1 Mershon v. National Ins. Co. 84 la, 87.

evidence was offered and received, showing that a livery stable was materially more hazardous than a tavern * barn.

It is not easy to draw a precise rule from the authorities, but the principles of insurance law would lead to the conclusion, that if the statement was a warranty, no question could arise as to its materiality; whereas, if it was only a representation, this question would be proper. (q)

Words looking to the future might be such as not to create a warranty on the part of the insured, but only to give him a permission. Thus, "at present occupied as a dwelling-house, but to be hereafter occupied as a tavern, and privileged as such," is not a warranty that it shall be a tavern, but only permission that it may be. (r) And an insurance of "a dwelling-house " is no warranty that the building shall continue to be used as a dwelling-house. (rr) 1 So if the whole policy would prohibit the storing

(q) Glendale Woollen Co. v. Protection Ins. Co. 21 Conn. 19.

(r) Catlin v. Springfield Ins. Co. 1 Sumner, 434. Where the premises were described in the application and policy as occupied by A as a private dwelling, this was held not to be a warranty of the continuance of the occupation during the risk, and the insurers were held liable, although the loss happened after the occupant had left the premises vacant. O'Neil v. Buffalo Ins. Co. 8 Const. 122. In Rafferty v. New Brun. Ins. Co. 8 Harrison, 480, it was held, that it is not a violation of a policy of insurance, that a house insured as a dwelling-house, was afterwards occupied as a boarding-house, if boarding-houses are not in the list of prohibited occupations. A change of tenants, the policy being silent on the subject, does not invalidate it, though the first tenant may be a prudent, and the second a grossly careless man. Gates v. Madison Co. Ins. Co. 1 Seld. 466. If the insurer is informed that the premises are to be occupied by tenants, it seems that there is an implied agreement on his part, that, if the insured uses reasonable care and diligence in the selection of trustworthy tenants, and in the general management of the premises, the insurance should not be affected by acts done by the tenants without his knowledge or consent. White v. Mutual Ins. Co. 8 Gray, 566. And when the policy is made void whenever the risk is increased by the act of the insured, and he is also prohibited from altering the building without the consent of the company, he may recover in case of loss, notwithstanding an alteration and an increase of risk made by a lessee of the building, providing it is made without the knowledge of the insured. Sanford v. Mechanics Ins. Co. 12 Cush. 541.

(rr) Cumberland, etc. Ins. Co. v. Douglas, 68 Penn. St. 419.

1 Browning v. Home Ins. Co. 71 N. T. 508. But see Alexander v. Germania Ins. Co. 66 N. Y. 464. Nor if a house is described as occupied by a particular person, that it shall so continue. Liverpool, etc Ins. Co. v. McGuire, 52 Miss. 227. - A dwellinghouse, to be occupied within the meaning of a fire insurance policy, must be used by human beings as their customary place of abode, Herrman v. Adriatic Ins. Co. 85 N. Y. 162; and a warranty that a family shall occupy a house throughout the year is not fulfilled by workmen lodging therein, and taking their meals elsewhere, Poor v. Humboldt, 125 Mass. 274. See Cook v. Continental Ins. Co. 70 Mo. 610. That temporary vacancy merely is not "removal," see Cummins v. Agricultural Ins. Co. 67 N. Y. 260. -Where a man and family visited a sick daughter for twelve days, and engaged a person to look after their house daily, the house did not "become vacant or unoccupied," within a clause avoiding an insurance policy therefor. Stupetski v. Transatlantic Ins. Co. 43 Mich. 373. See Whitney v. Black River Ins. Co. 72 N. Y. 117; Parmalee v. Hoffman

.546 of certain goods, the construction would be that this meant storing them in considerable quantities; and not the keeping a small quantity on hand for sample or retail. (s) l It * may be * 426

(s) New York Ins. Co. v. Langdon, 6 Wend. 623, 627, 1 Hail, 226. It was held, in this case, that the word "storing" applied only where the storing or safekeeping is the sole or principal object of the deposit, and not where it is merely incidental, and the keeping is only for the purpose of consumption. This definition has been adopted by the courts. Thus, where oils and turpentine, which were classed among hazardous or extrahazardous articles, were introduced for the purpose of repairing and painting the dwelling insured, and the dwelling was burned while being so repaired, the insurers were held liable. O'Neil v. Buffalo Ins. Co. 3 Comst. 122; Lounsbury v. Protection Ins. Co. 8 Conn. 459. Where a policy of insurance contained a clause suspending the operations of the policy in case the premises should be appropriated, applied, or used to or for the purpose of storing or of keeping therein any of the articles described as hazardous, one of the buildings insured being occupied by a card-machine, it was held, that the mere fact that a small quantity of undressed flax (although a hazardous article), had been permitted to remain in the basement of the carding-machine building, since the removal of the flax-dressing machinery from such basement a few days prior to the issuing of the policy, was not conclusive evidence that the building was appropriated, applied, or used for storing or keeping flax within the meaning of those terms as used in the policy, and that leaving the small pile of undressed flax in the building, with no purpose of having it regularly stored or kept there, would not contravene the terms of the policy. Parker, J., dissented, being of opinion that the case came within the term "keeping," introduced into the policy. Hynds v. Schenectady Co. Ins. Co. 16 Barb. 119. The keeping of spirituous liquors in the building insured, for the purpose of consumption or sale by retail to boarders and others, is not a storing within the meaning of the policy. Rafferty v. New Brunswick Ins. Co 8 Harrison, 480. See Williams v. New England Ins. Co. 31 Maine, 225; Allen v. Mutual Ins. Co. 2 Md. 126; Billings v. Tolland Co. Ins. Co. 20 Conn. 139; Duncan v. Sun Ins. Co. 6 Wend. 488. In England, there is not complete harmony in the decisions. The earliest case is Dobson v. Sotheby, 1 Moody & M. 90. The policy was effected on premises "wherein no fire is kept and no hazardous goods are deposited," and, provided that "if buildings of any description insured with the company, shall at any time after such insurance be made use of to store or warehouse any hazardous goods without leave from the company, the policy should be forfeited." These words were held to mean the habitual use of fire or the ordinary deposit of hazardous goods, not their occasional introduction for a temporary purpose connected with the occupation of the premises, so that the policy was not vitiated by bringing a tar barrel and lighting a fire in order to effect repairs, in consequence of which the loss occurred. Where the premises insured were a granary and a "kiln for drying corn in use," and the policy was to be forfeited unless the buildings were accurately described, and the trades carried on therein specified, it was held, although proved that a higher premium was exacted for a bark-kiln than a malt-kiln, and that the latter was more dangerous, and the loss happened from the use of the kiln in drying the bark, that a temporary and gratuitous permission to a friend to dry bark in the kiln, did not avoid the policy. Shaw v. Robberds, 6 A. & E 75. See Barrett v. Jermy, 8 Exch. 535. The authority of these cases has been diminished by a recent decision of the Court of Exchequer, under a condition providing that, in case any steam-engine, stove, etc., or any other description of fire-heat be introduced, notice thereof must be given, and every such alteration must be allowed by indorsement, and any further premium