6 Wend. 488 | N.Y. Sup. Ct. | 1831
By the Court,
It is not denied that one of the buildings insured was destroyed, and four of the others injured, by the peril insured against. The defendants must therefore pay the amount of the plaintiff’s loss, not exceeding the amount insured, unless they are excused in consequence of gunpowder being stored in some of the buildings. Whether the powder was there with the knowledge or agency of the plaintiff, seems to me not very material. The absence of agency or knowledge, on the part of the plaintiff, excuses him from any imputation of fraud, or an intention to violate his contract. The policies say nothing about the knowledge or agency of the plaintiff in storing articles therein prohibited, but the contract is in substance, that if the buildings shall be used for storing articles not privileged to be there, then, so long as they shall be so used, the policies shall
The proposals and conditions attached to the policy form part of the contract, and have the same force and effect as if contained in the body of the policy. 1 H. Black. 254. 2 id. 574, 7, n. 6 T. R. 710. 6 Cowen, 576. It is expressly stipulated that the buildings may contain articles denominated not hazardous, hazardous and extra hazardous; but if they contain those included in the memorandum of special rates, while they are so used, the policy shall cease and be of no effect. The stipulations in policies are considered express warranties; an express warranty is an agreement expressed in the policy, whereby the assured stipulates that certain facts relating to the risk are, or shall be true, or certain acts relating to the same subject have been, or shall be done. It is not requisite that the circumstance or act warranted should be material to the risk; in this respect an express warranty is distinguished from a representation. Lord Eldon says: “It is a first principle in the law of insurance, that if there is a warranty it is a part of the contract, that the matter is such as it is represented to be. The materiality or immateriality signifies nothing. The only question is as to the mere fact.” Phil. Ins. 124, 5. A warranty in a policy of insurance is a condition or contingency, and unless that be performed, there is no contract, per Lord Mansfield, 1 Taunt. 345, 6, who was then speaking of a condition precedent; but the same reasons apply to put an end to the policy, where the condition or warranty applies to matters subsequent. In The New Castle Fire Ins. Co. v. Marmoran, 3 Dow, 255, in a policy upon a cotton mill, it was warranted that the mill was conformable to the first class of cotton and woollen rates. According to the proposals of the company, buildings
My conclusion is, that the plaintiff had a right, by the terms of the policy, to put gunpowder in his buildings insured; but in case of loss by fire, he is not entitled to compensation for such gunpowder; not having insured it by special agreement. If such is not the proper construction of the policy, then there is no positive exclusion of gunpowder, as it is clearly not included in the paragraph headed special mem., and which is referred to in the clause of the policy in question, as “ the memorandum of special rates.” I place my opinion, however, upon the construction of the policy taken all together, that gunpowder belongs to the class denominated extra hazardous; and that of course, the buildings were privileged to contain it.
I am, therefore, of opinion that a new trial be denied.