Rankin

1. The policy of insurance upon which this action was brought was applied for November 21, 1884, and *331 was written up assuming the risk from 12 o’clock noon on that day, for the term of one year, but was countersigned by the general agents at San Francisco, November 24, 1884, and presumably was not delivered until that day. When delivered a part of the written portion thereof was on a rider attached and properly authenticated, the blank being insufficient to furnish room for all the written portion. On that rider, and as a portion of the written part of the policy, was the following: “Reference is hereby made to a survey and diagram, on file in the office of J. C. Mitchell & Son, which is made a part of this policy, and a warranty on the part of the assured.” The court below evidently concluded, and in that conclusion we concur, that in fact there was no survey and diagram on file in the office of Mitchell & Son, either on the 21st or the 24th of November. But the uncontradicted evidence is that Mitchell & Son were the insurance brokers who acted for and on behalf of the assured in getting the insurance, and that they promised that such a survey and diagram should be prepared,…