
    The Imperial Fire Insurance Co. versus Murray et al.
    
    1. Where a party-applying for insurance, without fraud, made an inaccurate representation (not a warranty), which he believed to be true, this would not defeat his action on the policy.
    2. An insurance was effected on a coal-breaker, &c., by the lessee of a colliery, being the “ working interestthe lessee having the right to renew his lease, and being bound to return the property in good order at the end of the lease. The slope fell in and afterwards the breaker, &c., were burned. The insured could-recover the value of the property although by the falling in of the slope his working interest was of less value than the amount insured.
    3. The insurable interest of the lessee was the value of the property which he was bound to replace.
    January 27th 1873.
    Before Read, C. J., Agnew, Williams and Mercur, JJ. Sharswood, J., at Nisi Prius.
    Writs of error to the Court of Common Pleas of Columbia county: Of September Term 1872, No. 2 and 5.
    The cases in which these writs of error were taken, were tried together in the court below, and heard together on error in the Supreme Court.
    Both actions were brought to September Term 1870 of the court below, by William Murray, Richard. Winlack and Walter Randall, trading as Murray, Winlack & Randall, on two policies of insurance: the first against The Imperial Eire Insurance Company; the second against The North British and Mercantile Insurance Company. They were tried June 13th 1871, before Elwell, P. J.
    
