by John Marshall

“ The assured then have not proved 'such an interest as is described in the original offer for insurance;' and the circuit court, in this respect, misdirected the jury. It may be proper to take some notice of the materiality of this misdirection.
The contract for insurance is one in which the underwriters, generally, act on the representation of the assured; and that representation ought consequently to be fair, and to omit nothing which it is material for the underwriters to know. ”

“ And the plaintiff's counsel having argued to the jury upon the presumed authority of the court's opinion upon the second of the aforesaid instructions, moved by the counsel for the defendants, and overruled as aforesaid, that the misrepresentation of the class of the building insured, if found by the jury to be such as above objected on the part of defendants, did not vitiate or avoid the policy, either as a breach of warranty or misrepresentation, unless it had been designedly and fraudulently made, or had induced the defendants to insure at a lower premium than they would otherwise have done ”

“ And if any person or persons shall insure his or their buildings or goods, and shall cause the same to be described in the policy otherwise than as they really are, so as the same be charged as a lower premium than would otherwise be demanded, such insurance shall be of no force. ”

“ If any technical estate, equivalent to an insurable interest, appeared, yet its essential quality, quantity and condition, were either positively misrepresented by the assertion of unqualified ownership and proprietary right ”

“ If then the jury might infer a waiver, the inference must be founded on the opinion that the board was bound to specify this particular objection; or that they have taken some step or made some communication, which presupposes an acquiescence in the certificate which was offered.
The resolution of the board to resist the claim is expressed in general terms, and consequently applies to every part of the testimony offered in support of it. We know of no principle nor usage which requires underwriters to specify their objections, or which justifies the inference that any objection is waived. ”

“ The destruction of the property is a real loss to the person in possession, who claims title under an executory contract, and the contingency that his title may be defeated by subsequent events does not prevent this loss. We perceive no reason why he should not be permitted to insure against it. The cases cited in argument, and those summed up in Phillips on Insurance, 26, on insurable interest, and in 1 Marshall, 104, ch. ”

“ It is undoubtedly true, that questions respecting the admissibility of evidence, are entirely distinct from those which respect its sufficiency or effect. They arise in different stages of the trial, and cannot with strict propriety be propounded at the same time. ”

“ The rule does not place the invalidity of the policy on an untrue description of the building; but on such a description as shall reduce the premium which would otherwise have been demanded. This was a question of fact which the jury alone could decide. ”

“ The rule referred to in the opinion requires, that
'Persons desirous of making insurance on buildings should state in writing the following particulars, to wit, of what materials the walls and roof of each building are constructed,' &c. ”

“ Saturday, 26th June 1824.-Walter Jones, esquire's opinion having been submitted to a called board this day, on motion of Mr Mandeville, it was resolved that the claim of Lawrence & Poindexter be resisted, and that the secretary furnish them with a copy of this resolution.
Wednesday, 11th November 1824.-Will the board now enter into a compromise with John Scott, esq. for the claim of Lawrence & Poindexter on this office, it being perfectly understood that an agreement to enter into a compromise is not to be considered as an admission of the claim? Yes. ”

“ Lawrence & Poindexter then, when the insurance was made, were entitled to one third of the property under the deed made by Charles Mortimer, and to the remaining two thirds as mortgagees; but one moiety of the whole, which moiety was derived from Joseph Howard under the agreement of July 22, 1918, was held under an agreement which had not been complied with, and which purported on its face to be void if not complied with ”