In the view we take of the case, it will be necessary to notice only the exceptions based upon the refusal of the court to instruct the jury, as requested by the defendant, 'that if the work done by the mechanics, as disclosed by the evidence, increased the hazard while such work was being done, then the plaintiff is not entitled to recovery;' and the exception to the instruction given, to the effect that the question was whether the work and repairs done upon the building increased the risk at the time of the fire.
It is contended on behalf of the plaintiff in error that these exceptions present the following legal propositions:
(1) The court should have instructed the jury that if the work done by the mechanics increased the hazard while the work was in progress, then the assured would not be entitled to recover, because, when the hazard was increased, and the risk changed, by the acts of the assured, and without the knowledge or consent of the insurer, in that event the contract came to an end by virtue of its own expressed, unambiguous terms.
(2) The assured, the county of Coos, having made extensive repairs upon the insured premises, and having neither notified the plaintiff in error, the insurer thereof, nor obtained its consent in writing therefor, the conditions of the policy were violated, and, by its terms, the contract terminated.
(3) It was error to instruct the jury that it was immaterial what had occurred to increase the hazard during the repairs, unless such increased hazard existed at the time of the fire.
On behalf of the defendant in error it is claimed that under a proper construction of the policy the question on which the case turns is, did the repairs and alterations made by the defendant in error upon its courthouse, and completed when the fire occurred, result in an increase of risk at that time, or were they in any way the cause of the fire? The proposition is that, unless such repairs and alterations had the effect of either causing the fire, or of increasing the risk, at the time it occurred, then there was no breach of the condition contained in the contract that 'this policy shall be void and of no effect if, without notice to the company, and permission therefor indorsed hereon, * * * mechanics are employed in building, altering, or repairing the premises named herein.'
Contracts of insurance are contracts of indemnity upon the terms and conditions specified in the policy or policies embodying the agreement of the parties. For a comparatively small consideration the insurer undertakes to guaranty the insured against loss or damage, upon the terms and conditions agreed upon, and upon no other, and, when called upon to pay in case of loss, the incurer, therefore, may justly insist upon the fulfillment of these terms. If the insured cannot bring himself within the conditions of the policy, he is not entitled to recover for the loss. The terms of the policy constitute the measure of the insurer's liability, and, in order to recover, the assured must show himself within those terms; and, if it appears that the contract has been terminated by the violation on the part of the assured of its conditions, then there can be no right of recovery. The compliance of the assured with the terms of the contract is a condition precedent to the right of recovery. If the assured has violated or failed to perform the conditions of the contract, and such violation or want of performance has not been waived by the insurer, then the assured cannot recover. It is immaterial to consider the reasons for the conditions or provisions on which the contract is made to terminate, or any other provision of the policy which has been accepted and agreed upon. It is enough that the parties have made certain terms conditions on which their contract shall continue or terminate. The courts may not make a contract for the parties. Their function and duty consist simply in enforcing and carrying out the one actually made.
It is settled, as laid down by this court in Thompson v. Insurance Co., 136 U.S. 287, 10 Sup. Ct. 1019, that, when an insurance contract is so drawn as to be ambiguous, or to require interpretation, or to be fairly susceptible of two different constructions, so that reasonably intelligent men, on reading the contract, would honestly differ as to the meaning thereof, that construction will be adopted which is most favorable to the insured.
But the rule is equally well settled that contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and, if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary, and popular sense.