
    Coleman & Co. v. Insurance Co.
    
      Fire insurance — Policy covering separate property, real and personal— When contract severable — When breach of condition as to one, does not defeat recovery for loss of the other.
    
    A policy of fire insurance issued by the defendant, wliicli, for a premium in gross, insured the plaintiffs to the amount of two hundred dollars on their storehouse, and thirty-eight hundred dollars on their stock of goods therein, contained a condition that, “if the building intended to be insured stands on ground not owned in fee-simple by the assured, the policy shall be -void, unless consent in writing by the company be endorsed thereon.”' Within the period covered by the policy, the house and goods were destroyed by fire; and, it appeared that the plaintiffs did not own in fee-simple, the ground on which the building stood. In an action on the policy, Held: That the contract is severable; and that the breach'of the condition as to the title to the land, does not defeat the plaintiffs’ right to recover for the loss of the stock of goods insured by the policy.
    (Decided April 26, 1892.)
    ERROR to the Circuit Court of Scioto county.
    
      " The New Orleans Insurance Company, on the 17th day of November, 1882, issued to H. Coleman & Co., a policy of fire insurance, whereby the company insured Coleman & Co. against loss or damage by fire for the period of one year from the date of the policy, to the amount of four thousand dollars, as follows: “$200, on their one story frame shingle roof store-house. $3,800 on the general stock of merchandise, consisting principally of dry goods, groceries, clothing, boots and shoes, hats and caps, queensware, glassware, cutlery, ■ and such other articles as are usually kept for sale in a country store. All contained in their one story frame shingle roof store-house, situated in Pike county, Kentucky.” On the 11th day of April, 1883, the property was totally destroyed by fire; and thereafter proof of the loss was made out and forwarded to the company. The loss not having been paid, Coleman & Co. commenced an action against the the insurance company, in the court of common pleas of Scioto county, to recover the amount of the policy, the loss exceeding that sum. The petition .is in the usual form in such cases, and contains all the necessary averments to entitle the plaintiffs to recover. The answer set up the following defenses: ' ~
    “The said policy was issued and was accepted by the assured upon the following condition and agreement, expressed therein, to-wit: that this policy shall become void : ‘If the assured is not the sole and unconditional owner of the property.’ The said H. Coleman & Co., the assured, were not the sole and unconditional owners of the said storehouse at the time the said policy was issued.”
    • “The said policy was issued and was accepted by the assured upon the following condition and agreement, ex-presed therein,, to-wit: that this policy shall become void : ‘If any building intended to be insured stands on ground not owned in fee-simple by the assured.’ The said storehouse, intended to be insured by the said policy, stood on ground not owned in fee-simple bj^ the assured, H. Coleman & Co.”
    To these defenses the plaintiffs replied, denying that they were not the “sole owners of said store-housealso denying that the policy became or was void because said storehouse stood on ground not owned ■ in fee-simple by the plaintiffs; and further denying that the plaintiffs “stated or represented that said store-house stood on ground owned by them, or agreed in any way that said policy was, or should 'become void if said store-house did not stand on ground owned in fee-simple by them.”
    On the trial of the cause to a jury, the defendant prevailed; a motion by the plaintiffs for a new trial was overruled, and judgment was entered on the verdict. Exceptions taken by .the plaintiffs to the charge of the court, together with the evidence showing the materiality of the instructions, were embodied in a bill .of exceptions, which was duly allowed and made part of the record. Error was prosecuted to the circuit court, where the judgment was affirmed; whereupon the plaintiffs commenced the present proceeding in error in this court.
    The charge of the court to which the exceptions were taken, will be noticed in the opinion.
    
      Harper, Searls & Millner and George O. Newman, for plaintiffs in error.
    Brief of J. J. Harper.
    
