and the plaintiff offered to prove that when the policy was issued, she and the agent of the defendant were together and she clearly described the property to him, and that he thereupon made out the description as shown by the policy, though he was told that the house was formerly known as the "Glen Hotel." The evidence tended to prove that the house had always been known as a hotel, and that the rate of insurance of hotels was greater than of dwellings. The trial judge ruled that the action could not be maintained, and directed verdict for the defendants. F. E. Snow & G. D. Burrage, for the plaintiffs. W. C. Loring, for the defendant. 82 MORTON, J. The policy upon which these suits are brought was issued to the plaintiff Thomas. The property which was the subject of the insurance is described in the policy as "her frame dwelling-house situated on Glen avenue near Coolidge avenue, Watertown, Mass.," and "her frame private stable situated near the above dwelling." There was but one premium paid for the dwelling and stable, and the contract of insurance was an entire one. If it is void in part, it is void altogether, and cannot be apportioned: Friesmuth v. Agawam etc. Ins. Co., 10 Cush. 587; Brown v. People's etc. Ins. Co., 11 Cush. 280; Lee v. Howard etc. Ins. Co., 3 Gray, 583; Kimball v. Howard etc. Ins. Co., 8 Gray, 33. The questions on which the cases principally turn are: 1. Whether the main building was properly described as a dwelling-house; and 2. If not, what is the effect of the misdescription. We think that, upon the undisputed facts, it cannot be regarded as having been a dwelling-house at the time when it 33 was insured. It was conceded at the trial that the structure had been used for years, and up to the time of its damage by fire shortly before its purchase by the plaintiff, as a small hotel, and was known as the Glen Hotel. The plaintiff Thomas testified that "it was always called the Glen Hotel or the Glen, mostly the Glen," and that at the auction at which she bought the property the notice read by the auctioneer described it as the Glen Hotel. There was no testimony that it had been occupied as a dwelling-house before the issuing of the policy, unless the evidence of the presence of the caretaker, Egan, put in by the plaintiff, constituted such occupancy. The number of rooms in the house, and their arrangement and purposes, showed that it was as it stood a hotel, and not a dwelling-house; and we do not think that the mere fact that the plaintiff immediately after purchasing the property put in a caretaker, who slept in one of the rooms, changed the character of the place from a hotel to a dwelling-house. No doubt the plaintiff could have made a dwelling-house of it, but she did not. She herself says that she was going to sell it as soon as she got a chance, apparently just as it was, if she could. Her undisclosed intention to let it to a family, so as to get a little out of it, did not change the open and visible character of the property. The property being a hotel, and not a dwelling-house, the next question is how that affects the policy. It is possible that a building, though called a hotel, may be in fact a dwelling-house, and more correctly described as such. But, as already stated, we think that, upon the undisputed facts, this building must be regarded as a hotel. The testimony shows that a hotel risk is different from and more hazardous than a dwelling-house risk. The burden was on the plaintiff to show that the building was a dwelling-house: Ring v. Phoenix Assur. Co., 145 Mass. 426. It was competent for the defendant to show that this was a hotel, and therefore not the risk which it insured. It agreed to insure a dwelling-house, and not a hotel. The property which was the subject of insurance was in fact a hotel. The minds of the parties have not met, therefore, and no such contract as the policy purports to express has been entered into; and, as the only claim which the plaintiff has upon the defendant is under the policy, it follows that she cannot maintain it: 34 Gardner v. Lane, 12 Allen, 39; Goddard v. Monitor etc. Ins. Co., 108 Mass. 56; 11 Am. Rep. 307. The testimony which was offered by the plaintiffs of what took place at the issuing of the policy for the purpose of showing that the property was fully described to the agent, and that the description contained in the policy was his description, was rightly excluded. If admitted it would have tended to vary the written contract: Barrett v. Union etc. Ins. Co., 7 Cush. 175; Jenkins v. Quincy etc. Ins. Co., 7 Gray, 370; McCluskey v. Providence Washington Ins. Co., 126 Mass. 306; Batchelder v. Queen Ins. Co., 135 Mass. 449. The result is, that the exceptions must be overruled, and it is so ordered. INSURANCE AGAINST FIRE-ENTIRETY OF CONTRACT.—A policy of insurance covering several lots of personal property in the same building, and distributing the risk to each item, but providing for the payment of a gross sum as premium, creates an entire, indivisible contract: Burr v. German Ins. Co., 84 Wis. 76; 36 Am. St. Rep. 905, and note, with the cases collected. INSURANCE-DESCRIPTION OF USE OF INSUred Building.-Insurance on a farm house described as the residence of the assured is not avoided by the fact that the assured also kept an inn or public house, if the character of the house was not changed after the insurance was effected, and was then known to the agent of the insurer: State Ins. Co. v. Taylor, 14 Col. 499; 20 Am. St. Rep. 281, and note. See, also, Phonix etc. Ins. Co. v. Gurnee, 1 Paige, 278; 19 Am. Dec. 431, and note; and the extended note to Fowler v. Etna etc. Ins. Co., 16 Am. Dec. 463. LAMBERT V. ROBINSON. PLEADING-JUSTIFICATION. [162 MASSACHUSETTS, 34.] IF A DEFENDANT SUED FOR AN ASSAULT seeks to justify it he must set up such defense in his answer. A LICENSE IS IRREVOCABLE if it is given by a lessee of personal property to the lessor and is to enter on the premises of the former and remove such personalty upon default in the payment of the rent stipulated to be paid therefor. ENTERING UPON LAND-WHAT FORCE MAY BE USED.