the last case, in both of which he held stipulations written upon the policy itself as strict warranties, and in the cases of Rawson v. Barnevelt, and Bize v. Fletcher, referred to in the same note; in the first of which he held that a written memorandum inclosed in the policy, and shown to the underwriter at the time of his signature, was not a strict warranty, but a representation merely; and in the last he held the same as to a memorandum, upon a separate piece of paper, but which was actually attached to the policy by a wafer at the time the policy was underwritten. I have no doubt that it is perfectly competent for the underwriters, by the insertion of a stipulation to that effect in the policy itself, to give to a statement of facts contained in a separate paper or instrument, sufficiently referred to and identified, all the effect of an express warranty inserted in the body of the policy. But in the anomalous and informal instrument called a marine policy, many things have been construed into express warranties, which, if found in other contracts, would be perfectly unintelligible, or would be construed as immaterial matters; and the cases above referred to show that the principle of converting every thing contained in a policy into an express warranty, although there is nothing in the form of the memorandum itself to show that such was the intention of the parties to the contract, is not to be extended to any memorandum or paper writing not contained in the policy itself, or written upon the same paper with the policy so as to be considered as contained therein. This I take to be the settled law in relation to marine insurances; but I confess I have doubts whether the principle of construing every matter of mere description contained in the body of the policy, although not material to the risk, into an express warranty which is to be complied with, should be applied with the same strictness to fire policies, where the misdescription is most generally the mistake of the underwriters own surveyor.

The policy provided, that if the building insured should, at any time during the continuance of the policy, be appropriated, applied or used, to or for the purpose of carrying on, or exercising therein, any trade, business or vocation, denominated hazardous, or extra-hazardous, or specified in the memorandum of special rates in the proposals annexed to the policy, or for the purpose of storing therein, any of the articles, goods or merchandise, in the same proposals denominated hazardous or extra hazardous, or included in the memorandum of special rates, the policy should cease, and be of no force and effect: Held, that as the trade or business of a grocer was not mentioned in the proposals annexed to the policy, it was not prohibited; and consequently the ordinary incidents of that business were allowable-such as keeping spirituous liquors, oil, &c. N. Y. Equitable Ins. Co. v. Langdon, 6 Wend. 623; See also Luckley v. Furse, 15 J. R. 342; and Kensington v. Inglis, 8 East, 273. The enumeration of certain trades or kinds of business, as prohibited on the ground of being hazardous, is an admission that all other kinds are lawful under the contract. N. Y. Equitable Ins. Co. v. Langdon, supra, and Baker v. Ludlow, 2 Caines, 288. In the latter case, dried fish were enumerated in the memorandum clause as free from average, and all other articles perishable in their own nature. It was held that the naming of one description of fish implied that'

other fish were not intended; and that the subsequent words, "all other articles perishable in their own nature," were not applicable to the articles previously enumerated, and did not repel the implication arising from the enumeration of them. In Doe v. Lanning, 4 Camp. 76, 7, Ld. Ellenborough held, that a coffee house was not an inn, within the meaning of a policy of insurance against fire, enumerating the trade of an inn-keeper, with others, as double hazardous, and covered by the policy.

Where the policy prohibits the use of the building for the purpose of storing therein :-Held, that keeping articles to retail as a grocer was not a storing therein within the meaning of the policy. N. Y. Equitable Ins. Co. v. Langdon, supra.

In Duncan v. Sun F. Ins. Co., 6 Wend. 468-" gunpowder is not insurable, unless by special agreement" were contained in proposals annexed to the policy and at the bottom of the extra-hazardous clause, in an enumeration of goods not hazardous, and of goods, &c. hazardous and extra-hazardous: Held, that gunpowder was included in extra-hazardous ; but as the building was allowed to keep extra-hazardous goods, the storage of gunpowder in it did not avoid the policy.