    Upon this record we make several questions: 1. That the contract of insurance was an Ohio contract. The policy was issued and the premium paid in Ohio. Insurance Co. v. Parks & Canfield, 1 C. S. C. R. 574.
    2. That McFarland was the agent' of the insurer and not of the assured. Section 3644 Revised Statutes; Ins. Co. v. Williams, 39 Ohio St., 584; Baker v. Home Life Ins. Co., 64 N. Y., 648, 650; Pitney v. Glens Falls Ins. Co., 65 N. Y., 23; Mowry v. Rosendale, 74 N. Y., 363; Flynn v. Equitable Life Ins. Co., 78 N. Y., 577; Insurance v. Wilkinson, 13 Wallace, 223; Ins. Co. v. Mahone, 21 Wall, 152; Mut. Life Ins. Co. v. Baker, 94 U. S., 610; Life Ins. Co. v. Eshelman, 30 Ohio St., 647.
    3. If McFarland was the agent of insurer, then the Insurance Co. is estopped to question the title and ownership of the property insured. Wood on Insurance, edition of 1878, sec. 400, page 663, sec. 497, page 837.
    No representation was made at all by the assured; at least no wilful misrepresentation, in regard to the title to the land or the ownership of the store-house.
    And there are authorities which hold that when inquiries are not put by the company or its agents as to the title and situation of the property, and no fraud appears, a suppression of the facts will not make void the policy. Strong v. Manufacturers Ins. Co., 10 Pick., 40; Fletcher v. Com. Ins. Co., 18 Pick., 419; Niblo v. North American Fire Ins. Co., 1 Sand., 551.
    4. But if the assured are to be held liable for the eroneous statement in the policy as to the ownership of the store-Rouse and tbe title to the land on which it stood, we then claim that the contract was not an entirety so as to defeat a recovery for the loss of the personal property insured.
    Now, what is there in the circumstances of this case which should lead us to the conclusion that the parties intended that if the assured had -not the title in fee-simple to the let upon which the store-house stood, that fact should avoid the contract in toto? There is nothing to show that such a defect in the title would have been an objection to a risk on the property; or that the opportunity of insuring the store-house for $ 200 was dhe inducement to taking a risk of $ 3,800 on the chatties. There is nothing in the nature or terms of the contract which makes it so much an •entirety, as that it is at all difficult to tell the amount insured on the store-house as distinguished from that at risk upon the chatties. There is nothing to show that had the stock of goods been insured without insuring the storehouse, the premium would have been greater or different.
    The risks are not necessarily indivisible; they may be dealt with in separate clauses, and are made up of distinct and independent sums on different and distinct properties. There may be reasons which, existing as to one class of the property insured, might deter an, insurance company from taking a risk on any oí the classes. Some such general cause as fraud in the insured as to one class, would, in its nature, extend to'the whole subject matter of the contract, and vitiate and avoid the whole contract in all its parts. But it is difficult to conceive how an act, in itself not evil, though it may affect one of the classes of the property insured, and so affect it as to increase the hazard, if it also does not increase the hazard on another class, should operate so as to impair the contract as to that latter class. Upon the question of the entirety of the contract we cite: Merrill v. The Agriculture his. Co., 78 N. Y.,’452; French v. Che-nango M. Ins. Co., 7 Hill, 122; Koontz v. Hannibal, etc., his. Co., 42 Mo. 126; Lochner v. Home M. F. Ins. Co., 17 Mo., 247; Commercial Ins. Co. v. Sfankneble, 52 Ill., 53; Hartford F. Ins. Co. v. Walsh, 54 Ill., 164, (5th Am. R., 155.); Schuster et al. v. Dutchess County Ins. Co., 102 N. Y., 260, 263, 266.
    
      The case was also argued orally by J. J. Harper, for plaintiff in error.
    
      Wells A. Hutchins, Sylvester G. Williams and Eugene Wambaugh, for defendant in error.
    I. The stipulation is binding upon the assured firm; for they affirm all stipulations by their petition, and, besides, they were bound by accepting the policy. Waller y. Northern Assurance Company, 10 Fed. Rep. 232 (U. S. C. C. N. D. Iowa); Mers v. Franklin Ins. Co., 68 Mo. 127, 132; Cleaver v. Traders Ins. Co., 39 N. W. 571 (Mich.).
    II. Of the stipulation it is to be noticed that:
    (1.) It is a warranty; that is to say, the stipulation is to be enforced even in case it be not material, and a breach of the stipulation is to have precisely the same effect as the making of a material misrepresentation. May on Ins. (second ed.) sec. 156, and the following sections.
    (2.) The stipulation does not work a forfeiture. It is not a condition subsequent. On the contrary, it is a preliminary stipulation, and, if not complied with before the making of the contract, prevents the parties from ever entering into the contractual relation. To refuse to enforce the stipulation is not to prevent a forfeiture, but simply to force the parties into a contractual relation against which they themselves have expressly stipulated. Hence the prejudice against forfeitures and conditions subsequent has no place here. Here no rights ever vested and there is nothing to be forfeited. The policy never attached. Eangdell’s Summary of Contracts, secs. 26, 28.
    (3.) The stipulation is not an implied condition, but an express one, made in clear language by the parties themselves; and hence it is to be applied according to its terms. According to the law in some jurisdictions, an implied condition, being- created by the law, may be modified or apportioned by the law as circumstances may suggest; but this is not the law anywhere with reference to an express condition. Rangdell’s Summary of Contracts, secs. 40, 160, 167. In Ohio, as will be shown below, even an implied condition is held to be not severable.
    
