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the provisions was that, so far as the representations set forth usages and practices observed in the factory as to the mode of conducting the business, and as to the precautions taken to guard against fire, they were not only an affirmation that the facts were true at the time, but, in effect, a stipulation that, so far as the insured and all those intrusted by him with the care and management of the property were concerned, such modes of conducting the business would be substantially observed, and such precautions would substantially continue to be taken during the continuance of the policy.

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

It has been held that a temporary breach by an insured of his warranty that due diligence will be used that the automatic sprinkler system shall at all times be maintained in good working order will not prevent a recovery if, at the time of the loss, it was in good working order, and the breach had nothing to do with the loss; at least, where there is no express provision in the policy for its becoming void for such breach, while such provisions are found in connection with other conditions and warranties. Port Blakely Mill Co. v. Springfield F. & M. Ins. Co. (1910) 56 Wash. 681, 28 L.R.A. (N.S.) 593, 106 Pac. 194.

And in Cummer Lumber Co. v. Associated Mfrs. Mut. F. Ins. Corp. (1901) 67 App. Div. 151, 73 N. Y. Supp. 668, affirmed in (1903) 173 N. Y. 633, 66 N. E. 1106, where the policy provided that it was agreed that it was issued at the rate of premium charged, fixed, and determined, on condition that the insured should use due diligence to maintain in complete working order at all times during the full term of the insurance, the automatic sprinkler system now in use, and that no change should be made in such system without the consent in writing of the company, it was held that a recovery on the policy was not precluded because the sprinkler system had frozen and become inoperative, it appearing that a fire occurred.

before the insured could have the system repaired. The defendant urged that, by reason of the sprinkler system being out of order, the risk was increased, and that the repairs in the system constituted a change, vitiating the contract; but the court stated that the contract, fairly and intelligently read, contemplated that the system. might get out of order, and provided for this contingency by requiring the insured to use due diligence to restore it to its normal efficiency; that the provision that there should be no change did not relate to changes in pipes, fixtures, etc., but to the system, and that there had been no change in the system.

And it has been held that a warranty in an insurance policy that the insured will use due diligence that the automatic sprinkler system shall at all times be maintained in good working order is not broken by the temporary disconnection of the system, for the purpose of making extensions to it, where the work of making the extensions is prosecuted with due diligence. Port Blakely Mill Co. v. Springfield F. & M. Ins. Co. (Wash.) supra.

And where the policy provided that if the risk was increased with the knowledge of the insured, and he should neglect to notify the insurer, the policy should become null and void, but also contained a clause permitting the making of repairs and alterations, it was held that there was no increase of risk which avoided the policy, where the insured closed its factory for a short time to make repairs, so that no use could be made of a steam pump and hose, which were in the factory for the purpose of extinguishing fires. Brighton Mfg. Co. v. Reading F. Ins. Co. (1887) 33 Fed. 232; Brighton Mfg. Co. v. Fire Asso. of Phila. (1887) 33 Fed. 234. The court in the first case stated that, even if the stoppage of the machinery was held to have increased the risk, there was no covenant or undertaking on the part of the insured that the devices for the purpose of extinguishing fires should be kept or maintained in the factory, and that the insured undoubtedly had the right to remove them if

he saw fit. In other words, that there was no obligation on the part of the insured to keep the force pump and hose in the factory for the purpose of protecting the property against fire.

In Firemen's Ins. Co. v. Appleton Paper & Pulp Co. (1896) 161 Ill. 9, 43 N. E. 713, where a policy insured a mill and additions, including, among other things, automatic sprinkler systems, and gave permission to make alterations, additions, and repairs to the building and machinery, and provided that the insurer should not be liable for loss or damage if the risk was increased by any means within the control of the insured, an instruction was held correct which, in effect, told the jury that, under the provisions authorizing the making of alterations and repairs, the insured was authorized to extend the sprinkler system then in the mill, even to the extent of tearing out the old system and supplanting it with a new one, provided he exercised ordinary care in so doing, and did not unnecessarily, or for an unnecessary length of time, increase the risk under the policy; and that if, at the time of the fire, the mill was unequipped with a sprinkler system, this would constitute no defense if the absence of such system was due to the making of repairs and alterations, and ordinary care was exercised in making them, and the insured did not unnecessarily, or for an unnecessary length of time, increase the risk of fire under the policy. The court stated that the objections to the instructions were that the sprinkler equipment, being a part of the insured property, could not be removed without avoiding the policy, and that the permission given to make alterations and repairs to the building did not authorize any change in the sprinkler system; but said that the sprinkler equipment was merely described as a part of the property insured, and that there was no condition or stipulation that it should be kept or maintained, and that it was not different from any other property described in the policy, and that, if the existence of the sprinkler equipment was a condition of the risk, this might have been easily provided for, but that the policy contained 23 A.L.R.-3.

no condition of that kind, and that the contract could not be given the effect of a warranty that the sprinkler equipment should remain in the building during the life of the policy, so that its removal was not a breach of a warranty. With respect to the contention that such alterations and repairs might be made as could be accomplished without in any manner increasing the risk, but that this was the limit of the right in this respect, the court stated that this was not a fair construction of the provision giving a right to make repairs; that the permission was not confined to the making of such alterations and additions as did not increase the risk, but that it was to make any alterations and repairs which the insured might choose to make; that if the risk was not to be increased in any degree beyond the risk in the ordinary operation of the mill without such permission, the stipulation would be of practically no benefit, because such work necessarily increases the risk; that the only reasonable construction was that the insured could not increase the risk further than necessary in making the alterations and repairs; that the permission to make alterations included the right to alter and extend the existing sprinkler system, and that the jury had found that the work was not negligently done, so as to avoid the policy. under the stipulations against the increase of risk.

