Hovey v. American Mutual Insurance — 9 N.Y. Super. Ct. 554

Majority

p. 554

Hovey and others v. American Mutual Insurance Co.

(Before Duer, Campbell, and Bosworth, J.J.)

December 23;

December 31, 1853.

Headnote

The policy of insurance, on which the action was brought, contained a provision, that, in case of any loss or damage by fire, to the property insured, the plaintiff should forthwith give notice thereof to the defendants.

The complaint averred that the property insured was destroyed by fire on the 20th of May, 1852; and that as soon as possible thereafter, that is to say, on the 24th May, 1852, the plaintiffs gave notice thereof to the defendants.

Held, that the plaintiffs were not precluded by the terms of their complaint from showing on the trial that the proper notice was given on the morning of the 21st May; and

Held further, that this notice satisfied the provision in the policy.

The policy bound the plaintiffs to keep and maintain a night-watch on their premises during the continuance of the policy.

Held, that evidence offered by the defendants upon the trial, of a parol agreement that the night-watch employed by the plaintiffs should have the care and watching of no other premises at the same time, was properly rejected.

The defendants, upon the trial, required the judge to charge, that the employment of a person as a night-watch, whose duty was in any manner divided by an employment to watch other premises, was not a fulfilment of the condition in the policy.

The judge refused so to charge, but charged the jury that if the night-watch employed by the plaintiff was employed to act exclusively upon their premises, and was a competent and proper person to be so employed, and did keep exclusively on the plaintiffs’ premises in the faithful discharge of his duty, and the plaintiffs were ignorant of any engagement made by him with other persons, then the mere facts that he had made such an engagement, and had rendered services under it, would not be a bar to the plaintiffs’ recovery.

Held, that the refusal of the judge to charge as required, and the charge which he actually gave, were correct.

The jury having found the facts submitted to them in favor of the plaintiffs,

Held, that their judgment could not be disturbed.

Motion, on the part of the defendants, for a new trial, upon exceptions, and also upon the ground that the verdict was against evidence.

The action was upon a policy of insurance against fire, and was brought to recover the sum of $2,500, which was alleged to be the amount of the loss which the plaintiffs had sustained, by reason of the destruction, by fire, of the property insured.

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The plaintiffs carried on business under the name of the “Williamsburgh Oil Company,” and the insurance was on their stock of raw materials, as oil manufactures, manufactured oils, bright varnish, and oil cakes, contained in the shed and yard, and on the stock of said company, situate, &e., Williamsburgh, Long Island.” The policy stated, inter alia, that it was understood and agreed between the parties, “ that there should be a night-watch upon the premises during the continuance of the policy,” and also that, in case of any loss or damage by fire, the plaintiffs should forthwith give notice thereof to the defendants.

The complaint was in the usual form, averring the execution and delivery by the defendants of the policy, its substance and conditions, the destruction by fire of the property insured, the amount of the loss, and that due notice and proof thereof had been given to the defendants.

The answer admitted the execution and delivery of the policy and the happening and amount of the loss, as set forth in the complaint, and set up as defences; First, That the plaintiffs did not, as they averred in their complaint, and as they were bound to do by the terms of their contract, notify the defendants forthwith of the loss and fire, but, on the contrary, had failed to give to the defendants any notice whatever of the fire, until several days after its occurrence; Second, That the plaintiffs had not at all times, during the continuance of the policy, kept and maintained a night-watch upon the premises described therein, containing the property insured, as they had stipulated and agreed to do by the said policy.

Upon these issues the cause was tried before Boswoeth, J., and a jury, in June term, 1853. The following were the proceedings on the trial.

The plaintiffs, to prove the issue on their part, offered in evidence the policy of insurance, and the same was read to the jury, being the same policy recited in the plaintiffs’ complaint.

