The policies were dated respectively December 8, 1909, and December 13, 1911, were issued for a term of three years, and covered farm buildings in the town of Trenton. When the first policy was issued the plaintiff was living with his family upon the premises and making his home there. In June, 1910, he moved with his family to Bar Harbor and has since resided in that town but he claims to have kept workmen as tenants in the insured premises until [277] about January 1, 1912, and we think the evidence fairly supports this contention. The buildings therefore were occupied when the policies were issued. 1 On January 1, 1912, the premises being then unoccupied, the plaintiff secured thirty-day vacancy permits from the defendant's agent, which expired January 31, 1912. But the premises remained unoccupied until June 18, 1912, when other workmen for the plaintiff entered into possession and continued to occupy the buildings until July 28, 1912, when the fire occurred.

The policies were of the Maine Standard form adopted by the Legislature in 1895, and each contained the usual provision: "this policy shall be void if the premises

hereby insured shall become vacant by the removal of the owner or occupant, and so remain vacant for more than thirty days without such assent," such assent having been previously defined as "in writing or in print of the Company." It being conceded that the written assent to vacancy issued on January 1, 1912, expired on January 31, 1912, and that no other permit was given, it follows that by their own terms the policies were rendered void, because of the subsequent vacancy extending to June 18, 1912, unless as claimed by the learned counsel for the plaintiff, the reoccupation begun on June 18, and continued till the time of the fire, of itself, revivified the contract and restored the plaintiff to his former rights. Did it have that legal effect?

This is a question raised sharply for the first time in this State and because of its consequences is deserving of the most careful consideration. Especially is this true because the decisions in other jurisdictions are not in harmony.

The policy contains eleven distinct conditions, the violation of any one of which, renders it void. One of these, false representation in the application, relates to matters antedating the policy; nine others, viz.: other insurance, removal, increase of risk, sale, vacancy for more than thirty days, manufacturing establishments running later than nine o'clock P. M., or ceasing operations more than thirty days; keeping of gunpowder or other like articles contrary to law; keeping of camphene, benzine, naptha or other chemical oils, all relate to matters while the policy is in force; while the eleventh, fraud,

relates to acts either before or after the loss.

[278] An examination of the authorities reveals the fact that in some states the courts have held that the breach of these conditions does not render the policy void but merely suspends its operation, and when the breach ceases, the policy again attaches. They make it a case of suspended animation rather than of death. But it would seem that in order to do this they ignore the plain words of the contract and seek to reach a conclusion which under the circumstances might seem fairer to the assured, working out what they conceive to be "substantial justice."

The reasons given for these decisions do not commend themselves to our judgment. In some cases the later decisions are based upon earlier ones arising under a different form of policy where, the temporary suspension was expressly provided for, but the distinction is not noted, or if noted, the earlier is followed, notwithstanding the changed contract.

For instance, three early cases are often cited as authority for the doctrine of revivification, viz.: Lounsbury v. Protective Ins. Co. 8 Conn. 459, 21 Am. Dec. 686 (1831); Phoenix Ins. Co. v. Lawrence, 4 Metc. (Ky.) 9, 81 Am. Dec. 521 (1862), and U. S. Fire, etc. Ins. Co. v. Kimberly, 34 Md. 224, 6 Am. Rep. 325 (1870) but in each of them the policy provided, not that it should be void in case the property were used contrary to the conditions specified, but that "so long as the same shall be so appropriated, applied or used, these presents shall cease and be of no effect." It is obvious that under that plain language the policy was suspended by its own terms, but when that language was abandoned and it was provided that the policy should be "void," it is difficult to see how these early decisions form any precedent in favor of the doctrine of suspension. In fact they are authorities against it. Yet these decisions among others are cited as authorities in Athens Mut. Ins. Co. v. Toney, 1 Ga. App. 492, 57 S. E. 1013 (1907), one of the more recent cases that adopts the theory of suspension and revivification.

Along the same line are the decisions in Illinois. The earliest case on this subject in that state, and the one often cited by that court as the leading case, is New England Fire, etc. Ins. Co. v.. Wetmore, 32 Ill. 221 (1863).

