It is not seriously questioned but that the defendants' evidence would have made out a defence but for the concluding sentence of the application. The cases of Burritt v. TheSaratoga County Mutual Insurance Company (5 Hill, 188),Jennings v. The Chenango Company (2 Denio, 75), andWilson v. The Herkimer Company (2 Seld., 53) *Page 382 seem to be entirely conclusive against the plaintiff, unless the clause referred to changes the meaning of the application in such a manner as to render them inapplicable. The question, then, is upon the interpretation to be given to the words "all of the exposures within ten rods are mentioned," in the connection in which they stand in the application. The construction which was put upon them at the circuit was, that they qualified the inquiry contained in the blank form so as to limit it to a statement of only such of the buildings within ten rods of the insured premises as, from their structure or use, or other circumstances, exposed the insured property to injury from fire. The sentence, no doubt, has reference to the inquiry, and is to be construed in connection with it; but, in my opinion, it qualifies it in a sense entirely different from the one supposed by the judge, and in a way much less favorable to the plaintiff. The form of the application, without the additional sentence, might possibly be understood as calling only for the nearest of the buildings within ten rods. The buildings in the closest proximity to the one insured would, of course, be those from which danger would be most readily apprehended, and parties applying for insurance might not unreasonably suppose, that if the distances between these and the insured premises were stated, and the manner of their occupation described, the inquiry would be substantially answered, though the buildings standing behind these and more remote from the subject of insurance, were not mentioned. Several of the reported cases show that such an understanding has prevailed to some extent among insured parties, while the insurance companies have contended for a more strict and literal, and — as the cases show — the true interpretation of the inquiry. It was for the purpose of putting an end to this misunderstanding, and to avoid all questions as to the scope of the inquiry, that this company required the insured to mention all the exposures within ten rods, and not merely the most proximate of them. Taking the inquiry and the *Page 383 added clause together, it will be seen that all the buildings within ten rods are treated as causes of exposure to the insured building. Upon the construction which prevailed at the trial, it would be left to the assured to judge, in the first instance, whether a particular building within ten rods affected the hazard or not; and if some buildings existed within that distance it would always be a question for the jury to pass upon, whether under all the circumstances, any of them were of such a character as to expose the insured property to hazard. The interpretation adopted by the judge would change the inquiry in the application into one by which the insured should be requested to state the distance between the insured building and all such other buildings within ten rods as might expose the insured property to injury from fire, and how the former were occupied; thus leaving it to the applicant to judge what buildings within the specified distance it was proper to mention. But the object of the application was to enable the company to judge for itself what the degree of hazard was which attached to the property offered for insurance, that it might accept or reject the risk, and determine upon the premium to be paid in case it concluded to take the risk. To that end the company required the applicant to state the distances and mode of occupation of all buildings within ten rods of his building. In short, I consider the clause under consideration to be intended as an assertion by the assured that he had, in his answer to the inquiry, described all the buildings within the specified distance.
Another construction has occurred to me as plausible, but it is equally fatal to the plaintiffs. It is to consider the word "exposures" as something different from buildings There are businesses which are carried on out of doors, such as burning lime and brick, making charcoal, boiling in an uncovered arch and the like, which would expose the neighboring buildings to hazard from fire. The primary clause of the application being confined to a statement of all the *Page 384 buildings within the distance mentioned, the company might reasonably enough require the statement of any other things within that distance which might operate as a cause of exposure to the building insured. Again, it may be that the clause was added for the double purpose of including all fixtures which might expose the property offered for insurance, situated within the distance specified, and which would not come within the description of buildings, and at the same time render more certain and unambiguous what might otherwise be considered equivocal in the inquiry about buildings. But I am of opinion that the first interpretation which I have suggested is the most reasonable, and I therefore consider it the best one. I am persuaded that the one which was applied on the trial was erroneous.
The defence which was interposed was, under the circumstances attending the making of the application, most unconscientious, and I should have been willing to find some satisfactory answer to it; but it is of paramount importance that parties should be held to perform contracts as they have made them, and in no other manner. The frequent occurrence of defences of this character have led me to think that it might be well for the legislature to enact that contracts of insurance should be contained in a single instrument, and to prescribe such plain and unambiguous provisions, gathered from the policies in use, as would enable persons desirous of insuring their property readily to see what stipulations they were called upon to assent to.
If the foregoing views prevail with my brethren, the judgment of the Supreme Court must be reversed and a new trial ordered.
ROOSEVELT, J., dissented; all the other judges concurring,
Judgment reversed and new trial ordered. *Page 385