The plaintiffs, further to prove the issue on their part, called as a witness,

Peter Pierce, who, being duly sworn, testified as follows:

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I was in the employ of the plaintiffs in the month of May, 1852, as general superintendent, and was on the premises in question at the fire, on the night of the 20th of May. I went into Mr. Edwards’s office (he being the defendants’ agent), on the morning of the 21st day of May, 1852. Here the counsel for the defendants interrupted the witness, and asked the plaintiffs’ counsel what he designed to prove by him as having taken place on the 21st of May, 1852, at the office of defendants’ agent, to which the counsel for the plaintiffs replied that he expected to prove the notice to the defendants of the •occurrence of the fire the day following the occurrence. To this the counsel for the defendants objected, on the ground that the complaint averred that the first notice to the defendants of the occurrence of said fire was given on the 24th day of said May, and the insufficiency of the notice set forth in the complaint was relied upon in the answer of the defendants as one of the grounds of defence. The court overruled the objection to the admissibility of this evidence, and the defendants’ counsel duly excepted to the said decision of the court, and the exception was duly noted. The witness then proceeded. “ Mr. Edwards was not in. I asked if that was the agency of The American Mutual Insurance Company. The clerk said, yes. I then asked if the Williamsburgh Oil Factory was insured in their office. The young man turned to the books and said, yes. I then asked him the amount, and told him of the fire the night previous. On the 24th, I gave written notice of the loss to Edwards, and also sent notice to the company at Amsterdam. I came into the employ of the plaintiffs, January 10,1852. Mr. Paige was in their employ when I came, and continued some time after. When I went into the employment of the plaintiffs, Mr. Bond was the night watch, and remained there in that capacity till the 1st of March, and then his son went to Brooklyn, and the old man with him. Then Mr. ¡Newton hired Patrick Mead, who remained until after the fire. There was a night watch from the time I went into their employ. He, as well as Bond, is an honest, intelligent, and proper man for a night watch. Mead was paid four dollars a week. Bond was paid four dollars a week.

Upon being cross-examined, the witness testified: “I am

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not now employed in the oil factory, but am engaged for myself in the paper business. I remained in the plaintiffs’ employment until the end of the month after the fire. The plaintiffs are not now in business anywhere. I did not state that I was unable to find the office of the defendants after the fire; it was another office that I stated I was unable to find. Mr. Bond was employed to remain on the premises during the night hours. I do not know of his sons sleeping there. Mr. Mead was hired at the yard. I was not present when the bargain was made. I examined" his recommendations. Don’t remember whose they were. He was watching a ship in New York at the time he came. He had quit the ship and was out of employment. Mr. Newton hired him.”

And further to prove the issues on their part, the plaintiffs called as a witness,

Madison Page, who, being sworn, testified as follows: I was in the employment of the plaintiffs at the date of the policy, and acted for them in obtaining it. I had then been in their employment five months. I put a night watch on the premises on the 19th of June, the date of the policy, and continued the same up to February, 1852. He was a good, faithful watch; his name was Bond. The duties of a night watch are to be on the ground at six o’clock in the evening, and remain till seven in the morning. This was performed, I think faithfully, up to February, 1852.

"Upon being cross-examined, the witness testified: Mr. Bond had a son who slept on the premises. Mr. Hovey desired me to have one of the workmen sleep on the premises to keep the watchman company.

And further to prove the issue on their part, the plaintiffs called as a witness,

Charles H. Newton, who, being sworn, testified as follows : I went into the plaintiffs’ employment on the 13th of September, 1851, and continued with them until after the fire. There was a night watch there when I went, and he continued till the 1st of March. His name was Bond. The night Bond left I watched, and I put Patrick Mead as night watch there the

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following night, who continued there up to the time of the fire, and was there that night. His business was to look around the yard. He was to go on the premises at six in the evening, and remain till seven in the morning. I supposed him a competent man. He brought good recommendations from a captain in ¡New York. We paid him four dollars a week. So far as I know he performed Ms duty well. I was there sometimes in the night myself.

Upon being cross-examined, the witness testified: ¡M¡r. Mead was not in any one’s employment when I employed him, as he said the last person for whom he was employed was the captain. He brought a recommendation from him. I did not know this captain, but I thought I knew enough of Mead before. He was formerly employed in the yard of Perrine, Patterson, and Stack. I did not go there to inquire about him. I should think it was a month before that I saw him occasionally at the yard of Perrine, Patterson, & Stack.

The amount of the damage by the fire to the property insured being admitted to be as the same is averred in the complaint, the plaintiffs’ counsel here rested.

