Representation

In Practice. A doctrine by which a particular party, though not before the court in person, is so far represented by others that his interest receives such actual and efficient protection that the decree may be held to be binding upon him. 209 111. 141. In Insurance. The stating of facts by one applying for a policy of insurance, whether in writing or orally, expressly or by plain implication, preliminary and in reference to making the insurance, obviously tending to influence the insurer as to entering into the contract. 1 Phil. Ins. § 524; 12 Md. 348; 11 Cush. (Mass.) 324; 2 N. H. 551; 6 Gray (Mass.) 221. A representation is to be distinguished from a "warranty," which is a statement of facts by the insured,, which is a part of the contract. 21 Conn. 19; 49 Me. 200. There is no certain rule to determine whether particular statements are representations or warranties. Statements expressly declared to be warranties (78 Hun. [N. Y.] 222), or incorporated in the policy, actually (39 N. J. Law, 89) or by reference (45 N. Y. 80), are warranties, but otherwise the question is one of intent; the use of the word "warrant" not being conclusive (59 N. Y. 557), and a statement will be declared a representation unless the contrary intent is clear (98 Mass. 381). The importance of the distinction lies in the fact that breach of any warranty avoids the policy, while breach of a representation is fatal only when such representation is material to the risk. 98 Mass. 381. In Scotch Law. The name of a plea or statement presented to the lord ordinary of the court of session when his judgment is brought under review.

In Insurance. The stating of facts by either of the parties to a policy of insurance, to the other, whether in writing or orally, expressly or by plain implication, preliminary and in reference.to making the insurance, obviously tending to influence the other as to entering into the contract. Augusta Ins. & B. Co. v. Abbott, 12 Md. 348; Lee v. Fire Ins. Co., 11 Cush. (Mass.) 324; Sawyer v. Mut. Ins. Co., 6 Gray (Mass.) 221. A statement incidental to the contract, relative to some fact having reference thereto, and upon the faith of which the contract is made. May, Ins. 190. It may be affirmative or promissory., The distinction between representation and warranty must be carefully observed; the latter is a part of the contract, the former facts sufficient to bring him within the terms of the warranty, while the burden of proving the untruthfulness of representations, if any, is on the defendant Further, representations need not be literally complied with;./Etna Ins. Co. v. Simmons, 49 Neb. 811, 69 N. W. 125; but only in material points; while in cases of warranty, the question of materiality does not arise; May, Ins. § 183. All leasonable doubts as to whether statements inserted in or referred to in an insurance policy are warranties or representations should be resolved in favor of the assured; Providence Life Assur. Soc. v. Reutlinger, 58 Ark. 528, 25 S. W. 835. Representations in writing are, ipso facto, material; 4 H. L. C. 484; Campbell v. Life Ins. Co., 98 Mass. 381; Miller v. Life Ins. Co., 31 la. 216, 7 Am. Rep. 122. Representations are material though the fact represented may not relate directly to the risk; Valton v. Life Assur. Co., 20 N. Y. 32. Doctrines respecting representation and concealment usually have reference to those by the assured, upon whose knowledge and statement of facts the insurance is usually made; but the doctrine on the subject is equally applied to the underwriter, so far as facts are known to him; 3 Burr. 1905. In the absence of fraud, deceit, or misrepresentation, the assured cannot be protected by ignorance of the contents of the application, since it is his duty to inform himself of its contents before signing; Herndon v. Triple Alliance, 45 Mo. App. 426; and it is the duty of the assured to communicate all material facts, and he cannot urge as an excuse for his omission to do so that they were actually known to the underwriters, unless the knowledge of the latter was as full and particular as his own information; Sun Mut Ins. Co. v. Ins. Co., 107 U. S. 485, 1 Sup. Ct. 582, 27 L. Ed. 337. A misrepresentation though made unintentionally, or through mistake, makes the insurance void, notwithstanding its being free from fraud. See Mut. Benefit Life Ins. Co. v. Daviess’ Ex’r, 87 Ky. 541, 9 S. W. 812. The material falsity of an oral promissory representation, without fraud, is no defence in an action on a policy. If made with the intent to deceive, the policy may be thereby avoided. Promissory representations, reduced to writing and made a part of the contract, become substantial warranties; May, Ins. § 182. See Kimball v. Ins. Co., 9 Allen (Mass.) 540, 85 Am. Dec. 786. A substantial compliance with a representation is sufficient, — the rule being less strict than in case of a warranty; Miller v. Life Ins. Co., 31 la. 216, 7 Am. Rep. 122; Mut Benefit Life Ins. Co. v. Wise, 34 Md. 582. The validity of the policy does not depend on the literal truth of the. assertion; ACtna Ins. Co. v. Simmons, 49 Neb. 811, 69 N. W. 125. The substantial truth of the state- Insurance against fire and on life rests upon the same general conditions of good faith as marine insurance; but in the first two classes the contract is usually based mainly upon statements by the applicant in written replies to numerous inquiries expressly referred to in the policy, which answers are thus made express warranties and must, accordingly, be strictly true whether their being so is or is not material to the risk. The inquiries are intended to cover all material circumstances, subject, however, to the principle, applicable to all contracts, that fraud by either party will exonerate the other from his obligations, if he so elects; Smith v. Ins. Co., 24 Pa. 320; Glendale Woolen Co. v. Ins. Co., 21 Conn. 19, 54 Am. Dec. 309; Clark v. Ins. Co., 8 How. (U. S.) 235; 2 M. & W. 505; Continental L. Ins. Co. v. Rogers, 119 111. 482, 10 N. E. 242, 59 Am. Rep. 810; Alabama G. L. Ins. Co. v. Johnston, 80 Ala. 470, 2 South. 123, 59 Am. Rep. 816. See Cobb v. Ben. Ass’n, 153 Mass. 176, 26 N. E. 230, 10

