unoccupied." The court seems to have held to the strict meaning of "vacant," a distinction which we do not think is unbending or may be arbitrarily applied.

The circumstances existing at the time must necessarily be factors in determining whether or not the building is unoccupied or vacant. These terms may, therefore, be treated as synonymous in their meaning. This was shown in Herrman v. Adriatic Ins. Co., 85 N. Y. 162, [39 Am. Rep. 644], a case in which it was held as a general proposition that "for a dwelling-house to be in a state of occupation, there must be in it the presence of human beings as at their customary place of abode, not absolutely and uninterruptedly continuous, but that must be the place of usual return and habitual stoppage."

Cummins v. Agricultural Ins. Co., 5 Hun (N. Y.), 554, was a case where the policy provided that if the dwellinghouse became vacated by the removal of the owner or occupant, "the policy shall be null and void until the written consent of the company at the home office is obtained." It was held that the provision, "vacated by the removal of the owner or occupant," means an abandonment of the house as an actual place of residence, permanently or temporarily. A mere temporary absence of the family from the house for a night or a day would not be such a removal.'

In Bennett v. Agricultural Ins. Co., 50 Conn. 426, the insured building was occupied by a tenant, and the policy provided that if the dwelling should "cease to be occupied as such . . . the policy shall cease and be of no effect." The proof showed that the house was occupied about a month and a half in the spring of 1880, that it was thereafter again occupied, and that the tenant moved out about 6 o'clock in the evening on the day preceding the fire, and the house remained unoccupied until it was destroyed by fire, about 2 o'clock the next morning. "This," said the court, "was clearly a violation of this condition of the policy." That case is easily distinguishable from the present case. There was a complete abandonment of the dwelling, the tenant leaving nothing in the house and having surrendered possession completely and having no occasion to return for any purpose. It was not a temporary absence, but an actual giving up of the premises. The length of time the building was unoccupied was, therefore, an immaterial factor.

A tenant moved out of an insured dwelling on Tuesday and on Wednesday morning the owner took possession, and with his servants, began cleaning it and moving in goods, and were continuously so engaged during the working hours of each day until Friday evening; intending that the family should be fully domiciled there Saturday, but meanwhile lodging and taking their meals elsewhere. On Friday night the house was burned, and it was held that the policy had not become void on the ground of vacancy or nonoccupancy. (Eddy v. Hawkeye Ins. Co., 70 Iowa, 472, [59 Am. Rep. 444, 30 N. W. 808].) "There is no case to which our attention has been called," said the court, "which holds that a house is vacant or unoccupied by the mere fact of the physical absence of the occupants for a day or night." The case of Shackleton v. Sun Fire Office, 55 Mich. 288, [54 Am. Rep. 379, 21 N. W. 343], is cited in the opinion. In that case the tenant vacated the house June 19th, and the owner took possession, put her furniture in the building, but, for what seemed to be good reasons, she did not take her meals nor lodge in the house, and it was destroyed by fire on July 4th. It was held that the house was not vacant or unoccupied. within the meaning of the contract. Said the court: "Nothing apparently was wanting to complete personal possession, except that she lodged and took her meals at her father's, a few rods off. Those facts were not conclusive against her occupancy."

We can see no reason why the rule should be different where a tenant is moving into a house than where he is moving out. In both cases he is in possession of the house and has some or all of his goods there, but for sufficient reasons he finds it necessary temporarily to lodge elsewhere while moving in or moving out, as the case may be. No fixed and unbending rule seems to be deducible from the adjudicated cases. The courts take into consideration all the circumstances and attribute such intention to the parties in entering into the contract as would appear consonant with reason. As was said in the Michigan case last above referred to, the facts in this case "are not conclusive against the tenant's occupancy."

2. The court found that defendant did not serve its notice of disagreement or demand for appraisement within the time required by the policy, and that plaintiff complied with and

