#### Charles Stebbins *versus*The Globe Insurance Company.

A *representation*as to the situation of buildings to be insured, in relation to other contiguous buildings, made by the assured at the time of his application for insurance, does not amount to a *warranty*that such buildings *are,*or that they shall *remain,*during the continuance of the risk, in the situation described by the representation, unless such representation appear upon the face of the policy-If, upon an application for insurance, the assured describe the premises to bo insured, by a diagram or otherwise, and represent the ground contiguous to such premises as “ *vacant,”*such representation does not amount to a *warranty*that the contiguous ground shall remain vacant during the continuance of the risk; neither is the assured prevented from building upon such vacant ground, by any prohibition in the policy, express or implied.

A fraudulent concealment of circumstances *material to the risk,*will vitiate the policy ; and the assured cannot recover in *any*case, where the loss is occasioned by his own fraudulent, improper, or negligent acts.

Evidence as to a usage existing at New-York, that upon the occurring of any circumstance, whereby the risk is increased by the act of the assured, after the effecting of the insurance, notice thereof shall be given to the assurers, so that they may have the option of continuing the policy, or annulling it, cannot be received to alter the legal effect or operation of the contract.

This was an action upon a policy of insurance against fire. The policy bore date the 5th of January, 1827, and by it, the plaintiff was insured by the defendants to the amount of $1750, for one year, (commencing on the 10th day of December, 1826,) *"*on a frame *building,*in *three*tenements, situated on the corner “ of New-York Wharf and Commerce-street, in the city of Mo- “ bile, privileged to contain hazardous goods, per report No. “ 36,748, filed in the Washington Office.”

The cause was tried before Mr. Justice Oakley. At the trial, it was proved that the premises insured were totally destroyed *by fire in the month of*October, *1827;*and there was no controversy as to the interest of the plaintiff, or the sufficiency of his preliminary proofs.

The company set up, as their defence, the breach of a warranty implied in the policy, (as they contended,) on the part of the plaintiff, that he would not, during the continuance of the risk, erect any building upon certain vacant ground, contiguous to the premises insured. They therefore introduced the plaintiff’s ap*633plication for insurance as evidence, which bore date at Mobile, the 23d of November, 1826. This application was contained a letter addressed by the plaintiff to his correspondents in New-York, wherein he requested them to effect insurance in his behalf, to the amount of $3500, for twelve months, on his store, “ situated on the corner of Commerce-street and New-York “ Wharf;” and, for *particulars,*they were referred *to a diagram*annexed to the letter. By this diagram, it appeared, that Commerce-street was formed of planks projecting over the water, and the premises insured lay upon the corner of a Square comprehended between Commerce-street, Alabama-street, Water-street, and New-York Wharf.

Immediately adjoining the premises insured, were two other stores, and these three occupied the whole space fronting onCommerce-street, which intervened between New-York Wharf and Alabama-street. The space in the rear of these stores, and between them and Water-street, was marked on the diagram as *“ vacant,’’*and there was also an alley-way near to Water-street, marked out on the same vacant space, as extending from Alabama-street to New-York Wharf; and the word “ vacant” was placed on the diagram between the premises insured and the alley. After exhibiting this diagram the defendants offered to prove, that after the insurance was effected, and during the continuance of the risk, the plaintiff had erected *other buildings*immediately contiguous to the premises insured, *and that the risk was thereby increased.*

To the admission of this evidence, the counsel for the plaintiff objected, upon the ground, that it did not constitute any defence to the action. The Judge decided that the evidence was not admissible, unless the defendants also meant to show that the plaintiff intended, at the time of effecting the policy, to build upon the vacant ground, and concealed that intention from the defendants; or unless they could show that the fire originated in, or was occasioned by, the adjacent buildings so erected. To this decision the counsel for the defendants excepted.

The defendants then introduced evidence, which tended, in some degree, to show, that at the time the policy was effected, *634there were other buildings *on the*square besides those designated on the diagram, or at least upon that part of it lying between the alley-way and Water-street; and it clearly appeared that the or th® plaintiff and other persons, had erected buildings, near to the premises insured, on the vacant ground, after the policy was effected, and during the continuance of the risk.

