insured may sell or transfer his interest without the consent of the company.

Some policies provide for forfeiture in case the property shall become encumbered in any way without the written consent of the insurer. This has been held to be confined to such encumbrances as the insured voluntarily puts upon his property, and not to tax liens or judgments.1

A mortgage made on the farm exclusive of the house will not avoid the policy, although the description of the policy in terms covers the farm as well as the house.2

Possession under the alienation clause means, in general, the right to possession, rather than the physical occupancy of the property.

The construction of this clause is generally for the court, though if the material facts bearing upon the question of the interest of the insured are in dispute, the difference of fact may of course raise a question for the jury.

The Massachusetts policy is simpler. It forbids a sale of the property without written assent of the company.

§ 148. Assignment of Policy.—Or if this policy be assigned before loss.

Without express prohibition in the policy, it has been held that a fire policy is not assignable except with the consent of the insurer, for a fire policy is peculiarly a personal contract, and does not run with the title to the property.3

In a dissenting opinion in the last case, James, L. J., was of opinion that the contract should be held to run with the title to the land to the extent of inuring to the benefit of the vendee under an executory contract of sale.

Marine policies at common law were considered assignable without express consent of the insurers, because of custom and commercial convenience, which made it important that cargoes should pass freely from one owner to another without con

1 Baley v. Homestead Fire Ins. Co., 80 N. Y. 21; 36 Am. Rep. 570. Hosford v. Hartford Fire Ins. Co., 127 U. S. 404.

2 Phenix Ins. Co. v. Hart, 39 Ill. App. 509 (1890).

3 Lett v. Guardian Fire Ins. Co., 125 N. Y. 82. Rayner v. Preston, 18 Ch. Div. 1.

sultation with distant insurance companies.' But this consideration has never been extended to a fire policy.

A pledge or deposit of the policy as collateral security is not prohibited by this clause.2

By the better opinion it is held that an assignee of a policy need have no insurable interest in the subject of insurance if the policy is originally taken out in good faith, and not issued to the original insured as a mere cover to avoid the statute against wagers. But the United States Supreme Court, and some others, have said that the assignee of a policy, as well as the assignor, must have an insurable interest. It is important, however, to notice, that if the policy is a fire policy, and is assigned without a transfer of the interest or property which it covers, the assignee is merely the designated payee, and he would simply have an equitable lien upon the proceeds of the insurance to which the original insured might be entitled.

Where the property or subject of the fire insurance, as well as the policy, are transferred to the assignee with the assent of the company, a new contract is thus formed between the company and the assignee which will not be disturbed by any subsequent breach of condition on the part of the assignor.5 As to the past, however, the assignee simply steps into the shoes of the assignor.

No one except the company can make objection to the assignment from the original insured to the assignee, on the ground that the company's consent was not obtained."

After the risk has terminated by fire, the interest of the insured becomes a chose in action, which he has a right to assign, in spite of this clause, without asking permission of the company. Some of the courts have expressed the opinion that the insurers cannot, by their contract, prevent a transfer of this right of action after the loss has occurred.8

1 Pellas v. Neptune Marine Ins. Co., 5 C. P. D. 34.

2

Griffey v. N. Y. Central Ins. Co., 100 N. Y. 417; s. c., 53 Am. Rep. 202. Olmsted v. Keyes, 85 N. Y. 593. Warnock v. Davis, 104 U. S. 775. 'Fogg v. Middlesex Mut. Fire Ins. Co., 10 Cush. 337.

Mellen v. Hamilton Fire Ins. Co., 17 N. Y. 699. Hall v. Dorchester Mut. Fire Ins. Co., 111 Mass. 53. Imperial F. Ins. Co. v. Dunham, 117 Pa. St. 460.

Goit v. Natl. Protection Ins. Co., 25 Barb. 189. West Branch Ins. Co. v. Helfenstein, 40 Pa. State, 289; s. c., 80 Am. Dec. 573. Carroll v. Charter Leinkauf v. Calman, 110 N. Y. 50. Oak Ins. Co., 38 Barb. 402.

The Massachusetts policy forbids an assignment without written assent of the company.

§ 149. Memorandum Clause.-Or if an illuminating gas or vapor, etc.; or, if there be kept, used, or allowed benzine, dynamite, etc.

These clauses contain memorandum articles, that is, a list of inflammable substances, themselves peculiarly liable to destruction by fire, or likely to involve a loss so extensive that its results cannot easily be made the subject of calculation. The restrictions are proper and must not be infringed except as provided in the contract by written agreement indorsed upon the policy.1

Where the memorandum clause does not contain the phrase which here appears, "any usage or custom of trade or of manufacture to the contrary," it is permissible to the insured to use the articles prohibited by this general printed clause, provided they were such as naturally pertain to the stock of goods or property described in the written part of the policy. And this is put upon the ground that the written words must control the printed form. Custom may be shown to aid in the application of this rule.2

Thus where a stock of fancy goods was insured with privilege to keep fire-crackers on sale, it was held by the New York court that keeping fireworks would not avoid the policy, although by the printed memorandum clause fireworks were prohibited. But the Federal Supreme Court came to the opposite conclusion on the same facts.1

And where privilege was given to use the property for a printing office, the keeping of camphene was held to appertain naturally to the permitted business, although camphene appeared in the printed memorandum of prohibited articles.3 Similarly in the case of a photographer's stock.

