tion was a breach of the warranty and avoided the contract.

The judgment will therefore be reversed, and the cause dismissed.

I. In general, 27.

II. Time contemplated, 30.

III. Temporary disuse; effect of making repairs, alterations, etc., 32.

IV. Physical conditions constituting compliance with provisions as to pumps or hose, 34.

V. Physical conditions constituting compliance or noncompliance with provisions as to keeping barrels, casks, tanks, and buckets available, 35.

I. In general.

In many of the cases the provisions relating to the means of extinguishing fires in the building insured are, by virtue of their express terms or otherwise, held to be warranties.

United States. Sayles v. Northwestern Ins. Co. (1856) 2 Curt. C. C. 610, Fed. Cas. No. 12,422.

Arkansas.-Mechanics Ins. Co. v. Thompson (1893) 57 Ark. 279, 21 S. W. 468; Southern Ins. Co. v. White (1893) 58 Ark. 277, 24 S. W. 425; UNION MARINE INS. Co. v. HIGH (reported herewith) ante, 24.

California.-Cowan v. Phenix Ins. Co. (1889) 78 Cal. 188, 20 Pac. 408. Illinois. Aurora F. Ins. Co. v.

Eddy (1868) 49 Ill. 106.

New York.-New York Belting & Packing Co. v. Washington F. Ins. Co. (1863) 10 Bosw. 428. Washington.

Port Blakely Mill Co. v. Hartford F. Ins. Co. (1908) 50 Wash. 657, 97 Pac. 781.

Wisconsin.-Copp v. German American Ins. Co. (1881) 51 Wis. 637, 8 N. W. 127, 616.

Thus, it will be observed that in the reported case (UNION MARINE INS. CO. V. HIGH, ante, 24) an agreement, in consideration of a reduced premium, that a fire extinguisher should be carried on the insured automobile, was held a promissory warranty; and the fact that a fire extinguisher carried on the car had been exhausted in extin

guishing a fire in the machine, and that the owner had been unable to have it recharged prior to a second fire, which consumed the car, was held not to take the loss out of the operation of the above provision, and the fact that the extinguisher might not have been effective if present was held immaterial.

And in Southern Ins. Co. v. White (1893) 58 Ark. 277, 24 S. W. 425, the insured's agreement to keep one barrel full of water and two buckets within 10 feet of the gin stand was held a promissory warranty. And to same effect is Mechanics Ins. Co. v. Thompson (1893) 57 Ark. 279, 21 S. W. 468.

And in Port Blakely Mill Co. v. Hartford F. Ins. Co. (1908) 50 Wash. 657, 97 Pac. 781, a provision, "Warranted by the assured that due diligence will be used that the automatic sprinkler system shall at all times be maintained in good working order," was held to be in the nature of a promissory warranty; though the burden of proving a breach thereof was held to be upon the insurer, and the burden was held not to rest upon the insured to prove performance of such promissory warranty as a condition precedent to his right to recover.

And in New York Belting & Packing Co. v. Washington F. Ins. Co. (1863) 10 Bosw. (N. Y.) 428, statements in a policy insuring a two-story and attic frame factory, reading: "Said buildings are warmed by steam, water on each floor with hose," were held warranties.

And in Cowan v. Phenix Ins. Co. (1889) 78 Cal. 181, 20 Pac. 408, it was stated that an engagement that so many buckets of water should be kept by the insured on any floor of a building is a promissory warranty; but this point was not involved in the case.

And in Copp v. German American Ins. Co. (1881) 51 Wis. 637, 8 N. W. 127, 616, the statements were held to be promissory warranties, in the nature of conditions subsequent, where the application stated that it was to be considered as a warranty, and the policy provided that special reference was had to the application, which was made a part of the policy, and a warranty, and also provided that if any application was referred to in the policy, it should be considered a part of the contract, and a warranty, and that any false representations or any omission to make known every material fact should avoid the policy, and there was a statement in the application that there was a forcing pump on the premises, designed for putting out fires, and an agreement by the insured to have it at all times in condition for use, with a proper supply of hose, and it was held that any substantial breach of these stipulations would defeat the policy; and the question whether it had been proved that there was a force pump on the premises, designed expressly for putting out fires, and whether it was at all times in condition for use, was held to be for the jury.

