held, that the omission, however innocent, was fatal to the policy; and this, whether material to the risk or not. It was no answer for the assured to say, that the error or suppression was the result of accident, forgetfulness, or inadvertence. It is enough, that the insurer has been misled, and been induced to enter into a contract, which, upon full information, he would either have declined, or would have made on different terms.1

§ 180. If the defence is, that the application does not mention all the buildings standing within a certain number of rods of the building insured, agreeably to a condition to that effect annexed to the policy, the condition will be considered to relate exclusively to insurance upon buildings, and, therefore, to furnish no grounds of defence to the plaintiff's claim respecting the personal property, covered by the policy; it would be absurd and unintelligible when applied to personal property.2 Where, in the application for insurance on personal property, which application was annexed to the policy issued, and was referred to therein, and made a part thereof, opposite to the usual printed inquiries "where situated, and relative situation as to other buildings, distance from each if less than ten rods," was written a description of several buildings standing within ten rods of the one in which the goods insured were, but several other buildings within that distance were not mentioned; it was held, that had this been an insurance on buildings, the statement in the application, as to distance from the other buildings, would have been a warranty; and that if a different rule prevails in respect to personal property, in any case, such rule cannot apply where personal property only is mentioned.3

1 Burritt v. Saratoga County Mutual Fire Ins. Co. 5 Hill, (N. Y.) R. 188. 2 French v. Chenango County Mutual Ins. Co. 7 Hill, (N. Y.) R. 122. 3 Sexton v. Montgomery County Mutual Ins. Co. 9 Barb. (N. Y.) Sup. Co. R. 191; and see Stebbins v. Globe Ins. Co. 2 Hall, (N. Y.) R. 632.

§ 181. By the Supreme Court of Pennsylvania, it was held, that where the constitution and by-laws of a mutual fire insurance company do not require from any applicant for insurance a statement as to the condition of the property designed to be insured; but where the by-laws provide for a survey at the instance of the company, the policy is not void by reason of omission on the part of the assured, to state a fact material to the risk, where no inquiry is made of him on the subject.'

1 Satterthwaith v. Mutual Beneficial Institution, 2 Harris, (Penn.) R. 393. In this case the court say,- "The mere omission by the plaintiffs, when they made their application to insure grain in the mill, to return the corn-kiln, or to say any thing about it, when it is well known that there are corn-kilns attached to half or more of the grist and merchant mills, would not excuse the officers of the company, who neglected inquiry, from gross negligence. No men of common prudence would grant a policy on the grain in a grist or merchant mill, without inquiring into its situation, and the situation of the adjacent buildings. As regards this mutual insurance company, under the rules and regulations, the evidence would have been irrelevant." That the governing principle and object of mutual insurance companies is to share each other's losses for the general weal, the court, in this case, cite Susquehanna Ins. Co. v. Perrine, 7 Watts & S. (Penn.) R. 348, and Rhinehart v. Alleghany Mutual Ins. Co. 1 Barr. (Penn.) R. 359. See, as to mutual insurance companies, ante, § 10, p. 45, and § 146, p. 176.

CHAPTER VIII.

MISREPRESENTATION AND CONCEALMENT OF THE INTEREST OF THE ASSURED.

§ 182. We have already shewn it to be abundantly well settled, that an insurance effected against loss by fire, will entitle the assured, in case of loss, to recover upon the proof of any interest in the subject-matter insured, however indirect; and it has likewise been made to appear, that it is in general sufficient if the subject-matter of the insurance, and the nature of the risk are set forth in the policy, without any representation of the nature or character of the interest for which the insurance is intended as a protection.1 The usual mode of application for insurance upon a building specified, (unless to a mutual insurance company,) is without any statement of the nature or extent of the applicant's interest.2

