sanction of authority. In Thompson v. that sort was 'storing or keeping' benzin. Equity F. Ins. Co. [1910] A. C. 592, 3 B. The learned counsel for the respondents conR. C. 1, 19 Ann. Cas. 412, a building was tend that the presence of gasolene on the insured, and the words were "keep or store," premises was enough to bring the statutory instead of “keep or use,” as here; and the condition into operation, and he referred court held that a small quantity of gasolene to the accident which did happen as an in a stove being used for cooking purposes, example of the danger against which prewhich caused the fire, no other gasolene be- cautions are required. But it is obvious ing in the building, was not an infringe that the danger guarded against is not ment of the condition. The court say: ignition caused by the article itself, but the "What is the meaning of the words, 'stored risk of spreading or increasing the conor kept,' in collocation and in the connection flagration when once started and in progin which they are found? They are com- ress by the presence of highly inflammable mon English words with no very precise or explosive material. The fact that the or exact signification. They have a some-fire in the present case was caused by the what kindred meaning and cover very much gasolene is irrelevant. And the fatal obthe same ground. The expression as used in jection to the defendant's contention is that the statutory condition seems to point to it gives no effect whatever to the words, the presence of a quantity not inconsider- 'stored or kept,' . . . and the meaning able, or at any rate not trifling in amount, which the defendants seek to attribute to and to import a notion of warehousing or it might possibly or even probably prevail depositing for safe custody or keeping in if the words in question had been omitted stock for trading purposes. It is difficult, altogether, and the condition had excluded if not impossible, to give an accurate defini- liability for loss or damage occurring while tion of the meaning; but if one takes a congasolene . . is... in the crete case it is not very difficult to say building insured.' Some meaning must be whether a particular thing is stored or given to the words, 'stored or kept.'" kept,' within the meaning of the condition. No one probably would say that a person who had a reasonable quantity of tea in his house for domestic use was 'storing or keeping' tea there; or (to take the instance of benzin, which is one of the proscribed articles) no one would say that a person who had a small bottle of benzin for remov-ries weight in our present discussion. "The ing grease spots or cleansing purposes of may be reasonably construed in either of two ways, but extrinsic evidence is not resorted to for the purpose of aiding in the construction, the proper construction of the contract is for the court. While the words in the case at bar are "kept or used," instead of "kept or stored," as in the English case, and therefore the idea of storage is embraced in the one instead of use in the other, yet both have the word "keep," and, so far as the reasoning in the cited case refers to that word, it car word 'kept', as used in the policy [of the policy on farm buildings that in case of fire, or exposure to loss or damage thereby, it shall be the duty of the insured to use their best endeavors for saving and preserving the property, is not violated by taking off the spark arrester of a threshing engine for a few minutes while the machine is in operation, since the purpose of such sured when the property covered by the policy is on fire, or when it is menaced by fire. Siemers v. Meeme Mut. Home Protection Ins. Co. 143 Wis. 114, 139 Am. St. Rep. 1083, 126 N. W. 669. It was held in that case that the clause involved in that case prohibited the use of wood except to efficiently start combustion in the coal, and that the use of wood there-provision is to define the duty of the inafter was within the excepted risk, and that when wood was so used up to a short time before the fire occurred, such fire was not caused by an engine "using coal for fuel with sufficient wood to kindle or start the fire" merely because coal was the last fuel put into the fire box before the fire occurred. The evidence in this case being to the effect that the engine was started and run for half an hour with wood for fuel exclusively, when a man was sent for coal, and he brought one lump, part of which was used about fifteen minutes before the fire occurred, and the engineer testified that he sent for coal because he thought it would be a helper, it was held that there was really no question for the jury, and that their finding that no more wood was used with the coal than was sufficient to kindle the fire was contrary to the undisputed evidence. It has been held that a provision in a In Siemers v. Meeme Mut. Home Protection Ins. Co. supra, the evidence as to compliance with provisions as to keeping a ladder, an abundance of water, and the required number