      III. As to tbe building, tbe policy was void from tbe beginning; for, following tbe words of tbe stipulation:
    (1.) Tbe assured firm was not'“the sole and unconditional ■owner of tbe property.”
    (2.) Tbe “building intended to be insured” stood “on ground not owned in fee-simple-by the assured.” Goepper v. Kinsinger, 39 Ohio St., 429.
    (3.) “Tbe interest of the assured in tbe property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise,” was “not truly stated in this policy.” Citizen's Fire Ins. Co. v. Doll, .35 Md., 89, s. c. 6 Am. Rep. 360, 362, 363, 367, 371; Mers. v. Franklin In-s. Co., 68 Mo., 127.
    IV. Tbe policy was void from the beginning as to the contents of tbe building. This policy is an entire contract; for:
    (1.) There is but one consideration. 2 Parsons Con. 519; May on Ins., (second ed.) secs. 74, (last sentence) 189, 227.
    (2.) Tbe words of tbe stipulation are clear, saying that in ■case tbe stipulation be broken “the policy” shall be void. It is not tbe insurance on tbe building that is void, but “the policy.”
    (3.) Tbe risk on the two items insured, the building and its contents, is necessarily identical. Whatever increases tbe moral hazard on tbe building increases tbe hazard on tbe stock in tbe building. The danger of firé to one is a danger to tbe other.
    V. In Ohio the doctrine of entirety is applied to contracts of all kinds, and it is firmly established that even an implied condition is not severable, and that, too, in cases where there is, as there is not here, a right of action for damages because of breach of the condition. Witherow v. Witherow, 16 Ohio, 238; Allen v. Carles, 6 Ohio St., 505, 509; Larkin v. Buck, 11 Ohio St., '561, 569; Goldsmith v. Hand, 26 Ohio St., 101.
    VI. By a vast preponderance in number and weight, the authorities sustain the contention that a breach of the stipulation quoted must avoid the whole policy. Some of the authorities lay great stress upon the question whether the consideration, the premium, is one entire sum, and, if the consideration is entire, ponsider that fact alone as almost exclusively proving an intention tbat tbe contract be entire. Others lay great stress upon the language used, and consider that when the words are that upon breach of condition “this policy” shall be void, it is clearly the intention that in case of breach the whole policy shall fall together. Others, again, lay great stress upon the question whether all of the property insured is subjected to substantially the same risk, and when all of the property is obviously subjected to the same risk, for example, when the property insured is a building and its contents, consider that the identity of risk clearly shows an intention that the contract be entire.
    The question whether the whole contract is to be avoided by a breach of condition is clearly a question of intention. Entirety of consideration, clearness of language, and unity of hazard are all guides in ascertaining the intention of the parties. In a case where these three guides do not lead in the same direction, it may be difficult to show which guide has the right to be followed. In our case that difficulty does not exist; for here all of the guides agree, the premium being unapportioned, the language being that ‘this policy” shall be void, and the building being unable to burn without subjecting its contents to danger.
    An examination of the authorities will show that many of the cases are much stronger than we need. There are, of course, some cases just like ours, cases where a whole policy has been held to be avoided by a breach of a condition that was both a preliminary stipulation and a warranty. Yet there are cases where the same result was reached even when the condition was a condition subsequent, and when consequently there was a forfeiture of vested contractual rights. And there are also cases where the same result was reached when there was no breach of warranty, but merely a misrepresentation, the materiality of which, of course, had to be shown, and was shown ’ by the fact that the misrepresentation, though made only as to a building, necessarily affected the hazard on the building’s contents. Havens v. Home Insurance Company, 111 Ind., s. c. 12 Northeastern, 137; Phoenix Insurance Company v. Pickel, 119 Ind., 155, s. c. 21, Northeastern, 546; Picket v. 
      Phoenix Ins. Co.. 119 Ind., 291, s. c. 21, Northeastern, 898; Geiss v. Franklin Ins. Co., 24 Northeastern, 99; Cuthbertson v. North Carolina Home Ins. Co., 96 N. Car., 480, s. c. 2 Southeastern 258; Western Assurance Co. v. Stoddard, 7 Southern Rep. 379; Essex Saving Bank v. Meriden Fire Ins. Co., 57 Cohn. 335; McQueeney v. Phoenix Ins. Co., 12 Southwestern Rep. 498; Loomis v. Rockford Ins. Co., 45 Northwestern, 813; Lee v. Howard Fire Ins. do. 3 Gray, 583, 594; Day v. Charter Oak F. and M. Ins. Co., 51 Me., 91, 99-101; Gottsman v. Pennsylvania Ins. Co., 56 Pa. St., 210; Bowman v. Franklin Ins. Co., 40 Md., 620, 632; Hinman v. Hartford F. Ins. Co., 36 Wis., 159, 169; Plath v. Minn. Farmers' Mtd. F. Ins. Assn., 23 Minn., 479; Moore v. Va. F. and M. Ms. Co., 28 Grattan, 508; Schumitsch v. American Ins. Co., 48 Wis., 26, 30; Aetna Ins. Co. v. Resh, 44. Mich., 55, 56; Baldwin v. Hartford F. Ins. Co., 60 N. H.,-422; American Ins, Co. v. Barnett, 73 Mo., 364, 367; Garver v. Hawkeye Ins. Co., 69 Iowa, 202; Kelly v. Humboldt F. Ins. Co., 6 Atlantic, 740; Gore Ins. Co. v. Samo, 2 Canada Supreme Court, 411.
    By way of summary we make the following points:
    I. There having been a breach of warranty as to the title to the land on which the store building stood, and as to the ownership of the building, there can he no recovery for the goods. The contract is entire, not devisable.
    Upon this point, in addition to the authorities already cited, we refer to May on Insurance, secs. 74,189, 258 (n. 5.) 277; Wood on Insurance, sec. 152,. 328 (n. 2.); 2 Parsons on Con., pages 434, 519; 9 Ins. Raw Journal, pages '56, 61, 62; 3 Ins. Raw Journal, pages 904, 906; 10 Ins. Raw Journal, page 33; 11 Ins. Raw Journal,-104; Stein v. Steamboat, 17 Ohio St., 471.
    II. As to warranty of title and its effect, we further cite: Phillips, Bechle & Co. v. Knox Co. Ins. Co., 20 Ohio, 174, 181; Hutchins v. Ins. Co., 11 Ohio St., 477; Smith v. Ins. Co,, 19 Ohio St., 287, 290; Byers v. Ins. Co., 35 Ohio St., 606; Ins. Co. v. Archer, 36 Ohio St., 608; Home Ins. Co. v. Lindsey, 26 Ohio St., 348; Ins. Co. v. R. R. Co., 28 Ohio St., 69; Geopper v. Kinsinger, 39 Ohio St., 429; May on Insurance, secs. 156, 158, 185, 186; Wood on Insurance, secs. 159, 165, 167, 176; 2 Parsons on Con., pages 421, 429, 482, 438.
    III. It is said in this case there was no written application, and, therefore, no warranty; that it was an oral application without inquiry, and therefore all questions as to title and ownership may be considered as waived. And on this point Wood on Insurance, secs. 154, 162, are cited.
    No written application was necessary. The warranty in this case is not based on statements made in the application, but is based upon the terms of the policy itself.
    Accepting a policy amounts to a declaration that the assured’s interest is truly stated therein. Meis v. Ins. Co., 8 Ins. L- J-, 505; Ins. Co. v. Doll, 6 Am. R., 360, 371; Waller v. Ins. Co., 10 Fed. Rep., 232.
    When there is no application the assured is bound by the conditions of the policy which he accepts and holds without objection. That he never read it is not the fault of the insurers. May on Insurance, sec. 167; Wood on Insurance, sec. 270; 10 Ins. E. J„ 392.
    IV. McFarland clearly was not the agent of the insurance company, but the charge of the court and verdict of the jury cover this point and can’t be here questioned.
    Even if McFarland was agent of the insurance company still sections of the Revised Statutes, 3643, 3644, have no application, and the charge of the court in this respect was also right.
    The case was also argued orally by Wells A. Hutchins, for defendant in error.
   Wiuuiams, J.