And the defendants, to prove the issue on their part, called as a witness,

William Perrine, who, being sworn, testified as follows: I am one of the firm of Perrine, Patterson & Stack. I know the premises of plaintiffs. Our premises are contiguous, in the same block below, and in the next block above. I know Patrick Mead. He is now in court. He is in our employment as a night watchman. He has been in our employment as such since 1849 or 1850. He was at our yard as our night watch in March and April, 1852. I am not sure that he was in our employ in March. We built the “ John Stewart.” Mead was liked by the captain. We allowed Mm to go to accommodate the captain. I can’t tell when he came back. We allowed him $10 a month until we got more to do ; since then we have paid him $1 per night. He was in our employment, at the yard of Perrine, Patterson & Stack, at the time of the fire, which consumed the oil factory. We paid him ten dollars a

p. 559

month. His duties were to go round and he walking about our premises from about half past 5 p.m. until about 7 a.m., when he was relieved by the day watch. I have no knowledge of the employment of Mead at other premises, but I believe Mr. Stack consented, on account of the small wages we were then paying him.

Upon being cross-examined, the witness testified: As soon as we got two or three vessels on the stocks, I think about the first of July, we raised Mead’s wages. The plaintiffs’ premises are in sight from ours. To go into our saw-yard, or to look into it, the watchman was obliged to go around the buildings. We had ;no other night watchman on our premises than this man Mead. When he was watching the ship in Mew York, we had but one vessel just going up, and had but little necessity for a watch. I don’t know that I saw Mead away from the plaintiffs’ yard any one night. The reason why we paid him at the time such” low wages, was that we then had but one vessel to watch. The ordinary wages of a night watchman are six dollars a week in the summer, and seven in the winter. I can’t recollect whether I saw Mead on the plaintiffs’ premises or my own from April 1st to the time of the fire.

And the defendants, further to prove the issue on their part, called as a witness,

Alfred Edwcm'ds, who, upon being sworn, testified as follows: I was the agent of the defendants when the policy was made, and made the contract with Mr. Paige.

The counsel for the defendants here offered to prove by this , witness the conversation had between the parties at the time of making the policies, as to the night watch to be kept on the premises; and that, by the express terms of the agreement, the “night watch,” employed upon the premises -bv the plaintiffs, was to have the care and watching of no other premises at the same time, but that' he was to be the exclusive night watch of the plaintiffs, upon their premises. To this the counsel for the plaintiffs objected, and the said objection was sustained by the court, and said evidence was not admitted; to which decision of the court the counsel for the defendants did then and there except, and said exception was duly noted.

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The defence here rested.

And the plaintiffs, further to prove the issue on their part, recalled the witness,

CJvwies H. fflewton, who testified as follows: I was never informed that Head was employed by any one else as night watchman. When he was employed by the plaintiffs I never heard him say anything about his wages.

And further to prove the issue on their part, the plaintiffs recalled

Pierce, who testified as follows: I did not know of Head’s being employed elsewhere, at the time he was employed by the plaintiffs.

And further to prove the issue on their part, the plaintiffs recalled as a witness,

Patrick Mead, who, upon being sworn, testified as follows: I was employed by the Williamsburgh Oil Factory, as night watchman, and was there at the time of the fire. I was never off the premises one night. I was in Hr. Stack’s employ three- or four years. I told Stack I was employed by the oil factory. The captain asked me to watch the ship. After I left the ship, Newton employed me for the oil company. He told me to keep an eye on their yard when I was going backward and forward, and he would make it all right with me. Hy boy could look out for Stack’s place. It did not prevent my doing my duty. I always kept on the ground of the oil factory.

And upon being cross-examined, the witness testified: The vessel was nearly built in Hr. Stack’s yard, at the time of the fire at the oil factory. They had no other night watchman at the shipyard besides myself. I agreed to -watch the premises going back and forward. I did not go into Stack’s yard. I could see Perrine’s yard without going off the premises. There was no other man but myself to watch the ship then nearly finished. I never told Newton or Pierce anything of my employment by Perrine & Stack. I could see over the fence

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almost all the way. I used to look over the fence. I could get on barrels and look over it.

Here the case rested, and counsel on either side summed up, and the court then proceeded to charge the jury.

