proper purpose by claiming such a construction of the condition prohibiting an increase of risk as to make the contributory negligence of the insured or of his servants a defense to an action on the policy.187 A mere negligent act, temporarily endangering the property, will not be regarded as increasing the risk within the meaning of this condition, even though the fire may have been caused directly by such negligence.138 Thus, where an insured carelessly used kerosene in kindling a fire in a stove, and in so doing caused the insured house to catch fire, it was held that the insurer was liable on the policy despite the presence of the condition against increase of risk.139 The parties must be assumed to have intended that the insured building shall be put to such uses as are buildings of the same kind, so that the making of repairs, painting, or doing other acts of similar character, are not to be regarded as increasing the risk, since the property would be useless to the insured if such acts were prohibited.140

But any change in the condition of the property insured which tends to increase the risk substantially and permanently, or for a considerable period, is within the condition.141 Thus, keeping in the house a small

419, 98 Am. Dec. 298; Gates v. Insurance Co., 5 N. Y. 469, 55 Am. Dec. 360; JOHNSON v. INSURANCE CO., 4 Allen (Mass.) 388; Huckins v. Insurance Co., 31 N. H. 238; Maryland Fire Ins. Co. v. Whiteford, 31 Md. 219, 100 Am. Rep. 45; ANGIER V. ASSURANCE CO., 10 S. D. 82, 71 N. W. 761, 60 Am. St. Rep. 685.

137 Des Moines Ice Co. v. Niagara Fire Ins. Co., supra; Henderson v. Insurance Co., 10 Rob. (La.) 164, 43 Am. Dec. 176; Gates v. Insurance Co., 5 N. Y. 469, 55 Am. Dec. 360; Huckins v. Insurance Co., 31 N. H. 238; Rogers v. Insurance Co., 35 C. C. A. 396, 95 Fed. 103.

188 Scottish Union & Nat. Ins. Co. v. Strain, 70 S. W. 274, 24 Ky. Law Rep. 958. In Des Moines Ice Co. v. Niagara Fire Ins. Co., supra, it was said that an insurance policy would be of little value if it was permissible to set up a defense in every case where negligence could be shown. Pool v. Insurance Co., 91 Wis. 530, 65 N. W. 62, 51 Am. St. Rep. 919; JOHNSON v. INSURANCE CO., 4 Allen (Mass.) 388. In Hartford Ins. Co. v. Williams, 11 C. C. A. 503, 63 Fed. 925, it was held that the voluntary destruction by the owner would not prevent the mortgagee from recovering on his policy. Maryland Fire Ins. Co. v. Whiteford, 31 Md. 219, 100 Am. Rep. 45.

139 ANGIER V. ASSURANCE CO., 10 S. D. 82, 71 N. W. 701, 66 Am. St. Rep. 685. And see Springfield Fire & Marine Ins. Co. v. Wade, 95 Tex. 598, 68 S. W. 977, 58 L. R. A. 714, 93 Am. St. Rep. 870.

140 Mears v. Insurance Co., 92 Pa. 15, 37 Am. Rep. 647; Au Sable Lumber Co. v. Detroit Mfrs.' Fire Ins. Co., 89 Mich. 407, 50 N. W. 870; O'NIEL v. INSURANCE CO., 3 N. Y. 122; Morse v. Insurance Co., 30 Wis. 534, 11 Am. Rep. 587; Lutz v. Insurance Co., 205 Pa. 159, 54 Atl. 721.

141 Boyer v. Insurance Co., 124 Mich. 455, 83 N. W. 124, 83 Am. St. Rep. 338; Vandervolgen v. Assurance Co., 123 Mich. 291, 82 N. W. 46; First Congregational Church v. Holyoke Mut. Fire Ins. Co., 158 Mass. 475, 33 N. E. 572, 19 L. R. A. 587, 35 Am. St. Rep. 508; Williams v. Insurance Co., 57 N. Y. 274; Kircher v. Insurance Co., 74 Wis. 470, 43 N. W. 487, 5 L. R. A. 779; KYTE v. ASSURANCE CO., 149 Mass. 116, 21 N. E. 361, 3 L. R. A. 50S

quantity of gasoline, needed for removing old paint during the course of making repairs, does not increase the risk,142 but keeping such gasoline permanently in the house, or for sale, or for other purposes, would undoubtedly violate this condition.143 So it has been held that, where the insured made a practice of throwing kerosene-soaked clothing in a box kept in the house insured, it was a proper question for the jury whether the risk was increased.144 The use of a naphtha torch in burning off paint from the insured premises, which was continued during a month, was held to be an increase of the risk.145 The mere fact that additions to or alterations of the insured premises are made without the consent of the insurer does not avoid the policy under this condition. Whether or not such repairs or additions constitute an increase of risk is, as in all other cases, a question for the jury.146

MAKING REPAIRS.

