
    Insurance Company v. Wells.
    An absolute condition in a fire insurance policy, on a dwelling-house, that the policy shall he void “if the building insured be vacated or left unoccupied ” avoids the policy, although the vacation of the house results from the permanent removal of the tenant of the insured during the running of his lease, without the knowledge or consent of the landlord.
    Error to the District Court of Delaware county.
    The original action was brought by George W. Wells against the Farmers’ Insurance Company, on a policy of insurance against loss by fh’e to recover five hundred dollars, being the amount of risk taken on a certain dwelling-house of the plaintiff and, which was wholly destroyed by fire during the period for which the policy was written.
    The policy attached to the petition in the case contains a condition, therein written, that the policy shall be void “ if the building herein mentioned be vacated or left unoccupied.”
    The defendant answered that “ at the time said house was burned and for some time prior thereto, it was left, and without the knowledge or consent of the defendant, wholly vacant and unoccupied.”
    To this answer plaintiff for reply denied each and every allegation contained therein.
    It appears that at the time the policy was written the dwelling house therein described was occupied by one James Carpenter as tenant of Wells under a lease for one year, commencing on the 1st of March, 1880. During the running of the lease, to wit, on the — day of October, 1880, Carpenter, with his family., removed from the dwelling-house, taking away his household goods without any intention of returning, leaving in the house a barrel containing some bran and a coal oil can. During the night following the removal, the house was burned.
    On the trial of the case in the court of common pleas, Delaware county, the court charged the jury, “ the company had a right to stipulate that the property should be occupied. The defendant claims it made this contract, that it should not be left unoccupied, and that Carpenter and wife moved out with the intention of leaving and not returning there any more. The house is to be occupied as a residence and not as a storehouse. They claim they went out the day before the fire, and did not intend to come back to occupy it as a residence, and now if Wells consented and knew it was to be vacated, that was a violation of the contract and the plaintiff cannot recover. If Carpenter went away without any consent or notice on Wells’s part, that is not such a vacation as would avoid the policy. If the tenant leave without the knowledge of the landlord ; yet the landlord must know it, so he can make provision for a new tenant. If the tenant left the day before without the knowledge or consent of Wells, and there was not reasonable time to get some one to re-occupy the house, then it was not a vacation within the meaning of the terms of the policy. If the tenant should go away suddenly without notice to the plaintiff, that would not avoid the policy ; he should have notice that he had left.”
    To this charge the defendant duly accepted and requested the court to charge as follows : “ If the jury should find that the house and premises in question, was occupied at the date of the policy by a tenant, and the tenant had removed from the premises before the time of the fire, and the house ceased to be used by any one living therein, then the house was vacated and unoccupied within the meaning of the terms of the policy; although some of the goods or furniture remained in the house at the time of the fire, and although the time of the tenant had not expired which charge the court refused and defendant excepted.
    The verdict and judgment were rendered for the plaintiff, which judgment on petition in error, was affirmed by the district court.
    This proceeding is to reverse the judgments below.
    
      Curper & Van Deman and Critchfield & Graham, for plaintiff in error,
    claimed that a vacation of the premises insured, when a policy of insurance contains a clause against vacation, absolute in terms, by the tenant of the assured, without the landlord’s knowledge, avoids the policy, and cited Dennison v. Ins. Go., 52 Iowa, 457; Western v. Ins. Go., 15 Wis. 138; Gans v. Ins. Go., 43 Wis. 108 ; Sleeper v. Ins. Go., 56 N. II. 401; Ins. Go. v. Meyers, 63 Ind. 238 ; Deehl v. Ins. Go., 58 Pa. St. 443; Franldin Savings Institution v. Ins. Go., 119 Mass. 240 ; Ins. Go. v. Walsh, 54 111.164; Paine v. Ins. Go., 5 T. & C. (N. Y.) 619 ; llarrisson v. Ins. Go., 9 Allen (Mass.) 231; Ins. Go. v. Burns, 5 Ins. L. J. 69; Ashworth v. Ins. Go., 112 Mass. 422; Mead v. Ins. Go., 7 N.Y. 530 ; Ins. Go. v. Williamson, 26 Pa. St. 196 ; Ajojoleby v. Ins. Go., 45 Barb. 454.
    
      J. D. Gritchfield and Powell, Gill & Ilauffmann, for defendant in error,
    claimed that if the premises were vacated without the fault of the assured, and by his tenant, without his knowledge, the assured had a reasonable time within which to obtain another tenant. Wood on Ins. 184; Paine v. Ins. Go., 5 N. Y. S. C. 619 ; Ins. Go. v. Baenzer,' 63 Ill. 464; Cummins v. Ins. Co., 12 N. Y. S. C. 554 ; Ins. Go. v. Meyers, 63 Ind. 238 ; Dennison v. Ins. Co., 52 Iowa, 427; Western v. Ins. Go., 15 Wis. 138.
   McIlvaine, J.

We think the courts below erred. The condition that the policy should be void if the building therein mentioned be vacated or left unoccupied ” was absolute. The parties to the contract were competent to make such stipulation. No fraud was practiced. No qualification to the condition in avoidance of the policy is found in the contract. The only question therefore which arises in the ease is, was the building vacated or left unoccupied ? It was insured as a dwelling-house. As a dwelling-house was it vacated ? On the facts this question must be answered in the affirmative. At the time of the fire the tenant had removed therefrom, and had ceased to occupy it,as a dwelling-house. The leaving behind the barrel of bran and coal-oil can, by the departing occupant, did not prevent the avoidance of the policy. The length of time elapsing after the vacation and before the fire is wholly immaterial. The cases relied upon as authority to the contrary by the defendant in error involved the construction of contracts materially different from this one. Here no construction or interpretation is needed ; the plain and unequivocal terms of the contract must be enforced.

Judgment reversed and cause dismissed.  