The defendants then offered also to prove, that there existed a *usage*at New-York, whereby the insured was bound to give notice to the insurers of any act done by himself after effecting the policy, which increased the risk; and that by such usage, the insurers had the privilege of continuing the policy after the notice, or of abandoning, it at their option. To the introduction of this evidence, the plaintiff objected, and it was overruled by the presiding Judge. To this decision, the defendants also excepted. There was no evidence offered to show that the fire, which destroyed the plaintiff’s store, originated in the buildings erected on the ground which was vacant, when the policy was made; *neither*did it appear that the fire approached the premises insured, through the medium of the new buildings.*

Upon this evidence, the Judge charged the jury, that the representation made by the plaintiff, as to the situation of the premises insured, in relation to other contiguous buildings, did not amount to a warranty that the ground, designated as “ vacant,” *should be kept so*during the continuance of the risk; and that the erection of other buildings by the plaintiff, after the date of the policy, on the vacant ground, did not vitiate' the policy, unless the intention to erect such buildings existed in the mind of the plaintiff at the time he effected the insurance. That in such case, there would be a fraudulent concealment, on his part, of a fact material to the risk; but that the burthen of proving such fraud, rested upon the defendants.

*635The Judge also instructed the jury, that they were to find whether the representation made by the plaintiff to the defendants as to the situation of his store, in reference to other contiguous buildings, was true *in point of fact:*and if not true, whether the difference between the actual and the represented situation of the building materially enhanced the risk at the time the policy was effected. That if the representation was untrue in fact, still that their verdict would be for the plaintiff, unless the risk was materially increased by the actual situation of the store, in relation to the other buildings, or unless the plaintiff had concealed such actual situation with a fraudulent design.

The Judge also further charged the jury, that as the word " contiguous,” when applied to buildings, was uncertain and indefinite, they must give it such a meaning as they supposed was intended by the parties. That the proof on the part of the defendants, as to the existence of other buildings between the alley-way and Commerce-street, besides those designated on the diagram, was vague and uncertain; but if the jury were satisfied that such buildings were placed upon the ground assumed to be vacant, they were then to determine whether the risk was materially enhanced by such buildings. The jury were also charged that they were to determine whether the plaintiff’s representation, as to the vacant ground in the rear of the buildings on Commerce-street, extended to Water-street, or only to the alley, leading from Alabama-street to New-York Wharf. That on this point the parties differed, and the jury, therefore, were to draw their own conclusions from the facts; if they supposed the representation extended to Water-street, then they were to determine whether the buildings on that street were so contiguous to the property insured, as to affect the risk.

The jury found ¿ verdict for the plaintiff, under an arrangement between the parties, that the defendants should have leave to make a case, and turn the same into a bill of exceptions on the points of law raised at the trial.

A case having accordingly been made, the defendants now moved for a new trial, and the questions raised were argued *636
      *by Mr. T. L. Ogden*and *Mr. Slosson*for the defendants, and by *Mr. D. Lord*and *Mr. G. Griffen*for the plaintiff.

The defendants relied on the following points *%*I. That the *description*specifically referred to in the contract, and required by the proposals for insuring, annexed- to the policy, ought to be considered as a *warranty;*and being untrue in point of fact,, that the plaintiff was not entitled to recover.

II. That the description was binding on the assured, so far as it was connected with his own acts, during the continuance of the risk, whether considered as a warranty or as a representation ; and therefore, that the testimony offered on the trial, as to the subsequent erection of contiguous buildings, by the assured, and of the increase of risk thereby produced, was material and ought to have been admitted. But considering the description as a representation merely, that the intention- of the assured, at the time of the insurance, to erect other buildings on the ground then vacant, ought to have been inferred *prima facie*from the circumstances proved, and on this point that the verdict was against the evidence.

III. That the evidence as to usage, and the general practice in cases of alteration in the condition of the property insured, and change of circumstances relating to it, proceeding from the acts of the assured himself, was admissible and ought not to have been rejected.

IV. That the representation as to the vacant space in the rear of the buildings on Commerce-street, applied to all the ground between those buildings and Water-street, and as matter of construction the court ought so to have instructed the jury.

V. That the misrepresentation of the assured, as to the situation and circumstances of the property, in regard to surrounding buildings, and as to the extent of the vacant ground was *637material; and on this point also, that the verdict was against the weight of the evidence.