[279] But the policy in that case provided, as in the other early cases before referred to, that if the premises should be appropriated to any prohibited use then "so long as the same shall be so appropriated, applied, or used, these presents shall cease and be of no force or effect," and the court say: "The import of this language it seems to us, is most clear, not that this policy should be absolutely void to

of increase of risk under each of the independent clauses in question. It would not be reasonable to suppose that the legislature contemplated a judicial inquiry under the clause relating to the keeping of gun-powder, or naptha, or under the clause respecting other insurance on the property, or the clause in regard to the sale of the property and the assignment of the policy without the assent of the company as there specified. With no greater or better reason can it be claimed that the question of increase of risk is open under the clause rendering the policy void for vacancy or non-occupancy. It is an independent and absolute stipulation that the policy shall be void if the premises become vacant, and remain so for more than thirty days as there specified. It is not qualified by any other clause in the policy."

It is unnecessary to further analyze or comment upon the decisions holding that the violation of the plain terms of the contract as to vacancy creates only a suspension of liability. Such a construction would seem to be a perversion of the clear and explicit terms of the contract, a creation rather than an interpretation.

In our opinion no better statement can be made of their lack of convincing power than that by Ostrander on Insurance, 2d ed. sec. 145, viz.: "Regarding the purpose of this provision to be the protection of the insurer from such changes in the circumstances of the risk as would increase the hazard of fire, the courts have sometimes held that although the building becomes vacant and unoccupied during the term of the policy, if it was actually occupied when the fire occurred, the insurer would be held. These decisions appear to be based on the principle, which is not exactly cardinal in the law, that 'substantial justice' need be secured at all bazards. It must be admitted that if no harm comes to the risk during the period of its abandonment and if it is in the care of an occupant at the time [282] of the loss, no important interest of the insurer is prejudiced on account of the temporary vacancy, and in such case there is an apparent hardship to the honest claimant, if the insurer is excused from paying the loss. But may the courts properly interfere to prevent the execution of a contract, which the parties were competent to make and did make in the exercise of their natural and constitutional rights? The policy plainly enough provides that on the happening of a certain event it shall be void. The event occurred and the obligation of the Insurance Co. then terminated. Unless the court has the power to create for the parties a different contract than the one they created for themselves, it can do nothing to relieve the situation; and when the courts undertake to correct mistakes of persons by taking away

their right to make contracts, the well meant effort, in the long run is likely to produce more evil than good."

Let us now turn to the line of authorities holding that the contract should be interpreted as meaning what its language clearly expresses, that a violation of its conditions works a forfeiture and not merely a temporary suspension. The Supreme Court of the United States in Imperial F. Ins. Co. v. Coos County, 151 U. S. 452, 14 S. Ct. 379, 38 U. S. (L. ed.) 231, had under consideration a clause rendering the policy void if "mechanics are employed in building, altering or repairing the premises," and in an exhaustive opinion held that the violation of this condition relieved the insurer from responsibility although the fire did not occur in consequence of the alterations or repairs. The reasons are stated as follows: "Contracts of insurance are contracts of indemnity upon the terms and conditions specified in the policy or policies, embodying the agreement of the parties. For a comparatively small consideration the insurer undertakes to guaranty the insurer against loss or damage, upon the terms and conditions agreed upon, and upon no other, and when called upon to pay, in case of loss, the insurer, therefore, may justly insist upon the fulfilment of these terms. If the insured cannot bring himself within the conditions of the policy, he is not entitled to recover for the loss. The terms of the policy constitute the measure of the insurer's liability, and in order to recover, the assured must show himself within those terms; and if it appears that the contract has been terminated by the violation on the part of the [283] assured, of its conditions, then there can be no right of recovery. The compliance of the assured with the terms of the contract is a condition precedent to the right of recovery. If the assured has violated, or failed to perform the conditions of the contract, and such violation or want of performance has not been waived by the insurer, then the assured cannot recovery. It is immaterial to consider the reasons for the conditions or provisions on which the contract is made to terminate, or any other provision of the policy which has been accepted and agreed upon. It is enough that the parties have made certain terms conditions on which their contract shall continue or terminate. The courts may not make a contract for the parties. Their function and duty consist simply in enforcing and carrying out the one actually made."

In Mead v. Northwestern Ins. Co. 7 N. Y. 530, the same doctrine was held applicable to the prohibited use of camphene, which had ceased before the fire, and upon the point of revival the court say: "The only question în my mind is, whether the use of the prohibited article at one period of the time for which the

were vacant up to April, 1, 1889, and occupied from that tme to the date of the fire May 12, 1889. The court unequivocally held that if the policy had been in force from January 23, it was rendered void, notwithstanding reoccupancy, but also held that it took effect from March 13, and therefore the vacancy had not existed for the prohibited and fatal period of thirty days.

