the contract for fraud or mutual mistake with a reinstatement of the parties.1 But it is important to notice that after a fire or marine loss, or after a loss under a life policy, unless the life policy has run for a large part of its anticipated duration, this form of relief would be unsatisfactory. (2) A court must not use its discretion to modify the conditions or provisions of the contract entered into by the parties in order to effectuate what it might consider a more equitable arrangement than that resulting from an enforcement of the strict terms of the policy.2 This elementary proposition of law is not peculiar to insurance, but in the construction of insurance contracts it is peculiarly apt to be disregarded by some tribunals. (3) If there is any inconsistency between the written and the printed words of the policy, the former prevail, because they are framed and inserted with reference to the particular contract, and the parties do not generally take the trouble to revise or alter the formal printed conditions.3 Thus, for example, where a furniture dealer insured his "stock in trade," the written description was held to cover paints, oils, and varnishes used to finish, though in answer to an inquiry it was stated that no explosive or highly inflammable matter was kept on the premises.* In the same way, insurance "as a manufacturer of brass clock works" permits the use of all such articles as are ordinarily employed in that manufacture, and the making of them for that purpose, if such be the ordinary course of the business, although the use of such articles be prohibited as extrahazardous by the printed terms of the policy." In an English case where the Lloyd's form of policy was filled up as a time policy on the ship, it was argued from the various clauses not usually struck out, and in this case left standing, referring to a voyage, that certain conditions only ' Union Cent. Life Ins. Co. v. Pottker, 33 Ohio St. 459; s. c., 31 Am. Rep. 555. La. 66; s. c., 23 Am. Dec. 458. Robertson v. French, 4 East 130. Haley v. Dorchester Fire Ins. Co., Allen v. German Am. Ins. Co., 12 Gray (Mass.), 546. 123 N. Y. 6. 'Harper v. N. Y. City Fire Ins. Co., 22 N. Y. 443. Nicollet v. Ins. Co., 3 'Bryant v. Poughkeepsie Mut. Ins. Co., 17 N. Y. 200. applicable to a voyage policy applied to the ship in the case of the policy, though in terms a time policy; but the court held otherwise, and said: "It has been suggested, that, by reason of the policy having been drawn up on a printed form, the printed terms of which are applicable in a voyage policy to goods as well as to the ship, the policy is something less or something more than a time policy; but the practice of mercantile men writing into their printed forms the terms by which they desire to describe and limit the risk intended to be insured against, without striking out the words which may be applicable to a larger or different contract, is too well known and has been too constantly recognized in courts of law to permit any such conclusion."1 Hence it is that in the familiar instance of words written in the margin or at the foot of policies, and especially marine policies, such written words are considered as applying indefinitely to the whole of the policy, and as controlling the sense of those parts of the printed policy to which they apply; so that by the word ship, or freight, or goods written in the margin, the general terms of the policy applicable to other subjects besides the particular one mentioned in the margin are considered as narrowed in point of construction to it.2 So it has been held that the words restricting the liability of the insurers "against actual total loss only," written upon the margin, prevail over any inconsistent printed provisions in the body of the policy.3 On the same principle, it is held that the special printed clauses or riders attached to the policy prevail over the more general terms of the ordinary printed form.1 (4) If the language of the policy is ambiguous and fairly open to doubt, of which the court is judge, oral evidence is admissible to explain the real meaning of the parties.5 (5) Evidence of a general and well-known custom of trade may be received in evidence as within the probable contempla tion of the parties, provided the custom is not inconsistent with the express terms of the policy, and the language of the policy is not clear. Trade usage plays a particularly important part in the law of marine insurance. The law of merchants, consisting of certain principles which general convenience has established to regulate the dealings of merchants with each other in all countries, may be considered as a branch of public law. The courts take official cognizance of this where it has been established by a course of decisions. But a particular or local custom must be affirmatively established by evidence and shown to have been known to both parties and within the probable contemplation of the contract." (6) The contract of insurance having been framed by the insurers in their interest, and the insured being compelled to accept the form offered in order to secure insurance, any ambiguity as to the intent or meaning of its terms, or what property was intended to be covered, or where situated, will be construed in favor of the insured, and with the purpose of granting him an indemnity for his loss. (7) Forfeitures are not favored, and equivocal words or phrases, or provisions repugnant to one another, will be so construed as to give effect to the instrument rather than to avoid it.' The adoption of a standard form of fire policy has not changed the rules of construction previously prevailing in this regard. The object of the New York statute is declared to be to provide a uniform contract or policy of fire insurance-not to prescribe terms which should seem to the legislature reasonable. When the act was passed, the form of policy had not yet been adopted. Its preparation was left to insurance men, to wit, the New York Board of Fire Underwriters, and by 571. 