In support of these positions it was observed, that applications for insurance are made, by the parties, the ground upon which the company are to regulate their contracts, and are therefore to be considered as incorporated into the agreement itself. That the defendants only desired that a fair and liberal interpretation might be applied to the application for insurance; and that according to *that*interpretation it amounted *to*a warranty. That the *effect*of the warranty, as to the regulation of the contract, was matter of law.

*Mr. Ogden*and *Mr. Slosson.*

The party who makes an application for insurance is required, amongst other things, to describe the property to be insured, in respect to contiguous buildings. In compliance with this requisition, the plaintiff described the premises as having contiguous buildings on *one side,*but none in their rear. In this state of things, the premises were clearly exposed to less hazard than if the rear were filled with contiguous buildings. Suppose the ground designated as vacant on the diagram had been, in fact, filled with other buildings at the *time of the application*for insurance, as it afterwards was; would there not have been in this case a clear breach of the description ? As there is danger of some kind to be guarded against, this is not in itself an immaterial circumstance. The company had the election after the representation was made, either not to assume the risk at all, or if thus assumed, to fix their own premium; and this premium would be graduated of course, by the description contained in the application.

If then it was an essential part of the representation, that it should be *true*in this particular, it was a part of the contract, that it should *continue*so during the time the policy was to run. This is a correct principle in all cases of marine insurance, (as in warranties of neutrality, of convoy and the like,) *leeause the representation is a part of the contract;*and the party cannot, *638
      *by his own*act, vary the relation in which he is placed by his own agreement.

In this case there was also a concealment. The plaintiff must have had the intention to build upon the vacant ground when he effected the policy, because he proceeded to erect such buildings, within a short time after the date of his insurance. In contracts of insurance, good faith is required, and the plaintiff was bound to communicate all circumstances which were material to the risk.

II. But was there not a *warranty*on the part of the plaintiff, not only that the premises were, in fact, as he described them to be, but that they should *remain*so during the continuance of the risk ?

The first condition of insurance attached to the policy, requires a true statement as to the actual condition of the property to be insured, and the contract is made upon the faith of this statement. The statement, then, is incorporated into the contract, and its materiality is a matter entirely between the parties. Contiguity of other buildings is certainly material, and correctness in this part of the representation, was of the last importance.

III. If the statement was a part of the contract it was of course a warranty, and if a warranty, it was co-extensive with the duration of the contract. [6 *Cow,*673, *Fowler v. The Ætna Insurance*Company.]

*Now the*representation here is, *that the*premises *to be*insured were entirely detached from all the other buildings of the town, except those laid down on the diagram. There was then a material misdescription, *which,per se,*rendered the policy void. This description, as contained in the diagram, ought not to have been put to the jury upon the question of risk, because it was matter of law upon the face of the representation. Upon the diagram, the whole square or block, except that part which was on Commerce-street, is described as vacant; whereas, in point of fact, there were other buildings upon it at the very time, and *639afterwards, more extensive erections were made by the plaintiff himself. But who is to prove the exact situation of the buildings at the time when they were insured ? If this representation was a warranty, then the plaintiff is bound to show, as a condition precedent to his right of recovery, that he had complied with all the requirements of his contract.

But the Judge was wrong in excluding the testimony, even if the application for insurance be taken as a *representation.*Every thing which leads to the making of the contract, is matter of proof under the representation ; for representations may be executory. A warranty *to depart*with convoy is not complied with, if the convoy be abandoned before the voyage be ended. *[Park on Ins.*395. *Doug.*74., n.] So here} the representation was a *continuing*one, and was co-extensive with the duration of the contract. [2 *Caines’ Rep.*73, *Goold v. The United Insurance Company.]*The representation when taken thus strictly, is perhaps confined to the party’s own acts ; nevertheless to this extent it enters into the contract. In the case of *Murray v. Alsop,*(3 *John. Cas.*47,) the representation was, that the vessel insured should have a bill of sale. She had one, at the time of sailing, but it could not be produced at the time of her capture, and it was held that the warranty was not complied with. *[See also Doug.*271, *Size v. Fletcher. Park. on Ins.*133.]

