
    Burritt vs. The Saratoga County Mutual Fire Insurance Company.
    In the law of insurance a representation is not a part of the contract, but is collateral to it; whereas an express warranty is always a part of the contract. Per Bronson, 3.
    A mere naked reference in a policy to the written application for insurance will not make the latter a part of the contract so as to change what would else be a representation into a wairanty. Per Bronson, J.
    Otherwise, where the policy refers to the application thus—“ reference being had to the application &c. for a more particular description, and as forming part of this policy.”
    
    In marine insurance the omission to disclose a fact material to the risk and not known to the underwriter will avoid the policy, although the omission arose from mere accident, forgetfulness or inadvertence; and this, whether enquiry was expressly made of the assured in regard to such fact or not. Per Bronson, J.
    Otherwise, in many cases, as to fire insurance, unless it appear that the assured was in some way expressly called upon to disclose—e. g. by the conditions of insurance annexed to the policy, the form of the application prescribed by the underwriters, &c. Per Bronson, J.
    The parties to a policy may, by their contract, place a misrepresentation or concealment in relation to particular facts upon the same footing as a warranty.
    The conditions annexed to a policy issued by a mutual insurance company, after providing that all applications for insurance should be in writing according to the printed forms prepared by the company, further provided that the application should state the relative situation of the building insured in respect to all other buildings standing within ten rods, and that any misrepresentation or concealment in the application should render the policy void. The printed form of application prepared by the company and used by the assured, contained a note in the margin thus, “ Relative situation as to other buildings, distance from each if less than ten rodsand in the blank opposite to this, the assured inserted a description of five buildings which stood within the distance specified, but omitted to mention several others standing within the same distance. Held, that the omission, however innocent, was fatal to the policy; and this, whether material to the risk or not.
    
      Semble, that the application, in such case, if expressly referred to in the policy and made a part of it, may he regarded as a warranty of there being no buildings within ten rods other than those which are expressly mentioned. Per Bronson, J.
    A warranty by the assured in relation to the existence of a particular fact, must be strictly true, or the policy will not take effect; and this, whether the thing warranted be material to the risk or not.
    
      Assumpsit on a policy of insurance, tried before Monell, 0. Judge, at the Tompkins circuit, in September, 1842. On the 19th of December, 1837, the defendants insured the plaintiff, Joseph Burritt, against loss or damage by fire “ on his store situate in the village of Ithaca, $1600, reference being had to the application of said Joseph Burritt for a more particular description, and as forming a part of this policy, during the term of five years.” Annexed to the policy were “ Conditions of insurance” as follows, viz. 1. “All applications for insurance must be made in writing, according to the printed forms prepared by the company. Such application shall contain the place where the property is situated, [and, among other things,] its relative situation as to other buildings ; distance from each, if less than ten rods; for what purpose occupied,” &c; 2. “ Such application may be made either by the applicant or by a surveyor, and in all cases the insured will be boundt by the application, for the pmpose of taking which, such surveyor will be deemed the agent of the applicant6. “ If any person insuring any property in this company, shall make any misrepresentation or concealment in the application, &pc., such insurance shall be void and of no effect.” The printed forms of applications prepared by the company contained a marginal note as follows—“ Relative situation as to other buildings—distance from each, if less than ten rods f at the right hand of which note was a blank to be filled up by the applicant. This blank the plaintiff filled in his application with the description of five buildings as standing within ten rods from the building insured. Several other buildings, and among the number a cabinet maker’s shop, all standing within the ten rods, were not mentioned in the application. The plaintiff’s store was an ordinary hazard, and the rate of premium was 15 per cent. The rate for a cabinet maker’s shop was from 25 to 30 per cent. On the 28th of May, 1840, a fire commenced in the cabinet mailer’s shop, which communicated to the plaintiff’s store and damaged it to the amount of $850; and for that loss this action was brought. The judge charged the jury in relation to the survey or application, that “ it did not amount to a warranty: that there must be evidence to the jury (which is disclaimed in this cause,) of fraudulent misrepresentation, or fraudulent concealment of facts. That an accidental omission to insert in the application (without fraud) a building within the ten rods did not make void the policy; and therefore that the mere omission to insert the cabinet shop, under the facts of this case, where fraud is disclaimed, did not avoid the policy.” The jury found a verdict for the plaintiff, and the defendants now moved for a new trial on a bill of exceptions.
    
      D. Wright & J. A. Spencer, for the defendants.
    
      B. Johnson, for the plaintiff.
   By the Court, Bronson, J.

In the law of insurance a representation is not a part of the contract, but is collateral to it. An express warranty is always part of the contract, and a reference in the policy to a survey or other paper will not make such paper a part of the contract, so as to change what would otherwise be a mere representation into a warranty. (Jefferson Ins. Co. v. Cotheal, 7 Wend. 72; Snyder v. Farmers' Ins. Co., 13 Wend. 92, and S. C. in error, 16 Wend. 481: Delonguemare v. Tradesmen's Ins. Co. 2 Hall, 589; 1 Marsh. Ins. (Concdy,) 346—350, 451; 1 Phil. Ins. 346, 7, ed. of ’40.) But these cases admit, what no one could well deny, that the policy may so speak of another writing as to make it a part of the contract, although not actually embodied in the policy. And to that effect, see Routedge v. Burrell, (1 H. Black. 254;) Worsley v. Wood, (6 T. R. 710;) Roberts v. Chenango Ins. Co. (3 Hill, 501.) Now here, the policy not only refers to the plaintiff’s written application “ for a more particular description” of the property insured, but it refers to it “as forming a part of this policy.” The application was thus, by express words, made part and parcel of the contract, and the two instruments must be read in the same maimer as though they had been actually moulded into one.

