Positive

representa

construed

to an ex

pectation.

parties in the same definite sense, it is this construction that the jury under the direction of the court would be bound to adopt. If the ambiguity of a representation is not apparent and equal, but consists only in the fact that its words grammatically or critically considered, may be interpreted in a sense different from that which they would be certain to suggest, it is not to be regarded. It is the very case in which the obvious sense is to be accepted as the true.

A representation of future facts, although positions when tive in its terms, may in some cases be justly interas referring preted, not as an undertaking for the truth of the facts, but as referring solely to the expectations or belief of the party. Thus where the insurance is on goods: if the owner having no interest in the vessel, (a) and no authority to direct the conduct of the master, represent that the vessel in which the goods are to be laden, will sail on a certain day, it is merely of his own expectation that he is understood to speak. It is only an assertion of his belief, derived of necessity from the information, or founded on the assurances of others: and by parity of reasoning the same rule of construction must obtain in all cases where the party making a representation, promissory in its terms, has no power to control the event. It is unreasonable to suppose that the party intends to promise when it is known to the insurer that he has not the means of per

(a) Bowden v. Vaughan, 10 East, 450. Dennistoun v. Lillie, 2 Bligh. 202. Vide Note 9. Alsop v. Coit, 12 Mass. 40. Vide Note 13.

formance. It is a fair and just presumption that his language was understood by the insurer as expressing solely his own confidence in the happening of the event, not as an agreement that should it not happen, the insurance should be void. These remarks, however, must be confined cases where the representation expresses no more than that the specified event will happen, not when it stipulates in terms that it shall happen. I see no reason for doubting that a positive stipulation by the owner of goods as to the future sailing of the vessel, is just as binding as a positive representation of the same fact by the owner of the vessel. To make such an agreement by parol must be just as competent to the one as the other, and the only question in the construction must be that of intention.

wholly When conis not refer to the policy the party.

When a representation of future facts is inconsistent with the terms of the policy, it always to be entirely rejected. The must of necessity be considered in all such cases as the sole evidence of the actual agreement, but in some, the representation may still be operative by construing it to refer to the intentions of the assured at the time of making it—intentions which by the terms of the policy he reserved to himself the liberty of changing. Thus, where a party applying for an insurance on a vessel, describes the voyage to be insured, as it is afterwards inserted in the policy, but states in the

(a) Bize v. Fletcher, Douglass, 271. Note 9.

intentions of

tion may be

by usage.

same application that the vessel will pursue a voyage much less extensive; such a representation cannot alter the terms of the policy by substituting the voyage represented as the voyage insured; nor, it is manifest, could it have been so intended by the assured. It may however be justly regarded as a declaration of what were then his intentions as to the mode of prosecuting the voyage, and as such, should it appear to have been fraudulently made, be construed to avoid the policy.

Construc- It is evident that the words of a representation governed must equally with and for the same reasons as those of the policy, be construed in reference to the usage of trade, (a) or in their technical and commercial sense as distinguished from their general and popular; nor am I aware that there are any rules in respect to the admission and effect of such evidence, that apply exclusively to a representation. Where a vessel, owned at NewYork,(b) and insured at Boston, was represented to be "coppered," it was justly decided by the Supreme Court of the United States, that the words were to be construed by reference to the usage of the port to which the vessel belonged, and not of that where she was insured, but the same construction would doubtless have been given had the representation been inserted as a warranty in the policy; nor should we be justi

(a) Vide Lec. 3.

(b) Hazard v. N. E. Ins. Co., 8 Peters, 537. Vide Note 14.

fied in drawing from this case the general conclusion that the construction of a representation must always depend on the usage of the place where the vessel belongs, or where the voyage is to commence. As in the case of a warranty, the construction must of necessity vary according to the nature of the usage and its connection with the subject of the representation.

tation may

a usage.

It is stated by Mr. Phillips, (a) as a question Represeninvolved in serious doubt, whether a representa- supersede tion can in any case supersede a usage; that is, when a policy is effected on a representation, that a particular usage is not to be followed; whether evidence of the fact may be received to repel a claim or a defence that the usage, if allowed, would support. A representation repugnant to an express provision of the policy is clearly invalid; and as Lord Mansfield and other eminent judges have held that a valid usage is to be considered a part of the policy, it seems to be supposed that where a similar repugnancy subsists between the evidence and the usage, the same consequence may follow. I confess I cannot attach much weight to the argument. The language of the judges, which is referred to, is not to be literally understood. Its meaning is, that when the usage is obligatory on the parties it is to receive the same construction as if inserted in the policy, not that the parties may not by a positive agreement, either written or parol, dis

(a) 1 Phillips, 297.

May super

pense with its observance; not that it does not cease to be obligatory when such an agreement is proved to have been made. Where the terms of the usage are not in fact inserted in the policy, it derives its efficacy-its power to control the interpretation of the contract-solely from the presumed consent of the parties, and it would be contrary to the elementary rules of evidence not to permit such a presumption to be rebutted by proof of an opposite agreement. Thus, where there is a usage on the voyage insured, authorizing the vessel to touch at an intermediate port, if the usage is alleged by the plaintiff, seeking to recover a loss on the policy, in answer to a charge of deviation, it is doubtless competent to the defendant to repel the allegation by proof, that the policy was founded on a representation that the usage was not to be followed, but the voyage to be prosecuted by its direct route. Such evidence, far from being inconsistent, would exactly correspond, with the terms of the policy, nor would it even vary their legal construction. It would merely repel the presumption that the usage would otherwise raise, and repel it by the same species of evidence, by which the usage was established. (a)

Another question of the same nature, is said by sede an im- the same author to have been settled by the deciplied warranty. sions, namely; that a representation may supersede an implied warranty, such as that of the sea

(a) It is a general rule, that oral and extrinsic evidence is admissible to rebut a presumption raised by extrinsic evidence." 3 Starkie, part iv. p. 1039, and cases ib. cit. Vide Note 15.