trary notwithstanding " in the printed condition standard form relating to prohibited articles like gasoline, etc., has no application to a policy insuring household goods; it cannot be construed to exclude usage or custom in domestic affairs.3

1. Underwood v. Greenwich Ins. Co., 161 N. Y. 413, 424, 55 N. E. Rep. 936. And see Westfield Cigar Co. v. Insurance Co. of N. A., 169 Mass. 382, 47 N. E. Rep. 1026.

2. Rickerson v. Hartford Ins. Co., 149 N. Y. 307, 43 N. E. Rep. 856; American Central Ins. Co. v. Greene, 16 Tex. Civ. App. 531, 41 S. W. Rep. 74.

3. Rickerson v. Hartford Ins. Co., 149 N. Y. 307, 43 N. E. Rep. 856; American Central Ins. Co. v. Greene, 16 Tex. Civ. App. 531, 41 S. W. Rep. 74.

RULE 24.

When Usage or Custom Presumed to Enter into Intention. Custom or usage is presumed to enter into the intention when it is found as a fact not only that it existed, but was uniform, reasonable, and well settled, and either known to the parties when the contract was made, or so generally known as to raise a presumption that they had it in mind at the time.

London Assur. Co. v. Thompson, 170 N. Y. 94, 99, 62 N. E. Rep. 1066. And see Nippolt v. Firemen's Ins. Co., 57 Minn. 275, 59 N. W. Rep. 191.

RULE 25.

Evidence of Usage or Custom.

Usage or custom, when admissible, cannot be established by what a witness would do; he may testify only to what he had done or seen done;1 and when it appears that evidence is based upon opinion rather than knowledge of a custom recognized notoriously and uni

formly, and his knowledge is largely confined to practice of his own office, it is error to submit the question to a jury.2

1. Rickerson v. Hartford Ins. Co., 149 N. Y. 307, 43 N. E. Rep. 856.

2. Greenwich Ins. Co. v. Waterman, 54 Fed. Rep. 839.

RULE 26.

Effect of the Word "Entire" on Divisibility of Contract. Notwithstanding the use of the word "entire" in the standard form of policy, it is still divisible in a proper case, and while void in part by reason of a violation of a condition affecting such part, the balance of the insurance when separated or itemized remains unaffected and is recoverable, but contract is severable only when separately itemized in value, amounts, or insurance.2

1

1. Kiernan v. Agricultural Ins. Co., 81 Hun, 373, 30 N. Y. Supp. 892, revg. on reargument 72 Hun, 519, 25 N. Y. Supp. 438; Trabue v. Dwelling-House Ins. Co., 121 Mo. 75, 25 S. W. Rep. 848; Holloway v. Dwelling-House Ins. Co., 121 Mo. 87; Knowles v. American Ins. Co., 66 Hun, 220, 21 N. Y. Supp. 50, affd. on opinion below, 142 N. Y. 641; Mott v. Citizens' Ins. Co., 69 Hun, 501, 23 N. Y. Supp. 400; Adler v. Germania Ins. Co., 17 Misc. 347, 39 N. Y. Supp. 1070; American Gold Stamping Co. v. Glens Falls Ins. Co., 1 Misc. 114, 20 N. Y. Supp. 646. And see Home Ins. Co. v. Connolly, 104 Tenn. 93; Phoenix Ins. Co. v. Pickel, 119 Ind. 155, 21 N. E. Rep. 546; Royal Ins. Co. v. Martin, 192 U. S. 149, 24 Sup. Ct. Rep. 247; Donley v. Glens Falls Ins. Co., App. Div. 91 N. Y. Supp. 302. But see this volume," Fraud or False Swearing;" "Iron Safe Clause;" and volume 2, "Increase of Risk;" "Vacant or Unoccupied." The distinction seems to be that when the violation affects the entire property, the policy is not severable. Brehm Lumber Co. v. Svea Ins. Co., Wash. 79 Pac. Rep. 34; Herzog v. Palatine Ins. Co., Wash. 79 Pac. Rep. 287. And see McKenzie v. Scottish Union & Nat. Ins. Co., 112 Cal. 548; St. Landry Mercantile Co. v. New Hampshire Ins. Co., La. 38 So. Rep. 87; Southern Ins. Co. v. Knight, 111 Ga. 622, 36 S. E. Rep. 821.