Can the assured after the making of the policy, do any act *to*increase the risk ? The Judge, at the trial, excluded all testimony showing an increase of risk, unless accompanied by proof that the assured intended to erect additional buildings at the time when he effected the policy, or unless the defendants could show that they were thereby actually injured. But we contend, that if the risk *was increased,*the policy was *void ;*and the question for the jury was, not whether the defendants *sustained injury*by the buildings subsequently erected, but whether the risk was increased, The representation was material to the risk as we suppose, but that cannot now be ascertained, because all the testimony relating to it, was excluded at the trial. At all events, the representation was a material inducement to the con*640tract, and if so, the plaintiff could not, by his own act, defeat the of the parties.

Upon the point of usage, the testimony was also improperly excluded. If the plaintiff altered the state of the buildings, he was bound to communicate that fact to the company, that it might be known whether they would continue the risk or not. The contract was made in New-York, and was of course subject to the custom there,, and the plaintiff was bound to know it. Usage enters into all mercantile contracts, and in this case it was of vital importance, and the evidence necessary to establish it should have been admitted. [2 *Marshall*570, *Eng.*Ed.]

There was also error in this, at the trial; the diagram should not have been submitted to the jury for a construction as to its meaning. It is a written representation, and as such, should have been construed by the court.

For the *plaintiff*it was contended, I. That the erecting of *buildings in the*rear of the premises insured, was not prohibited by any stipulation in the policy express or implied, and could not therefore vitiate the contract.

II. That the evidence offered as to the usage of persons in New-York, who alter their buildings after insurance is effected, and the opinions of underwriters there as to the effect of such alterations upon the policy, were properly rejected.

*Mr. Lord*and *Mr. Griffen.*

As to the usage, if proved, its effect was to alter the clear terms of the contract, and, in fact, to engraft upon it a new clause of vital importance. The evidence was not offered to explain the meaning of a particular phrase,' or the usage as to a particular trade, but its object was to put a construction upon the - agreement. It is well settled, that the plain terms of a clear agreement, cannot be altered by proof of usage. *[Parkinson v. Collier, Park*416. *Homer v. Dorr,*10 *Mass. Rep.*26. 6 *Taunt.*446. *Aymar v. Astor,*6 *Cow. Rep.*266. *The N. Y. In. Co. v. Thomas,*3 *John. Cas.*1.]

*641Here the custom is local, it is confined to the City of New-York, and cannot be extended to parties residing in other states or countries. The custom of one manor cannot govern another, and in Mobile it may be different from our own. Where a contract is made with a *direct reference*to a foreign country, the laws and customs of that country ought, perhaps, to be the criterion by which it is to be construed.

But a custom to have force, must be so prevalent, as that *both*parties may be supposed to know the custom, and to contract with reference to it. Here the supposition of any personal acquaintance with the customs of New-York, is negatived by the terms of the first condition annexed to the policy, which contemplate that a policy by a non-resident may be effected by letter.

Every custom is in derogation of the common law, and it ought therefore, to be clear, that both parties were acquainted with it, and had reference to its terms, in making their contract. But here there is nothing to charge such knowledge upon the plaintiffj and the evidence offered was properly rejected.

In support of the plaintiff’s first proposition it was contended that the erection of new buildings, contiguous to that insured, did not vitiate the policy. The defendants (it is said) do not allege that there is any *express*warranty that the contiguous land should *not*be builded upon, and if any such warranty exist, it must be implied from the nature of the engagement. But if any warranty can be implied, the defendants must assume, that the vacant contiguous ground, was under the control of the plaintiff, at the time when he effected his insurance. Now there is no evidence before the court, either that the plaintiff could control the contiguous vacant ground, or that he made any representation to that effect to the defendants. The defendants certainly knew that the contiguous land was vacant, and as they made no inquiry concerning the plaintiff’s power over it, they made their contract with a perfect knowledge that the vacant ground was *liable*to be built upon. They have, then, with notice of all the circumstances, graduated the risk according to their own discretion. They have charged the plaintiff with their own premium, and cannot pretend that they have been deceived.

*642But it is said, that the conditions of insurance require a representation as to the contiguous buil dings. So they also require to know who occupy the contiguous buildings, *how*they are occupied, and' the descriptions of goods contained in them. Will it be contended, that if, at the time the insurance was effected, a contiguous-building was occupied as a dwelling, that the policy is destroyed, if the purpose for which such building was occupied, be changed for one more hazardous ? If this be the true construction of the contract, then the interest of the assured may at any time be defeated by the act of a third person. The defendants themselves will hardly contend for a construction which is to be carried to this length.

