The first point raised upon the exceptions, that the defendants were not liable for the goods for sale on commission, was not pressed in the argument. They were within the express terms of the policy.
The second, we think,- cannot be maintained. It is that there was a warranty of the value of the goods, and that this warranty not being true, the policy was avoided. With a strict technical warranty, an exact compliance is doubtless requisite, though on this subject there has been far too much adherence to the letter and consequent sticking in the bark. Though the word “ warranty ” is used, we must look at the whole contract to find whether a strict warranty is inuenued by the parties. The “ survey is made part of the policy and warranty on the part of the assured.” But the covenant and agreement of the survey is, that it is a just, full, *328and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property to be insured, so far as the same are known to the applicant and are material to the risk; so that taking the clauses together, the warranty is not of the literal truth of the facts, but ’ that they are true, so far as they are material to the risk. That this was an open policy, seems to be clear, as well from the subject of insurance, as from the terms of the contract. The subject of insurance is merchandise to be sold from time to time at auction, the amount of which must be varying necessarily from day to day. Nor can the statement of the exact amount be material, even if it were practicable, as by the terms of the contract the insurers are not liable in any event for more than three quarters of the cash value of the property insured at the time of the loss. In looking at the conditions of insurance which are referred to and made part of the policy, the same result would be reached No. 4 of the conditions is, that a false description by the assured of a building insured or of its contents, or in a valued policy, an overvaluation shall render void a policy issuing upon description or valuation. The condition is not extended to open policies, but expressio unius est exclusio alterius. We think the law was correctly stated by the presiding judge, and judgment must be entered on the verdict.
Exceptions overruled.