If a policy of fire insurance contain a scale of premiums, calculated upon what is regarded by the insurers as the greater or lesser risk of fire in different classes of buildings, or goods, or other property, and an insured, even by an innocent and unintentionval error, puts the property he wishes insured, in a class lower in risk and in the premium required than that in which it belongs according to the classification, this has the effect of a breach of warranty, and discharges the insurers. (m)

If the policy enumerates certain risks, whether of buildings or other property, or certain employments of such buildings or property, as hazardous or extra-hazardous, the insurers are so far controlled by their own enumeration, that it would be very difficult for them, if not impossible, to show that other things should have been enumerated; and from the cases it would seem that the courts are disposed to make rather a strict construction of the terms used. But, on the other hand, the insured could not be permitted to show by evidence, that things which the policy called hazardous or extra-hazardous, were not so in fact. (n) 2

(lm) Ins. Co. v. Webster, 6 Wallace, 129.

(ln) Sanborn v. Firemen's Ins Co. 16 Gray. 448. The defendant company was authorized by its charter to make contracts of insurance under the signature of the president, or some duly authorized person.

(m) Fowler v. AEtna Ins. Co. 6 Cowen, 673, 7 Wend. 273; Wood v. Hartford Ins. Co. 13 Conn. 533; Newcastle Ins. Co. v.

Macmorran, 8 Dow, 266. See, however, Fanners Ins. Co. v. Snyder, 16 Wend. 481, and, generally, Lee v. Howard Ins. Co. 8 Gray, 583; Macomber v. Howard Ins. Co. 7 id. 267.

(n) New York Ins. Co. v. Langdon, 6 Wend. 628, 627, Sutherland, J.: "It was an express provision of the policy in this case, that if the building insured should at any time during the continuance of the policy, be appropriated, applied, or agent knew that the premises were unoccupied at the date of the policy, or made the insurance without reference to the subject of occupation. Short v. Home Ins. Co, 90 N. Y. 16. - As to whether the facts stated showed a new oral contract of insurance in presenti, or a waiver of conditions of policy by agent, see Taylor v. Phoenix Ins. Co. 47 Wis. 365.

1 But see Morse v. St. Paul Ins. Co. 21 Minn. 407.

2 In Reynolds v. Commerce Ins. Co. 47 N. Y. 697, the words "extra hazardous" in a policy were construed to mean "specially hazardous."

* Where the policy describes the insured as engaged in a certain trade or business, it has been held, that he is permitted, by implication of law, to keep and use all articles necessary for the customary carrying on of such trade, although such goods are classed as extra-hazardous. (o) 1

The description of the property would generally have force, not only as a warranty for the present, but as a warranty for the future. Principles somewhat akin to those of deviation in the law of marine insurance, are applicable to this question. There must be no change of risk. Thus, where the property was stated to be "a tavern barn," and the insured permitted it to be used as a livery stable, the insurers were discharged. (p) But in this case, used, to or for the purpose of carrying on, or exercising therein any trade, business, or vocation, denominated hazardous, or extra-hazardous, or specified in the memorandum of special rates in the proposals annexed to the policy, or for the purpose of storing therein any of the articles, goods, or merchandise, in the same proposals denominated hazardous or extra-hazardous, or included in the memorandum of special rates, the policy should cease and be of no force or effect The trade or business of a grocer is not mentioned or specified in the proposals annexed to the policy. It was not, therefore, a prohibited trade. Expressio unius. exclusio est alterius. The enumeration of certain trades, or kinds of business, as prohibited on the ground of being hazardous, is an admission that all other kinds are lawful under the contract. The case of Baker v. Ludlow, 2 Johns. Cas. 288, is precisely in point. There dried fish were enumerated in the memorandum clause as free from average, and all other articles perishable in their own nature. It was held, that the naming of one description of fish implied that other fish were not intended; and that the subsequent words, 'all other articles perishable in their own nature,' were not applicable to the articles previously enumerated, and did not repel the implication arising from the enumeration of them. In Doe v. Laming, 4 Camp. 70, Lord Ellenborough held, that a coffee-house was not an inn, within the meaning of a policy of insurance against fire, enumerating the trade of an inn-keeper, with others, as doubly hazardous, and not covered by the policy. If the business of a grocer is not prohibited under the policy, the ordinary incidents of that business, it would seem, were allowable; not being prohibited, the party had a right to keep a grocery store, and to conduct it in the usual manner. The cases of Suckley v. Furse, 15 Johns. 842, and Kensington v. Inglis, 8 East, 278, sanction this principle."

(o) Harper v. Albany Ins. Co. 17 N. Y. 194; Bryant v. Poughkeepsie Ins. Co. 17 N. Y. 200. See Washington Ins. Co. v. Merchants Ins. Co. 5 Ohio State, 450; Archer v. Merchants, etc. Ins. Co. 48 Mo. 484; Viele v. Germania Ins. Co. 20 la. 9. But see contra, Macomber v. Howard Ins. Co. 7 Gray, 257; Whitmarsh v. Charter-Oak Ins. Co. 2 Allen, 581; Elliot v. Hamilton Ins. Co. 18 Gray, 139.

(p) Hobby v. Dana, 17 Barb. 111. Where a building insured by a company was represented, at the time of effecting the insurance, as connected with another building on one side only, and before the loss happened it became connected on two sides, the policy was held not to be avoided unless the risk thereby became greater. Stetson v. Mass. Ins. Co. 4 Mass. 880, 887, per Sewall, J. And whether such alterations increase the risk, is a question for the jury. Curry v. Commonwealth Ins. Co. 10 Pick. 535. The following cases sustain the doctrine, that an alteration which increases the risk avoids the policy. Jones' Manufacturing Co. v. Manufacturers Ins. Co. 8 Cush. 82; Perry Co. Ins. Co. v. Stuart, 19 Penn. State, 45; Jefferson Co. Ins. Co. v. Cotheal, 7 Wend. 72; Grant v. Howard Ins. Co. 5 Hill, 10; Allen v. Mutual Ins. Co. 2 Md. 125, 128. See Sillem v. Thornton, 3 Ellis & B. 868, 26 Eng. L. & Eq. 288.