166. The condition with regard to the employment of mechanics in making repairs is unambiguous, and will be enforced according to its terms, whether the risk is increased or not.

If mechanics be employed in building, altering, or repairing the within described premises for more than fifteen days at any one time."

Richards, Ins. Cas. 457; Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452, 14 Sup. Ct. 379, 38 L. Ed. 231; Liverpool & London & Globe Ins. Co. v. Gunther, 116 U. S. 113, 6 Sup. Ct. 306, 29 L. Ed. 575.

142 Smith v. Insurance Co., 107 Mich. 270, 65 N. W. 236, 30 L. R. A. 368. And see Mears v. Insurance Co., 92 Pa. 15, 37 Am. Rep. 647; Au Sable Lumber Co. v. Detroit Mfrs.' Fire Ins. Co., 89 Mich. 407, 50 N. W. 870; O'NIEL v. INSURANCE CO., 3 N. Y. 122; Williams v. Insurance Co., 54 N. Y. 569, 13 Am. Rep. 620; Springfield Fire & Marine Ins. Co. v. Wade, 95 Tex. 598 68 S. W. 977, 58 L. R. A. 714, 93 Am. St. Rep. 870.

143 Sperry v. Insurance Co. (C. C.) 26 Fed. 234; Lutz v. Insurance Co., 205 Pa. 159, 54 Atl. 721; Steinbach v. Insurance Co., 13 Wall. (U. S.) 183, 20 L. Ed. 615. But see Ackley v. Insurance Co., 25 Mont. 272, 64 Pac. 665, in which a reasonable quantity of the prohibited articles kept by a druggist did not effect a forfeiture, being such things as a druggist usually kept, notwithstanding the clause in the policy which prohibited the keeping of them. But in this case the insurers had indorsed on the policy a permit allowing the insured to keep such things as were customary for a druggist to keep, and the court, in construing this clause with the conflicting clause in the policy, reached the above conclusion.

144 Williams v. Insurance Co., 57 N. Y. 274, Richards, Ins. Cas. 452. 145 First Congregational Church v. Holyoke Mut. Fire Ins. Co., 158 Mass. 475, 33 N. E. 572, 19 L. R. A. 587, 35 Am. St. Rep. 508.

146 MERRIAM v. INSURANCE CO., 21 Pick. (Mass.) 162, 32 Am. Dec. 252; Pool v. Insurance Co., 91 Wis. 530, 65 N. W. 54, 51 Am. St. Rep. 919; Smith v. Insurance Co., 107 Mich. 270, 65 N. W. 236, 30 L. R. A. 368; Williams v. Insurance Co., 57 N. Y. 274; Kircher v. Insurance Co., 74 Wis. 470, 43 N. W. 487, 5 L. R. A. 779.

There appears to be little room for doubt as to the proper construction of this condition, and it seems to have given rise to little litigation. It is supplementary to the preceding condition prohibiting an increase of hazard. If mechanics are employed for the specified time, the condition is broken and the policy avoided, unless the insurer has previously consented to such repairs or waived his right to claim the forfeiture. It is immaterial whether the making of the repairs increased the risk or not, or whether it in any wise contributed to the loss.147 By the better authority the policy becomes void at the option of the insurer. even though the fire takes place long after the repairs have been completed.148 Painting or papering the building insured, or any other work done in ornamenting it, constitutes repairs, as well as do changes in its structure 149 more usually understood as coming within that term.

147 German Ins. Co. v. Hearne, 117 Fed. 289, 54 C. C. A. 527, 59 L. R. A. 492; Newport Imp. Co. v. Home Ins. Co., 163 N. Y. 237, 57 N. E. 475.

148 Imperial Fire Ins. Co. v. Coos County, 151 U. S. 463, 14 Sup. Ct. 379, 38 L. Ed. 231; KYTE v. ASSURANCE CO., 149 Mass. 116, 21 N. E. 361, 3 L. R. A. 508, Richards, Ins. Cas. 457.