of pails, was uncontradicted, and was held to present no question for the jury, and their finding that a watchman was employed was held to be supported by the evidence. Miscellaneous. In the absence of a condition excluding liability on account of the insured's negligence, his right of recovery will not be defeated because of his negligent use of a steam engine on his premises, where such same form as in the case at bar], implies | found in the recent case of Springfield F. & a use of the premises as a place of deposit M. Ins. Co. v. Wade, 95 Tex. 598, 58 L.R.A. for the prohibited articles for a considera- 714, 93 Am. St. Rep. 870, 68 S. W. 977, ble period of time," says the Massachusetts where the words of prohibition were "kept, court in First Cong. Church v. Holyoke Mut. used, or allowed," and they were held not F. Ins. Co. 158 Mass. 475, 19 L.R.A. 587, 35 to cover a case where a gallon of gasolene Am. St. Rep. 508, 33 N. E. 572. A similar was brought onto the premises for tempodefinition, excluding the idea of mere tem- rary use, although such act in fact caused porary presence, is given in Clute v. Clin- the destruction of the property. "It is not tonville Mut. F. Ins. Co. 144 Wis. 638, enough," say the court, "that hazardous ar32 L.R.A. (N.S.) 240, 129 N. W. 661; Smith ticles are upon the premises. They must v. German Ins. Co. 107 Mich. 270, 30 L.R.A. be there for the purpose of being stored or 368, 65 N. W. 236. And see note in 13 Ann. kept. As the word 'kept' means Cas. 542. that the prohibited article must not only be upon the premises, but must be there for keeping or storing, and not merely upon a temporary occasion for a different purpose, it follows that there must be some degree The definition of "use" was discussed by the court in Mears v. Humboldt F. Ins. Co. 92 Pa. 15, 37 Am. Rep. 647, as follows: "We are not disposed to give to the word 'use' in this policy the narrow construction of permanency in its continuance there. claimed for it. It must have a reasonable interpretation, such as was probably contemplated by the parties at the time the contract was entered into. What is intended to be prohibited is the habitual use of such articles, not their exceptional use upon some emergency. The strict rule claimed by the defendants would prevent the assured from painting his house or cleaning his furniture, as it would be difficult to do either without using some of the prohibited articles." The court followed the same definition of "use" in Lebanon County v. Franklin F. Ins. Co. 237 Pa. 360, 44 L.R.A. (N.S.) 148, 85 Atl. 419, Ann. Cas. 1914B, 130. A careful definition of "kept or used" is negligence was not wilful. Johnston v. Dominion Grange Mut. F. Ins. Co. 23 Ont. App. Rep. 729. In Farmers' Mut. F. Ins. Co. v. Hull, 77 Md. 498, 27 Atl. 169, where the insured bought a portable steam engine, and placed it within 30 feet of his barn, and used it for chopping and threshing grain, the court said that the use of such engine under the circumstances, without the insurer's permission, beyond all question resulted in a forfeiture of the policy. The exact provision governing the forfeiture does not appear, and the question at issue was as to whether there had been a waiver of the forfeiture. In Farmers' Mut. F. Ins. Co. v. Moyer, 97 Pa. 441, it was held that the use of a portable steam engine placed within 32 feet of the insured barn for threshing purposes did not constitute a violation of a provision of the by-laws prohibiting the insuring of any building "situated within 50 yards of a railroad on which steam power is employed, or of any forges, foundries, furnaces, rolling mills, powdermills, paper and oil mills, cotton mills, or, in general, any mills, factories, or machineries driven by steam power," or of another by-law providing for a suspension of the risk "if the owner of any insured building should convert it to some The word implies all this. The word 'used' is employed in immediate connection with the word 'kept,' in order, we think, to extend the provision so as to exclude the idea that the article must be stored or deposited on the premises. But the purpose in the use of each word is to provide against the same danger, viz., that which would arise from the habitual, constant, or continued exposure of the property through the presence or use of the article. One word forbids the permanent or habitual keeping of the dangerous thing, and the other a like use of it, without the actual depositing or stor ing of it." See also Hynds v. Schenectady County Mut. Ins. Co. 11 N. Y. 554; Farmers' & M. Ins. Co. v. Simmons, 30 Pa. 299; other purpose, or should carry on therein any of the trades" specified in the preceding clause. In Wilson v. Union Mut. F. Ins. Co. 75 Vt. 320, 55 Atl. 662, a printed schedule described most of the property insured, but in writing there was an indorsement, "$50 on engines, shafting, and belting," and it appeared that the boiler house in which the boiler that propelled two engines was placed was within 100 