ed. It is submitted, therefore, that the conclusions in the text are not only reasonable in themselves, but are most consistent with the actual decisions: that where a representation of the "expectation" or "belief" of the party may reasonably be construed as referring to his intentions or his information, its intentional falsity will avoid the policy, and that it is only to be regarded as immaterial when the underwriter had no right to understand it as expressing any thing more than a conjectural opinion.

NOTE XXVIII.

In the case of Astor v. Union Ins. Co., (7 Cowen, 202,) evidence was offered on the part of the defendants, that the agent of the plaintiffs, when the policy was effected, declared that under the memorandum clause, the articles insured would be free from particular average, and that such was also the understanding of the defendants, so that there was in effect an agreement, that the memorandum should be so interpreted. The Supreme Court decided that the evidence was properly rejected on the trial, and it might be inferred from the language of Mr. Phillips, that the decision was founded on the principle stated in the text. (1 Phil. 225.) Such, however, was not the case. The evidence, if admitted, would not have changed the usual import and legal construction of the terms of the memorandum, but directly the reverse. It was offered to repel an opposite construction, sought to be imposed on the memorandum by evidence of a commercial usage. Its object was to show that by the understanding of the parties, the words of which the construction was disputed, were to be construed in their natural and proper, and not in their commercial sense. Hence, upon principle, it was clearly admissible, and had it proceeded from the proper source,

would probably have been admitted by the court. The grounds on which it was held to have been properly rejected were-1. That the declaration of the agent was only the expression of an opinion not binding on his principal; in other words, that to make such an agreement did not fall within the scope of his authority as agent; and 2. That the agent was himself a competent witness, and consequently the evidence of his declarations only hearsay. Had the proof offered related to a similar conversation between the plaintiffs themselves and the defendants, it seems a fair inference from the language of the court, that it would have been received, and assuredly it could not then with propriety have been rejected. The meaning of the memorandum in this case was rendered doubtful solely by the parol evidence on the part of the plaintiffs, and a doubt thus created, it is always competent to the opposite party to meet and remove by similar evidence. It has already been stated that when particular words may with equal propriety be understood in two different senses, and the context does not determine which ought to be adopted, parol evidence to show which sense was intended by the parties may be received, and doubtless in such cases, evidence of what passed in conversation between the parties when the contract was made, would be admissible. In these cases the evidence is merely explanatory. The principle in the text is confined to those where it is plainly contradictory. Vide Peisch v. Dixon, (1 Mas. p. 10, 11, 12. Sup. Lect. III.)

It is not to be inferred from the preceding remarks, that the parties to a policy may not, by an agreement in writing signed by both, declare what shall be the construction of a particular clause or word in the policy, although the construction so declared may be essentially different from that which must otherwise have been adopted. There is no reason to doubt that such an agreement would be con

sidered an integral part of the contract, and the same effect be given to it as if it were inserted in the policy.

In the case of Lothian v. Henderson, such an agreement was held to be valid, even when subsequent in date to the execution of the policy. (3 Bos. & Pul. 499.) As the parties to every contract have an undoubted right, by a subsidiary or new agreement, to vary or modify its actual terms, they must necessarily have the right, by a similar agreement, to vary its legal construction; but in all such cases the agreement, to be valid, must be established by evidence of as high a character as the principal or original contract. A mere representation, not inserted in the policy, would not supply the necessary evidence.

Higginson v. Dall, (13 Mass. 96.) The insurance was on ship and freight from Calcutta to the United States; the agent of the plaintiff who effected the insurance, delivered to the broker a written memorandum, to be shown to those who should subscribe the policy, stating among other things, that "the policy was to take effect, if the "vessel should sail with a cargo, and no insurance were "made by the plaintiff elsewhere." The vessel was subsequently insured by the owner at Calcutta, in a valued policy, and it was contended by the underwriters at Boston, that by this insurance the policy they had subscribed was rendered void. The court were however unanimously of opinion, that the memorandum ought not to have been received in evidence for the purpose for which it was offered, and that such an agreement as it implied, upon the supposition that it was in fact a ground of the contract upon the part of the underwriter, could only be valid when inserted in the policy.

The propriety of the rejection of the evidence in this case, cannot be doubted. The memorandum was certainly not a representation within the legal definition of the term. It did not relate to any facts existing or future, tending to

increase or diminish the risks insured. It was neither affirmative nor promissory. It was a declaration that it was only upon certain contingent events that the policy was to take effect, but the existence of those events it neither asserted nor stipulated. If an agreement of this nature were to be considered as valid, there is no conceivable addition that might not be made by parol to the terms of the policy.

Atherton v. Brown, (14 Mass. 152.) The vessel insured was described in the policy as the Spanish brig New Constitution. She was captured and condemned by the British as American property, as in truth she was. On the trial, the plaintiff offered to prove that it was represented and made known to the underwriters, when the policy was effected, that the vessel was in fact American, but was to be made ostensibly Spanish by the use of false papers, in order to avoid capture by the enemy. The evidence was rejected by the court, as contradicting the warranty of the neutral character of the vessel, to which her description as Spanish in the policy was held to amount. As words of description in a policy are a warranty only by implication of law, it is at least doubtful whether in this case a construction ought not to have been adopted that would have rendered them consistent with the representation; yet if the decision, as made in a court of law, be correct, the case certainly appears to be one of those in which a court of equity might justly relieve, by reforming the policy so as to correspond with the actual intentions of the parties.

The following cases, accidentally omitted, have an important bearing on some of the questions discussed in the preceding notes.

Nonnen v. Kettlewell, (16 East, 176.) In this case the effect of the representation was to alter the construction of the policy by enlarging the risks of the insurer; and it was accordingly proved by the assured, in order to charge the

defendant with a loss for which he would not otherwise have been liable. The insurance was on goods on board a Swedish vessel at and from Landscrona to Wolgast, and the policy contained the usual words, declaring the commencement of the risks to be "at and from the loading of the goods on board the ship." The legal import of these words, as settled by previous decisions, (Spitta v. Woodman, 2 Taunt. 416; Horneyer v. Lushington, 15 East, 46,) is, that the goods on which the policy is to attach, must be loaded at the port of departure mentioned in the policy. It appeared, however, in evidence, that the whole of the goods had been taken on board at Gothenburgh, whence the ship had proceeded to Landscrona, where only a small part of the of the cargo had been unladen and re-shipped; but it also appeared that the underwriter was informed of these facts at the time the insurance was effected. It was held by the court, that the policy attached on all the goods, and Lord Ellenborough, in giving their judgment, relied, among other circumstances, on the communication made to the underwriters, as justifying the court in giving to the words of the policy a construction different from their ordinary and legal import. It is evident, that the assent of the underwriter to insure upon a representation increasing his risks, is just as truly an agreement to assume the new risks which the representation discloses, as if they were expressly named in the policy.

In the same case it was also proved that the ship and goods were represented by the assured to be neutral property, but the representation was coupled with a refusal to warrant them as such. The ship was captured by the French, and vessel and cargo condemned by a French prize court, and the sentence of condemnation was urged by the defendant's counsel as conclusive evidence to falsify the representation. This defence was overruled by the court, not upon the ground stated by Mr. Hughes,