The counsel for the defendants requested the court to charge the jury as follows. .

1st. That the obligation of the plaintiffs to keep a night watch on the premises during the continuance of the policy was a condition precedent to the liability of the defendants, and to entitle the plaintiffs to recover, they must prove a literal performance of that condition.

2d. That proof of the employment of a person as a night watchman, whose duty was in any manner or to any extent divided by an employment at the same time to watch other premises, is not such proof of the performance of the condition as the law requires, and is insufficient to entitle the plaintiffs to recover in this action.

Upon the first point the court charged the jury according to the request of the defendants’ counsel, but refused so to charge upon the second point. But the court charged the jury, that if they found upon the evidence that the plaintiffs employed Meade to act exclusively as a night watch upon the premises in question, and that he was a competent and proper person to be employed for that purpose, and that he did keep exclusively on the plaintiffs’ premises in the faithful performance of his duties as night watch, and they were ignorant of the engagement which he had made to Perrine, Patterson & Stack, then his having made the engagement with them which he testified he made, and having rendered for them only such services as he testified he rendered, would not be a non-compliance with the condition which would preclude a recovery by the plaintiffs in this action.

And to such refusal of the court, and to the said charge of the court, the defendants’ counsel then and there excepted, and the exception was duly noted.

Under this charge, the jury found a verdict for the plaintiffs for $2,650.

The case made to set aside this verdict was now submitted by the counsel of the parties.

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T. W. Tucker, for plaintiffs.

I. Evidence of conversation between the parties, at the time of making the policy, and óf an oral agreement different from that expressed in the policy, was inadmissible, and properly excluded. (1 Greenleaf Ev. § 275-281.)

II. There was no proof that the duty of the night watchman employed by plaintiff was in any way divided by any other employment.

III. The charge of the judge was correct.

F. H. Upton, for defendants.

I. The court erred in allowing the plaintiff to prove notice to the defendants, of the occurrence of the fire the day following its occurrence, and in overruling the objection of the defendant’s counsel to said evidence. The complaint avers—first, the obligation of the plaintiffs by the terms of the contract, to notify the defendants “ forthwith” of any loss or damage by fire to the property insured—and “ as soon thereafter as possible,” to deliver to them a particular account of the' same. Secondly, that the fire occurred on the 20th of May, 1852; and thirdly, that on the 24th day of May, they gave notice of the fire to the defendants. The answer of the defendants denies that the plaintiffs notified them “ forthwith” of the occurrence of the fire, as they were bound to do by the contract. Here was an issue between the parties, of fact or of law, as it should appear at the trial—of law, if it should be contended that a notification four days after the fire, was a notification “ forthwith,” within the legal construction of the contract between the parties—of fact, if the plaintiffs should prove facts or circumstances tending to show the impossibility of giving notice at an earlier period. The defendants came to the trial prepared to meet the issue, upon the averment of the, complaint that notice of the fire which occurred on the 20th was given on the 24th. But the plaintiffs were allowed to prove, in direct variance from their averment, that notice was given on the 21st,—and the defendants were thus deprived of all opportunity of showing the contrary by proof, which they might otherwise have produced. The plain

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tiffs, even at the trial, would undoubtedly have been allowed to amend their complaint, upon motion, by averring notice on the 21st; but.in such case, the motion would, of necessity, have been granted upon terms, and such terms at least as would have given the defendants an opportunity to meet the averment. ISio such amendment was made, nor was there any motion to that effect, and the complaint now stands with the allegation, that notice of the occurrence of the fire, which took place on the 20th of May, was given to the defendants on the 24th, and the plaintiffs were allowed to prove, without amendment, that notice was given on the 21st. This was a most material variance, affecting the substantial rights of the defendants, not a mere matter of form. A notification “ forthwith ” by the assured to the insurers of the occurrence of a fire, is one of the most important and imperative conditions of the contract of insurance. It is inserted in all policies of Fire Insurance, and is essential for the protection of the rights and interests of the underwriters. In the first place, it enables them immediately after the occurrence of a fire, and while everything is fresh in the recollection of the witnesses or persons in the neighborhood, to institute the requisite inquiries into its causes, and obtain facts in reference thereto, which may tend to exonerate them from all liability. The delay of a day or two, to give the notice in a community like this, is sufficient oftentimes to defeat the very purpose of its requisition. In the second place, the notice “ forthwith,” enables the underwriters to take measures for the preservation of their interests in the seasonable care and custody, and restoration of such of the property insured as might be saved from the elements, and thus by their own vigilance, converting into a partial, what might otherwise be a total loss. In this view of the true interest and meaning of this most important condition of the contract, it has been repeatedly decided that a notification “ forthwith,” means “ immediately,” “ directly,” “ without delay,” and that where it is not made immediately, directly, and without delay, and no circumstances are proved, the existence of which rendered the delay unavoidable, and therefore excusing it—no liability on the part of the underwriters can be predicated upon such