feet of insured buildings, and the insured contended that the insurer must have contemplated that these engines would be used for ordinary farm purposes, and that the written portion of the contract should be construed to control the printed provision, and that so construed no forfeiture would result from the use of another engine which had been brought upon the premises to cut ensilage; but the court held otherwise, saying that if the question were in respect to the use of the engines insured by the policy the contract would be construed to mean that their use was contemplated by the insurer in view of their situation and the safeguards around them, but that the engine in controversy was not insured, and was not upon the premises when the policy was issued, and had not the protection of a boiler house when used. J. T. W. Mears v. Humboldt F. Ins. Co. 92 Pa. 15, 37 Am. Rep. 647; Szymkus v. Eureka F. & M. Ins. Co. 114 Ill. App. 401; and Adair v. Southern Mut. Ins. Co. 107 Ga. 297, 45 L.R.A. 204, 73 Am. St. Rep. 122, 33 S. E. 78, the last involving the temporary use of a machine for threshing grain on the premises where the insured property was located. 2. Increase of Risk.-The language is that the policy shall be void if, without the written consent of the insurer, "the situation, or circumstances affecting the risk, shall, by or with the advice, agency, or consent of the insured, be so altered as to cause an increase of such risks." What constitutes an alteration of the situation or circumstances affecting the risk as to cause an increase of risk? Here we must distinguish between occasional negligent acts of the insured, which may not only tend to increase the hazard for the time being, but perhaps even cause the fire, and an alteration of the situation or circumstances. In a certain sense all negligent acts of the insured have a tendency to increase the risk, and yet the policy is not thereby avoided, because one's own carelessness is one of the very things insured against, otherwise insurance would afford little protection, and the policy holder would be insuring himself. The insured who works in his barn or upon the haymow, or in his woodshed, with a lighted pipe or cigar, evidently increases the risk; so does the housewife who builds too brisk a fire, leaves the stove filled with wood and the draughts wide open, or deposits hot ashes in a wooden receptacle. But acts like these, while they may temporarily increase the hazard, do not so alter the situation or circumstances affecting the risk as to avoid the policy. They may constitute negligence on the part of the owner, but neither the situation of the property itself nor the ir cumstances surrounding it can with reason be said to be altered. "An increase of risk which is substantial, and which is continued for a considerable period of time, is a direct and certain injury to the insurer, and changes the basis upon which the contract of insurance rests." Kyte v. Commercial Union Assur. Co. 149 Mass. 116, 123, 3 L.R.A. 508, 21 N. E. 361, 362. Here, then, as in the prohibited articles clause, the words themselves ordinarily import something more than a mere temporary exposure to additional hazard, and it is the opinion of the court that it could not be said, as a matter of law, that the act of the plaintiff constituted a breach of this condition. Let us take another and broader view. Both the prohibited articles clause and the increase of risk clause must be construed in the light of the entire contract, the situation and character of the property insured, and the natural and necessary use to which it must be put, and the application of this universal rule of construction confirms the inferences already drawn from the precise language of the clauses themselves. The buildings insured were not city property, but farm buildings, consisting of a dwelling house, storehouse, and frame barn, together with various farming machinery, implements, vehicles, etc. It could not have been in the mind of either the plaintiff or the defendant that the barn in which the fire started was to be locked and lie idle. Both the parties knew that the plaintiff was to continue to use his buildings in the ordinary course of husbandry, as the ordinary farmer uses them in the pursuit of his legitimate occupation. The policy was not intended, nor should it be permitted, to prevent such use. The threshing of grain is as much a necessary incident of farm work as is harvesting and storing in the barn. Formerly threshing was done by horse power, but that method has become well nigh, if not wholly, obsolete; and the uncontradicted evidence shows that practically all the grain in the plaintiff's community is now threshed with the aid of a gasolene engine. This is common knowledge. The defendant, which makes a specialty of farm risks, must have known it. Its local agent, through whom the first policy was issued, was himself a farmer and lived within 3 or 4 miles from the plaintiff's premises, and must have been familiar with