tual-insurance companies. Where the application for insurance is thus referred to, it forms a part of the policy. Clark v. Manuf. Ins. Co., 8 How. 235; Murdock v. Chenango Co. Mutual Ins. Co., 2 Comst. 210; Jennings v. Chenango Co. Mut. Ins. Co., 2 Denio, 75; Stewart v. Wilson, 12 M. & W. 11. In this case the reference was to a rule of a mutual marine insurance company, making a condition for repairs and outfits that might be prescribed by a committee of the company. Trench v. Chenango Co. Mut. Ins. Co., 7 Hill, 122; Maryland Ins. Co. v. Bossiere, 9 Gill & Johns. 121. The effect of such reference must, however, depend on the manner and object of making it. Burritt v. Saratoga Mut. F. Ins. Co., 5 Hill, 188. The stipulations in policies are considered express warranties, in which the assured stipulates that certain facts relating to the risk are or shall be true, or have been or shall be done. And it is not requisite that the circumstance or act warranted should be material to the risk, in which respect an express warranty is distinguished from a representation. Duncan v. Sun Fire Ins. Co., supra, and citing Lord Eldon. But a mere naked reference in a policy

1 Murdock v. Chenango Co. Mut. Ins. Co., 2 Comst. 210; Roberts v. Chenango Co. Mut. Ins. Co., 3 Hill, 501. In each of these cases the policy was on one half of an entire sheet, and on the other half there was a printed statement, headed "Conditions of Insurance." No reference was made to it in the body of the policy. Held, that it formed part of it. Desilver v. State Ins. Co., 38 Penn. St. 130. In Duncan v. Sun F. Ins. Co., 6 Wend. 488, the paper

to the written application for insurance will not make the latter a part of the contract so as to change what would else be a representation into a warranty. Bronson, J., in Burritt v. Saratoga Co. Mut. F. Ins. Co., supra; Stebbins v. Globe Ins. Co., 2 Hall, 632. Otherwise, where the policy refers to the application, thus: "reference being had to the application, &c., for a more particular description, and as forming part of this policy." Id.; Kennedy v. St. Lawrence Co. Mut. Ins. Co., 10 Barb. 285 ; Brown v. Peoples' Mut. Ins. Co., 11 Cush. 280. But see, contra, Kentucky & Louisville Mut. Ins. Co. v. Southard, 8 B. Monr. 634. And see Williams v. New England Mut. F. Ins. Co., 31 Maine, 219, that a reference only made in the policy to the application will not be sufficient to make it a part of the contract; but a clause declaring that the application forms a part of the policy makes it a part of the contract. And to the same effect is Jefferson Ins. Co. v. Cotheal, 7 Wend. 72. This case uses the same distinction adopted in the case in Maine, that a representation is a part of the preliminary proceedings, preceding and proposing a contract, and a warranty is a part of the contract com

was both annexed and referred to in the policy. But in such a case, though the juxtaposition of the papers is sufficient evidence prima facie, yet the presumption that they were intended to be taken together may be rebutted by parol evidence, as by showing that the two were thus connected by mistake. Roberts v. Chenango Co. Mut. Ins. Co., supra. See also Desilver v. State Mut. Ins. Co., 38 Penn. St. 130.

pleted. Ordinarily, therefore, a statement made in an application for insurance is a representation only; but it may be incorporated into the policy, and thereby become a part of the contract. And as, when thus made a part of the contract, what would otherwise have been a representation becomes a warranty, the reference incorporating it must be in the policy itself. "No case," say the court, "has been referred to in which this rule has been relaxed, except in relation to the printed proposals of the underwriters accompanying and always attached to the policy." And the language of Lord Mansfield, in Pawson v. Watson, Cowp. 785, is cited, that in his opinion, to make written instructions valid and binding as a warranty, they must be inserted (not referred to) in the policy. Snyder v. Farmers' Ins. & Loan Co.,13 Wend. 92, S. C. 16 Wend. 481; De Longuemere v. Tradesmen's Ins. Co., 2 Hall, 608, commenting on the cases supra, requiring certificates. Simply referring, then, to other written or printed documents would not seem, from the adjudged cases, to be enough to make the documents so referred to part of a policy. But it must be such a reference to them as is equivalent to an express declaration, that they are to be taken as a part of the policy itself.