In Contracts. A statement made by one of two contracting parties to the other, before or at the time of making the contract, in regard to some fact, circumstance, or state of facts pertinent to the contract, which is influential in bringing about the agreement. In insurance. A collateral statement, either by writing not inserted in the policy or by parol, of such facts or circumstancos, relative to the proposed adventure, as are necessary to be communicated to the underwriters, to enable them to form a just estimate of the risks. 1 Marsh. Ins. 450. The allegation of any facts, by the applicant to the insurer, or vice versa, preliminary to making the contract, and directly bearing upon it, having a plain and evident tendency to induce the making of the policy. The statements may or may not be in writing, and may be either express or by obvious implication. Lee v. Howard Fire Ins. Co., 11 Cush. (Mass.) 324; Augusta Insurance & Banking Co. of Georgla v. Abbott, 12 Md. 348. In relation to the contract of insurance, there is an important distinction between a representation and a warranty. The former, which precedes the contract of insurance, and is no part of it, need be only materially true; the latter is a part of the contract, and must be exactly and literally fulfilled, or else the contract is broken and inoperative. Glendale Woolen Co. v. Protection Ins. Co., 21 Co.nn. 19, 54 Am. Den. 309 In the law of distribution and descent. The principle upon which the issue of a deceased person take or inherit the share of an estate which their immediate ancestor would have token or inherited, lf living; the inking or inheriting per atirpea. 2 Bl. Comm. 217, 517.

In Scotch law. The name of a pica or statement presented to a lord ordinary of the court of session, when his judgment is brought under review.

— False representation. A deceitful representation, or one contrary to the fact, made knowingly and with the design and effect of inducing the other party to enter into the contract to which it relates.

— Misrepresentation. An intentional false statement respecting a matter of fact, made by one of the parlies to a contract, which is material to the contract and influential in producing it.

— Promissory representation. A term used chiefly in insurance, and meaning a representation made by the assured concerning what is to happen during the term of the insurance, stated as a matter of expectation or even of contract, and amounting to a promise to be performed after the contract has come into existence. New Jersey Rub-bar Co. v. Co.mmercial Union Assur. Co., 64 N. J. Law, 580, 46 Atl. 777.

— Representation of persons. A fiction of the law, the effect of which is to put the representative in the place, degree, or right of the person represented. Civ. Code La. art. 894.