the general situation and One object in requiring the written con- custom; and the local agent who issued sent of the company in case of increase of the policy in suit, a renewal of the first, risk doubtless is to enable the company to also resides in Skowhegan. Knowledge of charge an additional premium therefor, dur-conditions existing at the time the contract ing the continuance of the increase, and is made, is always taken into consideration this presupposes a period of substantial in construing the rights of the parties duration. thereunder, as in the case of vacancy. Gup "Those words imply something of duration, and a casual change of a temporary character would not ordinarily render the policy void under this provision." First Cong. Church v. Holyoke Mut. F. Ins. Co. 158 Mass. 475, 19 L.R.A. 587, 35 Am. St. Rep. 508, 33 N. E. 572. See also Loud v. Citizens' Mut. Ins. Co. 2 Gray, 221; Com. v. Hide & Leather Ins. Co. 112 Mass. 136, 17 Am. Rep. 72; King Brick Mfg. Co. v. Phoenix Ins. Co. 164 Mass. 291, 41 N. E. 277. till v. Pine Tree State Mut. F. Ins. Co. 109 for the purpose of mixing paints, Archer v. Me. 323, 84 Atl. 529. The plaintiff was making the same use of his barn and was carrying on his ordinary occupation in the same manner as when the policy was issued, and the same as all other farmers were customarily doing. It was a reasonable and necessary use. It was impracticable, if not impossible, to secure the threshing of his grain by any other process; and under such circumstances, which must have been known to the insurer when the policy was issued, we cannot hold that the plaintiff was there by violating the conditions of his policy. If such an act constituted a forfeiture, then he had been uninsured, since the engine was used on the first occasion after the policy was issued, because a breach occurred then, if at all; and we have recently held that a policy once forfeited cannot be revived, except by waiver or mutual agreement. Dolliver v. Granite State F. Ins. Co. 111 Me. 275, 50 L.R.A. (N.S.) 1106, 89 Atl. S. Merchants' & Mfrs. Ins. Co. 43 Mo. 434; keeping camphene in a printing establishment for use in cleaning type, Harper v. New York City Ins. Co. 22 N. Y. 441; petroleum in a flour mill for lubricating purposes, Carlin v. Western Assur. Co. 57 Md. 515, 40 Am. Rep. 440. In all of these instances, and in many more gathered in the note in 13 Ann. Cas. 540, the use of the prohibited article was not merely once a year for a short time, as here, but continuous; nevertheless, as it was necessary to the conduct of the business, its use for such a purpose was held to be within the implied permission of the insurer. The same reasoning and the same rule apply with equal force to agricultural pursuits and the ordinary and necessary use of farm buildings in connection therewith. Based on the same principle is a class of cases growing out of the use of prohibited articles in making repairs. It is not to be presumed that, when an owner effects insurAnd not only under such a construction ance on his building, he precludes himself would this policy have been long since for- from the right, not only to use it in the cusfeited, but it is safe to assume that prac- tomary manner, but also to make the usual tically all the farmers in that section would and ordinary repairs in a reasonable and find their policies in the same condition. If proper manner, in the absence of anything a fair and reasonable interpretation of the in the policy expressly prohibiting the same. policy requires it, of course the injustice of It has been frequently held that such rethe result must not be interposed to pre-pairs, thus properly made, do not avoid the vent it. Parties must be bound by the policy, even where the fire hazard is obcontracts they make. But a result so disas-viously increased. In Dobson v. Sotheby, trous and universal raised a strong presumption that it was not within the contemplation of the parties, and the contract should not be so construed, except by compulsion of the language. This rule that the policy is not avoided where the use made of the prohibited articles, or the general use and operation of the property was necessarily incident to the business of the insured, and therefore presumed to be recognized and impliedly permitted by the insurer, is well settled and of wide and general application. Thus, in manufacturing establishments the keeping or using of an article necessarily incident to the manufacturing process or to the carrying on of the business will not avoid a policy, even though keeping or using be expressly prohibited, as the use of gasolene in a silver-plating factory, Lancaster Silver Plate Co. v. National F. Ins. Co. 170 Pa. 151, 50 Am. St. Rep. 753, 32 Atl. 613; keeping a small quantity of benzin for use in a furniture repair shop, Faust v. American F. Ins. Co. 91 Wis. 158, 30 L.R.A. 783, 51 Am. St. Rep. 876, 64 N. W. 883; keeping benzin for finishing purposes in a furniture factory, Davis v. Pioneer Furniture Co. 102 Wis. 