On appeal from the Supreme Court, Passaic county.
For the plaintiff-appellant, Isadore Rabinowitz.
For the defendant-respondent, Arthur T. Vanderbilt (G. Dixon Speakman, of counsel).
The opinion of the court was delivered by
BROGAN, CHIEF JUSTICE. The trial in the court below resulted in a directed verdict for the defendant and from the judgment entered thereon the plaintiff appeals. The pleadings allege that the plaintiff owned a policy of insurance
on his automobile, issued by the defendant company, protecting him against financial loss arising from fire or theft of same; that the insured property was stolen and when discovered was found to be partly destroyed by fire. The answer of the defendant seeks to avoid liability on the insurance contract on the ground that the plaintiff breached certain warranties of the policy.
The first breach of warranty charged concerned the location of the insured automobile; the second concerned its ownership, the point being that the plaintiff was not, as represented in the policy, the unconditional owner of the automobile. The court found that both statements as to (a) where the auto would be kept and (b) the plaintiff's unconditional ownership of same, were warranties and that they had been breached, and the directed verdict resulted. The appeal challenges the action of the trial court on both these questions.
As to the first statement of the contract, with which we are concerned, it cannot be gainsaid that the policy, under the heading "warranted by the assured," reads, "5. The automobile described is usually kept in Private Garage, located Park Ave., Newark, N.J.," and that in fact the car had not been kept at that location for at least seven months prior to the happening upon which the claim is based. It was kept at Singac, New Jersey, and at Paramus, each of which locations is in a different county and some miles away from the place mentioned in the contract.
This condition, as to location, was written into the policy as a warranty by the assured. It is part of the contract which the parties made, in language that is plain and unmistakable and free from ambiguity as to what the intention of the parties was. It is an express warranty, affirmative in character as to the facts to which it applies and it is fundamental that the breaking of an express warranty avoids the contract whether it be of insurance or any other sort of contractual obligation.
It is argued that the warranty was merely one in proesenti and that the representation as to location, since it was in fact
true (the car having been garaged at Newark) at the time the contract was written, its subsequent breach did not void the policy. This view is illogical and unsound. The location of an insured auto is a material element in a contract providing for its insurance. The parties here so regarded it to the extent of writing in the location at which the car would be kept as a warranty. Contracts may not be changed materially without notice and assent of the parties and continue to preserve their inviolability. If the location of the property in question was of no consequence and recognized as immaterial ...