[Columbian Insurance Company vs. Lawrence.]

were unable to comply with their agreements to pay for the same; or to respond in damages for the breach thereof.

The plaintiff also produced evidence to show that it was the usual practice of the country to build the gable end of brick or stone mills of wood; and that a mill so constructed had been insured by the Mutual Insurance Society, described in the same terms used in the policy, upon which this suit was brought.

Whereupon the defendants prayed the opinion of the Court, and their instruction to the jury, that if the said contracts between How ard and Lawrence, and between Lawrence and Poindexter, have not been performed on either side; and if, from the actual state and condition of the title, and the value of the property bargained for between Howard and Lawrence, and between Lawrence and Poindexter in the said contracts; and from the circumstances of the parties, the said contracts between the said parties could not have been specifically performed, or effectually enforced on either side, so as to have vested the legal estate pursuant to said contracts; or to have vested in said Lawrence & Poindexter an equitable estate, with a right to call for the legal estate; and that the said contracts between the said parties were not practically available, but were, as to the practical intent and purpose which they purported an intent to effectuate, incapable of being executed; then the said Lawrence & Poindexter had not, at the time of the said insurance, and of the said loss, such an interest in the said mill as to entitle them, or either of them, to recover in this action for the loss averred in the declaration, and proved by the evidence.

Which instruction the Court refused; being of opinion that it would leave a question of law to the jury, viz.: Whether, under the circumstances therein stated, the said parties therein mentioned, or either of them, could be compelled *specifically to perform *37] the agreements therein mentioned; and because the Court is of opinion, that under the circumstances stated in the said evidence, the plaintiffs had, at the time of effecting the insurance, and at the time of the loss, an insurable interest in the said mill.

Whereupon the defendants prayed the opinion of the Court, and their instruction to the jury, that, in order to verify the description of the property insured, as given in the policy, it is necessary that the whole of the exterior walls of the millhouse, upon which the roof or covering rests, from the foundation to the top of the roof, should be of stone; and that, if the plan of the said house were such as that two of the exterior walls terminated in upright gable ends, run up perpendicularly from the eaves to the top of the roof; and sloping at the same angle as the pitch of the roof, such gable ends not properly forming, according to the ordinary rules and terms of architecture, a part of the covering or roof; it was necessary, to verify the said description, that such gable ends should have been of stone; and if, in point of fact, such gable ends, as well as the covering or roof, were of wood, which, under any circumstances of actual conflagration, might have increased either the risk of catching fire,

[Columbian Insurance Company vs. Lawrence.]

o the difficulty of extinguishing or stopping the progress of fire once commenced, it amounted to a material misrepresentation, and avoids the policy; and it is not material whether the said misrepresentation was wilful and fraudulent, or from ignorance and without design, nor whether the actual loss was produced by such misrepresentation, or by having gable ends of wood instead of stone.

Which instruction the Court refused; being of opinion that it was competent for the jury, from all the facts given in evidence, to decide whether, in order to verify the said description in the said policy, it was necessary that the whole of the exterior walls, from the foundation to the top of the roof, should be of stone.

And being also of opinion, that, under the first of the rules annexed to the said policy, and referred to therein, no variation in the description of the property insured from the *true description [*38 thereof, not made fraudulently, would vitiate the policy, unless by reason of such variation the insurance was made at a lower premium than would otherwise have been demanded.

The defendants then proved, by James Sanderson, the witness before sworn and examined on the part of the plaintiff, that, in making the insurance aforesaid, the defendants were not governed by the said printed rates of premium, and did not insure the said mill as a building under the class No. 4 of the said printed rates, though the same premium therein indicated was charged; but that the board, in their discretion, fixed the premium as for an extra risk, considering the frequent accidents to mills, from the circumstance of millers being in the habit of grinding all night; and if the insurers had understood the mill to have been built with wooden instead of stone gable ends, it would have been at their discretion to have charged a higher premium, or to have declined the risk. And the plaintiff's counsel having argued to the jury upon the presumed authority of the Court's opinion upon the second of the aforesaid instructions, moved by the counsel for the defendants, and overruled as aforesaid, that the misrepresentation of the class of the building insured, if found by the jury to be such as above objected on the part of defendants, did not vitiate or avoid the policy, either as a breach of warranty or misrepresentation, unless it had been designedly and fraudulently made, or had induced the defendants to insure at a lower premium than they would otherwise have done; and that, in fact, the insurance was done at the maximum rate indicated by the said printed rates.

