Burden of Proof Cross References.

cannot be deemed a "fallen building," the time he escaped from the ruins; and

SECTION VIII,

This company shall not be liable for loss to accounts, bills, currency, deeds, evidences of debt, money, notes, or securities; nor, unless liability is specifically assumed hereon, for loss to awnings, bullion, casts, curiosities, drawings, dies, implements, jewels, manuscripts, medals, models, patterns, pictures, scientific apparatus, signs, store or office furniture or fixtures, sculpture, tools, or property held on storage or for repairs; nor, beyond the actual value destroyed by fire, for loss occasioned by ordinance or law regulating construction or repair of buildings, or by interruption of business, manufacturing processes, or otherwise; nor for any greater proportion of the value of plate glass, frescoes, and decorations than that which this policy shall bear to the whole insurance on the building described.

LIMITA- warehouses convenient or necessary for use in the course of trade. Whitmarsh v. Conway Fire Ins. Co., 16 Gray, 359 (Mass.)

1. Patterns. Policy insuring "fixed and movable machinery, engines, lathes, and tools," covers wooden patterns which, from their size and shape, admit of being applied and managed by the hands of one man. And such patterns are covered, notwithstanding a clause excepting company from liability on "jewels, plate, watches, medals, patterns, sculpture, casts, models, or curiosities, unless particularly specified. Lovewell v. Westchester Ins. Co., 124 Mass. 418.

2. Fixtures. Furniture and movables are chattels, not fixtures, and not covered by a policy on "fixtures." Holmes v. Charlestown Mut. Ins. Co., 10 Met. 211 (Mass.)

3.- Evidence is admissible of a well settled custom, that "store fixtures" in insurance policies applies to tools, furniture, and all movable articles of shops or

4.- Policy insured "building and additions occupied as stores and shoe factory." Held, that the words "store fixtures" excepted by a printed clause, should not be construed in reference to the various consequences resulting from the relations of landlord and tenant, mortgagor and mortgagee, heir and executor, but should be interpreted in the light of popular meaning; that they mean store fittings or fixed furniture peculiarly adapted to make a room a store rather than something else; that they do not refer to fixtures of a factory; that they do not include partitions, doors, windows, boiler fixtures, elevator machinery, steam heating apparatus, gas piping, and speaking tube, but do include a wooden tank, gas fixtures, shelving, counters, and basins. Thurston v. Union Ins. Co. et al., 12 Ins. L. J. 699; 17 Fed. Rep. 127. One of the companies in this case escaped liability for the fixtures in the factory by virtue of the words in its policy not contained in the others, "office or other fixtures." The words "or other" are omitted from new form.

5.- A policy insuring a brick store

Storage Cross References.

against fire, containing an exception of deemed a total loss. Hamburg-Bremen "fences and other yard fixtures, side- F. Ins. Co. V. Garlington, 66 Tex. walks, store furniture, and fixtures," 103. covers a wooden shed or awning in front of the building, supported on pillars sunk in the ground, with rafters extending into the brick wall; but the shelving in the house, and an office enclosed with railing, in one corner of the interior, are "store fixtures," within the meaning of the exception. Commercial F. Ins. Co. v. Allen, 80 Ala. 571; 16 Ins. L. J. 641.

6. Storage. An insurer of goods in a warehouse, by a policy which limits liability to loss affecting the interest of the warehouseman, to whom it is issued, and providing that goods on storage be separately insured, is not liable for contribution to an insurer of goods stored in the warehouse. Home Ins. Co. v. Gwathmey, 82 Va. 923; 1 S. E. Rep. 209; 16 Ins. L. J. 338.

7.- An insurance of a hotel and its furniture, etc., did not cover "goods held on storage." Held, that furniture, etc., stored in the hotel, to be used or consumed in the business of the hotel, was not within the meaning of the exemption. Continental Ins. Co. v. Pruitt, 65 Tex. 125.

