or mistake1 were alleged, or the subject-matter of the contract questioned.

No rule in respect to the admission of evidence was in former times more constantly referred to than Lord Bacon's rule respecting latent and patent ambiguities.2 This rule briefly stated is, that evidence may be received to remove a latent ambiguity, but not a patent ambiguity. The meaning of the rule is, that if the meangoods by another ship, without the assent of the underwriters, and without a fresh stamp. The passage in the decision upon which the statement of Mr. Phillips is founded is as follows: "The contract between the parties is complete when the underwriters have signed the policy. The declaration of interest is the mere exercise of a power conferred upon the assured. It is generally put upon the policy for convenience; but this is not necessary, nor is there any necessity for its being in writing." That this was not called for by the facts of the case is evident. 1 Arn. 53, adopts the same deduction as Phillips. But we know no case in which words spoken about the bargain, at any time or in any way, are regarded as an integral part of the policy, merely by a reference to them which does not amount to a repetition of them. It is obvious that such cases must be extremely rare.

1 Walworth, Ch., in Dow v. Whetten, 8 Wend. 160.

The term "latent ambiguity" is used very loosely to mean any doubt or uncertainty raised by extrinsic evidence, and very frequently there is a failure to distinguish between cases where a description is equally applicable to one of two or more persons, or of two or more things, and the other cases in which a doubt is raised by extrinsic facts, such as cases of defective and inaccurate description. This distinction is of great consequence, especially in reference to the kind of evidence ad

missible to remove the doubt or uncertainty, for it is only in the case of the double application of words of description that evidence of intention direct is admissible to remove the uncertainty. It may be shown which of two or more persons or things was intended by a description equally applicable to all. Altham's case, 8 Rep. 155 a; Doe v. Morgan, 1 Cromp. & M. 235; Doe v. Allen, 12 Ad. & E. 451. Much will be gained in point of accuracy, it is conceived, by restricting the term “latent ambiguity" to the case where words of description have a double application. Indeed, it is so restricted by Anderson, B., in Smith v. Jeffryes, 15 M. & W. 561. If the term is so restricted, we then have the cases of latent ambiguities proper, in which alone evidence of intention direct is admissible. All other uncertainties, whether patent or latent, in the ordinary sense of those terms, must be removed by the same kind of evidence, namely, by placing the court which is to construe an instrument as nearly as possible in the situation of the author of, or parties to, such instrument. The rule of patent and latent ambiguities cannot, we think, be regarded as furnishing a decisive test by which to determine in all cases whether evidence may be admitted to explain a written instrument. 2 Pars. Cont. (5th ed.) 557, n. (e). See also the very able treatment of this question in 1 Greenleaf's Ev. 359–362.

ing of an instrument upon its face be clear and unquestionable, no evidence is receivable to affect this meaning; but if evidence offered creates an uncertainty as to its meaning or application, then further evidence may be received to remove this uncertainty. The common illustration given of this rule is, that if a legacy be given to a person by name and description, and evidence shows that there are two persons to whom the name and description apply equally well, further evidence may be used to show which of the two persons was intended by the testator; but if the legacy in its terms is uncertain, it is void for uncertainty, and cannot be helped by evidence.1

There is undoubtedly some reason for this rule, and as far as this reason goes it may be useful; but the rule itself, though sometimes mentioned in recent cases, is referred to less frequently than formerly. The rule which we consider as the most reasonable and the most useful is simply this, that evidence from without may be received to explain a written instrument, but not to vary it. It may be often difficult to draw the line distinctly

1 Thus a devise to this effect, "I request a handsome gratuity to be given to each of my executors," is void for uncertainty. Jubber v. Jubber, 9 Sim. 503. So a devise to the "best men of the White Towers." Year-Book (49th ed.), 3, cited in Winter v. Perratt, 9 Clark & Fin. 688. So a bequest of a legacy to be distributed " among the real distressed private poor of Talbot County," there being no discretion given to the executors. Trippe v. Frazier, 4 Harris & J. 446. The same would be true of a bequest," to be applied towards feeding, clothing," &c., the poor children of C. County, which attend the poor or charity school established at H. in said county. Dashiell v. AttorneyGeneral, 6 Harris & J. 1. See also Dashiell v. Attorney-General, 5 Harris & J. 392; Weatherhead's lessee v. Baskerville, 11 How. 329. In such cases as this it is clear upon the face of the instrument that the intent is so uncer

tain that no evidence of extrinsic facts can make it sufficiently certain. 2 Pars. Cont. (5th ed.) 558, n. (e).