So also it is said, that the application for insurance makes a part of the contract, and that the representation therein made, amounts to an express warranty that the contiguous ground was not only vacant when the policy was effected, but that it should *continue*to- be vacant during the continuance of the risk.

But every express warranty must appear upon the face of the policy itself. [3 *Kent’s Com.*235. *Phil. on Ins.*125.] The supposed exceptions are to be found in those cases where the warranty is contained in the proposals, which form a part of the policy. [1 *H. Bla.*254. 6 *D. and E.*710.] The rule suggested by Phillips, that a simple reference to documents make a part of the policy, is incorrect.

In this case, the application for insurance is to be taken in connexion with the first condition annexed to the policy, and that shows it to be a representation merely. *If the representation, be false, whereby the defendants are induced to take the risk at a premium less than that which they would have demanded, had the representation been true, then the policy is void.*This is the utmost extent to which the rule can be carried, and the question, whether the representation be true or false, must always have reference to the risk; for if the application be considered as an express warranty, then any alteration in the contiguous ground or buildings, though tending to lessen the risk, would be a breach of the warranty, and vitiate the policy.

But the notion, that there is an implied warranty that the as*643sured shall do nothing to increase the risk, is altogether unfoünded. The risk may be increased in a variety of ways, injury to the contract; for the assured may increase the number of his family, convert the building into a boarding-house, and under-let the apartments in his house for any trades not interdicted by the policy.

The contract between the parties, whatever it may be, is special and in detail, and the law will not raise any implied covenants or warranties. Where the contract is express, the law implies nothing. [*Vanderkarr v. Vanderkarr, 11 Johns. R. 122.]*Here the policy provides minutely as to every thing which shall vitiate the insurance, and has omitted every thing upon which the defendants rely. Hence “ *expressio unius est exclusio al-*“ terius.”

The contract provides, that the building shall not be applied to the purposes of hazardous trades, or for the storing of hazardous goods. But it claims no information respecting contiguous buildings between the date of the policy and its renewal. Were this omission *accidental,*it could not be remedied. But it is not accidental, and an express covenant that the assured should not improve his land, would be void as against sound policy. Suppose thé insurance to be for seven years, cannot the assured, during all that period, use his property for its obvious purposes, without endangering his contract *?*

If there be an implied warranty that the assured shall not put up a contiguous building, why is there not a like warranty that he shall not use a contiguous building, already up, for a hazardous purpose ? The only way in which the assured can forfeit his policy, (except by the violation of an express warranty or covenant,) is by doing that which is unlawful; as by setting fire to his own house, or by being guilty of some fraudulent practice, or perhaps by gross negligence.

Perhaps, if the *assured*were to use the contiguous land for some *unusual*purpose, such as erecting a brick-kiln thereon, whereby a loss should accrue, the law might interpose to *save*the assurers harmless. But in all these cases,.it must first appear *644that the loss occured *in consequence of*the fraud or negligence of the assured.

But in this case, there is nothing unusual in the appropriation of the contiguous ground to the purpose of erecting ware-houses thereon, and there is no pretence that the loss was occasioned thereby. No evidence was offered to show that the assured intended, at the date of the insurance, to erect buildings on the vacant ground, and if there was, the verdict of the jury upon this point, was conclusive. Neither was there any concealment, in point of fact, by the plaintiff nor is there any pretence of fraud on his part.

It cannot be, that the assured is bound, by any change of circumstances, to make a second representation, during the continuance of the first risk. By the twelfth condition of insurance, it is provided, that insurances may be *continued*under the original representation, where no changes have taken place; but where the risk is altered, then there must be a new representation, and another premium. Now this would be senseless, if a new representation were to be required during the continuance of the first risk. And if an original policy were void, for such change of risk, it would not be continued by a payment of a new premium on the old representation.

As to the argument drawn from marine contracts, it can have no application here, because there is no analogy between the two cases. The subjects of insurance are entirely different, and in marine policies, it is implied that certain things shall be done. If a vessel is to sail from one port to another, the contract is, that she shall proceed by the nearest usual route, as commercially *understood, and a*deviation makes another *voyage.*The deviation does not necessarily increase the risk, but it changes the voyage. So in all the cases put by the counsel for the defendants, some act is to be done by the assured, which is material to the contract. But here the argument is, that the assured is prohibit-ted from doing any thing; his hands are tied; his property must lie unimproved, and any act which alters the situation of the property, destroys the contract, whether it increases the risk or not *645The extent to which the argument unavoidably leads, proves its incorrectness, and carries with it its own refutation.

