that it might be shown by extrinsic evidence, that the plaintiff' intended that the policy should cover separate or joint property or both. And even where the assured are not named in the policy, it is competent to prove who they are by extrinsic evidence. Foster v. U. S. Ins. Co. 11 Pick., 85. See also the case of Laurence v. Van Horne, 1 Caines, 276, where one of three parties interested in a joint adventure, but their interests were distinct, effected an insurance on the cargo generally without specifying any particular interest; and the court held that the owners were equitably entitled to their shares in severalty, and that the interest of each might be severally enforced under a general policy. Here, it appeared that the insurance was in fact intended for the several interest of one of the parties; and one of the partners testified that the plaintiff's had no authority to insure, except on their own account.

An insurance effected by an agent, insuring by the order, and on the account of his principal solely, or by a naked consignee, who has the possession merely without the power to dispose of the subject he insures, would be for the indemnity of the owner; and the policy must be in his name, or the terms of it must be sufficiently comprehensive to embrace him, and cover his interest. And the loss, moreover, which may happen, must be recovered on an averment of interest in him. These are rules which apply also to policies expressly declared to be for the benefit of the principal, and not professing to be upon any interest of the agent or factor, who effects them. By Jones, C. J., in De Forest v. The Fulton Fire Ins. Co. 1 Hall, 84. But such a requisition is not necessary where the insurance is made for the protection and indemnity of the factor or commission merchant against loss or damage to any goods or merchandise, that may chance to be in his warehouse, at the time of the fire, and may then belong to him, or be held by him for sale on commission, as the factor of others. These factors need not insert the names of their principals in the policy; the insurance may be stated for whom it may concern. If an insurance be for the use of the plaintiff and others, for whom they act as agents, some general expression might be requisite to extend its protection to the assured, who are not specifically named in the policy.

If a policy is effected by an agent in his own name as agent for another, the latter cannot maintain an action for the use of a third person. Russell v. The New England Marine Ins. Co., 4 Mass. 82. The policy was effected in the name of Israel Munson, as agent for the plaintiff, by which the defendants undertook to insure the plaintiff. The action was brought to recover a loss for the use of Evarts and others, who were alone interested in the property insured; and the court decided that the action could not be maintained. They cited the case of Graves v. The Boston M. I. Co. 2 Cranch, 419, as an authority in point. A distinction attempted between that and the former case, was, that Graves had an interest which the policy might protect; but Russell had no interest and the policy would be void. Parsons, C. J. says "that distinction does not appear to us to make any difference. The alteration of the policy from the old form was made, because the assured would know the persons, for whom they would answer. But if any man having no interest, nor calling himself agent to excite the inquiry of the underwriters might cause

himself to be insured, the intent and design of the alteration of the policy would be defeated, and the underwriters entrapped to insure the property of a man, whose property they must suppose they had not insured.”

A marine policy executed in blank is considered for account of whom it may concern; and the holders of the policy may fill the blank with the names of the persons intended to be insured. Turner v. Burrows, 8 Wend. 144. A person not intended to be insured cannot derive any benefit from a policy effected by others. Pacific Ins. Co. v. Catlett, 4 ib. 75. If, however, a part owner effects an insurance for account of whom it may concern, or for account of the owners, any one having an interest may claim a benefit from the policy. And although done without authority, yet a subsequent ratification by the person claiming the benefit is sufficient. Turner v. Burrows, 8 Wend. 144.

In The Jefferson Ins. Co. v. Cotheal, 7 Wend. 72, the policy insured two part-owners of a building by name, or whom it may concern ;-stipulating that the loss should be paid to the individuals named :—And it was held, that the persons named were entitled to recover the whole sum insured, although it appear that they own but one half of the subject insured.

In Lawrence and Whitney v. Van Horn & Clarkson, 1 Caines 276, it was a joint adventure by three parties, having distinct interests. The plaintiffs being one of the parties, effected an insurance to a certain amount, on the cargo generally, whether in their own names or as owners, does not appear; and it was contended that the legal construction of the policy was, that the whole cargo was insured, and that it was not competent for a party, under such a policy to aver in his declaration an interest in one third and recover accordingly; that he was bound to specify in his policy the interest in the cargo which he intended to insure. But it was held by the court that the assured is not required to state the particular interest or proportion of interest which he intends to have insured; that it is sufficient if he have an insurable interest to the amount insured, and it is immaterial whether it be a distinct or individual share. And it is remarked that it may often be difficult to ascertain the interest of each with certainty; that the owners are equitably entitled to their shares in severalty, and that the interest of each ought to be permitted to be severally enforced under a general policy. In that case, it appeared that the insurance was in fact intended for the several interest of one of the parties, and a witness who was one of the partners, testified that the plaintiffs had no authority to insure except on their own account.