      Each policy was dated September 18th 1869, for “ $2500 on frame coal-breaker structure, schutes, plane, trestling, engine and boiler-house, and all wood work connected ; $2500 on breaker engine, rollers, screens, belts, plates, pulleys, shafting and all connected machinery contained in breaker structure, situate in Locust Mountain, in Conyngham township, Columbia county. This to insure all their working interest. Rate 3 per cent.; premium $150 ; term one year from September 17th 1869. Also another policy of $5000.” The foregoing was written in the blank of the printed policy.
    Richard Winlack, one of the plaintiffs, testified: “ Mr. Silly-man represented the defendants, and came to me to get the insurances; the office was in Pottsville; E. E. Bodey represented both companies; the fire occurred January 19th 1870, in the night; I didn’t know it till the 20th, and on the morning of the 21st I went up to the breaker; on the same day I notified Mr. Bodey; I told him the property was destroyed, and he should notify his companies at once; he said he would; I took the notices to Mr. Bodey, he read them over, and said ‘ The papers are all right.’ This was the date of first paper; I executed the paper in duplicate, one copy to Mr. Bodey, and one to be forwarded to the company. About sixty days after the first, I received a letter from Mr. Bodey. I took the letter to Mr. Kaercher, and he and I went to Mr. Bodey, to see what papers in addition he wanted; he gave a memorandum of what he wanted; the papers were made out, and I took them to Mr. Bodey, and he said he would forward them to the company the same day. Duplicates were mailed to the company the same day. The first notice was a verbal notice; the first written notice was on January 24th 1870 ; gave no other notice until March; Bodey requested that the notice of March be given; he said the papers were all right; he told me he was agent for both companies to effect insurances. I made my application to Bodey, and got the policies; they were handed to me by Mr. Sillyman; I had nothing direct to do with Bodey in effecting the insurances.”
    The following letters were given in evidence by the plaintiffs:—
    “Pottsville, January,25th 1870.
    “ Imperial Eire Insurance Company of London; Office No. 40
    Pine street, New York.
    “ E. M. Archibald, Esq.
    “ Dear Sir: — Please, find enclosed ;a copy of the notice and proof of loss this day served upon the agent of the company, E. E. Bodey, by the insured, Messrs. Murray, Winlack & Randall, with instructions to forward the same to the company. Should any further notice or proof be required the insured will cheerfully furnish the same if desired by the company. Please acknowledge receipt of this and enclosure and oblige
    “ Yours respectfully,
    “ Geo. R. Kaercher,
    “ Att’y for Murray, Winlack & Randall.”
    A letter precisely similar was addressed to the New York agent of the North British and Mercantile Insurance Company.
    “Pottsville, Pa., March 15th 1870.
    “ Messrs. Murray, Winlack & Randall:
    “ Gentlemen: — Your papers purporting to be proofs of loss under policy No. 36 in the Imperial Eire Insurance Company of London, and No. 506 in the North British and Mercantile Insurance Company, are entirely incorrect and insufficient, and are not in pursuance of your policies, and are not in accordance with the conditions thereof. We call your attention to said policies, and to the printed conditions in relation to loss, &c. Until you comply with such conditions in this respect I can give you no answer as to what our course of action will be. Yours truly,
    “ E. E. Bodey,
    “ Agent for N. Bt. Mercantile and Imp. Eire Ins. Cos.”
    “Pottsville, March 19th 1870.
    “Bear Sir: — We have this day furnished Mr. E. E. Bodey, agent of the company at Pottsville, additional information concerning our loss by fire of our working interest insured under policy No. 506, with directions to forward the same to the company. It was only yesterday that we ascertained, through Mr. Bodey’s letter to us, that the company desired any further information to determine ‘ its course of action,’ though we signified our willingness to comply with any requirements the company might desire, in our communication of January 25th 1870; besides, the same statement was made to Mr. Bodey, the agent, at the time the proofs were handed to him, when he, after examination of them, replied that they were sufficient and correct. Hoping that in justice to all parties concerned the company will speedily determine upon its course of action, we are very respectfully,
    Murray, Winlack & Randall.”
    Addressed to each of the New York agents.
    Conrad Sillyman testified: “ I was canvasser for insurance for Mr. Bodey; he was agent for the companies; I procured Murray, Winlack & Randall necessary papers; they were executed by Bodey; he filled the policies; the applications were filed in his office; kept them as references; were not sent abroad as I know of; Bodey paid the losses when they occurred, but not in this case.”
    Richard Winlack further testified: “ I called with Mr. Kaercher on Mr. Bodey, before tbe first notice, and asked for tbe printed form of the policies, to put it in the notice; he said it was not necessary to put it in only the written portion of the policies, and after they were made out showed them to Bodey. He said they were al'1 right.”
    The plaintiffs, under objection and exception, gave in evidence the following written notices, being those referred to in the testimony of Richard Winlack.
    The notice was addressed to each of the insurance companies.
    It set out the issuing of the policy in each case to the plaintiffs by the company, “ countersigned by their agent at Pottsville; the written body of said policy, with its immediate context, is as below specified, said insurance terminating on the 17th day of September, A. D. 1870, at 12 o’clock, noon.” * * *
    “ By this policy of insurance the North British and Mercantile Insurance Company, in consideration of the receipt of one hundred and fifty dollars, do insure Murray, Winlack & Randall to the'amount of five thousand dollars, as follows, viz.: $2500 on frame coal-breaker structure, schutes, plane, trestling, engine and boiler-house, and all wood work connected; $2500 on breaker engine, rollers, screens, belts,. plates, pulleys, shafting, and all connected machinery, all contained in breaker structure, situate at the Locust Mountain Colliery, Conyngham township, Columbia county, Penna. This insurance to cover their working interest in the above-insured property. $5000, similar insurance.”
    “That in addition to the amount covered by the above policy there was other insurance made thereon to the amount of $5000, as specified in the accompanying schedule, showing the name of such company and the written portion of said policy, besides which deponents had no insurance thereon. That on the 19th day of January, A. d. 1870, a fire occurred by which the property insured was injured and destroyed to the amount of ten thousand dollars and upwards, which deponents declare to be a faithful and just and true account of their loss as far as they have been able to ascertain the same.
    “ That the actual cash value of the property so insured amounted to the sum of ten thousand dollars and upwards at the time immediately preceding the fire. That the character and nature of the property so destroyed is set forth in the above-mentioned part of said policy.
    “ That the property insured belonged and was leased to said Murray, Winlack & Randall, and that the property above insured, and which was destroyed, was used in the mining and preparation of anthracite coal for market, and for no other purpose whatever.
    “ That the fire originated from causes unknown to deponents, and, after diligent inquiry, they have been unable to ascertain the cause of said fire.
    
      “ That the amount of their claims against The North British and Mercantile Insurance Company is five thousand dollars each, and the said deponents further declare that the said fire did not originate by any act, design or procurement on their part, or in consequence of any fraud, or evil practice, done, or suffered by them, and nothing has been done by or with their privity or consent, to violate the conditions of insurance, or render void the policy aforesaid.
    Sworn and subscribed before me, the 1 William Murray, 24th day of January A. D. 1870. j R. Winlack.” * * * *
    