And in Sayles v. Northwestern Ins. Co. (1856) 2 Curt. C. C. 610, Fed. Cas. No. 12,422, where the policy declared that it was made and accepted with reference to proposals and conditions thereto annexed, and that a failure to observe or comply with any of the proposals or conditions should render the policy void, and one of the conditions provided that whenever a policy was made and issued upon a survey, description, or representation of certain property, such survey, description, or representation should be taken and deemed to be a part and portion of the policy, and a warranty, as fully as if the same were therein written, and a survey was produced, bearing the same date as the policy with reference to which it was issued, it was held that statements in such survey that there was a good forcing pump in the factory to be insured, designed expressly for protection against fires, and at all times in con

dition for use, and stating that it was in the basement, and was so geared that it could be put in operation outside of the mill, were warranties.

But, in Daniels v. Hudson River F. Ins. Co. (1853) 12 Cush. (Mass.) 416, 59 Am. Dec. 192, where the policy declared that it was made and accepted in reference to the terms and conditions thereto annexed, which were to be used and resorted to in order to explain the rights and obligations of the parties, and provided that if any person insuring any building or goods should make any misrepresentation or concealment, the insurance should be void, and the application contained inquiries as to whether there were a good forcing pump and cask of water in each room of the insured building, it was held that the insured's answers to these questions were not warranties, requiring an exact and literal compliance, but were representations, and, as such, must have been substantially true. Chief Justice Shaw said that there is undoubtedly some difficulty in determining by any simple and certain test what propositions in a contract of insurance constitute warranties and what representations; that one general rule is that a warranty must be embraced in the policy itself; that if, by any words of reference, the stipulation in another instrument, such as the proposal or application, can be construed as a warranty, it must be such as to make it in legal effect a part of the policy; and he stated that the clause in the policy involved in that case had none of the characteristics of a warranty, because it was not in its own terms, or by reference to the terms and conditions annexed, an absolute stipulation for the truth of any existing fact, or for the adoption of any precise course of conduct for the future, making the truth of such fact, or a compliance with such stipulation, a condition precedent to the validity of the contract or the right of the assured to recover on it; that the policy was made in reference to the terms and conditions annexed, but that these were referred to not as conditions precedent, but as statements to be

used and resorted to in order to explain the rights and obligations of the parties in cases not otherwise expressly provided for.

And in Jones Mfg. Co. v. Manufacturers Mut. F. Ins. Co. (1851) 8 Cush. (Mass.) 82, 54 Am. Dec. 742, where the policy contained a proviso that "if the representations made" in the plaintiff's application did not contain a just and true exposition of all the facts and circumstances, the policy should be void, and the representations referred to were contained in written answers made by the plaintiff to printed questions annexed to the application, among which was the question whether a cask of water and buckets were kept in each story of the building to be insured, it was held that the statement in the application that a cask of water was kept in the third story of the building was prospective and in the nature of a representation; and that, if this statement was untrue, it was a matter of defense, and that the burden of proof was on the defendant company to prove it.

And in Cady v. Imperial Ins. Co. (1873) 4 Cliff. 203, Fed. Cas. No. 2,283, an agreement in a fire insurance policy on a factory that a forcing pump and hydrants should be kept in good working order, and that there should be a good supply of water casks and buckets in each room, was held not a warranty, and it was held sufficient if it was substantially complied with so far as it was executory and related to the future; and the policy was held not avoided where the pump was in good order at the date of the policy, and shortly afterwards it was discovered to be out of order, and for several months attempts were made to put it in order by sending it to the maker, and also by working on it in the factory, and it was finally put in good order, but subsequently was rendered inoperative by freezing.