Where the plaintiff chartered a ship from R. to T. and back to the United States, for which he was to pay $750, at T, and $750, on herreturn. A cargo was put on board at R. by a stranger, the freight of which, amounting to $1003, was to be paid to the plaintiff at T——— Plaintiff effected insurance for $1000, on freight at and from R. to T. and at and from thence to the United States, and $500, on freight at and from T. to the United States, the freight being valued at 1500 dollars. The ship was lost on outward passage, so that nothing become due from the plaintiff to the owner. It was held, that the plaintiff had an insurable interest; that it was protected by the terms of the policy; and that if the valuation was fairly made, with a knowledge of all the

facts, the plaintiff was entitled to recover $1000, pursuant to the valuation, but if the valuation was evasive and a cover for a larger sum, it should be set aside and the plaintiff should recover according to his actual interest. Clark v. Ocean Ins. Co. 16 Pick. 289.

A policy of insurance upon profits valued at 1000 dollars, and it appeared that the plaintiff had entered into a contract with one R., in which it was agreed, that plaintiff, in consideration of 1000 dollars paid by R., should have a right to take one half of any palm leaf imported by R., upon paying one half the costs and charges on its arrival at Boston; that subsequently having received a bill of lading of palm leaf shipped upon his account, applied to plaintiff to elect whether he would take one half or not; that plaintiff elected to take it, and paid R., 600 dollars, as an advance on it, which was repaid to him after it was known that the palm leaf had been discharged at Charleston in a damaged condition. Held, that plaintiff had an insurable interest in the profits, and was entitled to recover for a total loss, notwithstanding a small salvage had been received by R. French v. Hope Ins. Co. 16 Pick. 397.

3. Description of the property or subject of insurance.

The representation must be true in substance; a false representation is not a breach of the contract unless it be material. Wilde, J. in 10 Pick. 535. If it does not in fact effect the rate of insurance or change the actual risk, it can scarcely be deemed material. 7 Wend. 72. A mistake or omission by the assured in his representation of the risk, whether wilful or accidental, if material to the risk insured avoids the contract. Fowler v. The Aetna Ins. Co., 6. Cowen, 673; 4 Mass. 337.

The proposals and conditions attached to the policy form part of the contract, and have the same force and effect as if contained in the body of the policy. Duncan v. Sun F. Ins. Co., 6 Wend. 488. The stipulations in policies are considered express warranties. ib.

The nature of the assured's interest need not be stated in the policy, nor disclosed to the underwriter when the policy is subscribed. 13 Mass. 66. 544; 17 ib. 613. However, if the underwriter makes inquiry, there must be no concealment, nor false representation or affirmation. 13. ib. 67; 269.

Though the insurance against fire is restricted to the assured specially named in the policy. But the indemnity to the assured will embrace his entire interest in the subject insured; and no principle, or adjudged case, prescribes a narrower rule of insurable interest of a policy against the perils of the sea. The subject of insurance may be such as not to admit of any other insurable interest, than the beneficial ownership; whatever interest the assured might insure against maratime risks, he may insure against fire. And, indeed, the marine policies usually, if not universally, comprehend an indemnity against loss or damage by fire, during the voyage or term for which the insurance is effected; and the only difference between a marine policy which enumerates loss by fire as one of the risks insured against, and a fire policy insuring against loss or damage by fire, is that the one protects the property

from loss by fire on board of a ship, and the other from fire in a warehouse. Per Jones, C. J. in 1 Hall, 113.

The policy should contain a true description of the subject of insurance; but a trifling inaccuracy will not vitiate. Thus, in Hall v. Molineux, 6 East, 385, a mistake in the ship's name was held not to be material if its identity be proved. So, though the goods insured, have been described by wrong marks. Yet if the wrong description was made by mistake, and it is immaterial to the risk, whether the description was by one mark or another, the variance is immaterial. Ruan v. Gardner, 3 Wash. C. C. R. 146.