    Accompanying the foregoing was the affidavit of a resident “most contiguous” to the property insured, that he was not interested as creditor, &c., and that he believed the loss sustained by 'the plaintiffs was “$10,000 and upwards.” Also, a schedule of the additional insurance by the other company.
    ■ The notice of March 18th, referred to in Winlaek’s testimony, set out the insurance, the fire, &c., and stated that full proofs of the loss and circumstances of the fire had been furnished to Bodey January 19th 1870, and a copy forwarded to the company; that on the 17th of March the plaintiffs received a letter from Bodey requiring further information, and the nature of such information “having been this day made .known by the said E. Bodey,” the plaintiffs presented additional proofs, viz.: — “ That the real estate upon which the property insured was erected, is owned by the Locust Mountain Coal and Iron Company, that a leasehold estate therein was conveyed by the said company to the Mammoth Vein Consolidated Coal Company, and that the said leasehold estate became vested in W. W. Goddard and O. Ditson, that the interest of O. Ditson became vested in J. W. Draper, and that a sub-lease was made by the said Goddard & Draper to Murray, Winlack & Randall; that the value of the breaker, engines, improvements (their working interest in which was insured) was between thirty-five and forty thousand dollars; that the estate of Goddard & Draper was to continue until December 31st 1874; that the sublease of Murray, Winlack & Randall was to continue until March 31st 1870, with privilege of renewal for one year from that date, in default of which renewal the said Goddard & Draper were to pay to the said Murray, Winlack & Randall the amount expended by them in and upon said breaker, amounting to $7500; that the said improvements and addition to said breaker had been made at the time of said insurance and are part of the property, the working interest therein of which was insured by said policy ; * * * that the whole of the property mentioned in the above policy (worth between $35,000 and $40,000) was destroyed by said fire, and the entire working interest of the said Murray, Winlack & Randall was destroyed; that the actual cash value of the working interest so insured and destroyed amounted to fifteen thousand dollars and upwards at the time immediately preceding the fire; that the amount of the claim of Murray, Winlack & Randall against the Imperial Eire Insurance Company, of London, is five thousand dollars.”
    The plaintiffs gave in evidence lease dated in 1864, from the Locust Mountain Coal and Iron Company to the Mammoth Vein Consolidated Coal Company, by which the lessors granted, &c., to the lessees “ a certain coal breaker, with its appurtenances, situate at the colliery known as the Big Run Colliery, * * * steam-engine, boilers, pumping and' hoisting machinery and apparatus at the slope known as the ‘Mammoth Vein,’ and the house covering said steam-engine, &c.,” and other colliery improvements; the lessors also leased to the lessees “ for a term commencing at the date of this lease, and terminating on the 31st of December 1874, the right, &c., to mine and take away coal as their own property,” in the manner described in the lease, the lessees to pay 25 cents per ton; the lessees to keep the breaker, including the engine and fixtures, insured for not less than $10,000, and the engine-house and machinery therein insured for not less than $5000, the payment, in case of loss, to be made to the lessors ; the breaker and fixtures belonging to lessees to remain on the premises until the end of the term, and be kept in repair by the lessees ; at the end of the term to be valued, and if not taken at the valuation by the lessors to be removed by the lessees.
    Plaintiffs gave in evidence sheriff’s sale November ■ 25th 1867, under an execution against the Mammoth Vein Company of all their leasehold interest, including fixtures, to William W. Goddard and Oliver W. Ditson. Also, lease W. W. Goddard and John W. Draper to Winlack, Murray & Randall, the plaintiffs, dated April 1st 1868, granting and demising the premises held under the foregoing lease, and sold by the sheriff, as above stated, to Goddard & Ditson, the interest of Oliver Ditson in which has since become vested in the said John W. Draper.. Also, the •right to use the machinery, fixtures, &c., erected at the colliery until March 31st 1870; the plaintiffs to pay the rent reserved by the Locust Mountain Company, and an additional rent of 20 cents per ton on coal mined; to keep the covenants, &c., to be kept by the Mammoth Vein Company; to keep the movable personal property in good condition, and deliver the possession to the lessors at the end of the term in good condition, and if it should “be destroyed by accident, or otherwise, to replace the same with others of equal value,” &e., and to keep the improvements, &c., in good order; with right of re-entry by lessors on breach of condition, &c.
    The plaintiffs gave in evidence, under objection and exception, an agreement dated December 9th 1868, between J. W. Draper and plaintiffs, reciting that plaintiffs were working the colliery under an agreement with Goddard & Ditson, and contemplated putting in a steam-pump, and agreeing that plaintiffs should be allowed 15 cents per ton on all coal mined until the pump should be paid for, “ from after the first of January 1869, the cost not to exceed $5000at the end of the agreement with Goddard & Ditson the plaintiffs to have the privilege of removal for one year, “if not so allowed,” then all permanent improvements by the plaintiffs to be paid for by Goddard & Ditson, who were to have the privilege of selling the colliery at any time by paying the plaintiffs for the improvements.