The counsel for the defendants thereupon prayed the opinion of the Court, and an instruction to the jury, that if the jury find from evidence that the materials and description of the mill, for the destruction of which this loss is claimed, as it actually existed at the time of insurance, differed from the representation of the same made by the plaintiffs, or their agents, at the time of effecting the said insurance, in this; that the walls at the two ends of the building, *all the way from the eaves to the top of the roof, constituting what are commonly called the gable ends, were constructed of wood instead of stone, and that the risk from fire was greater VOL. II.-D

37

[*39

[Columbian Insurance Company vs. Lawrence.]

with such wooden gable ends than if they had been constructed of stone; it ought to be deemed a material misrepresention, and avoids the policy, whether such misrepresentation proceeds from fraud, or casual inadvertence in the assured; and, in such case, it is not necessary for the defendants to prove further, that a higher premium would have been charged, if a true and accurate representation of the building had been made; nor does it vary the effect of such misrepresentation, that the highest rate of premium stated in the said printed rates was actually charged for the said insurance.

Which instruction the Court refused to give, for the following reason that, under the first of the rules annexed to the said policy, and referred to therein, no variation in the description of the property insured from the true description thereof, not made fraudulently, would vitiate the policy, unless by reason of such variation the insurance was made at a lower premium than would otherwise have been demanded.

Whereupon the defendants prayed the opinion of the Court, and their instruction to the jury, that the said J. W. Lawrence, as the survivor of the said Lawrence & Poindexter, if entitled, upon the principles aforesaid, to recover any thing in this action, is not entitled to recover any thing more than a moiety of the said loss. Which instruction the Court also refused, and the defendants excepted.

Messrs. Jones and C. C. Lee, for the plaintiff in error, made the following points.

1. In order to fulfil either the general law of insurance against fire, or the contract of insurance in this case, or the averments of the declaration; the interest of the insured in the freehold estate that constituted the particular subject of insurance, should have consisted in a substantial ownership and proprietary right, legal or equitable; whereas nothing appears from the paper-muniments, which the plaintiff *relied on as the sole evidence of such interest, but a naked pretence, or mere colour of title.

*40]

2. If any technical estate, equivalent to an insurable interest, appeared, yet its essential quality, quantity and condition, were either positively misrepresented by the assertion of unqualified ownership and proprietary right; or were concealed, when a particular disclosure of the nature and condition of the interest was material.

Therefore, whether a total defect of interest appeared, or its essential attributes were either misrepresented or concealed, or the plaintiff failed in proving the more specific averment of interest in the declaration, the defendants were, at all events, entitled to the general instruction, against the plaintiff's right of action, asked of the Court.

3. If these paper-muniments did import, prima facie, any insurable interest, the presumption was absolutely repelled by the facts proved on the other side; showing the supposed title in equity to have been merely nominal or colourable.

Therefore, the direction to the jury, asked by the defendants of

[Columbian Insurance Company vs. Lawrence.]

the Court on this point, should have been granted on the hypothesis of proof therein stated; not being liable to the ob ection stated by the Court, of referring matter of law to the jury. On the contrary, the Court in their positive direction to the jury, that the insured, under the circumstances supposed, had a substantial property in the subject of insurance; trenched more upon the province of fact, than the jury, under the required direction, would have done on that of law.

4. The preliminary tests of the claim of loss, required by the ninth fundamental rule above cited, are strictly in the nature of a condition precedent; and cannot be dispensed with, but by an express discharge; consequently, the evidence or inference of a waiver by implication was inadmissible.

5. The declaration avers an actual compliance with the rule; therefore, no evidence of any dispensation from it, express or implied, was admissible.

6. The circumstances from which such a waiver was in

ferred by the Court in this case, were wholly insufficient to [*41 raise any legal or reasonable presumption to that effect; whereas, from the terms of the Court's direction to the jury, it must have been received by the jury as a positive presumption or inference of law from written evidence. The company were in no manner bound to communicate their reasons for resisting the claim; and their resolution to resist it, notified as it was in general terms to the insured, covered the whole ground; and was just as good notice, if any was required, of one defect as another in the claim.

