| NY | Dec 5, 1858
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *389 The admission of the evidence objected to by the defendant, as to the business of Ide, the agent and surveyor of the defendant, in reference to insurance, and what he did and said, and what was said by the plaintiff in respect to the contract of insurance on the stores at the time of making thereof, was erroneous. The answer of the plaintiff to the interrogatory calling for information of the relative situation of the stores as to other buildings, and the statement in the application that all of the exposures within ten rods are mentioned, constitute a warranty that there were no other buildings within ten rods of the stores which exposed them to loss or injury by fire; and the plaintiff had given evidence proving, or tending to prove, a breach of this warranty. The evidence in question was manifestly offered and received in answer to this proof of a breach of the warranty, to explain the warranty and control and limit its legal operation. It had no other pertinency and could have no other effect. The case of Jennings v. The Chenango County Mutual InsuranceCompany (2 Denio, 75), and the cases there cited, show that the evidence could not be received for any such purpose. The case of Kennedy v. The St. Lawrence County Mutual InsuranceCompany (10 Barb., 285), declares the same principle.
It is insisted, on the part of the plaintiff, that the evidence was proper for the purpose of creating an estoppel against *390 the defendant's alleging a breach of the warranty. If the doctrine of estoppel could have such an application, it would entirely abrogate the established rule, that parol evidence is not admissible to contradict or vary a written contract. The acts and declarations of the defendant's agent were certainly not entitled to any greater force than an express verbal agreement — to the same effect — between the defendant, acting by him, and the plaintiff would be; and if the latter would not be, the former is not, a basis for the principle of estoppel. An estoppel against proof that there were other buildings than those mentioned in the application, endangering the safety of the stores as to fire, within ten rods, would necessarily assume that such was the understanding and agreement of the parties. It could not rest upon any other idea. The evidence to raise it would, therefore, inevitably contradict the contract. If such was part of the contract it should have been expressed in the writings.
No fraud is imputed to the agent in what is termed the bill of exceptions in the return to the appeal; and if it were otherwise, it is difficult to see how the plaintiff could be allowed the benefit of part of the contract of insurance and the defendants be denied the benefit of the residue, as it is set forth in the papers. The application is, as it is expressed therein to be, the application of the plaintiff; the signature of the agent imports only that he procured the application for the company; and when the plaintiff seeks to enforce the contract of insurance he must take it according to its terms, and submit to whatever makes against him as well as assert the benefit of what makes in his favor.
It is said by the plaintiff's counsel, and by the court below, substantially, in the opinion delivered, that the plaintiff did not ask any benefit from this evidence; nor did the defendants ask any charge or direction upon it. But it is apparent that the evidence answered the purpose designed by it, of overcoming the defendant's position of a breach of *391 warranty. It would have been useless for the defendants to go to the jury upon that subject, with this evidence sanctioned by the court as competent against them and they were not required to do so. They might properly rest upon their exception, and not further press their position.
In regard to the other policy, the answer to the interrogatory in the application, as to the relative situation of the buildings insured to others, states, among other things, that two of the insured buildings named are "contiguous to other buildings." This general expression as to "other buildings" embraces all buildings not specified, within ten rods, and of course there can be no warranty that there are no others than those specified. It also necessarily includes all exposures within the distance mentioned. In this view, the evidence in question was harmless as to this contract of insurance.
The taking of a policy of insurance, in renewal of the prior insurance mentioned in the application for the first named policy, was not within the terms or spirit of the provision in the latter policy requiring notice in case of making other insurances.
The question whether the other exceptions are too broad to be available need not be considered, as it is not probable that similar questions will again arise in the case.
The judgment must be reversed and a new trial granted, with costs to abide the event.
All the judges (except ROOSEVELT, J.) concurred in the result of this opinion, but put their judgment upon the refusal of the judge to charge that the representations accompanying the plaintiff's application for insurance amounted to a warranty. The court also concurred in the opinion as to the failure to give notice of the renewal of a prior policy of which the defendant was notified by the application.
Judgment reversed and new trial ordered. *392