Sleeper v. Insurance Co. , 56 N.H. 401 ( 1876 )

It seems to me the specific facts reported by the referee, as to the removal of Colfas from the house insured, fully sustain the general finding, that, from the time he left, the premises were vacated within the meaning of the policy. I think, when the occupant of a dwelling-house moves out with his family, taking part of his furniture and all the wearing apparel of the family, and makes his place of abode in another town, although he may have an intention of returning in eight or ten months, such dwelling-house, while thus deserted, must be regarded as unoccupied — that is, vacated — according to the natural and ordinarily received import of those terms. It is the very situation against the hazards of which the defendants undertook to guard themselves, by an express stipulation and condition inserted in the contract upon which this action is founded. I am also of opinion that a failure to give to the defendants notice that the premises were thus vacated from some time in July until October 30, three months or more, was a failure to give "immediate" notice, according to the fair and reasonable interpretation of the policy in this particular. For this reason, I think the plaintiff is not entitled to recover upon the facts found by the referee. Chamberlain v. Insurance Co., 55 N.H. 249, 266. It would seem probable, also, that the plaintiff must be debarred from recovering by his fraudulent misrepresentations as to the amount of the loss.

Case discharged.