From the case as given in our notes it will be seen that this view was in no wise necessary for the decision. The remark of the judge is, that if the underwriters knew that the general custom of the trade included a certain thing, then the insured had the right to do that thing; and if the insurers had a knowledge of the purpose of the insured to do that thing by means of an express communication from him, it is the same thing as if the insurers had notice by the general usage of the trade. This cannot be true as a general principle; for if it were, the insured has only to state his purpose of doing something under a policy, and by that statement he would create a usage for himself. Of the effect of such a statement under the rules of law respecting representations of the insured we treat in the chapter on that subject. SECTION VI.-Of Parol Evidence. THE question, under what circumstances and to what extent parol evidence may be received to affect the construction of a written contract, is one which belongs to all written contracts; and we do not know of any reason or principle which would draw a material distinction between contracts of insurance and other written contracts; although it may be true that practice and adjudication have settled some of the subordinate questions under this general question, in reference to policies, with great certainty.1 In some cases there seems to be a disposition to treat policies as if they were specialties. In one case in Massachusetts, Chief Justice Parker said: "Although policies of insurance are not technical specialties, not being under seal, they have nevertheless ever been deemed instruments of a solemn nature, and subject to most of the rules of evidence which govern in the case of specialties." 2 a place, and then a policy is made out to a different place, he can go to the place he spoke of, and be covered by that policy. It is not strengthened by comparing it to the knowledge of a usage. For if there is a usage, the assured has a right to avail himself of it. But if there is not, he certainly cannot make one merely by declaring to the underwriter that it exists. See Astor v. Union Ins. Co., 7 Cowen, 202. 1 See pp. 65, n. 1, 67, n. 2, 85, n. 1, supra, and subsequent chapter on Representations. 'Higginson v. Dall, 13 Mass. 96. We are not aware that rules either of construction or evidence, applicable only to specialties, have been applied to policies, which would not have been applied to other simple contracts. Nor was this remark necessary for the conclusion to which the court came.1 In the same case the Chief Justice adds: "The policy itself is considered to be the contract between the parties; and whatever proposals are made or conversations are had between the parties, prior to the subscription, they are to be considered as waived if not inserted in the policy, or contained in a memorandum annexed to it." This is the universal rule of all written contracts, and it rests upon an obvious reason. If parties negotiate respecting any transaction either orally or in writing, and thereafter enter into a written contract in relation to it, the law supposes always, what is usually the fact, namely, that the negotiation has led the parties to an agreement as to the terms of the contract, and that the written agreement expresses those terms.2 It may be said that the "By written evidence," says Prof. Greenleaf, in speaking of the admissibility of parol or verbal evidence to affect that which is written, "is meant, in this place, not everything which is in writing, but that only which is of a documentary and more solemn nature, containing the terms of a contract between the parties, and designed to be the repository and evidence of their final intentions." 1 Greenl. Ev. 327. It is quite certain that the exclusion of parol evidence does not apply only to specialties, and in this case, for this purpose, there seems to have been no occasion for the comparison. 2 Higginson v. Dall, supra ; Weston v. Emes, 1 Taunt. 115, where it is held that parol evidence of what passed at the time of effecting the policy is not admissible to restrain the effect of the policy. The court say, that the evidence could not be admitted without abandoning in the case of policies the rule of evidence which prevails in all other cases, and that it would be of the worst effect if a broker could be permitted to alter a policy by parol accounts of what passed when it was effected. In Bates v. Graham, 2 Salk. 444, a case is cited by Lord Holt, as decided by Pemberton, C. J., that on an insurance from Archangel to the Downs, and from thence to Leghorn, parol evidence was admitted to show that it was agreed the voyage should not commence till the ship came to such a place, and that the policy was avoided according to the terms of the parol agreement. But in Weston v. Emes this case was denied to be law. See also New York Ins. Co. v. Thomas, 3 Johns. Cas. 1; Mumford v. Hallett, 1 Johns. 433; Vandervoort v. Smith, 2 Caines, 155; Lee v. Howard F. Ins. Co., 3 Gray, 583; Ewer v. Washington Ins. Co., 16 Pick. 502; Whitney v. Haven, 13 Mass. 172; New York Gas-Light Co. v. Mechanics' Fire Ins. Co., 2 Hall, 108; Hogan v. Delaware Ins. Co., 1 Wash. C. C. 419; Finnly v. Bedford Commercial Ins. Co., 8 Met. 351; Holmes v. Charlestown M. Where the policy of the law seeks to induce parties, when they have agreed upon terms, to express them in writing. An oral contract suf& F. Ins. Co., 10 Met. 211; Halhead v. Young, 6 Ellis & B. 312, 36 Eng. L. & Eq. 109. Where the terms of a policy are clear and explicit, the court will not hear any suggestion or proof of mistake; as that an insurance on freight generally was intended to cover freight earned. "If any mistake has been made it is not to be corrected here." Cheriot v. Barker, 2 Johns. 