general rules of waiver or estoppel, and hence, if the company or its agent knew, at the time of the issue of the policy, that the manufacturing establishment was run all night, or later than ten o'clock, this knowledge operates as a waiver of the operation of the establishment, and estops the company to deny its consent thereto.

American Cent. Ins. Co. v. McCrea (Tenn.), 8 Lea 513. Couch v. Rochester German Ins. Co., 30 N. Y. St. Rep. 54. Where, however, there is no waiver, the policy is avoided by running the factory after ten o'clock.

Reardon v. Faneuil Hall Ins. Co., 135 Mass. 121.

The Supreme Judicial Court of Massachusetts, in the case of Stone v. Howard Ins. Co. (and two other companies), 153 Mass. 475, holds that goods manufactured and in process of manufacture do not constitute a part of the manufacturing establishment, so that the suspension of operations in the factory will defeat the insurance on them under this provision of the policy.

The court, in these same cases, however, holds that the building, machinery, fixtures, tools and appliances are part of the factory, and that the insurance as to these items is avoided by a cessation of operations. In these cases, the court says:

"The insurance upon a manufacturing establishment includes insurance upon everything that goes to make up that establishment; and, on the other hand, insurance upon a part of such an establishment must be deemed to be an insurance upon the establishment, within the meaning of the clause referred to."

In Carlin v. Western Assur. Co., 57 Mo. 515; 12 Ins. L. J. 388, the court, in holding that a "flour mill" was a manufacturing establishment, gives the following definition:

"We think, therefore, that the plaintiff's flour mill, driven as it was by steam, and furnished with a middling purifier, bran-duster, belting and other machinery, was clearly a 'manufacturing establishment.'"

The Supreme Court of Illinois, in American Fire Ins. Co. v. Brighton Cotton Mfg. Co., 125 Ill. 131; 17 Ins. L. J. 749, thus defines "cease to be operated":

"What is the meaning to the words 'cease to be operated,' as used in the policy? The operation of a large manufacturing establishment means doing everything necessary for its successful and profitable management. It would necessarily be the work of many hands, and the operation would be multiplied many fold. The duties of the many employes would be quite dissimilar, and entirely independent of each other, but all necessary to either the profitable or successful operation of the factory. It would be the duty of some to buy the raw material to be manufactured, of others to run the engines to drive the spindles, of others to control and manage the carding and spinning, of others to put up and label the goods for the market, of others to make sales and take orders for goods as fast as manufactured, of others to deliver or ship goods when sold, and of others to perform such duties as may be necessary to be done, and which it would be needless to enumerate. The ceasing to perform any one thing, for the time being, of the many required to be done, would certainly not be to 'cease to operate the factory.' Any one might be temporarily suspended, and yet the factory be said to be in successful operation. Carding and spinning' is not all that is included in a 'cotton factory.' There must be the engine to drive the machin. ery, and fuel to make steam. The goods, when manufactured, must

be sold and shipped or delivered; and the doing of any one of these many things is a part, and even an essential part, of the operation of a large factory. Nor is the ceasing to do any one of them for a shorter or longer period ceasing to operate the factory. 'Carding and spinning' is no more all of the operation of a great factory, than the sale of the fabrics when produced. Many, very many, things are included in the operations of a factory, the doing of which is necessary to its successful management. The operating of an extensive factory does not mean it shall be kept employed in all its various departments every day; that is, all the time. It would be unreasonable to construe the contract in this policy that it means the factory, in all its departments, shall be kept in ceaseless motion. No one supposes it means that. It may properly be closed down over Sundays and all legal holidays, or for any cause that a prudent manager of such establishment would deem prudent and best for the interest of the owners. On the same principle, one department may be kept in operation, and others cease temporarily. It might be, the fabrics manufactured might be in excess of the sales or the demands of trade, and for that reason a prudent superintendent might deem it best to stop the spindles and the looms for a season, or sales might be in excess of the supplies, and for that reason no goods would be contracted for a time. Would any one say that such partial stoppages would be a violation of the contract of insurance contained in the policy in suit? So narrow a construction would make the contract of no value to the assured, and to observe it would render the usual and ordinary management of such an establishment impracticable."