8. City ordinance. The parties are deemed to contract in view of city ordinances; and where a building is partly destroyed, and an application to repair is re.fused by the common council, it will be

9. Plate and paintings. Where one condition of the policy provided that "jewels, plate, medals, or other curiosities, paintings and sculpture, shall not be included in any insurance, unless specified in the policy," and among the items of household furniture, for the loss of which the assured claimed, were included five portraits, with their frames, twelve silver table spoons, twelve tea spoons, and a silver sugar tongs; the court charged the jury that, although "plate and paintings," were not covered by the policy, unless specified, yet he doubted whether the condition could be applied to the portraits, or silver spoons specified in the assured's schedule. Moadinger v. Mechanics' Fire Ins. Co., 2 Hall, 490 (N. Y.)

10. Burden of proof. Loss by fire being admitted, the burden of proof is on the company claiming exemption from liability to show that it falls within the exceptions. Portsmouth Ins. Co. v. Reynolds, 32 Grat. 613 (Va.)

11. Cross references. Section one.

Subd. XV. Location and description. Nos. 146, 241a.

Section three.

Subd. I. Repair, rebuild, etc. Nos. 13, 41.

SECTION IX.

If an application, survey, plan, or description of property be referred to in this policy it shall be a part of this contract and a warranty by the insured.

New York Standard Form.

I. WARRANTY.

General rules.

When a warranty.

When no warranty.

When breach of warranty.

When no breach of warranty.

ings in reply to the interrogatory propounded; for what a man ought to have known he must be presumed to have known. But this knowledge must be something more than that, by possibility, a fire so originating might have endangered his house. Dennison v. Thomaston

As affected by acts or knowledge of Mut. Ins. Co., 20 Me. 125.

agent.

Waiver.

3.- In a policy of insurance on "paper mill, $750; on machinery, $1,000, and on

Evidence and procedure in court. stock, $750," this clause followed the de

Questions for jury.

Other special cases.
Cross references.
Statutory provisions.

scription: "Reference being had to application of said Trench for a more particular description and the conditions annexed, as forming a part of this policy; held, that the conditions thus referred to were made a part of the contract, but otherwise with the application, that being referred to for the mere purpose of describing and identifying the property, and not to incorporate its statements into the policy as part of the contract. Trench v. Chenango County Mut. Ins. Co., 7 Hill, 122 (N. Y.)

1. General rules. Earlier cases on whether an application becomes a part of the policy by mere reference. That it did not: Stebbins v. Globe Ins. Co., 2 Hall, 632 (N. Y.); Delonguemare v. Tradesmen's Ins. Co., 2 Id. 589; Snyder v. Farmers' Ins. Co., 13 Wend. 92 (N. Y.); aff'd, 16 Wend. 481 (N. Y.); Wall v. How ard Ins. Co., 14 Barb. 383 (N. Y.); Com- 4.- If the application is referred to in monwealth Ins. Co. v. Monninger, 18 the policy "as forming a part thereof,” Ind. 352. That it did: Sheldon v. Hart-it becomes a part of the contract and ford Ins. Co., 22 Conn. 235. Express stip- warranty. Burritt v. Saratoga County ulation required: Jefferson Ins. Co. v. Mut. Ins. Co., 5 Hill, 188 (N. Y.); Kennedy Cotheal, 7 Wend. 72 (N. Y.); Columbia v. St. Lawrence County Mut. Ins. Co., 10 Ins. Co. v. Cooper, 50 Pa. 331. Barb. 285 (N. Y.); Battles v. New York County Mut. Fire Ins. Co., 41 Me. 208; Pierce v. Empire Ins. Co., 62 Barb. 636 (N. Y.); Jennings v. Chenango Co. Ins. Co., 2 Den. 75 (N. Y.)