346. The subsequent admissions or statements of the parties cannot be offered in evidence to vary the written contracts. See Paine v. M'Intier, 1 Mass. 69; Leland v. Stone, 10 Mass. 459; 1 Phill. Ins. 50. Representations, however, of the state of the vessel, and giving a description of the voyage, may be proved by oral or written testimony, when the object is to falsify those representations; for many things material to the risk are stated in the application for insurance which are not usually made a part of the policy; and it is a part of the law of insurance that such representations may be so proved, as we shall see in the chapter on Representations. See further, as to the point in the text, Alston v. Mechanics' Mut. Ins. Co. of Troy, 4 Hill, 330, where the insured, on making his application, promised the underwriters verbally that he would discontinue the use of a fireplace in the basement, if they accepted the risk, and use a stove instead. He did not perform his promise, in consequence of which the building was burned. Held, no defence to an action on the policy. The opinions of Walworth, Ch., and Bockee, Sen., in this case, enter fully into the examination of this rule. In the course of the opinion of the latter it is said: "The promise being out of the policy, it is no more than a conversation between the parties, inadmissible as evi dence of their rights under this written ficiently proved has the same force and effect as if it were in writing, unless where the statute of frauds interferes. And as it was the purpose of this statute, in reference to certain agreements, to avoid the danger and uncertainty of oral evidence, so it may be said that the policy of the law favors written contracts generally, by refusing to permit them to be varied by parol evidence. Such is the rule as commonly expressed. A written contract not under seal is only a parol contract, and written notes or memoranda passing while the negotiation went on can no more be received to vary the final agreement than mere oral expressions.1 The rule. delay or deviation; this implied condition is generally termed a condition not to deviate, any failure to comply with which exempts the underwriter from all liability from the moment of deviation." See subsequent chapter on Deviation. 1 Thus it is held, that the slip, or application for insurance, is not admissible to aid in the construction of the policy, except in the case of a latent ambiguity or misrepresentation. Dow v. Whetten, 8 Wend. 160. The court in this case give in a few words the whole law on this point, as well as the reason for it: "In this case it seems to me the slip was a memorandum of the contract which was executed in form by the policy itself; to produce the slip, therefore, to control the policy, is reversing the proper order of events. Nothing is better settled than that parol evidence of what was intended by parties previous to entering into a written contract cannot be given in evidence to control or qualify such written contract. If any difference exists between the slip and the policy, the latter being the completion of the contract, must be taken to express the true intention of the parties. Vandervoort v. Smith, President, &c., 2 Caines, 155, was an action of assumpsit on a policy of insurance on the cargo of the schooner Four Sisters, "at and from New York to two ports on the coast of Brazil." It was the practice of the Columbian Insurance Company to oblige the underwritten, on all occasions, to commit to paper their applications for insurance, to which written answers were returned. These applications and answers the defendant attempted to introduce in evidence; but it was held that where a policy is clear, certain, and unambiguous as to the voyage insured, propositions asking the rate of insurance for another voyage cannot be resorted to as representations to show the voyage insured was meant to be restricted to that described in the proposition. Thompson, J., said: "Supposing there had been no evidence whatever offered of any communications between the parties, previous to the signing of the policy, would it have been void for uncertainty? Clearly not; the legal construction in such a case would have been to two ports on the coast of Brazil, at the election of the assured. The writing offered to explain the course of the voyage could not be received as a representation within the rules of law. This writing must, we think, be viewed in the light of a series of propositions made on the one side, and answers given on the other, leading to a contract to be consummated by the policy, and intended to serve as a memorandum, really means that a written contract is not to be varied by evidence from without itself. There is still, however, when evidence is offered for this purpose, one important distinction between such evidence when written and when only oral. A written memorandum may be such, and so referred to in the contract, as to make it substantially a part of the contract, although it be not so formally. But we are aware of no case and no practice in which a mere reference in a written contract to oral statements has the effect of making these statements a part of the contract, although they might have an important effect if fraud 3 whereby to fill it up, and must fall within that very salutary rule of law, that where an agreement is reduced to writing, all previous treaties are resolved into that. To admit a loose and almost unintelligible memorandum in any manner to control the policy, appears to us to lead to too great uncertainty, especially as it is stated in this case that several personal communications took place between the parties previous to the signing of the policy." But see, contra, Morris v. Ins. Co. of North America, 3 Yeates, 84. 1 If a separate document be distinctly referred to and identified, it is embraced within the contract, and is in effect a part of the policy. Routledge v. Burril, 1 H. Bl. 254; Wood v. Worsley, 2 Id. 574; Worsley v. Wood, 6 T. R. 710; Tarleton v. Staniforth, 5 T. R. 695; 1 B. & P. 471. So the application, if thus referred to, forms part of the policy. Clark v. Manuf. Ins. Co., 8 How. 235; Murdock v. Chenango Co. Mut. Ins. Co., 2 Comst. 210; Jennings v. Chenango Co. Mut. Ins. Co., 2 Denio, 75; Burritt v. Saratoga Co. Mut. F. Ins. Co., 5 Hill, 188; Trench v. Chenango Co. Mut. Ins. Co., 7 Hill, 122; Kennedy v. St. Lawrence Co. Mut. Ins. Co., 10 Barb. 285; Kentucky & Louis ville Mut. Ins. Co. v. Southard, 8 B. Monr. 634; Brown v. Peoples' Mut. Ins. Co., 11 Cush. 280. But see Williams v. New England Mut. F. Ins. Co., 31 Maine, 219. The application is Sometimes expressly made part of the policy. Allen v. Charlestown Mut. F. Ins. Co., 5 Gray, 384. Thus in Clark v. Manuf. Ins. Co., supra, the policy purported to have been "made and accepted upon the representation of the said assured contained in his application therefor, to which reference is to be had, &c., &c. 2 Mr. Phillips says, 1 Ins. 54: "Verbal declarations may, by a provision in the policy, be made to form directly a part of the contract." The authority cited to sustain this broad doctrine is a dictum of Lord Ellenborough in Robinson v. Touray, 3 Campb. 158, 1 M. & S. 217. The policy was on goods "thereafter to be declared"; the broker made, in writing, a declaration upon goods by a wrong ship, which he procured to be signed in initials by the defendant and other underwriters. But it being found that the declaration as made rested in mistake as to the ship and the unauthorized act of the broker, the court held that he might afterwards, in compliance with the orders of the assured, declare upon See Vandervoort v. Smith, 2 Caines, 160, per Thompson, J. |