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In another case, where a saw-mill was insured, the learned judge who pronounced the opinion of the court held that this could not be intended to be occupied like a domicile, and that a vacancy clause must be construed in view of the situation and character of the property insured, and the contingencies affecting its use, to which property of like character to that insured and similarly situated is ordinarily subject; and that interruptions of business and discontinuance of active use were in such a case to be anticipated, and would no more avoid the policy than would the omission to use a church building during week days.1 Where a house is only used for taking meals, and a barn only for storing hay, both are unoccupied. In the case of a saloon, it is enough if a clerk lives in the building and sleeps there.3

Where a ten tenement frame block had two of its tenements occupied, the court was of the opinion that it was not vacant or unoccupied. But if buildings are separate the condition of the policy is to be applied distributively to them, and the occupancy of one of the buildings named in the policy will not excuse a vacancy in the others."

Vacancy is not per se an increase of risk, and need not be stated unless the policy requires it, or insurers make inquiry upon this point.

If a violation of this clause occurs, the policy is absolutely voided and not merely suspended; but, as in all similar cases, it may be revived by the insurers by some act of confirmation after discovery of the forfeiture.8

Before the time limit was added to this clause considerable uncertainty existed as to the length of disuse which would constitute a vacancy, and the conclusion was that a temporary absence from a dwelling-house where the occupants left the

1 Whitney v. Black River Ins. Co., 72 N. Y. 117, by Andrews, J.; s. c., 28 Am. Rep. 116. Lockwood v. Middlesex Mut. Assur. Co., 47 Conn. 553. 2 Ashworth v. Builders Ins. Co., 112 Mass. 422.

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Herrman v. Adriatic Fire Ins. Co., 85 N. Y. 163. Herrman v. Merchants Ins. Co., 81 N. Y. 184.

Becker v. Farmers' Mut. Fire Ins. Co., 48 Mich. 610.

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Browning v. Home Ins. Co., 71 N.

3 Stensgaard v. Natl. Fire Ins. Co., Y. 508; s. c., 27 Am. Rep. 86.

36 Minn. 181.

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* Harrington v. Fitchburg Mut. Fire 240. Ins. Co., 124 Mass. 126.

Moore v. Phenix Ins. Co., 62 N. H.

Wainer v. Milford Mut. Fire Ins. Co., 153 Mass. 335 (1891).

furniture and household goods would not avoid the policy or require a written consent.1 A permit by the company to leave the house vacant for the summer will be liberally construed as meaning the season broadly rather than the summer months."

It is not permissible to call experts and ask them whether it increases the risk to leave a house unoccupied ; and the unambiguous time limit contained in this clause cannot be disturbed by evidence of custom to the contrary in the case of the same or similar property.4

By the Massachusetts policy a vacancy for thirty days is permitted without the written assent of the company.

§ 151. Certain Restrictions.-This company shall not be liable for loss caused directly or indirectly by invasion, insurrection, riot, civil war, etc., or by theft, or by neglect of the insured to use all reasonable means to save the property at and after a fire, or by explosion of any kind, or lightning.

Some of these exceptions to the liability of the insurers may not be at all likely to happen, but if they should happen their results might be so disastrous as to remove them from the operation of any rule of average. "Usurped power" means an armed rebellion. Except for the provision relieving the company from liability for loss "by order of any civil authority," the company would be liable if a building near to that insured were blown up by direction of the authorities to stay the spread of fire. Theft and explosion have been previously adverted to in § 128.

Whether the insured uses reasonable means to save his property is a question for the jury.

$152. Falling Building.-Or if a building or any part thereof fall except as the result of fire, etc.

1 Cummins v. Agricultural Ins. Co. 67 N. Y. 260; s. c., 23 Am. Rep. 111. Etna Ins. Co. v. Meyers, 63 Ind. 238.

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Vanderhoef v. Agricultural Ins. Field v. City of Des Moines, 39 Iowa, Co., 46 Hun, 328.

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575; s. c., 18 Am. Rep. 46.