The Supreme Court of Michigan, in City Planing and Shingle Mill Co. v. Merchants', etc., Mut. Fire Ins. Co., 72 Mich. 654; 18 Ins. L. J. 197, gives the following definition of the term "cease to be operated":

"The stoppage of the mill was occasioned solely by the want of logs to manufacture. The logs were expected daily, and their not being received was not the fault of plaintiff. It was a mere temporary suspension, which, in the first place, was supposed would only last a few days, and after that from day to day. This clause can not mean that a stoppage of this kind for a day, or even a week, for want of running material, an event quite likely to occur once or more in any season, would be considered 'ceasing to operate.' The policy speaks of premises becoming vacant or unoccupied, 'or if a mill or manufactory, it shall cease to be operated.' This must mean something more than a temporary suspension. It must mean a closing with the intention of ceasing operation, not a shutting down for a few days or weeks because of the happening of events, incident to the conducting of a mill in that locality, and which might be reasonably expected, such as the want of logs because of low water, which caused the suspension in this case."

The court cited the following cases:
Whitney v. Ins. Co., 72 N. Y. 120.
Ins. Co. v. Leathers, 8 Atl. 424.

Ins. Co. v. Manufacturing Co. (Ill.), 17 N. E. 776.
Stupetski v. Ins. Co., 43 Mich. 373.

Shackelton v. Fire Office, 55 Mich. 288.

Poss v. Ins. Co., 7 Lea 704.

Or if the hazard be increased by any means within the control or knowledge of the insured.

The question of increase of risk is generally one for the determination of a jury. This clause is construed to mean such a change in the circumstances, interest and surroundings as will increase the hazard of damage or loss. It does not include any use of the premises, or of any article by the insured, which the

nature of the occupancy or use of the premises necessarily require. It does not include a mere temporary increase of risk, but it must have continued up to the time of the fire.

Schmidt v. Peoria F. and M. Ins. Co., 41 Ill. 295.
Westchester Fire Ins. Co. v. Foster, 90 Ill. 121.
Gates v. Madison County Ins. Co., 5 N. Y. 469.

Mayor, etc., New York v. Hamilton Fire Ins. Co., 39
N. Y. 45.

To the contrary, see:

Concordia Fire Ins. Co. v. Johnson, 4 Kans. App. 7.

Kyte v. Commercial Union Assur. Co., 149 Mass. 116.

The increase of risk need not, however, be the cause of the fire.

In Crance v. City Ins. Co., 3 Fed. Rep 558, the court says that the words "increase the risk" should be construed as meaning essential and material increase of risk.

The following have been held to be an increase of risk per se:

Erection of frame addition to the insured building, putting in it a fireplace and stove.

Roberts v. Chenango Co. Mut. Fire Ins. Co., 3 Hill 501 (N. Y.)

Putting printing office into storeroom.

Hervey v. Mutual Fire Ins. Co., 11 Up. Can. C. P. 394.

Distilling liquor in building where risk is described as "barley and malt in assured's malthouse and brewery".

People's Ins. Co. v. Spencer, 53 Pa. 353.

Erecting factory building adjoining insured dwellings.
Allen v. Massasoit Ins. Co., 99 Mass. 160.

Putting in large stove for use in drying naphtha which had been dried by steam.

Daniels v. Equitable Ins. Co., 50 Conn. 55.

Erecting additional house on lot so as to eliminate clear

space.

Pottsville Ins. Co. v. Horan, 89 Pa. 438; 10 Ins. L. J. 771. Erection of lumber drying house within six or seven feet of factory building.

Cole v. Germania Fire Ins. Co., 99 N. Y. 36; 14 Ins.
L. J. 453.

Using engine for shelling corn.

Davis v. Western Home Ins. Co., 81 Iowa 496; 20 Ins.
L. J. 363.

I call your attention to note to this case in 10 L. R. A. 359.

Storing of loose hay in building.

Alston v. Greenwich Ins. Co., 100 Ga. 282.

Keeping fireworks in building containing insured property.
Betcher v. Capital Fire Ins. Co. (Minn.), 80 N. W. 971.

Renting ordinary storeroom for a tinshop.

Manufacturers and Merchants' Ins. Co. v. Kunkle (Pa.), 6 W. N. C. 234.

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

Before the adoption of the standard form of policy this provision was so worded as to make the policy void in case any carpenters or mechanics should be engaged in making alterations or repairs. The courts construed this provision not to apply to ordinary and reasonable repairs rendered necessary by use of the premises, but that it only applied to extraordinary alterations and repairs covering a considerable period.

James v. Ins. Co., 4 Clifford 272.

Harper v. Ins. Co., 17 N. Y. 198.

