l. insurance : over-valuation. I. The defendant moved the court below for judgment on the special verdict of the jury because it is inconsistent with the general verdict, and gnc]g fac(-s wlxiClx defeat plaintiff’s right to recover.
■ This motion was overruled; and this ruling is assigned for error. It is claimed by defendant, that, by the special verdict, it appears that plaintiff made such false representations and over-valuations of the property as by its terms avoided the policy. The jury find the building to be of the value of $200.
The application of plaintiff fixed its value at $300. Without inquiring whether this is over-valuation or simply the result of a difference of opinion in regard to the value, we conclude, under the provisions of the policy, it is no defense to a recovery thereon.
By its terms a recovery for the loss of the building can be had only to the extent of two-thirds its cash value. The valuation in the application in no manner fixes defendant’s liability, for it is not two-thirds of that value which by the terms of the policy defendant is to pay in case of loss, but two-thirds of the cash value at the time *333of the loss. Neither would this valuation have the remotest influence upon defendant in taking the risk, and in no way could fraud or deception have been practiced by the plaintiff by an over-valuation.
The defendant, in writing upon the risk, assumed a liability to be determined as to the amount, by two-thirds the value of the property at the time of loss thereof,- if any should occur. The valuation in the application is not in the nature of an appraisement or of an agreement, and defendant is in no way bound thereby. According to the express provisions of the policy, “ the amount of the loss or damage is to be estimated according to the actual cash value of the property at the time of the loss.” The only effect of an over-valuation and over-insurance would be to increase the premium received by defendant. If, in issuing policies of this form, defendant’s agents and officers do not encourage over-valuation and over-insurance, they have ability to resist temptation not usually found among men. It is the policy of underwriters to require the assured to carry a part of the risk upon the property they insure; hence they usually insure for not more than two-thirds or three-fourths of the value of the property, but they are liable in case of loss for its full value, if insured to that extent, unless there is some provision in-the policy restricting the extent of liability, as in the policy sued on. Where there is no such restriction, an over-valuation may operate to deceive and defraud the underwriter.
The application upon which the policy was issued purports, by its express terms, to be a full and true exposition of all the facts and circumstances in regard to the condition, situation, value and risk of the property when issued, so far as the same are known to the applicant and are material to the risk.” Under the terms of the policy, the defendant being liable for two-thirds of the value of *334■the property at the time of the loss, the valuation on the application was not a fact material to the risk. Lee v. Howard Insurance Co., 11 Cush. 324.
In case the valuation be considered in the nature of an ■express affirmative warranty, it is of a matter which in no way changed or increased the risk, nor by any possibility could have increased the liability of defendant, and which,- in fact, was no inducement to' the contract, nor ,was it the foundation of fraud or deception on the part of plaintiff.
This court -would hesitate to hold that a warranty so immaterial, in truth so perfectly disconnected from the subject of the contract and its conditions, should operate to defeat the policy. No such snares should be hidden away in these intricate and yet very common contracts, whereby to entrap the unwary.
"While agreeing in the conclusion arrived at, but without fully concurring in the- reasoning of this opinion upon this branch of the case, a part of the court are content to place the ruling upon the ground that the ■record does not disclose that the over-valuation was fraudulent on the part of plaintiff, and, therefore, does not defeat the policy. In this view it is thought that, while the finding of the jury does in fact establish an over-valuation, yet in the absence of a finding that the over-valuation was purposely or fraudulently made, the mere finding -of an over-valuation (which might have been the result of a difference of opinion) is not sufficient alone to defeat a recovery upon the policy.
2. Veudiot: findings. It is claimed that the finding of the jury as to the value of the personal property, or rather their verdict to the effect that they were unable to find the values of the different kinds of - property insured, is inconsistent with the general verdict. It appears that the-total-value of these goods- as found by *335.the jury is equal to the amount allowed by the verdict on account of the loss thereof. Neither the policy nor the application states the value of the different kinds. We are not authorized to conclude from the verdict that the value of each kind did not equal the amount allowed on account of the loss thereon. Did such fact appear from the special verdict it would be inconsistent with the general verdict, but it does not appear and cannot be presumed.
Insurance : tation of title, II. The defendant assigns for error the decision of the court in overruling the motion for a new trial, which was based upon the grounds that the law was incorrectly given to the jury, and that their finding was not warranted by the evidence.
The instructions to the jury are fair expressions of the law in regard ‘to the warranty in the policy, of the condition of the stoves and stovepipes, of the title to the property, etc., and give proper construction and full force thereto. It is claimed that the court erred in instructing the jury, substantially, that if the plaintiff had purchased and partly paid for the property, and was in possession 'thereof, and no lien for the purchase money, or incumbrance of any other character was held against it, though it had not been deeded to him, he held the absolute and sole ownership of the property within the meaning of the terms as used in the policy. This instruction is correct.
The instructions asked for by defendant were either substantially the same as those given upon motion of plaintiff, and were for that reason refused, their repetition being unnecessary, or were properly refused because in conflict with the law. The principles involved in these instructions do not require discussion. The verdict is supported by the evidence and must be sustained.
*3364. special 7ma?ofcoúrt t° give. *335III. The court, being asked so to do by defendant, refused to require the jury to return an answer to the fol*336lowing question, viz.: “ Had the plaintiff a deed for the land on which the storehouse stood at the time he procured the insurance or at the time of the fire % ” In this refusal there was no error. The fact intended to be elicited by the question was immaterial. The ownership of the property contemplated by the terms of the policy may have been held by plaintiff without a deed. In fact, the absolute fee simple title may be acquired and held in some cases otherwise than by deed.
Exceptions to the ruling of the court below, involving other questions, were taken by defendant. Such objections are not renewed in this court, either in the assignment of errors or in the brief of the counsel, and are, therefore, not before us for our consideration.
Affirmed.