction, is immaterial. In either case it 
 is an express warranty and a condition prece- 
 dent. If a house be insured against fire, and 
 is described in the policy as being "copper 
 roofed," it is as express a warranty as if the 
 language had been "warranted to be copper 
 roofed," and its truth is as essential to the 
 obligation of the policy in the one case as in 
 the other. If a house be insured against fire, 
 and the language of the policy is, "warranted, 
 during the policy, to be covered with thatch," 
 the insurer will be discharged if during the 
 insurance the house should be covered with 
 wood or metal, although his risk is diminished, 
 for a warranty excludes all argument in regard 
 to its reasonableness or the probable intent of 
 the parties. 
 
62 WARRANTY IN FIRE INSURANCE. 
 
 The argument of the defendant is, therefore, 
 conclusive, if the policy warrants this building 
 to be and continue a paper mill, and it was not 
 one at the time of the loss. Therefore, the 
 description of this house in the policy as a 
 paper mill relates to the risk, and is conse- 
 quently a warranty. It is the only subject of 
 insurance, and if it was not a paper mill at the 
 time of the loss the warranty was not kept, 
 and the plaintiffs can not recover, although 
 the change may have diminished the hazard 
 and been effected without their knowledge or 
 against their will. 
 
 It is contended that the paper mill had be- 
 come converted into a grist mill. All remained 
 as it was, except the rag-cutter and duster, 
 which were dismounted, and all the other ma- 
 chinery may at any time have been employed 
 in making paper. It was to all intents and 
 purposes a paper mill ready tor use." 
 
WARRANTY IN FIRE INSURANCE. 63 
 
 Suppose plaintiffs who were not using the 
 mill had insured it as occupied or used as a 
 paper-mill ? What is the logical deduction 
 from this reasoning, and the principles of law 
 decided ? That it would have been a warranty 
 on the contract for the whole time, and when 
 it ceased to be used or occupied as a paper- 
 mill the warranty had not been kept. Sup- 
 pose Buddington, the occupant and lessee of 
 the paper-mill, had insured this property "as a 
 paper-mill," and had subsequently changed it 
 to a grain-mill, what, under these principles, 
 would have been the decision of the court ? 
 Unquestionably that the company was not lia- 
 ble. The insured were not using the mill in 
 any way, and were not in occupation of it. 
 The risk was estimated exclusively upon the 
 nature and character of the- structure. Sup- 
 pose Buddington, the occupant of the mill, 
 had insured it "occupied as a paper mill." 
 What would have been the principle decided ? 
 
64 WARRANTY IN FIRE INSURANCE. 
 
 "Most assuredly this policy warrants this build- 
 ing to be and continue occupied as a paper- 
 mill, and it was not so occupied at the time 
 of the loss, and therefore the company is not 
 liable." 
 
 The only logical deduction from this case is 
 that a warranty in a fire policy covers the risk 
 and continues during the existence of the con- 
 tract. 
 
 Hoxsie vs. Providence Mutual Fire Insur- 
 ance Company, 6 Rhode Island, 517. 
 
 Facts — Insurance was upon two houses, 
 one. in West Greenwich and the other on 
 Noose-neck Hill in the same town, each in the 
 same town, each described as "occupied as a 
 dwelling house: one policy bore date 26th Oct., 
 1859, and the other on 24th Nov., 1853: fire 
 occurred in Oct., 1859. Description "occupied 
 as a dwelling house," the basement being of 
 wood and stone. The company plead that 
 subsequent to the issuance of the policy and 
 
WARRANTY IN FIRE INSURANCE. 65 
 
 before the loss the basement was used as a 
 joiner's shop, and was exposed to a greater 
 risk than when insured, of which the plaintiff 
 had notice. The plaintiff replied that it was 
 not so used and occupied with his knowledge. 
 The court held (Ames,. J.) : "There is very great 
 justice and very high authority for holding that 
 the description in a fire policy of the construc- 
 tion and use of the premises insured, constitut- 
 ing, as it does, the basis of the insurance, and 
 determining the amount of the premium, is tan- 
 tamount to a warranty on the part of the 
 assured that this description shall remain sub- 
 stantially true while the risk is running: and 
 that no alteration in either shall subsequently 
 be made by the insured to enhance the liability 
 of the insurer." 
 
 Comment is unnecessary on this case, as it 
 decides the point directly in favor of the doc- 
 trine herein advocated. 
 
66 WARRANTY IN FIRE INSURANCE. 
 
 The reports are full of cases deciding that 
 the risk is much greater on an unoccupied 
 house than on an occupied one. They will be 
 used hereafter at the proper time. 
 
 Dewes vs. Manhattan Insurance Company, 
 35 New Jersey, L. 368. 
 
 Facts —Insurance was on a building "occu- 
 pied as a country store and the stock of goods 
 consisting of the usual variety of a country 
 store." 
 
 The court held ( Beasley, Chief Justice ) : 
 "This, by the plain meaning of the term em- 
 ployed, is a warranty on the part of the insured 
 that the building was used at the date of the 
 agreement for the purpose specified. // was a 
 representation on the face of the policy touching 
 the premises in question and which affected the 
 risk, and such a representation, according to 
 all the authorities, amounts to a warranty." 
 After referring to the Wood case in 13 Conn., 
 and to Wall vs. East River Mutual Insurance 
 
WARRANTY IN FIRE INSURANCE. 67 
 
 Company, 3 Selden, 370, he says: "The cases 
 are numerous and decisive upon the subject — 
 so much so that it does not appear to me to be 
 necessary to refer to them in detail, as, in my 
 opinion, the character of a representation of 
 this kind is apparent upon its face. It can be 
 intended for no other purpose than to charac- 
 terize the use of the building at the date of the 
 insurance; for unless this be done, there can be 
 no restriction on the use of the property by the 
 insured during the running of the risk. Unless 
 this description has the force thus attributed to 
 it, the premises could have been used for any 
 of the most hazardous purposes. A building 
 described in a policy as 'a dwelling house* 
 could, except for the rule above stated, be con- 
 verted into a mill or factory. I think it is incon- 
 testably clear that the description of the use of 
 the premises in this case was meant to define 
 the character of the risk to be assumed by the 
 defendants. " 
 
68 WARRANTY IN FIRE INSURANCE. 
 
 This distinguished judge furnishes in this 
 opinion a clear and brilliant illustration of the 
 loose language common upon this subject in 
 the reports. He uses the words "warranty" 
 and "representation" interchangeably — mak- 
 ing them mean the same thing, to convey the 
 same idea, and yet deciding the case upon the 
 correct principle which is nowhere stated in hac 
 verba in his opinion. He confines the "war- 
 ranty" and "representation" to the date of the 
 insurance, and yet he says it was unquestion- 
 ably intended to restrict the use of the prop- 
 erty during the running of the risk which was 
 necessarily from the beginning to the expiration 
 of the insurance contract, and if that be not 
 sound law, "the premises" (to use his words) 
 "could have been used for any of the most 
 hazardous purposes." He says this description 
 was intended to define the character of the risk 
 to be assumed by the defendant. When did 
 they assume it? On the date of insurance. To 
 
WARRANTY IN FIRE INSURANCE. 69 
 
 what was it restricted? To that date? No; 
 but during the running of the risk — as long as 
 the building was occupied as a country store, 
 and no longer. His illustration as to a dwell- 
 ing house to be converted into a mill or fac- 
 tory contradicts his statement of a warranty, 
 but holds the correct principle to be that if 
 occupied as a country store at the date of insu- 
 rance, it must be so occupied as long as the 
 risk runs,, to wit: during the existence of the 
 policy. In other words, this warranty was 
 intended to cover this entire contract, and was 
 kept as long as the property was occupied as a 
 country store, and no longer. The principle 
 clearly deducible from this case is, that this 
 warranty ran with the risk from the commence- 
 ment to the expiration of the policy — in short, 
 it was a continuing warranty, and if it was con- 
 tinuing, it did not restrict the use of the prop- 
 erty as a country store to the date of the insu- 
 rance only. 
 
70 WARRANTY IN FIRE INSURANCE. 
 
 Lyons vs. Providence Washington Insu- 
 rance Company; Supreme Court of Rhode 
 Island. The Central Journal, vol. 16; No. 10, 
 of 9th March, 1883. Carpenter, J. Facts: 
 Insurance on certain articles of furniture and 
 wearing apparel described in the policy as "all 
 contained in house No. 23 McMillen street, 
 Providence, R. I." At the time of the fire the 
 furniture had been taken from that house and 
 , was in a house on Power street where the fire 
 occurred. House on McMillen street belonged 
 to the insured, who did not inform the com- 
 pany of the removal of the articles insured. 
 
 The court held as follows: "There seems to 
 be no doubt that if this question were decided 
 on authority it must be taken as the general 
 rule that all the material statements of the pol- 
 icy of insurance, including statement as to the 
 place in which the insured property is situated, 
 are warranties, and that such warranties must 
 be true and must continue to be true during the 
 
WARRANTY IN FIRE INSURANCE. 71 
 
 whole life of the policy, as the condition of any 
 recovery thereunder. " 
 
 No comment on this opinion' is necessary : 
 it explains itself. 
 
 Hartford Fire Ins. Co. vs. Farrish, 73 Illi- 
 nois, 166. 
 
 Insurance on the bleaching powder and 
 soda ash situated in a certain warehouse. 
 
 Craig, J. Point raised was insured in one 
 building, warehouse B, and were destroyed by 
 fire in another building, warehouse A. The 
 court held: "If appellant was correct in its po- 
 sition on the question of fact we are free to 
 concede no recovery could be had, but the 
 location of these goods when insured was one 
 of the questions of fact submitted to the jury 
 upon which the testimony of appellant and 
 appellee did not agree." 
 
 The principle of this case is that the prop- 
 erty must remain in the house where insured 
 during the existence of the policy or the run- 
 
72 WARRANTY IN FIRE INSURANCE. 
 
 ning of the risk, because the location of the 
 property when insured was the warranty of the 
 contract, but the removal of the property was 
 the question of fact about which the witnesses 
 differed. 
 
 Shertzer vs. Mutual Fire Ins. Company of 
 Hartford Co., 46 Maryland, 508. 
 
 Insurance was on the contents of a frame 
 barn, granary and stabling, situated on the in- 
 sured's land, called Widow's Cave. The prop- 
 erty, by consent of company endorsed on pol- 
 icy, was removed to another part of the same 
 land, when it was destroyed by fire. The court 
 held: "One of the conditions annexed to and 
 made part of the policy, provides that insur- 
 ance on contents of buildings shall be taken 
 and construed to include every species of per- 
 sonal property therein, and from this in con- 
 nection with the terms of insurance in the body 
 of the policy itself, it is clear the risk which 
 this policy covered as respects the property in 
 
WARRANTY IX FIRE INSURANCE. 73 
 
 question continued only so long- as it remained 
 in the buildings in which it was at the time the 
 policy was issued. It follows, therefore, that 
 the plaintiff had no cause of action against the 
 company for this loss, except by virtue of the 
 permission thus endorsed on the policy." 
 
 Parmelee vs. Hoffman Fire Insurance Com- 
 pany, 54 New York, 196. 
 
 Insurance dated 19th Oct., 1864, for one 
 year, on a stock of piano-fortes contained in 
 the three story and basement brick building 
 used by them for the manufacture of piano- 
 fortes, and situated at No. 9 Howard Street, 
 New Haven, Conn. : fire occurred on 30th 
 Aug., 1865. 
 
 The court held "The representation as to 
 the occupation of the building was unquestion- 
 ably a warranty, and was so held on the trial, 
 and, if broken, avoided the policy." 
 
 Houghton, &c, vs. Manufacturers' Mutual 
 Fire Insurance Company, 8 Metcalfe (Mass.), 1 14. 
 
74 WARRANTY IN FIRE INSURANCE. 
 
 Facts — Policy dated ist July, 1843, to ex " 
 pire 1 st July, 1844, at noon, for $14,000.00, on 
 one undivided half of woolen mills in Grafton, 
 Mass., occupied by them, machinery, stock and 
 stock in the wool house building: the applica- 
 tion set forth the representations by answers 
 and questions thereto, upon which the contract 
 was made — in the policy was this clause: "If 
 the situation or circumstances affecting the risk 
 upon the property insured shall be altered or 
 changed by or with the advice, agency or con- 
 sent of the assured or their agent, so as to 
 increase the risk thereupon without consent of 
 the company, the policy shall be void." 
 
 The court by Shaw, Chief Justice, held: 
 "The court are of opinion that this was a stip- 
 ulation and condition without a substantive 
 compliance with which, the company from the 
 time of its happening would cease to be bound 
 by the contract. This provision binds the as- 
 sured, not only not to make any alteration or 
 
WARRANTY IN FIRE INSURANCE. 75 
 
 change in the structure or use of the property 
 which will increase the risk, but prohibits them 
 from introducing any practice, custom or mode 
 of conducting their business, which would ma- 
 terially increase the risk, and also from the dis- 
 continuance of any precaution represented in 
 the application to be adopted and practiced 
 with a view to diminish the risk. The clause 
 in question, as well as the preceding clause, 
 refers to the application and the representation 
 contained in it. Taking this clause with the 
 representations, we think the legal effect is, 
 that so far as these representations set forth 
 certain usages and practices observed at the 
 factory, as to the mode of conducting their 
 business, and as to precautions taken to guard 
 against fire, it is not only an affirmation that 
 the facts are true at the time, but in effect a 
 stipulation that as far as the assured and all 
 those entrusted by them with the care and 
 management of the property are concerned, 
 
76 WARRANTY IN FIRE INSURANCE. 
 
 such modes of conducting the business shall 
 be substantially observed, and such precautions 
 substantially continue to be taken during the 
 continuance of the policy." 
 
 I cannot call to my support a name more 
 reverenced in the judicial annals of our coun- 
 try for learning and ability than that of Chief 
 Justice Shaw. What is the general principle 
 of law deducible from this opinion ? It is this: 
 that whatever is a stipulation or condition pre- 
 cedent in the policy, or made so through other 
 papers connected therewith by agreement of 
 the parties, must not only be true at the date 
 the policy is issued, but must continue substan- 
 tially as it was at that date during the continu- 
 ance of the policy, or, to use the common par- 
 lance of the present day, if it is a warranty at 
 the date of the policy it is a continuous war- 
 ranty during the continuance of the policy, 
 covering the risk from the beginning to the 
 expiration of the policy. It is also a strong 
 
WARRANTY IN FIRE INSURANCE. 77 
 
 authority to sustain the view expressed that 
 what Mr. May and Mr. Wood call a warranty 
 in presenti is at best but an affirmative repre- 
 sentation. 
 
 Williams vs. New England Mutual Fire In- 
 surance Company, i Redington, Maine, 224. 
 Facts: Insurance upon a double house for 
 three months, and upon the materials for fur- 
 nishing it. In answer to an interrogatory as 
 to the number of stoves used in the house, the 
 insured stated: None. In the fall a stove was 
 used for a few days to dry the paint; the house 
 being then in the course of erection when 
 policy was issued. 
 
 Shepley, J. The court held: "It is not dif- 
 ficult to distinguish between a warranty and a 
 representation. The latter is a part of the pre- 
 liminary proceedings preceding and proposing 
 a contract. The former is a part of the contract 
 when completed. Ordinarily, therefore, a state- 
 ment made in an application for insurance is a 
 
78 WARRANTY IN FIRE INSURANCE. 
 
 representation only; but it may be incorporated 
 into the policy, and thereby become a part of 
 the contract. When thus made a part of the 
 contract what would otherwise have been a 
 representation, becomes a warranty. The state- 
 ment was true when made, and when considered 
 as a contract or warranty that no stove should 
 be used as they ordinarily or habitually are in 
 dwelling houses, continued to be true at the time 
 of the loss. The testimony does not prove a 
 violation of the contract on the part of the 
 plaintiff. " 
 
 If the statement had not been true at the 
 time of the loss, the plaintiff would have viola- 
 ted his " contract or warranty, " but why? Be- 
 cause the warranty is continuous with the run- 
 ning of the risk, and only expires with the 
 policy. 
 
 The Glendale Woolen Company vs. the 
 Protection Insurance Company. 21 Connecti- 
 cut, 19. 
 
WARRANTY IN FIRE INSURANCE. 79 
 
 This case was decided by Judge Ellsworth. 
 His opinion covers all the points heretofore 
 touched, and is one of very great ability. It 
 has not received the attention it so justly de- 
 serves, and I shall therefore give it a very 
 minute and comprehensive examination. 
 
 The insurance was upon a mill, machinery, 
 stock, etc., owned by plaintiffs. The case was 
 tried on the general issue with notice of special 
 matter to be given in evidence. By the policy 
 the survey and description of the property 
 issured were to be taken as warranties by the 
 insured. The point raised in the case was: Is 
 the warranty a warranty in presenti only, or a 
 continuous warranty? 
 
 These questions were asked the plaintiff, 
 making the eighth interrogatory: Is there a 
 watchman in the mill during the night? Is there 
 also a good watch-clock? Is the mill left alone 
 at any time after the watchman goes off duty 
 in the morning till he returns to his charge at 
 
80 WARRANTY IN FIRE INSURANCE. 
 
 evening? To which these answers were set 
 opposite: "There is a watchman, nights; no 
 clock — bell is struck every hour from 8 p. m. till 
 it rings for work in the morning; only at meal 
 times, and on the Sabbath and other days when 
 the mill does not run." 
 
 The defendants claimed that these answers 
 formed a warranty which was continuous dur- 
 ing the existence of the policy. The plaintiffs 
 contended that they were only representations 
 (page 25). "On the subject of the meaning and 
 legal construction of the survey and the eighth 
 interrogatory the court did not charge as the 
 plaintiffs claimed, but did charge the jury, pro 
 forma, that the answers to the several interrog- 
 atories in the survey, and especially the answers 
 to the eighth interrogatory, were warranties, 
 and not merely representations, and so made 
 by the terms of the policy; and that it was 
 the duty of the plaintiffs to have complied with 
 them according to their fair and obvious mean- 
 
WARRANTY IN FIRE INSURANCE. 81 
 
 ing. That the question in eighth interrogatory, 
 " is there a watchman in the mill during the 
 night?" means: Is there such a watchman 
 through the night? And that the answer, 
 " there is a watchman, nights, " is an affirmative 
 answer to the question, meaning in this con- 
 nexion every night and through the night. 
 
 There was some question as to the meaning 
 of the word Sabbath, but it had no real influ- 
 ence in the case. 
 
 (Page 27). "Whereupon the jury finally 
 rendered their verdict for the defendants, which 
 the court accepted. The plaintiffs thereupon 
 moved for a new trial, for a misdirection. The 
 case was argued fully and ably, and all the 
 authorities were discussed. 
 
 The court held: "The contract of insurance, 
 as all know, is a contract of indemnity, upon 
 the terms and conditions specified in the policy 
 of insurance. It is a peculiar contract, and 
 one of hazard purely. The insurer undertakes 
 
82 WARRANTY IN FIRE INSURANCE. 
 
 for a comparatively small premium to guar- 
 anty the insured against loss or damage, upon 
 the exact terms and conditions agreed on, and 
 no other. The party called upon to pay in 
 case of loss, may, therefore, justly insist upon 
 the fulfillment of these terms : and if the plain- 
 tiffs can now bring themselves fairly within the 
 conditions of the policy, as they insist they 
 can, they are entitled to receive for the loss; 
 but if they can not, then they must admit they 
 can not recover, however well meaning and 
 upright, and however confident in their view of 
 the terms and conditions of the policy. We 
 may not make a new contract for the parties, 
 but rather it is our duty to enforce" and carry 
 out one already made. But before entering 
 upon this question, we remark upon another, 
 much dwelt upon in argument, and of general 
 importance: the distinction between a war- 
 ranty and a representation. The latter pre- 
 cedesand is no part of the contract of insur- 
 
WARRANTY IN FIRE INSURANCE. 83 
 
 ance and need be only materially true : the 
 former is a part of the contract and policy, and 
 must be exactly and literally fulfilled or else 
 the contract is broken and the policy becomes 
 void. And although this distinction is not im- 
 portant as we conceive in this instance, nor the 
 other point so much urged, that the policy is to 
 be construed by the laws of Massachusetts, and 
 not by the laws of this state (though we think 
 they are the same in a case situated as this is), 
 it may not be unimportant to observe that the 
 above distinction, if applied in all its strin- 
 gency and technical exactness to fire policies, 
 must, ere long, present questions of unusual 
 interest and importance." 
 
 Fire policies are issued upon certain inter- 
 rogatories and answers, denominated the sur- 
 vey, often extending over two or more pages, 
 and embracing not only the present but the 
 future condition of things, and the future con- 
 duct of the insured, while marine policies are 
 
84 WARRANTY IN FIRE INSURANCE. 
 
 usually taken out for a single voyage, or, if on 
 time, for one of short duration. We are by no 
 means confident that representations in sur- 
 veys preceding the issuing of fire policies, ex- 
 tending as they do to the present and future 
 condition of the property about to be insured, 
 have been considered as technical warranties 
 to be true to the letter, for a long series of 
 years, and not rather as representations to be, 
 at the time and thereafter, substantially exact 
 and true. Nor are we certain that a mere ref- 
 erence to these representations made in the 
 body of the policy, in order to explain the 
 rights and obligations of the parties, does nec- 
 essarily change their character from represen- 
 tations to warranties. Fire policies are taken 
 out in mutual offices, for a term of years, and 
 in ordinary insurance companies for one year 
 or a longer period. If now all the interroga- 
 tories and answers, or survey, as it is called, 
 are to be held to be warranties to be kept to 
 
WARRANTY IN FIRE INSURANCE. S5 
 
 the letter during the continuance of the policy, 
 and not in the nature of representations to be 
 kept in substance and effect : and if this vital 
 change in what is only preliminary is to be 
 brought about by a mere reference in the body 
 of the policy to the survey, then there is a 
 principle of the law of marine insurance being 
 applied to policies of a different character, 
 which must ere long, as we have said, present 
 questions of unusual interest and importance." 
 Judge Ellsworth then reviews many cases 
 applicable to the point. In referring to the 
 case of Jennings vs. Chenango County Mutual 
 Insurance Company, 2 Denio, 75, he says: 
 "The court held that as the survey was made 
 a part of the policy, then, by the acknowledged 
 rule of marine insurance, it became a war- 
 ranty, and must be literally true and so con- 
 tinue. Judge Ellsworth then enters upon an 
 elaborate analysis of how this warranty must 
 be construed in order to exact a compliance 
 
86 WARRANTY IN FIRE INSURANCE. 
 
 from the insured. "The language is general — 
 during the night. What nights ? All nights 
 — one as much as another. And why draw a 
 distinction contrary to the language in its plain 
 import, and the reason of the thing, too ? 
 Why is a watch required any night ? For the 
 same reason that exists for every night" He 
 concluded by a reference to the Massachusetts 
 law of the Sabbath. " We do not believe there 
 is any statute in Massachusetts making it un 
 lawful to keep a watchman in the mill, accord- 
 ing to the survey as we interpret it; and if 
 there was, the contract to keep such a watch 
 every night and every hour of the night is too 
 plain to be .denied, and is, besides, in the 
 nature of a precedent condition which must be 
 fulfilled or the underwriters are discharged." 
 
 All the judges concurred in this opinion 
 and the verdict for the company. Judge Ells- 
 worth, enters in this opinion a manly and dig- 
 nified protest against the use of untechnical 
 
WARRANTY IX FIRE INSURANCE. 87 
 
 language to express technical ideas. He quotes 
 an authority — 4 Hill, 330 — which repudiates 
 the idea of a promissory representation on the 
 ground that no such thing is recognized by 
 any respectable authority whatever, to which I 
 will refer again. 
 
 The general principle deducible from this 
 opinion is that this agreement, whether a war- 
 ranty or a condition precedent, is obligatory 
 upon the policyholder, and must be kept during 
 the continuance or life of the policy as much 
 upon one day as another, and upon every day; 
 that it looks to the future, and imposes upon 
 him the duty of performing his contract contin- 
 uously each day during the policy, or, in other 
 words, that it is a continuous warranty — not a 
 warranty in presenti. It will be observed that 
 Judge Ellsworth strikes at the root of this 
 matter and attacks inferentially the language- 
 now so common in the text-books as inaccu- 
 rate, untechnical and inexpressive of the idea 
 
88' WARRANTY IN FIRE INSURANCE. 
 
 sought to be conveyed. He would evidently 
 prefer to use the expression or phrase, an ex- 
 ecutory contract, and which, indeed, would be 
 nearer and more expressive of the true doc- 
 trine on this subject. 
 
 Jennings vs. the Chenango County Mutual 
 Insurance Company. 3 Denio, 75. 
 