    Plaintiffs gave evidence tending to show that after the. sheriff’s sale Goddard & Draper had the control of the colliery.
    Winlaek testified that Ditson was never at the colliery, and made no claim on plaintiffs; they had always paid rent either to Draper or to an agent of Draper & Goddard. The plaintiffs shipped coal till December 18th 1869; they were not working the pump when the breaker was burned; the slope had caved in when the machinery was burned.
    Plaintiffs gave evidence that the amount expended by them for improvements was $8200.
    Under objection and exception Winlaek testified: “the market value of our working interest at the time of the fire, with the privilege of removal for one year, was between $20,000 and $30,000and that it would have cost not less than $30,000 to restore it as it was before the fire; the breaker at the time of the fire was worth $18,000 or $20,000 ; plaintiffs did not apply for a renewal of the lease; nor was it renewed; they had possession until the time of the fire; had a watchman there and afterwards, until the 1st of April; plaintiffs were sold out by the sheriff; until then they had houses, &c.
    Before the fire the slope had fallen in; it was not opened; it would cost about $5000 to open it; plaintiffs made no effort to open it; it would be useless to open the slope unless they had a breaker; it would not pay to open it for the property in the mines, unless they could get out the coal.
    Plaintiffs gave evidence also of the character and extent of the injury by the falling in of the slope, and of the expense and time necessary to open it.
    The defendants gave in evidence a judgment against the plaintiffs on January 12th 1870, for $3259, in favor of a trustee for wages, under which their personal property was sold for.$2041.75.
    They gave in evidence the deposition. of Draper, in which he said that the plaintiffs gave up the possession in January 1870; that the permanent improvements belonged to the Locust Mountain Company, having been erected before plaintiffs took possession, including breaker and slope, house and ordinary machinery about it. Plaintiffs did not remain in possession until tlie end of tbeir lease; the slope fell in about the last of December 1869, and that destroyed the colliery; deponent gave up the colliery to the Locust Mountain Company; plaintiffs did not ask to renew the lease under its provisions, and gave as reasons for abandoning it, that they could not put in the money necessary to re-open it. “ The working interest in the breaker and fixtures. after the slope fell in, and before it was re-opened, was worth nothing.” The plaintiffs never surrendered the sublease formally, and did not leave possession till the breaker was burned. Winlack said plaintiffs would have to give up the place, if they could not get money to re-open it. The possession plaintiffs had from the time the slope fell in till the fire was a nominal possession, and they had not given up possession,-nor.had Goddard & Draper given it up.
    The defendants gave evidence that it would cost- $10,000 or more to repair the slope, and that it would occupy twelve months to. open it.
    The defendants offered to prove that in the spring of 1870, before the institution of these suits, The Locust Mountain Company took possession of the demised premises ; had continued in possession since; had cancelled the lease to Mammoth Vein Company with the consent of Goddard & Draper, and promised to release all the covenants in the lease, and any right of action thereon. On objection by the plaintiffs the offer was rejected and a bill of exceptions sealed for defendents.
    The evidence was conflicting as to the cost of repairing the slope and also as to the time that it would take to do the work.
    The defendants submitted a number of 'points, which with their answers follow the charge of the court.
    The court charged:— * * *
    [“ By the terms of the policies it was incumbent upon the assured to give immediate notice of the loss.
    “ Was this condition performed ? If not, was it waived by the defendants? Were the particulars of loss and other matters of which the «plaintiffs were required to give notice, furnished to the defendants, or was more full notice waived by them ? If such notice was not given nor waived the plaintiffs .are not entitled to recover.
    “If, however, you believe from the evidence that the fire occurred at night on the 19th of January 1870, and that the plaintiffs did not hear of if till some time the next day, and that on the 21st one of the plaintiffs went to ascertain the extent of the loss, and that on the next day he notified the local agent of the companies, E. E. Bodey, whose name appears upon the policies as such agent, and if on the 24th of January written notices were served upon him, which he pronounced right, duplicates whereof were forwarded to the general offices of the companies, and if proofs of loss were served upon the agent the next day, and if no notice was given to the plaintiffs Or their attorney of any defect in the notices until the 15th day of March, at which time it was complained that the notices were insufficient, and that action would not be taken until they were made correct, and if the plaintiffs then applied to know wherein they were deficient and what further was required, to which no reply was made, the jury may consider such facts in determining whether the defendants waived further notice than that received.