The policy of insurance contains the provisions that, “if the assured is not the sole and unconditional owner of the property, or if any building intended to be insured stands on ground not owned in fee simple by the assured,” the policy “shall become void, unless consent in writing, by the company, be indorsed thereon.” The policy was issued without any written application signed by the assured, and the insurance was solicited, as the evidence shows, at the request of the company’s agent, by a third person, on whose report the agent made up the application on which the policy was issued. The assured made no statement, nor was any requested, in regard to the ownership or title of the ground on which the house referred to. in the policy, stood; and it does not appear that there was any intentional concealment of the title, or of any fact material to the risk. It was shown by the evidence, that the fee simple of the land on which the insured building stood, was vested in Hammond Coleman, a’member of the firm of H. Coleman & Co., and his wife, who was not a member of the firm; but, that several years previous to the date of the policy, Hammond Coleman executed a deed for the land, directly to his wife, without the intervention of a trustee, in which the following provision is contained: “This deed is not to take effect until my death. This deed is in compliance with my will heretofore made.” The co-partnership of H. Coleman & Co., when the ¿insurance was effected, and at the time-of the fire, consisted of Hammond Coleman, Adam Venters and Henry E. Coleman; and the actual value of the stock of goods and merchandise covered by the policy, exceeded the valuation therein set forth.

