The first question made on the
argument was whether it was competent for the plaintiff to prove that at the time the application was made for this policy, the agent for the defendants was informed that there was a turning lathe and work bench in the mill. On the trial-such evidence was admitted, though objected to in behalf of the defendants. The ground of the objection is that the evidence offered was to contradict the written contract between the parties, and it is insisted that parol evidence for such purpose could not be admitted. On the other hand it is argued, that this is no contradiction of the terms of the contract, but only the same thing in effect as though it were proved that the agent examined the mill and saw the lathe and work bench, in which case it is contended that although the application fails correctly to represent for what the mill was occupied, yet that the warranty would not extend to such things which were obvious to the senses. The contract between the parties is the policy, conditions and application, which are in writing. (6 Cowen, 576 ; 6 Wendell, 488; 1 Phil, on Ins. 27; 13 Wend. 92; affirmed on error, 16 id. 481.) The application shows that the plaintiff applied for the insurance of a certain sum on his grist mill. One of the conditions, rvhich are part of the contract, requires the application to be in writing, and among other things to set forth for what the building was then occupied; and another is that the insured in all cases will be bound by the application.
The counsel for the plaintiff tó sustain his proposition, referred to several authorities relating to the effect of a warranty of soundness or against defects made on the sale of property. The proposition 'that a general warranty on the sale of property, does not extend to defects which are obvious to the senses, is un*79do notedly correct, even when the contract is in writing. In Schuyler v. Russ, (2 Caines, 202,) the action was upon a written warranty of soundness, and this court held that parol evidence was admissible to show that at the time of the sale the vendor informed the vendee of the defect in question, and also that it was clearly visible. The court cited Finch's Law, 189 ; 1 Salk. 211; to which may be added Long on Sales, 2d ed. 202, and the cases there cited. .Although it may be difficult to assign a satisfactory reason for a distinction in this respect between a warranty in a policy of insurance and one upon a sale of property, there are yet many adjudged cases sustaining the principle, that where the policy on its face is clear and explicit, no parol evidence aliunde can be admitted, to contradict, control, restrain or extend it. (Vandervoort v. The Columbian Insurance Co., 2 Caines, 155; Cheriot v. Barker, 2 John. 346.) In Higginson v. Dall, (13 Mass. R. 96,) Ch. J. Parker, in giving the opinion of the court said, that “policies, though not under seal, have nevertheless ever been deemed instruments of a solemn nature and subject to most of the rides of evidence which govern in the case of specialties. The policy is itself considered to be the contract between the parties, and whatever proposals are made or conversations had, prior to the subscription, they are to be considered as waived, if not inserted in the policy wr contained in a memorandum annexed to it.”
Nor are words spoken by the parties at the time of signing i,he policy to he taken as a part of the contract; as where the underwriter, at the time of signing, said he would not he held if the vessel did not sail by a certain day. The court said, “ The declaration of the underwriter, that unless the vessel should sail by a certain day he would not he bound, should have made a part of the written contract, if he intended to avail himself of it. Parol evidence is not sufficient to give it effect.” (Whitney v. Haven, 13 Mass. R. 172.) In Weston v. Emes, (1 Taunt. 115,) it was decided that parol evidence of what passed at the time of effecting an insurance was not admissible to restrain the effect of a policy. In Atherton v. Brown,( 14 Mass. R. 152,) where property was insured “ on board the Spanish brig New Constitution,” the *80vessel was captured and with her cargo was condemned as American property; it was held that the description in the policy amounted to a warranty that the vessel was Spanish, and that it was not competent for the assured to show that the underwriters were informed, at the time of their subscription, that she was in truth an American vessel, and was to be ostensibly Spanish for the purpose of avoiding capture by the enemy. “ Parol evidence of what was within the knowledge of the underwriters was not admissible.” In Parks v. General Int. Insurance Co., (5 Pick. 34,) the court said: “ Generally, no doubt, the terms of the policy are to be taken as the evidence of the contract; and if they are explicit, all proposals- made, or conversations had, before the subscription, inconsistent therewith, are to be considered as waived, according to a well known rule of construction of written contracts.” In Wiggin v. Boardman, (14 Mass. R. 12,) Parker, Ch. J. said, that “no instance can be found, where the knowledge of the underwriter that a deviation was intended, has been set up in excuse for such deviation, or to avoid the effects of it. Such a fact could only be proved by evidence extrinsic to the policy, and in 'fact contradictory to the terms of it: so that by the rules of evidence, which are said to apply as strictly to these contracts as to deeds, no such fact could be inquired into. If the insured means to protect himself in any adventure, which does not fall within the usual province of a policy, or within the known usage of the voyage he insures, he should insist upon a stipulation which will accommodate his views; and not trust to evidence which the law will not allow to vary the bargain, which is proved by thenvriting.”
In Flinn v. Tobin, (1 Mood. & Malk. 367,) Lord Tenterden, Ch. J. said that “ the contract between the parties is the policy, which is in writing, and cannot be varied by parol. No defence therefore which turns o'n showing that the contract was different from that contained in the policy, can be admitted: and this is the effect of any defence turning on the mere fact of misrepresentation without fraud.”
