In prescribing the rule for the assessment of damages in the present case, it is necessary to consider the effect to be given to the 17th interrogatory in the application for insurance, and the answer thereto, and also to the clause in the policy as to other insurance. In consequence of these statements in the application and policy as to other insurance, the defendants insist that, under art. 8 of their by-laws, they are liable to pay only such proportion of the loss as the sum insured by them bears to the whole amount insured thereon, taking the same as stated on the face of the policy. That the two policies of $1500 each, held by the assured, did not in fact cover all the property lost by the peril insured against it, seems to us quite clear. Those policies are merely on his “ stock of furniture,” and would not include the loss of $826.84 on paints, oil and varnish. The policy executed by the defendants has a broader scope, being on “ his stock in trade, being mostly chamber furniture in sets, and other articles usually kept by furniture dealers.” To the extent of the articles above named there is not therefore a double insurance and the rule of proportionate *539assessment of the loss among various insurers of the same property cannot apply; and, as to these articles, no remuneration can be claimed except of the defendants.
But it is urged on the part of the defendants that by the recitals in the application and in the policy the plaintiff is es-topped from showing these facts, or taking the position that there was not other insurance to the amount of $3000 upon all the property covered by their insurance. We do not understand that it is alleged that any false representations were fraudulently made as to other insurance, but that, whether this discrepancy may have been inadvertent and unknown to the assured at the time, or otherwise, he can recover no more than the proportional share which would have been recoverable had there been outstanding policies on the entire stock of goods destroyed by the fire.
This leads to the inquiry as to the character of such recitals as to other insurance existing on the property upon which insurance is asked. This subject was somewhat considered in the case of Forbush v. Western Massachusetts Ins. Company, 4 Gray, 337. That case presented the more limited question of the effect to be given to such recitals of insurance elsewhere, in cases where it was literally true at the time of issuing the policy, but ceased to be so long before the loss occurred, or the expiration of the period of the policy under which the plaintiffs claimed to recover the loss. That such representation was not to be taken to be a warranty or stipulation that there should be a good and valid insurance to the amount stated as insured in other companies, during the entire continuance of the new policy, was fully settled in that case. If it is not to have that effect, but, on the contrary, would be fully satisfied by the fact of the actual existence of such insurance for a single day, then it would seem that the only ground for avoiding a policy for erroneously stating the amount of policies held in other companies would be that of a fraudulent misrepresentation.
If the parties intend to limit the liability of the insurers in the new policy to a certain proportion of the loss, to be fixed by the enumeration of certain other outstanding policies, the *540stipulation should be directly made, that such other insurance is to be continued to some future definite period. In the case of Forbush v. Western Massachusetts Ins. Co., although on the face of the policy it was recited that $2000 was insured at the People’s Mutual Company in Worcester, yet it was an insurance that in fact ceased to be valid at the very moment when the policy made by the defendants took effect; yet this fact was held not to diminish the liability of the insurers under the new policy to pay the whole loss.
Independent of any purpose of inserting the amount of other policies, with a view to limit absolutely the liability of the insurers in the new policy to a mere proportional part of any loss that may occur, there are other sufficient reasons for thus stating it on the face of the policy. By section 8 of the by-laws, such new policy is declared to be void, i: unless such other insurance subsists with the consent of the directors, signified by a statement thereof in the policy, or by indorsement thereon signed by the secretary.” So also, where in fact such other policy does exist at the time of the loss, it would diminish the liability to a proportional part of the amount of the loss. Both these objects are effected by an insertion of the amount of other insurances, and without giving to them the effect of a warranty as to other insurance named in the policy. Beyond this, in the absence of all suggestion of fraudulent misrepresentations, we are of opinion that a recital like that in the present case should not affect the party insured, although some portion of the property insured should be found not to have been embraced in any other policy. The case of Denny v. Conway Ins. Co. 13 Gray, 492, did not present this question for adjudication, and the point was not there decided, though made the subject of some remarks in the opinion given in that case.
Judgment for the plaintiff on the verdict.