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notice. (Inman v. Western Fire Ins. Co., 12 Wendell, 452, and cases there cited.)

II. The court erred in refusing to allow the testimony of the defendants’ agent of the conversation between the parties at the time when the contract was made, as to their precise meaning in the condition inserted in the contract, “ to keep a night-watch upon the premises.” That this condition, as expressed in the policy, is not sufficiently obvious and unambiguous upon the face of the policy, is apparent, as well from the language? as from the fact that much testimony was given at the trial on either side, without objection, explanatory of its meaning, and of the peculiar duties of a night-watchman. This being the case, was not the very best evidence of the true intent and meaning of the condition, the conversation of the parties at the precise time when the stipulation was made and the clause inserted ?

IIÍ. The court erred in charging the jury, that “ if they found upon the evidence that plaintiffs employed Head to act exclusively as a night-watch upon the premises in question, and that he was a competent and proper person to be employed for that purpose, and that he did keep exclusively on the plaintiff’s premises, in the faithful performance of his duties as night-watch, and they were ignorant of the engagement which he had made to Perrine, Patterson, and Stack—then, his having made the engagement with them, which he testified he made, and having rendered for them only such service as he testified he rendered, would not be a non-compliance with the condition which would preclude a recovery by the plaintiff in this action. 1. It is conceded, and the court so charged the jury? that the condition of the contract on the part of the plaintiffs to keep a night-watch upon the premises, was a condition precedent. A literal compliance with this condition is, therefore, necessary to entitle the plaintiffs to recover—a substantial compliance is wholly insufficient—and whether the loss was in any way attributable to, or connected with the failure to make literal compliance with the condition, is quite immaterial and can- . not be inquired into. 2. It is conceded, as the charge of the court intimates, that the compliance with this condition by the

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plaintiffs, required their employment of a competent person to watch their premises exclusively. This is obviously the true construction of this most important condition. The property insured was of such a combustible character as to require constant and unremitting attention in the night-time—without an express stipulation for such an attention and watching exclusively of this property, the underwriters would not have entered into any contract of insurance at all. Now, if the person employed by the plaintiffs to watch their property in the. night-time, was at the same time, and for the same sum, employed to watch the neighboring property, in the night-time, it is certain that he was not a night-watch exclusively for the plaintiffs’ property; and although he might have been continually on some part of their premises, at whatever distance from the point at which danger was most to be apprehended, yet, if by his engagements, it was equally his duty to watch the adjacent ship-yárd, it is obvious that he had a divided duty, and that he was not a night-watch of the premises of the plaintiffs exclusively, and therefore, however faithfully he might have performed his divided duty, the condition of the contract was not complied with. He was not the exclusive night-watch of the plaintiffs. The necessity imposed upon the watch by his divided engagements, might have been the actual cause of the loss. The fire might have kindled while his attention was directed in compliance with his duty towards the property of Perrine, Patterson & Stack, and although at the time he might have been strictly on the plaintiffs’ premises, yet he might have been, and if watching the ship-yard, he necessarily would have been, at such a distance from the spot where the fire broke out, as to render its extinguishment by him impossible (the property being highly inflammable in its nature), whereas, had he been near the point of danger, as he would have been, but for the division of his duty, he might have seen the first spark, in season to have saved the property. 3. The ignorance of the plaintiffs, that the night-watch employed by them was not watching their premises exclusively, surely furnishes them with no legal excuse for a non-compliance with the condition of the contract. In other words, the plaintiffs’ ignorance that their watchman was employed by others to watch their property at.

