CHAPTER XII. OF WARRANTIES. SECTION I.-Of Express Warranties. THESE are stipulations or promises of the assured, in the policy, that certain things exist or shall exist, or have been or shall be done. It is to be noticed that these are warranties; and this circumstance, on the general principles of the law of contracts, excludes many inquiries which might otherwise be made. Thus, the warranty is equally binding, and a breach of it equally fatal, whether the thing warranted be material or immaterial.1 Nor is it any legal excuse for the breach, or any protection against its consequences, that the breach was not intended by the insured, and cannot be imputed either to his design or his fault; and the acts of all employed by him or of any other person, if they violate the warranty, are equivalent to a breach of it by himself. Because the question is not by whose agency is the warranty broken, but whether it be broken, for that avoids the contract.2 And it must be not only substantially but strictly complied with; "nothing tantamount will do," says Lord Mansfield. But that will be a 1 Blackhurst v. Cockell, 3 T. R. 360, per Buller, J.; Newcastle F. Ins. Co. v. Macmorran, 3 Dow, 255, 262. policy was void. Lord Mansfield said: "A warranty in a policy of insurance is a condition or a contingency, and un 2 Duncan v. Sun F. Ins. Co., 6 Wend. less that be performed there is no con 488. 3 Pawson v. Watson, Cowp. 785. In De Hahn v. Hartley, 1 T. R. 343, 2 T. R. 186, the ship was warranted to sail "from Liverpool with fourteen sixpounders, swivels, small arms, and fifty hands or upwards." She had only for ty-six men on board, when she sailed from Liverpool, but took six more at the Isle of Anglesea, only six hours af terwards. The loss was in no way owing to the deficiency. Held, that the tract. It is perfectly immaterial for what purpose a warranty is introduced; but, being inserted, the contract does not exist unless it be literally complied with." In Sawyer v. Coasters' Mutual Ins. Co., 6 Gray, 221, a vessel was insured for one year from the 21st of September, 1847. The vessel sailed from New York on the 21st of August, 1847, with grain in bulk bound to Ballisidore in Ireland, and on the 24th and 25th of September, while entering the sufficiently strict and literal compliance or performance, which is so if the warranty is construed and interpreted according to usage and the actual intention of the parties. And sometimes this strict compliance operates in favor of the assured. A question has arisen, where different subjects are insured by the same policy, whether the contract is an entirety to such an extent that a false warranty as to one subject-would render the whole contract a nullity. We give in the notes the result of adjudication upon this subject. It will be seen that the cases cited relate to fire policies. We do not know that this question has been distinctly decided in an action upon a marine policy; it has occurred, however, in practice. It would not be easy to state a definite principle which should make a difference on this point between these two kinds of insurance. And yet we have some doubt whether the construction which makes the contract of insurance an entirety, with all the consequences thereof, would be applied to marine policies with quite so much severity as in some of these fire policies.2 harbor, received the injuries complained of. The policy contained the clause: "Said vessel not allowed to carry grain in bulk across the Atlantic." It was contended, on the part of the plaintiffs, that the warranty was to be construed literally, and that, when the policy was effected, the vessel was entering the harbor, and did not afterwards cross the Atlantic with grain in bulk. But the court held that the policy did not insure the vessel if laden with grain in bulk, on a voyage across the Atlantic, and that, at the time of the loss, she was carrying grain in bulk on such a and the policy is void as to the building by reason of a false warranty as to encumbrances thereon, it is void as to the furniture also, although there is no encumbrance on the furniture. This case overrules Trench v. Chenango Co. Mut. Ins. Co., 7 Hill, 122, which case was also doubted in Wilson v. Herkimer Co. Mut. Ins. Co., 2 Seld. 53. In Clark v. New England Mut. Fire Ins. Co., 6 