    “ If the agent informed the plaintiffs that the notices were right, and the companies were silent for nearly two months and complained only in general terms, it is some evidence that they did not insist upon an objection that the notice was not in time.
    “ When the insured is desirous to comply with the contract in regard to notice, fairness towards him required that the companies should not mislead him by declaring that his notices were right, and afterwards be allowed to make defence and refuse to pay because they were wrong or not in time, especially if accompanied with an offer to perfect them at any time on notice of a defect.
    “We refer the question of waiver as to time and particulars of loss to your consideration, under the evidence.]
    “ In order to understand the rights of the parties, it is necessary to ascertain what insurable interest the plaintiffs had in the property insured, at the time of effecting these insurances, and at the time of the fire.
    “ On the 1st of June 1869, the Locust Mountain Coal Company executed a lease to the Mammoth Vein Consolidated Coal Company of this coal breaker and other improvements mentioned, together with the colliery, for the term of ten years. By the terms of this lease' the lessee was bound to keep the demised premises insured to the amount of fifteen thousand dollars, and was also bound to pay a yearly rent upon not less than 40,000 tons of coal, and to keep the improvements, machinery, fixtures, &c., in good repair. On the 25th of November 1867, the title of the lessees passed by sheriff’s sale to W. W. Goddard and 0. W. Ditson. On the 1st of April 1868, W. W. Goddard and J. W. Draper executed a lease to the plaintiffs of this property, until the 31st of March 1870, the lessees agreeing to pay as rent certain sums per ton for all coal mined, and to perform all the covenants of the original lease. [In this lease it is recited that the interest of O. W. Ditson had become vested in J. W. Draper. If he put the plaintiffs in possession, and received rents,'and the other rents were paid to the agent of Goddard & Draper, Ditson having made no claim, the jury may, if they think the facts warrant it, conclude in connection with the testimony of Draper himself, that he had the interest claimed by. him.]
    “ On the 9th of December 1868, J. W. Draper entered into a further agreement with the plaintiffs giving, as we construe the writing, the right to the plaintiffs to require a renewal for another year. Prior to the date of the policies the plaintiffs had, as they allege, made large improvements about the colliery, in trestling, constructing railroads and putting in screens, rolls, &c., to an amount of nearly $8000. Considerable evidence has been' given upon this subject, from which the amount of expenditures, as far as it is material, can be ascertained.
    “ When the insurances in question were applied for and effected the colliery was in working order, and it would seem the plaintiffs intended to have their lease renewed. But on the 29th of December 1869, the slope fell in and the work was stopped, and remained so until the fire on the 19th of January.
    “ Much evidence has been given upon the subject of the condition of the mines and the length of time it would take to restore them to working order. The estimates of the witnesses are wide apart — varying from twenty-five days to one year. It is claimed by the defendants that although the contract of insurance was for one year from the 18th of September 1869, that .the plaintiffs had in fact but the interest of a tenant for a year, and that such interest expired on the 81st of March 1870.; and further, that this interest, at the time of the fife, was of no value. On the part of the plaintiffs it is claimed that the insurance was upon specific property, in which they had an insurable interest, not only merely as tenants, having the right to use the property during their present term, but that they had a right to have it renewed ; that they were bound to keep it insured, and also to maintain and keep the property in good order and condition at their own expense, and also to pay the royalty or rent upon 40,000 tons of coal, and that their interest in the breaker and other property described, was more than equal to the whole amount of insurance in both policies.
    [“ The term ‘working interest,’ used in these policies, does not appear tobe a technical term. What was intended by it? We think the parties intended that it should, and that it does comprehend the entire insurable interest which the plaintiffs had in the property, under the provisions of the lease to them from Goddard & Draper, and the further agreement, signed by Draper, of the 9th of December' 1868. They were liable by the terms of their lease,’ and under the law, to surrender the premises at the end of their lease, having kept and maintained the improvements, machinery and fixtures in good order, and in case of their destruction, to replace them. They were also bound to keep upon it an insurance of $15,000. Their insurable interest in the demised premises was, therefore, to the extent of the value of the property, which they were bound to replace.
    “ The plaintiffs were bound to pay a yearly rent upon not less than 40,000 tons of coal, and were also hound to perform and keep all the covenants of the original lease from the Locust Mountain Coal and Iron Company; they, therefore, had an insurable interest in the demised premises to the extent of their liabilities upon their covenants in these respects.
