evidence before us justifying, or, indeed, pointing to the conclusion that the business of an investment agent or trus- RoYAL tee is one which " appertains to the business of banking"; nor, in my opinion, does the transaction with which we are concerned fall under any class of transactions that is comprehended within the dealings authorized by sec. 75 (1) Duff J. The appeal must, in my opinion, be allowed and the action dismissed with costs.
Solicitors for the appellant: Walsh, Bull, Housser, Tupper & Molson.
Solicitor for the respondent: T. G. Norris.
THE
LAURENTIAN
INSURANCE
COMPANY (DEFENDANT)
.........
.
APP
*Feb.25. *Mar. 24. AND
J. DONALD DAVIDSON
(PLAINTIFF).
. RESPONDENT. ON APPEAL FROM THE APPELLATE DIVISION THE SUPREME OF ONTARIO
Fire insurance-Insurance Act, R.S.O., 1927, c. 22e-Property becoming vacant-Destroyed by fire within 30 days from commencement of vacancy--Liability on policy-Statutory condition 5 (d)-" Change material to the risk" (statutory condition 7)-Representation as to occupancy in application for insurance.
During the term of a fire insurance policy on farm buildings, the insured, with his family, moved from the farm and took up residence in a new home, intending to reside there permanently and to rent or sell the farm, which remained vacant. He gave no notice to the insurer of the vacancy. Within 30 days from the time the insured property became vacant, it was destroyed by fire.
Held: The insurer was liable on the policy. (Judgment of the Appellate Division, Ont., [1931] 4 DL.R. 720, affirmed.)
In view of statutory condition 5 (d) (Ontario Insurance Act, RS.O., 1927, c. 222) in the policy, vacancy for a period of 30 days was a risk contemplated by the policy and assumed by the insurer, and it was not open to the insurer to shew that the mere fact of vacancy or nonoccupancy for less than 30 days was a " change material to the risk" within statutory condition 7.
The insured's answer " yes " to the question in his application for insurance, "Is the house occupied all the year round," was not a misrep- *PEESENT:-Duff, Rinfret, Lamont, Smith and Cannon JJ.