 Facts — Policy issued to cover a building 
 described as a grist-mill in Virgil; date, 25th 
 June, 1840, and- to run for five years. Mill 
 consumed by fire in 1841. There was in the 
 application or paper annexed to the policy the 
 usual clauses about concealment and misrepre- 
 sentation, and their effect on the risk or policy. 
 Among other particulars, this fact was stated : 
 "The mill is bounded by space on all sides." 
 On the trial plaintiff proved that the miller had 
 put into the mill, before the policy was issued, 
 a hand turning-lathe and work-bench and some 
 carpenter's tools — rthey were used for doing 
 small jobs and in repairing the mill; they were 
 
WARRANTY IN FIRE INSURANCE. 89 
 
 there at the time and the lathe had been used 
 the day preceding the fire to turn a stick for a 
 churn. Defendant objected to the proof that 
 plaintiff had informed defendants' agent of 
 these facts before issuance of policy. It was 
 admitted by the court. Defendant moved for 
 a non-suit, which was denied. 
 
 Defendant proved a barn to have stood 
 within six rods of the mill at the date of the 
 policy. Plaintiff proved that this fact was also 
 known to agent of defendant, who declined to 
 mention either fact in the application or policy. 
 The defendant moved the court to charge the 
 jury that the policy was void, because : First — 
 the mill was used or occupied for other pur- 
 poses than a grist-mill; and second — because 
 no mention was made of the barn in the appli- 
 cation. The judge declined so to charge, and 
 left the case to the jury; to which defendants' 
 counsel excepted. The jury found for the 
 
90 WARRANTY IN FIRE INSURANCE. 
 
 plaintiff. The case went up on a motion for a 
 new trial, with a bill of exceptions. 
 
 The court sustained all the exceptions by 
 defendant to the evidence because the facts 
 proved being outside the contract could not be 
 heard in testimony to contradict, restrain, con- 
 trol or extend it. The court discusses the 
 distinction between a warranty, and a repre- 
 sentation, and then holds: ''I do not think the 
 representation as to the purposes for which the 
 mill was occupied is falsified by the fact that a 
 work-bench and tools were kept in the mill for 
 the purpose of keeping it in repair." I have 
 no doubt but that the plaintiff might, without 
 incurring the danger of forfeiting his policy, 
 place in the mill suitable materials and tools to 
 make and keep up the ordinary repairs of the 
 building. But here other mechanical opera- 
 tions were carried on by the turning-lathe and 
 work-bench than to repair the mill. As it re- 
 spects the location of the mill in reference to 
 
WARRANTY IN FIRE INSURANCE. 91 
 
 other buildings, the application contained a 
 clear misrepresentation, which I think renders 
 the policy void upon the well-settled principle 
 to which I have adverted. At the same time 
 it cannot be denied but that their application to 
 this case operates with^ great severity to the 
 plaintiff, and is well calculated to lead to a 
 serious doubt whether the intentions of the 
 parties and the interests of justice were duly 
 regarded in the establishment of the rule that 
 matters of mere description should in this class 
 of contracts be considered an express war- 
 ranty, without regard to their materiality in 
 respect to the risk. Having, however, come 
 to the conclusion that the law of the case is as 
 above stated, I am bound to say that the de- 
 cision of the learned circuit judge was errone- 
 ous, and ordered a new trial. 
 
 The general principle deducible from this 
 case is that the warranty was an express one, 
 and continued during the existence of the pol- 
 
92 WARRANTY IN FIRE INSURANCE. 
 
 icy, and although the court might regret the 
 establishment of such a rule, it was admitted 
 to be well settled. 
 
 State Mutual Fire Insurance vs.. Arthur, 6 
 Casey (Penn. state), 315. 
 
 The report of this case includes the plead- 
 ings and all the points made on them and on 
 the evidence. 
 
 The court refers to the Jennings case as 
 containing the law to exclude all outside facts. 
 
 The insurance was on two brick tenements, 
 occupied by tenants, situated adjoining^ on the 
 corner of Main and Biddle streets, in Wheel- 
 ing, Va. — Policy issued on 25th June, 1852, to 
 run for one year. Fire happened on 18th Jan., 
 1853. There were many issues in the case. 
 The policy required the insured to specify how 
 and by whom the houses were occupied, and 
 made statement of this description a warranty 
 by the insured. They were described as used 
 "as dwellings, occupied by tenants." In the 
 
WARRANTY IN FIRE INSURANCE. 93 
 
 corner room of the corner house a store was 
 kept by one Darby Clark, who moved out 
 about two or three months before the fire, and 
 Day and Hawkins went in and used it as a 
 cabinet-ware and finishing establishment. It 
 was in proof that this change was notified to 
 the agent afterward, by whom no objection was 
 made, and agreed to endorse it on the policy, 
 but the company was not informed of it until 
 after the loss. Judge Sharswood discussed 
 the law in his charge to the jury, which found 
 for the plaintiff, whereupon on entry of the 
 judgment on the verdict, the defendants re- 
 moved the case to the Supreme Court on error, 
 which was on the charge of the judge below, 
 and on the admission of evidence, the main 
 point as to which was that the court below had 
 admitted the testimony that the houses were 
 used as boarding houses. The questions' pre- 
 sented for decision were as to a warranty, and 
 its breach, the issues on the pleadings, and as 
 
94 WARRANTY IN FIRE INSURANCE. 
 
 to which points the court held : " It is plain that 
 the breaches of the warranty pleaded were not 
 put in issue. They were admitted. Nor was 
 the existence of the warranty itself traversed, 
 except so far as the inducement of the plain- 
 tiff's replication amounted to a denial of it." 
 
 The judge discussed the office of the war- 
 ranty in dispensing with all inquiry as to mate- 
 riality of facts to the risk, and the nature of 
 the warranty in the contract, holding that the 
 court below had erred both as to the warranty 
 and the evidence admitted, and concluded as 
 follows: "We add only that the conclusion to 
 which we have come is that the jury ought to 
 have been instructed, that upon the whole evi- 
 dence in the cause, the verdict should be for 
 the defendants" (the company). 
 
 Judge Strong in deciding the case followed 
 very much the same line of thought and argu- 
 ment pursued by Judge Jewett in the Jennings 
 case. 3 Denio. 
 
WARRANTY IX FIRE INSURANCE. 95 
 
 Frisbie vs. Fayette Mutual Insurance Com- 
 pany. 3 Casey (Penn. state), 325. 
 
 The insurance was on a stock of merchan- 
 dise in a frame, plastered store-house; mer- 
 chandise on the first floor, and groceries in the 
 store-room and cellars; store attended by ap- 
 plicant and clerk; clerk sleeps in the store, etc. 
 The clerk had not slept in the store for some 
 months before the fire. The court below ruled 
 that this warranty covered the future, and was 
 to continue during the existence of the policy. 
 The court, on appeal, stated the sole question 
 in the case thus: Do the words, "clerk sleeps 
 in the store," constitute a warranty for the 
 future, or are they mere matter of description 
 of the mode in which the building was occu- 
 pied? The general principle of law, as stated 
 by the court on the trial, was fully sustained, 
 but as the present tense of the verb to sleep 
 was used in the policy, it was correct to hold 
 them as being only a description of the act of 
 
96 WARRANTY IN FIRE INSURANCE. 
 
 the clerk, and they had no reference to the 
 future. This opinion is by Judge Lowrie, whose 
 opinions we have had occasion to examine be- 
 fore now. We have never read an opinion from 
 him that we were not compelled to stop and 
 gaze and wonder how such an opinion on such 
 testimony could have been given by any judge. 
 The clerk slept in this store to take care of it, 
 during summer when fire was not used as dur- 
 ing winter when fire was used. If he had not 
 slept there the rate of insurance on the goods 
 would have been higher, because his absence 
 would have made it a risk dangerous to take, 
 and the company would have charged a pre- 
 mium proportioned to the increase of the risk 
 caused by the absence of his supervising care 
 at night, the only time at which there would be 
 any perceptible increase of the risk, as the 
 attendant and the clerk would both be there 
 during the day. The words were intended to 
 convey to the company the impression that the 
 
WARRANTY IN FIRE INSURANCE. 97 
 
 clerk slept in the store every night, or the en- 
 quiry and the answer were both useless and 
 senseless. The company did not desire to 
 know if he slept there only the night of the 
 day the policy issued. The company would 
 not have reduced the premium for his super- 
 vising care of only one night. 
 
 McCluer vs. the Girard Fire and Marine 
 Insurance Company. 43 Iowa, 349. 
 
 Insurance was upon a phaeton, together 
 with horse, harness and a buggy, all described 
 as contained in frame barn situated, etc., and 
 was destroyed by fire while in a carriage-shop, 
 having been left there for repairs. 
 
 Defense that the company was released 
 because the phaeton was not in the barn at the 
 time of the fire. 
 
 The court on appeal held : " It is true that 
 any statement or description on the face of the 
 policy which relates to the risk is a warranty. 
 And where goods are described as being in a 
 
98 WARRANTY IN FIRE INSURANCE. 
 
 building occupied in a certain way, the words 
 describing the occupancy must be regarded as 
 employed to express a fact relating to the risk. 
 Representations in regard to circumstances 
 affecting the risk amount to a stipulation that 
 no change will take place whereby the risk will 
 be increased. Where- therefore, as appellant 
 claims, the place in which the insured property 
 is situated is made a part of the description for 
 the purpose of defining the risk, and a removal 
 takes place not contemplated by the policy, the 
 property is no longer covered by the policy. 
 It may be conceded that the situation of the 
 property is mentioned in the policy as a fact 
 affecting the risk. The words describing the 
 situation must then be regarded as a warranty, 
 not only that the property was contained in the 
 barn, but would continue so ; and, if at the time 
 of the loss, the carriage was not contained in 
 the barn within the meaning of the policy, we 
 do not see how the plaintiff can recover. " 
 
WARRANTY IN FIRE INSURANCE. 9!> 
 
 The authorities referred to by the judge 
 as supporting his conclusions are many of them 
 the same already used. 
 
 Wustum vs. The City Fire Insurance Com- 
 pany. 15 Wisconsin, 139. 
 
 The conditions in policy were the same as 
 in Harrison, case 9, Allen, being against same 
 company. 
 
 Facts — Policy was silent as to occupancy of 
 house, but houses were occupied at time of in- 
 surance by persons known to agent — premium 
 was at lowest rate charged for occupied build- 
 ings, that the vacancy was known to plaintiff 
 seven months before the fire, and that he gave 
 no notice to company — policy dated 16 April, 
 1858, and to run for one year — twice renewed 
 and the last time on 16th April, i860 — house 
 occupied at the date of insurance and of each 
 renewal —destroyed in December, i860. 
 
 Cole (J.) "But it is said there is no evidence 
 in the case anywhere tending to show that the 
 
100 WARRANTY IN FIRE INSURANCE. 
 
 risk was increased in the slightest degree by 
 the vacating of the premises by the tenant, and 
 that if this were so, the burden of establishing 
 that devolved upon the company. It is by no 
 means clear that a vacant dwelling is not ex- 
 posed to greater hazard than it ordinarily would 
 be when occupied; that it is not more likely in 
 this condition to provoke the malignity or 
 invite the malicious felon and wanton intruder. 
 Certainly it would seem that the company in 
 this instance acted upon that idea, otherwise it 
 would not have annexed such a condition to the 
 policy. Again it is said that the policy is silent 
 as to the occupancy of the premises, and that 
 a stipulation that they should continue to be 
 occupied during the term of insurance cannot 
 be supplied by argument or implication. It is 
 provided that 'unoccupied premises must be 
 insured as such or the policy is void.' Surely 
 the premises in this case were not insured as 
 unoccupied premises, and therefore by the 
 
WARRANTY IN FIRE INSURANCE. 101 
 
 clearest and mpst necessary implication they 
 were insured as occupied. For if they were 
 vacant they should have been insured as un- 
 occupied. This is what the policy required. 
 i\.nd a neglect or omission to insure them as 
 such, if they were indeed vacant, likewise ren- 
 dered the policy void. But it fully appears 
 from the case that at the time of the making of 
 the policy, and at each renewal, the house was 
 occupied. The fact was well known to the 
 agent of the company at the time he made the 
 survey, and it was admitted on the trial that it 
 was not known to the company that the prem- 
 ises had become vacant until after the fire. In 
 view of this admission, and of the fact that the 
 premises were not insured as 'unoccupied 
 premises,' we must assume that it was the clear 
 understanding and idea of the parties that this 
 dwelling-house, when insured, was occupied 
 and should continue to be occupied, or in the 
 event it became vacant during the life of the 
 
102 WARRANTY IN FIRE INSURANCE. 
 
 policy, that then notice thereof should be given 
 the company." 
 
 This case is a strong case as to the main 
 principle under discussion — that if the agree- 
 ment is based upon a warranty or a condition, 
 that warranty or condition must continue to be 
 kept during the lifetime of the policy, and that 
 whatever goes into the contract, whether by 
 way of description as to the use or nature of 
 the property, and as to its surrounding cir- 
 cumstances upon which to estimate the rate of 
 insurance charged, which is the consideration 
 of the contract to the company, is ex necessitate 
 rei made a condition or warranty by the policy 
 holder, which must be kept by him in statu quo 
 as far as the natural use of the property will 
 allow — to use the language of Judge Folger in 
 the Hermann case — according " to the sense 
 adapted to the occasion of its use and the sub- 
 ject matter to which it is applied." It cannot 
 be out of place just here to refer to a case con- 
 
WARRANTY IN FIRE INSURANCE. 103 
 
 sidered by Judge Cole in his opinion, which is 
 constantly being used by litigants against In- 
 surance Companies. 
 
 O'Neil vs. The Buffalo Fire Insurance Com- 
 pany. 3 Comstock, 122. 
 
 In this case the words of description used 
 were "occupied by the Hon. George J. Good- 
 hue as a private dwelling." Goodhue was the 
 tenant, not the owner of the house. This case 
 has been constantly used by attorneys to show 
 that the warranty in the Fire Insurance con- 
 tract can not be continuous in its nature. How 
 would it be possible to decide that these words, 
 used to describe the house as a means of iden- 
 tification, could be construed to be a warranty 
 that Goodhue was to continue his occupancy 
 during the policy? In the first place, how could 
 O'Neil control his liberty of action and compel 
 him to remain if he desired to leave? The 
 grammatical arrangement of the sentence is 
 conclusive that the use of these words as to 
 
104 WARRANTY IN FIRE INSURANCE. 
 
 Mr. Goodhue's occupancy fixes it beyond doubt 
 that they were employed to identify the house. 
 The occupancy of the house by him is not used 
 in the policy in such a way as to show that it 
 entered into the contract as a factor or element 
 upon which to estimate the rate of premium. 
 
 Sayles vs. The North Western Insurance 
 Company. 2 Curtis (c. c\), R.' 610. 
 
 Insurance was on a bleachery and movable 
 machinery therein, situated in the town of 
 Smithfield, R. I. — date of policy, 1 May, 1854. 
 
 Defense was breach of two warranties — by 
 agreement in the policy, the survey, description, 
 &c, was to be a warranty. According to the 
 survey there was a good forcing pump in the 
 factory designed expressly for protection against 
 fires, and at all times in condition for use, was 
 located in the basement story and was so 
 geared it could be put into operation outside 
 of building. During the fire this pump became 
 disabled. The defense contended: — 1st. That 
 
WARRANTY IN FIRE INSURANCE. 105 
 
 the statements concerning the forcing pump 
 were warranties, and, 2d, that they were con- 
 tinuing warranties — that it should at all times 
 be ready for use. 
 
 Judge Curtis (Be> t jamin R.) held upon the 
 the first point — "I am of opinion that these 
 statements by the assured concerning the force 
 pump must be deemed warranties, entitled to 
 the same effect as if they had been inserted in 
 the policy in the form of warranties. Indeed 
 this has not been questioned at the bar." 
 
 Upon the second point he held: "It is true 
 that during the progress of the fire the pump 
 became disabled. But surely the statement 
 that there is a pump on the premises at all 
 times in a condition for use can not be construed 
 to mean that it shall continue in a condition for 
 use after fire breaks out on the premises. This 
 would render the policy little better than a nul- 
 ity; for at some period during the progress of 
 a fire, by which the premises are destroyed, a 
 
106 WARRANTY IN FIRE INSURANCE. 
 
 force pump thereon must cease to be in a condi- 
 tion for use. Thus construed, the policy would 
 only insure against so much loss or damage by 
 fire as should not prevent the working of the 
 force pump; that being disabled, the policy 
 would be void. I cannot give such a construc- 
 tion to this instrument. And whether the fire 
 broke out near the pump or its gearing, so as 
 to disable it almost instantly, or more remotely, 
 so as to allow it to be operated for a time, can 
 not affect the question whether the warranty 
 was kept. I think the true construction of the 
 warranty cannot be pressed further than this — 
 that the force pump shall be in a condition for 
 use at all times when not rendered useless by 
 fire. I say not further than this, because I have 
 some doubt whether this warranty, considered 
 strictly as a warranty, does extend to the future : 
 whether its true construction does not confine 
 it to the then existing state of things; leav- 
 ing the rights, of the underwriters to depend on 
 
WARRANTY IN FIRE INSURANCE. 107 
 
 another clause of the policy which guards them 
 against changes of the risk from fault of the 
 assured. But I have not thought it needful to 
 pursue that inquiry, being satisfied that if it be 
 a continuing warranty it was not broken." This 
 case presents the most remarkable state of 
 facts : From it the correct principle of law as 
 to warranty is clearly deducible and indeed is 
 decided by Judge Curtis, and further, that even 
 the clear and most powerful intellect of Judge 
 Curtis should by an inference, and yet a log- 
 ically just one, have contradicted himself in the 
 application of the principle decided by himself. 
 Judge Curtis decides that the statements in 
 the survey as to the force pump and its condi- 
 tion are warranties ; that it must be kept — viz. : 
 that a force pump ready for use at all times 
 must be and remain in the bleachery. This 
 warranty must be a continuing one or it was 
 nothing at all — in a word if it did not continue 
 for the future, the force pump could have been 
 
108 WARRANTY IN FIRE INSURANCE. 
 
 removed at any time. This principle of law as 
 to this warranty Judge Curtis distinctly and 
 most emphatically announces as correct. But 
 when he undertakes to apply it to the second 
 point raised in the case which he decides cor- 
 rectly upon the construction of the uses of the 
 force pump, he becomes confused as to the dif- 
 ference between a continuing and a promissory 
 warranty, and doubts if the true construction 
 would "not confine it to the then existing state 
 of things." If it was "confined to the then ex- 
 isting state of things" and did not require that 
 the force pump should remain in the bleachery 
 ready for use at all times, it would be in effect 
 and actually in fact, only an affirmative repre- 
 sentation whose exclusive province and utmost 
 limit is "confined to the then existing state of 
 things" which is a warranty in presenti. If the 
 point had been made to Judge Curtis that the 
 statement in the survey was only a warranty in 
 presenti and did not require in its fulfillment 
 
WARRANTY IN FIRE INSURANCE. 109 
 
 that a force pump should be kept in the bleach- 
 ery after the delivery of the policy, provided 
 there was one there that day ready for use at 
 all times, he would have scouted such a con- 
 struction of a warranty, and the law as to the 
 true nature and effect of warranty in the Fire 
 Insurance contract would have been laid down 
 with that power, clearness, conciseness and ful- 
 ness, that the dullest mind could have grasped 
 and retained it all. 
 
 Jackson vs. The New York Insurance Com- 
 pany, 2 Johnson cases, 191. 
 
 Insurance was upon the Oneida from New 
 York to London, warranted American, proof of 
 which, if required to be made in New York : 
 policy dated 1st November, 1796, when it was 
 owned by a natural-born citizen of the U. S. — 
 and sold on 29th April, 1797, and before sail- 
 ing, to James Jackson, who, born a British sub- 
 ject had become naturalized in U. S. 6th April, 
 1797 (before purchase). The Oneida sailed on 
 
110 WARRANTY IN FIRE INSURANCE. 
 
 3rd May, 1797, and was captured on 25th May, 
 1797. Jackson had been naturalized in the U. 
 S. during the war between England and France. 
 
 Points raised by defense. 1st. Breach of 
 warranty as to the vessel. 2d. The natural- 
 ization of Jackson did not protect or save the 
 warranty. 
 
 Radcliff (J.) 1. "It is sufficient to decide 
 this case that the plaintiff has not maintained 
 his warranty according to the principles already 
 determined on this subject (1, Johnson cases, 
 16, 341, 360). But, 2. Here was a transfer of 
 the property, subsequent to the insurance, to 
 one, who in view of the belligerent parties, was 
 not entitled to be regarded as a neutral. James 
 Jackson emigrated flagrante bello; and we have 
 already decided (1 Johns case, 360), that no 
 citizen or subject of either of the parties at war 
 can change his allegiance so far as to alter 
 with respect to them, the relation in which 
 he stood at the commencement of the war. 
 
WARRANTY IN FIRE INSURANCE. Ill 
 
 The French had, therefore, a right to consider 
 him as a British subject; and the ship, after 
 being transferred to him, was liable to seizure 
 and condemnation by them as enemy's prop- 
 erty. The risk, therefore, was essentially 
 altered and increased ; the plaintiff, by the 
 transfer, voluntarily destroyed the neutrality 
 which he had guaranteed to maintain. " 
 
 If the warranty in this case was a warranty 
 in presenti, and not a continuing one, it was 
 true at the date of the insurance and did not 
 need to be true thereafter, but the court decides 
 that he had guaranteed to maintain this war- 
 ranty — that is, it was a warranty on the ship 
 that she was an American ship, and that she 
 would continue to be. an American ship till she 
 reached London, or during the existence of the 
 policy, which was on the voyage from New 
 York to London. 
 
 To the same effect are these cases. 
 
112 WARRANTY IN FIRE INSURANCE. 
 
 Murray and Murray vs. United Insurance 
 Company. 2 Johnson cases, 168, from which 
 we make this quotation. 
 
 " This vessel was insured as the American 
 brig Mary. This has already been considered 
 .as equivalent to a representation of neutral 
 property. It is stronger than a representation, 
 for being contained in the policy itself, it 
 amounts to an implied warranty of that fact," 
 and 
 
 Laing vs. United Insurance Company, 2 
 Johnson cases, 174. 
 
 These cases were decided by Judges Rad- 
 cliff and Kent, by whom constant references 
 were made to the case of Goix vs. Low, 1 
 Johnson cases, wherein the same law was laid 
 down. 
 
 The First National Bank of Ballston vs. 
 Insurance Company of North America. 50 
 New York, 45. 
 
 The insurance was upon a store and frame 
 
WARRANTY IX FIRE INSURANCE. 113 
 
 paper mill ; policy issued to Pioneer paper 
 company, but payable to plaintiff: policy dated 
 1 8th December, 1868, and to run for one year; 
 survey made a part of the policy, and by the 
 terms of the policy a warranty by the insured. 
 The survey contained the following question- 
 and answer: 
 
 27. 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 workmen are not present ? " " Yes." 
 
 The property was destroyed by fire on 4th 
 March, 1869. 
 
 At the close of the testimony defendant was 
 granted a nonsuit. It appeared in proof that 
 the property was levied upon and taken in 
 charge by the deputy sheriff and another per- 
 son. The court decided that the survey was a 
 warranty, and that the statement in the survey 
 was promissory, but the rights and duties of 
 the parties were the same under it as though it 
 
114 WARRANTY IN FIRE INSURANCE. 
 
 had been affirmative. " The proof was that 
 upon the day previous to the destruction of the 
 property by fire, the sheriff levied an execution 
 against the assured upon the personal property 
 in the mill, and excluded their employees 
 therefrom ; took the keys and locked up the 
 building. The levy therefore does not excuse 
 it from the obligation to perform the warranty. " 
 The counsel for policy holder having insisted 
 that the levy by the sheriff being an act of the 
 law would excuse' him. The court concluded 
 thus : " It appearing that there was a breach 
 of the warranty to keep a watchman, the 
 nonsuit was properly granted, and the judg- 
 ment must be affirmed." 
 
 It will be observed that the language used 
 in this case refers to the present condition of 
 the mill — that is at the time the policy was 
 issued, but as all those elements, each one and 
 all, the one as well as another, were the factors 
 upon which the rate of premium was charged, 
 
WARRANTY IN FIRE INSURANCE. 115 
 
 they related to the risk, and therefore denomi- 
 nated "promissory" by the court, because they 
 covered the contract, and being a warranty 
 must be kept during that year for which the 
 policy was issued. It is not legally a promis- 
 sory warranty — it is simply an ordinary war- 
 ranty running with the risk upon the fulfillment 
 of which the entire contract depends. The 
 court announced the correct principle of law as 
 to the policy, but misdescribed the nature and 
 kind of warranty involved in this issue. I have 
 called attention to the use of the present tense 
 in this case, because some judges have, by 
 reason of that, decided .. that the warranty re- 
 ferred only to the state of the property existing 
 at the date of the insurance. 
 
