The misrepresentation of the condition of the vessel at the commencement of the risk avoids this policy. She was represented as having safely arrived at Ballisidore, and having been clean of her cargo of grain in bulk, on the 24th of September 1847. On that day, neither of these alleged facts existed. The defendants were led into error by this representation, and computed the risk on false grounds. And whenever this happens, it is immaterial, as to the underwriters’ liability, whether the representation be made by the assured or by his agent, and whether it be intentionally false or false from mere mistake and misapprehension of facts. 3 Kent Com. (6th ed.) 282. Hughes on Ins. 347. 1 Phil. Ins. § 537. Bryant v. Ocean Ins. Co. 22 Pick. 203. In the present case, it is not suggested that the misrepresentation was made designedly. And we need not express an opinion upon a point about which writers differ, namely, whether in such a case the policy is avoided on the ground of constructive or legal fraud, or on the ground that a positive representation as to a material fact is as essentially a part of the contract as a warranty is, and that its substantial truth is as much a condition precedent to the insurer’s liability as is the literal truth of a warranty. It is sufficient for this case that the policy is avoided by misrepresentation.
We are also of opinion that the defendants’ other ground of defence is well taken, that the policy does not insure the vessel, if laden with grain in bulk, on a voyage across the Atlantic. At the time of the loss for which this action is brought, the vessel was carrying grain in bulk on such a voyage.
Plaintiff nonsuit.