3

1 United Life, Fire & Marine Ins. Steinbach v. Lafayette Fire Ins. Co. v. Foote, 22 Ohio State, 340; s. Co., 54 N. Y. 90. c., 10 Am. Rep. 735. Barnum v. Merchants Fire Ins. Co., 97 N. Y. 189. Williams v. People's Fire Ins. Co., 57 N. Y. 274.

9 Carrigan v. Lycoming Fire Ins. Co., 53 Vt. 418; s.c., 38 Am. Rep. 687.

Steinbach v. R. F. Ins. Co., 13 Wall. 183.

Harper v. N. Y. City Ins. Co., 22 N. Y. 444.

Hall v. Ins. Co. 58 N. Y. 292; s. c.,

of North Amer., 17 Am. Rep. 255.

It is permissible to show by parol evidence what articles naturally appertain to the property which is the subject of insurance.1

In spite of the attempt in the standard form to limit this rule of construction, the rule will still prevail, and the only effect of the clause, "any usage or custom of trade to the contrary," will be to impose upon the insured the burden of showing with perhaps greater clearness that the written description fairly covers the prohibited articles in question.2

If the insured allows his tenants, or other persons lawfully in possession of the premises insured, to violate the provisions of the memorandum clause, the policy will be avoided.3

But the requirement of the memorandum clause does not extend to such insignificant quantities of the prohibited articles as one would use for medicine or for cleaning clothes, or for any similar use which must be presumed to be allowed by the contract of insurance in view of the character and use of the property.1

The elaborate classification of risks which was formerly indorsed upon many of the policies has been omitted in the standard form.

The memorandum clause of the Massachusetts policy is more liberal to the insured.

§ 150. Vacancy Clause.—Or if a building, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.

The addition of a definite length of time, "ten days," is an improvement upon the old form. This provision is quite reasonable and must be observed, inasmuch as the insurers have a right to know whether the subject of insurance is receiving ordinary supervision or is being neglected.5

1 Pindar v. Kings Co. Fire Ins. Co., 36 N. Y. 648; s. c., 93 Am. Dec. 544. 2 Birmingham F. Ins. Co. v. Kroegher, 83 Pa. State, 64; s. c., 24 Am. Rep. 147. Whitmarsh v. Charter Oak F. Ins. Co., 2 Allen, 581. Cobb v. Ins. Co. of North Amer., 11 Kansas, 93. Western Assur. Co. v. Rector, 85 Ky. 294.

'Liverpool & L. Ins. Co. v. Gunther, 116 U. S. 113.

Wood v. North-western Ins. Co., 46 N. Y. 421. Williams v. People's Fire Ins. Co., 57 N. Y. 274. Carlin v. Western Assur. Co., 57 Maryland, 515; s. c., 40 Am. Rep. 440.

Hill v. Equitable M. F. Ins. Co., 58 N. H. 82.

In brief, the meaning of this clause is that if the property insured is a dwelling-house it must have an occupant living in it. And in the case of other property it must have that kind of care and superintendence which naturally belongs to the character of the occupancy and property described in the policy.1 Holding the keys of a house is not occupancy, and this is true though some of the furniture remains in the house."

va

The word "unoccupied " has been added to the word " cant," to give the restriction a broader effect in favor of the insurance company. By a technical construction, "vacant " has been held in New York to mean empty of everything but air, and "unoccupied " to mean that no person is in use or possession of the property.3 Where the building was described as "a store and dwelling," ceasing to use it as a dwelling does not make it unoccupied.*

As different classes of property naturally require different kinds of occupancy, the question whether the building is occupied or not may be a question for the jury.5

If the property is a factory or mill, it is not necessary that any one should be residing in it at night; but it must be put to some practical and actual use, and not treated simply as a storehouse."

Where a trip-hammer shop was not in operation, but a man visited it almost every day to inspect it, it was held that the policy was avoided, and that such visits did not constitute an occupancy.7

But where a schoolhouse was left vacant during the time. of the ordinary vacations, and the furniture was not removed, it was held that the provisions of the vacancy clause were not violated.8

4

1 Halpin v. Phenix Ins. Co., 118 N. v. Adriatic Fire Ins. Co., 85 N. Y. Y. 172. Poor v. Humboldt Ins. Co., 162. 125 Mass. 274; s. c., 28 Am. Rep. 228. Rockford Ins. Co. v. Wright, 39 Ill. App. 574 (1890).

Burlington Ins. Co. v. Brockway, 39 Ill. App. 43 (1890).

Rockford Ins. Co. v. Storig, 31 Ill. App. 486 (1888).