 Ripley vs. The ^Etna Insurance Company, 
 30 New York, 137. 
 
 The appeal in this case was taken from a 
 judgment for plaintiff, and from an order affirm- 
 ing an order denying a motion for a new trial. 
 
116 WARRANTY IN FIRE INSURANCE. 
 
 The case was ably argued by George F. Com- 
 stock for appellant, and by David Dudley Field 
 for the respondent. Action was on policy issued 
 by defendant upon the factory building and stock 
 and goods of the Glendale Woolen Company, 
 dated nth September, 1848, and expired nth 
 September, 1849, — being for one year. The 
 survey was, by agreement, made a part of the 
 policy, but it is to be noted that there was no 
 agreement or condition in the policy, making 
 the survey and its statements a warranty. The 
 case turned upon the point raised upon these 
 questions and answers: Is there a watchman 
 in the mill during the night ? Is there also 
 a good watch-clock ? Answer : There is a 
 watchman nights — no clock — bell is struck every 
 hour from eight p. m. till it rings for work in the 
 morning. Is the mill left alone at any time 
 after watchman goes off duty in the morning, 
 till he returns to his charge in the evening? 
 Answer : " Only at meal times, and on the 
 
WARRANTY IX FIRE INSURANCE. 117 
 
 Sabbath, and other days when the mill does 
 not run ; " which, the company contended, 
 formed a warranty covering the contract dur- 
 ing the running of the risk — for one year. 
 The factory and its contents were burned on 
 8th April, 1849. When defendant was inquir- 
 ing into the facts of the fire, its agent learned 
 that no watchman was accustomed to be in 
 said factory from 1 2 o'clock on Saturday night 
 till 1 2 o'clock on Sunday night, and that the fire 
 occurred while no watchman was in the build- 
 ing. The defendant refused to pay the loss, 
 because there was a breach of the warranty, as 
 was proved by these facts. 
 
 The court below held that the survey and 
 its statements did not constitute a warranty, 
 and therefore the insured were not bound to 
 keep a watchman in the factory from 1 2 o'clock 
 Saturday night till 1 2 o'clock Sunday night. 
 
 After deciding that the survey and its state- 
 ments constituted a warranty, and that it made 
 
118 WARRANTY IN FIRE INSURANCE- 
 
 no difference as to the rights and duties of the 
 parties whether it was promissory or affirma- 
 tive in its nature, the court held, '"the clause 
 of the survey being a warranty, it then be- 
 comes important to ascertain its construction, 
 in order to determine whether it has been 
 broken." " It was of the highest importance 
 to the insurer, in order that it might be able, 
 intelligibly, to decide whether it would assume 
 the risk, — or, if assumed, to fix the premium to 
 be charged, — to know whether a watch was 
 kept in the factory proposed to be insured, at 
 what time such watch was kept, and the means, 
 if any, of determining whether he discharged 
 faithfully his duty." It seems to be quite clear 
 that the answer, " there is a watchman nights," 
 is to be understood to mean that there was a 
 watchman in the factory every night 
 
 The next inquiry in order is, has the war- 
 ranty been broken? On this subject there is 
 no dispute. It is conceded by the defendant 
 
WARRANTY IN FIRE INSURANCE. 119 
 
 that if the answer to the question as to the 
 watchman, can not be construed as it was con- 
 strued by the learned judge at the Circuit, then 
 it was broken, because it is true that no watch 
 was kept from 12 o'clock on Saturday night 
 until T2 o'clock on Sunday night. The effect 
 of the breach of the warranty is to annul the 
 policy, without regard to the materiality of the 
 warranty, or whether the breach had anything 
 to do in producing the loss. " In no aspect of 
 the case am I able to discover any ground on 
 which this action can be maintained." 
 
 This case was decided by Judge Mullin on 
 the very nature in law of what is meant by a 
 warranty in a Fire Insurance contract. The 
 present tense is again used in the question, 
 without any reference as to what would be 
 the habit, conduct, custom or regulation in the ■ 
 future as to the care or supervision of the 
 property insured. The care then used, and 
 the means then employed, to protect the prop- 
 
120 WARRANTY IN FIRE INSURANCE. 
 
 erty insured,— to prevent it's taking fire, or to 
 give an early alarm in case it did,, were the 
 factors "in making the estimate for the premium 
 to be charged ; they entered into the risk, and 
 fixed in some measure its nature and class. If 
 they regulated the premium to be charged, did 
 they regulate It for a day — the day the policy 
 issued — or for the entire contract, as long as 
 that risk ran and the company was responsible 
 for a loss under it? If this care and the means 
 described, as set forth in the survev, were not 
 to be predicated of the contract during ' its 
 entire life, it was a great folly to ask those 
 questions in order to ascertain a basis upon 
 which to, estimate a premium to be charged for 
 carrying a risk for one year, when that care 
 could in law cease on that day, if this warranty 
 was only in presenti or this statement only an 
 affirmative representation. 
 
 The American Insurance Company vs. Fos- 
 ter, 92 Illinois, 334. 
 
WARRANTY IN FIRE INSURANCE. 121 
 
 Insurance was on a school-house and school 
 furniture therein belonging to appellee; policy 
 was issued on 21st November, 1871, to run for 
 five years ; house was burnt 14th October, 
 1876. The case was tried on these agreed 
 facts : The house, when insured, was occupied 
 as a school-house ; after April, 1875, no school 
 was held in it; furniture was removed from it, 
 and it was rented and used as a dwelling- 
 house ; the building was last occupied as a 
 dwelling-house in April, 1876, and ever after- 
 wards was vacant and unoccupied. The policy 
 contained the usual condition, that if house 
 became vacant and unoccupied it was to be 
 void. 
 
 The court held : " It is, however, contended 
 that as the building was insured as a school- 
 house, and the company knew it was to be so 
 used, it may be inferred that it was intended to 
 be vacant and unoccupied as common public 
 school-houses usually are in vacation; that all 
 
122 WARRANTY IN FIRE INSURANCE. 
 
 know that the common school-houses of the 
 country are not continuously occupied, and it 
 must be inferred that occupancy of that char- 
 acter was intended. If such had been the 
 intention of the parties they would, no doubt, 
 have so written the condition, and the bare 
 reading of the language repels such an infer- 
 ence. The language requires a continuous and 
 uninterrupted occupancy, at least of the char- 
 acter usual to houses occupied for schools." 
 " It may be, and probably is, true, that there 
 being no person in the building of nights, and 
 Saturdays and Sundays, would not amount to 
 a breach of the condition and avoid the policy, 
 as such is the usual manner of occupying 
 school-houses." 
 
 On the surface, this case would fall within 
 the discussion of the second branch of this 
 subject, which is compliance with the warranty, 
 but taken down to its last analysis it means 
 that the house must have been occupied as a 
 
WARRANTY IX FIRE INSURANCE. 123 
 
 school-house in the way such houses are usually 
 occupied, continuously during the running of 
 the risk, and that a change in the occupancy, 
 by substituting one kind for another, would 
 hot have complied with the policy. The risk 
 was taken on a school-house and not on any 
 other kind of a house, and therefore its nature 
 and uses controlled the manner of occupancy. 
 
 -Kenneday and others vs. The St. Lawrence 
 County Mutual Insurance Company, 10 Bar- 
 bour (X. Y.), 285. 
 
 The insurance was upon a stock of goods, 
 and question turned upon the application form- 
 ing a part of the policy, and thereby making a 
 warranty. 
 
 The court, after deciding that by being 
 made a part of the policy the application con- 
 stituted a warranty as much as if incorporated 
 in the policy, and formed a component part of 
 it. held as follows : " If the matter stated in the 
 application was to be treated as a representa- 
 
124 WARRANTY IN FIRE INSURANCE. 
 
 tion, and was shown to be false, it would affect 
 the validity of the policy merely, on the ground 
 of fraud, and not on account of the breach of a 
 condition precedent. Treating it as a mere 
 fraudulent representation there would be force 
 in the averment that the defendant's agent 
 knew of the evidence of the fact, the conceal- 
 ment of which was made the subject of com- 
 plaint. But a representation and a warranty 
 are essentially different things, and call for the 
 application of different rules of law. " 
 
 Mr. Amos Dean, in his Commercial Law, 
 p. 331, sec. 588, says: "A representation, in a 
 fire insurance policy, no more than in a marine, 
 is not to be taken as a part of the contract but 
 is collateral to it, has none of the qualities of a 
 warranty, and requires to be only substantially 
 correct." 
 
 If these last authorities are correct in de- 
 ciding that there is an essential difference 
 between a representation and a warranty in 
 
WARRANTY IN FIRE INSURANCE. 125 
 
 the Fire Insurance contract, what is that differ- 
 ence, or in what does it consist ? What are 
 the different rules of law applicable to each ? 
 An affirmative representation refers to the con- 
 dition of the property insured at the date the 
 policy is issued, and to that exclusively. 
 
 A warranty in presenti refers to the same 
 condition. There is no difference in the nature 
 of a representation and a warranty in presenti, 
 as there is ample authority to prove — in fact, 
 it is overwhelming in quantity — to sustain this 
 principle of law as being sound and the only 
 true principle applicable to this subject. As 
 to what is technically called a promissory 
 warranty, I think the authorities will show that 
 it is in its legal nature only an executory 
 contract attached to and made a part of the 
 policy to be fulfilled during the running of the 
 risk. The policy is issued and is valid and 
 binding, but can be avoided or nullified by the 
 non-performance of this executory agreement. 
 
126 WARRANTY IN FIRE INSURANCE. 
 
 The performance of this agreement is sub- 
 sequent to the issuance of the policy. A 
 promissory representation relates, like the 
 promissory warranty, to the future, and must 
 be incorporated in the policy in order to be 
 binding, because otherwise the contract will be 
 partly verbal and partly written, which would, 
 if permitted, overrule well established principles 
 in the general law of contracts and of evidence. 
 I have already given some cases establishing 
 this principle. A promissory representation 
 must be incorporated into the policy, and being 
 thus attached to the contract and being a 
 promise to be performed in the future, it is 
 really in law an executory agreement. The 
 authorities to be adduced on the nature of a 
 promissory warranty will show that there is no 
 legal distinction or difference in the law or in 
 the nature of a promissory warranty and a 
 promissory representation. They are each 
 and both simply executory agreements to be 
 
"WARRANTY IX FIRE INSURANCE. 127 
 
 performed subsequently to the date of the 
 policy. The trouble as heretofore stated has 
 arisen in a great measure from the use of 
 words without a meaning, or in hasty opinions 
 of judges, or in the distinctions of text writers 
 who have taken their authorities at second 
 hand. The essential difference between a 
 warranty and a representation is the difference 
 between a contract and the evidence upon 
 which the contract was formed. A represen- 
 tation is evidential; a warranty is contractual. 
 
 Miller vs. The Mutual Benefit Life Insur- 
 ance Company. 31 Iowa, 226. 
 
 The court held: "A warranty differs from a 
 representation in two essential aspects. First, 
 a warranty constitutes a part of the contract, 
 and it is necessary that it should be exactly 
 and literally complied with ; but a representa- 
 tion is collateral to the contract, and it is suf- 
 ficient if it be equitable and substantially 
 complied with. Second, in a case of warranty, 
 
128 WARRANTY IN FIRE INSURANCE. 
 
 the burden of proof is upon the party seeking 
 indemnity to establish a case in all respects in 
 conformity with the terms under which the risk 
 was assumed; but in case of a representation 
 the burden is cast upon the defendant to set 
 forth and prove the collateral facts upon which 
 he relies." 
 
 In the case of Daniels vs. Hudson River 
 Fire Insurance Company, 12 Cushing, 416, 
 Shaw, Ch. J., very clearly and forcibly illus- 
 trated the distinction between a warranty and 
 a representation. He said: "The difference 
 (between a warranty and a representation) is 
 most essential. If any statement of fact, how- 
 ever unimportant it may have been regarded 
 by both parties to the contract, is a warranty 
 and it happens to be untrue, it avoids the 
 policy. If it be construed as a representation, 
 and is untrue, it does not avoid the contract, if 
 not willful or if not material. To illustrate this, 
 the application in answer to a question is this, 
 
■WARRANTY IX FIRE INSURANCE. 129 
 
 'ashes are taken up and removed in iron hods,' 
 whereas, should it turn out in evidence that 
 'ashes were taken up and removed in copper 
 hods,' perhaps a set recently purchased and 
 unknown to the owner. If this was a warranty 
 the policy is gone; but if a representation it 
 would not, we presume, affect the policy, be- 
 cause not willful or designed to deceive, but 
 more especially because it would be utterly im- 
 material, and would not have influenced the 
 mind of either party in making the contract, or 
 hi fixing its terms. " 
 
 If there is not this essential difference 
 between a warrant)- and a representation, why 
 cannot the policy substitute wooden hods for 
 iron ones? The removal of ashes was not the 
 only object in this requirement, and there are 
 cases allowing a substantial compliance to be 
 all that is necessary when it was held that the 
 kind of hod used was only a representation, 
 and the substitution of copper for iron hods 
 
130 WARRANTY IN FIRE INSURANCE. 
 
 (being equally safe), was a substantial compli- 
 ance with this representation. And; again, 
 why is the burden of proof cast upon the 
 policy-holder to show that his case conforms or 
 comes within the limits, in all respects, of the 
 terms under which the risk was assumed? If 
 the warranty refers to the condition as existing 
 on the day and date of the insurance, what has 
 the conformity with those terms to do with the 
 risk assumed after that date? Does the in- 
 demnity apply only to that day, and making it 
 a warranty in presenti, or does the demand for 
 indemnity continue till the expiration of the 
 time, and running with the risk, and requiring 
 the policy-holder to prove the terms under 
 which the risk was assumed were kept by him 
 up to and on the day of the fire ? If so, under 
 these principles, there cannot be in a Fire In- 
 surance Contract a warranty that is descriptive 
 of the property insured, or of the property 
 itself, on the day of insurance, and that does 
 
WARRANTY IN FIRE INSURANCE. 131 
 
 not operate upon the terms of the contract after 
 that day and date. In the case of Gilliat Trus- 
 tee vs. Pawtucket Mutual Fire Insurance Com- 
 pany, 8 Rhode Island, 293, it was held: "The 
 original application asked for insurance upon 
 the applicant's dwelling-house. This was the 
 kind of property proposed to be insured. The 
 policy would not cover a building of any des- 
 cription — a barn, storehouse, workshop, mill, 
 or the like— and were the dwelling-house con- 
 verted into either of these the policy would 
 become void. It must continue to answer that 
 description of a dwelling house." 
 
 In the case of N. Sheldon vs. The Hartford 
 Fire Insurance Company 245, the court held: 
 " We are persuaded the view taken by the 
 defendant's counsel is the true one. All the 
 survey, as much as any part of it, is incorpor- 
 ated into the policy of insurance, and con- 
 stitutes the conditions of the plaintiff's contract; 
 and hence every part applicable to the subject 
 
132 WARRANTY IN FIRE INSURANCE. 
 
 matter (and the eighth interrogatory certainly 
 is) is to be regarded as obligatory on the in- 
 sured whether the survey is to be held a 
 warranty, as in the policy, or a representation 
 material to the risk, to be substantially kept 
 and performed, which latter is the character we 
 are inclined to give it. We know no reason 
 why a writing intended to be a part of a contract 
 may not be held to be incorporated into it, by 
 a proper reference as well as by an extended 
 recital. The reference, in this case, in our 
 judgment is of such a character. It was made 
 we think to show what then were and should con- 
 tinue to be the stipulations of the plaintiff's, 
 touching the property insured. " 
 
 Judge Ellsworth evidently pays but little 
 regard to technical names, if only he can get 
 at the essential nature of things and decide his 
 case on the right principle. 
 
 I desire now to offer one or two cases show- 
 ing why it has been held that an house insured 
 
WARRANTY IN FIRE INSURANCE. 133 
 
 as occupied must continue to be occupied, and 
 that the continuance of that occupancy was 
 estimated in fixing the terms of the contract 
 and the rate of premium charged, and related 
 to the risk assumed. What is said of this 
 factor in the estimate of the premium, and of 
 the nature of the risk is true of any and all 
 Fire Insurance contracts where the uses of the 
 property insured enter into the risk and the 
 terms of the policy. 
 
 y£tna Insurance Company vs. Meyer, 63 
 Indiana, 240. 
 
 " Here, a tenant house is insured for a year. 
 A change of tenants during the time is not 
 prohibited, and might naturally be expected. 
 Short intervals in which the property would be 
 vacant might naturally occur. The contract 
 (the policy) provided that when they did occur 
 the policy should not be operative during their 
 existence. The rate of insurance, we may pre- 
 sume, was less than it would otherwise have 
 been in consequence of this provision." 
 
134 WARRANTY IN FIRE INSURANCE. 
 
 Sleeper vs. N. H. Fire Insurance Company. 
 56 New Hampshire, 401. 
 
 Insurance was upon a house occupied by a 
 tenant, who left house in July, 1871, but paid 
 rent to May, 1872, only a portion of the furni- 
 ture remaining in the house. In case of va- 
 cancy the policy was to be void. The court 
 decided that both as a question of law and of 
 fact the house was vacant, and then held: "The 
 contract is to have a reasonable interpretation 
 according to the ordinary acceptation of the 
 language used. It is apparent the insurers 
 intended to guard against the increased risk 
 which inevitably affects buildings where no one 
 is living or carrying on any business. An 
 unoccupied building invites a shelter to wan- 
 derers and evil - disposed persons. No one 
 interested is present to watch or care for the 
 property, or seasonably extinguish the flames 
 in case of fire; and for various reasons that 
 might be enumerated, an unoccupied building 
 
WARRANTY IN FIRE INSURANCE. 135 
 
 is more exposed to destruction, to say nothing 
 of the inducement a dishonest owner would 
 have to turn it, if unprofitable, into money when 
 insured, by becoming a party to its destruction 
 by fire." 
 
 Alston and wife vs. the Old North State 
 Insurance Company. 80 North Carolina, 326. 
 
 "It is made an essential condition of the 
 contract that the property should not be ex- 
 posed to the perils of an unoccupied tenement 
 without the fact being communicated to the 
 insured, and the consent of the company ob- 
 tained and endorsed by an entry on the policy. 
 This is a just and reasonable precaution against 
 an increased risk without an increased pre- 
 mium, and a substantial and important element 
 of the contract. The danger to unoccupied 
 buildings is certainly greater in the absence of 
 any one to protect them, or to extinguish the 
 fire at the beginning, or to detect and punish 
 
136 WARRANTY IN FIRE INSURANCE. 
 
 the incendiary; and this is quite manifest from 
 the facts of the present case." 
 
 I purpose to discuss a few cases in which 
 the doctrine of warranty in presenti has been 
 distinctly held and distinguished from a prom- 
 issory warranty. It will illustrate many phases 
 of this important question, and will point its 
 own moral. Whenever the facts are necessary 
 to a right understanding of the questions, they 
 will be given as fully as they are needed for 
 that purpose. 
 
 Smith vs. Mechanics and Traders Insurance 
 Company. 33 New York, 401. 
 
 " The statement of the policy that the build- 
 ing insured was 'used for winding and coloring 
 yarn, and for storage of spun yarn,' was un- 
 doubtedly a warranty of its then present use." 
 The judge refers to these two cases only to 
 support that principle — Jenkins vs. Chenango 
 Mutual Insurance Company, 2 Denio, 75, and 
 Wall vs. the East River Insurance Company, 3 
 
WARRANTY IN FIRE INSURANCE. 137 
 
 Selden, 370, and holds as follows: "That is all 
 that is settled by the above cases. But there 
 is no pretense that the building in this case was 
 not used at the time of insurance precisely as 
 stated, and, therefore, none for saying that the 
 warranty was broken in presenti, as it was in 
 the cases cited." In those cases the phrase, 
 warranty in presenti, was really used as synony- 
 mous with ".an affirmative representation," and 
 being untrue at the time of the insurance, the 
 policy-holder could not recover. The judge in 
 this case has unconsciously used them in the 
 same sense, and has given them in reality the 
 same effect upon the contract. " The only 
 question, therefore, on this part of the policy 
 is whether it contains a warranty that the build- 
 ing during the continuance of the policy should 
 be used only for winding, coloring and storing 
 yarn, with the fixtures and machinery then in 
 it " In support of his theory, he cites the 
 O'Neil case in 3 Comstock, 122, and the Catlin 
 
138 WARRANTY IN FIRE INSURANCE. 
 
 case, i Sumner, 435, neither' of which sustain 
 him. In the O'Neil case the building was- der 
 scribed as occupied at present by the Hon, 
 George J. Goodhue as a private dwelling, and 
 in the Catlin case as "at present occupied by Joel 
 Roger as, a dwelling-house." The judge in 
 each case correctly decided that the words; were 
 used as marks of description to identify -the 
 property insured. The words of themselves 
 exclude the future. But the judge goes one 
 step farther towards answering himself, and 
 holds : " When there is such a warranty as to 
 future use, the designated use must continue, or 
 the warranty will be broken, for courts have no 
 right to say that the insured may abandon the 
 particular use or occupancy and allow the 
 premises to lie vacant or idle, for the very act 
 of requiring such a warranty is conclusive that 
 the insured considered the continuance, of the 
 designated use or occupancy material to the 
 risk, and made his contract accordingly. " The 
 
WARRANTY IX FIRE INSURANCE. 139 
 
 word " insured " is evidently, from the text, a 
 misprint for the word " insurer." If, then, the 
 insured can get from the insurer, or the insurer 
 gives to the insured, an insurance upon a certain 
 house used for a certain specified purpose, for 
 which a certain rate is charged because of that 
 particular use, and the courts decide that the truth 
 of that statement at the time of the insurance 
 is all that is required under that policy, have 
 not the courts authorized the insured to aban- 
 don the particular use the next day, or at any 
 future time, and allow the premises to be vacant 
 and idle, or even to change them into a use not 
 insured, and for which a different rate would 
 have been charged? The principal element in 
 the estimate of the rate to be charged for the 
 insurance or risk on the house so used, was that 
 particular use to which it was then devoted, 
 and the rate was not calculated upon the theory 
 that it would not be so used in the future, but 
 that the use then charged for would be con- 
 
140 WARRANTY IN FIRE INSURANCE. 
 
 tinued and not changed. Upon what other 
 grounds are the rates on this particular use cal- 
 culated? Why did the property-holder insure 
 this particular use? Was it as a means for a 
 fraud on the insurer by changing the use of 
 the premises to a different one not mentioned 
 by him, and therefore not insured, or to let the 
 house be vacant and idle — without any use 
 whatever? In a word, do not the courts by 
 such decisions as these make contracts for the 
 parties which they did not, and upon which 
 their minds did not meet ? If the principle 
 here decided is good law, what hold has the 
 insurer upon the insured to make him keep his 
 contract of insurance? What can restrict the 
 use of the property during the running of the 
 risk except the use described and insured, and 
 for which, and none other, in the event of a 
 loss, the company have agreed to pay? Hom- 
 ilies to insurance companies to guard them- 
 selves well by words and conditions cannot 
 
WARRANTY IX FIRE INSURANCE. 141 
 
 forestall or prevent such decisions as these. 
 Nothing but sense and conscience can prevent 
 the injustice flowing from the misconstruction 
 of a contract by substituting another contract 
 for the one made by the parties. In this case 
 the warranty was confined to the day the policy 
 issued — it did not cover the contract or run 
 with the risk. The limit of the contract was 
 ignored in order to reduce the warranty in the 
 contract to an affirmative representation upon 
 which the policy was written by the under- 
 writer. 
 
 Schmidt vs. Peoria Marine and Fire In- 
 surance Company. 41 Illinois, 207. 
 
 Facts — Insurance was upon a tannery in the 
 city of Chicago, the policy contained these 
 words, no fire in or about said building except 
 one under kettle securely imbedded in masonry 
 (used for heating water), and made perfectly 
 secure against accidents, and was issued 16 
 September, 1864: fire occurred in March, 
 
142 WARRANTY IN FIRE INSURANCE. 
 
 1864, at which time there were two stores in 
 the building — one upstairs and the other on 
 the first floor, one being used the day before 
 the fire and the other for eight days previous 
 to the fire. 
 
 The company contended that under this 
 policy these words formed a warranty that 
 there should be no fire during the continuance 
 of the policy, except the one under the kettle, 
 and by the plaintiff that they were merely an 
 affirmative, as distinct from a promissory war- 
 ranty and are to be construed as referring to 
 the condition of the property at the time the 
 policy was issued. 
 