Warranties must always be inserted in the policy and constitute a part of the contract. Higginson v. Dall, 13 Mass. 96. Here, a written memorandum signed by the plaintiff, and delivered by his agent to the broker at the time of the application for insurance, stating among other things, that the policy was to take effect if the vessel should sail with a cargo, and no insurance be made by the plaintiff elesewhere, was offered in evidence as a warranty to show that the policy was void in consequence of an insurance made by the plaintiff abroad. The memorandum was not annexed to the policy, nor was the matter it contained, inserted in the contract; but the defendant offered to prove by the broker, that it was kept with the policy, and shown to the several underwriters before they subscribed the contract. The Court decided that the memorandum was incompetent evidence to prove a warranty. The principle of this decision is, that the policy itself is the contract between the parties, and that the proposals, statements and conversations which passed between them, prior to the subscription, are to be considered as waived, if not inserted in the policy. The same principle was settled in Delonguemare v. The Tradesman's Ins. Co., 2 Hall 580, where the description of the room in question, as a store room for painted ware, was contained in the application for insurance, or in the report or survey made upon the buildings insured; but it did not appear in the policy itself, nor was the report or survey, or the application containing it, annexed to the policy. It was therefore held not to be a warranty.

CHAPTER VII.

OF MISREPRESENTATION AND CONCEALMENT.

I. Of Misrepresentation. When a warranty is inserted in a policy, it forms an express condition, and must be expressly complied with. A representation, on the other hand, not embodied in the policy, will not vitiate it, although erroneous, if it be fairly and substantially true, and does not prejudice the insurers. Farmer's Ins. & Loan Co. v. Snyder, 16 Wend. 481.

Where there is a condition precedent on a warranty in a policy of insurance, it is of no consequence whether the thing waranted, or to be perform ed, is material to the risk or not, if not performed. The defendant has a right to say non in haec in fœdere veni. Sutherland, J. in 12 Wend. 460; Fowler v. Etna F. Ins. Co. 6 Cow, 673; Duncan v. The Sun F. Ins. Co. 6 Wend. 488; 7 Cowen, 649; Cornell v. Le Roy, 9 Wend. 163 and cases cited; 19 J. R. 72; 6 Cowen, 624.

The legal and commercial meaning of the term misrepresentation as used in the condition of a fire policy, which declares that if any person insuring a building or goods shall make any misrepresentation or concealment &c., the insurance shall be void, is, that it must be a misrepresentation of a matter material to the risk, either designed or otherwise.

Ins. & Loan Co. v. Snyder, 16 Wend. 480, 488.

Per chancellor in Farmer's

In New York, fire insurance companies make a general classification of hazards in reference to the materials and construction of the buildings insured, or in which the subject matter of the insurance is deposited or kept, and in reference to their location and the manner in which they are occupied, and their rates of premium are usually regulated accordingly. A false or mistaken representation, therefore, from which the underwriters might be induced to suppose that the risk belonged to a lower instead of a higher class of hazards, would, if caused by the fraud or even mistake of the assured or his agents, be sufficient to avoid the policy, ib. But in reference to all mat

ters of minor importance, such as whether the building is a few feet more or less from an adjacent building, or whether the rooms, partitions, stair cases, &c. are precisely as stated by the party insured, it must always be a mere question of fact to be determined by the jury whether the misrepresentation be fraudulent or materially varied the nature of the risk, to the prejudice of the insurer; unless the underwriter thinks proper to put it in the shape of a warranty, and thus make it a part of the contract that the assured shall not be paid his loss if there be any, even an unessential variance from the description of the property or its location as to the buildings, &c. ib.

In Macmoran & Co. v. Newcastle F. Ins. Co. 3 Dow. 255, the policy was in these terms “Whereas Mr. Hugh M’Moran & Co., &c., have paid the sum of 21l. 5s. 8d. to the society of the Newcastle-upon-Tyne Fire Office; and do agree to pay, or cause to be paid, to the said society, at their office in Newcastle-upon-Tyne, the sum of 17. 17s. on the 24th day of June, 1806, and the like sum of 177. 17s. yearly, on the 24th day of June, during the continuance of this policy, as a premium for the insurance from loss or damage by fire, of £50 on mill-wright's work, including all the standing and going gear in their mill, which is used as a cotton and woolen mill, situated at Garschew, being in their own occupation only, and stone built and slated; £550 on cloth-maker's work, carding and breaking machines, and all moveable utensils in the first floor, occupied as a woolen mill; and £350 on stock of wool in the same:" then followed this very material passage, "warranted that the above mill is conformable to the first class of cotton and woolen rates delivered herewith."

"But that case observes Ch. J. Jones (2 Hall 614, 615,) which so fully carries out the principle of a literal and strict compliance with a warranty, in no respect relaxes, but in effect confirms the rule, that a representation or assurance, to impress it with the character of a warranty, must be incorporated in the contract, and compose part of the agreement between the parties.

