Although the condition or defeasance upon which the defendants rely is put into the form of an express stipulation on the part of the assured, inserted in the policy, and declaring that, in case of a misrepresentation in a matter known to the assured and material to the risk, it shall be void; this is little, if anything, more than the law itself would declare, in case of such false representation proved.
The alleged false representation is contained in the answer to the sixteenth question in the application. It is difficult to determine what is meant by the first part of that answer. One inquiry is not answered at all — that respecting the watch-clock. The inquiry was, “ Is a watch kept upon the premises during the night?” The answer certainly fell short of answering affirmatively to the whole question, that is, that a watchman is kept there during the whole night, or during every night. And it does not aver that any watchman is engaged, distinct from workmen. There being nothing but the term “good” applied, “a good -watch,” our opinion is, that it is equivalent to “ suitable,” “ proper,” adapted to the exigency of the *305case. The inquiry is not as to watchman, or watchmen; the more generic term “watch” embracing the various modes of watching such a factory. It was a factory the machinery of which was driven by water; no steam was used; it was not a manufactory of metals, or one that required the use of fire.
Upon an examination of the bill of exceptions, it appears to us, that there were several points ruled positively as matter of law, which should have been left to the jury; and this on several grounds.
In the first place, if there was not an absolute stipulation that a watch should be kept during the whole of every night in the week, such a watch as would be necessary and proper to the safety of such an establishment against fire, then it was a question of fact whether the watch actually kept was or not a good and suitable watch. Crocker v. Peoples’ Mutual Fire Ins. Co. 8 Cush. 79.
If there is a real difference between the requirement of a watch, immediately after a working day, and Sunday, which is a day of rest, then a watch might be ■ deemed good and adequate on Sunday night, which might not be after a working day. The causes of danger of fire in a factory, we suppose, are lamps and stoves, after work is done; friction, arising from the great velocity and irregular action of working machinery ; spontaneous combustion ; incendiaries; and lightning. The last, of course, no watch would affect; the three first, perhaps the greatest, would be likely to disclose themselves within a few hours after the close of work, and therefore would seem to exist in a less degree on Sunday night. If there was ground to except Saturday night, when the workmen, charged as watchmen, examined the premises after the close of business, having an interest in the safety of a building in which they slept; or if there was ground to except Sunday night, after a day in which no work had been done ; then it was incorrect to charge the jury, that it was the duty of the assured to have a person to keep a good watch in the building during the whole of Saturday and Sunday nights, otherwise they could not recover.
But suppose the sixteenth question and answer, by their proper *306construction, could be held to be a representation that the plaintiffs had been accustomed to keep, and would in future keep, a watch on the premises every night during the week, including Sunday and Saturday, still the stipulation that this was á just and true exposition is not absolute, but only sub modo ; the contract is, that is, so far as they are known to the assured, and are material to risk. The question therefore is, not only whether the assured was substantially to comply with his stipulation that the representation is true and just, but whether such compliance was material to the risk. This is a question of fact, to be decided by the evidence.
The insurer may prescribe any conditions to his undertaking, that he pleases, and if he makes insurance on condition that a constant watch shall be kept on the premises, otherwise the policy shall cease and be void, then if the assured fails to comply with the conditions, his policy is to cease, and no question can be made whether compliance affected the risk in any way. But when such condition is qualified by the limitation, that it is a failure dependent on the question whether it is material to the risk, it opens that question in each particular case.
Exceptions sustained