It does not appear from the exceptions, and the jury have not found, that the excessive valuation of the property by the plaintiff, in his application for insurance, and in his affidavit or “ proof of loss,” was material to the risk so as to avoid the policy, as a representation, or intentionally false so as to defeat the right to recover, on the ground of fraud. The verdict for the defendant must therefore stand, if at all. upon the ground that the plaintiff had already received more than three fourths of *468what was found by the jury to be the actual value of the property, by means of his adjustment with another mutual insurance company in which he held a policy upon the same building. The instructions directed the jury to return a verdict for the defendant if they found that fact.. This was erroneous.
The plaintiff could not lawfully have, insurance “ on the mutual plan ” for a greater amount than three fourths of the value of the property insured. Gen. Sts. c. 58, § 52. It is not a valued policy; and the defendant is in no way precluded from contesting the valuation which the plaintiff undertook to put upon the property insured. The jury having- found the true value to be only $2213, three fourths of that sum' measures the entire insurable interest of the plaintiff. By the terms of his policy, there being other insurance upon the same property, he is not entitled to recover from the defendant “ any greater portion of the loss or damage sustained than the amount hereby insured shall bear to the whole amount insured on said property.” “ The loss or damage sustained,” which is thus to be apportioned, cannot exceed the amount of the entire insurable interest of the person insured. That is the total amount of risk which was assumed by the two companies; and the proportion of that risk actually insured by the defendant was £§. The building having been totally destroyed, that is the measure of the liability of the defendant. Haley v. Dorchester Ins. Co. 12 Gray, 545.
This liability is several, not joint; and there is no relation between the two companies, in regard to the subject matter of their respective contracts, from which any right or liability to contribution can arise. The liability of each is determined by the terms of its own contract, and is not modified by anything in the contract of the other which may enable the insured to claim or recover for a larger valuation or amount of loss. If, for instance, the other had been a valued policy, so that the insurers were precluded from disputing the valuation agreed on, and thus were held for the full amount insured, that would not affect the measure of the risk which this company assumed, nor the amount of loss for which it is responsible. As to this company, under the statute and the terms of its policy, the whole amount of insurable interest at risk is three fourths of the actual value of the property as found by the jury. That is the sum to be appor*469tioned, without regard to what may have been, agreed on by the contract of the other company, or ascertained by a jury in an action thereon. The ratio of apportionment is also unaffected, being that of the nominal amounts for which the several policies were issued.
Even if the policy from the Whately Company did not contain a like provision for apportionment, it does not appear that it was prior to the one in suit; so that the question is not presented whether a prior insurance covering the entire insurable interest of the assured, without provision for apportionment, would render subsequent insurance on the mutual plan invalid. The question here is, assuming this policy to have been valid at the time of the fire so as to render the company liable for the stipulated proportion of the loss, whether the plaintiff’s right to recover that proportion can be defeated by the fact that he has since then effected an adjustment of his claim under the other policy, from which, by way of compromise or by reason of a greater valuation, or other cause, he has received an amount exceeding what, by the finding of the jury in this case, must be taken to be his entire insurable interest. We are of opinion that the defendant has shown no right to avail itself of the benefit of that adjustment, either to defeat recovery or to reduce the amount to be recovered; but that the liability of the defendant in this particular must be determined by the state of facts at the time of the loss.
The verdict for the defendant must therefore be set aside. But a new trial does not appear to be necessary, if the defendant is content that judgment should be rendered in favor of the plaintiff for its proportion of the loss, ascertained from the value of the property as found by the jury. That value has been settled by the first and second special findings of the jury at the trial, and there is nothing in the case to impeach the correctness oí those findings, or to show that they ought to be reopened, unless the defendant desires to contest the claim further on the ground of overvaluation, either in the application or in the proof of loss. If the defendant should elect to waive further defence upon that ground, those two findings are not to be reopened by the setting aside of the general verdict. Otherwise the new trial will be of the whole case. Exceptions sustained.