    “ If, therefore, the jury believe from the evidence that it would have cost the plaintiffs ten thousand dollars, or upwards, to have replaced the insured buildings and property destroyed by fire in as good order and condition as before, at the date of the lease, then the plaintiffs are entitled to recover against each of the defendants the sum of five thousand dollars, with interest from the time the same was payable by the terms of the policies read in your hearing. But if you find their damages would be less than ten thousand dollars, such damage is to be equally divided between the defendants.] You will understand that this is subject to the instructions before given upon the question of notice and the question of fraud hereafter submitted.”
    The defendants’ points and their answers were:—
    1. The plaintiffs in these cases held the leasehold premises under and by virtue of their lease from Goddard & Draper, bearing date the 1st day of April 1868, which expired on the 31st of March 1870 ; their interest in the breaker and machinery belonging thereto, consisted only in the right to occupy and use the same for the purpose of preparing coal, which might be taken from the demised premises.
    Answer: “ We decline to answer as requested.”
    2. The policies of insurance effected on the 17th day of September 1869, to run until the 17th day of September 1870, upon the coal breaker, the breaker engines and machinery mentioned and described in the policies, which were, by the terms thereof, to cover the working interest in the property mentioned in the policies, can only apply to the breaker and machinery mentioned in said policies, and the working interest thereby insured embraces nothing more than the right of the plaintiffs to use the breaker during the unexpired term of their lease in preparing coal mined from the demised premises.
    Answer: “ This point is not affirmed. The term 1 working interest,’ under the circumstances of the case, covers all the interest which the plaintiffs had in the property, including both its use and their liabilities in regard to it as stated in the general charge.”
    3. Under the evidence in the case, the plaintiffs had no insurable interest in the property mentioned in the said policies of insurance, after the 31st day of March 1870, and if the jury believe that the slope fell in on the 24th day of December, A. D. 1869, and by reason thereof the plaintiffs had no use for that breaker, from that time until the 31st day of March 1870, the interest insured was of rio value to them, and the verdicts must be for the defendants.
    4. As the insurances in these cases were effected upon the breaker and the property described in the said policies,, which consisted of only a portion of the property leased to the plaintiffs, the insurance cannot be construed to cover any liability which the plaintiffs were subject to by reason of any of the covenants which they had undertaken to perform. And whatever covenants and obligations they might have been under to rebuild the breaker cannot affect the measure of damages, if any, in ■ these cases, and are to be disregarded by the jury in arriving at their verdict.
    Both, these points were refused..
    5. The improvements put upon the breaker and demised premises, claimed by the plaintiffs to have amounted to $7000 and upwards, and made in pursuance of the contract of December 1868, which contract provided that their landlords should pay the actual value thereof, were, under said agreement, the property of said landlords, and the plaintiffs had no other interest in them except their use thereof, until the expiration of their lease, and the cost to the plaintiffs of said improvements cannot be taken into consideration by the jury in arriving at their verdicts.
    Answer: “ The jury may consider the improvements mentioned in this point in so far as they affect the value of the working interest of plaintiffs, but not as a distinct item, to be compensated for under the policies.”
    6. Inasmuch as the plaintiffs did not renew their lease for an- * other year after the expiration of the term expiring on the 31st day of March 1870, and made no effort so to do, their term as tenants expired on the 31st day of March 1870, and the jury in estimating the damage to the plaintiffs, if any, are to take into, consideration only the working interest of the plaintiffs from the time of the fire until the 31st day of March 1870, and if they find that within that period of time the plaintiffs had no coal to- prepare over that breaker, their verdict must be for the defendants.
    This point was refused.
    7. Where lessees effect an insurance of their working interest in a breaker and the machinery belonging thereto, which are only part of the demised premises, consisting of a colliery and the right to mine coal, held under a lease for a term of years, and the breaker and machinery are destroyed by fire during the term, the measure of damages is not to be ascertained by proof of the value of the unexpired term to the tenant, but by ascertaining what proportion the value of the working interest in the property insured' and destroyed bears to the value of the whole premises devised, and the proportion thus ascertained constitutes the true measure of damages.
    Answer: “ This is correct as a general rule, but is no.t applicable to this case, where there are duties and liabilities beyond the mere use of the structure insured.”