2. Fitzgerald v. Atlanta Home Ins. Co., 61 App. Div. 350, 70 N. Y. Supp. 552; Merrill v. Agricultural Ins. Co., 73 N. Y. 452. And see Burr v. German Ins. Co., 84 Wis. 76, 54 N. W.

Rep. 22; Carey v. German-American Ins. Co., 84 Wis. 80, 54
N. W. Rep. 18.

In some States the word "entire" is differently construed, and held controlling. Martin v. Insurance Co. of N. A., 57 N. J. L. 623, 31 Atl. Rep. 213; McWilliams v. Cascade Ins. Co., 7 Wash. 48, 34 Pac. Rep. 140. And see Germania Ins. Co. v. Schild, 69 Ohio St. 136, 68 N. E. Rep. 706. And that policy is entire and not divisible, see also Thomas . Commercial

Union Assur. Co., 162 Mass. 29, 37 N. E. Rep. 672; Phoenix Ins. Co. v. Public Parks Amusement Co., 63 Ark. 187, 37 S. W. Rep. 959; Southern Ins. Co. v. Knight, 111 Ga. 622, 36 S. E. Rep. 821; Day v. Charter Oak Ins. Co., 51 Me. 91. That it is divisible, and may be void in part, and valid and enforceable in part, when separated or itemized, see also Merrill v. Agricultural Ins. Co., 73 N. Y. 452; Bills v. Hibernia Ins. Co., 87 Tex. 547, 29 S. W. Rep. 1063, 29 L. R. A. 706; Sullivan v. Hartford Ins. Co., 89 Tex. 665, 36 S. W. Rep. 73; Georgia Home Ins. Co. v. McKinley, 14 Tex. Civ. App. 7, 37 S. W. Rep. 606; Sun Mutual Ins. Co. v. Tufts, 20 Tex. Civ. App. 147, 50 S. W. Rep. 186; Georgia Home Ins. Co. v. Brady (Tex.), 41 S. W. Rep. 513; Home Ins. Co. v. Bernstein, 55 Nebr. 260, 75 N. W. Rep. 839; Johansen v. Home Ins. Co., 54 Nebr. 548, 74 N. W. Rep. 866; Jenkins v. German Ins. Co., 58 Mo. App. 210; Continental Ins. Co. v. Ward, 50 Kans. 346, 31 Pac. Rep. 1079; Kansas Farmers' Ins. Co. v. Saindon, 53 Kans. 623, 36 Pac. Rep. 983; Home Ins. Co. v. Delta Bank, 71 Miss. 608, 15 So. Rep. 932; Firemen's Fund Ins. Co. v. Baker, 6 Colo. App. 535, 41 Pac. Rep. 513; Phillips v. Ohio Farmers' Ins. Co., 2 Ohio Dec. 571; Georgia Home Ins. Co. v. Hall, 94 Ga. 630, 21 S. E. Rep. 828; Cooper v. Insurance Co. of Pa., 96 Wis. 362, 71 N. W. Rep. 606; Thurber v. Royal Ins. Co., 1 Marv. (Del.) 251, 40 Atl. Rep. 1111; Manchester Assur. Co. v. Feibelman, 118 Ala. 308. But compare Burr v. German Ins. Co., 84 Wis. 76, 54 N. W. Rep. 22; Carey v. German-American Ins. Co., 84 Wis. 80, 54 N. W. Rep. 18.

RULE 27.

