(dissenting.) The plaintiff applied for insur*570anee upon'a dwelling-house “to be used and occupied for the usual purposes of such a building by a tenant.” In the policy were these words:—“ Occupancy—tenant.” Upon this specific description the defendant determined upon what terms it would insure.
The plaintiff came under no obligation to continue occupancy by a tenant; he only bound himself to make no use of it more hazardous than would be use by a tenant. He could occupy it himself; if he did not desire to occupy either by himself or by a tenant he could hold the defendant to its contract by watching it in such manner as that the watching would be equal to occupancy as a protection against fire.
The fifth condition of the policy provides, among other things, that if the risk is increased by any means whatever within the knowledge or control of the insured, the insurance shall be void unless the same is done, by the written consent of the company. The company did not deprive itself of the protection of this condition by insuring a building described ■as being then occupied by a tenant; if increased risk attended non-occupancy, it did not assume such risk even if it resulted from the inability of the insured to procure a tenant. The force of the expression “occupancy—tenant,” was exhausted in describing the then character of the use and in determining the degree of risk and the resulting rate of insurance. ■ The insured obtained thereby no exemption from the duty of keeping the hazard down to that degree. If non-occupancy would increase the risk he remained bound, within a reasonable time after knowledge that a tenant had left the house, to occupy it by another, or by himself, or by a watchman, or to procure the written consent of the company to a vacancy. Failing these, he could surrender the policy and insure elsewhere.
The house became vacant on the first of January; on the 20th the plaintiff took steps to obtain the consent of the company to non-occupancy; that consent had not been given on the 19th of February when the house was burned.
The defendant requested the court to charge the jury that “if the risk was increased by the premises becoming'vacant *571and the same was known by the plaintiff, it rendered the policy void, unless such vacancy was with the written consent of the company.”
The court charged that “the question of increase of risk is a question of fact for the jury, and the jury are to find, first, whether the non-occupancy of the insured premises after the insurance was effected was an increase of the risk. If you find it was an increase of the risk, the next question is, did it avoid the policy? The policy says it did unless consent was obtained. The defendants insist that such consent to be valid and binding on the company must have been in writing. I charge you for the purposes of this case that the company itself could dispense with the provisions of the contract requiring the consent to be in writing.”
Under the charge therefore it is possible that the verdict for the plaintiff stands upon a dispensation by the company. But the record fails to show either that the agent was expressly clothed with power to bind the company by an act of dispensation, or that it was estopped from denying his power by reason of having previously ratified such acts upon his part, or that it had dispensed with the provision.
I think there should be a new trial.
In this opinion Loomis, J., concurred.