By the conditions of insurance annexed to the policy, it was required that applications for insurance on property *out of the city*of New-York, should be in writing, and specify the construction and materials of the buildings to be insured, and their situation with respect to contiguous buildings. And if the person effecting the insurance, should describe the premises otherwise than as they really were, bo that the same should be insured at less than the rate of premium specified in the printed proposals of the company, such insurance would be void.

Oakley, J.

This is an action on a fire policy, dated January the 5th, A. D. 1827. The property insured is described in the policy, as “a framed building in three tenements, situate on the “corner of New-York Wharf and Commerce-street, in the city of " Mobile, privileged to contain hazardous goods, *per report No.*" 36,748, *filed in the Washington Office”*The application for insurance, bears date at Mobile, on the 23d of Nov. *1826,*and gives a description of the premises to be insured; and, with a view to point out their situation with respect to contiguous buildings, there is subjoined to, or inserted in the application, a map or diagram, on which the store of the plaintiff is marked out, and also two stores adjoining thereto; and in the rear of the whole, the word “ vacant” is written. The New-York Wharf and Commerce-street, mentioned in the policy, are laid down on the diagram, and also two other streets, called Alabama-street and Water-street, forming in the whole a square, or parallelogram. The plan or map contains no building except the three stores abovementioned,—all of which front on Commerce-street.

At the trial, the defendants offered to prove, that subsequently to the insurance, the plaintiff had erected other buildings, immediately contiguous to the store insured, and on the ground represented as vacant, and that the risk of loss was thereby increased. The Judge rejected the evidence, unless the defendants meant to show that the intention of the plaintiff, at the time of effecting the insurance, was to erect these buildings, and that he had concealed that intention, or that the fire was occasioned by, or originated in the adjacent buildings so erected. To this decision of the Judge, the defendants excepted, and the first and principal question arising in this case is, whether the fact offered to be proved, would have avoided the policy.

It is contended, in the first place, that the application for insurance with the diagram, being referred *to*in the policy as a report on file in the Washington Office, is thereby incorporated in *646it, and is a warranty, not only that the ground marked on the diagram as vacant, was really so at the time, but that it should continue vacant during the running of the policy, and that the subsequent erection of any building, by the plaintiff, on such vacant ground, was a breach of the warranty.

It would be a sufficient answer to this position, to say, that there is no evidence in the case, showing that the application for insurance, is the report which the policy refers to. But as it seems to have been so considered at the trial, it is proper *to*assume the fact to be so, for the purposes of the present discussion.

In the case of *Delonguemare v. The Tradesmens' Ins. Co. (ante, p.*580,) we had occasion to consider how far a general reference in a policy to a description of the insured property, on file in the office of the assurers, constituted that description a part of the contract, and converted it into a warranty; and the conclusion arrived at was, that no representation ought to be held to be a warranty, except it -appeared on the face of the policy. The principles which led to that result, in that case, apply with greater force to the present; as the reference here, to the description of the premises, is less distinct and precise.

It is contended, in the second place, that the description of .the vacant ground adjacent *to*the insured premises, whether •considered as a warranty or a representation, was binding on the plaintiff, during the continuance of the policy; and that he had no right to erect buildings on such vacant ground, especially if such erections increased the risk.

It is clear, that there is no *express*prohibition in the policy *against the*erection of new buildings, contiguous *to*those insured; and it is difficult to see on what ground any such prohibition can be implied. The defendants have, by the terms of the policy, guarded against an increase of the risk, by an appropriation of the building insured to any hazardous business, or to the storing of hazardous goods not specially authorized, by suspending the policy during the continuance of the increased risk. They have not thought proper to introduce any such stipulation with respect to an increase of the risk, by the erection of adjacent *647buildings ; and it would be unreasonable to imply a prohibition of so important a character, when the party has omitted to express it.

