C. A. 1908 THE CORPORA TION OF TORONTO v. THE TORONTO RAILWAY. Meredith, J.A. engineer will direct that it be evenly spread there; when so spreading it would create a nuisance or impede traffic he will withhold his direction, and the company must dispose of it as best they lawfully can, which is eminently reasonable and proper; it would be entirely unreasonable and improper if they could cast their nuisance upon the public road, and make the corporation criminally and civilly liable for it. Let me repeat that there is no sort of objection on the part of the corporation to the use of the sweeper so long as the company removes the snow deposited by it upon the highway, or spreads it there under the direction of the city engineer: and that I cannot treat the case except as it substantially is, one in which the real question is whether the company have a right, when the fall is less than six inches, to merely sweep it aside and leave it there. It seems to me that very much needless bickering, misunderstanding and litigation, have arisen between these parties from a failure to recognise the true position of the city engineer, and the power of the Courts to prevent any undue interference with the honest performance of his duties under the agreement in question. I would allow the appeal. Moss, C.J.O., and MACLAREN, J.A., concurred in dismissing the appeal. A. H. F. L. [IN THE COURT OF APPEAL.] LONDON AND WESTERN TRUSTS Co. v. CANADIAN FIRE INSURANCE CO. Fire Insurance-Lease-Change in Nature of Risk-Absence of Notice or Knowledge by Landlord-3rd Statutory Condition-"Control" of LandlordOmission to Notify Insurers. The judgment of a Divisional Court in favour of the plaintiffs was affirmed by the Court of Appeal (MEREDITH, J.A., dissenting), substantially for the same reasons as those appearing in the opinion of the Divisional Court delivered by BOYD, C., 13 O.L.R. 540. THIS was an appeal by the defendants from the decision of a Divisional Court, reported sub nom. London and Western Trust Co. v. Canada Fire Insurance Co., 13 O.L.R. 540, reversing the judgment of Falconbridge, C.J.K.B., whereby the action was dismissed, and directing judgment to be entered for the plaintiffs. The action was brought by the plaintiffs, as liquidators of the Birkbeck Loan Company, the owners of a building in the town of Sudbury, insured by the defendants against fire by a policy dated the 10th October, 1904, to recover for a loss by fire on the 30th November, 1905. The defence was under the third statutory condition, which is set out in the judgments below. The appeal was heard by Moss, C.J.O., OSLER, GARROW, MACLAREN, and MEREDITH, JJ.A., on the 27th November, 1907. Wallace Nesbitt, K.C., and N. W. Rowell, K.C., for the defendants, appellants. At common law any change material to the risk avoids the policy: see Thornton v. Sillem (1854), 3 E. & B. 868, 882, 883. The common law rule sometimes worked injustice where the change was one extraneous to the property insured, over which the insured had no control, and which did not come to his knowledge. The third statutory condition was passed to remove this injustice, and what was contemplated thereby was that a policy should not be avoided by a change which did. not come to the knowledge of the assured, and which was beyond the control of the assured, as might well be the case where the change was exterior to the insured premises. The change in the occupation of the premises here was a material one, as is con C. A. 1908 March 24. C. A. 1908 LONDON AND v. CANADIAN FIRE Co. ceded, and it is clear that it was not notified to the insurers. By reason of the change, the premises ceased to be premises of the character described in the policy, and the risk became a mercantile one. If the defendants accepted such a risk, they would be entitled to receive a premium at least five times greater than that paid. The defendants should not be held liable to pay the INSURANCE loss on a risk which they never assumed. They could not legally issue a three-year policy on a mercantile risk, and no new policy was issued. The assured cannot, under the third statutory condition, by leasing the premises, throw upon the insurers a liability which would not be upon them if the assured himself continued in actual occupation: see Grant v. Howard Insurance Co. of New York (1843), 5 Hill (N.Y.) 11; Kyte v. Commercial Union Assurance Co. (1889), 149 Mass. 116, 119, 123. The condition is in the nature of a warranty that no change material to the risk shall be made, if within the control of the assured to prevent it; the onus is on the assured to prove that it was beyond his power to prevent the change, and this the assured failed to do: see North American Fire Insurance Co. v. Zaenger (1872), 63 Ill. 464. "Control" means the legal right to control the property in respect of the matter in question: see Padelford v. Providence Mutual Fire Insurance Co. (1855), 3 R.I. 102; Bunyon on Fire Insurance, 5th ed., p. 166; May on Fire Insurance, 4th ed. (1900), p. 227; Porter on Fire Insurance, 4th ed., p. 197; Kuntz v. Niagara District Fire Insurance Co. (1866), 16 C.P. 573; Liverpool and London Insurance Co. v. Gunther (1885), 116 U.S.R. 113, 128, reversing the decision in Gunther v. Liverpool and London and Globe Insurance Co. (1882), 20 Blatchf. 