Page:Federal Reporter, 1st Series, Volume 4.djvu/767

 PUTNAM t). COMMONWEALTH INS. CO. 753 ���PdTNAM V. COMMOKWBALTH InS. CO. �PuTOAiir V. La Caisse Generale des Assurances Agricoles ET DES Assurances contre l'Incendrb. �(Oireuit Court, N. D. New York. November 4, 1880.) �1. Refbbee — FiNDETG OF Fact. — The flnding of a referee upon a ques- tion of fact will not be disturbed, except in a case where the flnding of a jury upon the same question would be disturbed. �a. Insurance — Fraud— Evidence. — In order to establish Iraud In pre- seuting proofs and claim of loss, under a policy of Insurance, it must be shown not only that the goods were worth less than set forth, but that a fraudulent valuation was made of the same. �3. Same— PoLioT — Agent— Waiter. — A policy duly signed and counter- signed was delivered to the agent of the assured by the local agent of an Insurance company. It provided by a printed provision that " if the assured shall have, or shall hereafter make, any other Insurance on the property hereby insured, or any part thereof, without the consent of the company written hereon, » * • this policy shall be void. " It also provided that it was a part of the contract " that any person Other than the assured who may have procured this Insurance to be taken by this company shall be deemed to be the agent of the assured named in this policy, and not of this company, under any circumstances whatever, or in any transaction relating to this Insurance." The policy also contained this clause in writing: ■' $3,000 other concurrent In- surance permitted.'' It was subsequently found by a referee that, at the time the policy was delivered, the agent of the company knew that the assured had other Insurance upon the property to the extent of $6,000. �Hdd, under these circumstances, that a delivery of the policy was a waiver of the implied prohibition contained in the condition la said policy, permitting $3,000 additional insurance. Whited V. Germania Pire Ins. Go. 76 N. Y. 415, �4 Same— Same— Naphtha.— A policy of insurance provided : " If in sald premises there be kept ***** petroleum, naphtha, gas- oline, benzine, benzole, or benzine varnish, or there be kept or used therein camphene, spirit gas, or any burning fluid, or any chemical oils, without written permission in ihis policy, then, and in every such case, this policy shall become void." �Hdd, such provision did not forbid the use of naphtha upon the insured premises for the purposes of illumination. �5. Same- Samk — " Burning Fluid."— Such policy also provided that "if, during this insurance, the above-mentioned premises shall be used for any trade, business, or vocation, or for storing, using or T.4,no.9— 48 ����