BIAYS v. UNION INS. CO., 3 F. Cas. 329

WASHINGTON, Circuit Justice, (charged the jury.) It is the duty of the assured to represent truly to the underwriter every fact within his knowledge or power, material to the risk; and if he omit to do so. the policy is void. If he communicates all the information which he has honestly obtained, he cannot be charged with misrepresentation or concealment, if it should afterwards turn out that his informant knew more than he had disclosed, or had stated it untruly.

I say “honestly obtained,” because, certainly, if for fraudulent purposes, he avoided obtaining a full and true disclosure, the consequence would be the same, as if he had himself misrepresented the information given to him. Proceeding upon these principles, I think, that without going farther than I am authorized to do, I may safely say, that if Hannah is believed, there is no ground for the charge of misrepresentation. The difference between the information given to the plaintiff, as stated by West on his examination in court, and that stated in his deposition in July, is material, or not.

If not material, then the representation given to the office was substantially true; if material, then the witness, having contradicted himself, if his testimony in court is not more to be believed than that given out of court, he is not to be credited at all as to this point; and of course there is no proof of misrepresentation. But, on the contrary, Hannah proves, that the information given by West was committed to writing examined and approved by him, and this paper was shown to the defendant. Yerdiet for plaintiff.