[Columbian Insurance Company vs. Lawrence.]

is not such a certificate as the condition requires; and such was the opinion of the Circuit Court. The testimony which the Court left to the jury as being sufficient to authorize them to infer a waiver on the part of the insurers of this certificate, consisted of entries on the minutes of the board, with some parol proof.

On the 20th of February 1824, the claim of Lawrence & Poindexter was submitted to the board with the policy and certificate of loss. On the 13th of March, an order was made, requiring the title papers of Lawrence and Poindexter to the Elba mill. On the first of April, copies of the deed from William and George Winchester to Joseph Howard and Joseph Lawrence, of the agreement between Howard and Lawrence, and of the agreement between Lawrence and Poindexter, were laid before the board. On the 16th of April, *51] farther proof respecting the title was required, which was pro

duced on the 22d of the same month.

The opinion of Mr. Jones was taken on the case, which was submitted to the board on the 28th of June, when it was resolved, "that the claim of Lawrence & Poindexter be resisted; and that the secretary furnish them with a copy of this resolution."

The opinion of Mr. Jones turns on the interest of the assured, and on the question whether the loss was fair or fraudulent.

On the 11th of November, inquiry was made whether the board would enter into a compromise, "it being understood that the agreement" "is not to be considered as an admission of the claim ?" Answered "yes."

On the 18th of November, the board passed a resolution declining a compromise, which was communicated to the agent of Lawrence & Poindexter.

On the 11th of December, a farther and more specific proposition for a compromise was made by the agent of the assured, which was rejected by the company.

The secretary of the company was examined, to prove the communications between him and the agent of the assured. When the documentary evidence was exhibited, he informed the agent that he would call a board to decide on the claim. After the board had met and adjourned, he informed the agent that the claim would probably be resisted; that the company thought the interest of the assured was not insurable; that the representation was not faithful: and that Poindexter had set fire to the mill. No objection was made to the preliminary papers. The custom of the board was, if the claim for indemnity was thought just, to refer the preliminary papers to their secretary to see if they were regular. In this case no such reference was made.

From the first presentation of the papers in February, till the passing of the final resolution in June, the claim was pending undetermined before the board, waiting for the advice of counsel. This advice being delayed by the absence and other engagements *52] of counsel, an agreement was entered into with the agent the assured, that if the final resolution should be to resist the clai

[Columbian Insurance Company vs. Lawrence.]

the suit should be put as forward on the dockets as if brought to the intervening April term. This agreement was complied with. All the orders and resolutions of the board which have been stated were communicated by the witness to the agent of the assured; and are the only communications which he was authorized to make.

According to the invariable usage of the board, the sufficiency of the documents offered by way of preliminary proof of loss, as required by the ninth article of the rules annexed to the policy; was not to be considered by the board, till the principle of the claim should have been admitted, and then the course was to submit such documents to the secretary for a special report thereon; in this case the sufficiency of the documents was never discussed or considered by the board, nor referred to the secretary. It never was contemplated by the witness, nor to his knowledge by the board, to waive any compliance with this ninth article. The consideration of the documents offered under it did not regularly come on till the claim should be admitted in principle.

The agent of the assured was present at some of the meetings of the board when the witness was absent. He has understood that on these occasions the communications between them turned entirely on questions respecting the fundamental objections to the claim. The regularity or irregularity of the preliminary proof was never mentioned. The opinion given by counsel was never communicated to the assured or their agent. To have done so, would have been contrary to the rules and to usage.

This evidence was left to the jury as testimony from which they might infer that the preliminary proof, required by the ninth rule annexed to the policy, as indispensable to entitle the assured to demand payment for a loss, had been waived by the underwriters.

It will not be pretended that any expression is to be found either in the resolutions of the board or in the conversations *held by [*53 their secretary with the agent of the assured, having the slightest allusion to this preliminary proof or to the waiver of it. If then the jury might infer a waiver, the inference must be founded on the opinion that the board was bound to specify this particular objection; or that they have taken some step or made some communication, which pre-supposes an acquiescence in the certificate which was offered.

The resolution of the board to resist the claim is expressed in general terms, and consequently applies to every part of the testimony offered in support of it. We know of no principle nor usage which requires underwriters to specify their objections, or which justifies the inference that any objection is waived. We know of no principle by which this preliminary proof should be separated from the other proofs which were required to sustain the claim, and its insufficiency be remarked to the assured. The general resolution of the board was notice to the assured that if they intended to assert their claim in a Court of justice, they must come into Court prepared to support it.

[Columbian Insurance Company vs. Lawrence.]

2. Did the examination of the title and the proceedings of the board respecting it, presuppose an examination of the preliminary proofs, and an acquiescence in its sufficiency?

We think not. The proof of interest, and the certificate which was to precede payment, if the claim should be admitted; are distinct parts of the case to be made out by the assured. Neither of those parts depends on the other. The one or the other may be first considered, without violating propriety or convenience. The consideration of the one does not imply a previous consideration and approval of the other. The language of the ninth rule does not imply that the proof it requires is first in order for consideration. After stating what shall be done by the assured, the rule requires the affidavit and certificate in question; and adds, that "until such affidavit and certificate are produced, the loss claimed shall not be payable." The affidavit and certificate must precede the payment, but need not precede the consideration of the claim.