Hill v. Middlesex Mut. Assur. Co. 174 Mass. 542, 55 N. E. 319, involved the material alteration clause and the fact that the alterations were completed long before the fire was held to have no curative power. "The fact that a breach of condition is past," say the court, "and did not contribute to the loss does not necessarily put an end to the right of the insurer to avoid the policy." This case was cited with approval in Stuart v. Reliance Ins. Co. 179 Mass. 434, 60 N. E. 929, where the temporary alienation of property was held to avoid the policy notwithstanding reconveyance. [286] It would seem that reoccupancy should have no greater power to rehabilitate the contract than reconveyance. The court in Massachusetts can therefore be considered as against the doctrine of temporary suspension in a case like the one at bar.

Without prolonging the discussion further it is sufficient to add that the following cases, all involving the question of vacancy and reoccupancy, hold that the policy is not revived; Moore v. Phoenix Ins. Co. 62 N H. 240, 13 Am. St. Rep. 556; East Texas F. Ins. Co. v. Kempner, 87 Tex. 229, 27 S. W. 122, 47 Am. St. Rep. 99 (1894); Hardiman v. Philadelphia F. Assoc. 212 Pa. St. 383, 61 Atl. 990 (1905); Hoover v. Mercantile Town Mut. Ins. Co. 93 Mo. App. 111, 69 S. W. 42 (1902); German Ins. Co. v. Russell, 65 Kan. 373, 69 Pac 345, 58 L.R.A. 234 (1902). See also 19 cyc. p. 709.

These authorities, in our opinion rest on the correct principle. It is not a question whether the insurer has been injured by the breach of the contract but whether the contract itself has in fact been broken. It either has or has not been. If not, the rights of the parties remain unchanged. If it has, then by its own terms the contract is rendered "void." And this word "void" being neither ambiguous, nor technical, should be "construed according to the common meaning of the language," R. S. ch. 1, sec. 6, Par. I. It means null, of no effect. The Legislature has seen fit to prescribe this as the form to be used. If a change is desirable or expedient that change should come by way of legislative amendment rather than by judicial wrenching. The insurer has the right to insist that the conditions surrounding and affecting the property shall continue and remain the same as at the date of insurance. If "void" means "temporarily suspended" then under a policy

running three years, the premises might become vacant on the next day after its issuance, remain vacant for nearly the entire term, without the assent of the company, but if reoccupied on the day before the fire, the indemnity would again spring into existence. The contract prescribed by the Legislature clearly forbids any such intermittent rights, and liabilities.

We are, of course, not to be understood as holding that the insurer cannot waive this provision of the policy. It is well settled that he can so waive it, but that question needs no discussion here as there are no sufficient facts to warrant it.

The entry must be,
Judgment for defendant.

NOTE.

Revival of Fire Insurance Policy by Occupancy after Vacancy.

The earlier cases passing on the question of the revival of a fire insurance policy by the occupancy of the insured premises after they have been vacant for a length of time prohibited by the express terms of the policy, are collated in the notes to Insurance Co. of North America v. Pitts, 9 Ann. Cas. 54, and Born v. Home Ins. Co. 80 Am. St. Rep. 300. This note presents the recent cases on the subject.

Following the rule of construction that of the two parties to a fire insurance policy, the insured is always to be favored in determining whether there has been a compliance with the terms of the policy, it has been held in a few recent cases that the vacancy of the premises during the term for which the policy is issued merely operates to suspend the policy and a subsequent occupancy of the premises revives the policy and puts it in full force again. Athens Mut. Ins. Co. v. Toney, 1 Ga. App. 492, 57 S. E. 1013; Silver v. London Assur. Corp. 61 Wash. 593, 112 Pac. 666. Thus, in Silver v. London Assur, Corp. 61 Wash. 593, 112 Pac. 666, the court said: "The testimony shows that, after the policy was issued, both buildings were unoccupied for a period of more than ten days. As we have said, it also shows that one of the buildings was in the possession of a tenant at the time of the fire, and that there is no direct evidence that the other buildings were not in the possession of the watchman within ten days preceding that date. It is contended that a vacancy for the period of ten days terminates the policy, and that its operative force is not restored by a reoccupancy. eral authorities are cited which support that view. The question, however, is no longer an open one in this state. In Port Blakely Mill Co. v. Springfield Fire, etc. Ins. Co. 59 Wash.

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