In Fuller v. New York F. Ins. Co. (1903) 184 Mass. 12, 67 N. E. 879, where there was a clause in a policy that "it is understood and agreed that the automatic sprinkler system is in complete working order, and in further consideration of reduction in rate

it is hereby made a condition of this policy that the assured shall use due diligence that such equipment shall continue to be maintained in complete working order during the full term of this insurance," it was held that the parties did not intend this to be either a warranty or a condition precedent to the right to recover for loss, but only a condition similar in effect to the other express conditions, a breach of which the insurer might set up in defense and prove; and that consequently the burden was on it to show that the plaintiff had failed to use due diligence in maintaining the sprinkler system in complete working order. after the policy had taken effect.

The burden was held to be on the plaintiff to show that the sprinkler system was in complete working order at the time the policy was taken out, and the evidence was held to justify a finding that, at the date of the earliest policy sued on, the system had been installed and put in complete working order; the court stating that, without reviewing the evidence at length, it was enough to say that there was testimony that the system had been installed and put in complete working order before the date of the earliest policy, and that it was inspected and repaired with such frequency as to justify a finding that it was in complete working order at the date when each of the several policies sued on was issued.

In Texas State Mut. F. Ins. Co. v. Richbourg (1922) Tex. Civ. App. —, 243 S. W. 590, where a statute provided that a breach of any condition or provision of a fire insurance policy upon personal property should not render the policy void, unless the breach contributed to bringing about the destruction of the property, it was held that a policy insuring a ginhouse and machinery, and providing that it should be null and void upon the insured's failure to place three fire extinguishers at certain locations on the property, was not avoided as to the personalty by a failure to comply with such requirement, where the evidence showed that the plant burned at night and was about destroyed before the

fire was discovered, and it was held that, as the policy was an entire contract, the breach did not avoid the entire policy as to all of the insured property.

In Baker & Hamilton v. Williamsburgh City Fire Ins. Co. (1907) 157 Fed. 280, where the fire followed an earthquake, the policy provided that the insurer should not be liable for "loss caused directly or indirectly by invasion, or by civil author

ity; or for loss or damage occasioned by or through any volcano, earthquake, or hurricane." The court, in holding this provision to relate to the origin of the fire, said: "To sustain the defendant's theory it would be necessary to conclude that the word 'indirectly' is broad enough to cover a contingency arising by the destruction of the means usually available for extinguishing fires; that if the water mains had not been broken, and the means of communication destroyed, and the facilities for extinguishing fires had not been impaired, and transportation facilities had not been disarranged, the fire which destroyed the plaintiff's property might have been extinguished, for then the indirect loss or damage could be held to apply to the absence of the means ordinarily used for fire extinguishment; and so it has been stoutly contended. But as to this, I adhere to the views already expressed in another case; namely, that such language was intended to relate to the origin of fires, and that the exception cannot be extended to those happenings which do not relate to their inception."

In Le Roy v. Park F. Ins. Co. (1868) 39 N. Y. 56, where a survey made in an application for a policy contained a question whether there was a forcing pump in the mill to be insured, which was answered in the negative, followed by a statement that a fountain head or flume above the top of the mill enabled the attaching of a hose which would throw water over the whole building, and there was also a statement that casks of water were not kept in the rooms, but that there was water in every room, led through pipes and faucets, it was held that the question

of the materiality to the risk of the absence of water from the flume and pipes was properly submitted to the jury, the court stating that such a course was proper, except where there was an absolute warranty.

In Fromherz v. Yankton F. Ins. Co. (1895) 7 S. D. 187, 63 N. W. 784, where, upon an application for a policy on property located in a certain building, the agent of the applicant informed the company that all companies represented in Chicago had full lines on the building, or on property of some tenant, and that the building was "fully equipped with sprinklers," and it appeared that both of these statements were untrue, the court refused to sustain the contention that these misrepresentations did not affect the contract under a stipulation in the policy that "this company will not be liable under and by virtue of this policy if there be any omissions, misrepresentation, nondisclosure, or concealment of the title, encumbrances, condition, location, or occupancy of the premises," on the ground that they did not relate to the property insured, but to the building in which it was located; the court stating that the just and reasonable compensation for insuring any property against loss by fire must depend upon the risk assumed, and that this in turn depends largely upon the condition of the property insured.

