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case that the two cases, of conviction in the one upon repu-
tation, and acquittal in the other upon the actual fact, can
stand together, with no legal conflict or inconsistency.

A further question is made with regard to the admissi-
bility of evidence. The state offered evidence to prove,
and the court finds that it was proved, that the defendant
kept the place in question continuously from about the 1st
of August, 1881, down to and after July, 1882. The com-
plaint charged the keeping of a house where it was reputed
that liquors were kept for sale, as being on the 10th day of
March, 1882, and the state offered evidence that the house
bore that reputation on that day. It was open to the
defendant to show that he did not in fact at that time keep
liquors with any such intent to sell, and thus to show that
the reputation had no foundation in fact and was really a
false one. This made the question of the actual fact a per-
tinent one. On this question the state, having before
proved the continuous keeping of the place by the defend-
ant till the July following the time charged, offered evi-
dence to prove that the defendant actually had a supply of
liquors on hand as if for sale in June of the same year.
This was three months after the time gharged and to which
the state was directing its proof.



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JANUARY TERM, 1888. 419

State 9. Moriarty.

The defendant's counsel objected to the admission of this
evidence on the ground that the fact that the defendant
then kept liquors for sale did not tend to prove that he
kept liquors to sell at a prior time, and especially at a time
so long before, as he might have purchased them in the
meantime, or if he had had them three months before, might
not have kept them Mrith an intention to sell them. It is
obvious that such evidence would not be decisive, and of
course would have far less weight with the lapse of time.
It would not, however, be inadmissible. . The jury would
of course, under the advice of the court, consider the lapse
of time and all the possibilities in the defendant's favor,
and would not be likely to give any undue weight to the
evidence. If the possession of the liquors with an appar-
ent intent to sell them, the next day after the main fact
charged, would have been admissible against the defendant,
it is difficult to see what difference it can make, except in
the weight of the evidence, if the possession of the liquors
had been a week later or a month, or even three months,
especially in connection with proof that the defendant had
kept the place uninterruptedly during all the intervening
time. It is to be observed that the point to be proved, in
support of the reputation of the place, was an actual intent
to sell the liquors that were kept. This matter of intent is
not one of change from day to day, but one of continuance,
and generally for a considerable time precedes the procure-
ment of the liquors. The fact, therefore, that one who has
kept a place for a year has a stock of liquors on hand at
the place as if for sale, creates a probability, more or less
strong, that the intent then existing existed three months
before.
There is no error in the rulings of the court.

In this opinion the other judges concurred.



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420 HARTFORD DISTRICT.

Bennett v. Agricultural Insurance Co.



Benjamin F. BEiirNETT vs. The Agbicxtltubal Iksub-
ANCE Company.

A policy of insurance upon a dwelling-house contained a proTision that
" if the dwelling-house hereby insured shall cease to be occupied as such,
then this policy shall cease and be of no more eifect.'' The house was
described in the application as occupied by a tenant, and was so occupied
at the time of the insurance. The tenant left the house, taking with
him all his furniture, about six o'clock on a certain evening, and the
house was destroyed by fire about two o'clock the next morning. Held
that the non-occupation avoided the policy.

The i>olicy provided that all statements in the application should be ''taken
to be warranties on the part of the assured." The application contained
the following questions and answers: "Q. How many acres of land in
the place?" Ans. "Sixty." Q. "What is the valUe of the land and
buildings?" Ans. "Seventeen hundred dollars." Held, that the par-
ties had made these matters material and that they must be so regarded
whether they related to the risk or not; and that if the answers were
not true in the sense in which they were taken by the parties, there
could be no recovery.

Action on a policy of fire insurance; brought to the
Superior Court in Windham County, and tried to the jury
before Andrews^ J,

Upon the trial the plaintiff offered in evidence the policy
of insurance dated June 14th, 1879, by which the defend-
ants insured the dwelling-house of the plaintiff for two
years in the sum of $500. The policy referred to the appli-
cation as " forming a part of this policy." The application
stated the value of the house to be $800, and contained the
following questions and answers : Q. " How many acres of
land in the place?" Ans. "Sixty." Q. "What is the
value of the land and buildings ? " Ans. " Seventeen hun-
dred dollars." Q. " For what is the house occupied? " Ans.
" DwfeUing." Q. " By whom ? " Ans. " Tenant."

