stance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein." The policy further provided, that, unless otherwise provided by an agreement indorsed thereon or added thereto, the policy should be void if the interest of the insured was other than unconditional and sole ownership; or if the subject of the insurance was a building on ground not owned by the insured in fee simple, or if (any usage or custom of trade or manufacture to the contrary notwithstanding) there was kept, used or allowed on the premises, benzine.

As the defendant did not desire to go to the jury upon any issue of fact, the following circumstances must be considered in passing upon the questions presented by the defendant's motion for a verdict: That the building was insured as a storehouse and paint-shop; that it was consumed by fire; that the fire was caused by the use of benzine, mixed with asphaltum, in the paint-shop; that benzine was an article necessarily used in a paint-shop and indispensable in the business; that the damage equalled or exceeded the insurance; that due notice and proofs of loss were furnished; that plaintiff Emma owned in fee simple the land on which the building was erected; that the building was erected with money belonging in part to both plaintiffs; that the building and lot were worth twenty-five hundred dollars; that there was a mortgage for two hundred dollars on same at the time the contract of insurance was made and ever since has been; and that the incumbrance was not represented to the defendant at the time the contract of insurance was made. It did not appear that any written application for insurance was made by the plaintiffs, nor that the agent of the defendant made any inquiries respecting incumbrances.

(1) The defendant insists that the contract of insurance is void because the plaintiffs were not owners in fee simple of the land on which the building was erected, and this fact was not indorsed on the policy or added thereto. Emma

Mascott held the legal title to the land, and the combined interest of the plaintiffs in the land was that of owners in fee simple; and it was not necessary that their respective interests should be set forth in the contract of insurance. The combined ownership in them is not inconsistent with the condition of the policy. The policy was not to be void by reason of the condition in regard to ownership, unless the building was on "ground not owned by the insured in fee simple." It cannot be said that the building was on land not owned by the insured. If the conveyance of the land, the relation of the insured to each other, their marital rights, the manner of occupancy, the sum each contributed to the erection of the building, had been set forth in the policy, it would have appeared that their combined interest was that of owners in fee simple, and that they were the only owners of the land. Being such owners, the contract of insurance is not void because their respective interests are not set forth in, or endorsed upon, the policy. To hold such a contract void because of the condition in respect to the ownership of the land, there must be an ownership in some person other than the insured.

In Rankin v. Andes Ins. Co., 47 Vt. 144, the action was upon a policy of insurance on a woolen factory, which was issued to the Essex Mills Co. and George H. Wilbur. The factory was owned by the Essex Mills Co. but was operated by Wilbur under a contract with the company. The court found, that, at the time of the proof of loss, Wilbur had no interest in the property insured. The policy provided, that, if the interest or property insured be leasehold, or that of mortgage, or any other interest not in fee simple, in case of real estate, or absolute as to personal property, such must be made known to the company and expressed in the policy. The court held that this condition was obligatory upon the insured only in cases where the united interest of the insured was less than absolute.

In Webster v. Dwelling House Ins. Co. 53 Ohio St. 558: 30 L. R. A. 719, the representation made by the insured was that the property was owned jointly by them, when, in fact, the house was owned wholly by the wife. The policy was issued to the husband and wife, and it was held that they could jointly recover on the policy.

In Wamer v. Milford Mutual Fire Ins. Co. 153 Mass. 335, it is held, that, if a person has such an interest in property that he will suffer pecuniary loss by its destruction, he has an insurable interest; and if he has an insurable interest, it is sufficient to describe the property as belonging to him, unless some inquiry is made of him, the answer to which amounts to a false warranty or a misrepresentation.

In Dohn v. The Farmers' Joint Stock Ins. Co. 5 Lansing's Rep. (N. Y.) 275, a condition in the policy required, that, if the applicant had a less estate than a fee in the property to be insured, he should state the nature of such estate; and it was held, that, inasmuch as no question as to the nature of the title of the applicant was included in the written form of application furnished by the company, it was liable upon such policy, although the title held by the insured was, in fact, an equitable one, only, under a contract of sale.