II. Time contemplated.

It has been held that where a policy was issued on "buildings in course of construction," a stipulation in the application that water tanks are to be well supplied with water at all times should be taken with reference to the state of the building, and required a performance of the conditions adapted to the state of such building, and that such tanks were to be supplied with all reasonable diligence, having reference to the progress of the construction of the building insured; that the plaintiffs were not, under their policy upon the building in the course of construction, required to have at all times, from the first moment the policy issued, "water tanks well supplied with water at all times," in the manner and

to the extent they would have been required to have them had the policy been on a finished building. Gloucester Mfg. Co. v. Howard F. Ins. Co. (1855) 5 Gray (Mass.) 497, 66 Am. Dec. 376.

And in Howell v. Hartford F. Ins. Co. (1874) Fed. Cas. No. 6,780, where the policy declared the application to be a part of the contract, and a warranty, and in answer to the question whether there was a force pump at all times, ready for use, it was stated that one was being constructed to flood every floor, it was held that there was not a warranty that there was a pump on the premises, but merely that one was being constructed; and that the policy was not avoided merely by a delay in constructing the pump beyond a reasonable time, but that the insurer could not avoid the policy on account of a failure to put in the pump without first making a demand upon the insured to comply with his undertaking, and giving notice that the contract would be rescinded if he did not so comply.

And where the insurer's agent, at the time he examined the building to be insured, directed that a certain iron door be put in, and agreed to carry the risk if this were done, but no time was specified in which the door should be erected, it was held that the insured had a reasonable time to comply with the agreement, and that where he had made all reasonable effort to do so before a fire occurred, the absence of the door constituted no defense to an action on the policy. Viele v. Germania Ins. Co. (1868) 26 Iowa, 9, 96 Am. Dec. 83.

In Manufacturers & M. Ins. Co. v. Armstrong (1893) 145 Ill. 469, 34 N. E. 553, a provision of the policy making the completion, within sixty days of certain appliances that were to be installed to guard against fire a condition, the nonperformance of which rendered the policy null and void, was held to have been waived by the statement of the general agent who issued the policy that the applicant would not be required to put in the same within sixty days, in reliance upon which the policy was accepted, notwithstanding that the policy provided

that no agent should have power to waive conditions contained in it. The court stated that the agent had the authority to issue the policy, with or without the condition; that he might have left it out of the policy; and that, having this authority, no reason was perceived why he might not, by contract with the insured, waive a performance of the conditions for such time as he might think proper; and that it would be a fraud on the insured to allow the company to repudiate the agent's agreement upon which the policy was accepted by the insured. Another important factor bearing on the decision was said to be that, from the correspondence which was shown. to have passed between the parties after the expiration of the sixty days for installing the apparatus, and up to the time of the fire, it appeared that the general agent knew that the required conditions of the policy had not been complied with, and yet never intimated that the policy was not in force; the court stating that if the insurer did not regard the policy as being in force, it was its duty to notify the insured and cancel it, and return the unearned premium.

In Houghton v. Manufacturers' Mut. F. Ins. Co. (1844) 8 Met. (Mass.) 114, 41 Am. Dec. 489, where the policy provided that if the representations made did not contain a full and free exposition of all the facts and circumstances, the policy should be void, and one of the representations stated that water tanks were placed in each room, containing water, and that pails were set in each room, and that there was a force pump used to convey water into the "second and third stories," and the policy also contained a clause that if the situation or circumstances affecting the risk should be altered or changed by the agency or consent of the insured or his agent so as to increase the risk, without the consent of the insurer, the policy should be void, the court stated that this was a stipulation and condition without a substantial compliance with which the company, from the time of its happening, would cease to be bound by the contract; and that the legal effect of