
    The Jones Manufacturing Company vs. The Manufacturers’ Mutual Fire Insurance Company.
    Where a policy of insurance against loss of a woollen factory by fire provides, that it shall be void if the representations made in the application for insurance do not contain a just, full, and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property insured, so far as the same are known to the applicants, and are material to the risk ; and annexed to the application are various questions by the insurers, and a notice that it is expected that the answers thereto will meet the requirements of the insurers' office, one of which requirements is, that a cask of water and buckets will be kept in each story; and one of the written answers states that a cask of water and buckets are kept in each story; the burden of proof is on the insurers, in an action brought against them on the policy, to show that this answer is not true.
    A policy of insurance against loss of a woollen factory by fire provided, that if the situation or circumstances affecting the risk thereupon should be so altered or changed by the assured, without the- consent of tire insurer's, as to increase the risk, the policy should be void : The positiou of the stove in the lower story and of its smoke-pipe was afterwards changed, without the assent, of the insurers, so that the smoke-pipe, instead of passing into the chimney in that story, was carried up through the floors of the second and third stories, and after passing around the third story about two feet from the floor, for the purpose of drying wool, was made to enter the chimney in that story : In an action on the policy, the defendants requested the judge to instruct the jury, that if the change of the stovepipe and the use of it in the third story materially increased the risk of fire in that story, the policy would be void. But tire judge, without giving the particular instruction requested, instructed the jury generally that if the alteration of the stove and smoke-pipe increased the risk, the policy was void. It was held, that the defendants had no ground of exception to this instruction.
    This was an action of assumpsit on a policy of insurance, whereby the defendants insured the plaintiffs against damage or loss by fire to the amount of $13,100, of which “ $1,500 on their old mill (woollen) and fixtures; $1,500 on machinery therein; and $2,000 on stock therein.” The policy contained the following proviso : “ If the representations made ” in the plaintiffs’ application for insurance “ do not contain a just, full, and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property insured, so far as the same are known to the said applicants, and are material to the risk; or if the situation or circumstances affecting the risk thereupon shall be so altered or changed, by or with the advice, agency or consent of the assured or their agent, as to increase the risk thereupon, without the consent of the company,” “ this policy shall be void.” The representations referred to in this proviso were contained in the written answers made by the plaintiffs to thirty-six printed questions annexed to the application- Among these questions and answers were the following: “ 11. How are fires arranged for warming the building, and what kind of fuel is used ? If by stoves, how many and of what kind; do they stand on goo-1 platforms; and are the pipes riveted and kept in safe order ? Do stove-pipes pass through any wood in the partition, and if so, how secured ? ” Answer. “ The old mill is warmed by stoves, one stove in the first- story and one in second story. The one in the first story sets on brick in a frame; the one in the second story sets on brick in a frame, with sheet-iron fender around it. Stove-pipes are riveted; do not pass through any partition.” “ -14. Is a cask of water and buckets kept in each story, including the basement and attic?” Answer. “ Yes.” At the end of the questions and answers the following notice was printed: “ It is expected that the answers to the aforegoing questions will meet the requirements of this office, which are ” (among others) “ that a cask of water and buckets will be kept in each story.”
    The defendants specified in defence, first, that the plaintiffs did not have a cask of water and buckets in the several stories of the mill; and, second, that the plaintiffs had made alterations in the premises whereby the risk of fire therein had been materially increased. The evidence introduced at the trial to the points relied on by the defendants, and the rulings and instructions of Fletcher, J., before whom the case was tried, are stated in the opinion.
    
      G. F. Farley and E. Washburn, for the defendants.
    
      B. F. Thomas, for the plaintiffs.
   Shaw, C. J.

The statement in the application, that a cask

of water was kept in the third story, was prospective and in the nature of a representation. Houghton v. Manufacturers’ Mut. F. Ins. Co. 8 Met. 114. The judge ruled, that if this statement was untrue, it was matter of defence, and that the burden of proof was on the defendants, if they relied on this as a defence to avoid the policy, to prove that a cask was not placed in the third story. We think this ruling was correct and conformable to the rule of law. Catlin v. Springfield Fire Ins. Co. 1 Sumner, 434.

The other ground of defence was, that by changing a stovepipe the assured had increased the risk, without the consent of the company. The evidence tended to show, that the position of the stove in the lower story was changed, and that the smoke-pipe, instead of passing into the chimney in that story, as it had before, was carried up through the floors of the second and third stories, and after passing round the third story, about two feet from the floor, for the purpose of drying wool, was made to enter the chimney in that story. The defendants contended, and requested the judge to instruct the jury, that if the change of the stove-pipe and the use of it in the third story materially increased the risk of fire in that story, the policy would be avoided, if this was done without the consent of the company. The judge, without giving the particular instruction as to this detached fractional part of the entire alteration, as requested by the defendants, instructed the jury generally, that if the alteration made by the plaintiff of the stove and smoke-pipe increased the risk or hazard from fire, it would avoid the policy and the plaintiff could not recover. This instruction was sufficiently favorable to the defendants. The alteration consisted in one single change; it was a question of fact, whether that one change did increase the risk. Had there been several changes in the insured premises, detached in time and place, and having no connexion with each other, some of which would increase, and others diminish the risk, it would have presented a different question, on which we give no opinion. Judgment for the plaintiffs.  