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the same time that he was watching that of the plaintiffs, cannot constitute a literal compliance with the condition, which would'not have been literally complied with, but for that ignorance. But, is not this in effect the conclusion of the court? The judge says, “If the plaintiffs were ignorant of the engagements of their night-watchman, then his having made such engagements, and actually complying with them, would not be a non-compliance with the condition which would preclude the recovery by the plaintiffs. Is not this a declaration that the plaintiffs, so long as they act in good faith, and employ a person to watch their property exclusively, and innocently believe him to be thus employed, are not to be held responsible for the neglect or bad faith of their agents thus employed ? It is obvious, from the testimony of Mead, the watchman, that he kept his employment by Perrine, Patterson & Slack, carefully concealed from the plaintiffs. Why was this, but for the reason that he knew that by such an engagement he was violating his agreement to watch their property exclusively? Was not this bad faith on the part of Mead ? Had the plaintiffs known of his other engagement, and connived at it, or allowed it, will it be pretended that they could recover in this action, as upon proof of a literal compliance with this essential condition precedent of the contract ? It is conceded that they could not, by the terms of the charge of the court. Are they not then accountable for the bad faith of their agent ? and is their ignorance or innocence of this bad faith of their servant to be held to convert a manifest and admitted breach of the condition of the contract, into its literal compliance ?

The first point made on the appeal is, that the court erred in allowing proof that notice of the fire was given the day after its occurrence, and in overruling the objection of the defendants’ counsel to such evidence.

The policy required that the assured, on “ sustaining loss or damage by fire, should forthwith give notice thereof to the company.” The fire occurred in the night of the 20th of May, 1852. The complaint avers, “ that as soon as possible after said fire, that is to say, on the 24th of May, 1852,” the plaintiffs gave notice of the same to the defendants. The answer denies

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“ that the plaintiffs did, as they aver in their complaint, and as they were bound to do by the terms of said contract, notify them of said loss and of said fire, but, on the contrary thereof, they failed to give the defendants any notice whatever of said fire, until several days after its occurrence.”

It will be seen that the answer treats the complaint, as having, in substance, averred, that notice was forthwith given of the loss; denies the truth of such allegation, and affirms that, no notice whatever was given of said fire, until some days after its occurrence.

When the plaintiffs offered to prove that notice was given to the agent of the company, at their office in this city, where the policy was effected, on the morning of the 21st of May, the evidence was objected to. No objection was made as to the mode of giving it, or that it was not given at the proper place, nor that the notice given that morning was not sufficient, without other or further notice of the loss. The objection taken was, that the plaintiffs, by their complaint, had precluded themselves from proving that any notice had been given, except on the 24th of May. We think the particular objection made to the admission of the evidence untenable. The complaint averred, that notice was given as soon as possible, to wit, on the 24th of May. The answer treated it as an allegation that notice had been given forthwith, and denied that it had been given forthwith by the plaintiffs, “ as they aver in their complaint.” Not content with this, it proceeds to assert that, on the contrary, the plaintiffs “ failed to give the defendants any notice whatever of said fire, until several days after its occurrence.” The evidence objected to was directed to this averment, and tended to prove that notice was not only given as soon as possible, but forthwith.

No point was made that the notice actually proved was insufficient, if evidence of it was admissible under the pleadings. The court was not asked to charge the jury that the notice was given so late as to exonerate the defendants from liability, or that it was insufficient, in any respect. The only point made was, that it was not competent for the plaintiffs, tinder the pleadings, to prove that notice was given, on the

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morning after the fire. We think the objection was properly overruled.

The second point taken is, that the court erred in refusing to receive evidence of the conversation between the parties, at the time the policy was made, as to the night watch to be kept on the premises,—and that, by the express terms of the agreement, the “ night watch” was to have the care and watching of no other premises at the same time, but that he was to be the exclusive watch of the plaintiffs upon their premises.

The answer avers, “ that in and by the aforesaid contract or policy of insurance, it was stipulated and agreed that the plaintiffs should, at all times during the continuance of said policy, keep and maintain a night watch upon the premises described therein, and containing the property which was the subject matter of the said insurance,” and alleges that they did not do so.