The policy contained the following provisions :

"All statements contained in the application will be
taken and deemed to be warranties on the part of the
assured."

" If any dwelling-house hereby insured shall cease to be



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JANUARY TERM, 1888. 4Sl

Bennett v. Agricultural Insurance Co.

occupied as such, * * this policy shall cease and be of
no more force or effect."

** In case of loss or damage to any building hereby in-
sured the company is liable for such loss or damage to the
whole amount of insurance, provided such amount does not
exceed two thirds of the value of the building. But this
company shall in no event be liable for more than ■ two
thirds the actual cash value of such building at the time
of the loss."

It appeared by the evidence that in the spring of the
year 1880, one Barber moved into the house, as a tenant of
the plaintiff; that the house had then been unoccupied abcrut
a month and a half ; that Barber moved out with his family
and furniture about six o'clock in the evening of August
19th of that year ; and that the house was discovered to be
on fire and nearly consumed between two and three o'clock
of the same night.

The plaintiff offered evidence to prove, and claimed to
have proved, that the value of the dwelling house insured
was $800; and that of the whole farm $1700; and that
there were sixty acres of land in the farm. The defend-
ants offered the evidence of sundry witnesses living in that
neighborhood who testified that in their opinion the house
insured was of no greater value than from $800 to $500-;
and that the value of the whole farm was no more than
from $1000 to $1400. They further offered sundry wit-
nesses, one of whom was a surveyor, who testified as to
the number of acres in the farm. From their testimony
the defendants claimed they had proved that it contained
less than fifty acres. They also offered the evidence of
sundry witnesses acquainted with the business of insurance,
who testified that the risk would be increased by the non-
occupancy of a dwelling house situated as the one named
in the policy was.

No witnesses were called to prove that the statements in
the application as to the value of the whole farm or as to
the number of acres it contained related to the risk assumed
or that they in any way affected it.



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422 HARTFORD DISTRICT.

Bennett Vi Agricultural Insurance Co.

The defendants requested the court to charge the jury as
follows :

1. The •application being referred to in the policy as
forming a part thereof, all the statements contained therein
are warranties on the part of the assured.

2. It is of no consequence whether the warranty is mate-
rial to the risk or not. If untrue there can be no recovery
upon the policy.

3. The statements in the application that the value of land
and buildings is $1700, and that there were sixty acres of
land in the place, are warranties, and if the jury find that
the value of the land and buildings, at the time of making
the application, was less than $1700, or if the jury find that
there were less than sixty acres of land in the place, then
there has been a breach of such warranty, and there can be
no recovery in this action.

4. By the terms of the policy the insurance thereunder
ceased as soon as the house became unoccupied. If the jury
find that the house was unoccupied when the fire occurred,
then there can be no recovery for the loss.

5. If the jury find that the value of the house, at the
time it was insured, was less than $800, the amount stated
in the application, then there was a breach of the warranty
as to the value of the house, and there can be no recovery
in this action.

6. By the terms of the policy the defendants are not
liable in any event for more than two-thirds the actual cash
value of the building insured, and if the jury find that this
value was less than $750 at the time of the fire, then the
plaintiff's recovery in this case must be limited to two-
thirds of the sum that the jury shall find was the actual
cash value of the building.

The judge charged the jury as follows: —

" In this case the application is expressly referred to in
the policy, so that the policy is to be read just as though
the application, its questions and answers, were copied
into it. The statements in the application are warranties,
provided they relate to the risk assumed.



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JANUARY TERM, 1888. 428

Bennett v. Agricultoral Insurance Co.

^^Any statement relates to the risk assumed when it
defines or in any respect limits it. In other words, a state-
ment relates to the risk when the jury can see that if the
statement had been different the contract whereby the risk
is assumed would, in all probability, have been different or
never have been made at all. A statement that relates to
a collateral matter, or one that relates to some mere trivial
thing or to some outside circumstance, or one that is intro-
duced into the policy for some other purpose than to define
or limit the risk, would not be a warranty. If a statement
in fact relates to the risk, whether it affects the risk little
or much, it is a warranty.

" If you find that the statement of the value of the land
at $1700, or of the number of acres at sixty, or either of
them is false, and that they or either of them related to the
risk as above stated, then there can be no recovery by the
plaintiff.