See supra, p. 112, n. 1; 2 Pars. Cont. (5th ed.) 557, n. (e), 562. The language of the court in Barrett v. Union Mut. Fire Ins. Co., 7 Cush. 175, is in accordance with this view: "The true meaning of the rule excluding parol evidence is, that such evidence shall never be used to show that the intention of the parties was directly opposite to that which their language expresses, or substantially different from any meaning that the words they have used, upon any construction, will admit or convey." Mr. Greenleaf seems to take exceptions to this form of expression as inaccurate. "It is only in this mode," says he, "that parol evidence is admissible (as is sometimes, but not very accurately said) to explain written instruments, namely, by showing the situation of the party in all his relations to persons and

here. Often, it may be argued, that evidence offered can explain only by varying the meaning of the instrument. But this difficulty of application and definition exists equally with many rules of the law; and this rule itself we believe to be just and practically useful.

SECTION VII. Of the Slip or written Application.

IN the Massachusetts case just referred to, it is said that all proposals made, or conversations had, prior to the subscription of the policy are considered as waived if not inserted in the policy or contained in a memorandum annexed to it, but it is very common in England as well as in this country for persons wishing insurance to offer to the insurers what is called a slip or application for insurance. And the cases we have already cited show that the question has frequently arisen whether this paper is admissible in evidence to show the intention of the parties. In the year 1800 it was decided in Pennsylvania that the policy of insurance may be not only explained but controlled by the written order for insurance.2

things around him, or, as elsewhere expressed, by proof of the surrounding circumstances." 1 Greenl. Ev. 340, § 288. But the learned author's objection is not stated at length, nor does he suggest any more appropriate language.

n. 1.

1 Higginson v. Dall, 13 Mass. 96. In this case it was held that a written memorandum, which was delivered to the insurance broker by the agent of the insured, but not inserted in the policy or annexed to it, was not admissible in evidence. See supra, p. 111, See also authorities cited supra, p. 108, n. 2. But where the assured in a fire policy, in his application for insurance, stated the mode of conducting business and precautions taken to guard against fire in the building to which the policy related, it was held, that he was bound to a substantial compliance with the statement; whereby the

statement was, in effect, construed to be an implied condition or promise, relative to the risk during its continuance. Houghton v. Manufact. Mut. F. Ins. Co., 8 Met. 114. This, however, would seem to fall more properly under the head of Representations.

The case of Norris v. Ins. Co. of America, 3 Yeates, 84, from the report seems to have been decided entirely on equitable grounds. Shippen, C. J., in delivering the charge, says: "The memorandum shows the intention of the plaintiffs to have been, to insure the articles on board at the time of the receipt of their last intelligence, however injudicious the measure might have been. This will control and explain the expressions in the formal policy, and the mistake of the clerk therein shall be rectified thereby."

But in 1831 it was decided in New York by the Court of Errors, confirming the judgment of the Supreme Court, that the slip or application for insurance is inadmissible in evidence to show the intention of the parties in an action at law; that in such an action it is proper evidence only to show a misrepresentation, while in equity it may be used to correct the policy. It should perhaps be remarked that in the beginning of this century courts of law in Pennsylvania not unfrequently exercised what would seem to be equity powers, and in the case referred to on the last page, the authority by which they sustain their ruling, is an English equity case. That a court of equity would have adequate power to rescind the policy if it did not conform to the actual agreement, or reform it into conformity with the agreement, we shall presently show. In an action at law on a policy before Mr. Justice Washington, that eminent judge took into consideration, in an inquiry as to the construction of the policy, the order for the insurance, and certain letters of the insured on which the order was founded, which letters were exhibited to the company.2

