It is apparent from the case made by the evidence that the failure of Goddard to keep his books and inventory in an iron safe at night, did not arise from any intention on his part to deprive the insurance company of evidence as to the amount of the stock, tools and machinery hе had on hand at the time of the fire. He was wholly ignorant of the existence of any clause in the policy imposing this duty upon . him.
It is not made to appear that the company has been damaged in the least by reason of Goddard’s default in this respect; for the value of the stock at the time the inventory was made was fully proved, and the amount of the subsequent sales—which were all for cash—could be easily ascertained from the accounts kept in the books, which were preserved and open to the inspection of the company and the court. If there has beеn neither fraud on the part of Goddard, nor loss to the company by reason
Treating this as a case where the assured was charged with knowledge that the clause in question was attached to the policy, as it appears in the original sent up for our inspection, the question is, did this constitute it a warranty that the assured would perform the promises contained in the clause or the policy should be void P
It is a cardinal principle of insurance law that in order to constitute any statement or promise of the insured a warranty it must be made part of the policy, either by appearing in the body of the instrument, or by a proper reference in the policy to some other paper in which it is to be found. (Wood on Insurance, section 176, page 340.)
It is in the nature of a condition precedent, and, as such, must form part of the contract between the parties. (Wood on Insurance, section 58; Farmers Lоan, etc., Company v. Snyder,
The policy is the contract, and, if outside papers are to be imported into it, this must be done in so clear a manner as to leave no doubt of the intention of the parties. (Farmers Loan, etc., Company v. Snyder, supra; Insurance Company v. Southard, 8 B. Monroе 634.)
When there is doubt as to the intention of the parties to treat the paper as part of the policy, the courts give the benefit of the doubt to the assured, and construe the policy liberally in his favor. (Stone v. U. S. Casualty Co.,
The clause which appellee seeks in this case to have construed ns part оf the policy is not written or printed upon the same pa
Thus a clear distinction is drawn by that eminent judge between statements and promises written in the policy itself, though upon the margin, and those detached from it, or contained in a separate piece of paper and made to adhere to the policy. In the former case they are warranties; in the latter they are at best no more than representatiоns.
These decisions may well be supported by the principles we have already announced. The underwriters prepare the contract to suit themselves. They can exact any lawful conditions they chose to guard against frаud, negligence, want of interest, etc.; but they must do so in a manner not calculated to mislead the parties with whom they deal. They have it in their power to express their meaning in a way not to be misunderstood, or to be capable of any other construction, except that which they must know the assured will give to the language. If they do not embody their warranties in the policy itself, or import them into that instrument by a proper reference to other papers in which they are contained, and the contract is capable of an interpretation which will make them mere representations, they must expect that it will be so construed.
But without attempting to decide that there are no circumstances under which a foreign paper attached to a policy, without, any reference to it made in that instrument, may form a condition of the contract and be construed as a warranty, or that this clause might not have been attached to the present policy at such place and in such a manner as to give it that effect, we are clear that the clause.under consideration is not so attached to the policy as0to give it any higher dignity than that of a mere representation. It is placed after a description of the property insured, and in the midst of the covenants assumed by the underwriters, and makes the policy read thiis: “ The East Texas Fire Insurance Company of Tyler, Texas, organized January, 1875, in consideration of eighty-four dollars and of the agreement herein contained, does insure Goddard & Corley to the amount of twelve hundred dollars: one thousand dollars on their stock of stoves and hollowware, tin, tinware and tinner’s materials, and two hundred dollars on their tools and machines, all while contained in the one story framе shingle roof building and shed adjoining on the east, occupied by assured and situated at No. 300, on Moore avenue, •corner of Adelaide street, block No. 77, Terrell, Texas. Three-fourths loss and iron Safe clause. It is agreed *and understood to
“It is understood and agreed that the assured shall keep a set of books', showing a record of his or their business, including all-purchases and sales, both for cash and on credit, as well as a copy of his or their last inventory, warranted to be kept in an iron safe at night, against all suсh immediate or proximate loss or damage by the assured as may occur by fire to the property above specified, but not exceeding the interest of the assured in the property and except as hereinafter provided,” etc., setting forth the time the policy is to last, how the dаmage is to be estimated, the date at which the loss is to be paid, etc.
The policy then concludes by reciting the terms, conditions and warranties upon which it is given. It will be seen that the clause in question is inserted in the midst of a sentence with which it has rib proper connection; a sentence whiсh purports to contain the promises made on the part of the insurance company and not those entered into by Goddard & Corley. It is therefore not only out of place, but, taken in connection with its context, is devoid of meaning. Not only so, but the policy expressly names the conditions and terms upon which it is executed, and the warranties which the assured is obligated to make good and perform, yet no warranty or condition of the kind stated in the clause in question is found among them.
• Now there are some other principles of insurance law applicable to the stаte of case made by the policy as we have recited it. The first of these is: “Words purporting to be a condition upon which the policy was issued must be set forth in such a place, and in such manner in the policy, as leaves no doubt they were so intended; and words inserted promiscuously therein, having no connection with other conditions of the policy, although the word condition is used, will not be treated as a condition of the policy.” Wood on Fire Insurance, sections 59, 60. See also May on Insurance, 170.
This principle is well illustrated by the case of Kingsley v. New England Mutual Fire Insurance Company, 8 Cushmаn, 393. There the words “on condition that the applicant take all risks from cotton waste,” inserted between the statement of the sum insured
There is still another rule of law applicable to this policy, which is that, when an instrument of this character is inconsistent or ambiguous in its provisions, it must be construed most favorably for the assured. (Wood on Fire Ins., sec. 59 and notes; Hoffman v. Ætna Ins. Co.,
For the error of the court below in the matter stated, its judg-ment will be reversed; and this court, proceeding to render such judgment as should have been rendered below, orders and adjudges that the appellant recover of the appellee the sum of twelve hundred dollars, with interest thereon from November .30, 1885, and all costs of this, and of the lower court.
Reversed and rendered.
Opinion delivered November 30, 1886.