John Rohrbach, Respondent, v. The Ætna Insurance Company, Appellant

John Rohrbach, Respondent, v. The Ætna Insurance Company, Appellant. (Argued February 17, 1875; decided May 25, 1875.) This was an action upon a policy of fire insurance. It was argued with Rohrbach v. The Germania Fi/re Ins. Co. {ante, page 47). The insurance was upon the same buildings, and the question as to the insurable interest of plaintiff was the same in both cases. In this case no written application appeared, and it did not appear that he made any representation save to show the agent the instrument executed by his wife under which he claimed an interest. The question as to breach of warranty, therefore, did not arise. Another question, however, was presented in this case. Defendant claimed a breach of a condition subsequent. The policy provided that all persons having a claim thereunder should give immediate notice and render a particular account stating the ownership of the property insured ; also that any fraud, or attempt at fraud, would forfeit all claim under the , 'policy. In the account rendered plaintiff stated the property 'belonged to him as “ the legal heir of his wife ” and “ by purchase at auction.” Reid, that there was no breach of the condition; that there was no designed deception as defendant’s agent was fully advised as to the facts; that the statement that he was a legal heir of his wife, although incorrect, was not of a fact so much as of a legal conclusion which did not,, and could not, mislead, and that therefore plaintiff was entitled to recover. B. C. Chetwood for the appellant. ' J. A. Thompson for the respondent. [MAJORITY — Folger, J.,] Folger, J., reads for affirmance. All concur. Judgment affirmed.