" This presents two questions for the jury. Were the
statements false? and second, did they relate to the risk?
In respect to the land, in deciding the question of value,
you will remember that values are always liable to fluctua-
tion and depend largely on the character and opinion of
men. There was no undertaking that this farm should
always be worth $1700, nor was there any undertaking that
any or all of the people of the town where it is situated
should be of the opinion that it was worth so much. A
man might own a horse of superior speed and blood which
he believed to be worth $1000 ; another man might regard
the horse as worth only $500, and still another only $300
or $100, and all of these men be equally honest. The
owner of such a horse if he wished to insure it would be
likely to state the value at his own estimate. And it would
be hardly just to say that he was guilty of a false warranty
when the other men came into court and stated that in
their opinion the horse was of much less value than the
$1000. You will inquire whether, in answering the ques-
tion, Mr. Bennett told the truth. Did he speak honestly or
did he tell a lie ? Was the land worth to him at that time,



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424 HARTFORD DISTRICT.

Bennett v. Agricultural Insurance Co.

according to his honest judgment, $1700 ? If he answered
the question according to his best judgment and belief, if
there was no intentional over-valuation, then in the opinion
of the court there was no falsity in the answer.

^^In respect to the quantity of land substantially the same
rule may be applied. Was there any over-statement as to
acreage ? Did Mr. Bennett speak falsely, or did he tell the
truth when he made the answer ? It is for you to decide.
If he told the truth then there was no falsity in this behalf.

" If there was no falsehood in these statements, then the
other question does not arise. If on the other hand you find
that cither of the statements — that is, in respect to the
value or quantity of land — was intentionally made too
large, then you will inquire whether they related to the
risk, applying the test that I have already given you, and
if you find that these answers, or either of them, did relate
to the risk, then there can be no recovery.

"If the house had ceased to be occupied within the
meaning of the policy, that defeats & recovery by the plain-
tiff. In this connection you will keep in mind that in the
application it is stated that the house is to be occupied by a
tenant, and this clause of the policy should be construed
according to the ordinary usages of a tenant house. There
was no contract, expressed or implied, that there should be
no change of tenants while the policy was in force. On
the contrary such changes are so frequent that they must
have been contemplated as probable. . During the time
between the retiring of one tenant and the incoming of
another, there may be a vacancy which may continue for a
longer or a shorter time, and may exist in spite of the land-
lord's best efforts to prevent it. Now we can hardly sup-
pose that the parties intended that any fiuch vacancy, how-
ever short, would avoid the policy. Such a construction
seems to us unreasonably straight. The inconvenience of
such a construction is a strong argument against it. It
accords better with the probable intention of the parties to
hold that such a vacancy does not ip%o facto avoid the policy.
Applying this rule, if you find the house had ceased to be
occupied, your verdict should be for the defendants.



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JANUARY TERM, 1888. 426

Bennett v. Agricultural Insurance Co.

" The total amount the defendants can be made to pay is
$500. The defendants only agreed to pay two-thirds of the
cash value, not exceeding $500. So you will inquire what
was the cash value of this house at the time of the fire,
and then find two-thirds of such sum. And this will be the
amount the plaintiff is entitled to receive if it does not
exceed $500. If the two-thirds exceed $500, it will be
your duty to return a verdict for only $500, with interest
thereon from two months after the proof of loss."

The jury returned a verdict for the plaintiff, and the
defendants appealed the case to this court on the ground
that the judge had erred in his charge to the jury and in
refusing to charge as requested.

J. L. Hunter and A. JET. Sawyer^ for the defendants.

1. The application is referred to in the policy as forming
a part thereof. By the express terms of the policy " all
statements contained in the application will be taken and
deemed to be warranties on the part of the asmred.^^ The
statements therefore in the application that the value of the
dwelling-house was $800; that there were sixty acres of
land in the place ; and that the value of the land and build-
ings was $1700 — ^were express warranties on the part of the
plaintiff. Angell on Ins., §§ 140, 141 ; May on Ins., § 156 ;
Qlendale Manf Co. v. Protection Ins. Co.^ 21 Conn*, 19;
Kehey v. Universal Life Ins. Co.y 85 id., 287; Chase v.
Samilton Ins. Co.^ 20 N. York, 67 ; Ripley v. j^na Ins. Co.^
80 id., 186, 168 ; Rohrbach v. Germania Ins. Co., 62 id., 61;
Chraham v. Fireman^ s Ins. Co., 87 id., 69.