    8. - The plaintiffs having produced no evidence by which the damages can be so assessed by the jury, they are not entitled to recover.
    9. If the jury believe that it would have required several months to rebuild the slope and to remove the water from the mines, and that the expense thereof, together with the rentals at 45 cents per ton for the prepared coal that they might have mined, would have equalled or exceeded the value of thé unexpired term of the lease, the verdict of the jury must be for the defendants.
    10. If the jury believe, under all the evidence of the case, that there was no value in the plaintiffs’ working interest in the property- insured from the time when the slope fell in until the, expiration of the lease on the 31st of March 1870, the verdict of the jury must be for the defendants.
    11. If the jury believe that from the time the slope fell in the plaintiffs did not intend to re-open it and work the colliery, there was no value in the working interest insured, and the plaintiffs are therefore not entitled to recover.
    These four points were refused.
    12. The policies of insurance cover only the working interest of the plaintiffs in the properties described in said policies, and all evidence relating to expenditures made by plaintiffs in improvements, is to be excluded by the jury in their estimate of the plaintiffs’ loss, if any, resulting from the fire.
    Answer: “We have already instructed upon the matters here mentioned. The value of the improvements made by-the plaintiffs is not to be considered otherwise than as forming part of the property which the plaintiffs were bound to keep in repair, and surrender up at the expiration of the term.”
    13. The evidence having shown that a portion of the property insured, consisting of the trestling, the iron thereon, the boilers and engine, screens and rollers, were not destroyed, but only partially injured, the plaintiffs, by the terms of the North British insurance policy, were bound to make an inventory, naming the quantity and cost of each article, and appraise the damage done to each article, and having failed to make such appraisement, there can be no recovery against such company, and the verdict of the jury must be for the said defendants.
    Answer: “If the North British Insurance Company had notice of the fire, as required by the policy, or' if a more particular notice was waived, it was as much the business of the company to move in the matter of an appraisement of the property damaged, but not wholly destroyed, as it was of the plaintiffs.
    “ The insurance was upon specific property, partaking of the character of realty — a coal breaker and fixtures ; the clause in the policy relating to personal property damaged does not apply, and the plaintiffs were not bound to have an inventory and appraisement and furnished, with the truth of loss. Notice that the property was destroyed by fire, if that was substantially correct, was all that was required.”
    14. The plaintiffs having represented in their application that their lease had to run one year from the 1st day of March 1870, such representation being material to the value of the property insured and a warranty, and being shown by the evidence in the case to be a misrepresentation, the policies are void, and the verdicts must be for the defendants.
    Answer: “ The plaintiffs made their agreement on the 9th of December 1869, with Draper, in regard to a renewal of their lease. Did they believe at the time of effecting the insurance that this gave them the right to hold the property for another year ? If they so believed and fairly represented, but were mistaken, it would not defeat their action. It was not such a statement of a material fact as amounted to a warranty. If, however, the representation was fraudulent, it would render the contract void, and there could be no recovery.”
    15. If these policies of insurance cover the liability of the said lessees to repair and renew the property demised, and to mine 40,000 tons of coal during each year of the said term, or to pay therefor, and there being no evidence that said covenants were communicated to the said insurance companies when the said policies were applied for, then, by reason of such non-communication, the plaintiffs cannot recover upon the said policies.
    Answer: “ The entire interest of the plaintiffs in the insured property is covered by the terms used in the policies. The defendants were informed by the application that the plaintiffs held the property as tenants, under a lease. It does not appear that they required to be informed as to the covenants and conditions contained therein. The policies are, therefore, binding, although the defendants did not know the full extent of the interest of plaintiffs under the lease. Bearing in mind the law as we have given it to you in the' general charge, and also in answer to these points, you will ascertain the facts for yourselves, under the testimony. If you find that the plaintiffs have failed to comply with the conditions in- regard to notice, and the defendants did not waive them, or, if the plaintiffs were guilty of a fraudulent representation in regard to the time their lease had to run, the defendants are entitled to your verdict. If, however, upon the principles before laid down, you find that the plaintiffs are entitled to recover, you will ascertain their actual damage within the sum of ten thousand dollars, and divide the amount equally between the defendants, rendering separate verdicts in each case.
    
