that the plaintiff’s wife was no longer there at home, and manifestly he still continued a working man. We are not impressed that the plaintiff’s testimony shows any earmarks or badges of fraud. Such being the case, its credibility, perhaps, is not broken down by the fact that.he openly states that mistakes were made in the notice of loss and proof of loss. Perhaps it might be surmised that, if there were intent to defraud, these mistakes might not occur out of his own mouth. The stipulation in the policy concerning unoccupancy provides a condition of forfeiture. It is inserted for the benefit of the insurer and is to be strictly construed. Traders’ Ins. Co. v. Race (Ill.) 29 N. E. 846.
The trial court has found for the plaintiff upon the issue of unoccupancy. Ordinarily the question of occupancy is one of fact for the jury. Horswill v. Mut. Ins. Co. (N. D.) 178 N. W. 798, 799, 14 R. C. L. 1103; Cooley, Briefs Ins. vol 2, 1686. The findings of the trial court in the instant case take the place of a verdict. ‘They are presumed to be correct, and will not be disturbed where substantial support exists in the evidence. Jasper v. Hazen, 4 N. D. 1, 5,58 N. W. 454, 23 L. R. A. 58; State Bank v. Maier, 34 N. D. 259, 268, 158 N. W. 346; Griffith v. Fox, 32 N. D. 650, 654, 156 N. W. 239; Stavens v. Nat. Elev. Co., 36 N. D. 9, 14, 161 N. W. 558. Otherwise this court would become a trier instead of a re viewer of facts upon appeals in such cases. We are not prepared to say, as a matter of law, that the findings are clearly opposed to the preponderance of the evidence, or that they do not find substantial support in the evidence.
The judgment is affirmed with costs.
Grace, C. J., and Christianson, and Birdzell, JJ., concur.
Robinson, J., dissents,
THOMAS STEAD, Respondent, v. J. E. MANHART, Appellant.
(185 N. W. 1009.)
Judgment—where pleadings, judgment, etc., in defendant’s former action