"The warranty upon which the decision of the court turned, was embodied in the policy, and constituted part of the contract. No recurrence was had to extrinsic evidence, or to any collateral document or writing to establish it. The printed proposals to which the policy refers, as delivered with it, was not resorted to or used as proof of the warranty, but as an item of evidence, to show the mere compliance of the warrantor with his engagement, by showing that the mill was not of the class to which it was warranted, by the policy, to belong. It was because the assured had permitted the mill to be represented in the policy, as being conformable to the first class of cotton and woolen rates, and had accepted the contract with that condition in it, that he was held bound to establish the fact without regard to its materiality, and disabled by his own compliance with the condition, notwithstanding the extenuating matters shown in excuse of his failure from enforcing his contract against the company."

In the case of Delonguemare v. The Tradesman's Ins. Co. 2 Hall, 589, a description of the room in question, as a store room for painted ware, was contained in the application for insurance, or in the report or survey made upon the buildings insured; but it did not appear in the policy itself, nor was the report or survey, or the application containing it annexed to the policy. It was, therefore, held not to be a warranty; but that it might on the general principles of insurance, taken to be a representation; and, considered in that light, if material and falsified, it would vitiate the insurance. Jones, C. J. observes (p. 611):-"This brings us to the next branch of the defense, which is, that if the description of the building was not a warranty, it was a representation, and the room in question being represented as a room for the storage or deposite of finished painted ware, and not being so occupied at the time

of effecting the insurance, but then being used as a carpenter's shop, and that fact not being communicated to the insurers, there was a material misrepresentation or concealment, and the policy, for that reason, did not attach, and the Judge should, for that cause, have nonsuited the plaintiff.

"It is conceded that a representation, if it be not fraudulent, and does not tend to increase the risk of the insurer, will not avoid the policy, but that it will be sufficient to comply with it in substance, or to show that it has not been departed from, to the material injury of the insurers. I assume that the plaintiff did represent the room, on the smaller plan or survey, which I take to be his application for insurance, as intended for a store room for the reception of the painted ware when finished, and I assume, that this representation, whether the plan in which it appeared was the application for insurance, or a survey of the building, was before the insurers when they took the risk, and may have entered into their estimate of the rate of premium. And the question on these assumptions will be, whether the occupancy of that room by the carpenter, with his materials and tools, as disclosed by the evidence, did materially falsify the representation and increase the risk of the insurers? The proof of its materiality was upon the underwriters, who make the defense. I discover no evidence in the case of the point; and the failure of proof is decisive against the objection. The risk incurred, by the occupancy of that part of the building by the carpenter, if it in reality did enhance the risk, was susceptible of proof, and it was indispensably necessary to show it, in order to render the defense available. Unless, therefore, the necessity of extrinsic and oral proof of this fact was superseded, or the absence of such proof was supplied by the internal evidence deducible from the policy, or its accompanying conditions of insurance, this ground of defense cannot prevail.

And Mr. J. Oakley in the same case observes: "The general question arising on this bill of exceptions, is whether a description filed in the office of an insurance company, and referred to in the policy, in general terms, as a report of the situation of the premises insured, is to be considered as incorporated in the policy, and as constituting a strict warranty. If so, it follows, from the established doctrine on the subject of warranties, that any variation, in the actual situation of the premises, from the description, renders the policy void, though it be immaterial, or the mere result of accident or mistake.

"Assuming that the same rules of construction are to be applied to fire, as to marine policies, in determining what shall constitute, a warranty, and what shall be a representation merely, the general principle seems to be well settled, that an express warranty must appear on the face of the policy, and that any instructions for insurance, unless inserted in the instrument itself, do not amount to a warranty. (1 Con. Marsh. 349. 451. Pawson v. Watson, Cowp. 785. 2 Caines, 142. 3 Kent's Com. 235.) Thus it has been held, that a paper wrapped up in the policy, when presented to the underwriters, or annexed to it by a wafer, does not constitute a warranty; (Doug. 11, notis ;) and Phillips, in his Treatise on Insurance, (p. 125,) qualifies the general rule, by saying that a warranty may be contained in documents, expressly referred to in the policy, and so made a part of it