In Dow v. Whetten, 8 Wend. 160, the court relying on Pawson v. Bornevelt, Doug. R. 12, n. 4; Higginson v. Dall, 13 Mass. 96; and Phoenix Fire Ins. Co. v. Gurnee, 1 Paige, 278, say: "The memorandum or slip offered in evidence by the plaintiff for the purpose of showing the intention of the parties to the policy was properly rejected. The policy itself is the only legal evidence of the agreement between the parties. If that is not in fact filled up according to the intention of the parties, through inadvertence or mistake, a court of equity may, upon clear and positive evidence of such inadvertence or mistake, correct the policy. In such a case the slip may be used in the court of equity in connection with the evidence, for the purpose of showing the mistake and reforming the policy; but in a court of law it can be used for no other purpose than that of showing a misrepresentation on the part of the assured."

Hogan v. Delaware Ins. Co., 1 Wash. C. C. 419. "We are then," say the court on this point, "to consider whether the order for insurance can be resorted to for the purpose of giving a construction to this policy. Now, I take the rule to be, that if by mistake a deed be drawn plainly different from the agreement of the parties, a court of equity will grant relief by considering the deed as if it had conformed to the agreement. If the deed be ambiguously expressed, so that it is difficult to give it a construction, the agreement may be referred to in order to explain such ambiguity. But if the deed be so expressed that a reasonable construction may be given to it, and, when so given, it does not plainly appear to be at variance with the agreement of the parties, the latter is not to be regarded in the construction of the former."

It should, however, be noticed that in this case, although it was a suit at law, the counsel had agreed that the court should have the same power, and give the same relief to the defendants, as if sitting in equity upon a bill to amend the policy.

We repeat, that it is quite certain that if negotiations had been going on with a view to a contract, and that contract is finally expressed by the parties in writing, the written contract cannot be controlled by the precedent negotiations, whether they were oral or written. It follows that if this slip is to be considered only as a part of that negotiation, it cannot be used to affect the policy. But it may be said that it is more than this, and perhaps much more. It is a definite proposition or offer; and, when it is accepted, it becomes the basis of the policy. If ambiguities in the policy justify the reception of evidence to explain them, there would seem to be no evidence so pertinent and direct as the slip.2 If, on the other hand, the terms of the policy are entirely unambiguous, but are in contradiction to those of the ship, and, in an action on the policy, whether in law or equity, a mistake were alleged, we apprehend this contradiction would be receivable and material evidence to prove the mistake.3

1 See Higginson v. Dall, 13 Mass. 99; Ewer v. Washington Ins. Co., 16 Pick. 502; New York Gas-Light Co. v. Mechanics' Fire Ins. Co. of New York, 2 Hall, 108; Dow v. Whetten, 8 Wend. 166. Per Story, J., in Van Ness v. City of Washington & United States, 4 Peters, 286. See also previous notes. The very circumstance that the final instrument differs from the preliminary contract affords of itself some presumption of an intentional change of purpose or agreement, unless there is some recital in it, or some other attendant circumstance, which demonstrates that it was intended to be in pursuance of the original contract.

It is upon a similar ground that courts of equity as well as courts of law act, in holding that, where there is a written contract, all antecedent propositions, negotiations, and parol interlocutions on the same subject are to be deemed

merged in such contract.. 1 Story, Eq. § 160, p. 140.

In Phoenix Ins. Co. v. Gurnee, 1 Paige, 279, it is said: "In policies of insurance, the label or written memorandum from which the policy was filled up is always considered of great importance in determining the nature of the risk and the intention of the parties." So in Motteux v. London Ass. Co., 1 Atkyns, 545, Lord Hardwicke held, that a policy ought to be rectified agreeably to the label; and in the issues which he directed in that case, the label was treated as the real contract between the parties. See the language of the court in Dow v. Whetten, 8 Wend. 168, cited supra, p. 115, n. 1 ; Hogan v. Delaware Ins. Co., 1 Wash. C. C. 419; Delaware Ins. Co. v. Hogan, 2 Wash. C. C. 4; 1 Duer, Ins. 72.

3 In Motteux v. London Ass. Co., 1 Atk. 545, Lord Hardwicke said: "Now