The court instructed the jury, that their inquiry in regard to the title to the land on which the store-house stood must he: “Did the plaintiffs — not Hammond Coleman — have such (fee-simple) estate in this land upon which the building stood? It is not enough to satisfy this provision, that Hammond Coleman, one of the plaintiffs, had a life estate in the land. It is hot enough that he alone had an interest in the land. This would not constitute an estate in fee-simple. If you should find that he has an estate in fee-simple in the land, still it must be the' insured who must have this estate in fee-simple in the land to satisfy this provision, and therefore, if you find from the evidence that thé plaintiffs were not the owners in fee-simple of the land upon which the store building stood, then this policy is void and the plaintiffs cannot recover in this action.” The court further instructed the jury as follows: “This contract, gentlemen, is termed in law, an entire contract, and if you find that there has been a breach of any condition of this contract to which I have called your attention, it violates the policy, renders it void, and nothing can be recovered for either building or goods destroyed.”

The- effect of the instructions were, that if the fee-simple title to the land on which the store house was situated, was not vested in the co-partnership of H. Coleman & Co., but was in Hammond Coleman, a member of the co-partnership, the policy of insurance was void, and the plaintiffs could not recover, either for the loss of the building, or of the goods. These instructions were excepted to by the plaintiffs, who contend they were erroneous, and, on account of which, the judgment should be reversed. The principal ground of the contention is, that the contract of insurance evidenced by the policy, is so far severable, as to entitle the plaintiffs to recover for the loss of the goods, though they may not be entitled to recover for the loss of the building by reason of the state of the title to the land on which it stood.

Whether such a contract is so severable, is a question upon which the adjudications of courts of the highest respectability are in direct conflict. The following are some of the cases which hold the contract to be entire: Barnes v. Insurance Co., 51 Me. 110; Havens v. Insurance Co., 111 Ind. 90; Cuthbert v. Insurance Co., 96 N. C. 480; Bank v. Insurance Co., 57 Conn., 335.

