Peirce v. Cohasset Mutual Fire Insurance

Endicott, J. The policy insures the frame dwelling-house of the plaintiff, and contains no other description of the building. The declaration states that it was totally destroyed by fire while the policy was in force, and that the plaintiff is entitled to recover the sum named in the policy. [573] The answer is not clear and precise in its terms, but it in substance alleges that the plaintiff agreed and warranted in the policy, that the building was and should be occupied as a dwelling-house, and for no other purpose, and that, disregarding the agreements and warranties of the policy, the plaintiff used and occupied the building, at the time he procured the policy and afterward, as a boarding-house and hotel, and the policy was thereby rendered void. No change in the occupation is alleged. The policy contains no express warranty or agreement in relation to the occupation of the building when the policy issued, and whether the defendant has a defence on this ground it is unnecessary to consider, as no evidence was offered in support of it. The evidence offered was that the building, after the date of the policy, was occupied as a hotel without the consent of the defendant. The only ground upon which the defendant contends that that evidence was competent, is under the fourth condition of the policy, which provides that “ when the insured shall alter or enlarge a building, or appropriate it to other uses than those mentioned in the policy, so as to increase the risk, without first obtaining the consent of the directors, and paying such premium as they may require, the policy shall be void.” But evidence of a change in occupation subsequent to the policy is a different defence from that set up in the answer, and, if relied on, should have been pleaded. See Hawes v. Ryder, 100 Mass. 216. The answer gave no notice that a change in occupation under the fourth condition of the policy would be set up; on the contrary, it implies there had been no change, when it alleges that the occupation at the time the policy issued and after was of such a character as to render the policy void. The evidence was properly excluded. It is therefore unnecessary to consider the other questions argued at the bar. Judgment on the verdict.