Page:Federal Reporter, 1st Series, Volume 2.djvu/437

 430 FEDERAL REPORTER. �Wallace, D. J. The policy upon which this action was brought insured the dwelling-house of one Zimmer, and the loss was, by the terms of the policy, payable to the plaintiff "as his interest may appear." �The policy contains the foUowing conditions : "Any false representation by the assured of the condition, situation or occupancy of the property, or any omission to make known every fact material to the risk, or an overvaluation, or any misrepresentation whatever, either in a written application or otherwise; or if the property be sold or transferred, or any change take place in title or possession, whether by legal process, judicial decree, voluntary transfer or eonveyance ; or if the assured is not the unconditional and sole owner of the property ; or if the interest of the assured in the prop- erty, whether as owner, trustee, consignee, factor, mortgagee, - lessee or otherwise, is not truly stated in this policy, then, and in every such case, this policy shall be void." �After the policy was issued, and before the loss, Zimmer failed to make payments according to his contract with plain- tiff, and moved out of the dwelling. The dwelling was there- after occupied by tenants. The question of fact was sub- mitted to the jury whether Zimmer had surrendered or abandoned his contract to the plaintiff, with instructions that if there had been such surrender or abandonment the plain- tiff could not recover. The jury found there had been no surrender or abandonment, and, by implication, that the ten- ants who occupied the premises were Zimmer's tenants. �A verdict having been found for the plaintiff, the defendant now moves for a new trial. �It is insisted for the defendant that the policy is void be- oause Zimmer was simply a vendee in possession of the prem- ises under an executory contract to purchase of the plaintiff when the policy issued, and, therefore, "not the unconditional and sole owner of the property," within the condition of the policy. It is also insisted that because Zimmer stated to defendant's agent, at the time of applying for the insuranee, that he "wished his bouse on Porter street insured," without Btating specifically the nature of his interest, there was an ����