'Glendale Woolen Co. v. Ins. Co., v. Etna Fire Ins. Co., 61 N. Y. 21 Conn. 19; s. c., 54 Am. Dec. 308. Mooney v. Howard Ins. Co., 138 Mass. 375; 52 Am. Rep. 277. 2 Walls v. Bailey, 49 N. Y. 464. * Kratzenstein v. Western Assurance Co., 116 N. Y. 54. Hoffman v. Etna Fire Ins. Co., 32 N. Y. 405 s. c., 88 Am. Dec. 339. Foot Phenix Ins. Co. v. Tomlinson, 125 Ind. 84; s. c., 21 Am. St. Rep. 203. Baker v. Homestead Fire Ins. Co., 80 N. Y. 21; s. c., 36 Am. Rep. 570. Statutes relieving the insured from forfeiture in certain cases will be found referred to and classified in appendix. section 3 of the act it is provided that any policy made in terms inconsistent with the provisions of the act shall nevertheless be binding upon the company.1 § 44. What Law governs the Construction of the Contract.-Ordinarily the laws and usages of the place where the contract of insurance is made are to be applied in its interpretation and construction.2 This rule is applied because in insurance there may be several places where the contract is operative-one place for the payment of premium; another for the payment of loss, and a third for the location of the subject of insurance. But if the policy provides that the loss and the premiums are to be payable at the home office, the latter place would seem to be the place of performance, and its law to prevail in the construction of the policy. It is often important to determine by what law the validity and effect of the policy are to be governed, because the statutory provisions relating to the insurance contract vary greatly in the different States. If the policy provides that it will not be binding until countersigned at a certain agency, the agency is the place of contract. So if the policy is sent to the agent for delivery on receipt of the premium;3 but if the application is accepted at the home office, and the policy mailed from there to the applicant in another State, the home office will be the place of contract. As a general thing the contract is considered made where the last act necessary to complete it is done.5 The standard of seaworthiness of a ship is to be determined by the custom of the port and country to which the vessel belongs, rather than that of the place where the insurance is made. $45. Who Construes the Contract, Court Jury.—This is an intensely practical question, because a court 'L. 1886, c. 488. 2 Equitable Life Assur. Society v. Clements, 140 U. S. 226. Thwing v. Great Western Ins. Co., 111 Mass. 93. Daniels v. Ins. Co., 12 Cush. 416; 59 Am. Dec. 192. Cook v. Johnson, 5 Northampton Live Stock Co. v Titania, 19 Fed. Rep. 101. tries to enforce the contract according to its legal meaning and effect, whereas a jury is apt to consider an insurance an absolute contract of indemnity regardless of conditions, and will almost invariably find for the insured, unless his claim is characterized by some element of dishonesty or bad faith. The general rule is that the construction of the policy of insurance is a question of law for the court to determine, and warranties, as we shall see hereafter, must be strictly enforced regardless of their materiality; but when the language employed to describe the thing warranted is not free from ambiguity, or when it is equivocal and its interpretation depends upon the sense in which the words are used in view of the subject to which they relate, the relation of the parties and the surrounding circumstances properly applicable to it, the intent of the parties becomes a matter of inquiry, and the interpretation of the language used by them is a mixed question of law and fact. Such a question is to be submitted to the jury under appropriate instructions.1 3 If the testimony is undisputed, whether it amounts to a breach of warranty or not is generally for the court. And if the facts are such that to the average mind only one inference is deducible from them, the court must make a decision as matter of law; but otherwise questions of mixed law and fact properly belong to the jury. Thus the question, whether the risk has been increased, whether a man is in good health, whether he is of temperate habits, or has used due diligence, or has exhibited good faith, whether his ship was seaworthy, whether the conduct of a duly authorized agent amounts to a waiver, and kindred issues, are usually for the jury, although the policy contains a warranty in respect to them. The Connecticut court says: "Extreme cases either way may be easily determined. Between them there is a wide belt of debatable ground, and cases falling within it are governed so much by the peculiar circumstances of each case that it is much better to determine the matter as a question of fact. "4 1 Kenyon v. Knight Templars, 122 N. Y. 247. Northwestern Life Ins. Co. v. Muskegon Bank, 1:2 U. S. 501. Dwight v. Germania Life Ins. Co., 103 N. Y. 341; s. c., 57 Am. Rep. 729. Appleby v. Astor Fire Ins. Co., 3 Donahue v. Ins. Co., 56 Vt. 380. 553. |