Forty-first. "Plate glass in doors or windows, when the dimensions are three square feet or more, also fences &c,, must be separately and specifically insured, otherwise they are not protected by this policy."

It is clearly within the power of underwriters, to provide against their liability for any articles which they may specify, unless such articles be separately and specifically insured. This may be done, as well where the articles are from their nature, as plate glass, almost certain to be totally destroyed in the event of fire, as where, from their highly inflammable character, they are more liable to burn.

Forty-second.

66

Camphene, spirit gas, burning fluid, phosgene or any other inflammable fluid, when used for a light, subjects the insured to an additional charge; and permission for such use must be endorsed in writing on the policy, otherwise this insurance shall be void."

A violation of this clause was sustained as a defence in Stetiner vs. Granite Ins. Co., 5 Duer, N. Y., 594; and it was then held, to apply to insurance on merchandise as well as on building.

In Mead vs. Northumberland Ins. Co., 3 Selden, 530, it was held, that evidence that camphene had been used in the building, in violation of a condition in the policy, (though it had been taken out and was not used at the time of the fire), ought to have been admitted, as the stipulation against its use must be taken as part of the contract, and as a warranty that it should not be used in the insured building, that the policy was thereby avoided, and that the discontinuance of its use before the fire would not restore its validity without the consent of both parties, unless the underwriters by some act waived the breach of the stipulation. The use of camphene for lighting a store, insured by a policy containing substantially the clause above quoted, was held to be a valid defence. to an action upon the policy. Westfal vs. Hudson River Fire Ins. Co., 4 Kernan, 289.

Camphene, pine oil, and friction matches, were by conditions of a policy prohibited being kept, used or sold, in the

building insured, without the special consent of the company in writing on the policy. It was held, that such condition was not violated by the casual use of camphene or friction matches, by workmen employed in the building, contrary to the orders of the assured; that the use contemplated by such a clause must be by authority, express or implied, of the assured, i. e., a known and permitted use; but that, if the assured knew, or if as prudent men exercising ordinary diligence they ought to have known, of such use, mere orders to the contrary would not avail them; that it was the duty of the assured to enforce such prohibition, and if the use was habitual, the law would impute to the assured knowledge and permission. Farmers' and Mechanics' Ins. Co. vs. Simmons, 30 Penn. St., 299.

A policy provided that camphene, &c., should not be used, unless permission for such use is endorsed in writing on the policy and there is then to be charged an extra premium: it was held that evidence of a verbal agreement, at the time of issuing the policy, that the assured might use camphene as a lighting material, and that a portion of the premium paid was for that privilege, (there being no written evidence to that effect), was inadmissible. Lamotte vs. Hudson River Fire Ins. Co., 17 New York, 199.

That parol evidence is not admissible, to explain the terms of a policy and survey, was held in Glendale Woolen M'f'g. Co. vs. Protection Ins. Co., 21 Conn., 19; Honnick vs. Phoenix Ins. Co., 22 Mo., 82; Ripley vs. Ætna Ins. Co., 30 N. Y., 136; Sheldon vs. Hartford Fire Ins. Co., 22 Conn., 235; Wilson vs. Conway Fire Ins. Co., 4 R. I., 141; Holmes vs. Charlestown Mut. Fire Ins. Co., 18 Metcalf, 211.

Forty-third. "In witness whereof, &c. And this policy is made and accepted upon the above express conditions."

The effect of this clause is, to put all the stipulations on the footing of warranties, so that they must be strictly complied with. The contract rests upon them, is made and accepted with reference to them, and if they are untrue, or fail to be complied with in any essential particular, the contract is void.

SECTION 9.

Of the construction of insurance policies.

The rules of construction applicable to this species of contract are substantially the same in reference to fire, marine, life and all other kinds of insurance. The contract must describe the persons and the subject of insurance with sufficient distinctness, to enable the court and jury to determine their identity with reasonable certainty and substantial accuracy. In the construction of this, as of all contracts, the intention of the parties is the real guide, but it must be the intention as expressed in the instrument, and, as we have seen in the foregoing section, can not be derived from or raised by parol evidence. If it appears, by clear and positive evidence, that the contract as written does not express the agreement which the parties intended to make, by reason of an accidental mistake, omission or change of language, a court of equity will correct the mistake and reform the contract, so as to make it express the real agreement of the parties; and oven courts of law sometimes admit evidence of such mistake, and treat the contract as if reformed, according to what they believe to have been the purpose of the parties.

