Page:Federal Reporter, 1st Series, Volume 2.djvu/490

 ALBION LEAD WORKS V. WILLIAMSBUEO CITY F, INS. 00. 483 �on the first of May, The fire waa at night, and was sup- pcsed to have been purposely set. �There was no evidence that any of the repre&entations or statements made to the defendants when the Insurance was effected were untrue, but they insisted that there was a war- ranty that a watchman and an effective pump should be kept ; that the risk had been increased, and that the premises had "become unoccupied." �The judge ruled, for the purpose of the trial, that the words written upon the paper, called a plan, were not a part of the contract ; that no continuing warranty or stipulation, in re- spect to the pump or the watchman, was made by the assured ; that the jury must decide whether the risk had been in- creased, and, in so doing, might take into consideration the whole state of things at the time of the fire, setting diminu- tion against increase, if there were both; that the provision avoiding the policy, if the premises became unoccupied, did not necessarily mean if the manufacturing was stopped, but if the premises considered as lead works were unoccupied. �G. W. Par sons and B. D. Smith, for defendant. �G. Allen and J. Fox, for plaintiff. �LowBLL, C. J. This case has been very oarefuUy argued, and I have examined ail the cases cited by counsel. One of the principal questions is whether there ia a continuing war- ranty or stipulation on the part of the plaintiff to keep a watchman and an effective pump. The first printed condition, or set of conditions, makes the "application, plan, survey or description" of the property a part of the contract, and a warranty by the assured, so long as the policy is kept in force. No language could more fitly describe a continuing warranty, or at least one renewed every year; but being in print, and intended for ail cases, it must be fitted to eaeh risk according to its particular circumstances. �A careful study of the cases will show, what was likewise tostiûed by experts on the stand, that "plan," "application," iuxd "snrvey" are often used in the contracta as meaning the same thing. "Survey" is the word employed most commonly, and it is not diflScult to discover how it came to be used ����