delivered the opinion of the court, May 5th 1879.
Thomas Horan, by accepting the policy, became a member of the Pottsville Mutual Fire Insurance Company. In his application, *444he warranted his representations of facts and circumstances. Among the statements is, the adjoining buildings, within eight rods, are used for the purpose of private dwellings. The survey, on the back of the application, shows a vacant lot, twenty-six feet wide, between the property to be insured and Hildebrand’s house. No mention is made in application or survey of the small building, called a carpenter shop. That Horan knew the contents of the application when he signed it, seems to be conceded; and there is no pretence of fraud or mistake, unless against the company, and in which the applicant participated. They talked about the shop, and of erecting a house on the vacant lot, and wittingly omitted both in giving the situation and surroundings. The applicant knew as well as the agent knew, that the company acted on a warranty that no building, save dwelling-houses, was Avithin eight rods of the one to be insured, and that the lot on the east side Avas vacant. If they were honest, the shop Avas omitted in the description, because it was to be removed; if the applicant colluded with the agent in making a false statement, he shall not profit by the fraud: Smith v. Ins. Co., 12 Harris 320.
In the printed argument for defendant in error, it is said that, at the time of insurance, a carpenter’s shop stood directly in rear of the house, in very close proximity to it, and admittedly hazardous. If that be so, it was a breach of the assured’s Avarranty, and, by its express terms, the policy was void : Smith v. Ins. Co., supra. In such case defendants’ tAvelfth point ought to have been affirmed. But the evidence of Davidson is, that it had ceased to be used as a shop, before the insurance, and Avas to be removed and used for a dwelling; it was soon after removed.
It is also said that “ it was admitted that the erection of the new building increased the risk;” that fact was conclusively proved. Thereupon, it is urged that the risk of fire had been very much' diminished, by removal of the shop and its change to a dAvellinghouse, and that it was a question for the jury, Avhether the risk had not been as much lessened by the removal as it was increased by the erection of the neAV building. This view was adopted by the court, and so much of the charge as relates thereto, constitutes the eleventh assignment of error. Some respect should be paid to a contract of insurance. Here, the assured warranted that he gave a “ full.and true exposition of all the circumstances in regard to the condition, situation, value and risk of the property;” and the assurer issued the policy on condition that “ if, after insurance, the risk shall be increased by any means Avhatsoever * * * and the assured shall' neglect to notify the company of said increased risk,” such insurance shall be void. The risk was increased by act of the assured himself; the court instructed the jury that notice Avas not given to the company. This instruction is not here for review, and the argument respecting it cannot be considered. How, then, *445coulu there be a recovery on the policy ? Is it according to the spirit of the contract, to say nothing of its letter, to set up the removal of a shop which he had warranted.was not there ? “ The purpose of requiring a warranty is to dispense with inquiry and cast entirely upon the assured the obligation that the facts shall be as represented. Compliance with his warranty is a condition precedent to any recovery upon the contract. It is, therefore, that the materiality of the thing warranted is of no consequence. The assured, by his warranty, engages that, whatever the condition of things when he makes his application, the facts shall be as warranted when the policy attaches.” Per Strong, J., Ins. Co. v. Arthur, 6 Casey 315. It would be hard to hold Horan to the letter of his application, that no shop was-near the house to be insured ; he having promptly removed it, justice demands that the warranty be treated as unbroken when the policy attached; it is unconscionable to use its removal as a diminishing of risk and set-off, against the increased risk from his violation of the conditions of insurance. The company did not undertake to insure the house on the basis that it was “ in very close proximity to” a carpenter shop, and the assured must accept this fact, or the consequences of a broken warranty.
In another view, the contract was made in reference to.the situation and surroundings of the property. For a price paid by one party the other agreed to carry the risk. They did not agree that the assured may build on the adjacent Vacant lot, making an unbroken line of buildings, and remove' a back building. It might be quite easy to satisfy most persons that the removal lessened, as much as the new building increased, the risk, but it would be hard to satisfy anybody that, after such change, the risk was the same as contracted for. The contract provides.- for notice, assent, or cancellation, in case of increase of risk. After the change, the assurer, if notified, might have been willing to continue the insurance, with or without, additional consideration, or might have terminated the policy and refunded a ratable portion of the premium. It is not for the assured alone to change the contract, and the courts cannot do it for him. A setting up of some real- or fancied lessening of risk, as a set-off against the increased risk by building up the vacant lot, could not have been apprehended when the contract was executed. A company which would submit-to- such imposition would soon be over-burdened, and its ■ policies become worthless to their holders.
The proofs of loss are not set out in the paper-book, and the eighth and ninth assignments cannot be considered. The court having instructed the jury that notice was not given to the company, no other assignments require remark.'
Judgment reversed, and a venire facias de novo awarded.