Assuming the facts to be uncontradicted that the survey was a valid and effective paper, and that the same was a warranty, the defendants asked the court to charge, that, as there was no water in the flumes or trunk at the time of the fire, and had not been for five months prior thereto, so that none could be thrown over the building or on the wheels, the conditions of the survey and policy in respect to that fact were violated by the plaintiffs, and they could not recover. If the defendants had requested the law to be thus charged, if the jury should be of opinion that the survey had been delivered by the plaintiffs as a valid instrument, and if they should find the facts respecting the absence of water to be as claimed by the defendants, a fair question would have been presented. Two objections upon the facts, however, are found in the *Page 58 case, against the propriety of this request in its present form: First, the plaintiff Le Roy, as well as the witness Howard, testify, in substance, that the paper signed on the occasion testified to by the insurance agent, as signed by Le Roy, was expressly declared by the agent to be intended as his private memorandum merely; that it was never read by him, Le Roy, and that it had been altered in its date, and that it was not the paper offered in evidence. (See Rowley v. Empire InsuranceCompany, 36 N.Y. 550; Plumb v. Cat. Insurance Company, 18 id. 392.) The defendants were not justified, in the face of this evidence, in assuming that this was a valid survey binding on the plaintiffs, and in asking for a charge as to the law, excluding the right of the jury to decide upon the disputed fact. It is a serious question whether, under Rowley's case just cited, this survey in every respect was not the act of the company rather than that of the plaintiff.
Another objection arises from the time when this occurrence took place. The insurance contract was fully completed in October, 1860, and the policy then delivered, to take effect from its date. The policy was sent to the plaintiffs, and there was no agreement on their part, that this delivery was to be conditional upon the procuring of a survey. The agent did not then make any such claim, nor did he on the trial. He simply says, that, whenhe sent the policy (without condition), he also sent a survey to be filled out and returned. When the policy was sent without qualification or condition, the contract was complete and obligatory. The rights of the parties were fixed by the papers as they then stood. A subsequent survey, condition or warranty, was entirely inoperative. For these reasons the defendants can take no benefit from the request under discussion.
The defendants made four other requests to charge, of which numbers two, five and six are based upon the same idea. They assume the existence and validity of the survey, that there has been a violation of the facts represented to exist, without allowing the jury to pass upon either branch of the case, and ask a legal conclusion in favor of the *Page 59 defendants. For the reasons already given, this claim cannot be sustained.
The judge submitted to the jury the question of the materiality to the risk of the absence of water from the flumes and the pipes, which, in any aspect, except that of an absolute warranty, was the proper question to be submitted, and was the question raised by the answer. (Grant v. Howard Insurance Company, 5 Hill, 10; Townsend v. North-western Company, 18 N.Y. 168.)
The defendants requested the judge to charge, that leaving the mill open and unwatched, made the risk greater and avoided the policy, and that the leaving of paper cuttings in the mill, produced the same effect. These objections have no weight. Paper cuttings would naturally and properly be found in a paper-mill. Whether carelessly or negligently used, or how far carelessness was to be charged in leaving the mill unwatched, and what was to be its effect, were questions for the jury. The defendants, if they wished attention to these points, should have asked that the questions of fact be submitted to the jury, under proper instructions from the court. This they did not do.
Judgment should be affirmed.
Judgment affirmed. *Page 60