material and substantially false. Thus, A took out a policy on his barns. In the policy occurred the words: "All the above barns are used for hay and stabling." It was held that these latter words were merely a further incidental description of the property and were not warranties (32). So, where the policy was "on two large frame ice houses all used for the storage of ice,"

the court said that the latter words were not warranties but "descriptive of the business ordinarily done in them" (33).

§ 43. Same: Third class of cases. The third class of cases is where the words are not necessary to set forth the subject matter of the insurance, as in the first class of cases, but, on the other hand, cannot properly be regarded as merely additional incidental statements concerning the property covered as in the second class; in other words, where it is clear that they are incorporated in the policy for the purpose of giving the company direct additional information as to the character and nature of the risk that it is assuming. Under these circumstances, the words will be treated as warranties and not as representations, with the consequence that, if broken, the breach will, irrespective of materiality, make the policy voidable. It is naturally sometimes difficult to draw the line between words falling in class two and those falling in class three, and the decisions on these questions are not all reconciliable. Some cases will serve to illustrate how the courts have approached this question.

(32) Billings v. Insurance Co., 20 Conn. 139.
(33) Dolliver v. Insurance Co., 131 Mass. 39.

§ 44. Same: Illustrations of language held a warranty. In Fowler v. Aetna Insurance Co. (34), the policy was executed on the stock in trade consisting of certain goods "contained in the two story frame house filled in with brick situated at No. 152 Chatham street." It appeared that the house was in fact wooden with hollow walls, and was not filled in with brick. The court instructed the jury that, irrespective of the question whether or not this was a material alteration in the risk, the policy was void because of the fact that the words "filled in with brick" were a warranty and had not been complied with by the assured. In the case of Burleigh v. Insurance Co. (35), among certain incidental provisions and after the description of the property, there appeared this statement: "all contained in the frame storehouse with slate roof, detached at least 100 feet, on the east side of Lake Champlain, in the town of Shoreham, Vermont." It appeared that at the time the policy was issued there was a small building about 75 feet distant from the storehouse. The court held that the statement "detached at least 100 feet" was a warranty. They said, "we cannot hold it to be a mere description of the building for the purpose of identifying that personal property insured contained within it. The phrase is not adapted to any such purpose. It adds nothing to the identity of the storehouse already sufficiently described by its ownership and situation on the lake." In Stout v. Fire Insurance Co. (36), the policy purported to be "on the five story brick building known

(34) 6 Cowen (N. Y.) 673.

(35) 90 N. Y. 220.

(36) 12 Iowa, 371.

as the Lawrence block, occupied for store below, the upper portion to remain unoccupied during the continuance of this policy." In this case also, the court held that the phrase "occupied for store below" was in law a warranty, since it could not fairly be regarded as a mere collateral description of the building as it had already been sufficiently identified in other ways.

in

§ 45. Same: Illustrations of language held not a warranty. On the other hand, where the phrase in question was not incorporated with others that were plainly meant as warranties, but was inserted in the midst of phrases that the court regarded as simply descriptive, the courts have held it to be merely a representation and not a warranty. Thus, in Frisbie v. Insurance Co. (37), the application, which was incorporated in and made a part of the policy, contained these words: "Application of Orton Frisbie . . . for insurance against fire the sum of $1,500, to-wit, on his stock of merchandise $1,200, on dry goods kept in a frame plastered storehouse 24 by 24 feet, one and a half stories high; merchandise kept on first floor and groceries in the store rooms and cellar; said store attended by applicant and clerk; clerk sleeps in store; one stove in said store room," etc. It was contended by the defendant that the words in italics were a warranty. The court held that they were not, that it was clear that the various phrases in the midst of which the phrase in question was inserted were mere descriptions, and that there was no sufficient reason to distinguish this phrase from the others. Thus, in Kingsley v. Insur

(37) 27 Pa. 325.

ance Co. (38), the policy provided for insurance "on the paper mill and permanent fixtures $1,200; on the machinery $800, on condition that the applicant take all risk from cotton waste, situated as described in the application, reference being had to the application of the said Kingsley for a more particular description and as forming a part of this policy," etc. The court held that the words in italics were not warranties, even though they purported to be a condition. It said that the position in which they were inserted in the policy, and the fact that there was nothing required for the insured to do or to omit to do, by way of performing the supposed condition, made it clear that the legal meaning of those words could be only that they were to be regarded as expressing the intention of the insurance company not to cover a loss originating in cotton waste, but nothing more than that.

SECTION 4. EXTENT OF WARRANTY.

§ 46. Fire insurance. Assuming that in any given case the phrase is a warranty, and therefore to be exactly performed regardless of materiality, a further question remains, namely, what is fairly meant by the parties to be the extent of the warranty. In answering this question, the court will look to the purpose of it and will not hold the insured to an absolutely literal compliance, if it can fairly see that any other construction of the warranty will really fulfill the purpose that the parties had in mind at the time of making it. Thus, in the case of Burleigh v. Insurance Co. (note 35, above), the court held that while (38) 8 Cush. (Mass.) 393.

the words "detached at least 100 feet" were a warranty, that the warranty was satisfied by showing that the building was deached at least 100 feet from any other building likely to endanger it, it being clear that that must have been the purpose for which the warranty was inserted; so that the mere fact that there was a structure within 100 fee was held not to affect the policy, when it was shown that it was not of a kind that would endanger the building insured. A similar principle was applied in the case of Mickey v. Insurance Co. (39), where the following language appeared in the application, which was incorporated with and made a part of the policy: "Are your chimneys, fireplaces, stoves, and pipes all well secured and will you engage to keep them so?" Answer, "Yes." The stove not being required for use during the summer months was usually removed. With the intention of removing it, the insured took down the stove pipe in the second story chamber and placed a bed over the hole in the floor through which the pipe passed, but he neglected to remove the stove. A few days later, a visitor complaining of the cold, a fire was built in the stove, the owner forgetting that the pipe had been removed. A fire ensued from which the building was burned, and, in an action on the policy, the company set up the breach of warranty above quoted. The court held that in construing the warranty in question the purpose of the parties must be looked to, and that the purpose was clearly that the insured should keep his stove pipes, etc., in good and careful condition as a prudent householder would, but that it did not forbid

(39) 35 Iowa 174.