the instant the policy was signed, without giving him a reasonable time to put up his stove for cooking in another part of the house. It must be recollected that the conversation took place in dog-days, when a stove was not wanted to warm his shop; but when his family were using the fire-place in that room for family purposes. He therefore most probably spoke in reference to that use of the fire-place, when he said he would abandon the fire-place and use his stove. And as the president and secretary do not themselves agree in respect to the words he used, it is possible that both have misapprehended what he did in fact mean to say on the subject; or he may have inadvertently used language which did not properly express what he intended to agree to on the subject. That he under-stood he was to abandon the use of the fire-place for cooking, is very probable. For it appears the family only cooked there until the next day, when he had probably gotten his stove up in another part of the house, or had made some other provision for the necessary fire for family purposes. And if he thus discontinued cooking in the fire-place in good faith, immediately after he had obtained his insurance, it is hardly probable that he would have used the fire-place for the temporary purpose of varnishing, if he had understood that his agreement with the officers of the insurance company extended so far as to embrace such a use. By the terms of his policy, the basement was privileged as a cabinet-maker's shop, which of course included the necessary use of fire for gluing and varnishing.
In Whitney v. Mayer (13 Mass. Rep. 172), the supreme court of Massachusetts decided that the underwriter could not set up a parol agreement between the parties, which was not inserted in the policy, to defeat the insurance; but that if the underwriter intended to avail himself of it, he should have made it a part of the written contract. A similar decision was made by Lord Tenterden in Flinn v. Tobin, (1 Mood & Malk. Rep. 369). And in this case, no one who reads the testimony can for a moment doubt that a promise to abandon the fire-place and use a stove, was an agreement, and not a representation of a fact. I think the referees erred, therefore, in receiving parol evidence of such an agreement to defeat the policy; and that their report should have been set aside and a venire de novo awarded.
The judgment of the court below is therefore erroneous, and should be reversed.