Carpenter, J.

This is an action on a fire insurance policy. The building insured was a dwelling house occupied by a tenant. The answer interposed several defences which will be separately noticed. The plaintiff had a verdict and the defendant appealed.

1. That the house was unoccupied at the time of the fire.

The policy provides that if “ the dwelling house hereby insured shall cease to be occupied as such, then this policy shall cease and be of no more force or effect.” The finding shows that the tenant left the house, taking with him all his furniture, about six o’clock in the evening. The next morning about two o’clock the house was destroyed by fire.

The defendant requested the court to instruct the jury as follows:—“ By the terms of the policy the insurance thereunder ceased as soon as the house became unoccupied. If the jury find that the house was unoccupied when the fire occurred, then there can be no recovery for the loss.”

The court did not so charge the jury, but instructed them as follows:—“ If the house had ceased to be occupied within the meaning of the policy, that defeats a recovery by the plaintiff.” After reciting the language of the policy, the court proceeded as follows“ In this connection you will keep "in mind that in the application it is stated that the house is to be occupied by a tenant, and this clause of the policy should be construed according to the ordinary usages of a tenant house. In this case the building was insured to *431be occupied by tenants, and is so expressed in the policy. There was no contract, expressed or implied, that there should be no change of tenants while the policy was in force. On the contrary such changes are so frequent that they must have been contemplated as probable. During the time between the retiring of one tenant and the incoming of another, there may be a vacancy which may continue for a longer or shorter time, and may exist in spite of the landlord’s best efforts to prevent it. Now we can hardly suppose that the parties intended that any such vacancy, however short, would avoid the policy. Such a construction seems to us unreasonably straight. The inconvenience of such a construction is a strong argument against it. It accords best with the probable intention of the parties to hold that such a vacancy does not ipso facto avoid the policy. Applying the rule as here laid down, if you find the house had ceased to be occupied, your verdict should be for the defendants.”

It will be observed that the court in its charge used the language of this court in Lockwood v. Middlesex Mutual Assurance Co., 47 Conn., 553. It is manifest that the court overlooked an important distinction between that case and this. In that case there was no provision, as there is in this, that non-occupation should avoid the policy; but the question was whether it increased the risk. The contract was not explicit but was open to construction for the purpose of ascertaining what was the probable intention of the parties. Here they have told us° in plain terms what they mean. The contract is neither obscure nor ambiguous, and there is no room for interpretation. The court erred in charging as it did.

It is true that the building burned in a few hours after it was vacated. But under this clause in the policy we are unable to see that time is material. The important question was—was it in fact unoccupied ?

The plaintiff contends that the fire probably originated before the premises were vacated. Conceding that to be an important inquiry, it was a question of fact for the jury and *432not of law for this court. We cannot assume the fact to be as claimed, nor that the jury necessarily found it to be so, as the question was not made in the court below.

2. That there was a breach of the warranties contained in the policy.

A clause in the policy reads thus:—“ All applications for insurance must be made in writing, and signed by the applicant or by his authority, and all statements contained in the application will be taken and deemed to be warranties on the part of the assured.”

The application contained the following questions and answers:—Quest. “How many acres of land in the place?” Ans. “Sixty.” Quest. “What is the value of land and buildings ? ” Ans. “ Seventeen hundred dollars.”

The defendant requested the court to charge the jury as follows:—“1. The application being referred to in the policy as forming a part thereof, all the statements contained therein are warranties on the part of the assured. 2. It is of no consequence whether the warranty is material to the risk or not. If untrue there can be no recovery upon this policy.”

The court did not' so charge, but charged that the “ statements in the application are warranties, provided they relate to the risk assumed,” and then submitted to the jury two questions:—(1) Did the statements relate to the risk ? and (2) were they untrue ?

In this too the court erred. The parties made these matters material, and they must be so regarded whether they related to the risk or not. The only proper question for the jury was whether they were true. If they were not true there was a breach of the warranty and there can be no recovery. If they were true in the sense in which the parties understood them then there was no breach.

A new trial is advised.

In this opinion the other judges concurred.