fully executed, which clearly, under the authorities in this State, discharged the prior contract.

In respect to the claim to recover interest during the time the payment of the $150,000 was delayed, it is a sufficient answer that the complaint admits that the principal sum was fully paid prior to September 13, 1882. The claim for interest did not survive, there being no special circumstances to take the case out of the general rule. Cutter v. Mayor &c., 92 N. Y. 166, and cases cited.

We are of opinion that the facts admitted in the pleadings disclose that there was no right of action and that the complaint, for this reason, was properly dismissed.

The judgment should therefore be affirmed. All concur.

Judgment affirmed.'

...

1 "We shall not question the rule that a contract or covenant under seal cannot be modified by a parol unexecuted contract. Coe v. Hobby, 72 N. Y. 141; Smith v. Kerr, 33 Hun, 567-571; 108 N. Y. 31. . . . The reason of the rule was founded upon public policy. It was not regarded as safe or prudent to permit the contract of parties which had been carefully reduced to writing and executed under seal to be modified or changed by the testimony of witnesses as to parol statements or agreements of parties. Hence the rule that testimony of parol agreements shall not be competent as evidence to impeach, vary, or modify written agreements or covenants under seal. But the parties may waive this rule and carry out and perform the agreements under seal as changed or modified by the parol agreement, thus executing both agreements; and where this has been done, and the parties have settled with a full knowledge of the facts and in the absence of fraud, there is no power to revoke or remedy reserved to either party. Munroe v. Perkins, 9 Pick. 298; Lattimore v. Harsen, 14 Johns. 329; McCreery v. Day, 28 N. Y. S. R. 597.". Haight, J., in McKenzie v. Harrison, 120 N. Y. 260, 263, 264. See also Canal Co. v. Ray, 101 U. S. 522.

On substituted contracts, see also the cases under "Promise to perform existing Contract," ante, Ch. II., § 4, p. 177 et seq. Also Heaton v. Angier, 7 N. H. 397, ante, p. 442.

§ 3. Provisions for discharge.

MOORE v. PHOENIX INS. CO.

62 NEW HAMPSHIRE, 240.-1882.

Assumpsit on a policy of insurance. Defense, discharge of policy before loss accrued. Verdict for plaintiff. Defendants appeal.

SMITH, J. The defendants are liable only in accordance with the terms and stipulations expressed in their contract as the conditions of their liability. The contract is in writing, and is contained in the policy of insurance. In consideration of $8.50 paid by the plaintiff, the defendants covenanted to insure his property against loss or damage by fire for the term of three years, commencing August 15, 1876. The policy contained this condition:

"If the above-mentioned premises shall be occupied or used so as to increase the risk, or become vacant and unoccupied for a period of more than ten days, or the risk be increased by any means whatever within the control of the assured, without the assent of this company indorsed hereon... then, and in every such case, this policy shall be void."

The premises remained unoccupied from August 24th until December 11, 1876, and on the 18th or 19th of that month were destroyed by fire. The contract was, not that the policy should be void in case of loss or damage by fire during the period of unoccupancy, but that vacancy and unoccupancy should terminate the policy. There is no occasion to inquire what distinction there may be between a vacant and an unoccupied building (Herrman v. Merchants' Ins. Co., 81 N. Y. 184; Herrman v. Adriatic Ins. Co., 85 N. Y. 162; N. A. Fire Ins. Co. v. Zaenger, 63 Ill. 464; American Ins. Co. v. Padfield, 78 Ill. 167), for no point was made at the trial that the plaintiff's buildings were not both vacant and unoccupied from August 24 until December 11. Nor is it necessary to go into an inquiry of the reasons for exacting this condition. It is enough that the parties entered into the covenant. It was a condition that would afford protection of a substantial character against fraudulent incendiarism, of which insurers may well avail themselves. Hill v. Ins. Co., 58 N. H.

82; Sleeper v. Ins. Co., 56 N. H. 406. The insurers had a right, by the terms of the policy, to the care and supervision which are involved in the occupancy of the buildings. Ashworth v. Ins. Co., 112 Mass. 422.

There was no waiver by the defendants of the condition, nor any assent to the changed conditions of the premises insured, for they had no notice or knowledge that the buildings were unoccupied until the plaintiff furnished his proofs of loss. A waiver, to be effectual, must be intentional. The premises were left unoccupied more than ten days; and if the non-occupation had continued to the time of the fire, the plaintiff could not recover. Fabyan v. Ins. Co., 33 N. H. 206; Shepherd v. Ins. Co., 38 N. H. 240; Sleeper v. Ins. Co., 56 N. H. 406; Hill v. Ins. Co., 58 N. H. 82; Baldwin v. Ins. Co., 60 N. H. 164; Lyman v. Ins. Co., 14 Allen, 329; Merriam v. Ins. Co., 21 Pick. 162; Herrman v. Ins. Co., 85 N. Y. 162; Harrison v. Ins. Co., 9 Allen, 231; Wustum v. Ins. Co., 15 Wis. 138; Mead v. Ins. Co., 7 N. Y. 530; May Ins. (ed. 1873) § 248.

