In most respects the law of warranty and representation is the same in fire as in marine insurance. A warranty is a part of the contract; and if it is broken, there is no valid contract,

(w) Young v. Washington Co. Ins. Co. 14 Barb. 545.

(x) See Dobson v. Sotheby, 1 Moody & M. 90. Where a fire policy was conditioned to become void if the building insured should be used for the purpose of carrying on or exercising any trade, business, or vocation, denominated hazardous, or extra-hazardous, or specified in the memorandum of special rates, and the memorandum referred to mentioned, among other things, "houses, building or repairing," it was held, that these words, taken in connection with the policy, must be understood in reference to carrying on the trade of house-building, or house-repairing, in or about the building insured, and that they did not apply to repairs made upon the building itself. Grant v. Howard Ins. Co. 5 Hill, 10; O'Neil v. Buffalo Ins. Co. 8 Comst. 122; Jolly v. Baltimore Equitable Society, 1 Harris & G. 295; Allen v. Mutual Ins. Co. 2 Md. 125,128; Lounsbury v. Protection Ins. Co. 8 Conn. 450; Billings v. Tolland Co. Ins. Co. 20 id. 180.

(y) Whitehurst v. Fayetteville Ins. Co. 6 Jones, 852.

(yy) Diehl v. Adams County Ins. Co. 58 Penn. St. 443.

1 Franklin Ins. Co. v. Chicago Ice Co. 36 Md. 102, 121; Rann v. Home Ins. Co. 59 N. T. 387; James v. Lycoming Ins. Co. 4 Clifford, 272. See Matson v. Farm Building Ins. Co. 9 Hun, 415.

and it makes no difference that the thing warranted was less material than was supposed, or was not material at all. (z) l A warranty may be for the present or for the future. It may be also, although of the present and affirmative, a continuing warranty, rendering the policy liable to avoidance by a non-continuance of the thing warranted to exist. The nature of the thing warranted generally determines this question. (a) 2 Thus a warranty that the roof of a house is slated, or that there are only so many fireplaces or stoves, would generally, at least, be regarded as continuing; but a warranty that the building was a certain distance from any other building, would not cause the avoidance of the policy, if another house should be built within the distance, without any act of privity of the insured. (b) 3

(z) See cases passim.

(a) See Blood v. Howard Ins. Co. 12 Cush. 472. A description of a house as occupied by a particular person, is not a warranty that he will continue to occupy it. Joyce v. Maine Ins. Co. 46 Maine, 168. See also, Prieger v. Exchange Ins. Co. 6 Wis. 89.

(b) See Alston v. Mechanics Ins. Co. 4 Hill, 829. A statement in a notice of alterations by the assured, that a machine put up by them on the premises is designed "for burning hard coal," will not be considered an agreement to burn hard coal only, or not to use other fuel, should it become necessary, and can be used without increasing the risk. Tillou v. Kingston Ins. Co. 7 Barb. 670. In the application for insurance, referred to in the policy as forming part thereof, it was stated thus: "There is one stovepipe passed through the window, at the side of the building. There will, however, be a stove chimney built, and the pipe will pass into it at the side." It seems that this amounted to a warranty that the chimney should be built within a reasonable time. Murdock v. Chenango County Ins. Co. 2 Comst. 210. Statements which are made a part of the policy, and are prospective, as, that water casks shall be kept in an upper

1 That a policy does not become invalid unless the contract distinctly so provides, see National Bank v. Hartford Ins. Co. 95 U. S. 673; Mutual Ins. Co. v. Coatesville, 80 Penn. St 407; Wilkins v. Tobacco Ins. Co. 90 Ohio St. 317. Thus a condition in a policy that incumbrances will vitiate it, unless the insurer assents to such in writing, does not apply to such as are created without the insured's assent. Green v. Homestead Ins. Co. 82 N. Y. 517. As to the construction of a warranty by the assured that certain facts were true, "so far as the same are known to the applicant, and are material to the risk," see Redman v. Hartford Ins. Co. 47 Wis. 89. A warranty that the risk shall be "detached at least one hundred feet" means that no building such as will increase the hazard is to be within that distance. Burleigh v. Gebhard Ins. Co. 90 N. Y. 220. See Arkell v. Commerce Ins. Co. 69 N. Y. 191, that a building fifty feet from the risk is not "contiguous."

2 Thus a declaration that a watchman is kept on the premises is a continuing warranty, which is broken by his exclusion by an officer levying an execution, Ballston Spa Bank v. Ins. Co. of N. A. 50 N. Y. 45; so of an answer that there was "no regular watchman, but one or two hands sleep in the mill," Blumer v. Phoenix Ins. Co. 45 Wis. 622; 48 Wis. 535; and that the "machinery was regularly oiled with lard and sperm oil by the engineer and miller," Redman v. Hartford Ins. Co. 47 Wis. 89. But a reply "no stoves used " is not a warranty that stoves shall not be used at all, Aurora Ins. Co. v. Eddy, 55 Ill. 213; nor is a warranty that stoves and pipes are well secured broken by kindling a fire in a stove after a partial removal of a pipe, Mickey v. Burlington Ins. Co. 35 la, 174.

3 Where an application contained a warranty that the statements were full and true, "so far as the same are known to the applicant," the fact that there were more buildings within a certain distance than as stated in the application is no breach, without proof that the applicant knew that fact. Wilkins v. Germania Fire Ins. Co. 57 la. 529.

* Where an application by a town for insurance on a school-house stated, that the ashes were taken up in metallic vessels, which were not allowed to stand on wood with ashes in them, and that the ashes, if deposited in or near the building, were in brick or stone vaults, and concluded with a memorandum that "if ashes are allowed to remain in wood, the assurers will not assume the risk," and there were no vaults of brick or stone, and the ashes were generally deposited on the ground at a distance from the building; but the boy employed to take charge of the building, for two or three weeks before the fire, without orders, placed the ashes in a wooden barrel in a shed adjoining the school-house, it was held that the insurers were not liable. (c)