 The court held : " It is a question upon 
 which the authorities differ ; but in view of 
 the fact that insurance companies dictate the 
 language of their own policies, which is there- 
 fore to be construed most strongly against 
 themselves, and can, if they wish, insert a 
 stipulation, which in terms refers to the future 
 
WARRANTY IX FIRE INSURANCE. 143 
 
 use of the property, and do, by an express 
 provision in this, as in we presume, all policies, 
 relieve themselves from all liability in case the 
 risk is actually increased, we are inclined to 
 adopt the ruling of those cases which hold that 
 these words are to be construed in reference 
 to the condition of the property. " 
 
 The authorities upon which this ruling is 
 based are the Smith case immediately preceding 
 this one in use, the O'Neil case and the Catlin 
 case (both of which have been under discus- 
 sion). 
 
 Blood vs. Howard Fire Insurance Company, 
 1 2 Cushing, 474, and Rafferty vs. New Bruns- 
 wick Insurance Company, 3 Harrison, 480. 
 In the O'Neil and Catlin cases the words were 
 intentionally descriptive — to identify the prop- 
 erty insured. In the Smith case I pointed out 
 the fallacy in the argument which rests on these 
 cases. The same line of thought as to what 
 insurance companies should do to protect their 
 
144 WARRANTY IN FIRE INSURANCE. 
 
 interests runs through nearly all these cases, or 
 in some way colors the opinion of the court, 
 reaching the same conclusion. It is very re- 
 markable that the insurance companies have 
 constantly modified or adopted their language 
 to meet the demands of the courts in their con- 
 struction of warranty and representation, and 
 it is equally remarkable the courts have changed 
 their rulings to escape the modifications in the 
 new policies, thus rendering it impossible, for the 
 companies to keep pace with the courts. In this 
 case, here is a detailed statement of the way in 
 which this fire is located, and how it is protected 
 to prevent accidents, and evidently regulated the 
 rate or premium charged for the risk, and yet 
 the judge decides that if the company desired, 
 it could provide against an increase of risk by 
 an express provision as to the future use of the 
 property. How ? In what way that a court 
 could not nullify it, as in this instance? Here 
 was an actual increase of risk, as the proof 
 
WARRANTY IN FIRE INSURANCE. 145 
 
 showed, by the use of two stores in different 
 parts of the building neither of which was 
 allowable under the policy, and that increase 
 was an actual fraud on the part of the property- 
 owner, bringing his conduct clearly within the 
 rule laid in the Stebbins case. If there had not 
 been an intention to exclude all fires but the 
 one under the kettle, the policy-holder ought 
 to have contracted for their use, or rather he 
 ought not to have agreed to specify one de- 
 scribing it, and to confine himself to that one. 
 The contract is a contract of indemnity, but 
 upon indemnity according to its specified terms 
 and conditions. Expressio iinius est exclusio 
 alte rius. 
 
 O'Neill vs. Buffalo Fire Insurance Company, 
 3 Comstock, N. Y., 122. 
 
 Insurance was upon an house described as 
 follows: Two-story frame building, fronting on 
 Ridout and Market streets, in the town of 
 London, Canada West, occupied by the Hon. 
 
146 WARRANTY IN FIRE INSURANCE. 
 
 George J. Goodhue, as a private dwelling — 
 insurance for one year from 25 April, 1847, on 
 which policy bears date; house was burned on 
 6 December, 1847: Goodhue ceased to occupy 
 the house about three weeks before the fire. 
 The court held: "Assuming that there was a 
 written application by plaintiff, describing the 
 house as occupied by Goodhue, the description 
 in the policy must be regarded as a warranty 
 of the fact that he was the occupant at the date 
 of the ^policy and nothing more. The de- 
 scription imports nothing more. A warranty 
 may be either affirmative as when the insured 
 undertakes for the truth of some positive alle- 
 gation ; or promissory as when the insured 
 undertakes to perform some executory stipu- 
 lation. Here was an affirmative stipulation 
 that the house was then occupied by Goodhue, 
 but not a promissory agreement that he should 
 continue to occupy it. If it had been the 
 intention of the parties to make it a condition 
 
WARRANTY IX FIRE INSURANCE. 147 
 
 that he should remain the occupant during the 
 term of the insurance, it would have been easy 
 to say so, and there is no good reason in this 
 case for supposing the parties intended what 
 they have not expressed. In the case under 
 consideration, there is nothing in the contract 
 of insurance or in the evidence to show that the 
 hazard on the house was greater when vacant 
 than if it had been occupied by Goodhue. The 
 rate of insurance is not usually made to depend 
 on such a circumstance, and the continuance of 
 Goodhue's occupation as tenant not being em- 
 braced within the words of the warranty, and 
 not being manifestly material to the risk, cannot 
 be brought within it by inference or implica- 
 tion." 
 
 The company contended that there was a 
 warranty in this contract, and that the house 
 was insured not as a vacant building but as a 
 private dwelling, occupied by Goodhue, and 
 that it was suffered to become vacant without 
 
148 WARRANTY IN FIRE INSURANCE. 
 
 the assent of the insurers. Upon the principles 
 laid down by the judge, the conclusion is 
 clearly wrong. He has confused a warranty 
 with an affirmative representation. If there is 
 any difference in law between a warranty and 
 a representation, and if there was a warranty 
 in this contract, then the company was right, 
 and the plaintiff had no right to recover, be- 
 cause the rate of insurance was calculated upon 
 an occupied house and not on a vacant build- 
 ing. But if the judge had held that the insur- 
 ance was upon a private dwelling which was 
 occupied by Goodhue, and that this description, 
 simply used to identify it, was merely an affirm- 
 ative representation, his conclusion would have 
 been correct and logical from his reasoning. 
 The occupation of Goodhue did enter into the 
 premium, and was manifestly material to the 
 risk, because upon these very circumstances are 
 rates calculated upon houses, vacant or occu- 
 pied, and upon none other, or there would not 
 
WARRANTY IN FIRE INSURANCE. 149 
 
 be one rate upon a vacant house and a lower 
 rate upon an occupied house upon which the 
 risk is less than upon the former, and has been 
 so judicially decided. After deciding that this 
 description was only intended to be a warranty 
 in presenti, he could escape from his own prop- 
 osition only by taking the erroneous position 
 that the occupancy of Goodhue was not 
 material to the risk, and, therefore, had not 
 been considered by the company in fixing the 
 rate to be charged. The judge fully appreciated 
 the military necessities of the conclusion he 
 had determined to reach, for when he under- 
 took to discuss the law applicable to warranty 
 in marine policies, he expressed these signifi- 
 cant ideas: "If a fact be in plain terms, ex- 
 pressly warranted, its materiality to the risk is 
 of no importance; it becomes a condition prec- 
 edent, although entirely immaterial. But where 
 a circumstance is sought to be included by 
 implication in the warranty, it can never be 
 
150 WARRANTY IX FIRE INSURANCE. 
 
 supposed that the parties intended to include 
 it unless it be manifestly material to the risk. " 
 In this case there was no chance for implication 
 or ground for an inference; the words were 
 plainly expressed in the warranty if there was 
 one. The judge had prepared his mind for a 
 temporary leave of absence from good law and 
 it must take it. The word " warranty " seems 
 to possess an indescribable and magnetic charm 
 for some judicial minds, and it does sound 
 more learned than the simple word "a repre- 
 sentation." The tenants left this house only 
 three weeks before the fire, having occupied it 
 from the date of its insurance, to wit: 26 April, 
 1847, till the day of the fire, to wit: 6 Decem- 
 ber, 1847, tne policy by its terms expiring on 
 26 April, 1848. Suppose this tenant had left 
 the house on 27 April, 1847, ar >d it had re- 
 mained vacant until the 20 April, 1848, six 
 days before the expiration of the contract, what 
 conclusion would this judge have reached, in 
 
WARRANTY IX FIRE INSURANCE. 151 
 
 view of the important and pivotal fact that the 
 property-owner had bought and the company 
 had sold insurance upon an occupied house at 
 one rate because it was so occupied, but were 
 asked or rather sued to pay a loss upon a 
 vacant house, the rate upon which >he had not 
 paid, and upon which the company had not 
 agreed to take a risk ? The company was 
 bound by contract upon an insurance and risk 
 on an occupied house and none other. 
 
 Catlin vs. The Springfield Fire Insurance 
 Company, i Summer, C. C, 435. 
 
 Insurance was upon "a dwelling-house, barn 
 and shed, etc., situated in the Town of Burling- 
 ton, etc., at present occupied by one Joel 
 Rodgers, but to be occupied hereafter as a tav- 
 ern, and is privileged as such. " This case was 
 decided by Judge Story. The company de- 
 clined to pay, giving as its reason that the 
 building was insured to be occupied, that it had 
 been a long time deserted, vacant, etc., and if 
 
152 WARRANTY IN FIRE INSURANCE. 
 
 it had been occupied the loss could not have 
 happened from the cause which destroyed it. 
 
 The court held : " What the court did say to 
 the jury on this point was that these words did 
 not constitute a warranty that the house should, 
 during the continuance of the risk, be constantly 
 occupied as a tavern, but that the language was 
 at farthest a mere representation of the inten- 
 tion to occupy it as a tavern, and to secure for 
 it the privilege of the policy as such. And I 
 am, upon further reflection, clearly of opinion 
 that the direction was right." Judge Story, in 
 stating the evidence upon which he makes this 
 construction of this contract, says: " In point 
 of fact, as the survey, made by the company's 
 own agent and on which the policy itself was 
 underwritten states, it was to be occupied in 
 the course of two or three days by the said 
 Hayden and Hobart for the purpose of keep- 
 ing a tavern." Taking the policy and proof 
 together, Judge Story decides that "it was not 
 
WARRANTY IN FIRE INSURANCE. 153 
 
 then a warranty of the assured that it should 
 be at all times during the risk occupied as a 
 tavern, but a license or privilege granted by 
 the company that it might be so occupied. 
 Suppose a policy against fire, underwritten on 
 the house of A in Boston, described as a dwell- 
 ing-house or as occupied as a dwelling-house; 
 would the policy be void, if the house should 
 cease for a time to have a tenant? Such a doc- 
 trine has never, to my knowledge, been assert- 
 ed; nor should I deem it maintainable." 
 
 Judge Story delivered this opinion at the 
 October term, 1838, and since that time it has 
 been frequently so asserted. This opinion has 
 been constantly referred to as upholding the 
 doctrine of the warranty in presenti, and 
 although it does not assert any such principle, 
 it does not announce the principle of warranty 
 as is contended for herein. 
 
 Let us analyze Judge Story's statement in 
 the light of the evidence and of the contract 
 as set forth in his opinion. 
 
154 WARRANTY IN FIRE INSURANCE. 
 
 First — The house is described as a dwelling- 
 house. 
 
 Second — It is described as occupied. 
 
 Third — It is described as occupied at that 
 time as a dwelling-house by one Rodgers. 
 
 Fourth — It is described to be occupied 
 thereafter as a tavern. 
 
 Fifth — It was for that reason to be privi- 
 leged as a tavern. 
 
 According to the facts given in evidence, 
 Hayden and Hobart were to occupy in two or 
 three days for the purpose and use of keeping 
 a tavern therein. Admitting the full force of 
 the words '* at present " in connection with the 
 occupancy and description of the house, and 
 that being restrictive in their manifest meaning 
 as here used, they would bring this stipulation 
 from a warranty, running with the risk to the 
 expiration of the policy, down to a representa- 
 tion, of which the law requires only that it shall 
 be true at the day and date of the issuance of the 
 
WARRANTY IN FIRE INSURANCE. 155 
 
 policy. Now, what is the meaning and force of 
 the words, "but to be occupied hereafter as a tav- 
 ern "? These words are prospective; they look 
 and refer to the future only. From the evi- 
 dence the house had been rented as a tavern, 
 and was, by agreement, to be occupied as such. 
 The policy was issued on that agreement, and 
 it so states in express words or terms — " privi- 
 leged as such." Upon these facts and condi- 
 tions the rate was calculated and the risk 
 undertaken. The words, " but to be occupied 
 hereafter as a tavern, " construed in connection 
 with the statement as to the present occupation 
 of the house, and in the light of the evidence, 
 these words form an executory agreement 
 which, if not kept, rendered the policy null and 
 of no effect. It was valid and binding when 
 formed, but depended upon a future or subse- 
 quent performance, without which the policy- 
 owner could not recover. The policy cannot 
 mean anything else — the parties thereto can- 
 
156 WARRANTY IN FIRE INSURANCE. 
 
 not have intended anything else. Judge Story 
 simply set aside the contract upon which the 
 minds of the parties had met and formed for 
 them one they had not intended, and upon which 
 the company had not agreed to take a risk, and 
 for which it did not receive any consideration. 
 In the language of the books, these words 
 made a promissory warranty or a promissory 
 representation, but according to Judge Story, 
 they were merely " the representation of the 
 intention." But the property owner expressed 
 his intention as to his house, and agreed to put 
 that intention into an act, and the company 
 agreed that if he did, it would be responsible 
 for the loss of the house if it was burned dur- 
 ing the existence of the policy. The owner 
 did not keep his contract, but yet Judge Story 
 decided the company must pay the loss because 
 it was a contract valid and binding even if 
 its conditions were not fulfilled. 
 
WARRANTY IN FIRE INSURANCE. 157 
 
 Fowler and others vs. the ^Etna Fire Insur- 
 ance Company. 6 Cowen, 673. 
 
 Insurance was upon stock in trade, consist- 
 ing - , etc., contained in a two-story frame house 
 filled in with brick, situated, etc. 
 
 The evidence showed that the house was a 
 wooden building" with hollow walls, and not 
 filled in with brick. The court held: " In this 
 case the plaintiffs ought to have known the 
 true state and condition of their house, and 
 have truly represented it. Not having done so, 
 they fail in their action. The property burned 
 is not the property insured." 
 
 This case presented only one question — the 
 truth or falsity of the representation as to the 
 nature and structure of the house. And so 
 the judge at last decided after attempting a 
 very learned discussion of the nature of a war- 
 ranty in fire and marine insurance. There was 
 no warranty in the case. The minds of the 
 parties had not met on this contract. The 
 
158 WARRANTY IN FIRE INSURANCE. 
 
 house insured was not the house that was 
 burned. It was simply a technical affirmative 
 representation, which being false, rendered the 
 policy void, and yet it is constantly quoted to 
 support the doctrine of warranty in presenti as 
 distinguished from an affirmative representa- 
 tion, or that an affirmative warranty must refer 
 exclusively to the condition of the property 
 at the date of the policy. 
 
 I purpose now to discuss the doctrine of the 
 promissory warranty, and of the promissory 
 representation, to show that they are the same 
 in law and are in effect, and in law executory 
 agreements. The use of the words warranty 
 and representation is unquestionably erroneous, 
 and does not express the legal idea intended 
 to be conveyed, and still less are they express- 
 ive of or applicable to the legal principles 
 involved. 
 
 If one represents or warrants to another 
 that he will do, or promises to do, or agrees not 
 
WARRANTY IN FIRE INSURANCE. 159 
 
 to do, or to omit doing a certain act in the 
 future upon which any legal liability arises, or 
 can be predicated, he has simply made an 
 executory agreement, to be performed or omit- 
 ted in the future. He has not warranted any- 
 thing. He has not represented anything. He 
 has made an agreement, the performance of 
 which is yet in the future. Justice Gray, in the 
 Kimball case, heretofore referred to, says a 
 promissory representation is a promise to be 
 performed in the future, and if there is a con- 
 sideration to support it, it is of course binding 
 in law. 
 
 Justice Gray's definition of a promissory 
 representation if it is coupled to or with a consid- 
 eration, is a very good definition of an execu- 
 tory agreement, and for this reason it is not 
 binding or of any effect in law, unless it is 
 attached to or incorporated into the policy or 
 insurance contract in such a way as to be 
 supported by the consideration which upholds 
 
160 WARRANTY IN FIRE INSURANCE. 
 
 the policy or contract about the property in- 
 sured. Mr. May, in his statement of what is a 
 promissory representation and a promissory 
 warranty, speaks of each as relating to or con- 
 cerning something to be done or omitted to be 
 done after the policy is issued — in the case of 
 the warranty avoiding the contract, if it be not 
 done or omitted to be done according to the 
 terms and conditions of the warranty, and in 
 the case of a representation as being a promise 
 to be performed after the contract has come 
 into existence, "stated as matters of expecta- 
 tion, or it may be of contract. May states that 
 the representation may exist in parol and be 
 no part of the contract or policy, but a close 
 analysis of section 183, in which this loose 
 principle is stated and advocated, will show any 
 reader that he refers and can only refer to an 
 affirmative representation. I have already ad- 
 duced authority to prove that they must be 
 introduced into the contract or policy. If the 
 
WARRANTY IN FIRE INSURANCE. 161 
 
 promissory warranty or representation rested 
 in parol, upon what consideration would it be 
 supported, or under what rule of evidence could 
 it be proved if the contract was put into writ- 
 ing — all preceding the contract or issuance of 
 the policy having been merged into the policy. 
 This agreement would then be independent — 
 standing by itself — a mere matter of expecta- 
 tion, the performance of which rested entirely 
 in the discretion or wish of the policy-holder, 
 and not anything going into and forming a part 
 of the contract, or which could avoid the policy, 
 or which could entail any legal liability upon 
 the property-owner if he saw fit not to meet 
 the -expectations or gratify the wishes of the 
 insurer. 
 
 Murdock and Garrett vs. The Chenango 
 County Mutual Insurance Co. 2 Comstock 
 (N. Y.), 210. 
 
 The application for insurance made the fol- 
 lowing representation — " The building is 28 by 
 
162 WARRANTY IN FIRE INSURANCE. 
 
 36 feet — addition on the south side 12 by 28 
 feet — with 3 run of stones, 2 bolts, 1 smut mill, 
 and one stove — pipe passes through the window 
 at the side of the building. There will, however, 
 be a stone chimney built and the pipe will pass 
 into it at the side. " The application was made 
 a part of the policy and was so considered by 
 the Court. 
 
 Judges Cady, Strong and Jewett delivered 
 opinions in the case. From the opinion of 
 Judge Strong I make these extracts : " The 
 clause in the written application made by the 
 respondents that there will, however, be a 
 stone chimney built and the pipe will pass into 
 it at the side, " contains either a simple represen- 
 tation or a promise. A representation applies 
 to the present, a promise to the future. There 
 is not in my opinion any such thing as a prom- 
 issory representation. The terms involve a 
 contradiction. If there was any representation 
 in the sentence which I have extracted from the 
 
WARRANTY IX FIRE INSURANCE. 163 
 
 application, it -was simply of a present intent to 
 make a specified change. If applicants actually 
 intended at the time to do so, there was no 
 fraud in making the assertion, and although 
 they may have subsequently changed their 
 minds, and therefore abstained from perform- 
 ing the proposed work, the policy of insurance 
 • would not have been vitiated, on the ground of 
 misrepresentation. But if the respondents had 
 not at the time when they applied for the policy 
 any intent to effect the indicated change, it was 
 fraudulent in them to make the representation, 
 and that like any other fraud would vitiate the 
 contract to "which it had led. But I think that 
 the clause in question went further than a mere 
 representation. It says, in express terms, that 
 the change will be made, not simply that the 
 respondents intended to make it. This taken 
 in connection with the attending circumstances 
 constituted it a positive engagement, and by the 
 express terms of the policy it formed a part of 
 
164 WARRANTY IN FIRE INSURANCE. 
 
 and qualified the contract of insurance. In the 
 last particular it differs from the case of Alston 
 vs. The Mechanics Mutual Insurance (4 Hill, 
 329), where the promise was verbal and not at 
 all referred to in the policy. There it was prop- 
 erly held that evidence could not be received of 
 a parol promise to qualify the written contract; 
 but Senator Bockee said that if the stipulation 
 in that case (providing for the substitution of a 
 stove for a fireplace) had been contained in the 
 policy, the case would present such a violation 
 of contract on the part of the assured as would 
 probably bar him from a recovery. The prom- 
 ise in the case under consideration had direct 
 reference to the extent of the risk ; it would be 
 less if the change was made than it was at the 
 time of the application. Taking the two papers 
 together, the insurers assumed the existing risk 
 until a reasonable time should have elapsed to 
 make proposed changes, and after that the 
 proposed diminished risk only, and charged a 
 
WARRANTY IN FIRE INSURANCE. 165 
 
 premium accordingly. The promised change 
 was therefore vital to the continuance of the 
 responsibility. I think that the policy became 
 inoperative by reason of the non-performance 
 of the promise made by the assured, after a 
 reasonable time to make the proposed change 
 had elapsed." 
 
 When this opinion is thoroughly sifted and 
 analyzed it will be found to be correct in itself, 
 and to make the law of the fire insurance con- 
 tract harmonious with the principles of the law 
 of general contracts. It certainly gives a cor- 
 rect description or definition of a promissory 
 representation or warranty. It places it upon 
 the basis of a contract to be performed in the 
 future, and must be a part of the written con- 
 tract or policy and be relative to the risk 
 assumed. I have found no opinion abler in 
 argument or clearer in its statement of princi- 
 ple. Judge Jewett said : " He also concurred 
 in opinion that the clause in the application 
 
166 WARRANTY IN FIRE INSURANCE. 
 
 relating- to the stove-pipe amounted to a war- 
 ranty ; but whether the warranty was broken or 
 not, depended on the question whether a reason- 
 able time had elapsed to perform the under- 
 taking. " 
 
 These two judges have in the same case 
 used the words representation and warranty as 
 interchangeable or synonymous in law and in 
 effect on the policy. They reach the same 
 conclusion from different directions of thought. 
 It is quite impossible to understand how a 
 promise to do a certain act, for which a con- 
 sideration has been given, can be called, or 
 much the less be considered, a warranty or a 
 promissory warranty, or anything else in law 
 but an executory contract or agreement. A 
 warranty or a promissory warranty, if such an 
 anomaly in law can exist, must include in its 
 terms and operation the existing order or con- 
 dition of the property insured, coupled to the 
 future that it shall so remain without change or 
 
WARRANTY IN FIRE INSURANCE. 167 
 
 addition. The promissory warranties and rep- 
 resentations, to be found in the books, almost 
 invariably turn upon a promise as to some 
 matter or thing or condition connected with 
 the property insured, not in existence at that 
 time, but which the insured must do or bring 
 into existence in the future in connection with 
 the property insured. Judge Jewett has used 
 the word warranty regardless of its legal mean- 
 ing, import or effect, as is so common with 
 both judges and text-writers. The law, as 
 stated by Judge Strong, gives all the neces- 
 sary details or elements of an executory agree- 
 ment or engagement. It must be in or a part 
 of the policy, or the verbal contract will, by 
 evidence, vary the written contract, which 
 alone binds the parties, because by that alone 
 was the company bound, and that alone had 
 been accepted by the insured in writing into 
 which all the negotiations were merged for or 
 about the insurance and the risk assumed. 
 
168 WARRANTY IN FIRE INSURANCE. 
 
 Gilliatt Trustee vs. Pawtucket Mutual Fire 
 Insurance Company, 8 Rhode Island, 294. 
 
 It is not necessary to state the facts descrip- 
 tive of the property insured, farther than they 
 are contained in this extract from the opinion 
 of the court : 
 
 " The company had put other questions as 
 to other objects. The sixth question is, 'Are 
 the stoves or other apparatus for heating or 
 using fire properly secured?' That is, what is 
 the present security against fire? But the 
 question does not stop here. The company 
 desire an engagement as to the future security, 
 and they ask further, 'will you engage to keep 
 them so ?' " 
 
 The seventh interrogatory, which is upon 
 the subject of ashes and matches, does not ask 
 at all of the present but seeks a stipulation for 
 the future, and asks, " will you engage that the 
 ashes and matches in and around your building 
 shall be kept in a safe place?" In these, the 
 
WARRANTY IN FIRE INSURANCE. 169 
 
 company insist on a promise for the future. It 
 shows, that when they wish information as to 
 the present, they ask it; and when they require 
 a promise for the future, they put the question 
 to insure under it, and that they understood a 
 question as to the present was not to be asked 
 as one directed to the future." 
 
 This question, which the judge decides in 
 this case to contain a promise to be performed 
 in the future, can not be considered, even by 
 the most illogical thinker, either a representa- 
 tion or a warranty in law or in fact — it is 
 simply an executory agreement, legally and 
 morally. 
 
 Bilbrough vs. The Metropolitan Insurance 
 Company of the City of New York, 5 Duer, 
 
 587. . 
 
 The question in this case turned upon the 
 
 construction and legal character and effect of 
 
 questions and answers in the application or 
 
170 WARRANTY IN FIRE INSURANCE. 
 
 survey which was submitted to the company 
 and made a part of the policy. 
 
 The questions and answers are these : "Dur- 
 ing what hours is the factory worked?" •The 
 answer is, " we run the cards, picker, drawing 
 frames and speeder day and night, the rest 
 only twelve hours daily. We only intend run- 
 ning nights until we get more cards, etc., which 
 are making ; shall not run nights over four 
 months." 
 