Cush. 342, two buildings were separately insured at a separate valuation in the same policy. One of the buildings was alienated by the insured, and it was contended that this avoided the policy as to both. Fletcher, J., said: "But the shop was valued separately, and was insured separately, as a separate, distinct, independent subject of insurance, though insured in the same policy. The alienation of the shop would no doubt avoid the policy pro tanto, and only pro tanto. The tavernhouse and the shop being insured separately, the alienation of one would no more affect the insurance on the other A warranty must be a part of the policy; and may be written upon any part of it, but not upon other papers or documents, unless it is expressly referred to as a warranty in the policy.1 But any explicit allegation or assertion of a fact may be sufficient as a warranty thereof. As, for example, where a vessel is described as the "good American ship called the Rodman," this is a warranty that the ship is American.2 And a statement that a vessel was in port on a certain day has been held to be a warranty of that fact. It has been also held that a statement that "the goods belong to the plaintiffs, American citizens," is a warranty of their neutrality, and not a statement merely.1 In one case the insurance was stated to be for the account of M. Mackay, Jr., of Boston. This was considered as equivalent to a warranty that he was owner, and as he was known to the parties as an American residing in Boston, it was held to be a warranty that the property was American.5 It is however a general rule, that the statement must be direct, and not collateral. As where a than if they had been insured in separate policies." In Brown v. People's Mut. Ins. Co., 11 Cush. 280, real and personal estate were insured at a separate valuation in the same policy. One premium note for the whole insurance was given, and the policy secured a lien on the whole property insured to secure the payment of assessments. The real estate was encumbered by a mortgage, which was not disclosed to the insurers, and it was held that the policy was void as to the whole amount insured. The court said: "The contract being entire, and one premium note being given, the lien for the security of the same was affected by the misstatement." In Lee v. Howard Fire Ins. Co., 3 Gray 583, the defendants, in consideration of a premium of $46, insured the plaintiffs"$1,150, to wit, $1,000 on their chair shop, tub and pail factory, saw - mill, and store - houses, all connected, in Orange, $150 on their blacksmith shop near the above." This was held to be an entire contract. 1 Bean v. Stupart, 1 Doug. 11; Kenyon v. Berthon, 1 Doug. 12, note, where it is held that a statement is not a warranty unless written upon the policy. See also Jennings v. Chenango Co. Mut. Ins. Co., 2 Denio, 75; Glendale Woollen Co. v. Protection Ins. Co., 21 Conn. 19; Routledge v. Burrell, 1 H. Bl. 254; Williams v. New Eng. Mut. F. Ins. Co., 31 Maine, 219. Barker v. Phoenix Ins. Co., 8 Johns. 307; Atherton v. Brown, 14 Mass. 152; Higgins v. Livermore. 14 Mass. 106; Lewis v. Thatcher, 15 Mass. 431; Francis v. Ocean Ins. Co., 6 Cow. 404; Vandenheuvel v. United Ins. Co., 2 Johns. Cas. 127; Goix v. Low, 1 Johns. Cas. 341; Murray v. United Ins. Co., 2 Ib. 168; Vandenheuvel v. Church, 2 Ib. 173, note. note. Kenyon v. Berthon, 1 Doug. 12, Walton v. Bethune, 2 Brev. 453. Cas. 130. vessel is stated to be called the American ship President, this is no warranty that she is an American vessel. Nor is the calling of a vessel by an English name a warranty that she is English. Nor is a stipulation that the insurers are not to be liable for damage to or from the sheathing of a vessel, a warranty that she is sheathed. Nor is the description of the risk "at and from New York to the port of Sisal" a warranty that there is any port at Sisal. And the calling of the vessel in the policy "the good ship A" is no warranty of her sea-worthiness. It has been held in Louisiana, in a case where a vessel had sustained an injury, and insurance was effected "on condition that the damage done (mentioning it) be repaired, and the vessel be put in as good order as she was previous to that accident," that her being repaired was not a condition precedent to the attaching of the policy, but meant that the insured should repair the vessel before she was exposed to the perils of the sea. We must, however, express our doubts of the correctness of this decision. And if the recital of a fact could have no relation whatever to the risk, it would seem not to be a warranty, but merely a representation. 