pose of "storing" those articles within the meaning of the policy, and Sutherland, J., in behalf of the court, said,— "Every thing that was kept, either in the store or cellar, was kept for the purpose of being retailed; the smaller vessels in the store were replenished from the larger ones in the cellar, which consisted, at the time of the fire, of one cask of oil, one barrel of rum, one cask of Jamaica spirits, and one pipe of gin; from all of which more or less had been drawn for the use of the store. It appears to me that the word "storing" was used by the parties in this case in the sense contended for by the plaintiff, namely, a keeping for safe custody, to be delivered out in the same condition, substantially, as when received; and applies only where the storing or safe keeping is the sole or principal object of the deposit, and not where it is merely incidental, and the keeping is only for the purpose of consumption. If I send a cask of wine to a warehouse to be kept for me, that is a storing of it; but if I put it into my cellar or my garret to be drawn off and drank, I apprehend the term would not be considered as applying. Suppose all the varieties of wine were denominated "hazardous," by the various insurance companies, and the storing of them was prohibited in their policies; could it possibly apply to the private stock which a gentleman might keep in his own house, for his own use and consumption? It certainly would be perverting the term from its ordinary and generally received acceptation." 1

§ 169. On the principle, that conditions are to be construed strictly against those for whose benefit they are introduced, when they impose burdens on other parties, is it, that if the words in a policy of insurance against fire, describe the house as "at present occupied as a dwelling-house, but to be occupied hereafter as a tavern, and privileged as such," there is

1 2 Hall, (N. Y.) R. 226.

no warranty that the house shall, during the continuance of the risk, be constantly occupied as a tavern, but that it is at farthest a mere representation of the intention to occupy it as such, and a license or privilege granted by the underwriters, that it may be so occupied.1 But if the stipulation had been that the house should not be occupied as a tavern, it would have been a warranty.2

1 Catlin v. Springfield Fire Ins. Co. 1 Sumner, (Cir. Co.) R. 434.

2 In the Circuit Court, St. Louis, Missouri, 1852, before Judge Hamilton, James Lawless v. Tennessee Marine and Fire Insurance Company; the action was upon a policy of insurance dated March, 1850, by which the defendants caused the plaintiffs to be insured, for one year, for the sum of $1,000, "on brick warehouse on Water street, between Morgan and Green streets, in block 15, St. Louis, to be occupied as three stores, but not as coffee-houses."

The property was destroyed by fire in October, 1850, during the existence of the policy. The defendants admitted the execution of the policy, the destruction of the property, and the proofs of the loss, but set up as a defence, that before and at the time of the fire one of the tenements was occupied as a coffee-house, and that another was occupied as a rectifying establishment, and for distilling cordials, in which business fire-heat was used. Upon the trial of the cause, the defendant proved that previous to, and at the time of the fire, one of the tenements was occupied by Philip Rock, as a coffee-house, although the fire originated in the next tenement, used for rectifying spirits, and not in the coffee-house; and thereupon prayed the court to instruct the jury, that if, previous to, and at the time of the fire one of the tenements was used as a coffee-house, then the jury must find for the defendant contending that the words used in the policy were equivalent to a warranty that the property should not be used as a coffeehouse during the existence of the policy, and consequently that it mattered not whether the plaintiff was cognizant of the use of the property or not. The plaintiff's counsel contended that the words used in the policy were mere words of description, and showed merely the intended use of the property, but did not amount to a warranty that the use of the property should not be changed, nor that a coffee-house should not be kept in them. The court sustained the construction contended for by the defendants, holding that the words "not to be used for coffee-houses," were equivalent to a warranty that the premises should not be used for that purpose, and that although as a general rule the words of description in a policy would not be considered as words of warranty, yet the use of the negative words "not to

§ 170. Where the premises were described as occupied by a certain individual as a private residence, it was held, that this did not amount to a warranty of the continuance of the occupation during the risk, and, therefore, that the insurers were liable, although before the loss the occupant had removed and left the premises vacant. It was considered by the court in this case, that there was 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; the rate of insurance not being made usually to depend on such a circumstance, and the continuance of the tenant's occupation not being embraced within the words of the warranty, and not being manifestly material to the risk, could. not be brought within it by inference or implication.1

§ 171. In New York, fire insurance companies make a 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 agent, be sufficient to avoid the policy. But in reference to all matters of minor importance, such as whether the building is a few feet more or less

be used," left no room for that construction; that the particular use of the premises was intended to be forbidden by the policy, and that those words must be construed as words of warranty. The court, therefore, gave the instruction asked by the defendant's counsel, and the jury found a verdict for defendant. Lawless v. Tennessee Marine and Fire Ins. Co., Hunt's Merchant's Mag. for February, p. 205.

1 O'Neil v. Buffalo Fire Ins. Co. 3 Comst. (N. Y.) R. 122; and see Curry v. Commonwealth Ins. Co. 10 Pick. R. 535. See ante, § 131.

near an adjacent building, or whether the rooms, partitions, staircases, &c., are precisely stated by the assured, 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 he 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 variation from the description of the property, or its location as to the buildings, &c.1

1 Farmers Ins. & Loan Co. v. Snyder, 16 Wend. (N. Y.) R. 480.

CHAPTER VII.

CONCEALMENT.

§ 172. We have already been prompted incidentally to suggest, that there must be the most perfect fairness, in obtaining a policy of fire insurance, in disclosing all circumstances material to the risk, and also, that even the reasonable grounds of apprehension on the part of the assured must be stated; that the insurer must be supposed to take the risk on the supposition that nothing unusual exists.1 "The contract of insurance," says Ch. Justice Marshall, " is one in which the underwriters generally act on the representation of the assured; and that representation ought consequently to be fair, and to omit nothing which is material for the underwriters to know.2 Concealment is regarded as a species of

1 See ante, § 110, referring to Bufe v. Turner, 1 Marsh, R. 46, and 6 Taunt. R. 338; and Clark v. Manuf. Ins. Co. 8 How. (U. S.) R. 535. Upon this important point, see also 1 Bell, Comm. 338; 1 Arn. on Ins. 536; 3 Kent, Comm. 449; Child v. Sun Mutual Ins. Co. 3 Sand. (N. Y.) Sup. Co. R. 26; Fletcher v. Commonwealth Ins. Co. 18 Pick. (Mass.) R.

419.

2 Columbian Ins. Co. v. Lawrence, 2 Peters, (U. S.) R. 25, 49; and see Jackson v. Phoenix Ins. Co. 1 Wash. (Cir. Co.) R. 370; Moses v. Delaware Ins. Co. Ibid. 385; Hubbard v. Coolidge, 2 Gallis, (Cir. Co.) R. 353; Baxter v. New England Ins. Co. 3 Mason (Cir. Co. R.) 96. The doctrine on this subject is thus stated by Lord Mansfield in a case which was an action on a policy of marine insurance: "Good faith forbids either party, by concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact, and his believing the contrary. But either party may be innocently silent as to grounds open to both, to exercise their judg