 " It is the statement of a fact as to their then 
 running certain parts of the machinery — the 
 cards — day and night; the declaration of an in- 
 tention to cease running at nights when they get 
 more cards, which were then making. Then 
 follows the engagement : ' We shall not run at 
 nights over four months.' I think that the 
 statement of an intention to cease running when 
 they received the cards then being made was 
 equivalent to an agreement to cease upon that 
 event. Had it been proven what cards were 
 
WARRANTY IN FIRE INSURANCE. 171 
 
 then in hand for the plaintiff, and that they were 
 delivered before the fire, a running at nights 
 afterward would have avoided the policy." If 
 this is so, then the subsequent clause is plainly 
 but a precise definition and limitation of this 
 agreement. It is tantamount to saying (when 
 the whole is read together) this : We will cease 
 running at nights when the new cards which 
 are now making are ready, and the period shall 
 not at the utmost exceed four months. Judge 
 Hoffman, from whose opinion this extract is 
 taken, comments on the judgments of Justices 
 Strong and Jewett, in the Murdock-Chenango 
 County case, 2 Comstock. Chief Justice Jew- 
 ett also delivered an opinion in the case, from 
 which I make this quotation : " I consider that 
 this case has gone far to dissipate the error into 
 which the reasoning of Chancellor Walworth, 
 in Alston's case (4 Hill, 329), and of Mr. Justice 
 Wilde, in Bryant vs. The Ocean Ins. Co. (22 
 Pickering, 200), undoubtedly leads, and which 
 
172 WARRANTY IN FIRE INSURANCE. 
 
 has been so elaborately examind and refuted by- 
 Mr. Justice Duer in his Treatise on Insurance 
 (Vol. XI., page 749). It seems to me manifest 
 that the clause in the application would have 
 been held by those eminent judges as nothing 
 but a declaration of an intent at that time to 
 have a stone chimney built, and the pipe to pass 
 at the side, and unless the insurers could accom- 
 plish the difficult task of proving that the assured 
 had no such intention, the policy would remain 
 in force. But the learned judges in the Court 
 of Appeals extracted a positive stipulation from 
 these words. It was a promise that certain 
 things which they could do would be done, not 
 a statement or representation that they then had 
 the intent to do it, which they might alter. 
 After all, and without involving in obscurity 
 by criticism what appears clear, the sound prin- 
 ciple seems to be, that language in a pol- 
 icy which imports that it is intended to do or 
 omit an act which materially affects the risk, its 
 
WARRANTY IX FIRE INSURANCE. 173 
 
 extent or nature, is to be treated as involving 
 an engagement to do or omit such act. If the 
 assured would reserve a right to change his 
 intention, he must employ explicit, unquestion- 
 able language to denote the reservation. It is 
 plain, we think, that the terms used in the pres- 
 ent case are much stronger to establish an ex- 
 press promise than those employed in the case 
 of Murdock vs. The Chenango Co." 
 
 Judge Jewett draws the true distinction very 
 clearly between a representation remaining or 
 being only evidence and a representation incor- 
 porated into the policy becoming an express 
 promise to be performed in the future. And 
 what is an express promise to be performed in 
 the future but an executory agreement? 
 
 The Aurora Fire Insurance Company vs. 
 James W. Eddy, 49 111., 106. 
 
 Insurance was upon a three-story flax fac- 
 tory. Judgment for plaintiff, the policy holder, 
 which was appealed and reversed by the com- 
 
174 WARRANTY IN FIRE INSURANCE. 
 
 pany. The point turned upon this clause in 
 the policy: "It is expressly agreed that the 
 assured is to keep eight buckets filled with 
 water on the first floor where the machinery is 
 run, and four in the basement by the reservoir, 
 ready for use at all times in case of fire; also, 
 that smoking shall be strictly prohibited in or 
 about the building." Proof was that some 
 buckets were in the building, sometimes all of 
 them above and sometimes all of them below. 
 Judge Breese, deciding the case, said: "As to 
 the first branch of plaintiff's instruction, we 
 have always understood that the rules by which 
 a policy of insurance is to be construed, and 
 the principles by which it is to be governed, do 
 not differ from other mercantile contracts, but 
 conditions and provisions in such policies are 
 to be construed strictly against the under- 
 writers, for the reason that they tend to narrow 
 the range and limit the force of the principal 
 obligation; but this was not a condition or pro- 
 
WARRANTY IN FIRE INSURANCE. 175 
 
 viso in the policy, but an express agreement of 
 the assured, to be construed by the same rules 
 by which other agreements are construed. 
 But if the underwriters have left their design 
 or object doubtful, by the use of obscure 
 language, the construction ought to be and will 
 be most unfavorable to them, but nothing of 
 that kind is apparent here. It was an express 
 agreement of the nature of a promissory war- 
 ranty, that the assured would have the number 
 of buckets specified always filled with water, 
 and disposed upon the floors as therein stated." 
 Judge Breese uses the words, " an express 
 agreement of the nature of a promissory war- 
 ranty, " but in what respects? If a warrant}' at 
 all, it must have been strictly and literally com- 
 plied with. It was an express agreement to 
 be performed in the future, but had in it no 
 element of warranty, as Judge Breese held in 
 the same case, " we think, therefore, that the 
 jury should have been told that, whilst from 
 
176 WARRANTY IN FIRE INSURANCE. 
 
 freezing or other unavoidable causes, a literal 
 compliance with the warranty might have been 
 impossible, and could not have been in con- 
 templation of the parties, still it was incumbent 
 on trie assured to show that the required num- 
 ber of buckets, in good and serviceable con- 
 dition, was at the places designated in the 
 agreement ready for use." What was a sub- 
 stantial compliance was a mixed question. 
 
 Justice Clifford, in passing upon the same 
 point, in Cady vs. Imperial Insurance Co., 4 
 Clifford, 201, referred to this case, and said, 
 " somewhat different rules are to be applied to 
 the executory stipulations in the policy, which 
 are sometimes denominated promissory war- 
 ranties, as such stipulations are rather to be 
 regarded as having the legal effect of repre- 
 sentations than of warranties, as understood in 
 the law of Marine Insurance, though partaking 
 in some measure of the character of both. 
 They are like representations, in requiring that 
 
WARRANTY IN FIRE INSURANCE. 177 
 
 the facts shall be true and correct; and, so far 
 as they are executory, that they shall be-substan- 
 tially performed, but not like zvarranties, in 
 requiring an exact and literal compliance. It 
 is enough, therefore, if these statements, relied 
 on as the basis of the contract, are made in 
 good faith and without intent to deceive; that 
 they are substantially true and correct as to 
 existing circumstances, and substantially com- 
 plied with so far as they are executory and 
 regard the future." In what respect they par- 
 take of the nature of a warranty neither Justice 
 Clifford nor Judge Breese point out. The 
 very essence of a warranty, the essential and 
 radical difference between a representation and 
 a warranty, is that the former may substantially 
 be complied with and that the latter must be 
 literally and strictly kept. In what respect are 
 they like or do they resemble representations? 
 If he is to be construed as meaning that they 
 are agreements upon which an action can be 
 
178 WARRANTY "IN FIRE INSURANCE. 
 
 founded, when he says, " it is enough if they 
 are made in good faith, and without intent to 
 deceive, " he is simply confounding the contract 
 with the evidence of the contract. It is good 
 logic, from this opinion, to deduce the conclu- 
 sion that it was not necessary to incorporate 
 them into the policy or contract, and yet if this 
 point had been distinctly made, Justice Clif- 
 ford would not have held that the agreement 
 resting in parol could have been proved by 
 oral testimony to vary, contradict, or alter the 
 written contract of the parties. If Justice 
 Clifford had put the law correctly, by saying 
 that they were executory agreements or con- 
 tracts and had ceased to be representatious by 
 being incorporated into the policy, and were 
 not like warranties because they did not de- 
 mand a strict and literal compliance, much 
 light would have been thrown on this question. 
 His name carries with it sufficient reputation 
 to make judges and text-writers hesitate and 
 
WARRANTY IN FIRE INSURANCE. 179 
 
 investigate before setting aside as error any 
 well considered opinion by so distinguished 
 and fair-minded a judge as he was known 
 to be. 
 
 City of Worcester vs. Worcester Mutual Fire 
 Insurance Company, 9 Allen (Mass.) 29. 
 
 The facts will appear in the opinion deliv- 
 ered by J. Dewey, J., which is as follows : "The 
 answers and stipulations contained in the appli- 
 cation of the plaintiffs for their policy are made 
 an essential part of the contract between these 
 parties. To the twelfth interrogatory, the plain- 
 tiffs, by their answer, had stated that 'their ashes 
 were taken in metallic vessels which were not 
 allowed to stand on wood with ashes in them; 
 and that if deposited in or near the building, 
 they were deposited in vaults of brick or stone.' 
 Upon the face of the application, and above the 
 signature of the defendants to the applications, 
 was the following : ' If ashes are allowed to re- 
 main in wood, the company will not assume the 
 
180 WARRANTY IN FIRE INSURANCE. 
 
 risk.' This policy was therefore directly affect- 
 ed by the manner in which the plaintiffs used 
 the insured property in reference to the stipu- 
 lations above referred to. It is conceded that 
 the plaintiffs had no vaults of brick or stone 
 for the deposit of ashes. Had they had such, 
 and had the usual course been to deposit their 
 ashes therein, an unauthorized departure in one 
 or two instances by their servant might not 
 have affected the policy. But under the cir- 
 cumstances of the present case, placing the 
 ashes for the period of two or three weeks con- 
 tinuously, and up to the time of the loss by fire, 
 in a wooden barrel in the wood house which 
 adjoined the school-house, and in which the 
 fuel for the school-house was kept, by the agent 
 employed by the defendants to make the fires 
 and take charge of the school-house, was in 
 direct violation of the terms of the contract for 
 insurance, and must preclude the plaintiffs from 
 recovering for the loss which has occurred. " 
 
WARRANTY IN FIRE INSURANCE. 181 
 
 There is no talk in this opinion about prom- 
 issory warranties or representations, or an at- 
 tempt to draw any distinctions between them 
 resting in language or shadow and not in the 
 thing itself or the substance. It is simply an 
 executory contract which has not been kept, 
 and therefore the insurer was not liable on his 
 contract. 
 
 Lycoming Insurance Company vs. Mitchell 
 & Boyle, 48 Penn., 372. 
 
 The facts will sufficiently appear in this ex- 
 tract from the opinion in the case rendered by 
 Agnew, J. : 
 
 "A 'valued policy' is not understood to be 
 one which estimates the value of the property 
 insured merely, but which values the loss, and 
 is equivalent to an assessment of damages in 
 the event of a loss. So a 'warranty' in a policy 
 is understood to be a contract relating to an 
 existing fact, and not a covenant for future acts, 
 and differs from a representation in the circum- 
 
182 WARRANTY IN FIRE INSURANCE. 
 
 stance that it is a binding agreement that the 
 fact is as warranted; while the representation is 
 not an agreement that it is so, but such a state- 
 ment of it as will constitute a misrepresentation 
 if it he untrue. These expressions, 'valued 
 policy' and 'warranty,' therefore, tended to mis- 
 lead. But when we examine the entire lan- 
 guage of the point, and the attendant circum- 
 stances, the meaning of it ought not to have 
 been misapprehended. The clause in the pol- 
 icy on which the question arose, was that the 
 aggregate amount insured in that and other 
 companies 'shall not exceed two-thirds of the 
 estimated cash value.' The language is, 'shall 
 not,' not does not. It clearly imported a covenant 
 for future acts. The policy in suit was the first 
 in order of time, the evidence before the mind 
 of the judge disclosing to him that the overin- 
 surance was constituted wholly of subsequent pol- 
 icies. The evidence also disclosed the fact that 
 a subsequent satisfaction was the ground relied 
 
WARRANTY IN FIRE INSURANCE. 183 
 
 on by the plaintiff below to avoid the forfeiture 
 caused by his subsequent insurance. The re- 
 maining points also disclosed most clearly the 
 views of the plaintiff founded on this evidence, 
 while the answers of the judge to them evidence 
 his own full understanding of the case, that the 
 question was whether there had not been an 
 overinsurance subsequently taken, contrary to 
 the stipulation in the policy, and whether the 
 forfeiture arising in this fact was afterwards 
 waived and the policies satisfied. Now, even 
 encumbered with the inaccurate expressions, 
 how could the substantial meaning of the point 
 be mistaken ? The point reads thus : ' The 
 policy in this case being a valued policy, and 
 the condition not to insure more than two-thirds 
 of the valuation, and that condition being on 
 the face of the policy was a warranty, and if 
 broken the plaintiffs cannot recover, unless the 
 company were informed of such overinsurance 
 and waived the forfeiture.' The expression 
 
184 WARRANTY IN FIRE INSURANCE. 
 
 'valued policy' is immediately connected ^with 
 the condition not to insure more than two-thirds 
 of the valuation, referring clearly to future in- 
 surance. The valuation thus referred to cor- 
 rects at once the meaning of 'valued policy' 
 by referring it not to an assessment of loss, but 
 to the measure of the future insurance, so when 
 the point proceeds to say, 'and that condition 
 being on the face of the policy was a warranty,' 
 it is but a restatement of the condition not to 
 insure more than two-thirds of the valuation, 
 importing an action subsequent to the policy. 
 Warranty, therefore, clearly means not war- 
 ranty in its special sense, but an undertaking 
 or an agreement, and is made clear by what 
 follows, 'and if broken the plaintiff cannot 
 recover unless the company were informed 
 of such over-insurance,' &c. The over-insur- 
 ance was all subsequent, corresponding with 
 the undertaking not to insure, as referring 
 to future acts. The substantial meaning of the 
 
WARRANTY IN FIRE INSURANCE. 185 
 
 point was certainly this: The policy being one 
 fixing the value, and the conditio?i not to insure 
 »i07'e than two-thirds of the valuation being on 
 the face of the policy, was an undertaking, and 
 if broken the plaintiff cannot recover, unless 
 the company was informed of the overinsurance 
 and waived the forfeiture. To this proposition 
 the defendants were entitled to an affirmative 
 answer. " 
 
 The critical accuracy and judicial caution 
 which marks the use of language by Judge 
 Agnew would, if imitated by other judges, pre- 
 vent the publication of many useless opinions, 
 and enable the text-writers to draw order out of 
 the judicial chaos in the law of fire insurance. 
 He well says, a warranty must relate to an exist- 
 ing fact, and is not a covenant for future acts. 
 Any comment on this opinion would surely 
 darken its clear council. It draws its own con- 
 clusion, and makes its statement almost self-evi- 
 dent principles of law in their relation to this 
 
186 WARRANTY IN FIRE INSURANCE. 
 
 subject. He draws the line of distinction so 
 clearly as to make a legal difference between 
 the promissory warranty or promissory repre- 
 sentation and the covenant or executory con- 
 tract for future acts. 
 
 From Clement's Digest of Insurance Deci- 
 sions, Vol. II., Warranty and Representation, 
 page 354, I take this reference to the case of 
 Mayor of New York, vs. Brooklyn Fire Insur- 
 ance Co., 3 Abb. Ct. App., 251 (the report of 
 the case not being accessible): "A verbal rep- 
 resentation to vitiate a contract of insurance 
 must relate to some past or existing fact mate- 
 rial to the risk; if in the nature of a promise or 
 stipulation for future conduct, it must be in- 
 serted in the policy, or the company cannot 
 avail itself of it." 
 
 I could give many other authorities support- 
 ing the view here advocated as to the nature 
 of the promissory warranty and representation, 
 but feel that it would be simply a display of 
 
WARRANTY IN FIRE INSURANCE. 187 
 
 case research — merely cumulative in nature and 
 effect. The confusion originally sprang from 
 Marshall's division of warranty and representa- 
 tion in his work on insurance, which had such 
 an appearance of wisdom and of correct analy- . 
 sis that it has gone unchallenged except by a 
 few thoughtful judges, and has been adopted 
 and used by text-writers up to this time. It 
 resulted from an inaccurate use of language, 
 and from an attempt tp draw distinctions where 
 there was at bottom no difference in reality, 
 and thus indirectly produced that anomaly in 
 law, a warranty in presenti as to a contract of 
 which time was the very essence, — the very 
 thing bought and sold by the parties to the 
 contract by which, although the contract was 
 entire as to subject and indivisible as to time, 
 it was made binding on one and released the 
 other, and while the liability of the former was 
 to continue during the time contracted for, the 
 latter was bound only on the day the contract 
 
188 WARRANTY IN FIRE INSURANCE. 
 
 was executed. From these authorities I think 
 I am fully justified in deducing these conclu- 
 sions : 
 
 i st. That representations are entirely evi- 
 , dential in their nature and effect. 
 
 2d. That representations do not become 
 contractual in their nature unless they are incor- 
 porated into and are made a part of the policy. 
 
 3d. That what are called promissory repre- 
 sentations and promissory warranties are iden- 
 tical in their legal nature and effect, and are 
 each and both executory agreements, and must 
 be incorporated into the insurance contract in 
 order to be the basis of a legal action, if it is 
 claimed that their non-performance or fulfill- 
 ment has worked a forfeiture of the policy or 
 released 'the company from the payment of the 
 loss. 
 
 4th. That there cannot, from the very nature 
 of the fire insurance contract, be in law any 
 such agreement or contract as a promissory 
 
WARRANTY IN- FIRE INSURANCE. 189 
 
 warranty in the legal meaning of the word war- 
 ranty, which can only be predicated of a fact 
 existing at its creation. 
 
 5th. That from the very nature of the Fire 
 Insurance contract there cannot be any such 
 agreement or contract as a warranti in pre- 
 senti, and that whatever is a warranty in the 
 policy runs with the contract" during the con- 
 tinuance of the risk, as well on the day the 
 policy legally expires as on the day it was 
 made or executed and during its entire exist- 
 ence. 
 
 6th. That the warranty must be made by 
 the terms and language of the contract on the 
 face of the policy, and that whatever entered 
 into the elements upon which the risk was 
 taken, and the premiums calculated, is a part 
 of the contract, and enters into and forms the 
 warranty; as, for instance, if an house is in- 
 sured as a dwelling-house for a year, it must 
 be and remain such during that entire year, 
 
190 WARRANTY IN FIRE INSURANCE. 
 
 and it cannot be changed into a tavern, shop 
 or store ; and if insured as an occupied dwel- 
 ling-house, it must be kept occupied as a 
 dwelling-house during the entire year. 
 
 Having discussed the true nature of the 
 warranty in the Fire Insurance contract, and of 
 promissory- warranty and promissory represen- 
 tation, to show that these two last are in law 
 and in effect executory agreements, I now pass 
 to the question of compliance with the war- 
 ranty. 
 
 Whatever virtue- is lacking in the warranty, 
 to cover and operate upon the entire contract 
 during the running of the risk, Mr. Wood 
 would supply it by the conditions in the policy. 
 A fair statement of his view is to be found in 
 the quotations from his book. Some such 
 view as this must have been impressed upon 
 the minds of the officers of the different com- 
 panies by judicial opinions and the deductions 
 of text-writers, or they would not, with such 
 
WARRANTY IX FIRE INSURANCE. 191 
 
 wonderful unanimity, have put into their poli- 
 cies these conditions, upon which Mr. Wood 
 lays so much stress, invariably attaching them 
 to the warranty, in the contract itself, as if the 
 full power and benefit of the latter could be 
 received only through the vicarious and effica- 
 cious action of the former ; and yet, strange to 
 relate, these conditions always refer, not to the 
 warranty itself, but to the way or manner in 
 which it must be kept or complied with, thus 
 confounding the attempt to perform or keep a 
 contract with the real and actual performance 
 of it — two things as different in law, and the 
 principles applicable to them, as they are in 
 fact. If courts had maintained the fundamental 
 principle in all its original purity and force — 
 that the warranty was a part of the entire con- 
 tract, not confined to the date of the delivery 
 of the policy — the companies would not have 
 been compelled to add conditions in the policy 
 by which the warranty was made to operate 
 
192 WARRANTY IN FIRE INSURANCE. 
 
 during the running of the risk beyond the date 
 of the delivery. Their necessities sprang from 
 the lack of firmness in the courts not in stand- 
 ing upon principle, but in frequently yielding 
 to expediency and public prejudice. When the 
 courts departed from the true theory and the 
 true principle that the warranty was "at the root 
 of the contract," not for a day, but for the 
 entire time during which the company was 
 responsible under and through its policy, then 
 the doctrine of warranty in presenti, as absurd 
 as it is, became inevitable, and confusion worse 
 confounded has constantly crept into the cases. 
 This departure rendered it absolutely necessary 
 that the company should protect itself by con- 
 ditions and provisions which, relating back to 
 the uses and description of the property, would 
 help out the warranty by requiring a compli- 
 ance, not with the warranty, but with the con- 
 ditions and provisions in the policy which the 
 courts could not construe out of existence or 
 
WARRANTY IN FIRE INSURANCE. 193 
 
 beyond the duty of the policy-holder to fulfill, 
 even if printed in small type. These condi- 
 tions and provisions have been rendered so 
 absolutely necessary for the protection of the 
 companies, that their absence from a policy 
 would be a just ground of suspicion against 
 the company. They all relate to compliance 
 with the warranty, and, therefore, are almost 
 considered as a part of the warranty itself. 
 
 We purpose now to discuss the question of 
 compliance with the warranty, or rather with 
 the conditions in the policy which have been 
 inserted in it to force compliance with the 
 warranty in the contract. We shall discuss it 
 through the medium of cases and the opinions 
 of the judges upon proved facts. 
 
 Dennison vs. Phoenix Insurance Company, 
 52 Iowa, 457. 
 
 Insurance was upon a building occupied by 
 a tenant. When burned it was vacant, and 
 had been for seventeen days. It had been 
 
194 WARRANTY IN FIRE INSURANCE. 
 
 used as a boarding-house and hotel. Policy 
 provided if it became vacant or unoccupied, 
 and so remained without notice to, and consent 
 of, company in writing, then policy should be 
 void. The court held (Rothrock, J.): "The 
 parties have made this contract, and by it they 
 must be bound. Courts can neither add to it 
 nor take from it. By its terms the defendant 
 insured for the plaintiff an occupied house, and 
 stipulated that if it should become unoccupied, 
 and so remain without notice, the contract of 
 insurance was at an end. It is not a question 
 as to how long this state of things may exist 
 without the knowledge of the assured. He is 
 bound, by the terms of his policy, to see to it 
 that his house does not become vacant, or give 
 notice, etc. Neither is it a proper inquiry as 
 to whether the risk is increased by reason of 
 the building being unoccupied. The parties 
 have settled that question by their contract. 
 The question as to whether the building was 
 
WARRANTY IX FIRE INSURANCE. 195 
 
 unoccupied for a reasonable or unreasonable 
 length of time is wholly immaterial. The time 
 is only material in determining whether the 
 building is, in fact, vacant or unoccupied within 
 the meaning of the contract. The only mate- 
 rial consideration is : Was this building vacant 
 and unoccupied, and did it so remain until 
 destroyed by fire ? Of course, the terms of the 
 contract must receive a reasonable construc- 
 tion. The parties did not intend that one 
 tenant should not move out and another move 
 in. Nor did they intend that the house should 
 be deemed vacant if the occupant should close 
 it and go off on a visit, and not occupy it for a 
 reasonable time. But the evidence in this case 
 tends to show that the building was actually 
 unoccupied for seventeen days, not by reason 
 of anything other than that one tenant left and 
 the house stood there awaiting another occu- 
 pant. It was, to all intents, a vacant and un- 
 occupied house when it was destroyed. It is 
 
196 WARRANTY IN FIRE INSURANCE. 
 
 immaterial how the house came to be vacated 
 or unoccupied; the fact alone is sufficient." 
 
 Keith vs. Quincy Mutual Fire Insurance 
 Company, 10 Allen (Mass.), 228. 
 
 Facts : Insurance was upon a wooden build- 
 ing, for one year, occupied as a trip-hammer 
 shop, and on a water-wheel, and the machinery 
 therein. Policy dated 21st Feb'y, 1863, and 
 contained a provision if the building remains 
 unoccupied over thirty days, without notice, 
 the policy to be void. Defense : Building had 
 at the time been unoccupied for many months. 
 The verdict was for defendant, on the ruling of 
 the judge below, who refused to allow the bill 
 of exceptions presented by plaintiff for his sig- 
 nature. His ruling was as follows : "It is not 
 sufficient to constitute occupancy that the tools 
 remained in the shop, and that the plaintiff's 
 son went through the shop almost every day 
 to look around and see if things were right, 
 but some practical use must have been made 
 
WARRANTY IN FIRE INSURANCE. 197 
 
 of the building ; and if it thus remained, with- 
 out any practical use, for the space of thirty 
 days, it was, within the meaning of the policy, 
 an unoccupied building for that time, and the 
 policy became void." The court, on appeal, 
 held: "As adapted to the -provisions in the 
 policy we cannot say that these instructions 
 were erroneous. The case presented is only 
 the abstract one of the correctness of the gen- 
 eral principle stated, the particular facts of the 
 case not being before us by any allowed bill of 
 exceptions ; " and then, alluding to the facts 
 stated in the ruling of the judge trying the 
 case, concluded as follows : " But this evidence 
 of such knowledge, if in the case, and if unob- 
 jectionable otherwise, would be immaterial, as 
 the stipulation in the policy alleged to have 
 been violated was wholly in the reference to 
 the future, and was not to be qualified by any 
 particular previous use of this trip-hammer 
 shop. 
 