And in Port Blakely Mill Co. v. Royal Ins. Co. (1911) 108 C. C. A. 586, 186 Fed. 716, where the policy contained a provision by which the insured warranted that due diligence would be used that the automatic sprinkler system should at all times be maintained in good working order, and also contained a clause permitting the making of repairs, and the doing of such work, and use of such material and products as might be incidental to the business, "any prohibition of the same contained in the printed conditions of this policy being waived," it was held that the insured merely warranted that it would use due diligence to maintain its automatic sprinkler system in good working order.

The court said that if, in making additions to or extensions of the plant, or alterations therein, permitted by the policy, it became necessary to move or disconnect the sprinkler system or any part thereof, it could not, in the nature of things, be kept in good working order during the time of temporary suspension for those purposes, and that therefore, in the nature of things, it could not be maintained in good working order "at all times;” and that the evidence was sufficient to require a submission to the jury of the question whether the insured had used due diligence to keep the sprinkler system in good working order, there being testimony that the entire system was divided into several divisions, and that, in reconstructing the building, it was necessary to take one of these divisions down, so that it was useless as a means of protection from fire for about three weeks, and that, at the time the fire occurred, it had practically been reconstructed and made ready for use.

And in Townsend v. Northwestern Ins. Co. (1858) 18 N. Y. 168, where the policy contained a condition that if the risk should be increased by any means whatsoever within the control of the insured, it should render the policy void, and the insured had represented that there was a good forcing pump geared to the water wheel of the mill, designed expressly for protection against fire, and at all times in condition for use, it was held that the insurer assumed the risk of the making of ordinary and necessary repairs, and that if the bulkhead at the pond, which supplied the factory with water, became out of repair, and was taken down, and the old wooden bulkhead was replaced with one constructed of stone masonry, and the supply of water had necessarily been interrupted, the policy would not be avoided if there was not an unreasonable delay in making the repairs. The court stated that there is no doubt that where there is no express provision in the contract involving a relinquishment of the right to perform the ordinary acts of ownership which are usually exercised by owners over their own

property, by restricting the party insured as to what he may do upon his own property, he is authorized, without vacating his policy, to make any repairs which may be required to render the premises useful for the purposes to which they are devoted; that it is not to be presumed, in the absence of any express agreement on the subject, that when he effects an insurance on his building, the owner deprives himself of the right to use it in the ordinary way, including the right to make all proper and reasonable repairs. And it was held that the substitution of a new bulkhead for one that had become useless by decay was a repair, and that it was not the less so because, in making it, the owner thought fit to replace the old wooden bulkhead with one of durable stone masonry.

In Phoenix Assur. Co. v. Munger Improved Cotton Mach. Mfg. Co. (1898)

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It has been held that where there was a representation that there was a force pump in the insured building, the condition was complied with by the presence of a force pump, although there was no hose provided to be attached and used in extinguishing fires, since the representation did not include a hose by implication. Peoria M. & F. Ins. Co. v. Lewis (1857) 18 Ill. 553. The court said that a hose might be an exceedingly useful appendage in case of a fire, but that buckets and other means could be used to extinguish the fire, where a supply of water was furnished within the building by a force pump, and that the insurer had no right to add a hose to the representation, and avoid the policy for a want of it.

And in Gilliat v. Pawtucket Mut. F. Ins. Co. (1866) 8 R. I. 282, 91 Am. Dec. 229, where the application contained a question reading, "What are the facilities for extinguishing fire?" and the insured answered, "Force pump, and abundance of water," it was held that this was not a warranty by the insured that the pump should, at all times during the life of the policy, be in good working order; that if the answer was considered a warranty, it should be strictly construed, and that his engagement should not be extended by construction to include what was not necessarily implied; that the question asked nothing as to the future, and that the policy was not avoided on account of the force pump not being in good working order at the time the fire occurred.

