On appeal from the Supreme Court.
For the appellants, Cole & Cole.
For the respondent, Charles M. Phillips and Thompson & Hanstein.
The opinion of the court was delivered by
HETFIELD, J. The appellant insurance company issued to the respondent a certain policy of insurance by the terms of which the respondent was indemnified against loss by fire or
theft of a 1929 model Cadillac sedan automobile. It appears that the car was stolen on February 7th, 1931, while parked in Atlantic City, and was destroyed by fire shortly after the taking. When the proof of claim was presented, the insurance company disclaimed liability, on the ground that respondent breached a certain express warranty contained in the policy, to the effect that the auto had cost $4,250, when in fact the true cost to the respondent was $3,500. Suit was then instituted in the Supreme Court, Atlantic Circuit, which resulted in a verdict in favor of the respondent for $1,664, and this appeal is from the judgment entered thereon.
The grounds upon which a reversal is sought are that the trial court erred in refusing to nonsuit or direct a verdict in favor of the defendant.
We agree with the contention of the appellant that the policy was void by reason of the breach of warranty with respect to the cost of the car. The insurance contract contained a clause reading as follows:
"The assured hereby warrants the truth of each and every statement contained in the Schedule hereof and this policy shall be void if at the time of issuance hereof any of these statements are untrue in fact."
In that part of the contract under the head of "Schedule," there appeared "Actual cost to Assured including equipment $4,250." This statement was inserted in the policy as a warranty by the assured, and was untrue in fact. The undisputed evidence given by the respondent's witness, Peter T. Ranere, who sold the car in question, showed that the total cost to the respondent was $3,648.92, the cost price being $3,500, paid by a trade-in of an old car at an allowed value of $1,200, and the sum of $2,300 in cash, the balance of $148.92 representing the cost of extras and accessories.
We are unable to discover any proof which would warrant a finding that the cost of the car to the assured was as represented, and therefore, no question was presented for the jury to determine. It is true that the respondent testified in an examination before trial that the list price and purchase price of the car was $4,250, ...