Ambiguous words in a policy of insurance may be construed by extrinsic evidence of accompanying circumstances, and the usages of the business in which the property insured was employed. It has also been held, that conditions and provisos in a policy of insurance are to be construed strictly against the underwriters, as they tend to narrow the range and limit the force of the principal obligation, and that where the underwriters have left their meaning doubtful, by the use of obscure language, the language used will be construed most strongly against them. Hoffman vs. Etna Fire Ins. Co., 32 N. Y., 405; Merrick vs. Germania Ins. Co., 54 Penn. St., 277.

Policies of insurance, like wills and other instruments, are to be considered and construed as a whole, and particular clauses are not to be wrested from their context, so as to de

stroy the unity of the contract and create conflict when there should be agreement, but each part is to be illuminated and elucidated by every other part so as, wherever it is practicable, to reconcile all to one common intent and design. Merchants' Ins. Co. vs. Edward, 17 Gratt., Va., 138.

Several general rules of construction have been adopted by writers on contracts, and are as applicable to contracts of insurance as to any other forms of agreement, and may be

usefully referred to here.

First, "As a general rule the terms of a contract are to be understood in their ordinary and popular sense, rather than in their strict grammatical or etymological meaning.”

Usage has, however, an important influence in governing the construction of language, and hence, where words have acquired by usage a peculiar sense, different from the ordinary and popular one, they are to receive that interpretation. In the early case of Brough vs. Whitmore, 4 Term Reports, 210, Buller J. says, "A policy of insurance has at all times been considered in courts of law as an absurd and incoherent instrument; but it is founded on usage, and must be governed and construed by usage." Lord Kenyon in the same case said, "I remember it was said many years ago that, if Lombard street had not given a construction to policies of insurance, a declaration on a policy would have been bad on a general demurrer; but the uniform practice of merchants and underwriters had rendered them intelligible," so that, while the general rule as above stated is true, it is equally true that where in any case language has acquired a peculiar meaning, with reference to the subject matter of the contract, that meaning shall prevail in that particular case.

Second, "Construction is to be what the common lawyers term favorable: that is, if the language used is susceptible of two senses, the words are to be so understood as to have an actual and legal operation. Thus, a copulative may be treated as disjunctive, or the reverse, if necessary to prevent contradiction and absurdity, or to save a contract from being void for illegality; the rule being, as expressed by Lord Coke, that, "whensoever the words of parties may have a double

intendment, and the one standeth with law and right and the other is wrongful and against law, the intendment that standeth with law shall be taken."

Third. "The subject matter of an agreement is to be considered in construing the terms of it, which are to be understood in the sense most agreeable to the nature of the contract." Thus, a stipulation in a policy of insurance, that a ship shall "sail with convoy," is held to mean convoy for the voyage; the subject matter of the agreement being a voyage, and merely departing with convoy and sailing alone being no protection to the ship on the voyage.

Fourth. "The whole contract is to be regarded in giving it a construction, and one part is to be interpreted by another."

Fifth. "Construction is to be such, that the whole instrument and every part of it may take effect, if possible, consistently with the rules of law and the intention of the parties." The last rule is perfectly consistent with this. Under that rule every part of the agreement does take effect, and the effect intended by the parties. One part is construed; not destroyed or impaired, by the other.

Sixth. "If the words of a contract do not fully express, or even if they are contrary to, the evident intention of the parties, the intention is to be preferred to the expression."

As, if a promissory note be written, "I promise not to pay," &c., if it represents a real transaction, it would be read without the negative.

So, of course, a policy of insurance would be eliminated of words, or have words supplied, if necessary, to arrive at what must have been the intention of the parties. As, if a policy should read, "do insure loss or damage by fire," the word "against" would have to be interpolated, to give it the sense which the parties must be presumed to have intended to express.

Seventh.

"The time when a contract was made is to be regarded in expounding it, and cotemporaneous exposition is of great weight in construction.

In a very early English case, (cited by Mr. Metcalf, late