§ 183. An assured, in his application for insurance on a house against fire, stated it to be his own property; but no inquiry was made by the insurers as to the state of his title; and although the house had been mortgaged, and the equity of redemption had been seized on execution, it was held, that these circumstances were not material to the risk, and that the statement in the application was not material to the risk. Judge Wilde, in giving the judgment of the court, said, — "The principal objection on which the defendant's counsel

1 See ante, Chap. IV.

2 Niblo v. North American Fire Ins. Co. 1 Sand. (N. Y.) Sup. Co. R. 551; Catron v. Tennessee Ins. Co. 6 Humph. (Tenn.) R. 177; 1 Phil. on Ins. 354, 3d ed.; Brown v. Williams, 15 Shep. (Me.) R. 252; Smith v. Bowditch, 6 Cush. (Mass.) R. 448.

rely, is that the plaintiff did not make a full and fair disclosure of his interest, and that there was such a concealment as vitiated the policy. Undoubtedly, the plaintiff was bound to make a full and true exposition of all the facts and circumstances relating to the condition, situation, and value of the property insured, and to disclose his interest therein so far as was material to the risk. But we do not perceive how the encumbrances on the plaintiff's property could be considered as material to the risk. The destruction of the house did not extinguish the mortgage debts, so that he was interested to the full amount of the value of the property insured. It was not necessary to specify in the policy that the property was under mortgage." Where the fact of a pending litigation affecting premises insured, was not communicated to the insurer by the assured, at the time of executing the policy, it was held, that the omission to disclose did not vitiate the policy.2

1

184. In Fletcher v. Commonwealth Insurance Company, the action was brought on a policy of insurance effected by the plaintiff for a certain amount on his store, and a certain amount of his stock in trade, contained in his store. One B. owned the land on which the store had been placed, and he had agreed that the plaintiff might move the store on to the land and keep it there, paying an annual rent for five years, unless B. should request him to remove it, in which case he should have six months' notice; and there was no writing between him and the plaintiff in relation to the store or the land. Upon this evidence, it was contended, that facts material to the risk had been suppressed, and that thereby the policy was rendered void. The court, in giving judgment, said,—"Now the evidence is, that the plaintiff

1 Strong v. Manuf. Ins. Co. 10 Pick. (Mass.) R. 40, and cited ante, § 58.

2 Hill v. La Fayette Ins. Co. 2 Gibbs, (Mich.) R. 476.

3 Fletcher v. Commonwealth Ins. Co. 18 Pick. (Mass.) R. 419.

did not say whether he owned the land or not; and it is not in our power to see how that varied the risk which the defendants insured against fire. It would have been just as material to have stated on which side, east or west, of the street, the house stood; whether it were painted or not." The court, furthermore said, "that enough was truly represented to put the defendants upon their inquiries for more."1

§ 185. It has been well-settled, in the State of New York, both as regards marine insurances and insurances against fire, that the nature or amount of the interest, held by the assured in the property at risk, need not be communicated to the insurer. The subject came before the Supreme Court of that State in the case of Tyler v. The Etna Fire Insurance Company. The insurance had been effected by a party in possession of the premises, as vendees under articles of agreement, on which a considerable portion of the purchase-money was unpaid; and it appeared that, in applying to the defendants, he had held himself out as owner of the premises, without disclosing the real nature of his title. This was relied on at the trial as being a material misrepresentation, and one which, therefore, avoided the policy. But the court held otherwise.2

§ 186. A different view has however been taken of this subject by the Supreme Court of the United States, who have held, that although a special or limited interest in the property insured will be covered by general words of insurance, yet that a full representation must be made of the actual circum

1 Fletcher v. Commonwealth Ins. Co. 18 Pick. (Mass.) R. 419; and see ante, § 152, et seq., as to materiality of concealment.

2 Tyler v. Etna Fire Ins. Co. 12 Wend, (N. Y.) R. 507, and 16 Wend. R. 385; and Niblo v. North American Fire Ins. Co. 1 Sand. (N. Y.) Sup. Co. R. 551.

3 See 2 Amer. Lead. Cases, and ante, Chap. IV.