Divisibility of Contract not Affected by Entirety of Premium. Entirety of premium does not necessarily prove that the contract is indivisible, and where it appears from the terms of the policy that distinct items or classes of property are separately insured, the policy may be valid as to one item or class, although it is invalid as to another item or class by reason of breach of con ditions of the policy with reference thereto, provided it appears, also, that the risk which it was intended to

exclude by the condition which is broken does not apply to the other items or classes of property.

Taylor v. Anchor Ins. Co., 116 Iowa, 625, 88 N. W. Rep. 807. And see Kahler v. Insurance Co., 106 Iowa, 308; Delaware Ins. Co. v. Harris, 26 Tex. Civ. App. 537, 64 S. W. Rep. 867. But see exceptions in note under Rule 26.

RULE 28.

Distinction Between Matters of Interpretation and Remedy as to What Law Governs.

Matters relating to the validity, execution, and interpretation of the contract are governed by the law of the place in which it is made; those relating to the remedy, by the law of the place in which the suit is brought,1 unless the contracting parties clearly appear to have had some other law in view.2

1. Lancashire Ins. Co. v. Barnard, 111 Fed. Rep. 702, 49 C. C. A. 559; Thompson v. Traders' Ins. Co., 169 Mo. 12, 68 S. W. Rep. 889.

2. Western Mass. Ins. Co. v. Hilton, 42 App. Div. 52, 56, 58 N. Y. Supp. 996, citing Liverpool S. Co. v. Phoenix Ins. Co., 129 U. S. 397; Milliken v. Pratt, 125 Mass. 374.

Same Subject

RULE 29.

Rights and Remedies General Rule.

The rights of the parties to the contract, as distinguished from their remedies, are to be determined by the law of the place where the contract is to be performed. If a contract be made in one State or country, and it appears upon its face that it is to be performed in another, it will be presumed that the contract was entered into with reference to the laws of the latter, and those laws will be resorted to in ascertaining the

validity, obligation, and effect of the contract;1 the general rule is that the law of the place where the contract is made is to govern, unless it is positively to be performed elsewhere. The fact that acts are to be done abroad under a contract does not necessarily make it a contract to be performed there in a legal sense.2

1. Hyde v. Goodnow, 3 N. Y. 266, 269.

2. First Nat. Bank v. Shaw, 61 N. Y. 283, 294. And see Liverpool Steam Co. v. Phoenix Ins. Co., 129 U. S. 448; London Assur. Co. v. Compagnia Moraghens, 167 U. S. 161; Canton Ins. Co. v. Woodside. 90 Fed. Rep. 301.

RULE 30.

Contract Made When Mailed.

Where the assured or his broker and agent forwards an application for insurance to a company at its office in another State, by whom it is received and accepted, and the policy is made, signed, and issued in such State, the contract is complete when mailed to the broker or agent, and is governed by the law of such State; this rule may be affected by statute.2

1. Commonwealth Mut. Ins. Co. v. Wm. Knabe Mfg. Co., 171 Mass. 265, 50 N. E. Rep. 516; Commonwealth Ins. Co. v. Fairbanks Canning Co., 173 Mass. 161, 53 N. E. Rep. 373. And see State Ins. Co. v. Brinkley Stave Co., 61 Ark. 1, 31 S. W. Rep. 157, 29 L. R. A. 712; Gibson v. Connecticut Ins. Co., 77 Fed. Rep. 561; Bailey v. Hope Ins. Co., 56 Me. 474; Lamb v. Bowser (U. S. Cir.), 7 Biss. 315; Northampton Ins. Co. v. Tuttle, 40 N. J. L. 476; Western v. Genesee Ins. Co., 12 N. Y. 258; Galloway v. Standard Ins. Co., 45 W. Va. 237, 31 S. E. Rep. 969, 28 Ins. L. J. 125; Western Mass. Ins. Co. v. Hilton, 42 App. Div. 52, 58 N. Y. Supp. 996; Baker v. Spaulding, 71 Vt. 169, 42 Atl. Rep. 982, 28 Ins. L. J. 470.

2. See Rule 4.