Shoemaker v. Glens Falls Insurance Company. thing which the questions in the application were suited to elicit. Whether there was a mortgage upon the property upon which the insurance was sought, was one of these questions. This question had a relation to this property, and it cannot be denied that this question had some reference to the condition and situation of the property, touching the title thereto, and that the value of the insurable interest of the plaintiff, and the risk of the insurers, was essentially involved," and it was held the assured could not recover. It is obvious there is another and stronger reason why the underwriter should know if there is an incumbrancewhy such information affects the risk, to wit: If incumbered, there is another insurable interest. The holder of the incumbrance may over insure, and the insurer of the incumbrancer cannot protect himself against such increased moral hazard caused by the over insurance; nor can he against the increased hazard, by reason of the double insurance by the person who holds the title and the person who holds the mortgage; and hence the risk is greatly increased, and the underwriter should have a correspondingly increased premium. There is nothing in any other part of the contract to modify the covenant of the plaintiff, or release him from the warranty against the incumbrance. The first condition makes the "survey" and description a warranty; but if this were not so, a statement in that "condition," of what the application should contain, would not and could not control the effect of what was inserted in the application in addition to what was required. Statements in the application, in addition to what was required by said condition, stand upon the same footing, and are to be construed and have the same effect as though no requirement. was made; and hence the application being a part of the contract, the clause as to incumbrance was a warranty, as above shown, independent of the clause in the condi Shoemaker v. Glens Falls Insurance Company. tion making it so, in terms. If the condition, after specifying that the application must contain certain statements, had provided that a part of the requirements only should be a warranty, it might perhaps have been different. That, however, is not this case; the clause shows it was the intention that the whole survey and description should be a warranty; there is no limitation or discrimination. Again, we find the application divided into parts or subjects, under different heads. First comes a statement or direction as to filling up the application. Second, the application proper. Third, the "survey." Fourth, the covenant. The survey contains the statement that there is no incumbrance; therefore the statement, by apt words, in the above mentioned condition, is made an express warranty. (Ripley v. Etna Ins. Co., 30 N. Y. 136, 138.) But if it were a misrepresentation, simply, instead of a warranty, it being in the application it would defeat the plaintiff's action, whether material or not, since by making the inquiry the insurer implies that he considers it so. This principle is recognized in all jurisprudence. "It is particularly applicable to written answers to written inquiries referred to in the policy." (1 Phil. on Ins. § 542. Dennison v. T. M. F. I. Co., 20 Maine, 125.) It is also immaterial whether the statement (if misrepresentation only) was made fraudulently or by mistake or accident-the effect is the same. A policy obtained by misrepresentation is in legal intendment no insurance at all—it has no legal effect. (Gould v. York Ins. Co., 47 Maine, 409. Clark v. N. E. M. I. Co., 6 Cush. 342. Carpenter v. Am. Ins. Co., 1 Story, 57.) II. The court erroneously refused to charge that the plaintiff was impeached by evidence of his statements out of court, different from what he had testified to on the trial, as to the value of the property, both in his affidavit before Schofield, and also in his statements to Kelly, Maxwell and Hill; also by being contradicted by these witnesses as to his offering the property for sale; also by his Shoemaker v. Glens Falls Insurance Company. affidavit before Schofield, that the stable floor was worn; and that in weighing the plaintiff's evidence they should only give it such weight as, under these circumstances, and in view of his appearance on the stand, they thought his evidence entitled to, if anything, which refusal was excepted to by the defendant.. III. The court should have directed a nonsuit, as requested, and should have directed a verdict for the defendant, as requested. The evidence showed that the application in evidence was the only one made by or for the plaintiff; Price so testifies positively. The plaintiff admits he applied for this insurance; also, that this application was taken at Coon's. Coon gives some evidence on the subject, and that his understanding was the application was in the Agricultural Insurance Company. On cross-examination, he testified it was read over before