48 Me. 558 | Me. | 1860
In the argument before this Court, reliance is only had upon the third specification of defence, which is in the following words: — “ The assured, in his application, which is made a part of the contract, stipulated that the house should be occupied; whereas the house was not occupied.”
The stipulation referred to, if it exist, is found in the application of the plaintiff for insurance. To the question,- “ who owns and occupies the buildings ?” the plaintiff answered, “ owned by the applicant, will be occupied by a tenant.”
The application contains the following stipulation: — “and I hereby covenant and agree to and with said company, that the foregoing is a correct description of the buildings and property requested to bo insured, so far as regards the risk on the same.” Does this constitute a warranty that the premises insured was, and should continue to be occupied by a tenant ? And if so, was the occupation material to the risk ?
There is a distinction between a representation of an expectation, and the representation of an existing fact. The latter is in the nature of a warranty; the former does not amount to a warranty. Rice v. N. E. M. Ins. Co., 4 Pick., 439.
In Catlin v. Springfield F. Ins. Co., 1 Sum., 434, the words in the policy described the house insured, as “at present occupied as a dwellinghouse, but to be hereafter occupied as a tavern.” It was held that this was not a warranty that the house should, during the continuation of the risk, be constantly occupied as a tavern; but that it is, at farthest, a mere representation of an intention to occupy it as such. Story, J., in his opinion in that case, says, “ suppose a policy against fire, underwritten on the house of A, in Boston, described as a dwellinghouse, or as occupied as a dwellinghouse, would the policy be void if the house should cease for a time to have a tenant ? Such a doctrine has never, to my knowledge, been asserted j nor should I deem it maintainable.”
But, even if it were a warranty that it should be occupied ,by a tenant continuously, it could not avail the defendants, because it does not appear that the risk has been in any degree increased by want of a tenant, and the applicant only covenants that his representation sh^ll contain a correct description of the building to be insured, so far as regards the risk on the same.
As the case is presented, the defence fails, and a default must be entered. Defendants defaulted.
