Page:North Dakota Reports (vol. 1).pdf/202

 not constitute substantial warranties. It certainly is not apparent to this court that representations as to incumbrances, which in fire risks are conceded to be important and material, are equally so when the insurance is a hail risk. Nevertheless we must hold that the parties have a right to make a stipulation to the effect that any given representation as to a matter of fact made as a basis for the contract shall be deemed a warranty, and a material part of the contract. The application declares that "the statements made by me, and answers to questions above given, are true, and a warranty on my part, and are the basis upon which I ask hail insurance by the Dakota Fire & Marine Insurance Company on the crops herein described." The policy in question expressly refers to the above in the following language: "Assured's application, of even number and date herewith, on file in the office of the company in Chamberlain, Dakota, is hereby referred to as a part hereof, and is a warranty on the part of the assured, and the basis upon which this insurance is written.” The statements contained in the application with respect to the incumbrances are therefore expressly made a part of the contract. The policy also declares "that any misrepresentation or false statement or concealment of facts in the application shall operate to render the policy void." Under these clear stipulations of the contract it does not, in our opinion, matter whether the representations in the application as to the incumbrances on the property are or are not material in fact. If not intrinsically material, they have been made so by express agreement of the parties; and that agreement, under the provisions of the Code, must prevail. Section 4163, Comp. Laws, reads as follows: "A policy may declare that a violation of specified provisions thereof shall, avoid it; otherwise the breach of an immaterial provision does not avoid the policy." See id. $ 4159, and Wood, Ins. $ 137.

But it is further contended by respondent's counsel that defendant is estopped from claiming a forfeiture of the policy on account of the false answers as to incumbrances contained in the application for the reason that such answers were wholly unauthorized by the plaintiff, and were falsely written into the application by E. E. Strong, the soliciting agent, despite the