[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 170 The plaintiffs, in their application for insurance, represented their works to be in good condition and their machinery in good repair. Upon the trial, evidence was given tending to show, and perhaps showing, that this was a misrepresentation. Upon this ground the judge was asked to nonsuit the plaintiffs. This he declined to do; but he charged the jury that if, at the time the representations were made, the plaintiffs knew that the works were not in good condition, or if they made the representations in ignorance of the fact that the works were not in good condition, yet, if the representations were material to the risk, and were, in fact, untrue, the plaintiffs were not entitled to recover. The charge was not excepted to, and was, in fact, unexceptionable. The question whether the representations, in relation to the condition of the works, were untrue, *Page 171 was a question of fact for the jury to decide; so, too, the question whether, if the representations were untrue, they were made with knowledge of the fact that they were untrue, or under the mistaken belief that they were true; and so, again, the question whether, if the representations were untrue, but innocently made, they related to matters material to the risk. All these were questions for the jury and were properly submitted to them.
It was made a condition in the contract of insurance that if after insurance effected the risk should be increased, by any means whatever within the control of the assured, it should render the insurance void. The plaintiffs had represented that there was a good forcing pump, designed expressly for protection against fires, and at all times in condition for use.
It appeared upon the trial that the bulk-head, at the pond which supplied the factory with water, which was of wood, being out of repair, was taken down, and a new bulk-head, constructed of stone masonry, was substituted in its place. While this was being done, the water was turned off and the pump rendered useless. It was insisted by the defendants' counsel that, by making this change, the plaintiffs had materially increased the risk, and thus rendered the insurance void. Upon this ground, also, the court was asked to nonsuit the plaintiffs. The nonsuit was refused, and, upon this point, the court charged the jury that the defendants had assumed the risk of making ordinary and necessary repairs; and if, in making such repairs, the supply of water had been necessarily interrupted, and there had been no unreasonable delay in making the repairs, the interruption would not avoid the policy; but if, on the other hand, the supply of water had been unnecessarily interrupted, and the risk thus increased, the plaintiffs could not recover. To this part of the charge, and to this only, the defendants excepted. It was said upon the argument, and perhaps with truth, that "the upshot of this charge was, that the plaintiffs *Page 172 had a right, if the old bulk-head was ruinous, to remove it and build a new one of stone, although the pump was thereby totally disabled and the risk of fire increased."
This doctrine I understand to have been distinctly asserted by this court in this very case, when before it upon a former occasion.
[The learned judge here quoted from the opinion then delivered by JOHNSON, (now) Ch. J., which is hereinafter given at large, and then continued:]
There can be no doubt, I think, 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, or 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. 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 common and ordinary mode, including the right to make all proper and reasonable repairs.
But it was insisted, on the trial, that the removal of the old bulk-head and the substitution of a stone structure in its place was an alteration and not a mere repair. The court was accordingly requested to charge the jury that, if an entirely new bulk-head was constructed in place of the old one torn down, of different materials and in different form, designed as an improvement upon the old one, then it was not a case of ordinary repairs. In the refusal so to charge there was no error. The substitution of a new bulk-head for one that had become useless by decay was certainly a repair, and not the less so because, in making the repair, the owner thought fit to make use of a more durable material than had at first been employed. *Page 173
All that the court refused to do was to charge, as matter of law, that the substitution of a new bulk-head for an old one was not a case of ordinary repair. At the most, it could only have been required to submit the question to the jury; and this in fact was done, for, without deciding whether the new bulk-head was to be regarded as a repair or an alteration, the court instructed the jury that, if by any means whatsoever within the control of the assured, except in regard to reasonable and necessary repairs, any change had been made in the condition of the building or the machinery therein, or in the apparatus for the extinguishment of fires, whereby the risk had been increased, the insurance was void. This was certainly enough. The jury were left, without restriction, to inquire whether anything had been done, beyond the making of reasonable and necessary repairs, whereby the defendants' risk had been increased, with the instruction that, if the result of this inquiry should be in favor of the defendants, they were entitled to a verdict. This was all that the defendants had a right to claim. The judgment should be affirmed.