1. A statement regarding a fact. False representation. Not necessarily, ' See " The Reporters," &c., 1 South. Law E. 86, 2-23, 497 (1875); 3 id. 268 (1877); 5 id. 53 (1879); 25 Alb. Law J. 261 (1380); History of the Law Reports, 1 Law Quar. Eev. 136^9, 287-97 (1885). = Myers v. Callaghan, 10 Biss. 139, 150 (1881), cases. s Banks v. West Publishing Co., 87 F. E. 56 (1886), cases, Brewer, J.; Banks v. Manchester, 83 id. 143 (1885); 24 Am. Law Eev. 524-27 (1885), cases; 3 Kan. Law J. 242 (1886), cases. « Nashi). Lathrop, 142 Mass. 35-39 (1886), cases; State i although often, a statement of fact known to be untrue. Misrepresentation. A statement of fact not true in some particular, and misleading another to his injury. In alleging a tort in the sale of an article, it is necessary to use "' falsely represented," or an equivalent phrase implying fraud.* (1) Fraud consists in falsely representing a thing as a fact, or in the deceitful concealment of an existing fact.^ Where a party, by words or deeds, intentionally misrepresents a material fact, or produces a false impression, in order to mislead or to obtain an undue advantage of another, he is chargeable with positive fraud. The misrepresentation must be (1) of something material, constituting the inducement or motive to the act or omission of the other, and by which he is actually misled to his injury; and (2) as to something as to which one party places a known confidence in the other — not of a matter of opinion, equally open to both for examination and inquiry! and where neither party is presumed to trust to the other, but to rely upon his own judgment. ^ The misrepresentation which will vitiate a contract of sale must relate not only to a material matter constituting an inducement to the contract, but also to a matter respecting which the complaining party did not possess at hand the Ineans of knowledge; and must be a misrepresentation on which he' relied, and by which he was actually misled to his injury.* In some cases the falsity of the representation, not the bong, fides, is the determining inquiry.* See Knowledge, 1. ' (2) a. In the law of fire insurance, the statement of something as a fact which is untrue, and which the assured, knowing it to be not true, states with an intent to deceive the underwriter, or which he, without knowing it to be true, states positively as true, and which has a tendency to mislead, the fact being material to the risk.s As a representation to obtain insurance must always influence the judgment of the underwriter in regard to the risk, it must be substantially correct. It ' Cooper V. Landon, 102 Mass. 60 (1869). = [Grove v. Hodges, 55 Pa. 519 (1867). ' Smith V. Eichards, 13 Pet. 36-37 (1839), cases, Barbour, J.; Mason Lumber Co. D.,Buchtel, 101 U. S. 637 (1879); Buckner v. Street, 15 P. E. 368 (1883). < Slaughter v. Gerson, 13 Wall. 383-85 (1871), cases. Meld, J. See generally Welz v. Ehodius, 87 Ind. 12 (1882); Potts V. CSiapin, 133 Mass. 282-83 (1882); Clark ii. Edgar, 13 Mo. Ap. 351 (1882); Cooper v. Schlesinger, 111 U. S. 158 (1884). » Lynch v. Mercantile Trust Co., 18 F. E. 486 (1883), cases; Redgave o. Hurd, L. E., 20 C. D. 12 (1881); Be London, &c. Fire Ins. Co., 24 id. 153 (1883). differs from an express "warranty," as that always constitutes a part of the policy, and must he strictly and literally performed, i It is the duty of the assured to communicate every material fact; he cannot ui'ge as an excusfe for his omission that a fact was known to the miderwriter, unless the latter's knowledge was as full and particular as his own. 3 Where a policy contains contradictory provisions, or leaves it doubtfvd whether the exact truth should be a condition precedent, that the statements constitute a warranty is not to be favored. The policy will be construed against the insured, who prepares it.^ An " affirmative " representation is an affii Tnation of a fact existing when the contract begins; a " promissory" representation, a promise to be performed after the contract has come into existence.* A representation on information derived from others, reported truly and as resting on information, does not avoid the policy, if the information proves incorrect.* b. In the law of marine insurance, an explicit aflirmation or denial of a fact, or such an allegation as irresistibly leads the mind to the same conclusion.^ c. In the law of life insurance, all statements must be true when the materiality is removed from the consideration of a court or jury by an agreement that the statements are absolutely true, and that, if untrue in any respect, the policy shall be void.' Where there is no express condition that the statements and declarations made in the application are in all respects true, as far as affects the interests of the insurer, every statement and declaration must be true.. There is no place for the argument that a false statement was not material to the risk, or that it was a positive advantage to the insurer to be deceived by it. The statement need not come up to the degree of a warranty, nor be a representation even, if that conveys an idea of an affirmation having any technical character; as, where the insured, being "married;" stated that he was " single." At the same time, there are many cases to the effect that where false answers » Hazard v. New England Mar. Ins. Co., 8 Pet. *580 (1834), M'Lean,.1. See also 49 Me. 200; 21 Conn. 19; 34

insurances. A representation is a collateral statement, either by writing, not inserted in the policy, or by parol, of such facts or circumstances relative to the proposed adventure, as are necessary to be communicated to the underwriters, to enable them to form a just estimate of the risk. A representation, like a warranty, may be either affirmative, as where the insured avers the existence of some fact or circumstance which may affect the risk; or promissory, as where he engages the performance of something executory. There is a material difference between a representation and a warranty. A warranty, being a condition upon which the contract is to take effect, is always a part of the written policy, and must appear on the face of it. Marsh. Ins. c. 9, § 2. Whereas a representation is only a matter of collateral information or intelligence on the subject of the voyage insured, and makes no part of the policy. A warranty, being in the nature of a condition precedent, must be strictly and literally complied with; but it is sufficient if the. representation be true in substance. Whether a warranty be material to the risk or not, the insured stakes his claim of indemnity upon the precise truth of it, if it be affirmative, or upon the exact performance of it, if executory; but it is sufficient if a rial point, or if it be substantially, though not literally, fulfilled. A false warranty avoids the policy, as being a breach of the condition upon which the contract is to take effect; and the insurer is not liable for any loss though it do not happen in consequence of the breach of the warranty; a false representation is no breach of the contract, but if material, avoids the policy on the ground of fraud, or at least because the insurer has been misled by it. Marsh. Insur. B. 1, c. 10,8. 1. See 2 Caines’s R. 155; 1 Johns. Cas. 408; 2 Caines’s Cas. 173, n.; 3 Johns. Cas. 47; 1 Caines’s R. 288; 2 Caines’s R. 222; Ib. 329.