198 WARRANTY IN FIRE INSURANCE. 
 
 This case is equally important as to the 
 nature of the warranty as it is as to what is a 
 compliance. The two principles deducible from 
 it are: ist, That the warranty is continuous, 
 "being in reference to the future;" and, 2nd, 
 Its compliance must be in accordance there- 
 with, by some practical use corresponding to 
 the nature and purpose of the object specified 
 in the warranty. The condition as to thirty - 
 days was only a suspension of the warranty 
 during that period of time. 
 
 The. North American Fire Insurance Com- 
 pany vs. Zaenger, 63 Illinois, 465. 
 
 Facts: Insurance was upon a building, the 
 policy to become void if house became vacant 
 and unoccupied, or the risk be increased, etc., 
 or by any means whatever within the control 
 of the assured, without the assent of this com- 
 pany endorsed thereon. House became vacant 
 about three weeks. There was no proof of the 
 assent of the company, or that tenant had not 
 
WARRANTY IX FIRE INSURANCE. 199 
 
 left with his consent, or that he had tried to 
 get another one to occupy it. 
 
 Judgment was given against the company, 
 which appealed the case. The court held that 
 " It did not under the terms of the conditions 
 require the consent of the defendant in error 
 that the premises might become vacant to 
 avoid the policy, but it required that they 
 should continue occupied, unless defendant in 
 error (Zaenger) should, without fault, be unable 
 to prevent their becoming vacant. Defendant 
 in error was required to prove that the vacancy 
 of the premises was beyond his control. Hence 
 the instructions of the court, which announce a 
 different rule, were erroneous, and calculated 
 to mislead the jury, and should not have been 
 given." Judgment reversed. 
 
 The court decides, in this case, that this 
 condition is a warranty, and that that warranty 
 is continuous in its nature; and that, to comply 
 therewith, the policy-holder must keep his 
 
200 WARRANTY IN FIRE INSURANCE. 
 
 house occupied from the beginning to the end 
 of the policy, or bring himself within the terms 
 of its qualification, to wit, that the vacancy 
 occurred without his fault and was beyond his 
 power or control to prevent it. 
 
 The American Insurance Company vs. Pad- 
 field, 78 Illinois, 167. 
 
 Facts — Insurance dated 1 July, 1872, to run 
 for five years, on a dwelling house, which was 
 destroyed by fire in September, 1872; house 
 occupied by a tenant at date of insurance, who 
 left it about two months before the fire, notify- 
 ing the assured of that fact, but retained the 
 key and had left in it a table, crib, and bed-tick. 
 Tenant was requested to rent, but subsequently 
 this order was countermanded, and in this con- 
 dition remained till the fire, and was in it at the 
 time of the fire. Policy provided that if the 
 house had became vacant and unoccupied it 
 was to be void. 
 
WARRANTY IN FIRE INSURANCE. 201 
 
 The court held : " We think there cannot 
 be the slightest room to doubt that the house 
 was vacant and unoccupied when" the fire oc- 
 curred, and had been for two months previously. 
 A fair and reasonable construction of the lan- 
 guage vacant and unoccupied is, that it should 
 be without an occupant — without any person 
 living in it. For some purposes the law might 
 regard the leaving of a few such articles in a 
 house as carrying with them possession in their 
 owner, but in such cases there must be an in- 
 tention to thus take and hold possession; but 
 here there was no such intention by the tenant, 
 on the contrary, he disclaimed all possession, 
 but such possession is not occupancy in its 
 proper sense. 
 
 The judgment of the court below must be 
 reversed and the cause remanded. 
 
 Ashworth vs. Builders' Mutual Fire Insur- 
 ance Company, 112 Massachusetts, 422. 
 
202 WARRANTY IN FIRE INSURANCE. 
 
 Facts — Insurance was on a house described 
 as a dwelling house, occupied for farming pur- 
 poses, and upon a barn near by. Policy con- 
 tained a provision that if the house remained 
 vacant for more than thirty days without con- 
 sent of company this policy shall be void. The 
 proof of loss contained the statement that at the 
 time of the fire the buildings were unoccupied. 
 The plaintiff made his opening statement of his 
 proof, whereupon the defendant contended that 
 admitting all of the proof that was competent 
 plaintiff could not recover on it. The court so 
 ruled, and a verdict was ordered for defendant. 
 By agreement, if the ruling was incorrect the 
 verdict to be set aside, if correct judgment to be 
 entered on the verdict. The court held: " Oc- 
 cupancy as applied to such buildings implies an 
 actual use of the house as a dwelling place, and 
 such use of the barn as is ordinarily incident to 
 a barn belonging to an occupied house, or at 
 least something more than a use of it for mere 
 
WARRANTY IN FIRE INSURANCE. 203 
 
 storage. The insurer has a right by the terms 
 of the policy, to the care and supervision which 
 is involved in such an occupancy. " 
 
 Poor vs. Humboldt Insurance Company, 
 125 Massachusetts, 274. 
 
 Facts — Insurance was on a frame building 
 and fixtures, known as the Oceanic House, 
 situated in the town of Gosport, Star Island, 
 Isles of Shoals, N. H. 
 
 "Warranted a family to live in said house 
 
 throughout the year. " Policy dated 1 2 
 
 1875, fire occurred on 11 November, 1875, 
 B. F. Tummins, the porter, and Daniel Murray 
 lived in the house; they slept every night in 
 the house and worked on the farm. Murray 
 left, and one Patrick Philben took his place. 
 They slept in the house every night and went 
 through it every night with a dark lantern, and 
 were sleeping there the night of the fire — they 
 kept their clothes there and were there 
 frequently during the day. The court below 
 
204 WARRANTY IN FIRE INSURANCE. 
 
 ruled that any family living in it would have 
 been a compliance with the warranty — that the 
 common meaning of the word " Family" is the 
 dwelling together of those of the same lineage 
 bound together by ties of blood, or a dwelling 
 together of two or more persons collectively in 
 a house, and that if those persons dwelt there 
 as their home, they constituted a family. 
 
 Ames J. " The stipulation that a family 
 should live in the house throughout the year 
 was an express warranty, and without its literal 
 and exact fulfillment the policy would cease to 
 be binding upon the company. Its natural in- 
 terpretation would be that during the year the 
 house was to be under that kind of care and 
 supervision which would be furnished by its 
 ordinary and continuous occupation by a-family 
 keeping house in it and making it their home. 
 It is manifest that the security against fire 
 furnished by such a use of the house, would be 
 more effectual than the occasional, even though 
 
WARRANTY IX FIRE INSURANCE. 205 
 
 frequent visits of watchmen. Taking the word 
 ' family ' in its ordinary and popular sense we 
 see no ground for holding that the two work- 
 men who slept in the building constituted a 
 family within the meaning of the policy. That 
 is to say, they were watchmen, not a family. 
 We think, therefore, that the defendant was en- 
 titled to the rulings which it requested, and that 
 the jury were not justified in finding that the 
 plaintiff had complied with the warranty." 
 
 Corrigan vs. Connecticut Fire Insurance 
 Company. 122 Massachusetts, 298 
 
 Facts — Insurance upon house in Hyde Park, 
 the policy containing a provision if the house 
 remain vacant or unoccupied for ten days, with- 
 out notice to and consent of company, the 
 policy to be void. House occupied by one 
 Rooney, as tenant at will, who was notified by 
 plaintiff to quit because of non-payment of rent, 
 notice served on 14 April, 1875 ; next day 
 Rooney hired a house and moved into it, taking 
 
200 WARRANTY IN FIRE INSURANCE. 
 
 some furniture and leaving some, taking- it from 
 time to time; after 14 April, neither he nor any 
 of his family slept or eat there ; tenant retained 
 the key until Sunday before the fire, which 
 happened on Friday, 30 April, or 1 May, 1875, 
 some of his furniture remained in it until two 
 or three days before the fire. 
 
 The court below instructed the jury that if 
 the house had not been used as a dwelling- 
 house by some one within ten days of the fire 
 the policy was void, and that retention of the 
 key, and leaving some furniture in it, was not 
 occupancy within the meaning of the policy. 
 
 The court, on appeal, held : " It is quite 
 clear that all the facts embraced within the 
 inquiry may exist, and the house still be vacant 
 and unoccupied within the meaning of the con- 
 tract between the parties. It is stated that the 
 court ruled that if the jury found that the house 
 had not been used as a dwelling-place by some 
 one within ten days of the day of the fire, the 
 
WARRANTY IX FIRE INSURANCE. '2<»7 
 
 policy would be void. Certainly this language 
 expresses no incorrect statement of the law. 
 
 Harrison vs. City Fire Insurance Company, 
 9 Allen (Mass.), 231. 
 
 Insurance upon dwelling-house in Fall River, 
 represented in the application for insurance as 
 occupied by r tenants. Policy dated 2d Decem- 
 ber, 1861, and to run for three years, contain- 
 ing this clause: " Houses, barns, or other 
 buildings, insured as occupied premises, and 
 the contents thereof as in or on occupied 
 premises, the policy becomes void when the 
 occupant personally vacates the premises, un- 
 less immediate notice be given to this company 
 and additional premium paid." The house was 
 occupied till 12th October, 1862, when it was 
 vacated, and destroyed by fire 25th December, 
 1862. There was a question raised as to the 
 character of the agency and the effect of notice 
 to the agency. The judge instructed the jury 
 that the plaintiff was not entitled to recover, 
 
208 WARRANTY IN FIRE INSURANCE. 
 
 whereupon verdict was entered for defendant, 
 and case went up on plaintiff's exceptions to 
 this ruling, 
 
 The court above overruled the exceptions 
 on both points, holding, as to the question of 
 occupancy, — " under this clause it is clear that 
 the contract of insurance had terminated sev- 
 eral weeks prior to the occurrence of the loss 
 by fire." 
 
 Cook vs. The Continental Insurance Com- 
 pany, 70 Missouri, 610. 
 
 Facts : Insurance upon plaintiff's dwelling- 
 house in Sedalia. Policy dated 14th February, 
 1873, at twelve o'clock noon, to expire 14th 
 February, 1874, at twelve o'clock noon. House 
 destroyed by fire 26th October, 1873. About 
 two weeks before the fire plaintiff moved to 
 Kansas City ; shipped some furniture there ; 
 left three hundred dollars worth in the house ; 
 instructed one Bernard to sell a portion of it 
 and rent out the house ; one Southwick was 
 
WARRANTY IN FIRE INSURANCE. 209 
 
 instructed to take possession of, and sleep in, 
 the house ; Southwick went to Kansas City 
 three or four days before the fire, and was 
 there when it occurred. He left no one in it 
 but one DeLang to take charge of it, with 
 whom he left the keys, except his bedroom 
 key, and to rent it out before his return. 
 
 Xon-suit was entered on this testimony, and 
 case appealed on a motion to set aside this 
 non-suit. The court held, after referring to 
 the various cases: "Applying the doctrines of 
 the above cited cases to this, it is clear that, 
 within the meaning of the clause under con- 
 sideration, the premises insured were unoccu- 
 pied from the time plaintiff went to Kansas 
 City until the fire occurred. After he left the 
 premises there was no one living in it. His 
 sleeping there at night was not an occupation 
 of the house, within the meaning of the policy. 
 He did not occupy the house during the day. 
 It is true that there is more danger from in- 
 
210 WARRANTY IN FIRE INSURANCE. 
 
 cendiaries at night than in the day-time, but 
 dwelling-houses unoccupied during the day are 
 in more danger from that . class than when 
 occupied, and the abandonment of the prem- 
 ises by the plaintiff diminished the security 
 against the destruction of the house by fire. 
 Occupation of a dwelling-house is living in it. 
 A mere supervision over it is not sufficient. 
 It was plaintiff's business, under the policy, to 
 see that the house was occupied. 
 
 This case states very briefly but forcibly the 
 reason why insurance companies charge a higher 
 rate on an unoccupied than on an occupied 
 house, and also why they have contracted to 
 turn representations as to occupancy into war- 
 ranties. 
 
 Hermann vs. Adriatic Fire Insurance Com- 
 pany, 85 New York, 163. 
 
 Insurance was on a two-story and attic frame 
 dwelling house and three-story tower, out- 
 houses, furniture, etc. Policy dated 3 June, 
 
WARRANTY IX FIRE INSURANCE. "2 1 1 
 
 1874, to run three years; fire occurred 8 April, 
 1877; house was plaintiff's farm and summer 
 residence, where plaintiff and family lived dur- 
 ing summer and part of the fall. About 20 
 Nov., 1876, he left the house and went into the 
 city, leaving in it all his furniture and summer 
 clothing for self and family. The house insured 
 and contents left in charge of the farmer who 
 lived on the place as tenant and overseer, and 
 who or some of his family went through it once 
 a week. The plaintiff, generally with his wife, 
 visited the house once a fortnight; on 8 April, 
 1877, house destroyed by fire; policy contained 
 the usual provision as to vacancy for more than 
 thirty days. Verdict was for defendant, and a 
 new trial ordered on plaintiff's exceptions. 
 
 Folger (J.) held on the appeal: "It is clear 
 from the testimony that the dwelling house - 
 insured by the defendant was not occupied as 
 such at the time of the fire. The fortnightly 
 visits of the plaintiff and his wife to it were not 
 
212 WARRANTY IN FIRE INSURANCE. 
 
 the occupation that is meant when a dwelling 
 house is spoken of. The weekly tours of in- 
 spection of the farmer and members of his fam- 
 ily living on the grounds, and his supervision 
 of it from his own house were more useful, but 
 they fell short of being occupation of it. The 
 term 'unocupied' used in the policy is entitled 
 to a sense adapted to the occasion of its use 
 and the subject matter to which it is applied. 
 It does not need that we go into discussion of 
 the good reasons for exacting the condition on 
 taking a risk upon a dwelling house. It is 
 enough that the parties have come into that 
 covenant. It is to have a meaning fitted to the 
 circumstances in which it was made, and to the 
 subject to which it related. We have already 
 said enough to show our opinion that for a 
 dwelling house to be in a state of occupation, 
 there must be in it the presence of human be- 
 ings as at their customary place of abode, not 
 absolutely and uninterruptedly continuous; but 
 
WARRANTY IN FIRE INSURANCE. 213 
 
 that must be the place of usual return and habit- 
 ual stoppage." The judge declined to yield to 
 the view that this case was exceptional because 
 the company was chargeable with knowledge 
 of the character and use of the property at the 
 time of the insurance. 
 
 Paine vs. Agricultural Insurance Company, 
 5 New York Supreme Court, 619. 
 
 Insurance was upon a dwelling house from 
 28 October, 1870, for three years, which was 
 burned on 30 March, 187 1, the policy contain- 
 ing this clause: "If the house is left unoccupied 
 without giving immediate notice to the com- 
 pany the policy shall cease." 
 
 Facts —Paine and his wife separated about 
 1 September, 1870, he continuing to live in the 
 house until about 15 January, 1871, when he 
 went to the house of his son on account of ill- 
 health, to receive medical attention; that he 
 left all his household goods, effects, etc, in said 
 house, and in the same condition as when in 
 
214 WARRANTY IN FIRE INSURANCE. 
 
 actual daily occupation of it; that he spent one 
 night in it, maintained a general oversight over 
 it, and visited it on different occasions. 
 
 The court held, on appeal: "The only ques- 
 tion held on the appeal is whether the plaintiff 
 ceased to occupy the dwelling house within the 
 true intent and meaning of the policy,, so that 
 it became void and no longer binding on the 
 defendant. The insurer, when it provided in 
 the policy that it should become void when the 
 house was no longer occupied, understood that 
 the risks insured against were lessened when 
 the building was occupied, and that when it 
 ceased to be occupied the risk was so largely 
 increased as to render it no longer safe to 
 insure, unless it had immediate notice so that it 
 might, "if it saw fit, annul the policy unless a 
 higher rate of premium was paid, or itself pro- 
 vide against a fire and extinguishing it should 
 it occur. Occupation of a dwelling house is 
 living in it, not mere supervision over it. It is 
 
WARRANTY IX FIRE INSURANCE. 215 
 
 not necessary that some person should live in. 
 it every moment during the life of a policy con- 
 taining such a provision as is contained in the 
 one before us, but there must not be a cessation 
 of occupancy for any considerable portion of 
 time. As the policy requires immediate notice 
 of the cessation of occupancy, the abandon- 
 ment of the premises must be very short indeed 
 that will not work a forfeiture of it. Constant 
 occupancy of it is required by the insurer, be- 
 cause the danger of fire is believed to be less- 
 ened, and if it should happen, the probability of 
 its extinguishment before serious injury is done 
 is materially increased. While the plaintiff was 
 at his son's, in Albion, during six weeks, the 
 increased hazard was imposed upon the insurer 
 without iis knowledge, and in palpable viola- 
 tion of the terms of the contract between the 
 parties. " 
 
 This case of Abrahams vs. Agricultural In- 
 surance Company, 40 Up. Can., 2 B., 175, is 
 
216 WARRANTY IN FIRE INSURANCE. 
 
 taken from Bates' Digest of Insurance Decis- 
 ions : 
 
 Policy provided that it should not be liable 
 for any loss which may happen while the house 
 is "left without an occupant or person actually 
 residing therein, " but that a temporary absence 
 of the members of his family, none of the house- 
 hold fixtures being removed, should not be con- 
 strued as non-occupancy. It appeared that the 
 house insured was in possession of a tenant; 
 that the fire took place on the ioth of Septem- 
 ber, 1875, but that the tenant did not reside, 
 sleep or eat on the premises for six or eight 
 days before the fire, nor did any other person. 
 The goods of the tenant were removed about 
 forty-eight hours before the fire. The assured 
 was not guilty of any personal default; he lived 
 seven miles from the house, and was not aware 
 that the tenant had ceased personally to occupy. 
 Tenant held the premises by the month; he 
 was in arrears for rent and his goods distrained. 
 
WARRANTY IX FIRE INSURANCE. 217 
 
 The month did not expire until the 24th of 
 September. The assured did not suppose he 
 would quit the premises before that day, and 
 had a person ready to take possession as soon 
 as the tenant left. Held, there was a breach of 
 the condition and the plaintiff could not recover. 
 In such a case the question of increase of risk 
 is immaterial. 
 
 Sleeper vs. X. H. F. Insurance Company, 
 58 N. H. (1 Hall), 401. 
 
 I quote from the opinion, to wit, Smith, J.:. 
 " By the written contract of insurance made be- 
 tween these parties, of which the policy is the 
 evidence, it was agreed as follows: 'If the 
 premises hereby insured become vacated by the 
 removal of the owner or occupant, without im- 
 mediate notice to the company and consent 
 indorsed thereon, this policy shall be void.' ' 
 
 These buildings were occupied by a tenant 
 of the insured, and the rent had been settled 
 for up to May, 1872. The tenant left in July, 
 
218 WARRANTY IN FIRE INSURANCE. 
 
 1 87 1, and wsnt to Laconia — his family having 
 left a short time previous. The wearing ap- 
 parel of the tenant and his family had all been 
 taken away, and a portion of what little furni- 
 ture they possessed. He intended to return 
 the next spring or earlier, if business should be 
 dull at Laconia. No person lived in the build- 
 ings after he left. The buildings were totally 
 destroyed by fire October 30, 1871, up to 
 which time he had not decided to return at 
 any definite period. Neither the plaintiff nor 
 the defendants had any notice that the tenant 
 had vacated the premises till after the fire. 
 The point is raised, whether upon these facts 
 it is a question oT law or a question of fact 
 whether the premises had become vacant. If 
 it is a question of fact, then the referee finds 
 that the premises were vacated within the 
 meaning of the policy ; if it is a question of 
 law, I am of opinion that the premises were 
 vacant. The contract is to have a reasonable 
 
WARRANTY IN FIRE INSURANCE. 219 
 
 interpretation, according to the ordinary accep- 
 tation of the language used. It is apparent 
 the insurers intended to guard against the 
 increased risk which inevitably affects build- 
 ings where no one is living or carrying on any 
 business. An unoccupied building invites a 
 shelter to wanderers and evil- disposed per- 
 sons. Xo one interested is present to watch 
 or care for the property, or seasonably to ex- 
 tinguish the flames in case of fire ; and for 
 various reasons, that might be enumerated, an 
 unoccupied building is more exposed to de- 
 struction, to say nothing of the inducement a 
 dishonest owner would have to turn it, if un- 
 profitable, into money, when insured, by be- 
 coming a party to its destruction by fire. If 
 then the motive is to have some one present, 
 occupying and dwelling in the buildings, and 
 interested to preserve the roof that shelters his 
 family or holds his household goods, that ob- 
 ject would plainly be defeated by holding that 
 
220 WARRANTY IN FIRE INSURANCE. 
 
 he and his family may depart with all their 
 possessions, save perhaps a few articles not 
 needed for present use, and still the premises 
 be considered occupied. It is true, that often 
 a person may vacate his home with his family, 
 and a portion or all his possessions, for a tem- 
 porary visit, and yet his residence or home be 
 considered, for the purpose of , voting or being 
 taxed, to be in the place thus temporarily 
 abandoned. But whether, in law, a person 
 has temporarily or permanently abandoned his 
 home, is altogether a different question from 
 the one whether buildings are vacant when 
 abandoned even for a temporary purpose. I 
 cannot say that I have any doubt that these 
 buildings were vacant at the time they were 
 burned in the sense in which that term was 
 used in the policy." 
 
 According to this case, if the occupant left 
 the house, animo revertendi, for a short time 
 on a pleasure trip, for instance, his household 
 
WARRANTY IN FIRE INSURANCE. 221 
 
 I 
 
 servants and furniture remaining in it for use 
 on his return, it would probably not be vacancy 
 in law, but it is clear that if all the servants 
 leave at the same time when all the members 
 of the family go off, that such a vacancy, 
 although temporary, avoids the policy. And 
 why? The reason is very important, and is 
 given in this case because no one is left there 
 who is interested, as owner or occupant, to 
 extinguish the flames ; — as owner, because it is 
 his own property, and he is therefore deeply 
 interested as an act of good faith in checking 
 the fire at once ; as occupant, because it is the 
 roof which shelters his family and covers his 
 household goods. Because of this deep interest 
 and of the fact that unoccupied property, if a 
 dwelling-house, is more exposed to destruction, 
 the rate of insurance being estimated on them 
 as the most essential factors, it is justly held 
 that when the use and description of property 
 are jointly set forth on the face of the policy, 
 
222 WARRANTY IN FIRE INSURANCE. 
 
 they thus combine a form or create a warranty 
 which runs with the risk during the entire 
 existence of the contract. It is not that some 
 human being as a servant, hired to watch the 
 property, is there, that the rate is lowered, 
 because the property is thus occupied, but the 
 person must be interested to extinguish the 
 flames because of his pecuniary interest in the 
 property or its contents, and as an act of good 
 faith to the company, otherwise he might find 
 an inducement not to extinguish the flames in 
 order to recover the amount of insurance, 
 
 The American Insurance Company vs. Oli- 
 ver P. Foster, 92 111., 335. .Company issued a 
 policy insuring the property as a school house, 
 and the furniture, for five years. By the terms 
 of the policy, if the house became vacant and 
 unoccupied, no recovery to be had unless the 
 company assented thereto. The house was, 
 when insured, occupied and used as a school 
 house. After April, 1875, no school was held, 
 
WARRANTY IN FIRE INSURANCE. 223 
 
 furniture was removed, and the house was then 
 used as a dwelling house; was last occupied as 
 such in April, 1876, and after that was vacant 
 and unoccupied till destroyed, and the assent of 
 the company was not endorsed on the policy. 
 " It is, however, contended that as the building 
 was insured as a school house, and the com- 
 pany knew it was to be so used, it may be in- 
 ferred it was intended to be vacant and unoc- 
 cupied as common school houses usually are in 
 vacation ; that all knew that the common school 
 houses of the country are not continuously oc- 
 cupied, and it must be inferred that occupancy 
 of that character was intended. 
 . "If such had been the intention of the parties 
 they would, no doubt, have so written the con- 
 dition; and the bare reading of the language 
 repels such an inference. The language requires 
 an uninterrupted occupancy, at least of the char- 
 acter usual to houses occupied for schools. It 
 may be, and probably is, true, that there being 
 
224 WARRANTY IN FIRE INSURANCE. 
 
 no person in the building of nights and Satur- 
 days and Sundays, would not amount to a 
 breach of the condition and avoid the policy, as 
 such is the usual manner of occupying school 
 houses. But the strained construction cannot 
 go beyond that, so as to hold that it need not 
 be occupied as a school or as a residence for 
 several months. To so hold would be a per- 
 version of the language the parties have em- 
 ployed to express their meaning. _ 
 
 "These policies are contracts between the 
 parties, and in them they may insert any and 
 all conditions they choose, unless prohibited 
 by statute or considerations of public policy. 
 The parties being able to contract, and such 
 an agreement not being illegal, the parties 
 must be bound by it as they have made 
 it." 
 