      The verdict was for the plaintiffs in each case for $5312.50.
    The defendants took out writs of error and assigned twenty-three errors.
    1-5. The rulings on the offers of evidence.
    6-8. The parts of the charge in brackets.
    9-15. The answers to the defendants’ points.
    
      James Ryon (with whom were J. W. Ryon and Cr. BeB. Heim), for plaintiffs in error.
    (r. R. Kaereher and F. W. Hughes (with whom was Cr. E. Farquhar), for defendants in error.
   The opinion of the court was delivered, May 7th 1873, by

Mercur, J.

These two cases were argued together. The facts and principles of law involved are substantially the same in each. The same property is covered by each policy; each is for one year from the 17th of September 1869. The loss occurred January 19th 1870.

The plaintiffs have filed twenty-three assignments of error. We will not consider them separately. The twenty-second and twenty-third assignments are based upon an alleged false representation in the application. As we are not furnished with a copy of the application, we are unable to determine with certainty how far the facts go towards sustaining the allegation. As we understand the whole evidence bearing upon that branch of the case, we cannot see that the court committed any error in holding, that if the applicants fairly represented what they honestly believed, it would, not defeat the action, and that it was not such a statement of a material fact as amounted to a warranty.

All the other assignments, except the first, sixth and seventh, may be considered together. They relate to the value of the interest insured. That the property was of much greater value than the amount of the insurance, does not admit of a question under the evidence; besides, the jury has so found. It is urged, however, by the plaintiffs, that the interest of the lessees therein was of much less value, and that that lesser value only was covered by the insurance. They claim that the value of the lessees’ interest therein was measured by the value of the use thereof, from the time of the loss until the expiration of their term. In this view we cannot concur. The use of the property for the remainder of the term, by no means fixed or defined its value as to them. They had not only a right to its use and enjoyment, but had also assumed an obligation to return and redeliver it in good order and condition at the expiration of the term. If they failed so to do, they were liable to their lessors for its full value. If they redeliver according to the requirements of their lease, they would be discharged from that obligation. They then had a large value in the property superadded to that of its use. Hence the court was correct in charging that the insurable interest of the lessees was to the extent of the value of the property which they were bound to replace.

The right of the insured and the liability of the companies,'were fixed at the time of the loss, provided the requisite notices and proofs were furnished. Such being the case, the evidence referred to in the fifth assignment of error is wholly irrelevant. No arrangement made between the Locust Mountain Coal and Iron Company of the one part, and Goddard & Draper of the other part, after the expiration of the term of the defendants in error, relieved them from their obligations to return the leased property to Goddard & Draper, or pay them its value. The coal breaker, engines, boilers, pumping and hoisting machinery, apparatus and improvements, leased to the defendants in error, were the property of Goddard & Draper, and not the property of the Locust Mountain Coal and Iron Company. If the latter took possession of the leased premises, and released the former from all liability, it was for a valuable consideration paid by Goddard & Draper. It in no wise showed the determination of the estate which the assured had in the lgrnd at the time of the loss; nor of their release from liability for failing to restore the property upon which they had the insurance.

The language of the policy, after describing the property, avers, this insurance to cover their working interest in the above-insured property.” The court correctly held this was sufficiently comprehensive to cover the entire insurable interest which the assured had in the property.

The first and sixth assignments relate to the notice and proofs of loss.

We have looked in vain through the testimony to find any evidence of the extent of the powers which the companies gave to their agent Bodey. We find, however, that he was in fact exercising extensive powers. The companies were both foreign corporations, with officers and directors abroad. They also had an office in New York, and this agency in Pottsville. Bodey countersigned these policies; he filled them up; the applications were filed in his office; he kept them as references; they were not sent abroad; he paid losses when they occurred.

There is no evidence that the companies ever questioned his rightful exercise of all those powers. So there was sufficient evidence to submit to the jury to find as to the extent of his agency, and whether it was within the general scope of the business intrusted to his care: Union Mutual Life Ins. Co. of Maine v. Wilkinson, Insurance Reporter, 18th April 1872, No. 16. The question of waiver as to time and particulars of loss, was correctly submitted to the jury: Franklin Fire Ins. Co. v. Updegraff, 7 Wright 350; 5 Id 162; 6 Id. 168; 11 Id. 205.

The seventh assignment was not pressed, and has no merit. We discover no error in the bills of exception, nor in the charge of the learned judge.

Judgment affirmed in each case.

Agnew, J., dissented.  