Although the policy, in my judgment, is not rendered void by the subsequent erection of buildings adjacent to those insured, it by no means follows, that the insurers are compelled to bear any loss, which may be the result of such an act on the part of the assured. The contract of insurance, has its foundation in the mutual good faith of the parties. If the assured violates that good faith, in any circumstance *entering into the*creation of the contract, it is no doubt void. But if, subsequently to its formation, he acts with fraud, or gross negligence, or in bad faith, with respect to the subject matter insured, his rights, under the contract are not impaired, unless the loss, which he seeks to recover, is the result of his own misconduct. It is a general principle, that no man can derive a right of action against another, from his own violation of duty, or from his own illegal acts. Thus there is no stipulation in this policy, that the assured shall not set fire to the buildings insured. If he had done so, hé could not recover the loss, on the ground, not that he had violated any stipulation in the contract, but that he could not profit by the consequences of his own illegal or fraudulent acts. If, however, he had set fire to an adjoining building with the intent to consume the one insured, but no injury to that had in fact ensued, it could not have been contended, that the policy was thereby rendered void; notwithstanding the act would have been in the highest degree a violation of the good faith which was pledged to the insurers, that the risk should not be increased by any act of the assured.

An erection of buildings on vacant ground, by the assured, subsequently to the policy, and contiguous to those insured, whereby the risk is increased, stands upon the same principle. If buildings thus erected, should be removed before the occurrence of any loss, it could not be maintained that the policy would *be*thereby annulled. The act, not being in violation of any express stipulation in the policy, and not resulting in any actual injury to the insurers, the law would regard it as harmless and rightful; *648and if this be so, it seems clearly to follow, that the continuance of such erections, (as in the case now before us,) until the fire; cannot change the legal consequences of the act of erecting them, if they have in no way been the cause of the loss. The act of the assured in erecting them, may have been a breach of an implied understanding between the parties, that the situation of the insured premises, with respect to the contiguous buildings, should not be changed by the act of the assured so as to increase the risk; but if such increase of risk, has in fact, been without injury *to*the defendants, I hold that the policy is not affected by it.

Upon this view of the case I ruled at the trial, that evidence of the erection of buildings, by the assured, on the ground represented as vacant was immaterial, unless the defendants could show, that the fire which caused the loss originated in the buildings thus erected, or was communicated by them to the insured premises. The application of this principle to the case, seems to me to preserve unimpaired the rights of all the parties. The policy continues *binding on the*defendants, as to the risks, fairly assumed, while they cannot suffer from the acts of the plaintiff, by which those risks are alleged to have been increased. I think, therefore, that there was no error in the decision of the Judge, in excluding the evidence offered by the defendants on this point.

The defendants also offered to prove, that it is the usage *at New-Tork,*in case of the occurrence of any circumstance by the act of the assured, after effecting the insurance, whereby the risk is increased, for the assured to give notice thereof to the insurer, who is then to have the option of continuing the policy, or of annulling it. This evidence was also rejected by the Judge. It is contended by the defendants, that there was error in this respect also.

This evidence, it still appears *to*me, was properly rejected, on two grounds, 1st, that the usage offered to be proved was a *local*one, applying only to insurances on property, in the city of New-York; and 2dly, that if it were a general usage, it could not be given in evidence, to alter the legal operation and effect of the policy. It was not offered to explain the meaning, or extent of any stipulation expressed in the contract, but with a view to introduce into it, an entirely new and distinct condition.

*649The Judge also left it to the jury to decide, how far the plaintiff’s representation by the diagram, of the vacant ground in the rear of the insured premises extended, whether to Water-street, or to an alley dividing the lots fronting on Water-street, from those fronting on Commerce-street, which alley was laid down on the said diagram. The defendants now contend, that this was matter of law, and should have been determined by the court. As a general rule, the construction of written documents offered in evidence is matter of law; but in the present instance, that rule does not seem applicable. The effect of the diagram or map in question, could be ascertained only by determining the extent, to which the word “ vacant” was intended to be applied, and this depended on the location of the word on the paper, and by its relative situation with the various streets and alleys laid down on the map. It seemed necessary, therefore, to submit the paper to the inspeetion of the jury; and it was their province to ascertain the facts which were to be inferred from it.

*Motion for a new trial denied.*

[D. Lord, *Att’y for the plff.*Ogden and Huggins, *Att'ys for the*defts.]