149 German Ins. Co. v. Hearne, 117 Fed. 289, 54 C. C. A. 527, 59 L. R. A. 492.

VANCE INS.--30

181.

Measure of Insurer's Liability.

Appraisal and Arbitration.

Option to Rebuild.

Documents Made Part of Contract by Reference.

182. Authority of Agents-Waivers.

167. The condition avoiding the policy upon foreclosure proceedings is reasonable, and is fairly enforced. By the terms of the condition the first legal step instituting the proceedings to foreclose violates the condition.

If with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed."

This condition, giving the insurer the opportunity to cancel the policy in case any legal proceedings are instituted for the purpose of foreclosing any mortgage or other lien upon the insured property, is inserted in recognition of the fact that the prospect of early loss of property by legal process is apt to induce the insured to bring about its more profitable destruction by fire. The condition is reasonable and in full accord with public policy, and as a general rule the courts have given it a construction perfectly fair to the insurer. Its terms clearly indicate that it is the duty of the insured, immediately upon acquiring knowledge in any manner whatever of the commencement of foreclosure proceedings, or of notice that the property will be sold by virtue of the power given in a mortgage or trust deed, to give that information to the insurer, who may then, at his option, cancel the policy, or indorse upon it an agreement for the continuance of the insurance in spite of such proceedings. This has been

the construction given by most of the courts before which the question has come,1 but, curiously enough, in a few jurisdictions the courts have looked at the terms of the condition with such distorted vision as to see in it a requirement that notice must be given to the insured before the commencement of the foreclosure proceedings in order that the condition shall be violated. Thus, it has been held in North Carolina that where a sale of the insured property was advertised under a deed of trust without previous notice to the insured, who, however, saw the notice of the sale before the fire, there was no breach of the condition." It was further held in this case that the knowledge of such impending sale possessed by the local agent of the insurer made it incumbent upon the insurer to cancel the policy and return the unearned premium, and that its failure to do so was meant to be a waiver of the breach, if any existed. This, however, is clearly opposed to both reason and author.ity. In other states it has also been held that the filing of a bill to foreclose a mortgage, without previous notice thereof to the insured, did not avoid the insurance under this condition, although the insured had knowledge of the commencement of the proceedings a short time thereafter.3

It will be noted that the condition requires notice to the insurer of the commencement of foreclosure proceedings if known to the insured. It is held by the courts that such proceedings are deemed to "commence" with the first legal step taken to bring about foreclosure, such as the service of the petition to foreclose upon the insured. So it is generally held that the public advertisement of the sale under a mortgage or deed of trust is such notice as is contemplated by the condition."

1 See, especially, Delaware Ins. Co. v. Greer, 120 Fed. 916, 57 C. C. A. 188, 61 L. R. A. 137; also, Quinlan v. Insurance Co., 133 N. Y. 356, 31 N. E. 31, 28 Am. St. Rep. 645; Merchants' Ins. Co. v. Brown, 77 Md. 79, 25 Atl. 992; McKinney v. Assurance Co., 97 Ky. 474, 30 S. W. 1004.

2 Horton v. Insurance Co., 122 N. C. 498, 29 S. E. 944, 65 Am. St. Rep. 717.

3 Bellevue Roller-Mill Co. v. London & L. Fire Ins. Co., 4 Idaho, 307, 39 Pac. 196; North British & Mercantile Co. v. Freeman (Tex. Civ. App.) 33 S. W. 1091.

4 Findlay v. Insurance Co., 74 Vt. 211, 52 Atl. 429, 93 Am. St. Rep. 885. 5 Springfield Steam Laundry Co. v. Traders' Ins. Co., 151 Mo. 90, 52 S. W. 238, 74 Am. St. Rep. 521; Merchants' Ins. Co. v. Brown, 77 Md. 79, 25 Atl. 992; Hayes v. Insurance Co., 132 N. C. 702, 44 S. E. 404; Delaware Ins. Co. v. Greer, 120 Fed. 916, 57 C. C. A. 188, 61 L. R. A. 137. But in Weiss v. Insurance Co., 148 Pa. 349, 23 Atl. 991, it was held that the issue of a scire facias on the property was not a commencement of foreclosure proceedings. See, also, Hanover Fire Ins. Co. v. Brown, 77 Md. 64, 27 Atl. 314, 39 Am. St. Rep. 386.