 According to the principles herein decided, 
 the condition must be kept according to the 
 usual manner incident or natural to the prop- 
 
WARRANTY IN FIRE INSURANCE. 225 
 
 erty insured. It must be occupied according 
 to the uses for which it was built. 
 
 /Etna Insurance Co. vs. Meyers, 63 Indiana, 
 238. 
 
 As this case is very frequently cited, I will 
 make a very long extract, giving a full abstract 
 of the case from the report. 
 
 The policy issued on a dwelling house for 
 one year; loss was total; verdict for plain- 
 tiff, Meyers. The following is the evidence, as 
 stated by the judge deciding the case: "It ap- 
 peared by the evidence that the house was 
 occupied by tenants when it was insured; that 
 the tenants failed to pay the rent when due, and 
 the landlord took steps to remove them. Mey- 
 ers, the owner, testified no one lived in the 
 house at the time of the fire. The tenants left 
 on Friday or Saturday. The building was 
 burned the next Tuesday. The building was 
 used as a tenant house. It was a double tene- 
 ment usually occupied by two families. I put 
 
226 WARRANTY IN FIRE INSURANCE. 
 
 the tenants out because they would not pay 
 rent. I had engaged it>to S. C. Carney as soon 
 as I could get them out and have the building 
 repaired a little; plastering and whitewashing 
 was all that was needed. Carney was living in 
 my house across the street, and was to go into 
 it for a year as soon as I could get tenants out 
 and get Fred Meyers to fix the house. The 
 tenant was to move in as soon as it was repaired. 
 No notice was required of the vacancy." 
 
 The following is the condition in the policy : 
 " It is hereby agreed and declared to be the true 
 intent and meaning of the parties hereto, that 
 in case the above-mentioned building shall, at 
 any time after the making and during the con- 
 tinuance of this insurance, become unoccupied, 
 or be altered or repaired, or have carpenter or 
 mechanical work done thereon, unless herein 
 otherwise specially provided for, or hereafter 
 agreed by the company in writing, and added 
 or indorsed on this policy, then and from thence- 
 
WARRANTY IX FIRE INSURANCE. 227 
 
 forth, so long as the same shall be so unoccu- 
 pied, these presents shall cease and be of no 
 force and effect." 
 
 The following is the instruction of the court 
 below : ' The condition in the policy as to 
 occupancy should have a liberal construction; 
 and if a house is occupied and rented by tenants, 
 a few days' time between the outgoing and in- 
 coming tenant, being a reasonable time to make 
 the change, would not make the policy void in 
 case of loss. " This instruction was excepted to. 
 
 The following is from the opinion of the 
 court on appeal : "' The policy in this case was 
 for a year upon a house occupied at the time 
 the policy was issued by tenants. It did not 
 prohibit a change of tenants, but provided, not 
 that the policy should become void on the house 
 becoming unoccupied, but that the policy should 
 cease to operate so long as the non-occupancy 
 should continue, and revive upon the house 
 being reoccupied. 
 
228 WARRANTY IN FIRE INSURANCE. 
 
 "In the case at bar, the house was unoccu- 
 pied at that time it was burned; it had been 
 unoccupied for about four days; some of the 
 witnesses make the time longer; and no defi- 
 nite time when it was to be occupied was fixed. 
 It was to be occupied as soon as it should be 
 repaired by Fred Meyers. As matter of fact, 
 as we have said, the house was unoccupied 
 when it was burned. 
 
 (Keith vs. Quincy Mutual Fire Insurance Co., 
 10 Allen, 228.) 
 
 "By its terms the company, the appellant, 
 was not liable on the policy sued on. The policy 
 was a contract. What reason appears for giv- 
 ing it an operation, by construction, different 
 from that which its terms require? It seems to 
 us that the literal meaning expresses just what 
 the parties intended. Here a tenant house is 
 insured for a year. A change of tenants dur- 
 ing the time is not prohibited, and might natu- 
 rally be expected ; short intervals in which the 
 
WARRANTY IN FIRE INSURANCE. 229 
 
 property would be vacant might naturally occur. 
 The contract (the policy) provided that when 
 they did occur, the policy should not be opera- 
 tive during their existence. The rate of insur- 
 ance, we may presume, was less than it would 
 otherwise have been in consequence of this 
 provision. This, it seems to us, is the most 
 reasonable view to be taken of the clause in 
 question in the policy. If the construction we 
 have placed upon the policy be correct, the 
 instruction copied which was given by the court 
 and excepted to, was erroneous. The policy 
 was not made void by non-occupancy for any 
 length of time ; its operation as a protection 
 from loss was suspended only during such non- 
 occupancy. The insured took the risk of loss 
 himself during such a period, a fact which would 
 naturally stimulate him to promptness in pro- 
 curing a tenant on the house becoming vacant. " 
 The judgment was reversed. 
 
230 WARRANTY IN FIRE INSURANCE. 
 
 The good faith exercised by Meyers in get- 
 ting a tenant to occupy the house as soon as 
 the repairs were done, was not ponsidered by 
 the court as tantamount to a performaace of the 
 condition. There was to be a continuous occu- 
 pancy of the house during the year, and if not 
 the policy was suspended, and the risk was 
 taken by the_owner during the vacancy. The 
 same principle would necessarily follow if dur- 
 ing vacancy or non-occupancy without notice 
 the policy was to be void. It is simply a ques- 
 tion of compliance with the condition during 
 the running of the risk, the condition under the 
 varying decisions of the courts having been 
 substituted for the warranty in the policy as 
 formerly drawn. The failure to comply with 
 the condition for four days was as fatal as a 
 failure for four months. 
 
 Wustum vs. City Fire Insurance Company, 
 15 Wis., 138. 
 
WARRANTY IX FIRE INSURANCE. 231 
 
 Facts — Policy issued on an occupied house 
 at the date of the insurance, and at the renewal 
 nothing said as to the occupancy, which was 
 known to the agent; the premium paid was the 
 lowest paid for occupied buildings of the same 
 class; plaintiff knew the house was vacant 
 seven months before the fire; policy issued on 
 1 6 April, 1S58, and twice renewed; house con- 
 tinued occupied till last of April, 1860, when 
 tenant moved out of, locked and fastened the 
 house; no additional premium was paid or 
 offered to be paid by the owner. Conditions 
 in the policy: Unoccupied houses must be in- 
 sured as such, or the policy is void; house, 
 barn, etc., insured as occupied or on occupied 
 premises, the policy becomes void when the 
 occupant personally vacates them, unless notice 
 is given to the company and additional premi- 
 um paid. 
 
 The court held: "Under this state of facts 
 the question arises, Can the respondent re- 
 
232 WARRANTY IN FIRE INSURANCE. 
 
 cover ? We are clearly of the opinion that he 
 cannot. It will be readily seen by the condi- 
 tion above cited that where houses, barns. or 
 other buildings were insured as occupied prem- 
 ises, the policy became void when the occupant 
 personally vacated the premises, unless imme- 
 diate notice was given to the company and 
 additional premium paid. And although the 
 premises in the present case were vacant and 
 unoccupied for some months previous to and 
 up to the time of the fire, yet it is not pre- 
 tended that any notice of that fact was ever 
 given to the company, or that any additional 
 premium was offered to the company in conse- 
 quence of the property being in this condition. 
 But still the plain, obvious stipulations of the 
 parties required this to be done, or otherwise 
 the policy was to become void. It seems im- 
 possible to escape this result without doing 
 violence to the spirit and meaning of the fifth 
 condition of the policy. Most assuredly the 
 
WARRANTY IX FIRE INSURANCE. 233 
 
 respondent undertook and agreed to give no- 
 tice to the company in case the premises 
 became vacant, and to pay such additional pre- 
 mium as might reasonably be required in con- 
 sequence of any increased risk or hazard to the 
 property. But it is said there is no evidence 
 in the case anywhere tending to show that the 
 risk was increased in the slightest degree by 
 the vacating of the premises by the tenant, and 
 that if this were so the burden of establishing 
 that devolved upon the company. It is by no 
 means clear that a vacant dwelling is not ex- 
 posed to greater hazard than it ordinarily would 
 be when occupied; that it is not more likely in 
 this condition to provoke (15 Wis.) the malig- 
 nity or invite the rashness of the malicious felon 
 or wanton intruder. Certainly it would seem 
 that the company in this instance acted upon 
 that idea, otherwise it would not have annexed 
 such a condition to the policy. However this 
 may be, it is a sufficient answer to this argu- 
 
234 WARRANTY IN FIRE INSURANCE. 
 
 merit to say that the parties thought proper to 
 make it a condition that in the event it became 
 vacant, immediate notice thereof should be 
 given. It is not for the courts to dispense with 
 this agreement of the parties. Even if we 
 could assume that the risk to the premises did 
 not increase by their becoming vacant, still the 
 parties have made it a condition that notice 
 should have been given the company, and this 
 has not been done. The courts might with as 
 much propriety attempt to relieve the assured 
 from any other executory stipulation which 
 he undertook to perform, as from this. So, 
 whether the risk to the premises in fact be- 
 came greater because they were vacant and 
 unoccupied, it is not material now to inquire. 
 The parties expressly stipulated in the policy, 
 or in the above condition annexed to the pol- 
 icy and made a part of it, that if the insured 
 premises should become vacant, immediate 
 notice of that circumstance should be given to 
 
WARRANTY IN FIRE INSURANCE. 235 
 
 the company. If this were not done, it avoided 
 the policy. Such is the manifest agreement of 
 the parties, and they must be bound by it. " 
 
 Chandler vs. Commerce Fire Insurance 
 Company, 88 Pennsylvania State Reports, 228. 
 
 "The first specification of error is to the 
 judgment of the court below upon the reserva- 
 tion of the defendant's second point, which was 
 substantially the same as the eighth point and 
 fifth specification, whether there was sufficient 
 evidence that the premises were vacant and 
 unoccupied at the time of the fire. Though 
 the jury found for the plaintiff, judgment for the 
 defendants was entered non obstante veredicto. 
 The plaintiff testified : ' My son was occupying 
 it, keeping bachelor's hall.' The son testified 
 that he occupied the house after his father 
 moved out, but was not at home the night of 
 the fire." There were, indeed, two witnesses 
 examined on the part of the defendants, who 
 said that they saw no signs of life about the 
 
236 WARRANTY IN FIRE INSURANCE. 
 
 house for several weeks before the fire. Here 
 was certainly^ a question of fact for the jury, 
 something more than a scintilla of proof, and 
 the court had no right to withdraw the case 
 ftom that tribunal by such a reservation. An 
 occasional absence for a single night, even 
 though it should so chance to be the night of 
 the fire, would certainly not make it a vacant 
 or unoccupied house." 
 
 Cummins vs. Agricultural Insurance Com- 
 pany, 67 New York, 262. 
 
 Rapallo, J. : "At the general term this case 
 was decided mainly upon the authority of Paine 
 vs. the same defendant (5 N. Y. Sup. Ct. [S. 
 & C] big.). The policy in that case contained 
 a provision that should the house be left unoc- 
 cupied without giving immediate notice to the 
 company the policy should be void. The occu- 
 pants, being husband and wife, separated and 
 left the house unoccupied for several weeks, 
 though their household effects were left upon 
 
WARRANTY IN FIRE INSURANCE. 23 Y 
 
 the premises, and the husband occasionally went 
 there. The Supreme Court held that the house 
 was left unoccupied within the meaning of the 
 policy. After that decision it appears that the 
 defendant changed the form of its policies, and 
 in the one now in question, in place of the pro- 
 vision that leaving the house unoccupied should 
 avoid the policy, inserted the clause that if the 
 house should become vacated by the removal 
 of the owner or occupant, the policy should be 
 void, etc. The court below expressed the 
 opinion that there was not, in effect, any sub- 
 stantial distinction between the language used 
 in this policy and that used in the policy in the 
 Paine case, or such as would allow the court to 
 depart from its decisions. 
 
 "The question is not free from difficulty, but 
 ic seems to us that there is a material distinc- 
 tion between the two provisions. In the case 
 of Paine the mere fact that the house was left 
 unoccupied was sufficient to avoid the policy 
 
-238 WARRANTY IN FIRE INSURANCE. 
 
 according to its express terms, unless immedi- 
 ate notice were given In the case of Westum 
 vs. City Fire Insurance Company (15 Wis., 138) 
 and Harrison vs. same company (9 Allen, 231), 
 which are relied upon as authorities in the Paine 
 case, the clause was that the policy should be- 
 come void if the occupant personally vacated 
 the premises without giving immediate notice; 
 and in the case of Keith vs. Quincy Mutual 
 Fire Insurance Company (10 Allen, 228), the 
 clause was that the policy should become void 
 if the building remained unoccupied over thirty 
 days without notice. In all these cases it was 
 immaterial how the house came to be vacated or 
 unoccupied. The fact alone was sufficient. But 
 in the present case, merely vacating the house 
 or leaving it unoccupied was not declared in the 
 policy to be. sufficient to terminate the insur- 
 ance. The condition was superadded that it 
 must have been vacated by the removal of the 
 owner or occupant. Some significance must 
 
WARRANTY IN FIRE INSURANCE. l 23!:» 
 
 be attached to the words, and we think that 
 they refer to a permanent removal and entire 
 abandonment of the house as a place of resi- 
 dence. So long as the occupant retained it as 
 his place of abode, intending to return to it, 
 and left his furniture and effects there, some 
 degree of watchfulness and care on his part 
 might reasonably be expected. He would con- 
 tinue to have an interest in its protection and 
 preservation, and in common parlance he would 
 not be said to have removed therefrom. The 
 absence of Albert Cummins and his wife, though 
 for a considerable period, was temporary in its 
 nature, and for a purpose. There was evidence 
 that he still retained the house as his residence, 
 and left his furniture and clothing of his family 
 there ; that during his absence his wife took 
 care of the house, going there every week to 
 cleanse it, and from time to time to obtain arti- 
 cles required for immediate use, and for other 
 purposes, and that it was their intention to 
 
240 WARRANTY IN FIRE INSURANCE. 
 
 return as soon as the plaintiff had finished his 
 canvassing trip. " 
 
 Hill vs. Equitable M. F. Insurance Com- 
 pany, 58 New Hampshire, 82. 
 
 Facts : Policy was issued upon condition 
 that if the house is vacated by the owner or 
 occupant, notice thereof to be given, stating 
 the particulars of such vacation or removal, and 
 the time the house is to be unoccupied. Notice 
 given that the son of plaintiff and his wife, who 
 occupied house, were about to leave it for three 
 or four weeks ; that they were only going on a 
 visit and would not carry away their things. 
 They left, and carried off substantially all their 
 household property. At the end of three weeks 
 the empty house was burned. 
 
 The court held: "The contract required 
 notice of the particulars of the intended re- 
 moval. The notice given was not that sub- 
 stantially all the household goods would be 
 removed, but that no such removal would take 
 
WARRANTY IN FIRE INSURANCE. 2-il 
 
 place. If such goods are not excessively in 
 sured their presence in the house generally has 
 a tendency to prevent the burning of the house 
 by the owner. The danger of his burning his 
 goods, the difficulty of removing them after he 
 sets the fire, and the*evidence furnished by his 
 preparatory removal of them before the fire T 
 afford a protection of a substantial character 
 against fraudulent incendiarism which insurers 
 may well avail themselves of. The house con- 
 taining the goods of the absent family is more 
 likely to be cared for, and less likely to be 
 burned, than an empty house. The increase 
 of the risk causod by removing the goods is 
 material. Their removal is one of the material 
 particulars of the subject of occupation, con- 
 cerning which the plaintiffs gave the defend- 
 ants information contrary to the event The 
 case does not come within the principle of 
 Cummins vs. A. Ins. Co., 67 N. Y., 260, and 
 the defendants are entitled to judgment." 
 
242 WARRANTY IN FIRE INSURANCE. 
 
 McLure vs. Watertown Fire Insurance Com- 
 pany, 9 Insurance Law Journal, 210, reported 
 in 90 Penn. State. 
 
 The court below gave a preemptory instruc- 
 tion for the company, which was affirmed on 
 appeal. The condition of the policy was as 
 follows: "If, without the written consent of the 
 company, first "had and obtained, the dwelling 
 house or houses hereby insured become vacant 
 by the removal of the owner or occupant, or 
 cease to be occupied in the usual and ordinary 
 manner that dwelling houses are occupied, etc." 
 The court held on appeal: "This provision be- 
 came a part of the contract. The company 
 agreed to insure the premises at a certain rate, 
 and the plaintiff, in consideration thereof, on 
 his part agreed that the property should be 
 occupied, either by himself or his tenants dur- 
 ing the running of the policy, and- if at any 
 time it became vacant, then, and in that case, 
 this policy should be of no other force and 
 
WARRANTY IN FIRE INSURANCE. 243 
 
 effect. It is urged that the plaintiff's tenant 
 left the premises without his knowledge and 
 consent, and that as soon as he discovered that 
 fact he endeavored to procure a new one; all 
 this may be admitted as true, but then, who 
 was to bear the risk in the meantime ? Not 
 the company, for it had expressly provided that 
 it would assume no such risk. What, then, 
 mattered the good intentions of the plaintiff ? 
 It is not whether the risk was increased, or 
 whether the plaintiff acted in good faith, but 
 whether he complied with the condition he had 
 adopted by accepting the policy." 
 
 The nature of the risk and the estimate or 
 factors upon which the rate or premium is cal- 
 culated, are disclosed by the description of the 
 structure in the policy, and the uses to which it 
 is put by the insurer. To illustrate : An house 
 insured as a dwelling-house or family residence 
 is a very different risk (speaking in insurance 
 terminology), from an house insured as "occu- 
 
244 WARRANTY IN FIRE INSURANCE. 
 
 pied as a dwelling-house. " Very different ele- 
 ments enter into the estimate of the premium 
 to be charged. In the one case the house is 
 insured simply as a building — in the other the 
 supervision and care of the owner occupying it 
 as his home, or of the tenant who is interested 
 in the care and protection of it through his 
 household goods, enter into the risk and the 
 premium charged. These elements enter also 
 into the way or manner in which the condi- 
 tions are to be performed or kept — that is to 
 say, a dwelling-house or family residence must 
 be occupied when the house is insured, occu- 
 pied as such, in the way in which such an 
 house is usually occupied. An occasional ab- 
 sence on a visit of pleasure or business for a 
 reasonable time would not affect the perform- 
 ance of the condition so as to render the policy 
 void, or release the company from liability for 
 a loss by reason of this absence, because there 
 was the "animus revertendi." And the "ani- 
 
WARRANTY IN FIRE INSURANCE. 24:5 
 
 mus revertendi" is the real gist of the question 
 in all cases where the issue turns upon the 
 manner in which the condition was performed 
 or kept, or whether performed at all or not. 
 Leaving the furniture and servants in the house 
 when going off on a visit of pleasure or for 
 business is strong proof of the "animus revert- 
 endi." But when the owner or occupant leaves 
 it in fact without any intention of returning to 
 it, trying in good faith to get another tenant to 
 fill out the unexpired portion of the year, or 
 during the balance of the risk yet to run, can- 
 not protect the insured. Good faith not being 
 a defense, the question is, did he keep or per- 
 form the conditions in the policy during the 
 running of the risk ? If the house was insured 
 as occupied, at a certain rate, because it was so 
 occupied, good faith could consist only in keep- 
 ing it occupied during the risk, not as a de- 
 fense to protect the property-holder from his 
 failure to keep his contract, but because it was 
 
2±6 WARRANTY IN FIRE INSURANCE. 
 
 his duty to perform his contract according to 
 its terms and conditions. 
 
 An attempt to keep a contract is never tan- 
 tamount to a positive performance of the con- 
 tract according to its terms, no matter how 
 honestly and persistently that may have been 
 made. In the case of Jackson Owsley & Co. 
 vs. ^Etna Insurance Company, 16 Ben Monroe, 
 259, the court speaks of" good faith " as justi- 
 fying a liberal construction of the policy in be- 
 half of the insured, but a careful reading of the 
 text discloses the very important qualification 
 and restraint on its operation by confining it to 
 the "good faith" which has been shown by the 
 insured in his representations to the insurer, as 
 the basis upon which the policy was issued, and 
 as to what on those representations and the 
 terms of the policy the insurance was to attach* 
 and be included in the risk. 
 
 Leaving a servant in a house to take care of 
 it, and which had been insured as occupied 
 
WARRANTY IN FIRE INSURANCE. 247 
 
 as a family residence or dwelling house, is not 
 such a compliance with the condition as will 
 perform it; because, ist, the care of a servant 
 nowise interested in the property as owner or 
 or as a tenant having his own household goods 
 to protect, is not the care and supervision of 
 the family of the owner or of the tenant ; and, 
 2d, because it is not the care and supervision 
 which the property-holder agreed to give the 
 property ^the rate charged being estimated on 
 his own care and that of his family, which con- 
 cerned his own home or property, or on that of 
 his tenant which was enlisted in his interest to 
 protect the property insured through the care 
 necessary to protect his own (tenant's) house- 
 hold goods. He agreed to give the highest 
 care, and therefore paid the lowest rate. He 
 cannot be permited to substitute the lowest care 
 without increasing the rate necessary to justify 
 such a risk being taken by the company. 
 
248 WARRANTY IN FIRE INSURANCE. 
 
 Mr. Wood, in his work, on page 184, lays 
 down this general principle., and sustains it by 
 two decisions, the one from Massachusetts and 
 the other from Illinois. His text is as follows : 
 Where a policy contains a provision that "if 
 the premises shall be occupied or used so as to 
 increase the risk, or shall become vacant and 
 unoccupied, or the risk increased by any other 
 ■means within the control of the assured, etc., the 
 policy shall become void; if the premises are 
 vacated, the assured must show that they be- 
 came so without fault on his part and by reason 
 of causes not under his control, as, if the term of 
 the tenant expired, that he had used reasonable 
 effort to secure another, and failing in such 
 proof, his policy is avoided. 
 
 The Massachusetts case is Kelly vs. Worces- 
 ter Mutual Fire Insurance Company, 97 Mass., 
 286, and was decided by Justice Gray. I give 
 his opinion in full: 
 
WARRANTY IN FIRE INSURANCE. 249 
 
 " We have not found it necessary to consider 
 the question, which was much discussed at the 
 bar, whether by the fair construction of the 
 agreed statement, the plaintiff must be taken 
 to have known that the building insured was 
 used for unlawful purposes, because we are of 
 opinion that upon the undisputed facts such 
 knowledge need not be shown in order to sus- 
 tain the defense. 
 
 The plaintiffs' tenant for two or three months 
 before the fire, stored a number of barrels of 
 intoxicating liquors in it, and did, in fact, sell 
 the same there by retail without license, in vio- 
 lation of the Gen. Sts., Ch. 86, §§ 28—34, and 
 did not sell or keep for sale on the premises any 
 other property. This habitual use of the build- 
 ing for an unlawful purpose by the tenant, even 
 if unknown to the owner, avoided his policy, 
 by the terms of the first proviso, the manifest 
 object of which is to deprive certain risks which 
 the insurers will not assume, without regard to 
 
250 WARRANTY IN FIRE INSURANCE. 
 
 the question whether they arise or exist by the 
 act or with the knowledge of the assured; and 
 the omission of any reference to him in this 
 proviso is made the more marked by the re- 
 peated mention of his action and control in 
 the proviso which immediately follows. The 
 clause in the first proviso, which might most 
 plausibly be argued to involve his knowledge 
 or permission is that next after the clause, ' it 
 occupied or used for unlawful purposes,' by 
 which it is further stipulated that 'if wood ashes 
 are allowed in wooden vessels the policy shall 
 be void.' But it has been decided by this court 
 that a policy containing a clause almost precisely 
 like this was avoided by the placing of ashes 
 in a wooden barrel by a servant without any 
 direction of the assured. 
 
 In some of the cases cited for the plaintiff, 
 the prohibited use was not so constant or habit- 
 ual, or of such a nature, as to fall within the 
 terms of the provision, and in the others the 
 
WARRANTY IN FIRE INSURANCE. 251 
 
 knowledge or assent of the assured was ex- 
 pressly required in order to avoid the policy. " 
 I have omitted the authorities used by Judge 
 Gray. 
 