6 Luce v. Dorchester Mut. Fire Ins.

Co., 105 Mass. 297; s. c., 7 Am. Rep. 522.

Ellsworth v. Etna Ins. Co., 89 N. Y. 186. Briggs v. North Amer. & M. Ins. Co., 53 N. Y. 446.

Without this restriction the company would be liable for a conflagration caused by a collapse of the building or a part of it, unless before the fire started the building had lost its character as a building and had become a mere congeries of materials.1

Where seven days elapsed between the fire and the fall of the building it was held that the loss by the latter was not the proximate result of fire."

The Massachusetts standard policy contains no similar provision.

§ 153. Memorandum Articles.-This company shall not be liable for loss to accounts, bills, currency, deeds, etc., or for property held on storage or for repairs, etc.

If the property enumerated in this memorandum clause were covered by the policy the insurers would be subjected to claims of uncertain amount and very difficult of verification.

"Storage" means keeping for safe custody to be delivered again in the same condition substantially as when received, and as employed in this clause of the policy the prohibition is applicable only when the storing or safe-keeping is of merchandise for trading purposes and when the storing is the sole or principal object of the deposit. If the goods are merely kept for consumption or sale, the prohibition of this clause does not apply. For example, wine kept in a cellar either to be sold or consumed is not on storage. And raw material kept in a factory to be manufactured is not stored. So if any material is casually or temporarily left in a room.5

The Massachusetts policy contains a list of memorandum articles, "bills of exchange, notes, accounts, evidences of property, plate, money, jewels," etc., but differs widely from the New York clause under consideration.

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CHAPTER XIV.

STANDARD FIRE POLICY-CONTINUED.

§ 154. Survey is a Warranty.-Application, survey, plan, etc., shall be a part of this contract and a warranty.

The statements of the application are thus incorporated into the contract, and must be construed as a part of it.1 A mere reference to the application, however, would not be sufficient to make it a part of the contract in such a sense as to incorporate its statements as a warranty. And if there is any phraseology in the policy which gives the court an excuse for construing the statements of the application as representations rather than as warranties, it is pretty certain to avail itself of it. A mere expression of opinion will not be construed as a warranty. The phraseology of the application, where it is made a part of the contract, may itself limit the conditions of the policy in favor of the insured. But, as a general rule, as we have already seen, in considering the subject of warranty, all the statements of the application must be literally true, or exactly fulfilled, or the entire contract will be avoided. Whether the fact stated, or the act stipulated for, is material or not is of no consequence."

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Any statements in the application, however, which have nothing to do with the subject of the contract, or with the risk, will be held to be immaterial, and will be regarded

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as having been gratuitously volunteered. For an innocent error in making them the policy will not .be avoided.1 So, also, in the case of a promissory warranty, circumstances may so change that the warranty will be held to be inapplicable; for example, if a loss occurs before the time for the fulfillment of the warranty has arrived, the loss will, nevertheless, be covered by the policy. A warranty of the exist ence of a force pump on the insured premises, at all times ready for use, implies that there is sufficient power to work the pump. Where the insured, in answer to the question whether his title to the property was absolute, said "his deceased wife held the deed," it was held that there was a breach of warranty, because the answer was not full and true; the fact being that his wife, in whose employ he had been prior to marriage, had executed in his favor, after marriage, an instrument acknowledging an indebtedness, and stating that it should be a lien upon her property. Where the insured described his building as "two stories high," the main part of the building in fact being two stories, but a small rear addition being only one story, the inaccuracy was held to be no breach of warranty.5 And where the applicant stated that the building to be insured was detached not less than one hundred feet, and the fact was that there was a barn about sixty feet distant from it, the court held that there was no breach of warranty. A warranty that a room is warmed by a stove, and that the pipe is well secured, means that the room is so warmed, and the pipe so secured, when the stove is in use; but not at other times." Although the courts have been disposed to relieve the insured, as far as possible, from the consequences of a technical violation of warranty, the legislatures of some States have also interfered by statute, and have provided that misrepresentations, unless material to the risk, shall not avoid the policy.

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