How then stands the question of warranty ? The plaintiff was required by the “conditions of insurance,” and by the form of application with which he was furnished, to state the “relative situation [of the store] as to other buildings—distance from each, if less than ten rods.” To this he answered by mentioning five buildings as standing within the ten rods. Although he did not in terms say there was no other building within the ten rods, he must have intended that his answer should be received and understood by the company as affirming that fact; and as the answer is to be regarded as parcel of the contract, I find it difficult to resist the conclusion that the plaintiff has agreed that there were no other buildings within the ten rods than those mentioned in the application. Men are not at liberty to put a different construction upon their language when the contract is to be enforced, from that in which they intended the words should be received by the other party at the time the contract was made. I am strongly inclined to the opinion that there was a warranty; but there is another feature in the case which renders it unnecessary to settle that question.

In marine insurance the misrepresentation or concealment by the assured of a fact material to the risk will avoid the policy, although no fraud was intended. It is no answer for the assured to say that the error or suppression was the result of mistake, accident, forgetfulness or inadvertence, It is enough that the insurer has been misled, and has thus been induced to enter into a contract which, upon correct and full information, he would either have declined, or would have made upon different terms. Although no fraud was intended by the assured, it is nevertheless a fraud upon the underwriter, and avoids the policy. (Bridges v. Hunter, 1 Maule Selw. 15; Macdowall v. Fraser, Doug. 260; Fitzherbert v. Mather, 1 T. R. 12 ; Carter v. Boehm, 3 Burr. 1905; Bufe v. Turner, 6 Taunt. 338; Curry v. Commonwealth Ins. Co., 10 Pick. 535; N. Y. Bowery Ins. Co. v. N. Y. Fire Ins. Co., 17 Wend. 359; 1 Marsh. Ins. (Condy) 451—453, 465; 1 Phil. Ins. 214, 303.) The assured is bound, although no inquiry be made, to disclose every fact within his knowledge which is material to the risk. But this doctrine cannot be applicable, at least not in its full extent, to policies against fire. If a man is content to insure my house without taking the trouble to inquire of what materials it is constructed, how it is situated in reference to other buildings, or to what uses it is applied, he has no ground for complaint that the hazard proves to be greater than he had anticipated, unless I am chargeable with some misrepresentation concerning the nature or extent of the risk. It is therefore the practice of companies which insure against fire to make inquiries of the assured, in some form, concerning all such matters as are deemed material to the risk, or which may affect the amount of premium to be paid. This is sometimes done by the conditions of insurance annexed to the policy, and sometimes by requiring the applicant to state particular facts in a written application for insurance. When thus called upon to speak, he is bound to make a true and full representation concerning all the matters brought to his notice, and any concealment will have the like effect as in the case of a marine risk. (See 1 Phil. Ins. 284, 285, cd. of 1840.) It is not necessary for the purpose of avoiding the policy, to show that any fraud was intended. It is enough that information material to the risk was required and withheld.

This doctrine is fatal to the present action. The plaintiff was plainly and directly called upon to state the relative situation of the store as to all other buildings within the distance of ten rods; and he omitted to mention several buildings which stood within that distance, and among the number was one which was far more hazardous than that to which the policy applied. If there could be any doubt that the facts concealed were material to the risk, the question should have been left to the jury.

But there is a further view of the case which is still more de cisive against the action; and it is one in which the materiality of the concealment is not open for discussion. The plaintiff was required by the conditions annexed to the policy, and by the printed form of application which he used, to give the information which he withheld. And it was one of the conditions of insurance” that if he should make any misrepresentation or concealment in the application” the policy should be “ void, and of no effect.” Nothing is said about fraud; but any concealment in the application avoids the policy. And yet the jury was instructed that there must be a fraudulent concealment of facts. That position cannot be maintained without making a new contract for the parties.

A warranty by the assured in rélation to the existence of a particular fact must be strictly true, or the policy will not take effect; and this is so whether the thing warranted be material to the risk or not. It would, perhaps, be more proper to say, that the parties have agreed on the materiality of the thing warranted, and that the agreement precludes all inquiry on the subject. (See the cases already cited, and Fowler v. Ætna Ins. Co., 6 Cowen, 673, and 7 Wend. 270, S. C.; 1 Phil. Ins. 351, 354.) Here the parties have by their contract placed a misrepresentation or concealment in relation to particular facts upon the same footing as a warranty. They have agreed that the misrepresentation or concealment shall avoid the policy, and we have nothing to do with the inquiry whether the fact misrepresented or concealed was material to the risk. The jury should have been instructed to find a verdict for the defendants.

The Chief Justice and Cowen J., being members of the company, gave no opinion.

New trial granted. 
      
      
         Further, as to the distinction between a representation and a warranty, see Alston v. The Mechanics' Mutual Ins. Co. of Troy, (4 Hill, 329, 334 et seq.,) and the books there cited by Walworth, chancellor.
     
      
      
         See Potter v. The Ontario and Livingston Mutual Ins. Co. (ante, p. 147, 149.)
     
      
       See Grant v. The Howard Ins. Co. (ante, p. 10.)
     