By the Court,
Savage, Ch. J.
The only question in this case is, whether the survey furnished by the plaintiff is to have the effect of a warranty, or of a representation. This question must be considered as settled on authority in this court. It arose and was decided in The Jefferson Ins. Co. v. Cotheal, 7 Wendell, 72. That was an action upon a policy for $5000,on a steam saw-mill, built of wood, situate on the river Nantikoke, nearVienna,inthe state of Maryland, as describedinreport No. 193. In the application for insurance, it was described as 130 *94^eet ^on8' by 20 broad. It was in fact 132 feet long ; part of it was 30 feet broad, but about 40 feet of it was 40 feet broad. The boiler and furnace were placed on the outside of the building and covered, being about 30 feet in length, 10 high and 10 wide. It was insisted that the representation made by the plaintiffs was a warranty. The chief justice of the superior court of the city of New York, before whom the cause was tried, decided that it was not a warranty, but a representation, and that the variance did not defeat the policy, unless in consequence of the variance the premises were insured at a less premium than they would have been if they had been truly described. The cause came into this court by writ of error, and the opinion of the court was given by Mr. Justice Sutherland, who examined the cases on the point, and came to the conclusion that a warranty is never to be created by construction—must appear on the face of the policy; that there may be unequivocal evidence of a stipulation, the noncompliance with which is to have the effect of avoiding the contract. The only exception to the generality of this proposition is, that the proposals and conditions attached to the policy form part of the contract. In the case of Dow v. Whetton 8 Wendell, 166, the chancellor says, the policy itself is the only legal evidence of the agreement between the parties. Vice Chancellor M’Coun has also clearly stated the difference between a warranty and a representation. The former is the affirmation of a fact asserted in the policy, and forming a condition which must be strictly complied with; the latter the statement of spine collateral circumstances not embodied in the policy, though made before the contract was completed. 1 Edwards, 74.. This subject has been much considered in the superior court of the city of New York. 2 Hall, 608, 627, 8. Chief Justice Jones says, it is a general rule that a representation, to have the effect of a warranty, must be contained in the deed or policy itself. And Mr. Justice Oakley says, “ In determining what shall constitute a warranty, and what shall be a representation merely, the general principle seems to be well settled that an express warranty must appear on the face of the policy, and that any instructions for insurance, unless inserted in the instrument itself, do not amount to a war*95ranty.” Again : 6< the insurers, having a description of the property in their possession, are presumed to insert in the policy itself as much of that description as they deem material; and by omitting any part of it, they show that they are content to take such part as a representation merely, and to look to it only for estimating the risk.” These cases have been referred to with approbation by Chancellor Kent, 3 Kent's Comm. 373, and are believed to be in unison with the English cases found in Cowper, 785, Dougl. 12, n., and 1 Condy's Marshall, 451. It is not necessary to deny that a separate paper may by express stipulation be made part of the policy; but there is no such reference in the present policy as to authorize the court to give the survey the force of a warranty ; indeed, from the manner of referring to it, it would seem that the defendants were satisfied to look to it only for the purpose of estimating the risk. It is not pretended that the judge did not present the question of fraud fairly before the jury. The only question which we decide now is, that the survey referred to in the policy must be considered a representation merely, and not a warranty.
New trial denied.