One essential difference between a representation and a warranty is, that the former is of some matter out of and collateral *81to the contract and making no part of it, while the latter is of some matter appearing on its face. Evidence of a representation is never received to explain the intention of the parties to the contract, but merely for the purpose of establishing a fraud. (Vandervoort v. Smith, already referred to.) In De Hahn v. Hartley, (1 T. R. 343,) Lord Mansfield, Ch. J. said, “ There is a material distinction between a warranty and á representation. A representation may be equitably and substantially ansxvered; but a warranty must be strictly complied with.” “ A warranty in a policy of insurance is a condition or a contingency, and unless that be performed there is no contract. It is perfectly immaterial for what purpose a warranty is introduced; but being inserted, the contract does not exist unless it be literally complied with.” Ashhurst, J. said, “ The very meaning of a warranty is to preclude all questions whether it has been substantially complied with: it must be literally so.” See also The Farmers’ Ins. and Loan Co. v. Snyder, (16 Wend. 481.) And it is a matter of no moment whether the warranty is material or not as regards the risk; it must be complied with before the assured can sustain an action against the underwriters. (The Jefferson Ins. Co. v. Cotheal, 7 Wend. 72.)
A false warranty will vitiate the policy though the loss happens in a mode not affected by the falsity. (Woolmer v. Muilman, 1 W. Black. 427; 3 Burr. 1419.) Not so as to a representation. To avoid the policy it must be false or mistaken in a matter material to the risk; and that is a question for the jury. (The Farmers’ Ins. and Loan Co. v. Snyder, 16 Wend. 481, in error.) “The rule that the express provisions of the policy cannot be varied by proof of any representation is applicable to fire policies as well as marine ones.” (N. Y. Gas Light Co. v. Mechanics’ Fire Insurance Co., 2 Hall’s Rep. 108; 1 Phillips on Insurance, 284.) “ And a condition in a nre, no less than a marine policy, not complied with, defeats the policy, whether it be material to the risk or not, and whether the non-compliance be with" or without the act or privity of the assured.” (1 Phillips on Insurance, 410, ch. 9, § 10; Duncan *82v. Sun Fire Ins. Co., 6 Wend. 488; Fowler v. Ætna Ins. Co 7 id. 270.)
The question then recurs, do the application and conditions annexed to the policy in this case make part of it ? for if not, then without doubt the plaintiff under the evidence was clearly entitled to recover. If the application is to be regarded merely as.a representation, there is no evidence that it was either false or inaccurate in a matter material to the risk.
I take it to be an admitted principle in the law of insurance as well as in the law operating upon other contracts, that separate papers may, by express stipulation, be made part of the contracts. (13 Wend. 92.) The policy in question recites that Harvey Jennings (the plaintiff) was a member of the Chenango Mutual Insurance Company, and bound and obliged himself, &c. and also secured the company the sum of $200,10, the amount of the deposite or premium for insuring the sum of $1334 unto him on the following property, viz. $1334 on his grist mill. Reference being had to the. application of said Harvey Jennings for a more particular description, and the conditions annexed, as forming a part of this policy. This stipulation, it seems to me, makes the conditions annexed to it and the application as much a part of the policy as if they had been written on its face; and such facts therefore as are stated in. the application must be regarded as having all the effect which an express warranty inserted in the body of the policy would have.
If I am not mistaken in this, I think it would be difficult for any one to see any legal reason why the principle that the noncompliance with an express warranty on the part of the assured avoids the policy should not be applied in all its strictness in this case. The warranty then not having been strictly complied with, there is no contract. One of the conditions is that the application shall state where the property is situated and/or what occupied ; its relative situation as to other buildings ; distance from each, if less than ten rods; for what purpose occupied, See. Another condition is, that such applications may be made either by the applicant or by a surveyor; and that in all cases the. insured will be bound by the application. A still further condi *83tion declares that if any person insuring any property in this company shall make any misrepresentation or concealment in the application ; or if after the insurance is effected the risk of the property shall he increased, &c. such insurance shall be void and of no effect. The application represents the building insured as a “ grist mill” without any other designation of the purpose for which it is occupied; and its relative situation as to other buildings is thus stated: “ This mill is bounded by space on all sides.”
I do not think the representation as to the purpose for which the mill was occupied is falsified by the fact that a work bench and tools were kept in the mill for the purpose of keeping it in repair. I have no doubt but that the plaintiff might, without incurring the danger of forfeiting his policy, place in the mill suitable materials and tools to make and keep up the ordinary repairs' of the building. (Dobson v. Sotheby, 1 Mood. & Malk. 90.) But here other mechanical operations were carried on by the turning lathe and work bench than to repair the mill.
As it respects the location of the mill in reference to other buildings, the application contained a clear misrepresentation, which I think renders the policy void upon the well settled principles to which I have adverted. At the same time it cannot be denied but that their application to this case operates with great severity upon the plaintiff, and is well calculated to lead to a serious doubt, whether the intentions of the parties and the interests of justice were duly regarded in the establishment of the rule that matters of mere description should, in this class of contracts, be considered an express warranty, without regard to their materiality in respect to the risk. Here the mistake is proved to have been the consequence either of the ignorance, carelessness or bad faith of the agent of the defendants. He filled up a printed blank application furnished by the defendants to be subscribed by the plaintiff, who probably neither had or pretended to lfave any information or knowledge of what such paper ought to contain in order to render the policy *84available, but relied in that respect implicitly upon the agent sent out by the defendants.
Having, however, come to. the conclusion that the law of the case is as above stated, I am bound to say that the decision of the learned circuit judge was erroneous, and that a new trial must be had upon that point, It is unnecessary therefore to examino the other points in the case. The costs must abide the event.
New trial granted.