394, 78 N. W. 596; keeping benzin in a wagon factory Moody & M. 90, 31 Revised Rep. 718, the policy was issued at a low rate payable on buildings in which no fire was kept and no hazardous goods deposited. The building required tarring; a fire was lighted in the inside; a tar barrel brought into the building for the purpose of performing the necessary operations. The tar took fire through the negligence of the workmen, and the premises burned. Lord Tenterden said: "The common repairs of a building necessarily require the introduction of fire upon the premises, and one of the great objects of insuring is security against the negligence of servants and workmen. I cannot, therefore, be of opinion that the policy in this case was forfeited." The same rule has been applied where paint was being removed from the outside of a wooden building by means of a naphtha or gasolene torch, and these decisions well illustrate what we conceive to be the true legal principle. In First Cong. Church v. Holyoke Mut. F. Ins. Co. 158 Mass. 475, 19 L.R.A. 587, 35 Am. St. Rep. 508, 33 N. E. 572, the plaintiff contended that the use of the torch and the change in conditions affecting the risk occurred through making ordinary repairs in a reasonable and proper way, and that in the prohibitive provision of the policy there was an implied exception of what is done in making ordinary repairs. Acting upon this, the trial judge submitted this single question to the jury: "Was the method used the method ordinarily pursued to remove the paint on the outside of a building preparatory to scraping it off to repaint it?" Affirmative answer being returned, the presiding judge ordered a verdict for the plaintiff. The law court set aside the verdict on the ground, that the question submitted did not sufficiently present all the | matters of fact in issue, including the material of which the outside of the building was composed, its character and condition, the season of the year, etc., but was too general in its form. The court held that "such provisions [in the policy] are not intended to prevent the making of necessary repairs and the use of such means as are reasonably required for that purpose;" and that if the use of naphtha, at the time and in the manner in which it was used, was reasonable and proper in the repair of the building, having reference to the danger of fire as well as other considerations, then the policy was not thereby forfeited. In Garrebrant v. Continental Ins. Co. 75 N. J. L. 577, 12 L.R.A. (N.S.) 443, 67 Atl. 90, a torch was used for the same purpose, and the court held that the policy was not thereby avoided, as it permitted mechanics to be employed for a period of fifteen days in making repairs, that time had not expired when the fire occurred, the necessity of repairs existed, and the method was reasonable and proper. In Lebanon County v. Franklin F. Ins. Co. 237 Pa. 360, 44 L.R.A. (N.S.) 148, 85 Atl. 419, Ann. Cas. 1914B, 130 (1912), where nonsuit was therefore improperly ordered. 3. Failure to Furnish Proof of Loss.-The defendant also set up in its brief statement of defense the plaintiff's failure to furnish a proof of loss, but this point is not urged in argument. It is proper, however, to say that, in view of the correspondence between the parties and of the fact that the defendant denied all liability, the jury might well have found that it had waived this requirement. Such waiver is a question of fact (Robinson v. Pennsylvania F. Ins. Co. 90 Me. 385, 38 Atl. 320), and the court cannot say that, under the evidence in this case, the plaintiff is precluded from recovery on that ground. Exceptions sustained. the Circuit Court for Tuscola County, PPEAL by defendants from a decree of chancery, in complainants' favor in a suit to compel specific performance of a Note. Effect of deed or mortgage on one who signs, but is not named in, it. the working of mechanics was prohibited Our conclusion on this branch of the case, therefore, is that the plaintiff was neither keeping nor using gasolene, within the inhibition of this policy, nor did his acts constitute a breach of the increase of risk clause, as a matter of law. The most that the defendant can successfully claim is that the question of increase of risk is a question of fact and should be submitted to the jury under proper instructions. The The court in AGAR V. STREETER frankly "It is probable that if the weight says: decisions, old and new, my conclusion is of authority depends upon the number of opposed to the weight of authority." There would seem to be no doubt as to the correctness of the statement. See note to Sterling v. Park, 13 L.R.A. (N.S.) 298, to which the present note is a supplement. To the cases there cited to the proposition that "a conveyance naming several grantors and signed by those named, as well as by another person who is not named therein as a grantor, will be ineffectual to convey the latter's interest in the land described in the conveyance," may be added the following later |