It is contended by the plaintiff, upon the authority of State v. Richmond (26 N. H. 232), that the policy had not become absolutely void at the expiration of ten days from the time the house became unoccupied, but was voidable only at the election of the defendants. In the construction of contracts words are to be understood in their ordinary and popular sense, except in those cases in which the words used have acquired by usage a peculiar sense different from the ordinary and popular one. In this case the word "void" has not acquired by usage a different signification from the ordinary and popular one of a contract that has come to have no legal or binding force. Whether the cessation of the executory contract of insurance was temporary and conditional, or perpetual and absolute, is a question; but "void" means that on the eleventh day of continuous non-occupation the plaintiff was not insured. The defendants might have waived their condition altogether, or might have waived its breach; but having had no opportunity before the loss to make their election to waive the breach, their refusal to pay, when notified of the loss and unoccupancy, was an effectual election that they insisted upon the condition in the policy.

The duty of obtaining the consent of the defendants to the changed condition of the buildings rested with the plaintiff. By his neglect to comply with this requirement of the contract, it came to an end by force of its own terms. Girard Ins. Co. v. Hebard, 95 Pa. St. 45. If, when the unoccupancy commenced, he had requested the assent of the defendants, they would have had their option to continue the policy upon payment of such additional premium as the increased risk called for, or to cancel the policy, refunding the unearned premium. Lyman v. Ins. Co., 14 Allen, 329. There is no presumption that they would have given their assent to the unoccupancy of the buildings without the payment of a premium commensurate with the additional hazard.

The contract being once terminated, it could not be revived without the consent of both of the contracting parties. It is immaterial, then, whether the loss of the buildings is due to unoccupancy or to some other cause. Mead v. N. W. Ins. Co., 7 N. Y. 530, 535, 536; Lyman v. State M. F. Ins. Co., 14 Allen, 329, 335; Merriam v. Ins. Co., 21 Pick. 162; Jennings v. Ins. Co., 2 Denio, 81; Shepherd v. Ins. Co., 38 N. H. 232, 239, 240; Poor v. Ins. Co., 125 Mass. 274; Alexander v. Ins. Co., 66 N. Y. 464, 468; Sleeper v. Ins. Co., 56 N. H. 401; Hill v. Ins. Co., 58 N. H. 82.

[After discussing the cases cited above.] The strict and literal meaning of the stipulation that the policy shall be void if the premises remain unoccupied more than ten days is not that the insurance will be suspended merely during non-occupation after the ten days, and will revive when occupation is resumed. In ordinary speech, a void policy is one that does not and will not insure the holder if the insurer seasonably asserts its invalidity. It might be argued that this clause should be so construed as to accomplish no more than the purpose for which it was inserted; that its sole purpose was to protect the insurer against the risk resulting from non-occupation; and that if this risk was terminated by reoccupation, the parties intended the insurance should be suspended only during the existence of the cause of a risk which the company did not

assume. On the other hand, it might be argued that such an intention would have been manifested by words specially and expressly providing for a suspension and resumption of the insurance, and would not have been left to be inferred from the general agreement that the policy should be void; that a final termination of the insurance at the end of ten days of nonoccupation is plainly expressed by the provision that the policy shall then be void; and that the parties would not think it necessary to go further, and provide that the void policy should not become valid on reoccupation.

Without determining the true construction, or what the result would be if there were no authority in this State, we are inclined to follow the decision in Fabyan v. Insurance Company (33 N. H. 203), although in that case the question of suspension seems not to have been presented by the plaintiff or considered by the court. It was apparently assumed that "void" meant finally extinguished, and not temporarily suspended; and in the present state of the authorities we are not prepared to hold that the assumption was erroneous.

Verdict set aside.'

BLODGETT and CARPENTER, JJ., did not sit; STANLEY, J., dissented; and the others concurred.

RAY v. THOMPSON.

12 CUSHING (MASS.), 281.-1853.

Defense,

Assumpsit for the price of a horse sold to defendant. sale on condition that defendant might return the horse, and that he had returned it. Verdict for defendant.

1 "An increase of risk which is substantial, and which is continued for a considerable period of time, is a direct and certain injury to the insurer, and changes the basis upon which the contract of insurance rests; and since there is a provision that, in case of an increase of risk which is consented to or known by the assured, and not disclosed, and the assent of the insurer obtained, the policy shall be void, we do not feel at liberty to qualify the meaning of these words by holding that the policy is only suspended during the continuance of such increase of risk." - C. Allen, J., in Kyte v. Com. Un. Ins. Co., 149 Mass. 116, 123.