2. The statements in the application as to value and num-
ber of acres being warranties, and being in the nature of
conditions precedent, they must be literally true, or there
could be no recovery upon the policy. It is of no conse-
quence whether they were material or not, or for what pur-
pose or with what view they were made, or whether the
assured had any view at all in making them. Marshall on
Ins., 249 ; May on Ins., § 156 ; Duncan v. Stm Ins. Co., 6
Wend., 488; Chase v. Hamilton Ins. Co., 20 N. York, 67;



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426 HARTFORD DISTRICT.

Bennett v. Agricultural Insurance Co.

Ripley v. -dStna Ins, Co.^ 30 id., 163 ; Boyce v. LoriUard Ins.
Co.^ 55 id., 244 ; Hohrbach v. Q-ermania Lm. Co.^ 62 id., 62 ;
Qraham v. Fireman^ 8 Ins. Co^ 87 id., 74 ; Wood v. Hartford
Fire Ins. Co,^ 13 Conn., 544.

3. The statements in the application as to the value and
the number of acres were made in answer to specific in-
quiries in the application. In such cases the question of
the materiality of the statement, in respect to the risk, is
settled by the parties as a matter of contract. A broad
distinction exists between statements made in answer to
inquiries and those made otherwise. In the one case the
answers are made material by the act of the assured, whether
they are in fact or not, while in the other case, even though
the statements are made a part of the policy, they are not
efficacioiis as warranties, although material in fact. Wood
on Ins., 422; Q-raham v. Fireman's Ins. Co.^ 87 N. York, 77;
Davenport v. N. E. Ins. Co.^ 6 Cush., 340 ; Draper v. Charter
Oak Ins. Co., 2 Allen, 569.

4. These statements were material warranties, aside from
the fact that the parties have made them so by their con-
tract. It' was necessary that the defendant should be
advised, by the application, of the real value of the dwell-
ing-house, in order that it might not insure more than two-
thirds its value. It was equally necessary that it should be
advised of the number of acres of land in the place, and
the real value of the entire property, land and buildings, in
order that it should not make an insurance upon buildings
equal to the amount of the real interest of the assured in
the property, ascertained by deducting from its cash value
the amount of all incumbrances thereon. For example:
The incumbrance upon this property was stated to be $800.
If the entire property, land and buildings, was worth but
$1000, as several of the witnesses stated, then the entire
interest of the assured in the property could not exceed
$200, and the defendants could not safely, and would not,
have placed any insurance whatever upon the building.
The answers made to these questions, it will be readily
seen, not only related to the risk, but were material thereto.



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JANUARY TERM, 1883. 427

Bennett v. Agricultural Insurance Co.

In this case they were especially so because the property
was situated in another state.; the agent of the defendants,
through whom the insurance was effected, had, as appeal's
by the application, made no personal examination of the
property, and the company, in issuing the policy, relied
entirely upon the statements made by the plaintiff.

5. The plaintiff was bound to know what the application
contained, and to know that its statements were correct.
jSyan v. World Mutual Life In8. Co.^ 41 Conn., 172. The
court below erred in instructing the jury that if there was
no intentional over-valuation of the property, and no inten-
tional mis-statements in regard to the number of acres, then
there had been no breach of warranty. The judge seemed
to have entirely misapprehended the nature and effect of a
warranty^ and to have regarded it as necessary for the
defendants, in order to show a breach of warranty, to make
proof that would convict the plaintiff of a fraud ; and the
jury must have so understood his instructions.

6. The policy contained a condition rendering it void if
the dwelling-house insured should cease to be occupied as
such. The proof showed that the house was unoccupied
about a month and a half in the spring of 1880, that it was
thereafter again occupied, and that the tenant moved out
about six in the evening on the day preceding the fire, and
that the house remained unoccupied until it was destroyed
by fire about two o'clock the next morning. This was
clearly a violation of this condition of the policy. By the
terms of the policy the insurance ceased immediately upon
the dwelling-house becoming unoccupied, and it was of no
consequence how long it had remained unoccupied, or
whether such vacancy was a reasonable one. ^' The court
can not make a contract for the parties, or give to that made
any other or different effect than its just interpretation war-
rants, however unjust or inequitable such condition may
appear. Thus, where a policy provides that, in case at any
time during the existence of the policy the premises shall
be unoccupied, the policy shall thereby become void, if the
premises are vacant for one day the policy becomes void,



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428 HARTFORD DISTRICT.