In Imperial Fire Ins. Co. v. Dunham, 117 Penn. St. 460: 12 Atlantic Rep. 668, the insurance was upon certain buildings on land which the insured had purchased, but on which he had made no payment. The policy contained a condition that insurance on buildings on land not owned by the insured in fee simple should be void, and it was held that the insured had an insurable interest.

In Niblo v. The North American Fire Ins. Co. 1 Sandford (N. Y.) 551, it is held, that the description of the buildings in a fire insurance policy as "his buildings" is not equivalent to a warranty on the part of the assured that he is the owner of the same; that it does not constitute a misrepresentation of the fact, when the only interest in the buildings is as tenant for a year; and that, where no inquiry is made

or statement given, on the happening of a fire, he will recover according to his real interest.

(2) The defendant also insists that the contract of insurance is void because benzine was used in the building, contrary to a printed condition in the policy. The contract of insurance provided for the occupancy of the building for a paint-shop. Benzine, mixed with asphaltum, was used in the paint-shop; and it must be held, from the statements in the exceptions, that it was necessarily used and indispensable in the business authorized by the contract of insurance to be carried on in the building. It is fair to presume, that, when the defendant made the contract for insurance upon the building and authorized its use for a paint-shop, by a clause written in the policy, it was acquainted with the business usually carried on, the work usually done, the materials necessarily used in prosecuting the business, in a paint-shop; that it knew that the business authorized to be carried on could not be conducted in the usual and ordinary way without the use of benzine; that it included in the risk such materials as were necessarily used in the business and intended to permit their use; and that the written portion of the policy in this regard was intended to control the printed portion, prohibiting the use of benzine. It is a well established rule, that, when the written and printed portions of a policy are inconsistent, the written portion prevails, as it expresses the special agreement and declared intention of the parties at the time of the contract. Carrigan v. Lycoming Fire Ins. Co. 53 Vt. 418. It is clear that the parties intended that the paint-shop, as it was and as it must necessarily continue if used for the purposes authorized by the written portion of the policy, should be carried on with all the usual and necessary incidents thereto; and that as such it was protected by the contract of insurance. We think the rule is well settled, that, when a policy of insurance, by the written portions, covers property to be used in conducting a particular business, the necessary using of an

article in such business will not avoid the policy, although the keeping and use of such article is prohibited by the printed portions of the policy.

In Faust v. American Fire Ins. Co. 91 Wis. 158: 30 L. R. A. 783, the written portion of the policy insured the building as a "furniture store and repair shop," and the printed portion declared that it should be void if benzine was kept on the premises. It was held that the policy was not forfeited by keeping benzine for necessary use in the repair shop.

In Carlin v. Western Assurance Co. 57 Md. 515: 40 Am. Rep. 440, the policy covered a factory and machinery and prohibited the keeping or use of petroleum. The court held, in effect, that, if the engine room and machinery were included in the description of the insured premises, the keeping of petroleum, although among the prohibited articles, would not avoid the policy, if the evidence showed that it was an appropriate and customary article used in the insured's business for lubricating machinery, and he kept it solely for that purpose; that the insurance company knew, when it issued the policy, that the factory could not run without machinery, and it must be supposed to have contracted with reference to such use as an ordinary incident of the business; that, if petroleum oil was usual and necessary, such use must have been contemplated, though prohibited in the printed portion of the policy.

In Hall v. Ins. Co. of North America, 58 N. Y. 292, it is held, that, where a policy is issued upon the material used in a business, it includes and authorizes the use of all such materials as are in ordinary use in the business, although, by the printed clause of the policy, the keeping or use thereof upon the premises is prohibited, and although other materials might be substituted.

In Fraim v. National Fire Ins. Co. decided by the Supreme Court of Pennsylvania in 1895 and reported in the Atlantic Reporter, vol. 32, p. 613, the policy was issued to a silver