 This opinion would support any other gen 
 eral principle in insurance law, fully as well 
 and as logically as it does the one quoted from 
 Mr. Wood, and to which it refers. There is 
 not even a distant inference to be drawn from 
 it which gives the slightest support to his text. 
 
 The Illinois case is North American Fire 
 Insurance Company vs. Zaenger, 63 111., 464. 
 
 The condition in the policy is as follows: 
 "Or if, during the continuance of this policy, 
 the above mentioned premises shall be occu- 
 pied or used so as to increase the risk, or shall 
 become vacant and unoccupied, or the risk be 
 increased by the erection or occupation of 
 neighboring buildings, or by any means what- 
 ever within the control of the assured, without 
 the consent of the company endorsed thereon, 
 
252 WARRANTY IN FIRE INSURANCE. 
 
 then and in every such case, this policy shall 
 be void." 
 
 The court held: "This condition is in the 
 nature of a warranty by the assured that the. 
 house should riot become vacant if within the 
 power of defendant in error to prevent it." 
 
 To recover, then, it was necessary that this 
 condition should be performed, or it should 
 have been shown that the vacation of the house 
 was beyond the control of the defendant in 
 error. This was his undertaking, and he was 
 bound to observe it. It did not, under the 
 terms of the condition, require the consent of 
 defendant in error that the premises might be- 
 come vacant to avoid the policy; but it required 
 that they should continue occupied unless de- 
 fendant in error should, without fault, be unable 
 to prevent their becoming vacant. Defendant 
 in error was required to prove that the vacancy 
 of the premises was beyond his control. This 
 opinion turned exclusively upon the peculiar 
 
WARRANTY IN FIRE INSURANCE. 253 
 
 language of this particular policy. General 
 principles in the law of insurance were not dis- 
 cussed, in fact did not and could not arise on 
 the pleadings and facts in the case. Mr. 
 Wood's deduction is neither impartial nor log- 
 ical. The court holds that under a proper 
 construction of this condition, the property- 
 owner was required to keep the insured prop- 
 erty occupied, and to plead and to prove that 
 the vacancy was without his fault and becoming 
 vacant by causes not under his control he was 
 unable to prevent such vacancy. 
 
 I have written this commentary or treatise 
 on the subject of Warranty in the Fire 
 Insurance Contract solely in the interests of 
 justice, and for the sake of truth. Truth can 
 not be unacceptable to an honest judiciary, 
 and justice is the earnest demand of every 
 litigant. 
 
 19 July, 1883. 
 
INDEX 
 
 PAGES. 
 
 Subject of Treatise 5 and 6 
 
 Warranty in Presenti. 
 
 Error in Words 6 
 
 Difference between Life and Fire Insurance 6-10 
 
 Principles Common to Both 10 
 
 Nature of Life Insurance 10 
 
 Nature of Warranty in Presenti 11 
 
 Horn vs. Am. Mut. Life Ins. Co., 64 Barbour, 81. . . . 12 
 
 Defines Warranties in each Contract 12-14 
 
 Bliss' Definition of Warranty 15 
 
 The Legal Extent of a Warranty 16-19 
 
 Warranty in Fire Insurance discussed herein 18 
 
 Nature of the Contract Set Forth and Analyzed .... 18-21 
 
 Extracts from May on Insurance as Warranty 24-27 
 
 Discussion and Analysis of Principles in Extracts . . . 28-34 
 
 Extracts from May Continued 34-39 
 
 Extracts from Wood on Insurance . . .. 40-43 
 
 Analysis of Extracts from Wood 40 
 
 " " 43-45 
 
 Distinction by Angell as to Warranties 45 
 
 Statements of Law by Arnold 46 
 
 Distinction between Warranty and Kepresentation . . 46-54 
 
 Marshall's Definition of Kepresentation 55 
 
 Duer's Dissent from Marshall 55 
 
 Justice Gray's Definition in Kimball Case, 9 Allen, 
 
 (Mass.,) 540. 49-50 
 
 Phillips' Definition 51 
 
 Kepresentation Not a Part of Contract. 56 
 
 Authorities Cited 57 
 
 Promissory Kepresentation, When Valid 58-59 
 
 Cases Discussed 59 
 
 Wood vs. H. Fire Ins. Co., 13 Conn., 533 59 
 
 Points Decided. 
 
 Warranty, its Nature, Effect and Extent 60-62 
 
258 INDEX. 
 
 PAGES. 
 
 Comment by Author. 
 
 Warranty must be Construed According to Object 
 
 of Insurance and Property .' 63 
 
 Warranty, its Duration 64 
 
 Hoxsie vs. Prov. Mut. Fire Ins. Co., 6 R. I., 517 . . . 64 
 
 Points Decided. 
 
 Warranty During Entire Contract 65 
 
 Dewes vs. Manr. Ins: Co., 35 N. I. L., 368 66 
 
 Points Decided. 
 
 Warranty Denned 66-67 
 
 Comments by Author. 
 
 Warranty and Representation not Synonymous 68 
 
 Warranty not Restricted to Date of Policy 69 
 
 Lyons vs. Prov. Wash. Ins. Co., Central Law J., 
 
 Vol. 16, No. 10, 9 March, 1883 70 
 
 Points Decided. 
 
 Warranty During Whole Life of Policy 71 
 
 Hartford Fire Ins. Co. vs. Farrish, 73 111., 166 71 
 
 Points Decided, 
 
 Removal of Goods not Allowed 71 
 
 Questions for Jury 71 
 
 Comment by Author. 
 
 Location of Goods Warranty 72 
 
 Shertzer vs. Mut. Fire Ins. Co., 46 Md., 508 72 
 
 Points Decided. 
 
 Removal of Goods not Allowed 72 
 
 Location a Warranty 73 
 
 Parmalee v. Hoff. F. Ins. Co., 54 N. Y., 196 73 
 
 Representation as to Occupation of Property War- 
 ranty 73 
 
 Houghton vs. Man. M. Fire Ins. Co., 8 Metcalfe, 
 
 (Mass.,) 114.. 73 
 
 Points Decided. 
 
 Structure and Use of Property a Warranty 75 
 
 Comment by Author. 
 
 Warranty Continuous in its Nature 76 
 
 Williams vs. N. E. M. F. Ins. Co., 1 Redington, 
 
 (Me.,) 224 77 
 
INDEX. 259 
 
 Points Decided. PAGES 
 
 Distinction between Warranty and Representation. . 77 
 
 Warranty Continuous 78 
 
 G-lendale Woolen Co. vs. Prot. Ins. Co. 21 Conn., 17. 78 
 
 Points Decided. 
 
 Nature of the Contract 81-82 
 
 Representation, Nature of 82-83 
 
 Warranty, Nature of 83 
 
 Papers Made Part of Policy 85 
 
 Warranty, its Reasons 86 
 
 Comment by Author. 
 
 Warrant, Nature of 87 
 
 Untechnical Language 87 
 
 Jennings vs. The Chen. Co. Mut. Ins. Co., 3 Denis, 75, 88 
 
 Points Decided. 
 
 Warranty from Description and Use of Property .... 90-91 
 
 Comment by Author. 
 
 Warranty, Express 91-92 
 
 State Mut. Fire Ins. Co. vs. Arthur, 6 Casey, (Penn.,) 
 
 315 92 
 
 Points Decided. 
 
 Change in Use of Property not Allowed 92-94 
 
 Frisbie vs. Fay Mut. Ins. Co., 3 Casey, (Penn. 
 
 State,) 325 95 
 
 Points Decided. 
 
 Warranty Restricted to Date of Policy by Present 
 
 Tense of the Verb 95 
 
 Comment by Author. 
 
 As to the Verb Sleeps, and Meaning of Policy 96 
 
 McCluer vs. G. F. & M. Ins. Co., 43 Iowa, 349 
 
 Description of Property a Warranty, if Relative to 
 
 Risk 97 
 
 Location of Property — Material and a Warranty 98 
 
 Wustum vs. City F. Ins. Co., 15 Wis., 139 99 
 
 Points Decided. 
 
 Requirements of Policy to be Observed 100-101 
 
 Warranty Continuous 101 
 
260 INDEX. 
 
 Comment by Author. pages. 
 Warranty Construed According to Nature and Use 
 
 of Property 102 
 
 O'Neill vs. Buff. F. Ins. Co., 3 Comstock, 122 103 
 
 Case Explained 103 
 
 Sayles vs. N. W. Ins. Co., 2 Curtis, (C. C.,) B. 610, 
 
 Paper made part of Policy 104-105 
 
 Warranty therefrom 105 
 
 Comment by Author. 
 
 Correct Principle of Warranty from Case 107 
 
 Contradiction by Judge Curtis Analyzed 107-109 
 
 Jackson vs. N. Y. Ins. Co., 2 Johnson, Cases 191 109 
 
 Statement as to Title of Property Warranty 110-111 
 
 Murray vs. Ud. Ins. Co., 2 Johnson, Cases 168 112 
 
 Laing vs. same Co., Ibid. 174 112 
 
 1st Natl. Bk. of Ballsta vs. Ins. Co. of N. A., 50 N. 
 
 Y., 45 112 
 
 Points Decided. 
 
 Warranty Resulting from Survey, <fcc 113-114 
 
 Levy no Excuse for Non-performance 114 
 
 Comment by Author. ' 
 
 Promissory Warranty 115 
 
 Error from Incorrect Use of Word Descriptive. ... 115 
 
 Eiply vs. .Etna Ins. Co., 30 N. Y., 137 115 
 
 Points Decided. 
 
 Survey Creating Warranty 117 
 
 Watchman Explained 118 
 
 Breach of Warranty 119 
 
 Comment by Author. 
 
 Use of Present Tense 119 
 
 Elements to Calculate Rate 120 
 
 The Am. Ins. Co. vs. Foster, 92 Ills., 334 120 
 
 Points Decided. 
 
 Construction of Warranty According to Use of 
 
 Property 121, 122, 123 
 
 Kennedy, &c, vs. St. L. Co. Mut. Ins. Co., 10 Bar- 
 bour, 285 123 
 
 Points Decided. 
 
 Application, how made a Warranty 123-124 
 
 Representation and Warranty Different in Nature ... 124 
 
INDEX. 261 
 
 Comment by Author. pages. 
 
 Dean's Construction of Representation 124 
 
 Representation Affirmative 125 
 
 Warranty in Presenti 125 
 
 Promissory "Warranty, Nature of 125 
 
 Executory Agreement, Nature of 126-127 
 
 Representation Evidential, Warranty Contractual. . . 127 
 
 Miller vs. Mut. Ben. Life Ins. Co. , 30 Iowa, 226 127 
 
 Warranty and Representation, their Difference 127-133 
 
 Promissory Representation an Executory Agreement, 125 
 
 Must be a part of Policy 125 
 
 Subsequent Performance 126 
 
 Occupancy Relates to Risk 133 
 
 iEtna Ins. Co. vs. Meyer, 63 Ind., 240 133 
 
 Points Decided. 
 
 Rate of Insurance less on Occupied Houses 133 
 
 Sleeper vs. N. H. Ins. Co., 56 N. H., 401 134 
 
 Points Decided. 
 
 Rate Less on Occupied Houses, Reasons Stated .... 134 
 
 Alston wife vs. Old N. S. Ins. Co., 80 N. C, 326 . 135 
 
 Rate Less — Reasons Stated 135 
 
 Warranty in Presenti Discussed 136 
 
 Smith vs. M. & T. Ins. Co., 33 N. Y., 401 136 
 
 Case Distinguished from Jennings vs. Chenango Ins. 
 
 Co., 2 Demo., 75 136 
 
 And Wall vs. E. River Ins. Co.-, 3 Selden, 370 136 
 
 Points Decided. 
 
 Warranty in Presenti 137 
 
 Promissory Warranty Relative to Future Acts 138 
 
 Comment by Author. 
 
 Upon Warranty in Presenti 139 
 
 Construction by Courts Changes Contract 140-141 
 
 Schmidt vs. Peoria M. & P. Ins. Co., 41 Els., 207. . . 141 
 Points Decided. 
 
 Construction against Companies 142-143 
 
 Comment by Author. 
 
 Policies Modified to meet Construction of Courts . . 144 
 
 O'Neill vs. Buffalo Fire Ins. Co. 3 Corns, 122 145 
 
 Discussed by Author 147-151 
 
262 INDEX. 
 
 Catlin vs. The Springfield Fire Ins. Co., 1 Sumner, pages. 
 
 (C. C.,) 435 151 
 
 Case Discussed by Author 151-156 
 
 Fowler, &c, vs. .2Etna Fire Ins. Co., 6 Cowen, 673. . 157 
 
 Case Discussed 157 
 
 Doctrine of Promissory Warranty Discussed 158-161 
 
 Must be a part of Policy 160-161 
 
 Rests upon a Consideration 159 
 
 Must be a part of Policy 160-161 
 
 Murdock, &c, vs. Chenango Mut. Ins. Co., 2 Corns., 
 
 210 161 
 
 Points Decided. 
 
 Representation applies to the Present 162 
 
 Promise to the Future 162 
 
 Promissory Representations do not Exist in Law. . . 162 
 
 Comment by Author. 
 
 Promissory Representation a Contract 165 
 
 An Executory Agreement 166 
 
 Must be a part of Policy 167 
 
 Gillett vs. Pawtucket Mut. Fire Ins. Co., 8 R. I., 294, 168 
 
 Points Decided. 
 
 Promise Contracted for by Company 169 
 
 Billsborough vs. Metro. Ins. Co. of N. Y., 5 Duer, 
 
 587 7. 169 
 
 Case Discussed by Author 169-173 
 
 Aurora F. Ins. Co. vs. Eddy, 40 Ills., 106 173 
 
 Case Discussed 173-179 
 
 Warranty Literally Performed, and Representation 
 
 Substantially 177 
 
 City Worcester vs. Wor. Mut. Fire Ins. Co., 9 Allen, 
 
 (Mass.,) 29 179 
 
 Executory Agreement 180-181 
 
 Lycoming Ins. Co. vs. Mitchell, 48 Penn., 372 181 
 
 Points Decided. 
 
 Covenant for Future Acts 182-185 
 
 Comment by Author. 
 
 Warranty, its Nature and Relation as to the Future, 185-186 
 
 Marshall's Division, Confusion Caused by 187 
 
 Conclusion from Authorities 188-190 
 
INDEX. 263 
 
 PAGES. 
 
 Conditions in Policy 190-193 
 
 Compliance with 192-193 
 
 Dennis vs. Phcenix Ins. Co., 52 Iowa, 457 ' 193 
 
 Points Decided. 
 
 Parties Bound by Contract 194 
 
 Occupied Wholly Immaterial 195 
 
 Keith vs. Quincy Mut. Fire Ins. Co., 10 Allen, 228. . . 196 
 
 Occupancy Defined 196 
 
 According to Nature of Property Insured 197 
 
 The N. A. Fire Ins. Co. vs. Zaenger, 63 Ills., 465 . 198 
 
 Points Decided. 
 
 Condition Kequires the House to be Occupied 199 
 
 Warranty Continuous in its Nature 199 
 
 The Am. Ins. Co. vs. Padfield, 78 111., 168 200 
 
 Points Decided. 
 
 Vacant and Occupied — Explained 201 
 
 Ashworth vs. Bldrs. Mut. Fire Ins. Co., 112 Mass., 274 201 
 
 Points Decided. 
 
 Occupancy Explained 202 
 
 Must be an actual use of House as Dwelling Place . . 203 
 
 Poor vs. Humboldt Ins. Co., 125 Mass., 274 202 
 
 Points Decided. 
 
 Family Explained 204 
 
 Warranty being Continuous Kequires Family in it 
 
 for the Entire Tear 204 
 
 With Warranty. 
 
 Watchmen Explained 205 
 
 Two persons sleeping in house not a family, only 
 
 watchmen. 
 
 Corrigan vs. Conn. Fire Ins. Co., 122 Mass., 298 205 
 
 Points Decided. 
 
 Occupancy Explained. 
 
 Holding Keys and leaving Furniture in House not 
 
 Occupancy 206 
 
 Harrison vs. City Fire Ins. Co., 9 Mass., 231 207 
 
 Points Decided. 
 
 Occupancy Explained 208 
 
 Cook vs. The Cont. Ins. Do., 70 Mo., 610 208 
 
264 INDEX. 
 
 Points Decided. pages. 
 
 Occupancy Denned 209 
 
 Sleeping in the House at Night not Occupancy 209 
 
 Supervision of a Dwelling House not Sufficient 210 
 
 Statement of Reason why Kate is Higher on Unoc- 
 cupied Houses 210 
 
 Hermann vs. Ada Fire Ins. Co., 85 New York, 163. . 210 
 Points Decided. 
 
 Occupancy Defined 210 
 
 Weekly Visits of Family not Occupation 211 
 
 Supervision not Occupation 212 
 
 Occupied Explained 212 
 
 Paine vs. Agl. Ins. Co., 5 N. Y. Sup. Crt., 619 213 
 
 Points Decided. 
 
 Supervision of Dwelling House not Occupation 214 
 
 Abandonment for Short Time Sufficient for Forfeit- 
 ure 215 
 
 Constant Occupancy Required 215 
 
 Eeasons Stated. 
 
 Abrahams vs. Agl. Ins. Co., 40 Up. Can., 2 B., 195. . 215 
 
 Tenant Leaving and having a New Tenant ready to 
 
 go in, Forfeiture Policy 217 
 
 Sleeper vs. N. H. F. Ins. Co. , 58 N. N., 1 (Hall,) 401, 217 
 Points Decided. 
 
 Contract or Policy construed according to ordinary 
 
 acceptation of language used " 219 
 
 Temporary Vacancy Explained 220 
 
 Must be animo revertendi. 
 
 Comment by Author 221 
 
 As to Law of Temporary Vacancy, and reasons as to 221 
 
 Difference in Kate of Insurance 222 
 
 The Am. Ins. Co. vs. Foster, 92 Illinois, 33fr 222 
 
 Points Decided. 
 
 Different kinds of Occupancy Defined '. 223 
 
 Must be in accordance with Nature and Use of Prop- 
 erty Insured 223 
 
 Policies of Insurance, Contracts, &c, can not bf 
 
 changed by Courts 224 
 
INDEX. 265 
 
 Comment by Author 
 
 Upon the Uses of the Property, and Occupancy pages 
 
 according thereto 225 
 
 .Etna Ins. Co. vs. Meyers, 63 Indiana, 238 225 
 
 Points Decided. 
 
 Policy to be Liberally Construed 227 
 
 Policy a Contrnct 228 
 
 Construction according to its Exact Terms 228 
 
 Time of vacancy, however short, sufficient for for- 
 feiture -. 229 
 
 Comment by Author 230 
 
 Good faith in attempt to fulfill condition not equal to 
 
 performance 230 
 
 Risk of owner during interval of vacancy 230 
 
 Wustum vs. City Fire Ins. Co., 15 Wis., 138 230 
 
 Points Decided. 
 
 Notice of vacancy required and not given works for- 
 feiture 232 
 
 Question of increased risk from vacancy outside of 
 
 contract 233 
 
 Agreement not to be dispensed with by Courts 234 
 
 Courts cannot relieve from any stipulation agreed 
 
 upon 234 
 
 Chandler vs. Com. Fire Ins. Co., 88 Penn. State, 228, 235 
 Points Decided. 
 
 Question as to Occupancy for the Jury 235 
 
 Occasional Absence Denned 236 
 
 Cummins vs. Agl. Ins. Co., 6" New York, 262 236 
 
 Points Decided. 
 
 Distinguished from Paine Case, 5 N. Y 237 
 
 From Wustum Case, 15 Wis., and Harrison Case, 9 
 
 Allen 238 
 
 And Keith Case, 10 Allen 238 
 
 Permanent Removal from House Defined 239 
 
 Degree of Watchfulness Required 239 
 
 Temporary Absence Defined 239 
 
 Hill vs. Ega. M. F. Ins. Co., 58 N. H., 82 240 
 
 Necessity of Furniture in House 241 
 
 Their Removal Material to the Risk 241 
 
266 INDEX. 
 
 McLure vs. Watern. Fire Ins. Co., 90 Penn. State, 9 pages. 
 
 I. L. J., 210 242 
 
 Points Decided. 
 
 Nature and Elements of the Contract the Consider- 
 ation 242 
 
 Attempt to get a tenant can not prevent forfeiture . . 243 
 Good faith or attempting to keep contract not equal 
 
 to performance of contract 243 
 
 Question is — Did he perform his Contract 243 
 
 Comment by Author-. 
 
 Elements or Factors in Policy to Estimate Rate .... 244 
 
 Occasional Absence not a Release to Co 244 
 
 If with animo revertendi 244 
 
 Animus revertendi the real gist of the question 245 
 
 What are Evidences of it, &c 245 
 
 Good Faith not a Defense 245 
 
 Good Faith Explained 245 
 
 Attempt to Keep Contract not Performance 246 
 
 Jackson, Owsley & Co. vs. .Etna Ins. Co., 16 B. M., 
 
 (Ky.,) 259, as to good faith distinguished 246 
 
 Leaving Servant in House not Compliance 247 
 
 Reasons Stated 247 
 
 Amount of Care Required 247 
 
 Reasons Stated 247 
 
 Wood on Insurance, page 184, rule quoted as to va- 
 cancy beyond control of owner 248 
 
 Supported by two cases, Kelly vs. Worcester Mutu- 
 al Fire Ins. Co., 99 Mass., 286 248 
 
 Full Text of Opinion 249 
 
 Comment by Author 250 
 
 The Zaenger Case, see page 198 251 
 
 Comment by Author 252 
 
 As to Meaning and Requirement of Conditions in 
 
 Policy 252 
 
 Case turned on Peculiar Language of the Policy in 
 
 Suit 243 
 
 No General Principles of- Insurance Law Discussed 
 
 or Involved 253 
 
 Conclusion 253 
 
INDEX. 267 
 
 Absence. 
 
 Occasional, Defined 236 
 
 Temporary 239 
 
 Permanent 239 
 
 Animo revertendi 220, 244-245 
 
 Not a Release 244 
 
 Evidences of 245 
 
 Courts. 
 
 Bound by Policies 234 
 
 Must Construe according to Ordinary Acceptation of 
 
 Words 219 
 
 Liberally Construed 227 
 
 Can not Change Policy 224 
 
 Construed according to its Terms 228 
 
 Not Released by 234 
 
 Family Explained 204 
 
 Two Persons Sleeping in House not 204 
 
 Faith, Good, Explained 245 
 
 Not a Defense 245 
 
 Not Equal to Performance 230, 243, 246 
 
 Forfeiture. 
 
 Abandonment for Short Time 215 
 
 Vacancy however Short 229 
 
 Neglect to Give Notice 232 
 
 Occupancy, Occupied and Vacant. 
 
 Defined .... 196, 201, 202, 206, 208, 209, 210, 223, 220, 239, 212 
 
 Occupancy. 
 
 What is not Holding Keys and Leaving Furniture. . 206, 241 
 
 Sleeping in House 209 
 
 Supervision 212, 210, 214 
 
 Weekly Visits 244, 211, 247 
 
 Constant Required 215 
 
 According to Nature of Property 225, 223 
 
 Representation. 
 
 Different from Warranty 46, 54, 68, 124, 127, 133 
 
 Marshall's Definition 5 & 
 
 Justice Gray's " 49-50 
 
 Phillips' " 51 
 
268 INDEX. 
 
 Promissory. pages. 
 
 When Valid 58-59 . 
 
 Nature of 125, 126, 127 
 
 Must be a part of Policy 126, 160, 161, 167 
 
 Performance of subsequent 126 
 
 Rests on a Consideration 159 
 
 No Existence in Law 162 
 
 Contract 180, 181, 165 
 
 Must be Contracted for 182, 169 
 
 Warranty. 
 
 Nature of 11, 60, 62 
 
 Definition of 15 
 
 Extent of 16, 17, 60, 62 
 
 How Construed 63 
 
 Duration of 64, 65, 101 
 
 Not Restricted to Date of Policy 69 
 
 Not Synonymous with Representation 68 
 
 From Location 73, 98 
 
 From Occupation 73 
 
 From Use of Property 75, 90, 91 
 
 Nature of 76, 197, 204 
 
 do 83 
 
 do «7 
 
 From Description 97 
 
 From Surety 113, 4, 7 
 
 Promissory 115, 138, 158 
 
 Construction of 121, 2, 3 
 
 Contractual 127 
 
 How Performed 177 
 
 Warranti in Presenti 6, 136, 137, 139, 156 
 
 Watchmen Explained 205 
 

 Date Due 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 Library Bureau 
 
 i Cat. No. 1137 
 
 
KP 1196 F79 
 
 Author Vol. 
 
 Pox, Fontaine T , Jr. 
 
 Title A treatise on warranty in Copy 
 fire insurance contracts. 
 
 
 
 Date 
 
 Borrower's Name