Page:Federal Reporter, 1st Series, Volume 2.djvu/446

 POOB V. HUDSON INS. 00. 439 �occupied and assented to it as a compliance with the contraot, or vaived a more strict compliance. �The defendants are mistaken in supposing there was no evidence to go to the jury in regard to a waiver. There was evidence that Craig said that he knew how the house was occupied, was satisfied with that occupancy, and considered it safer than a family. �The defendant says, in the brief of his counsel, "what was really left to the jury was the meaning of the terms used," and "the legal effect of the instruction of the court was to advise the jury as to the legal effect of the acts in the con- tract, leaving them to construe the laws." �In this there is a mistake. The court did not leave to the jury "the meaning of the terms used." It instructed the jury as to the meaning of the words, and the counsel say, in their brief, the explanation given of the word "family" was correct and satisfactory. Nor did the court leave the laws to the jury. It instructed that the provision in the polioy that a family should live in the house was a contract binding on the plaintiff, and must be performed by him, or waived by the defendants, before he could recover. The court instructed the jury what a family was. With that instruction the de- fendant was saiiisfied. The court left it to the jury to find the fact whether such a family was living in the house at the time of the fire. That duty belonged to them. �At the trial the court admitted evidence that, at the time the insurance was effected, the plaintiff's agent told the de- fendant's agent how the house had been occupied the previous winter. To this evidence the defendant's counsel objected, on the ground that whatever was said at the time of the contract was merged in the contract, and could not be received to control, enlarge, or restrict the contract. �Such is undoubtedly the law; but the court did not admit the evidence for such purpose, but as tending to show the previous occupation and condition of the property, as aiding to arrive at the intention of the parties, and the true inter- pretation of the contract. For this purpose we think the evidence was competent. ����