This finding is chalcompany "shall be

performed all of its terms on his part. lenged. The policy provided that the deemed to have waived assent to the amount of the loss claimed by the insured in his preliminary proof of loss, unless within twenty days after the receipt thereof. . . the company shall notify the insured in writing," etc. (see provision supra). Defendant, at San Francisco, mailed a letter to plaintiff, residing at Whitmore, Shasta County, on the twentieth day after the receipt of proof of loss, which letter was received by plaintiff two days later. Defendant contends that "the mailing of the notice of disagreement within the twenty days is sufficient under the terms of the policy even though it is not received until after the expiration of the twenty days." Respondent contends that where, as here, the loss was total and so conceded, there was no occasion for arbitration, and appellant was not prejudiced by the ruling of the court. However this may be, we think defendant failed to give the notice contemplated by the policy. In Winchester v. North British etc. Co., 160 Cal. 1, [35 L. R. A. (N. S.) 404, 116 Pac. 63], the defendant made demand for the appointment of appraisers, but the notice did not reach plaintiff's attorney in fact until after the expiration of sixty days. It was held that "the failure to serve such notice upon the insured within sixty days after service of proof of loss amounted to a waiver." The policy read: "The sum for which the company is liable pursuant to the policy shall be payable sixty days after due notice," etc. The question there was as to the time when the action could be brought. The language of the present policy is, "unless within twenty days after the receipt" of proofs of loss, the company "shall notify the insured," etc.

It appears from the transcript in the Winchester case that due proof of loss was made on May 14, 1908, and on July 8th, within sixty days after proof of loss, defendant duly posted a letter addressed to plaintiff's attorney in fact, giving notice of its disagreement, etc. The court found that said demand "was received by plaintiff's attorney in fact on the eighteenth day of July, 1908, and more than sixty days after the service of said proof of loss." In the present case the notice was received two days too late; in the Winchester case four days too late. We think the Winchester case decisive of the point.

3. Defendant was equally in default in sending its demand for an appraisement. Proof of loss was filed with defendant on November 19, 1913. On February 16, 1914, defendant mailed a letter at San Francisco, directed to plaintiff at Millville, Shasta County, notifying plaintiff that it demanded an appraisement of the loss. This notice was received by plaintiff on February 20, 1914, which the court found "was more than ninety days after the said preliminary proof of loss was received by said defendant." The policy provided: “If for any reason not attributable to the insured or fo the appraiser appointed by him, an appraisement is not had and completed within ninety days after said preliminary proof of loss is received by this company, the insured is not to be prejudiced. by the failure to make an appraisement and may prove the amount of his loss in an action brought without such appraisement." Not having received notice in time, plaintiff was not compelled to submit to an appraisement of the loss, and the case stands as though no appraisement was had. Defendant recognized the policy as still in force after the action was first commenced by demanding an appraisement, and we do not think plaintiff is now estopped from claiming that the demand for arbitration was not made in time.

Defendant admitted a liability of $290.91 in its letter of December 8, 1913, and also in its answer. The principal question of fact was as to the actual loss, defendant claiming that it did not exceed the above amount. Other questions are matters largely of technical law. The loss was total, and there was evidence sufficient to support the finding that "the actual cash of plaintiff's interest in said dwelling-house was at the time of said loss on the first day of October, 1913, more than the said sum of eight hundred dollars."

The judgment is affirmed.

Hart, J., and Burnett, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on November 27, 1916.

[Civ. No. 1935. First Appellate District.-October 2, 1916.]

MAUDE E. HANDY, Respondent, v. ROZELVIN B. HANDY, Appellant.

PRACTICE-TIME OF TRIAL-INSUFFICIENT NOTICE-PRESENCE IN COURT -REFUSAL OF CONTINUANCE-DISCRETION NOT ABUSED.-It is not an abuse of discretion to refuse a motion made by the defendant for a continuance of the trial of an action, based upon the fact that he had not received a full five days' notice of the time fixed for the trial, where he had filed his answer, was present in court when the case was called for trial, and filed no affidavit setting forth the reasons why he was unable to proceed, or why his witnesses were not present, or who they were, or what they would testify to if present.

ID.-NOTICE OF TRIAL-CONSTRUCTION OF SECTION 594, CODE OF CIVIL PROCEDURE. The provision of section 594 of the Code of Civil Procedure, requiring as a condition to proceeding with a trial proof that the adverse party has had five days' notice of such trial, has reference only to proceedings taken against a party in his absence, and has no application to cases in which both parties are represented and present when the case is called for trial.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. Frank H. Dunne, Judge.

The facts are stated in the opinion of the court.

W. C. Cavitt, for Appellant.

F. A. Berlin, for Respondent.

KERRIGAN, J.-This is an appeal from a judgment in an action to foreclose a mortgage on real property given to secure a promissory note for four hundred dollars, the attack upon the judgment being based upon the fact that the trial court denied a motion of the appealing defendant to postpone the trial of the action.

At the time set for the trial of the action the appellant, by his counsel, appeared in court, and moved for a continuance of the trial, stating that he had not received the five days' notice prescribed by law; that he had not had time to find the appellant nor subpoena a witness who lived out of the