The answer did not allege, that any agreement was made different from that evidenced by the policy. The defendants ■did not offer to prove, that by any established or known usage, the term “ night watch” was understood to impose any duties in addition to, or different from, those plainly indicated by the contract described in the policy, or by the natural meaning of the words by which it was described. If the object of the evidence was to vary the necessary legal effect, or the terms of contract, contained in the policy, it was properly rejected.

The only remaining point taken, brings under consideration the only part of the charge to the jury which was excepted to by the defendants.

The court charged as requested, that the obligation of the plaintiffs to keep a night watch on the premises during the continuance of the policy, was a condition precedent to the liability of the defendants, and to entitle the plaintiffs to recover, they must prove a literal performance of the condition. To charge as secondly requested, the court refused, but “ charged the jury- that, if they found upon the evidence that the plaintiffs employed Head to act exclusively as a night watch upon the premises in question, and that he was a competent and proper person to be employed for that purpose, and that he did

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keep exclusively on the plaintiffs’ premises, in the faithful performance of his duties as night watch, and they were ignorant of the engagement which he had made to Perrine, Patterson & Stack, then his having made the engagement with them which he testified he made, and having rendered for them only such services as he testified he rendered, would not be a non-compliance with the conditions which would preclude a recovery, by the plaintiffs in this action.” To this part of the charge the defendants excepted.

Mead testified that he was “never off the plaintiffs’ premises one night.” One of the firm of Perrine, Patterson & Stack told Mead “ to keep an eye on their premises, as he was going back and forward, and he would make it all right.” He “ agreed to watch the premises, going backward and forward.” He did not go into their yard. He could see in the yard without going off plaintiffs’ premises. He could see over the fence almost all the way. He could get on barrels and look over it. It did not prevent his doing his duty to the plaintiffs. He always kept on the ground of the oil factory.

This summary of Mead’s testimony, is his version of what he agreed to do, and did do, for Perrine, Patterson & Stack.

The jury have found that he was a competent night watch, that he was employed to act exclusively for the plaintiffs, that he kept exclusively on their premises, faithfully performed his duties, and that the plaintiffs were ignorant that he had agreed to occasionally look into another and adjoining yard, which could be seen from the yard of the plaintiffs.

It is contended that a warranty must be literally complied with. The warranty was that the plaintiffs, during the policy, would “keep and maintain a night watch on the premises.” They did keep and maintain one there every night, who, on no occasion, left the premises. They did not agree that he should never look off of them, or on no occasion be dozing or fall asleep. The spirit of the warranty is, that there should be a competent night watch kept there, and one who might be confided in for the faithful performance of a night watch.

The rule is said to be, that “ while on the one hand a literal fulfilment of the warranty is required, yet, on the other, it is no less certain, that nothing beyond a bare and literal fulfil

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ment can be required. A warranty will not be extended, by construction, to include any thing not necessarily implied in its terms.”

Thus, in Hyde v. Bruce ( 3 Doug. 213 ), where there was a warranty, “ that the ship should have twenty guns,” and it appeared that, though in fact the ship had twenty guns, yet she had only twenty-five men, a number quite short of the necessary complement for twenty guns, Lord Mansfield held, that this'warranty did not imply that she should carry a competent number of men to work the guns, and, therefore, as there was no ground to impute fraud, the warranty had been sufficiently complied with. (Bond v. Nott, Cowp. 601; Bean v. Stupart, Doug. 11; 1 Arnould on Ins., § 215, p. 588.)

In Kemble v. Rhinelander (3 J. C. 134), Kent, J., says, “ A warranty must be literally complied with, but this strict compliance ought to operate in favor of, as well as against the assured, whenever he can bring himself within the terms of it.” The plaintiffs literally did all'they agreed to do. They kept and maintained a night watch on the premises every night, including that of the fire. He was competent, and faithfully performed his duties. The terms of the warranty do not necessarily imply an agreement, that the night watch employed should not do, what Mead did for Perrine, Patterson & Stack. We think that the'objections made and exceptions taken, are not such as to justify us in disturbing the verdict.

Judgment must be entered for the plaintiffs on the verdict.