To avoid this construction, the fifteen days limitation on the right to make alterations or repairs during any one year was put in the policy. The reason for the change is thus stated in the case of German Ins. Co. et al. v. Hearne, 117 Fed. 289:

"In effect, the companies said to the insured: In order that there may be no room for question in the future concerning the character and extent of the work that may be done upon the insured premises, we agree that you may do whatever you please to the building, whether the change would be accurately described as building, or as altering, or as repairing, without asking our consent and without being obliged to consider whether or not the risk is thereby increased; and you may do this for fifteen days. But if the work you do is so extensive that it requires more than fifteen days to finish it, then we require you to give us notice, in order that we may take such steps as we may then see fit. We shall then have knowledge of what you are doing, and we can decide whether it may go on, or whether it is so dangerous as to require us to cancel the policy altogether, or to demand that the increase of hazard shall be compensated by an increase of premium."

In that case the insured bought a large and handsome residence in Pittsburg. He engaged a firm of contractors to make some alterations and repairs therein, which alterations and repairs required more than fifteen days in their completion. No structural change was contemplated, and none was made by the work done. The court, in holding that the insurance was forfeited by violation of the provision of the policy, says:

"To our minds, the meaning of the provision already quoted is plain and clear, as we have endeavored to explain; and it only remains to add that the work done by the mechanics employed for Mr. Hearne was certainly 'repairing,' even if it were neither 'building' or 'altering.' The clause under consideration is of comparatively recent date, and only a few cases have been found in which it has been examined by the courts of last resort. None of them decides the precise point raised by this writ of error, although we think that the reasoning of Newport Imp. Co. v. Home Ins. Co., 163 N. Y., 237, 57 N. E., 475, justifies us in citing that case as affording support to the conclusion we have reached.'

If the interest of the insured be other than unconditional and sole ownership.

This provision of the policy has led to much litigation, and

the courts have stretched the construction to the utmost in order to hold the company and protect the insured, though in some of the cases it would seem that the construction is extremely harsh as against the insured. Thus, in the case of Syndicate Ins. Co. v. Bohn et al., 12 C. C. A. 531; 27 L. R. A. 614, the insured were the sole stockholders, being the sole owners of a building. They formed a corporation and transferred the building to such corporation, they taking the entire capital stock thereof. The building had been insured in their individual names prior to the formation of the company, and thereafter the agent, without making inquiry as to any change in the title, renewed the insurance in their individual names. The court, in holding that the insured were not the sole and unconditional owners of the building, says:

"Stockholders of a corporation are entitled to a distributive share of its profits while it continues in operation, and, at its dissolution, to a just proportion of the proceeds of the corporate assets remaining, if any, after all the corporate debts are paid, but they are far from being the unconditional owners of the property of the corporation. The title and ownership of such property is vested in the corporation itself-in an entity as distinct and separate from its stockholders as in any individual trustee from his cestui que trust. The corporation itself can sell, convey, mortgage, and deal with the corporate property as its own, subject only to the restrictions of its charter, while its stockholders can do none of these things. These stockholders were not, therefore, the sole or unconditional owners of the property described in these policies."

One who has gone into possession of property under a land contract of purchase, and who has paid a portion of the purchase price and entered into an undertaking to pay the balance, his contract requiring him to keep the building insured, is the sole and unconditional owner of the property.

Dupreau v. Hibernia Ins. Co. (Mich.), 5 L. R. A. 71.
Bottom v. Iowa Cent. Ins. Co., 25 Ia. 328.

Where, however, the property is purchased on the installment plan and the title is reserved in the seller until all installments are paid, the purchaser is not the sole and unconditional owner of the property.

Dumas v. Northwestern Nat'l Ins. Co., 40 L. R. A. 358.

In Veebe v. Ohio Farmers' Ins. Co. (Mich.), 18 L. R. A. 481, the court holds that each of two persons owning in severalty respective shares of personal property insured, is the "absolute owner" of the property within the meaning of the policy.

For other cases construing this clause where several parties have an undivided interest in the property, see note to this last case in 18 L. R. A. 481.

Sole and unconditional ownership is not affected by the existence of a mortgage on the property.

Hubbard v. Hartford Fire Ins. Co., 33 Ia. 325.

Clay Fire Ins. Co. v. Beck, 43 Md. 358.

The existence of a lien or unpaid purchase money does not prevent the insured from being the sole and absolute owner. Millville Mut. Fire Ins. Co. v. Wilgus, 88 Pa. 107. Wooddy v. Old Dominion Ins. Co. (Va.), 31 Grat. 362.