Sir W. J. C.J.-Where there is a condition like this annexed to a policy I think that, independent of the representations, it forms a stipulation in the policy itself, and it seems to me that the question to be determined is: What was the condition ?
The respondent agreed that he would not allow the insured premises to be used for carrying on any business denominated hazardous or extra-hazardous, or for storing any goods or articles so denominated. Then the question is: Did he allow the premises to be so used ?
He placed in the building in question, in addition to the spool factory which, by the express terms of the application for insurance and the policy, was what was insured, facilities for the manufacture of excelsior, and the evidence seems to me clear that that was a hazard YOL. XIV.]
ous business, and being such there was a breach of the conditions of the warranty.
It seems to me clear that the evidence shows this beyond all reasonable doubt, and there is no evidence to the contrary.
And there is further evidence of the hazardous character of the business in the rate of premium which is charged for insuring premises in which it is carried on.
The condition of warranty was not complied with, and therefore, by well known principles of insurance, the defendants were relieved.
The plaintiff offered no evidence, either in his own case or in reply, to show that the evidence given by defendants as to the character of this business was in any way incorrect, and that it was not a hazardous, or extra-hazardous business.
For these reasons I think it is our duty to give the judgment which should have been given by the court below and allow the appeal.
J.-Concurred.
J.-I think this is a very clear case of a breach of the warranty in the policy, and the appeal should be allowed.
HENRY 3.-The contract that these parties entered into was clearly to insure a building used for the manufacture of spools, and the policy contained a warranty that no material change from that manufacture, calculated to increase the risk, should be made, otherwise the policy was to be void.
The only question to be put to the jury was, whether the manufacture of excelsior was hazardous or not. I would almost go further, and say that it was the duty * of the judge, after that question was answered, to have found, not a verdict for the plaintiff, but a verdict for the defendants.
[VOL. XIV.