"Contracts of insurance may be forfeited or avoided by the breach or falsity of warranties contained therein, or of the representations of the insured which are collateral to the contract.

"A warranty is a part of the contract evidenced by the policy, and consists of an assertion of a fact, or an undertaking to do a particular act, upon the accuracy or performance of which the validity of the contract depends.

"A representation in insurance is a statement in regard to a material fact made by the applicant for insurance to the insurer with reference to a proposed contract of insurance." 15

Warranties may be either affirmative or promissory; and either express or implied. The effect of the breach of warranty upon the validity of the contract does not depend upon the question as to whether the facts warranted are material to the risk; the fact that they are put in the form of a warranty precludes any inquiry as to this question.16

14 Burritt vs. Saratoga County Mutual Fire Ins. Co., 5 Hill N. Y.), 188.

15 Amer. & Eng. Ency. of Law, Vol. XVI, page 919 and page 932.

Statements, in reality warranties, will be governed by the same principles, even though referred to under other terms in the contract. In Jeffries vs. Economical Mutual Life Ins. Co.,17 the Supreme Court of the United States said:

"We are to observe, first, the averment of the plea; that Kennedy, in and by his application for the policy of insurance, in answer to a question asked of him by the company, whether he was 'married or single,' made the false statement that he was 'single,' knowing it to be untrue; that in reply to a further question therein asked of him by the company, whether 'any application had been made to any other company? If so, when?' answered, 'No'; whereas, in fact, at the time of making such false statement, he well knew that he had previously made application for such insurance, and been assured in the sum of $10,000 by another company.

"Secondly, we are to observe the averment that the statements and declarations made in the application for said policy, and on the faith of which it is issued, are in all respects true, and without the suppression of any fact relating to the health or circumstances of the insured affecting the interests of the company.

"We are to observe, also, that other clause of the policy, in which it is declared that this policy is made by the company and accepted by the insured, upon the express condition and agreement that such statements and declarations are in all respects true. This applies to all and to each one of such statements. In other words, if the statements are not true, it is agreed that no policy is made by the company, and no policy is accepted by the insured.

16 McKenzie vs. Scottish Union, etc., Co., 112 Cal., 548; Amer.

Ins. Co. vs. Gilbert, 27 Mich., 429. 17 22 Wallace, 47.

"The proposition at the foundation of this point is this, that the statements and declarations made in the policy shall be true.

1 This stipulation is not expressed to be made as to important or material statements only, or to those supposed to be material, but as to all statements. The statements need not come up to the degree of warranties. They need not be representations even, if this term conveys an idea of an affirmation having any technical character. 'statements and declarations, ' is the expression - what. the applicant states and what the applicant declares. Nothing can be more simple. If he makes any statement in 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.

"There is no place for the argument either that the false statement was not material to the risk, or that it was a positive advantage to the company to be deceived by it.

"It is the distinct agreement of the parties, that the company shall not be deceived to its injury or to its benefit. The right of an individual or a corporation to make an unwise bargain is as complete as that to make a wise bargain. The right to determine what is prudent and wise, what is unwise and imprudent, and upon that point the judgment of the individual is subject to that of no other tribunal.

'The case in hand affords a good illustration of this principle. The company deems it wise and prudent that the applicant should inform them truly whether he has made any other application to have his life insured. So material does it deem this information that it stipulates that its liability shall depend upon the truth of the answer. The same is true of its inquiry whether the party is married or single. The company fixes this estimate of its importance. The applicant agrees that it is thus important by accepting this test. It would be a violation of the legal rights of the company to take from it its acknowledged power, thus to make its opinion the standard of what is material, and to leave that point to the determination of a jury. The jury may say, as the counsel here argues, that it is immaterial whether the applicant answers truly if he answers one way, viz., that he is single, or that he has not made an application for insurance. Whether a question is material depends upon the question itself. The information received may be immaterial. But if under any circu: stances it can produce a reply which will influence the action of the company, the question cannot be deemed immaterial. Insurance companies sometimes insist that individuals largely insured upon their lives, who are embarrassed in their affairs, resort to self-destructicn, being willing to end a wretched existence if they can thereby bestow comfort upon their families. The juror would be likely to repudiate such a theory on the ground that nothing can compensate a man for the loss of his life. The juror may be right and the company may be wrong. But the company has expressly provided that their judgment, and not the judgment of the juror, shall govern. Their right thus to contract, and the duty of the court to give effect to such contracts, cannot be denied.