On the other hand, such contracts are held severable, in the following, and other cases: Insurance Co. v. Spankneble, 52 Ill. 53; Insurance Co. v. Walsh, 54 Ibid, 164; Loehner v. Insurance Co., 17 Mo. 247; Koontz v. Insurance Co., 42 Ibid, 126; Insurance Co. v. Lawrence, 4 Metc. Ky. 9; Merrill v. Insurance Co., 73 N. Y. 452; Schuster v. Insurance Co., 102 N. Y. 260. And such, we understand to be the effect of the decision in Clark v. Insurance Co., 6 Cush. 342. There, the policy, for a gross premium, insured the plaintiff’s “Tavern House,” to the amount of $2,200, and his shop, valued at $300. The act of incorporation of the defendant provided, “that when any property insured by this company shall in any way be alienated, the policy shall thereupon be void, and should be surrendered to the directors, to be cancelled.” The shop was alienated by the assured, and the “Tavern House” was afterwards destroyed by fire. It was held', that the alienation of the shop, did. not prevent a recovery for the loss of the tavern. The court say, “The next ground taken by the defendants is, that the shop which was insured in the same policy had been alienated by the plaintiff, and that this is such an alienation as will avoid the policy. But the shop was valued separately, and was inshred separately, as a separate, distinct,, independent subject of insurance, though insured in . the same policy. The alienation of the shop would no doubt avoid the policy pro tanto, and only pro tanto. The tavern house and shop being insured separately, the alienation of one would no more affect the insurance on the other, than if they had been insured in separate policies.” In the case of Insurance Co. v. Walsh, cited above, two houses were embraced in the- same policy, and insured for different sums for a gross premium paid, the policy providing, that if the. insured premises should remain vacant for a certain time without notice to the companjr, the policy should become void; and it was held, that the fact that one of the buildings remained thus vacant without notice to the insurer, would not invalidate the policy as to the other. The action in Loehner v. Insurance Co., 17 Mo. 247, was upon a fire policy covering a dwelling-house and furniture therein. It was held, “A policy may be void in part and valid in part, if the subject-matter is capable of being separated; and, although a failure to. disclose an incumbrance would avoid the policy as to the house insured, it would not avoid it as to furniture insured in the same policy, but separately appraised, unless the' fact concealed was material to the risk.” Koontz v. Insurance Co., 42 Mo. 126, was a case where a policy of insurance upon a certain livery stable, was made to cover both personal and real property. The application of the assured contained a false warranty touching incumbrances upon the real estate; and it appeared that the personal property was separately appraised, and there was nothing to show that the representations as to the incum-brances upon the stable, formed any inducement to the execution of the policy covering the personal property. The court held, that the assured might recover the value of the latter, although the policy was rendered void as to the real estate by reason of such false warranty. The case of Insurance Co. v. Lawrence, 4 Metc. Ky. 9, is much like the one before us. There, the appellant, (company) fo.r a premium of $14.00, insured J. B. Lawrence & Co. against loss by fire, from the 25th of May, 1858, to the 25th of May, 1859, “to the amount of $200.00 on their frame storehouse, situated on the Ohio river, in Gallatin county, Kentucky, known as Jackson’s landing, and $1,200 on the stock of goods in said storehouse.” The premises and goods were destroyed by fire on the 5th of April, 1859, and suit was brought on the policy for the value of the goods, but not for the loss of the building. One defense was, that Kawrence & Co., when they obtained the insurance represented themselves to be the owners of the house, when in fact they were not, which, by the terms of the policy rendered it void. But the court held, that “in the absence of proof that the plaintiffs procured the insurance upon the house for a fraudulent purpose, or that their supposed interest in the house induced the defendant to insure the goods,” the insurance on the goods was not vitiated, and the plaintiff had judgment.