Bennett v. Agrictdtural Insurance Co.

and a subsequent loss can not be recovered." Wood on
Ins., 551 ; see also Sonnehom v. Manufacturers* Ins. Co.y 44
N. Jer. Law, 220 ; Paine v. Agricultural Ins, Co.^ 6 N. York
Sup. Ct. R. (T. & C), 619; Thayer v. Agricultural Ins. Co.,
5 Hun, 566 ; Whitney v. Black River Ins. Co., .9 id., 41 ;
Ahrams v. Agricultural Ins. Co., 40 U. Canada Q. B., 175 ;
j^na Ins. Co. ,v. Meyers, 63 Ind., 288 ; Dennison v. Phcenix
Ins. Co., 62 Iowa, 457; McClure v. Watertown Fire Ins. Co.,
90 Penn. St., 277; Herrman v. Adriatic Ins. Co., 85 N. York,
162; Cook v. Continental Ins. Co., 70 Misso., 610; American
Ins. Co. V. Padfield, 78 111., 167 ; Keith v. Quincy Ins. Co.,
10 Allen, 228 ; Ashworth v. Builders' Ins. Co., 112 Mass.,
422 ; Franklin Savings Inst. v. Central Ins. Co., 119 id., 240 ;
Corrigan v. Connecticut Ins. Co., 122 id., 298.

T. M. Malthie, with whom was C. JET. Briscoe, for the
plaintiff.

1. The provision of the' policy with reference to non-
occupation of the premises is as follows : — " If any dwelling
house hereby insured shall cease to be occupied as such,
this policy shall cease, and be of no more force or effect."
This clause evidently refers to a change from the use of the
premises as a dwelling house, or to an intentional abandon-
ment of it for that purpose, continued for some considerable
time. Any vacancy that was incidental to its occupation
as a tenant house, and evidenced no purpose to change its
use or abandon it for that purpose, would not work a for-
feiture of the policy. A mere surrender of one tenant,
without the entry of another, is not such a change or non-
occupation as is contemplated by the policy. May on Ins.,
§§ 247, 248, 249, and cases there cited. The whole question
of occupancy was submitted to the jury, as requested by
the defendants. The court instructed the jury that "if the
house had ceased to be occupied within the meaning of the
policy, that would defeat a recovery by the plaintiff," and in
the same connection read to the jury from the opinion of
this court in Lockwood v. Middlesex Mut. Assurance Co., 47
Conn., 553, 561. In view of the circumstances and of the



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JANUARY TERM, 1883. 429

Bennett v. Agricultural Insurance Co.

very reasonable doubt as to whether the fire did not origi-
nate during occupancy by the tenant, the charge was more
favorable than the defendants were entitled to^ Lounsbury
V. Protection Ins. Co.^ 8 Conn., 469; Hough v. City Fire
Ins. Co.^ 29 id., 11 ; Boon v. -^na Ins. Co.^ 40 id., 58ff.

2. The court, instructed the jury with reference to
warranty substantially as the defendants requested. The
only qualification was that statements in the application, in
order to be warranties, must relate to the risk assumed.
The general rule in regard to what constitutes a warranty
in a contract of insurance is well settled. " Any statement
or description or any undertaking on the part of the insured,
on the face of the policy, which relates to the risk^ is a war-
ranty. Whether a fact, quality or circumstance specified
relates to the risk or is inserted for some other purpose,
must be settled before the rule can be applied." Wood v.
Hartford Fire Ins. Co.^ 13 Conn., 533. See also Billings v.
Tolland Mutual Fire Ins. Co.y 20 Conn., 139; Glendale
Manf. Co. v. Protection Ins. Co.y 21 id., 34 ; Sheldon v.
Hartford Fire Ins. Co.y 22 id., 244. The representations in
the application, which were made an issue in the trial below,



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