Lord Shaw:-

This is an appeal by special leave from a judgment of the High Court of Australia dated 19th June, 1919, allowing by a majority of two judges to one an appeal from the judgment of Hodges, J., in the Supreme Court of Victoria, dated 30th October, 1918. Isaacs, J., agreed with the judge of first instance; Barton and Gavan Duffy, JJ., from whom he dissented, decided to reverse.

The action, which was brought by the appellant as plaintiff, claimed a declaration that, under a policy of insurance of the defendant company, dated 1st March, 1918, that company was liable to pay him the loss sustained in consequence of fire which occurred on 17th April of that year and by reason of which a large part of the property insured was destroyed.

In the pleadings the defence was rested on a variety of grounds. At their Lordships' bar the learned counsel for the respondents stated that it was sufficient to rely upon one of these grounds, and that all the others might be taken as discarded. This ground was that two statements made in the proposal were untrue. One of these statements stood opposite the following, being a request for the "name in full, residence and occupation, of the person in whose name the policy is to be made out." The appellant, Nicholas Condogianis, signed his name and gave his address. There was, however, a printed note attached and clearly made a condition of the policy, to the following effect. "If not the owner, the nature of interest must be stated." The truth was that the appellant, prior to the date of the policy, had entered into a contract of partnership with one Mrs. Rachor. The deed of partnership is produced, and it appears from it that the partners are equally entitled to the profits of the concern. It further appears, however, that Mrs. Rachor's contribution to the firm's capital was of a very slender amount, and on this and other grounds the appellant maintained that his representation, which amounted to an assertion of his own ownership, was substantially true. Whether such a contention could be successfully maintained or not their Lordships do not propose to determine, as they have formed a clear conclusion upon the other ground now to be mentioned, which formed the staple part of the argument before the Board, as also of the judgments of the learned judges of the Court below.

That ground is this: Among the questions in the appellant's fire insurance proposal to the respondents was the following: "Has proponent ever been a claimant on a fire insurance company in respect of the property now proposed or any other property? If so, state when and name of company." To this the answer was given: "Yes." 1917 Ocean.' This answer was in a literal sense true, that is to say, it was true that the proposer had, in the year 1917, made a claim against the "Ocean Insurance Co." in respect of the burning of a motor-car. He omitted, however, to state what was also the fact, namely, that in the year 1912 he had made another claim against the Liverpool and London and Globe Co., in respect of the burning of a motor car owned by him. He was paid the sum £267. 3 sh. in settlement of that claim.

It is unnecessary to state that the answer given by the appellant in the proposal falls clearly within the express declaration which is now to be quoted. The terms of that declaration are as follows :

"This proposal is the basis of the contract and is to be taken as«part of the policy and (if accepted) the particulars are to be deemed express and continuing warranties furnished by or on behalf of the proponent; and any questions remaining unanswered will be deemed to be replied to in the negative. The proposal is made subject to the Company's conditions as printed any/or written in the policy to be issued hereon, and which are hereby accepted by the proponent."

The case accordingly is one of express warranty: If in point of fact the answer is untrue, the warranty still holds, notwithstanding that the untruth might have arisen inadverten