
    Alvah Crocker vs. The People’s Mutual Fire Insurance Company.
    A policy of insurance on a “ machine shop, a watchman kept on the premises,” does not require a watchman to be kept there constantly, but only at such times as men of ordinary care and skill, in like business, keep a watchman on their premises; and in an action on such a policy, evidence of the usage, in this respect, of similar establishments, is admissible.
    This was an action on a policy of insurance, whereby the defendants insured the plaintiff “ two thousand dollars on his machine shop, a watchman kept on the premises; with the privilege to insure $2,000 at the Fitchburg office, $500 at the New England office, Concord.”
    
      At the trial, which was before Fletcher, J., the only ground of defence relied on was, that there was not “ a watchman kept on the premises,” and that the plaintiff therefore could not recover. To meet this defence, the plaintiff called a witness, who testified that on the 14th of November, 1849, he was hired to watch the building a quarter of each night, leaving it about half past seven in the evening; that on the 28th of November, he was hired to watch what was called half the night, going in at half past five, and leaving at half past ten o’clock, and continued to do so until the 8th of December, when the fire occurred, which destroyed the building, about one o’clock in the morning. No question was raised as to the manner in which the watch was kept. But the defendants contended that employing a watchman for the times above stated was not such a compliance with the terms of the policy as would entitle the plaintiff to recover.
    The plaintiff, to show that in different establishments there was a difference in the hours of keeping a watch, called two agents and managers of insurance companies, who were allowed, against the objection of the defendants, to testify that the usages of different establishments which employed watchmen varied very much, some keeping a constant watch; some only for a limited period of time, for certain specified hours; some requiring an examination to be made at a certain time after the workmen had left the building, &c.; that this was generally a subject of particular inquiry at the time of making insurance, and depended upon the stipulations made at that time; and that it was the general usage of companies, accustomed to insure large factory buildings, to put to persons applying for insurance the question, “ Is there a constant watch ; if not, what is your arrangement in regard to it ? ” to which the answers were various, as above stated.
    One of the tenants, who was concerned in employing the watchman, being called as a witness for the defendants, testified that he thought it safe to be without a watchman the latter part of the night; that until the 7th of June, 1849, a watchman had been kept on the premises all night, when the time was changed to what was called a quarter watch; and that there were four separate tenants of the building, who em ployed about one hundred and fourteen hands. Two manu faeturers testified that on their premises they employed watchmen to watch all night, from the time the workmen left till they came to work again in the morning. And two witnesses, engaged in the management of a mutual insurance company for insuring manufacturing establishments, testified that, in a large proportion of the establishments insured by them, the custom was to have a watchman enter the building before the workmen left and watch till they returned in the morning. The secretary of the defendants testified that the plaintiff, in a conversation with him about the premises, at the time of applying for this insurance, stated that there was a watch kept there, and mentioned a tank of water kept in the attic, and other facilities for extinguishing fires; and that upon this representation as to a watch, he inserted the clause in the policy upon that subject.
    Upon the foregoing evidence, the presiding judge instructed the jury, that the clause in the policy on which this case turned was “ a watchman kept on the premises; ” that the clause did not speak of a constant watchman, but a watchman, some watchman; some watchman must therefore have been kept on the premises in order to comply with this clause. It must not have been a pretence merely, or only a colorable keeping of a watchman. But if in good faith and without fraud, a watchman was kept on the premises, and such a watchman, and for such portion of the time, or at such specified hours, as in the honest exercise of ordinary care and prudence, was deemed sufficient for the safety of the building, that would be a compliance with the provision of the policy; and that in order to determine whether or not a watchman was kept on the premises, in good faith and in the exercise of ordinary care and prudence, the jury might refer to the evidence in the case, as to what was common and usual in regard to keeping watchmen in other similar buildings.
    The jury rel umed a verdict for the plaintiff, and the defendants alleged exceptions.
    
      E. Washburn, for the defendants.
    
      
      G. F. Farley and N. Wood, for the plaintiff.
   Shaw, C. J.

The directions to the jury were right. The stipulation, a watchman kept on the premises,” inserted, as it is, in the body of the policy, immediately after the description of the property insured, is in the nature of a warranty, and must be substantially complied with by the assured. But the terms are not explicit as to the time and manner of keeping a watch. It does not stipulate for a constant watch. It therefore requires construction as matter of law, to determine what is meant, in this policy, by keeping a watch. It relates to a factory, to its safety against fire, and this depends upon a habit or practice, in this respect, and upon the fact whether that usage has been followed. When there is an express stipulation that a thing shall be done, but the contract is silent as to the time and manner, the law holds that it must be reasonable in this respect, having regard to the object and pur pose of the stipulation — in this case, to the safety of the building. If it is done in the manner in which men of ordk nary care and skill, in similar departments, manage their own affairs of like kind, this is one strong ground to hold it reasonable, and to warrant the admission of evidence of usage. What is common and usual, under given circumstances, is evidence tending to show what is reasonable.

Judgment on the verdict.  