
    Geo. B. Throop vs. The N. A. Fire Insurance Company.
    AsaumpBit on contract of insurance. The declaration purported to set forth the contract according to its legal effect, and not in heec verba. The policy, which was burned, pwvided that when a policy issued on or referred to an application, survey, plan, or desctfption, it should be considered a part of the contract and a warranty by the assured. It appeared from the testimony of a witness called by plaintiff to prove the contents of the policy that his knowledge was gained by being in the office of the agency and observing the formB used and the way in which the business was done. On cross-examination he was allowed • under objection of plaintiff’s counsel, to state that policies wer#issued on applications and that plaintiff signed one when this policy was issued. There was no evidence of the contents of the application. On objection by defendant’s counsel, the Court excluded proof of loss onthe ground that there was a fatal variance caused by an omission to notice the, application in the declaration.
    
      Meld, that the objection to the inquiry on cross-examination was properly overruled.
    
      Held, further, that the declaration purporting to set forth the contract according to its legal effect, and not in terms, and there being no evidence of the contents of the application, the Court could not assume and hold as matter of law that the declaration did not set forth the whole contract according to its legal significance, since the bare fact that an application was made in writing could not be held as surely- implying tlvat it contained matter capable of being the subj ect of warranty.
    Error to Lenawee Circuit.*
   Opinion by

Graves, J.

Throop sued the Insurance Company for an alleged loss under a policy from them. The action was assumpsit and tbe plea the general issue in tbé common law •form. On the trial plaintiff gave evidence tending.to prove the issue and delivery of the policy and its destruction by fire, and proceeded to prove its contents. On cross-examination the witness who testified to the contents of' the policy was asked whether it was customary for any other papeirs to be executed by either party in connection therewith, which was objected to, but objection overruled. The witness then testified that he knew of no other such papers except applications, and that Throop signed one of these when the policy was issued to him.» Thi^ ruling oí the Court below is alleged as error.

Held, that the ruling was correct. The fact called for was closely connected with the matter drawn out on direct examination and bore upon the precision of witness’ acquaintance with the company’s insurance contracts as well as with the nature of the transaction between the parties.

After further testimony as to the form of policies of the company, and the form of applications, one oí the blank applications was read in evidence, which provided that if the policy was made and issued upon or referred to an application, survey, plan, or description of the property insured, such application should be considered a part of the contract, and a warrant by the assured. Throop testified that he made application in writing, signed by himself, for the insurance. Offer was then made to show on his behalf that the property insured was destroyed by fire during the life of the policy, but defendant objected because it appeared that such written application had been made, which was not referred to in the declaration, and hence there was a fatal variance between the contract set up and the one actually made. Objection sustained and evidence excluded-No further evidence was offered, and defendant obtained a verdict. The declaration does not purport to set up the contract verbatim, but only to state its substance.

Held, that the question turns upon the construction of the declaration, and policy, and application, as to whether the declaration fairly sets up the substance of the entire contract between the parties. It does not follow, of course, that the application was a warranty because of the simple statement that such shall be its character. If the set of words used lack the signification to make them possible evidence of a warranty, ah agreement to make them such is ineffectual, and the Court could not determine this until it should appear what the warranty embraced. The proper construction of the clause that the application shall be a warranty will make it applicable only to those cases where the application is of such a nature or so drawn as to be capable oí a Warranty by force oí the stipulation in question. The proof simply that an application was made would not, alone, justify the Court in holding as matter of law that it contained conditions qualifying the legal sense oí the contract stated in the declaration.

It was insisted, however, that the parties having made the application part of the contract the plaintiff was bound to produce it on the trial, and put it in evidence, that the Court might determine whether it contained anything material.

Held, that the Court below decided the question without evidence of the contents of the application, and that decision is what the defendant must support in this Court, and that the plaintiff was under no duty to put in evidence any matter which in his judgment was immaterial. So far as the records show, no matter was produced which tended to prove that the legal sense imputed to the contract by the declaration was incorrect. The defendants allege a variance, and they are bound to show to the Court by some means the particular matter they relied upon to sustain this claim.

Judgment reversed and new trial ordered.

Christiancy, J.,

dissented, holding that the application was a part of the contract of insurance, and that its introduction in evidence as proof of its contents was necessary to determine how far it modifies the policy, but that the burden of proving the contents of the application was upon the plaintiff, as part of his proof of what the contract between the parties really was, and that it was such a contract as the declaration set up.  