362. Heneker v. British America Assurance Co. (1864), 14 C.P. 57, is in our favour, and was decided by the same Court as the Kuntz case. The same line of thought as in Sillem v. Thornton, supra, will be found in London Assurance Corporation v. Great Northern Transit Co. (1899), 29 S.C.R. 577. Breuner v. Liverpool and London and Globe Insurance Co. (1875), 51 Cal. 101, is relied on by the Chancellor, but it is directly in the teeth of the English cases and of the decision of the Supreme Court of the United States in the Gunther case, supra. ence also to the other cases cited by the Chancellor. Refer G. C. Gibbons, K.C., for the plaintiffs, respondents. rent had gone down from $23 to $15. There is no evidence of The notice to or knowledge of the plaintiffs or their agent of a change in the risk. There was nothing in the appearance of the house to indicate that it was used as a store; if business was done there, it was in one room only. The landlord is not responsible for changes made by a tenant without his knowledge: Heneker v. British America Assurance Co., 14 C.P. 57; 13 Am. & Eng. Encyc. of Law, 2nd ed., pp. 286, 289; Clement on Fire Insurance, vol. 2, p. 291, rule 5; Nebraska and Iowa Insurance Co. v. Christiensen (1890), 45 N.W. Repr. 924, 927; Merrill v. Insurance Co. of North America (1885), 23 Fed. R. 245; North British Mercantile Insurance Co. of London and Edinburgh v. Union Stockyards Co. (1905), 87 S.W. Repr. 285; Worswick v. Canada Fire and Marine Insurance Co. (1878), 3 A.R. 487, 496. Although the assured had no knowledge of the change, the defendants had full notice and knowledge through their local agent, and the defendants are estopped: Peck v. Phonix Mutual Insurance Co. (1881), 45 U.C.R. 620; Rauch v. Michigan Millers Mutual Fire Insurance Co. (1902), 91 N.W. Repr. 160, 162; Naughter v. Ottawa Agricultural Insurance Co. (1878), 43 U.C.R. 121, 130; North British and Mercantile Insurance Co. v. Steiger (1888), 124 Ill. 81; McIntyre v. East Williams Mutual Fire Insurance Co. (1889), 18 O.R. 79; May, 3rd ed., p. 1159; Clement, vol. 1, p. 428, rules 29, 30. Nesbitt, in reply, discussed the cases cited, and referred also to Moore v. Phoenix Fire Insurance Co. (1886), 64 N.H. 140; Porter, 4th ed., p. 197. March 24. Moss, C.J.O.:-I am of the opinion that the judgment of the Divisional Court should be affirmed. The question has been made to turn almost altogether, if not wholly, upon the proper reading of the words "any change within the control or knowledge of the assured" in statutory condition No. 3, which forms part of the contract of insurance between the parties. It seems to have been taken for granted that the user made of the insured premises by the Birkbeck Company's tenant, Ferris, was a change material to the risk. The learned Chief Justice who tried the case states in his judgment that it was admitted that such was the case. No question arises, therefore, on that point, and the case must be dealt with on the footing of a change material to the risk. C. A. 1908 LONDON AND v. CANADIAN FIRE INSURANCE Co. C. A. 1908 V. CANADIAN FIRE Co. Moss, C.J.O. The learned Chief Justice did not find that the change in the mode of user came to the knowledge of the Birkbeck Company, LONDON AND and I do not think that the evidence brings home to the BirkWESTERN beck Company either actual or imputed notice or knowledge. TRUSTS CO. Something was said by the witness Ferris about a renewal of the lease by one J. K. Maclennan, who, acting for the company, INSURANCE had in the first instance made the arrangement for letting the premises to Ferris. The lease then entered into was not produced at the trial, but Ferris deposed that he had a lease, and that it was for six months at $23 a month; that he paid that rent for six months, and after that $20 for one month, $18 for one month, and $15 for the next month, which was the month in which the building was burned down. A copy of the lease has now been produced. It is an informal instrument, dated the 1st March, 1905, signed by Ferris, who agrees to rent the premises at $23 per month, payable in advance on the 8th day of each month. Tenancy begins on the 8th March. No term is mentioned except as above stated. It is but a monthly lease, and calls for no renewal. The fair inference is that it continued during the whole of Ferris's occupancy, but at the end of six months-i.e., in September the rent was reduced to $20, in October to $18, and in November to $15. The fire occurred on the 30th November, 1905. Ferris appears to have paid the rent at Maclennan's office, and there is nothing to shew that the latter had any occasion to visit the premises or that he had acquired knowledge of the change of user. The policy of insurance was issued on the 14th October, 1904, for three years, and there is no dispute that at that time the premises were being used as a dwelling. The description given in the application and policy was therefore correct. The lease to Ferris made on the 1st March, 1905, was not given for the purpose of enabling him to use it otherwise than as a dwelling, and for the first month he did not carry on any business there. We have thus the case of premises insured by the defendants correctly described in the application and policy, properly used as described, by the Birkbeck Company and their tenant, until April, 1905, a change then made by the tenant without the Birkbeck Company's knowledge at the time, and without its afterwards coming to their notice. Under these circumstances, was |