Page:Federal Reporter, 1st Series, Volume 6.djvu/687

 SCHULTZ V, MOT. LIFE liiS. CO. OF N. i. 675 �only, or to those supposed to be material, but as to ail state- ments. They need hot be representations, even, if this term conveys an idea of an affirmation having any technical char- acter. Statements and declarations is the expression; what the applicant states, and what the applicant declares. Noth- ing can be more simple. If he makes any statement in the application it must be true. If he makes any declaration in the application it must be true. A faithful performance of this agreement is made an express condition to the existence of a liability on the part of the company." The policy, then, having been issued upon the express condition that each state- ment and each declaration shall be found to be true, the only remaining question is whether this language includes declara- tions in regard to existing alleged facts, or includes also declarations in regard to the future existence of facts which are or are not to take place. I was at first inelined to the opinion that the adjective "untrue" was inapplicable to ex- press the violation of a promise or agreement in regard to the future; that a declaration that a person would not do a thing could not be said to be untrue although the person did subsequently do the act which he had declared he would avoid. A consideration, however, of the stress which is laid by courts in analagous cases upon language in a policy which implies that a future act material to the risk is to be done or omitted, leads me to a different conclusion. In fire policies the application or survey is made generally a part of the pol- icy. The answers to questions which indicate or declare that in future a certain state of things is to take place and exist in the insured property — as, for example, that after a certain time the property will not be used at night, or that a chim- ney will be built, or the location of a stove will be changed — have frequently been held to be binding upon the assured, and to be a promissory engagement or warranty that the named act would happen or continue to exist ; so that in Bil- horough v. Ins. Go. 6 Duer, 587, the principle is stated as follows : "Language in a policy which imports that it is in- tended to do or omit an act which materially affects a risk, its extent, or nature, is to be treated as involving an engage- ��� �