*The testimony of the secretary, if not conclusive on this

*54] point, is, we think, entitled to great weight. He states the

invariable usage of the office to have been, to consider the merits of the claim before looking into the preliminary proof, which, after deciding favourably on the claim, was always referred to him for examination and report. In this case the decision having been unfavourable to the claimant, no reference was made to him.

We do not think the assured can be presumed ignorant of the standing usage of the office, to which he applied for insurance; or be admitted to found upon that ignorance a claim to exemption from the necessity of producing a document required by the policy, as indispensable to his demand of payment for his loss.

We think the case exhibits no evidence of waiver; no evidence from which the jury could infer it, and consequently that this instruction of the Court is erroneous.

It would have been subject of much regret, had the merits of the case been clearly in favour of the defendants in error, to reverse the judgment of the Circuit Court on account of the non-production of a document which may perhaps be so readily supplied. But the cause must go back on the opinion expressed by the Circuit Court to the jury, that the title proved at the trial agrees with that stated in the offer for insurance.

After the opinions which have been stated had been delivered to the jury, the defendants offered evidence to prove the insolvency of the plaintiffs, so as to disable them from obtaining a legal title; and additional embarrassments on the property; and again moved the Court to instruct the jury, that the assured had not such an interest in the property as entitled them or either of them to recover. This instruction the Court refused to give, being still of opinion that the assured held an insurable interest in the mill. An exception was taken to this opinion.

The additional encumbrances to the title, and the circumstances

[Columbian Insurance Company vs. Lawrence.]

of Lawrence & Poindexter, might constitute additional objections to the representation contained in the offer for assurance; but [*55 do not, we think, disprove an insurable interest in those who were still in possession of the property, and claimed title to it under executory contracts.

The defendants in the Circuit Court then proved that the mill was a square building built of stone to the eaves, that the roof was framed and covered entirely of wood, and that the two gable ends running up perpendicularly from the stone wall to the top of the roof, were also constructed of wood. They also offered evidence to prove the general understanding, that the description of a stone hous covered with wood was not verified or supported by a house whose gable ends were of wood; that the gable ends were understood to be a part of the wall, not of the roof or covering. They then moved the Court to instruct the jury, that if two of the exterior walls terminated in upright gable ends; such gable ends not properly forming, according to ordinary rules and terms of architecture, a part of the covering or roof; it was necessary, in order 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 or the difficulty of extinguishing it; 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 that actual loss was produced by such misrepresentation, or by having gable ends of wood instead of stone.

The Court refused to give this instruction, being " of opinion that it was competent to 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 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."

[*56

To this opinion also an exception was taken. The rule referred to in the opinion requires, that

"Persons desirous of making insurance on buildings should state in writing the following particulars, to wit, of what materials the walls and roof of each building are constructed," &c. "And if any person shall cause the same to be described in the policy otherwise than as they really are, so as the same be charged at a lower premium than would otherwise be demanded, such insurance shall be of no force."

If the Court was correct in the construction of this rule, and of its effect upon the policy, it will become unnecessary to examine their VOL. II.-E

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[Columbian Insurance Company vs. Lawrence.]

opinion, leaving the question whether the property insured was truly described, entirely to the jury.

This rule takes up the subject of describing the property, and provides for it. It requires that the materials of which the walls and roof are constructed shall be truly stated, and prescribes the penalty for a mis-statement. The penalty is, that the insurance shall be void, if the assured shall cause the building to be described in the policy otherwise than it really is, so as the same be charged at a lower premium than would otherwise be demanded.

The rule does not place the invalidity of the policy on an untrue description of the building; but on such a description as shall reduce the premium which would otherwise have been demanded. This was a question of fact which the jury alone could decide.

The rule having provided for the case, and prescribed the precise state of things in which the penalty shall be incurred, we do not think that it could be applied in any other state of things. The jury was of opinion that if the building was untruly described, still the misrepresentation was not such as to cause the same "to be charged at a lower premium than would otherwise have been demanded." If this verdict was against evidence, the remedy was a new trial. This Court is of opinion that the Circuit Court erred in instructing *57] the jury that the interest of the assured in the *property insured is such as is described in the original offer for insurance and in the policy; and also in the opinion given to the jury that the evidence was sufficient to be left to them, from which they might infer that the defendants waived the objections to the certificate and other preliminary proof required by the ninth rule annexed to the policy. The judgment is to be reversed, and the cause remanded to the Circuit Court, that a venire facias de novo may be awarded.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the district of CoJumbia, and was argued by counsel; on consideration whereof, this Court is of opinion that the said Circuit Court erred in this: in instructing the jury that the interest of the assured in the property insured is such as is described in the original offer for insurance and in the policy. And also that the said Circuit Court erred in this in the opinion to the jury, that the evidence was sufficient to be left to them, from which they might infer, that the defendants waived the objections to the certificate and other preliminary proof required by the ninth rule annexed to the policy. Whereupon, it is considered by this Court that the said judgment of the said Circuit Court in this cause be, and the same is hereby, reversed and annulled, and that the said cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facias de novo, and for further proceedings to be had therein according to law and justice.

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