Page:Federal Reporter, 1st Series, Volume 3.djvu/566



Hoadly, Johnson & Colston, for plaintiffs.

Moulton, Johnson & Levy, for defendant.

, D. J., (charging jury.)This action is brought by the plaintiffs to recover the sum of $794.40 upon a policy of insurance issued by defendant to the plaintiffs on the ninth day of November, A. D. 1879, insuring plaintiffs against loss by fire upon a two-story brick house used by them as a manufactory of packing boxes, burial cases, etc., in Cincinnati, Ohio. The plaintiffs aver substantially the payment of the premium, the issuing of the policy of insurance, and damage by fire to the property to the amount of $794.40; that due notice and proof of loss were made; and that plaintiffs have kept and performed all their conditions of said policy, and pray judgment for $794.40.

The defendant answers, substantially, that after the making and delivery of the policy it became null and void, because by the terms of the policy it is provided that if the premises therein described shall be occupied or used so as to increase the risk, or if the risk be increased by any means whatever, within the control of the assured, without the consent of the company indorsed upon said policy, it should be void; that without the consent of the company so indorsed the plaintiff did increase the risk by the sinking of an artesian