Page:Federal Reporter, 1st Series, Volume 3.djvu/566

2. Same—Same—Same.— A policy of insurance provided that the same should be void “if the above-mentioned premises shall be occupied or used so as to increase the risk; * * * * or if the risk be increased by erection of or occupation of neighboring buildings; or if by any means whatever within the control of the assured, without the consent of the company indorsed hereon.” Held, that the terms “increase the risk,” must be construed as meaning an essential increase of the risk.

3. Same—Same—Same.—Such policy also provided that “the insured has permission to make alterations and repairs incidental to the business.” Held, that this clause must be understood as embracing such alterations in relation to the carrying on of the business of the insured as would not essentially and materially increase the liability of the property to be destroyed by fire.

4. Agency—Notice.—After such policy had been issued and delivered by the regular agent of the company, the company was not chargeable with knowledge subsequently acquired by the insurance agent who placed the insurance in the company.

Hoadly, Johnson & Colston, for plaintiffs.

Moulton, Johnson & Levy, for defendant.

Swing, D. J., (charging jury.)This action is brought by the plaintiffs to recover the sum of $794.40 upon a policy of insurance issued by defendant to the plaintiffs on the ninth day of November, A. D. 1879, insuring plaintiffs against loss by fire upon a two-story brick house used by them as a manufactory of packing boxes, burial cases, etc., in Cincinnati, Ohio. The plaintiffs aver substantially the payment of the premium, the issuing of the policy of insurance, and damage by fire to the property to the amount of $794.40; that due notice and proof of loss were made; and that plaintiffs have kept and performed all their conditions of said policy, and pray judgment for $794.40.

The defendant answers, substantially, that after the making and delivery of the policy it became null and void, because by the terms of the policy it is provided that if the premises therein described shall be occupied or used so as to increase the risk, or if the risk be increased by any means whatever, within the control of the assured, without the consent of the company indorsed upon said policy, it should be void; that without the consent of the company so indorsed the plaintiff did increase the risk by the sinking of an artesian