382. Le Mesurier v. Vaughan, 6 East, 2 Clapham v. Cologan, 3 Campb. 382. 3 Martin v. Fishing Ins. Co., 20 Pick. 389. De Longuemere v. N. Y. Firem. Ins. Co., 10 Johns. 120. And in Muller v. Thompson, 2 Campb. 610, where the insurance was declared to be "on the cargo, being 1,031 hogsheads of wine," it was held that this did not amount to a warranty that the whole cargo consisted of wine, but merely that the insurance should attach upon that part of the cargo which consisted of the 1,031 hogsheads of wine. It has been held, that a non Mackie v. Pleasants, 2 Binn. 363. The insurance in this case was effected on "the good British brig called The John." The vessel was insured at the regular sea-risk premium, and there was a written memorandum at the foot of the policy, that the insurance was to be against perils of the sea only, and was to end on capture. The vessel was not duly registered as a British brig, but there was evidence that her captain was a subject of Great Britain. It was also shown to be the custom in Philadelphia to insert all special warranties in a separate clause, and that this did not contain any warranty of nationality. 5 Small . Gibson, 16 Q. B. 141, 3 It was held, on all these facts, that, the Eng. L. & Eq. 299, 305. vessel having been lost by a peril of the sea, the plaintiff was entitled to recover. The fact that the nationality of the vessel was not stated in the usual warranty clause was considered as of great weight in determining the inten compliance with the exact requirement of a warranty, at the commencement of a risk, avoids the policy, although afterwards and before loss it is complied with, and all the other risks are wholly distinct from that to which the warranty related, even if the breach is caused by one of the perils against which there is insurance.2 If the warranty is of a fact that is not to occur until after the commencement of the risk, and the loss occurs before the warranty is complied with, it is no breach which discharges the insurers; 3 nor is it such a breach if a compliance with the warranty was legal when it was made but becomes illegal afterwards; for the law never requires that an illegal act should be done.1 The usual subjects of express warranty are ownership of the property, its neutrality, and the lawfulness of the goods or adventure, the taking of convoy, and the time of sailing; and we will consider them in their order. The insurers have, as has been tion of the parties, although it was held that a warranty could be in any part of the policy. 1 Rich v. Parker, 7 T. R. 705, 2 Esp. 615; Goicoechea v. La. State Ins. Co., 18 Mart. La. 51. Hore v. Whitmore, 2 Cowp. 784. In 1 Phillips on Ins. § 770, the rule is otherwise stated, and Havelock v. Hancill, 3 T. R. 277, and Cruikshank v. Jansen, 2 Taunt. 301, are cited. But those cases, as explained by the courts deciding them, do not seem to conflict with the above case of Hore v. Whitmore, in which the doctrine laid down in the text is expressly sustained. See 1 Arnould on Ins. 584. Hendricks v. Com. Ins. Co., 8 Johns. 1; Taylor v. Lowell, 3 Mass. 331, 347; Baines v. Holland, 10 Exch. 801, 32 Eng. L. & Eq. 503; 1 Phillips on Ins. § 771. Mr. Arnould questions this doc said, the right of personal selectrine, and contends that it was competent for the parties to contract that the policy "should be void in toto, as well upon the non-performance of some promised act as upon the non-existence of some alleged event,” and says it seems to him that they must be taken to have done so. But it is clear, that, if a total loss should happen before the time at which the warranty is to be complied with, the insurer would have no defence, even if he could show that the insured intended not to comply with it. This must have been in the contemplation of the parties, and seems to show that they could not have intended to make the contract void ab initio in case of a noncompliance with the warranty. See 1 Arnould on Ins. 583. Brewster v. Kitchell, 1 Salk. 198, 1 Ld. Raym. 317. |