11 Mo. App. 349 | Mo. Ct. App. | 1882
delivered the opinion of the court.
This is an action upon a policy of fire insurance on a flouring mill. It contains the following warranty in writing: “ Warranted by the assured that there shall be a watchman kept on the premises at night and on Sundays.” The evidence shows that no person was employed to watch in the mill at night, but that a person was employed by a company which occupied a part of the mill in the manufacture of itacolumite or emory wheels, to work for them during the day and to sleep in the mill at night. The court refused to instruct the jury that a person thus employed was not a watchman, but left it to them to say whether he was a watchman or not. We think this was error. We do not need a dictionary, nor a law-book, nor the testimony of an expert, to tell us that a man who is employed to work in the daytime, and who is permitted to sleep at night, is not a watchman at night. Where the construction of a contract upon which the rights of parties litigant depend is drawn in question, it is the duty of the court to expound its meaning to the jury, and it is error to leave its meaning to be determined by them; and if the construction of a contract is left to the jury, and they construe it wrongly, it will be ground for reversing the judgment. That was clearly the case here.
*350 “ A warranty is apart of the contract, and must be exactly and literally fulfilled. It is in the nature of a condition precedent, and no inquiry is allowed into the materiality or