being signed, and that he cannot say positively it was not in the Glens Falls company. Shoemaker, on being recalled after the defense was developed, said he could not tell what company it was in; and also, in answer to a leading question, that the application was in another company. The plaintiff, in the last answer, must have referred to the fact of applying for insurance, rather than to the paper called the "application," otherwise his prior testimony, in two or three separate instances, would be in direct conflict with the last answer. Thus it appears there was no conflict in evidence as to the application in evidence being the one authorized by the plaintiff, or at least so little conflict that a verdict should not be supported against the clear and positive evidence that it was the same application. It being established that the application in evidence is the one made by the plaintiff, it follows that the plaintiff could not recover, as shown in the first point. Again, the plaintiff accepted the policy, referring to and making this application in evidence part of the contract, (this is Shoemaker v. Glens Falls Insurance Company. the only application Alderman or the company could have had,) and brings his action upon it. IV. The exceptions to the admissions of evidence were well taken. As to the exception at folio 53, to proof of Price's agency by his own declarations, Price was a competent witness, and what he said was purely hearsay. Even if he had been an agent, which he was not, what he said in the course of his business and within the scope of his employment, only, could be proved. The agency must be proved aliunde, and then the admission may be proved. Here the plaintiff proved what a third party said, to prove he was an agent. Any case might be proved in such way. No fact would be needed; it would only be necessary to get some one to make such statement. As to the other exceptions, it is well settled that parol evidence cannot be given to show that information different from what is contained in the contract was given to the agent by the underwriter—that the warranty cannot be explained, modified or controlled in that way. (Ripley v. Ætna Ins. Co., 30 N. Y. 161, and cases cited.) The ninth condition of the policy provides that "all fraud or attempt at fraud, by false swearing or otherwise, shall cause a forfeiture of all claim on this company;" also to the same effect in the body of the policy. V. The court should have granted the motion for a new trial. 1st. The errors herein before specified, at least may have prejudiced the defendant's case, and therefore, the defendant was and is entitled to a new trial. (Williams v. Fitch, 18 N. Y. 546. Erben v. Lorillard, 19 id. 299. Brown v. Richardson, 20 id. 472.) 2d. The court had, and now has upon appeal, the right and power to review the whole of the evidence, and upon the whole case, considering both the law and the evidence, to set aside the verdict and grant a new trial. (Macy v. Wheeler, 30 N. Y. 237.) In this view of the case, the verdict should be set aside,. Shoemaker v. Glens Falls Insurance Company. and a new trial granted, for various reasons, in addition to those set forth in the foregoing points. The jury should have been instructed that if from the whole case as proved to them, (after instructing them properly as to the rule in weighing the plaintiff's evidence,) they were satisfied that the fire was caused by the plaintiff, or by or through his procurement, he could not recover. Had such instructions been given, it is not too much to say that the verdict might have been for the defendant, notwithstanding the prejudice that seems to exist in the minds of jurors against corporations. It is submitted that the defendant is entitled to a new trial on the case as well as on the exceptions, and that the judgment should be reversed and a new trial awarded accordingly. Geo. B. Bradley, for the respondent. I. The question of warranty, raised by the defendant, was properly disposed of by the court, and the several exceptions in that respect are not, nor is either of them, well taken. The court having made some remarks to the jury on the question of a breach of the warranty in respect to incumbrances, the defendant "excepted to that portion of the charge which stated that the application in relation to incumbrances was not a warranty." The defendant also excepted to the refusal of the court to charge that there was a warranty against incumbrances. 1. To render a statement of the insured a warranty, it must be inserted in, or made a part of the policy; and if contained in an application, the application, in that respect, must, by the express terms of the policy, be made a part of it. (Jefferson Ins. Co. v. Cotheal, 7 Wend. 72. Burritt v. Saratoga Mu. Ins. Co., 5 Hill, 188. Wall v. Howard Insurance Co., 14 Barb. 383. Stebbins v. Globe Insurance Co., 2 Hall, 632. Delonguemare v. Tradesmen's Ins. Co., Id. 589. Commonwealth Ins. Co. v. Monninger, 18 Ind. 352.) Otherwise the 93 6L 217 |