Judgment and order reversed and new trial granted, with costs to appellant to abide event. *937Held, 1. That the action is upon the policy and not upon an agreement to rebuild or restore, and the trial court erred in refusing to instruct the jury to give effect to the eighty per cent co-insurance clause. 2. The trial court erred in instructing the jury that there was evidence that there was one person occupying a room in the house at the time of the fire. 3. It was error to exclude the evidence offered by defendant to the effect that the authority of the adjuster was limited and did not extend to making an agreement or election to restore the building. If the adjuster exceeded his authority defendant would not be bound further than plaintiffs acted to their prejudice upon his apparent authority. 4. It is clear from the evidence that at the time of the fire the building was not being used as a hotel and was vacant within the meaning of the policy. 5. The finding that the adjuster made an agreement to restore the building for the company is against the weight of the evidence. All concurred.