And in Sayles v. Northwestern Ins. Co. (1856) 2 Curt. C. C. 610, Fed. Cas. No. 12,422, where the survey on which the policy was issued, and the diagram which accompanied it, showed that a dam and water wheel were connected with the factory to be insured, and stated that there was a good forcing pump in the factory, at all times in condition for use, and that it was geared so that it could be put in operation from outside of the building, this was held a warranty, and the insurer was held entitled only to a bare and literal compliance therewith; and it was held that as there was no stipulation that the power was of any particular kind, or derived from any particular source, although the insurer, by reason of the survey on which the policy was issued, might suppose that the power would be from a water wheel, nevertheless the warranty was satisfied where steam power sufficient to operate the pump was furnished. And it was held that the warranty that the pump was at all times in condition for use could not be construed to mean that it should continue in a condition for use after a fire broke out on the premises, but that at most it meant that the pump should be in a condition for use at all times when not rendered useless by fire, and the warranty was held not broken because the pump became dis

abled at some time during the progress of the fire.

In New York Belting & Packing Co. v. Washington F. Ins. Co. (1863) 10 Bosw. (N. Y.) 428, where a policy insuring a two-story and attic frame factory contained a clause, "Said buildings are warmed by steam. Water on each floor with hose," these statements were, held a warranty, so that nothing more than a literal fulfilment could be required by the insurer; and there being evidence that, in common parlance, the floors were considered to include only the principal floors in the upright part of the building, it was held that there was fair ground for interpreting the policy as not requiring water or hose to be kept in the basement or in the attic of the building; and it was held error to refuse to submit the case to the jury, where, in addition to the above evidence, there was also testimony that there were facilities by means of which water could have been thrown on all floors of the building.

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

In Southern Ins. Co. v. White (1893) 58 Ark. 277, 24 S. W. 495, the insured's agreement to keep in the same room within 10 feet of the gin stand, one barrel full of water and two buckets, was held a promissory warranty; and the policy, which provided that it should become void if the insured had concealed or misrepresented any material fact or circumstance, was held avoided by failure to keep the barrel of water and two buckets within 10 feet of the gin stand; and the fact that the agent told the insured that the application was a mere matter of form, and did not amount to anything, was held not to relieve the insured from complying with the promissory warranty.

And in Mechanics Ins. Co. v. Thompson (1893) 57 Ark. 279, 21 S. W. 468, where there was an affirmative statement that the insured would agree, as a condition of the insurance, to keep in the same room, and within 10 feet of the gin stand, one barrel full of water

and two buckets, it was held that he had failed to perform the promissory warranty, where it appeared that there was a barrel in a room about 20 or 30 feet from the gin stand, and another about 7 or 8 feet from the gin stand in still another room, and that, on the night of the fire, cotton was piled all over the floor up to the door next the latter barrel, and the door was closed with a bale of cotton, and it was not shown where the buckets were, or that the barrels were filled with water when the fire occurred.

In Aurora F. Ins. Co. v. Eddy (1868) 49 Ill. 106, where there was an express warranty that the insured was to keep a stated number of buckets filled with water at certain points in the insured flax factory, ready for use at all times in case of fire, an instruction was held erroneous that the policies were to be liberally construed in favor of the insured, and strictly construed against the underwriters, and that a substantial compliance with the stipulations in the policy was all that was required on the part of the latter, and that if the jury, from the evidence, believed that the plaintiff substantially complied with the stipulations concerning keeping the buckets of water in the building insured, that was all that was required, and that on that point the law was with the plaintiff, it being held that the jury should have been told that while, 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 insured to show that the required number of buckets in good and serviceable condition were at the places designated, ready for instant use; and the question of what was a substantial compliance was held to be a mixed one of law and fact. The court stated that it could not have been in the reasonable contemplation of either party 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; that neither could it have been understood that the buckets

should be covered up and hid from ready access by piles of flax, or stored in an out-of-the-way place.

In Houghton v. Manufacturers Mut. F. Ins. Co. (1844) 8 Met. (Mass.) 114, 41 Am. Dec. 489, where one of the representations stated that tanks were placed in each room, containing water, and that pails were set in each room, it was held that there must be a substantial compliance with the representation; and it was stated that by a substantial compliance the court meant the adoption of precautions, not exactly those stated in the application, but such as were intended to accomplish the same purposes, and which might be reasonably considered equally or more efficacious; and that when it is represented that casks of water with buckets are kept in storage, if a reservoir is placed above, with pipes to convey water to each story, and found by skilful and experienced persons to be equally effective, this would be a substantial compliance. With reference to the statement that water casks were placed in each room, the court said that the affimative answer would be literally true if a small vessel having the shape and bearing the name of a cask were so kept; but that it would not be a full and just statement, nor a substantial compliance with the undertaking; but that the undertaking required a substantial compliance by keeping a cask of water of a size adapted to the required security, and holding a sufficient quantity to extinguish a sudden fire beginning to kindle in the story.

In Delaware Ins. Co. v. Harris (1901) 26 Tex. Civ. App. 537, 64 S. W. 867, where the application required the insured to keep three barrels of 48 gallons' capacity, filled with water, and two buckets with each barrel, at all times in the gin room of the plant insured, and this requirement was complied with during the time the gin was in operation, it was held that the failure to keep water in the barrels at the time of the fire was not such a breach of the contract as would prevent a recovery, where it appeared that, at the time of the fire, the gin was not in operation, and had not been

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