· 48 · FEDERAL REPORTER. F
" trary to the provisions of the policy; (3) that the property was burned
with the assent and connivance of the insured.
The jury returned a verdict for the plaintiff`, and defendant moved
for a new trialrupon the grounds stated in the opinion of the court.
George W. Radford, for the motion.
H.   Swan, forplaintifl`. _ J »
V Baown, J. i1QException was taken to the charge of the court, that if
the plaintiff notified Duvernois, the local agent of the company in De-
troit," that the property had been removed to the basement of the build-
ing, and he made no objection to such removal, the company could not
defend upon the ground that such consentwas not indorsed in writing
i u_pon`,the’policy." This .instruction‘ may have been erroneous, although
theauthorities-seem to be at variance upon the point; but in our opin-
ion i*t=is entirely immaterial, for the reason that the plaintiff was entitled
to an instructionjthat`, as matter of law`, the removal of the goods to the
' basement was not an increase of risk, within the meaning of the policy.
The language of the policy is that, "if the above-mentioned premises
T shallibepccupied or used so as to increase the risk, * ‘ * * or the
risk belincreased by * j * { * any means whatever within the control
_ of the assured, without the assent ofthe company indorsed hereon, the
policy shall become y0id."“ The first clause of this provision, that if the
premises-shall be used and occupied, evidently applies, only to buildings
which have jbecome the subject of insurance. · The second provision
must be`construed_in connection with the description of the location of
the propertyias "contained in theiirst Hoor and basement of the build-
ing." It seems to us that this was a plain stipulation on the part of the
company that the plaintiff should deal with her property as she chose,
within the limits of the first floor and basement. She had no right to
remove it from the building, nor to the second floor of the same build-
ing, but it could not reasonably be expected that the property would re-
main distributed between the nrst floor and basement precisely as it was
+he time the policy was executed. It was undoubtedly made with ref-
erence to the general practice o_f shop-keepers bringing goods up from the
basement and placing them for sale on the iirst floor, and sending un-
salable or deteriorated goods from the first fioor to the basement, al-
though it,is_ possible that the risk might be sensibly increased by such
transfers. lf this may be done with respect to a part of a stock, I see
no reason why- it may not be done with respect to thewhole of it. It
would hardly beclaimed that if`·the plaintiff had desired to place her en-
_ -tire stock inthe basement on saleshe would not have been at liberty to
_ carry it‘to the first floor. So, if she sawiit to withdraw her entire stock
[from sale, I seeno reason to doubt that 'she could send it down to the
basement; there being no stipulation 1in`·the policy that any particular .
portion of the property should be kept either in the basement or upon
the first`-floors There can be no cuestion that the insured, unless re-
stricted in some way by the policy, might use, protect; and enjoy her
’ property, asl suchi property is customarily used,_enjoyed,; and protected;