"Of the authorities in support of these views, a few only will be mentioned. In Anderson vs. Fitzgerald, 4 H. L. Cas., 487, Fitzgerald applied to an insurance office to effect a policy on his life. He received a form of proposal containing questions required to be answered. Among them were the following: 'Did any of the parly's near relatives die of consumption or any other pulmonary complaint? ' And 'Has the party's life been accepted or refused at any office? ' To each of these questions the applicant answered 'No.' The answers were false. F. signed the proposal and a declaration accompanying, by which he agreed 'that the particulars above mentioned should form the basis of the contract.' The policy mentioned several things, which were warranted by F. among which these two answers were not included. The policy also contained this proviso, that 'if anything so warranted shall not be true, or if any circumstance material to this insurance shall not have been truly stated, or shall have been misrepresented or concealed, or any false statement made to the company in or about the obtaining or effecting of this insurance,' the policy should be void. On the trial before Mr. Justice Ball, he charged the jury, 'that they must not only be satisfied that the various false statements were false in fact, and were made in and about effecting the policy, but also that such false statements were material to the insurance.' A bill of exceptions was tendered on the ground that the jury should have been directed, 'that if the statements were made in and about effecting the insurance and such statements were false in fact, the defendants were entitled to a verdict, whether such statements were or were not material.' The exceptions were argued in the Court of Exchequer, where judgment was ordered for the plaintiff on the verdict. A writ of error was brought in the Court of Exchequer chamber, where the judgment was affirmed by a majority of seven to three. The writ of error to the House of Lords was then brought. Mr. Baron Parke, Mr. Baron Alderson, Mr. Justice Coleridge, Mr. Justice Wightman, Mr. Justice Erie, Mr. Justice Creswell, Mr. Baron Piatt, Mr. Baron Martin, and Mr. Justice Crompton attended.

"Opinions were delivered by Mr. Baron Parke, the Lord Chancellor, Lord Brougham and Lord St. Leonards, all concurring in reversing the judgment, on the ground that the question of the materiality of the statements should not have been submitted to the jury. This case was decided upon facts almost identical with the one before us, and presented the precise question we are considering. The counsel for the defendant asked for a ruling, that if the statements were untrue, the defendants were entitled to a verdict, whether they were or were not material. This was refused, and the judge charged that 'to entitle the defendants to a verdict the statements must not only be false, but material to the insurance. This was held to be error, and the judgment was reversed.

"Cazemove vs. Ass. Co., 6 C. B. (N. S.), 437 (and see Duckett vs. Williams, 2 Cromp. & M., 348), is a familiar case. The opinion was delivered by Cockburn, Ch. J. of the Common Pleas, and was decided in the same way. The case was affirmed in the Exchequer Chamber in 1860, 6 Jur. (N. S.), 826, 1860; 3 Big. Cas., 213; Price vs. Ins. Co., 17 Minn., 497.

"Many cases may be found which hold that where false answers are made to inquiries which do not relate to the risk, the policy is not necessarily-avoided unless they influenced the mind of the Company, and that whether they are material is for the determination of the jury. But we know of no respectable authority which so holds, where it is expressly covenanted as a condition of liability that the statements and declarations made in the application are true, and when the truth of such statements forms the basis of the contract."

Representations to avoid the contract must be material;18 and a substantial compliance with a promissory representation has been held to be sufficient.19