2.- The insured, in reply to interroga tory as to the distance of other buildings, omitted to mention certain wooden buildings standing forty-nine feet off from the building insured, on another street, from 5.- A representation, inserted in a which fire was accidentally communicated policy, becomes a warranty. Representato the property insured; held, that if, as tions are part of the proceedings prea man of ordinary capacity, the assured liminary to the contract. Williams v. ought to have apprehended that a fire New England Mut. Ins. Co., 31 Me. 219. originating in said wooden buildings 6. The rule that warranty does not would have endangered his house, then extend to defects, which are known to the he ought to have named those build-purchaser in sales of property, does not

General Rules.

apply to warranties in contracts of insurance. Kennedy v. Insurance Co., 10 Barb. 285 (N. Y.)

7.- A representation precedes, and is no part of the contract of insurance, and need be only materially true; but a warranty is part of the contract, and must be exactly and literally fulfilled, or else the contract is broken and policy becomes void. Glendale Woolen Co. v. Protection Ins. Co., 21 Conn. 19.

therein to the prejudice of the assured. Sayles v. Northwestern Ins. Co., 2 Curtis, 610 (U. S. Cir.); Dilleber v. Home Ins. Co., 69 N. Y. 256; Wilkins v. Ins. Co., 30 Ohio St. 318; and see Planters' Ins. Co. v. Myers, 55 Miss. 479.

fire from them, but not the house; the judge instructed the jury that if the representations as to ashes were substantially untrue; if the habit was to deposit the ashes in the building insured, the policy was void, whether the representation was made intentionally or by mistake; and whether the applicant knew what was done with the ashes or not; but if the ashes were generally and usually thrown out, and only deposited in the building 8.- The application is to be taken as occasionally, and for special or extrapart of the contract of insurance, in the ordinary purposes, or accidentally, it same manner it would be if incorporated would not avoid the policy. Protection in the policy itself. Philbrook v. New Ins. Co. v. Harmer, 2 Ohio St. 452. England Mut. Fire Ins. Co., 37 Me. 137. 10. When policy makes survey and 9. The conditions of insurance an- representations warranties, the court will nexed to a policy and made part of it, re-not extend the effect of any statement quired applications for insurance to be in writing, and to specify divers particulars, all relating to a description of the premises and the uses to which they were applied; and providing that a false description by the assured should avoid the policy; and that when the policy issued upon a survey and description, it should be deemed a part of the policy and warranty on the part of the assured. Held, that other facts stated in the application, not required to be stated therein by the conditions of the policy, or descriptive of the premises, were not made part of the contract, and were to be treated as representations, and not warranties; although the survey was referred to in the policy 12. A policy of insurance expressed in these words: For a more particular to be issued on property described in a description of said premises, see survey certain application, "which is hereby No. 74, furnished by the insured, which declared to be a part of this policy, and a is hereby made part of this policy." But warranty on the part of the" assured, though such statements are to be treated and to be "made and accepted in referas representations, yet they are represent-ence to the written and printed applicaations made material by the parties, and tion whereon it is issued," is not void, if therefore that materiality was not a question for the jury. When, therefore, in reply to a question of "ashes, how disposed of?" the reply was, "thrown out;" and evidence went to show that, before the taking out of the policy, some of the ashes had been placed in a wooden box in kitchen by family of defendant's clerk, for the purpose of softening water to wash with, and what were not wanted for this purpose were thrown out, and that the uniform practice had been to wet down those put in box, but it had been forgotten one night, and the box had been set

11. Where from the ambiguity of the language employed by the insurers it cannot be certainly determined whether certain answers and plans in the application were intended as warranties or representations, the court will construe in favor of the assured, by holding so much of the application as is not declared to be warranty, as representation merely. Wilson v. Conway Ins. Co., 4 R. I. 141.

no written application was ever made; nor if issued upon a defective application, if that application was correct so far as it went. Blake v. Exchange Mut. Ins. Co., 12 Gray, 265 (Mass.)

13. An insurer may prescribe any conditions to his undertaking that he pleases, and if he makes it a condition that a constant watch shall be kept on the premises, otherwise the policy shall be void, if the assured fails to keep a watch, the policy ceases, and no question can be made whether compliance affected the risk in any way; but when such con