-ONE WHO HAS A RIGHT to enter upon the land of another may use such force as is necessary, and is liable only in case he uses excessive force. ENTRY UPON LAND-EXCESSIVE FORCE, WHAT IS.-If one having the right to enter upon the land of another, upon the door being opened, rushed into the house in a violent and rude manner, throwing back on the stairs a girl who opened the door, and one of the servants of the party so entering opened a window and pushed the wife of the occupant of the house violently, and when the owner of the house came and, finding persons in his parlor, inquired who they were and why they were there, and asked them to go away, and when he returned from another room armed with a rolling-pin they wrested it from him and committed an assault upon him, these facts justify the jury in finding that excessive force was employed in the entry. TORT to recover damages for breaking and entering plaintiff's close and for an assault. The declaration charged that certain persons named therein, at the instance and request of defendant, forcibly broke and entered the dwelling-house of the plaintiff, and violently assaulted him and also his wife and daughter. The original answer was a general denial. It was afterward amended so as to allege that, if the defend. ants "did assault in the manner alleged by the plaintiff, that said assault was justified by the acts of the plaintiff." Verdict for the plaintiff: the defendants alleged exceptions. W. A. Morse, for the defendants. M. F. Farrell, for the plaintiff. 36 LATHROP, J. The declaration in this case is for breaking and entering the plaintiff's close; and it alleges further, in the same count, an assault upon the plaintiff by striking him on the head a violent blow with a dangerous weapon, and also assaults upon the plaintiff's wife and daughter. The answer is a general denial, and an amended answer alleges, if the defendants "did assault in the manner alleged by the plaintiff, that said assault was justified by the acts of the plaintiff." No question of pleading is raised in the case, and we are not called upon to determine whether the alleged assaults upon the plaintiff and his wife and daughter can be considered as distinct charges of injuries, or merely as matters in aggravation of damages: See Sampson v. Henry, 13 Pick. 36; Eames v. Prentice, 8 Cush. 337. That the defendant in an action for an assault, if he seeks to justify the assault, must set up such defense in his answer, and that a general denial only is not enough, is well settled: See Hathaway v. Hatchard, 160 Mass. 296, 297, and cases cited. To say that the assault was justified by the acts of the plaintiff seems very insufficient. But as no objection was taken to the form of the answer, we do not dwell upon it. It appears from the bill of exceptions that the plaintiff had hired of the defendants certain articles of furniture, for which he had paid as rent the sum of five dollars, and promised to pay the further sum of one dollar a week until the sums paid should amount to the sum of thirty-one dollars and twentynine cents, and such further sums as might be added to this amount by the plaintiff, at which time the rent was to cease, and the articles become the absolute property of the plaintiff. The agreement, which was in writing and signed by the plaintiff, described him as of 79 Broadway, Chelsea, and contained these clauses: "But in case of failure to pay said rent as aforesaid, the said C. H. Robinson & Co., or their agents, may, without demand or notice, or being deemed guilty of any trespass or tort, and without thereby rendering themselves liable to refund any sums received by them as rent aforesaid, enter any house or place where said articles may be, and take possession of and remove said articles therefrom. "And I further agree that, so long as said rent shall be payable 37 as aforesaid, I will not injure, sell, mortgage, or relet the said articles, or remove the same from above-mentioned place; and that, in case of failure to pay the rent, I will, on demand, return said articles to the said C. H. Robinson & Co., or their legal representatives." It is very clear that a breach of the clause last cited by a removal of the furniture gave the defendants no right to enter upon the land of the plaintiff, or to retake the furniture. The right to enter and remove the furniture is given only by the clause first cited, and this applies only in case of a failure to pay rent. There is no doubt that the license to enter given by the plaintiff to the defendants was irrevocable: Heath v. Randall, 4 Cush. 195; McNeal v. Emerson, 15 Gray, 384; Smith v. Hale, 158 Mass. 178; 35 Am. St. Rep. 485. The only question of law raised in the case arises upon the defendants' request to the court to rule, as matter of law, that, upon the evidence, the entry of the defendants was reasonable and proper, and that the plaintiff could not maintain this action. This request was refused. The case was submitted to the jury with full instructions, not excepted to except so far as inconsistent with the above request; but the bill of exceptions does not set forth what instructions were given. Soon after the defendants' servants entered upon the plaintiff's premises they attempted to remove the furniture, and were resisted by the plaintiff, and it was during this resistance that the assault complained of occurred. The defendants' servants did not succeed in obtaining the furniture, and it is still in the possession of the plaintiff. It does not clearly appear from the exceptions that any rent was due at the time of the entry. The statement is: "It was agreed that there was still a balance unpaid upon said contract." This may refer to the time of the entry, or to the time of the trial. The exceptions tend also to show that the entry was made because the plaintiff had removed the goods, and because of the failure of the plaintiff to settle the account when demanded. This may, and probably does, mean that, after the removal of the furniture, the defendants demanded a settlement of the entire account. But there is nothing in the contract 38 which gives the right to the defendants to |