7. The misrepresentation, of the materials and construction of the buildings insured, was palpable and material; and the direction to the jury, asked by the defendants and refused by the Court on this point, properly referred the fact of misrepresentation, and the circumstances from which its materiality resulted, to the jury; the effect of such misrepresentation, and the result of materiality from the circumstances, to the Court.

s. The first of the said rules above cited, did not reduce the materiality of misrepresentation in the policy to the alternative tests of fraud, or of a consequent reduction in the rate of insurance, as was ruled by the Court: or, if it did, then such reduction in the rate of insurance was a necessary presumption from a lower risk, and was not to be proved, aliunde, as was also required by the Court.

9. The fact, that a premium equal to the highest rate for insurance on the fourth class of hazards indicated in the said printed list of rates, had been paid, was wholly immaterial; and did not, as ruled by the Court, convert the risk itself to one of that class, as on a "slight or timber building;" when the specific description of it in the policy, identified it with the lower risk indicated in the second class of the printed rates; and it turned out, in fact, to be neither of the second nor of the fourth class, but identically of the third: nor did it supply any competent evidence whatever; far less conclusive evidence, as was, in effect, ruled by the Court; that the

[Columbian Insurance Company vs. Lawrence.]

premium was, in fact, accommodated to any higher risk than that specifically described in the policy.

*10. The defendants in the direction asked of the Court to *42] the jury on this point, condescended to the terms of materiality of misrepresentation, and an actual increase of the risk: They, nevertheless, maintain that the description of the risk, in the body of the policy, amounted to a warranty that it was actually of the class of hazards, to which that description specifically referred it. For the plaintiffs in error, were cited, 2 Marsh. on Ins. 787. Id. 15. 118. 2 Caines' Rep. 13. 2 Caines' Cases in Error, 110. 4 Dall. 421. 1 Johns. 351. 3 Dow. 255. 2 Marsh. 811.

Mr. Swann and Mr. Wirt, for the defendant in error, maintained, that the Circuit Court did not err in giving or refusing the charges to the jury as set forth in the several bills of exceptions. They cited Buck & Hedrick vs. The Chesapeake Ins. Company, 1 Peters, 151. 1 Marshall on Insurance, 114, 115. 8 T. R. 13. 2 New Rep. 269. 13 Mass. Rep. 96. Id. 267. 3 Mass. Rep. 133. Phil. on Ins. 85. 128.499. 1 Johns. Rep. 220. 9 Johns. 192. 6 Harris & Johnson, 6 Cranch. 338, 339. 5 Cranch, 100. 109. 2 Sch. & Lef. 712. 13 Johns. 561. 3 Marshall, 221. Doug. 11. Also 1 Chitty on Ins. 317, 318. 1 T. R. 638. Doug. 684. 687. 688.

612.

Mr. Chief Justice MARSHALL delivered the opinion of the Court. This writ of error is brought to a judgment of the Court of the United States, for the district of Columbia, sitting in the county of Alexandria; which was rendered in a cause in which Joseph Lawrence, survivor of Lawrence & Poindexter, was plaintiff, and the Columbian Insurance Company of Alexandria were defendants.

The suit was brought on a policy insuring a mill, stated in the representation and in the policy, to belong to Lawrence and Poindexter, the assured. Pending the suit, Poindexter died; and the suit was continued and tried in the name of Lawrence, the survivor. The verdict and judgment were in favour of the plaintiff below. At the trial, the Court, *on the motion of the defendant's *43] counsel, instructed the jury on several questions of law which were made in the case; to which instructions the counsel for the defendants in the Circuit Court excepted, and the cause is now before this Court on those exceptions.

The plaintiff in the Circuit Court had exhibited his policy, the representation on which the contract of insurance was founded; his proofs of title and of loss, the notice which he gave of that loss, together with the documents which accompanied it, as preparatory to the assertion of his claim against the company; and the proceedings of the company in consequence of that claim, which terminated in a refusal to pay it. The counsel for the plaintiff in the Circuit Court, having thus concluded his case, the counsel for the defendants made three objections to his right of action.

1. That the interest claimed by the plaintiff in the property in