I am inclined to the opinion that the objection in relation to the preliminary proofs, is not tenable. An attempt was- made to comply with the contract of insurance in this respect, and afterwards, the defendants, without notifying the plaintiffs that Sexton’s affidavit was insufficient, made an examination and pursued the inquiry to satisfy themselves. The jury might have found this to be a substantial compliance with the terms of the contract, and it would now be unjust to disregard all this, particularly after the jury have said *200the delivery of the additional affidavits to Bitter was a delivery to the defendants.
The “ conditions” attached to the policy contain this clause: “ Payment of losses will be made within three months after the loss shall have been ascertained and proved and the statements made as above.” The circuit judge decided that the preliminary proofs were evidence to the jury on the question of the amount of damages. They were no doubt admissible evidence in the cause, but not on this point, unless made so by the contract. The contract, I think, has not made them so. The defendants had a right to require them to aid in a mutual adjustment of the matter, but it is not stipulated that in case of litigation, they shall be evidence generally on the trial. On this point I think the judge erred.
Another objection is made, that no notice was given of a prior and existing insurance on the same property. The application must be in writing, and the surveyor is declared for this purpose to be the agent of the insured; but it is not declared that he can not be the agent of the company for other purposes. Here notice of a prior insurance was given to Wilcox. Wilcox’s appointment declared him authorized to make surveys and receive applications to the defendants to insure, and receive the money paid on effecting an insurance; and it further states that he has the confidence of the directors. If the jury found him agent for this purpose, which I think they were authorized to do, the notice was sufficient. (Cowen & Hill’s Notes, 1198. 15 Wend. 425. 3 Denio, 244. 7 Hill, 91.)
On the points of warranty and concealment there is more difficulty. In Trench v. The Chenango Co. Mu. Ins. Co. (7 Hill, 122,) the “ conditions” required the application to state the distance of the buildings insured from building within ten rods of it. That clause is not in the condition annexed to this policy. But the application is made part of the policy. The language is, “ reference being had to the application of said” plaintiffs “ for a more particular description and as forming a part of this policy.” (And see Burritt v. Sar. Co. Mu. Ins. Co. 5 Hill, 190 ; Jennings v. Chenango Co. Mu. Ins. Co. 2 Denio, 82; *201Frost v. Saratoga Mu. Ins. Co., M. S. Opinion of Beardsley, J.) notwithstanding too what was said in 7 Hill, 124. In this application, opposite to the usual printed inquiries—“ where situated, of what materials and size of buildings, &c. and relative situation as to other buildings, distance from each, if less than ten rods, and for what purpose occupied and by whom,” is written: “In Johnstown, Fulton county, owned by applicants and contained in a wooden building belonging to Sidney Mills. It containes one chimney, and one stove, pipe from stove passes through chamber floor by means of a stone tube, and enters chimney horizontally in brick. Ashes are taken up and cooled in metallic dishes. Bounded north 36 feet by a dwelling, east by space, south 70 feet to a shed, southeast 50 feet by a dwelling belonging to Mrs. S. Mills. Ins. Mont. Co. Co. west 6 feet by a shed which is bounded west by space.” Several other buildings however in fact, were within ten rods of this building, in which the goods insured were. The circuit judge, on this point, held that if the application was filled up by Wilcox after he had made the survey, acting under his appointment to receive applications and make surveys, the plaintiffs were not responsible for what it did not contain, and that they could not be affected by any omissions, misrepresentations or concealments made by the agent of the company, and refused to instruct the jury to find a verdict for the defendants. To this decision the defendants’ counsel excepted. The “ cofiditions” in this case were not referred to in express terms, but are annexed to the policy, which is the same thing. (Roberts v. Chenango Co. Mu. Ins. Co. 3 Hill, 501. Frost v. Saratoga Mu. Ins. Co. supra.) The conditions here state that “ in all cases the insured will be bound by the application, for the purpose of taking which the surveyor will be deemed the agent of the applicant as well as of the company.” It is difficult to see how the plaintiffs were not affected by any omission of Wilcox under this stipulation. (Jennings v. Chenango Co. Mu. Ins. Co. 2 Denio, 75.) He was the agent of both parties. But the application was the act of the plaintiffs, and I think there can be no doubt but that had this been an insurance on real estate, the statement as to the distance of the *202buildings would have been a warranty. (Trench v. Chenango Co. Mu. Ins. Co. supra, and cases there cited. Frost v. Sara. Co. Mu. Ins. Co. supra.) But it is said that the rule is different in ease of personal property. (Beardsley, J. in Trench v. Chenango Co. Mu. Ins. Co. supra.) If this be law, I doubt very much whether it is applicable where personal property only is insured, and the statement respecting other buildings within ten rods can only refer to those within ten rods of that in which the goods are kept. At all events, I think the question of concealment, and its materiality, should at least have been submitted to the jury. (Burritt’s case, supra, and Frost’s case, supra.) In this respect the circuit judge also committed an error. There must be a new trial.
New trial granted.