Fowler v. Ætna Fire Insurance Co., 6 Cow. 673

6 Cow. 673 | N.Y. Sup. Ct. | 1827

Curia, per

Savage, Ch. J.

As to the evidence of character, it was said by this court, in Ruan v. Perry, (3 Caines, 120,) “ that in actions of tort, and especially charging a defendant with gross depravity and fraud, upon circumstances merely, evidence of uniform integrity and good character, is oftentimes the only testimony which a defendant can oppose to suspicious circumstances.” The rule in England is this : “ that in a direct prosecution for a crime, such evidence is admissible ; but when the prosecution is not directly for the crime, but for the penalty, it is not.” (Attorney General v. Bowman, 2 B. & P. 532, note (a.) That was an information against the defendant for keeping false weights, and for attempting to corrupt an officer. Eyre, Ch. Baron, said, “ I cannot admit this evidence in a civil suit.” If such evidence is admissible here, it will be proper in every case where unfair-practices are alleged. A specific fraud is charged, that must be met upon its own merits, unless supported only by circumstances; as in the case of Ruan v. Perry, where a naval officer was charged with gross fraud and collusion with a foreign officer, upon slight circumstances. If such evidence is proper, then a person may screen himself from the punishment due to fraudulent conduct, till his character becomes bad. Such a rule of evidence would be, extremely dangerous. Every man must be answerable for every improper act; and the character of every transaction must be ascertained by its own circumstances, and not by character of the parties.

I think it very immaterial as regards this action, whether the error in description arose from design or mistake. The question is, did this description amount to a warranty that the property answered the description ? The judge at the circuit so considered it; and it was admitted on the argument, that if the principles of marine insurance are applicable to fire insurance, it is a warranty. In the case of Stetson v. Mass. Mutual Fire Ins. Co. (4 Mass. Rep. 337,) Sewall, justice, lays down the law thus : “ The estimate of the risk undertaken by an insurer must generally depend upon the description of it made by the insured or his agent. A mistake or omission in his representation of the risk, whether wilful or accidental, if material to the risk insured, avoids the contract.” For this, he cites 1 Marsh, on Ins. 335, 339. That writer states that a warranty being in the nature of a condition precedent, must be fulfilled by the insured, before performance can be enforced against the insurer ; and whether the thing warranted was material or not, whether the breach of it proceeded from fraud, negligence, misinformation, or any other cause, the consequence is the same. (1 Marsh. 347.)

In relation to the sale of personal property, it is held that a bill of parcels is not a warranty that the goods are what they are represented to be. (2 Caines, 48, and other cases down to the 20 John. 198.) But in relation to policies of insurance, it is held that a description of a vessel, is a warranty. For instance, the description of a vessel as Swedish, is a warranty of her national character. [Phil, on Ins. 125, and the cases there cited. 8 John. 237, 319.) Several cases in 2 H. Bl. 574, &c. shew that the conditions attached to the policy are to be considered parcel of the instrument.

No cases have been produced, to shew that a description of property insured by a policy against fire, is to be construed differently from a description in a marine policy. I ean perceive no reason why there should be a difference. “ Insurance,” says lord Mansfield, “ is a contract upon speculation.” (3 Burr. 1909.) “ The special facts upon which the contingent chance is to be computed, lie most commonly in the knowledge of the insured only ; the underwriter trusts to his representation,” &c. He says the insured need not state what the insurer knows ; but the keeping back the true state of the property, is a fraud.

In this case, the plaintiffs ought to have known the true state and condition of their house, and have truly represented it. Not having done so, they fail in their action. The property burned is not the property insured.

This is not a case in which equities should be considered. It is a sort of gambling, a speculating upon chances ; and the parties must be held strictly and literally to their Contract.

I think the judge misdirected the jury, and that a new trial should, be granted.

New trial granted.