In the case of Merrill v. Insurance Company, 73 N. Y. 452, the policy, for one premium, insured the plaintiff against loss or damage by fire to the amount of $6,000,00, as follows: “$1,000.00 on dwelling-house and wood-house, if attached, $800.00 on household furniture therein, $200.00 on provisions, etc., therein,” and various other items of property described in the policy, each having a specific valuation therein set forth. The policy contained a condition that, if the property insured was incumbered by mortgage or otherwise, unless so represented in the application, the policy should be void; also, that if it should become incumbered by mortgage, judgment, or otherwise, the policy should be void until the written consent of the company was obtained. The real estate was incumbered, and that fact was set up in defense of the action on the policy. It was claimed by the defendant, that it. not only avoided the policy as to the building insured, but also as to the chattel property; and whether it did or not, it was conceded, depended upon whether the contract was entire or severable. In a well considered opinion, Judge Fou-•ger, after commenting upon various decisions on the subject, discusses the question on principle, and in the •course of the discussion, says: “It is plain from the fact of a separate valuation having been put by the parties upon the different subjects of the insurance, that they looked upon them as distinct matters of contract. The effect of a separate valuation was to make them so. No matter how much value there might have been in any one of those subjects, even to the whole amount of the policy, had it been totally destroyed, the defendants could not have been made liable to an amount greater .than that named in the policy as the valuation of it. Thus it was, at the inception of the contract, distinguished from the other subjects of insurance, and the contract so made as to be capable of application to it alone. So too, if but one of the subjects of insurance had been burned, the defendants {ceteris parabus), could not have avoided liability to pay for that, up to the value put upon it; and if not wholly destroyed, but so far damaged as to reach in deterioration- the value put upon it in the policy, the defendants would have to pay that damage; and that subject would no longer form a part of the general matter insured, and hence not a part of the continuing contract. Thus, there. would of necessity be a severance of the contract, worked out by the operation of its own terms. Again, the principle, in the case of a contract about several things, but with a single consideration in gross, is this, that we are not able to say that the party would have agreed for one, or for more than one yet less than all of them, without he could at the same time acquire a right to have them all. But our daily experience and observation shows that "an insurance company is as ready to insure buildings without insuring the contents, and the contents without insuring' the buildings, as to insure them together; so that that principle does not press so hard in considering such a contract as that before us. Besides, it is a rule that an agreement embracing several particulars, though made at one time, and about one affair, may yet have the nature and operation of several .different contracts; as when th^ admit of being separately executed and closed, as we have instanced just above, where the contract may be taken distributively, each subject being considered as forming the matter of a separate agreement after it is so closed; per WASHINGTON, J., Perkins v. Hart, 11 Wheat. 237-251; Rodemar v. Hazlehurst, 9 Gill. 294. In our judgment this rule applies fitly to the contract in hand. It admits of being separately executed and closed as to each of the separate subjects of insurance. When one species of the property insured is burned, a contract to insure as to that, may be performed as to that alone. The insured has paid the premium. A fire doing damage to that subject, the damage may be paid for by the insurer, and that subject be thus put out of the contract, while it remains in Jie7’i as to all the other subjects named in it. When there are several subjects of insurance (as there are fourteen here) separately valued, on which a gross sum is insured not exceeding the aggregate of that valuation, for the insurance of which a premium in gross is paid, it is easy to see what is the rate of premium on the whole valuation, and wha't is the amount of premium on each subject insured. This being so, it seems fanciful to say, that if the facts thus easily reached were stated in detail in the contract it would be severable, while not being specifically spread out it is entire. If there were anything in the terms or nature of the particular contract, or in the circumstances of the case, or in the nature of the different subjects of the insurance, from which it was to be inferred that the insurer would not have been likely to have assumed the risk on one of several of them, unless induced by the advantage and profit of having a risk on all, that would be a rational cause for deeming the contract entire. But when for aught that appears, it is indeed as likely that the insurer would have taken a risk upon any one, or any few, of the subjects insured, at the same rate oi; premiun as upon the whole, and has in the policy so separated the subjects, and so singled them out by a specific valuation, as that there is no difficulty in distinguishing the subject from the rest, and closing the contract as to that separately, and carrying forward the contract as to the rest, it does result that the contract is severable in practical operation, and hence, in law. And so also, that though there may have been some conduct of the insured as to some of the property, not evil in itself, ■but working a breach of a condition in its letter, the effect of that breach may be confined to .the insurance upon that property, the contract as to that be held avoided, and as to. the other subjects be held valid.”

Forfeitures do not readily find favor in the law, and courts are reluctant to declare and enforce them, if, by reasonable interpretation it can be avoided. It is not likely that, in this case, the small amount of insurance on the store-house constituted any inducement for the insurance placed upon the stock of goods; and it does not appear, that the rates upon these classes-of property .were different, nor how it could make any difference if they were, since the only effect, in this respect, of holding the contract sever-able is, that the insurance company is enabled to retain the whole of the premium, which it accepted as the consideration for the insurance of all of the property, for the lesser risk on part of the property only; and it is not to be presumed, that the premium for the insurance of part only of the property, would exceed that accepted for the risk on all of it. It was not shown at the trial that the plaintiffs were guilty of any misrepresentation or intentional concealment concerning the title to the land on which the store-house stood. No inquiry was made of them about it. The subj ect was not a matter of negotiation between the parties in effecting the insurance, and the plaintiffs were ignorant of the condition, for the breach of which the company claims the right to forfeit the whole policy. If the position taken by the company be correct, the condition was broken when the policy was issued; and there was, therefore, no consideration for the premium that was- paid, for no risk attached; and yet, the company, while asserting the invalidity of the contract, holds on to its fruits. - This is not a very consistent position, nor a very just one. A just result is reached, and, as we think the lawful one, by holding, as we do, that the contract of insurance in this case is severable, and the breach of the condition as to the title of the land, does not ■defeat the plaintiff’s right to recover for the loss of the stock of goods insured by the policy in suit. It follows, that in our view of the case, the court erred in the instructions we have referred to, for which error the

Judgment is reversed.  