stances from the peculiar nature of marine insurance which require to be disclosed, and which do not apply to other contracts of insurance, that is rather in my opinion, an illustration of the application of the principle than a distinction in principle.

Now I come to the facts of the case, which certainly appear to me to be very plain and clear indeed. The office of the London Assurance asks these questions: "Has a proposal ever been made on your life at any other office or offices; if so, where? Was it accepted at the ordinary premium, or declined?" and there is an agreement at the end, “That this proposal and declaration shall be the basis of the contract between the assured and the company." Here is the answer: "Insured now in two offices for £16,000 at ordinary rates. Policies effected last year." It is to be observed that the man proposing the assurance, who knows the facts, does not answer the question. The question was, "Has a proposal been made at any office or offices, if so, where?" He does not state "I proposed to half a dozen offices," which was the truth, but simply says, "Insured now in two offices," which of course must have been intended to represent an answer, and therefore would mislead the persons receiving it who did not look at it with the greatest attention, into the belief that he was insured in two offices, and that they were the only proposals that he had made. "Was it accepted at the ordinary premiums or an increased premium?" His answer is, "At ordinary rates." That is the answer to the second branch of the inquiry, but he has not answered the question, "or declined?" The inference, therefore, which must have been intended to be produced on the mind of the person reading the answer was that it had not been declined. And in my opinion that is the fair meaning of the answer, and the assured is not to be allowed to say, "I did not answer the question." But if it were so, it would make no difference, because if a man purposely avoids answering a question, and thereby does not state a fact which it is his duty to communicate, that is concealment. Concealment properly so called means non-disclosure of a fact which it is a man's duty to disclose, and it was his duty to disclose the fact if it was a material fact.

The question is whether this is a material fact. I should say, no human being acquainted with the practice of companies or of insurance societies or underwriters could doubt for a moment that it is a fact of great materiality, a fact upon which the offices place a great reliance. They always want to know what other offices have done with respect to the lives. But in this case there could be no question as to its materiality. In the first place, we have this in the answer: "The defendant admits that proposals were made to the Clerical, Medical, and General Life Assurance Society, the Scottish Amicable Life Assurance Society for an assurance on his life, and such proposals were declined." There are three

proposals as admitted by the answer declined in the very words of the question; and then he goes on (His Lordship then stated paragraph 15 of the answer, and added): We have an admission by the defendant that no less than five insurance offices had declined to accept his life.

Now, to suppose that any one who knows anything about life insurance, that any decent special juryman could for a moment hesitate as to the proper answer to be given to the inquiry, when you go to the insurance office and ask for an insurance on your life, ought you to tell them that your proposals had been declined by five other assurance offices? is, I say, quite out of the question. There can be but one answer-that a man is bound to say, "My proposals have been declined by five other offices. I will give you the reasons, and show you that it does not affect my life," as he admits it to be by this answer; but of that the office could judge. There can be no doubt, as a proposition to be decided by a jury, that such a circumstance is material. But in fact I have elements here admitted on the pleadings for deciding that question irrespective of the ordinary knowledge of the practice of mankind in respect to these matters which is to be imputed to a good special juryman, because I have here two things admitted, first of all, that the proposal which forms the basis of the contract asks a question, Has a proposal been declined?

Now, where it is to form the basis of the contract it is material, because, as was held in a case in the House of Lords of Anderson v. Fitzgerald, 4 H. L. C. 484, where it is part of the contract, the other side cannot say it is not material. So here we have the proposal as the basis of the contract. It is impossible for the assured to say that the question asked is not a material question to be answered, and that the fact which the answer would bring out is not a material fact.

Further, we have this, that within the defendant's own knowledge the English and Scottish Law Life Assurance Society having accepted his life, which had been duly passed by their medical officer as a firstclass life after examination, and merely reserving a right to decline when they found that one other office, not five, but one, had declined the life, or rather the proposal, at once withdrew from their acceptance and declined his proposal. So that the defendant had the strongest reasons for believing from actual knowledge that the fact of a proposal having been declined was a most material circumstance, and would have the greatest effect on the mind of the proposed assurers.

It seems to me a very plain and clear case, and that the plaintiffs are consequently entitled to judgment.

The order will be-The plaintiffs being willing and hereby offering to return the premium, declare that the acceptance by the plaintiffs of the defendant's life was void and of no effect, that they were not bound to deliver the policy, and that the contract be delivered up to be cancelled.

A SUBSTANTIAL COMPLIANCE WITH THE TERMS OF A WARRANTY IS SUFFICIENT

AURORA FIRE INS. Co. v. EDDY

49 Ill. 106 (1868)

Appeal from the Circuit Court of De Kalb County; the Hon. Theodore D. Murphy, Judge, presiding. Mr. Chief Justice Breese delivered the opinion of the court:

This was an action of assumpsit, on a policy of insurance of four thousand dollars on a three-story flax factory, brought by James W. Eddy against the Aurora Fire Insurance Company, and which resulted in a verdict and judgment for the plaintiff for three thousand five hundred dollars.