It is well settled, as an established principle of the law of insurance, that a bona fide equitable interest in property of which the legal title is in another, may be insured under the general name of property, or by a description of the thing insured, unless there be a false affirmation or representation, or a concealment after an inquiry of the true state of the property; and that the applicant need not represent the particular interest he has at the time, unless inquired of by the company. By the Court, Nelson, J. in Tyler v. Aetna Ins. Co. 12 Wend. 507; Locke v. North Am. Ins. Co. 13 Mass. 61; Bartlett v. Walter, ib. 267; Oliver v. Green, 3 ib. 133. 4 ib. 330; 8 Pick. 89. And such is the doctrine of the courts in England. In the case from Wendell, Tyler (plff.) in his application to the defendants' agent, wrote thus "I wish to effect an insurance at the office, of which you are the agent, on my house in which I reside," &c. adding, “I would wish to insure $1800 on my buildings for one year." Subsequently defendants insured plaintiffs' two story frame house for $1500. It appeared on the trial that Tyler held a contract for a deed of the premises, upon which he had paid about 800 dollars; and about five hundred dollars more remained to be paid :-Held, that he had an insurable interest in the 'property, and was not bound to disclose the nature or extent of his interest on the application, unless particularly inquired of by the company; and that he had a right to insure as general owner. Nelson, J. in delivering the judgment of the court says:-"The nature and extent of the interest of the insured may in some instances be material facts in making up an estimate of the risk and rate of premium, and upon general principles, applicable to this action, a disclosure would seem to be required ; but generally they cannot be so material as to justify a conclusion that they would have varied the premium paid. The necessity of disclosing the title of the applicant would greatly embarrass the operation of insurance, without affording any essential benefit to the offices. Any error in the description of title might be fatal. The rights of the insurer are sufficiently guarded, by having it in his power to exact, by inquiry, a description of the interest of the applicant, and by the recovery being limited in cases of loss to the value of the interest proved on the trial. The minuteness of the proposals and conditions, as to the description required of property to be insured, without specifying the nature or extent of the interest, affords a reasonable inference that this information is not deemed generally material and indispensable. The insurer is only responsible to the extent of the interest of the applicant, and that must be shewn upon the trial. The only object, therefore, in the previous disclosure of it, is, to enable the insurers to estimate the risk and pre

mium." Again-"we do not perceive how he could be more deeply interested in the preservation of the property by having the fee than he now is; and the materiality of the disclosure is founded upon the idea that his interest in the preservation would be less in the present state of the title."

By Factors or Commission Merchants. The form of insurance, now in use, is by a general policy, in the name of the factor or commission merchant, on all goods that may be in his store or warehouse, at any time within a given period, to a specified amount, whether held by him as owner, or in trust, or on commission. De Forest v, The Fulton Fire Ins. Co. 1 Hall, 84. Defendants insured De Forest and Son, the plaintiffs, against loss or damage by fire, to the amount of $10,000, on goods and merchandise, hazardous and not hazardous, as well the property of the assured, as held by them in trust or on commission, contained in the Store No. 82 South street, for the term of one year. And the insurers promise and agree to make good to the insured, all such loss or damage, as should happen by fire to the property; such loss or damage to be estimated according to the true and actual value of the property at the time the loss should happen. A fire happened within the year, by which loss and damage was sustained on goods and merchandise, partly the property of the plaintiffs, and partly held by them on commission, then in the store described in the policy, to a large amount. The question was upon the extent of the liability of the insurers for the goods held on commission:-the plaintiffs insisted upon the right to recover the full amount of the loss and damage to those goods by the fire; and the defendants contended, that they were bound to indemnify to the amount only, of loss, sustained by the plaintiffs in their own right thereby. The insurers insisted that the plaintiffs were entitled to recover to the amount of their advances on the goods on commission, with interest, and their mercantile commissions and charges as factors; and that these were the only interests the plaintiffs had at risk at the time of the fire, and that all they could claim is an indemnity to themselves for their own loss. The court were of opinion that the plaintiffs were entitled to judgment for the amount of the entire loss sustained on the goods the plaintiffs held on consignment for sale.

Goods held in trust or on commission cannot be covered by a mere insurance of the assured's own property; they should be specified in the policy as goods held in trust or on commission :-especially where the condition of the policy expressly declares, that "goods held in trust or on commission," shall not be covered, unless they are insured as such. Bricta v. N. Y. Lafayette Ins. Ce. 2 Hall, 372. In this case, the plaintiff effected an insurance to the amount of 800 dollars, " on furniture and goods contained in his counting room, No. 3, Phoenix Buildings." Among the items of loss, the plaintiff claimed the right to recover the value of certain piano fortes, watches, &c. belonging to other persons, but which were deposited with him for sale, and on which he had made advances. His business was not that of a commission Merchant, and it did not appear that there was any agreement by which he was to receive a commission for selling. Held, that they were not covered by the policy. Mr. Justice Oakley, makes the following observations :