This case is distinguished from Le Roy v. The Park InsuranceCompany in this, that, by one of the conditions of the policy in this case, the representations contained in the survey referred to in the policy, are made part of the policy, and are declared to be warranties. If warranties, it was error to submit to the jury the question, whether the particulars, in which, at thetime when this policy was made, the premises did not correspond with the description, increased the risk or not. The rule of the charge is true of representations, but not so of warranties; these the insurer may insist upon according to their tenor.
To assume, then, that the survey was a mere representation, and submit to the jury the question of materiality, was error, for the policy of this company was issued after this survey was made.
On the question, whether the survey produced was made as a survey by the assured, and intended as the basis of the insurance to be affected, or, on the other hand, whether there was another survey which the plaintiff supposed was the survey referred to in the policy, was in doubt upon the evidence, but that did not warrant an assumption in the charge, that there was no warranty.
If the Market Insurance company made the insurance in good faith, in reliance upon the survey produced on the trial, while the plaintiff supposed another survey was referred to, it may be true that the minds of the parties did not meet in any contract of insurance.
A new trial may throw more light upon that question.
The judgment must be reversed, and a new trial ordered; costs to abide the event.
Judgment reversed. *Page 61