This case must be decided solely upon the ruling of the court with reference to the clause in the policy, “ if the building insured remains unoccupied over thirty days without notice, this policy shall be void.” The plaintiff had procured a policy of insurance upon a wooden building occupied uy him for a trip-hammer shop. The presiding judge, in reference to the defence set up in the answer that the building had remained unoccupied over thirty days without notice, instructed the jury that “ it is not sufficient to constitute occupancy that the touts remained in the shop, and that the plaintiff’s son went through the shop almost every day to look around to see if things were right, but some practical use must have been made of the building ; and if it thus remained without any practical use for the space of thirty days, it was, within the meaning of the policy an unoccupied building for that time, and the policy became void.”
As adapted to the provisions in the policy, we cannot say that these instructions were erroneous. The case presented is only the abstract one of the correctness of the general principle stated, the particular facts of the case not being before us by any allowed bill of exceptions. The presiding judge refused to certify the bill of exceptions as drawn up by the counsel for the plaintiff, and, upon a hearing before this court on the application in behalf of the plaintiff for an allowance of the same, it has only further appeared that the plaintiff offered to prove that the defendant’s agent through whom the insurance was effected knew how the trip-hammer shop had been used by the plaintiff in previous years, and that it had always been used from time to time, as the course of the plaintiff’s business required trip-hammer and other lighter forging work. But this evidence of such knowledge, if in the case and if unobjectionable otherwise would be immaterial, as the stipulation in the policy alleged to *231nave been violated was wnolly in reference to the future, and was not to be qualified by any particular previous use of this trip-hammer shop.
The court also properly ruled that the plaintiff could not recover under the first count, setting forth an agreement to insure in a different form. The plaintiff received the policy without objection, and it thus became a valid contract between the parties. He gave notice of his loss under it, and has sought to make it the foundation of a legal claim.
Exceptions overruled.