To reverse this judgment the defendants have appealed to this court, and several points are made, but one of which we deem important to notice.

The policy contains this clause: "It is expressly agreed, that the assured is to keep eight buckets filled with water on the first floor where the machinery is run, and four in the basement by the reservoir, ready for use at all times in case of fire; also, that smoking shall be strictly prohibited in or about the building."

The application for insurance contained a like agreement.

There was proof that some buckets were in the building, and that sometimes all of them would be above, and sometimes all below.

The court, on behalf of the plaintiff instructed the jury that insurance policies were to be liberally construed in favor of the assured, and strictly construed against the underwriters, and that a substantial compliance with the stipulations of the policy was all that was required on the part of the assured, and if the jury believes, from the evidence, that the plaintiff substantially complied with the stipulation concerning keeping the buckets of water in the building assured, contained in the policy in this case, then that was all that was required of the assured under the stipulation, and on that point the law was with the plaintiff.

This instruction, and one refused for defendants on the same subject is the part of the case we have considered.

As to the first branch of plaintiff's instruction, we have always understood that the rules by which a policy of insurance is to be construed and the principles by which it is to be governed, do not differ from other mercantile contracts, but conditions and provisions in such policies are to be construed strictly against the underwriters, for the reason that they intend to narrow the range and limit of the force of the principal obli

gation; but this was not a condition or proviso in the policy but an express agreement of the assured, to be construed by the same rules by which other agreements are construed. But if the underwriters have left their design or object doubtful by the use of obscure language, the construction ought to be, and will be, most unfavorable to them, but nothing of that kind is apparent here. It was an express agreement of the nature of a promissory warranty that the assured would have the number of buckets specified always filled with water and disposed upon the floors as therein stated.

Appellee has referred to some cases in which a stipulation in a policy that a watchman was kept on the premises does not require that a watchman be kept there constantly, but only at such times as men of ordinary care and skill in like business keep a watchman on their premises. Houghton v. Manf. Ins. Co., 8 Metcalf, 122, and Crooker v. People's Mutual Ins. Co., 8 Cush. 69. These cases go to the extent claimed. Those cases and Hovey v. Amer. Mutual Ins. Co., 2 Duer, 554, proceed upon the ground that the spirit of the warranty was that there should be a competent night watch kept on the insured premises, and one who might be confided in for the faithful performance of such duty.

Other respectable courts have not gone quite to the extent of those cases on this point. In the case of Glendale Woolen Co. v. The Protection Ins. Co., 21 Conn. 19, it was held, where one condition of the policy was there should be a watchman nights, that was a warranty by the assured, that they would keep a watchman in the mill through the hours of every night in the week, and the watchman having been absent on Sunday morning early, when the fire occurred, there could be no recovery on the policy. The court said, where there is no imperfection or ambiguity in the language of a contract, it will be considered as expressing the entire and exact meaning of the parties, and no evidence of extrinsic matters or usages will be received to vary the terms expressed. The case of Sheldon & Co. v. The Hartford Fire Ins. Co., 22 ib. 235, is to the same effect.

In the review of the cases on this subject which time has enabled us to make, we have thought here was a just mean between the extremes of the different cases examined, which, when found, would establish a satisfactory rule.

Whilst this is an express agreement of these parties, and giving force and effect to the well-recognized rules for construing agreements, in which the intention of the parties is an important element, we think the court, in construing it, by the fourth instruction complained of, misled the jury.

It could not have been in the reasonable contemplation of either of

these parties, that in a cold mill, where fires were not allowed in the winter season, buckets of water should be on hand at all times, for this might have been an impossibility; nor could it have been understood that the buckets should be covered up and hid from ready access by piles of flax, or stowed in an out-of-the-way place.

We think, therefore, that the jury should have been told, that, whilst from freezing, or other unavoidable causes, a literal compliance with the warranty might have been impossible, and could not have been in the contemplation of the parties, still it was incumbent on the assured to show that the required number of buckets, in good and serviceable condition, was at the places designated in the agreement ready for instant use. What was a substantial compliance was a mixed question. By the instruction we think the court should have given, as above, the attention of the jury would be fixed upon certain facts necessary to be proved, which when proved, would hold the underwriters and show a compliance with the agreement in its spirit and intent. As given, the instruction must have misled the jury, it gave them too wide a discretion, and was erroneous, and this error must reverse the judgment. Taylor v. Beck, 13 Ill. 386. These remarks render any notice of the defendants' instructions on the same subject unnecessary at this time. The judgment is reversed and the cause remanded.

Judgment reversed.