The opinion of the court was delivered, May 14th 1868, by
The subject insured was described in the policy as “ a four-story building, basement stone, balance frame, fifty by one hundred feet; two wing buildings each about thirty-four by fifty feet, three stories high; also, two-story stone kitchen attached with one wing by a frame covered building.” The application, which was agreed to make part of the policy, denominated the property as “ dwelling-house, Caledonia Spring Buildings,” and describes it, in other respects, substantially as it was described in the body of the policy. In neither is a word said respecting the occupancy of the building, or the uses to which it should be put. These are only to be inferred from its description. There is no representation that it was an occupied dwelling-house or building at the time when the insurance was effected, and no warranty that it should be occupied during the continuance of the risk. At least there is no such express representation or warranty. But the defendants below, now plaintiffs in error, contend that the *422description of the property as a dwelling-house amounted to a representation that it was tenanted, or occupied when the policy issued, and an engagement that it should continue to be occupied. Interpreting the contract of the parties thus, they offered to show on the trial that the plaintiffs had abandoned the buildings as a watering-place to be kept by themselves; that for three or four summers before the fire a Mrs. Cooper occupied them and kept boarders; that some three months before the fire she left the house and it remained vacant until it was destroyed by the work of an incendiary; that the plaintiffs were notified that the house was vacant, and that the doors and windows were found open; that the defendants had no knowledge of the fact that the property was vacant, and never consented to its remaining unoccupied; and that after Mrs. Cooper left the plaintiffs removed the most valuable part of their furniture and in so doing emptied the contents of straw beds into two of the rooms in the building. Such was the substance of the offer. It was rejected by the court, and we think correctly. It embraced two propositions, first, to prove that the building was left unoccupied with the knowledge of the owners, and without the knowledge or consent of the insurers, and, second, to prove that the defendants had been guilty of negligent conduct, either by themselves or by their servants or agents, though it was not alleged that the fire was a direct consequence of the negligence. Now, it is obvious that the evidence offered to prove that the building was left unoccupied was wholly immaterial, unless it tended to show either a change in the subject insured, or a breach of a warranty, or the falsity of a representation. It did neither. I think it has never been held that the insurance of a dwelling-house implies that it is a tenanted house, much less that it implies an engagement of the assured that it shall always be occupied while the risk taken endures. Policies often contain stipulations in regard to occupancy, but they are expressed plainly, and if considered material, they are stated to be either conditions or representations. The policy in this case contains nothing of the kind. On the contrary, the 18th article of the by-laws allows the fullest liberty for changes of tenants without notice, if the property be not used for other purposes than those for which it was used when insured. And even if a building be insured as an occupied dwelling-house, even if application be made for a policy on an occupied dwelling-house, while it might amount to a false representation if the property was unoccupied at the time, it is not an assertion that it shall remain wtoccupied. It is matter of description of the subject, rather than stipulation respecting its use. It may be that hazard of fire is greater when a dwelling-house is left untenanted. So it is greater or less in eases of tenancy by different persons; but in the absence of express stipulation to the contrary, a change of tenants has no effect whatever on the con*423tract of insurance if the use he not changed. It is vain to argue that no use at all is an use for other purposes than those for which the building was used when insured. This case is not to be confounded with those cases in which there have been alterations of the subject insured, and where the question has been whether the danger of loss was increased. Here the question is what was the risk assumed ? Was it a dwelling-house simply that was insured, or a dwelling-house occupied ? Did the policy bind the assured to any use ? We think it did not, further than that when used, it should be only as a dwelling-house.
In Catlin v. The Springfield Ins. Co., 1 Sumn. 345, where it appeared that a house had been insured as a dwelling-house, but to be occupied as a tavern, Judge Story said: “ The doctrine had never, to his knowledge, been asserted, nor should he deem it maintainable that a policy against fire on the house of A. in Boston described as a dwelling-house would be void if the house should cease for a time to have a tenant. This in a case where a house had been described ‘to be occupied.’ ” In O’Niel v. The Buffalo Fire Insurance Co., 3 Comst. 122, in entering judgment the court said, assuming that there was a written application by the plaintiff describing the house as occupied by Goodhue, the description in the policy must be regarded as a warranty of the fact that he was the occupant at the date of the policy, and nothing more. The description imports nothing more. The defendants insist that the description warrants not only that he was the occupant at the date of the policy, but that he was to remain the occupant during the continuance of the risk. But the parties have not thought proper to express themselves to that effect. A warranty may be affirmative, as when the insured undertakes to perform some positive allegation, or promissory, as when the assured undertakes to perform some executory stipulation. Here was an affirmative stipulation that the house was then occupied by Goodhue, but not a promissory agreement that he should continue to occupy it.” This goes much further than we need go in the case in hand. Here there is neither affirmation nor promissory agreement respecting occupancy. The evidence offered to prove that the building was unoccupied for some time before the fire, was quite immaterial.
And so was that offered to prove negligence in the care and use of the building. Indeed the contrary was not urged in the argument before us. It was not alleged that the loss occurred in consequence of the plaintiff’s negligence, but if it had been it would not matter. A fire policy is a protection against fire caused by the assured’s own negligence, unless the negligence amounts to fraud. This is the doctrine of all the cases, and of the elementary writers.
The judgment is affirmed.