1 Bize v. Fletcher, Doug. 13, n. So held, also, where a written memorandum was folded up with the policy when it was brought to the underwriters to be signed. Pawson v. Barnevelt, Doug. 13, n., cited by the court in De Longuemere v. Tradesmen's Ins. Co., 2 Hall, 609, to sustain the rule that, to give

....

such writings a controlling operation, they must be part of the contract and appear on the face of the policy. See both the above cases commented on in Farmers' Ins. & Loan Co. v. Snyder, 16 Wend. 492. The court say: "It has been correctly held that a stipulation, or clause, or memorandum, . . . although written in the margin, on the back, or on any other part of the same paper, if made before or at the time of the underwriting of the policy, and intended as a part thereof, is considered as a part of the contract itself, in the same manner as if it had been inserted in its proper place in the form of a stipulation or agreement in the body of the policy." This, in the opinion of the court, accounts for the different decisions of Lord Mansfield in the cases of Beau v. Stupart, 1 Doug. 11, and Kenyon v. Berthron, Id. in notes, in both of which he held stipulations written upon the policy itself as strict warranties, and in the cases above cited, referred to also in Doug.: "It is perfectly competent, I have no doubt, for the underwriter, by the insertion of a stipulation to that effect in the policy itself, to give to a statement of facts contained in a separate paper or instrument, sufficiently referred to and identified, all the effect of an express warranty inserted in the body of the policy. ... But the cases referred to show that the principle of converting everything contained in a policy into an express warranty, although there is nothing in the form of the memorandum itself to show that such was the intention of the parties to the contract, which belongs to marine policies, is not to be ex

tended to any memorandum or paper writing not contained in the policy itself, or written upon the same paper with the policy so as to be considered as contained therein." It seems that, in respect of construing every matter of mere description contained in the body of the policy, although not material to the risk, into an express warranty which is to be literally complied with, there is a difference between marine and fire policies. The reason for this is, that in making marine policies the insurer is in general wholly dependent upon the statements of the insured with regard to the property and the risk; whereas in fire policies the misdescription is most generally the mistake of the underwriter's own surveyor. In Roberts v. Chenango Co. Mut. Ins. Co., the court remark on the case of Bize v. Fletcher thus: "It would be impossible to sustain the decision in that case, if the slip wafered to the policy had expressly declared itself to be conditions of insurance." 3 Hill, 503.

1 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; Kennedy v. St. Lawrence Co. Mut.

but there are cases of weight

Ins. Co., 10 Barb. 285; Kentucky & Louisville Mut. Ins. Co. v. Southard, 8 B. Mon. 634; Brown v. Peoples' Mut. Ins. Co., 11 Cush. 280. In Sheldon v. Hartford Fire Ins. Co., 22 Conn. 235, the reference was in these words: "Reference is had to survey No. 83, on file in the office of the Protection Insurance Company." The survey consisted of answers given by the insured to questions proposed by the insurers. Held, that this reference was not merely for a fuller description and identification of the premises to be insured, but served to incorporate all the survey into the policy. Ellsworth, J., said: "All the survey, as much as any part of it, is incorporated into the policy, and constitutes the conditions of plaintiff's contract; and hence every part applicable to the subject-matter is to be regarded as obligatory on the insured, whether the survey is to hold a warranty, as in the policy, or a representation material to the risk, to be substantially kept and performed, which latter is the character we are inclined to give it. We know no reason why a writing intended to be a part of a contract may not be held to be incorporated into it by a proper reference as well as by an extended re

cital. The reference in this case, in our judgment, is of such a character. It was made, we think, to show what then were and should continue to be the stipulations of the plaintiffs touching the property insured."

1 Williams v. New England Mut. F. Ins. Co., 31 Maine, 219; Jefferson Ins. Co. v. Cotheal, 7 Wend. 72; Snyder v. Farmers' Ins. & Loan Co., 13 Wend. 92, S. C. 16 Wend. 481; De Longuemere v. Tradesmen's Ins. Co., 2 Hall, 608; New York Central Ins. Co. v. National Protection Ins. Co., 20 Barb. 468; Hall v. Peoples' Mut. F. Ins. Co., 6 Gray, 185. See supra, p. 121, n. 2. Wall v. Howard Ins. Co., 14 Barb. 383. In Trench v. Chenango Co. Mut. Ins. Co., 7 Hill, 122, the policy, after specifying the amount insured, proceeded thus: "Reference being had to the application of the said J. and T., T. [the insured] for a more particular description and the conditions annexed, as forming a part of the policy." The court held that the language did not constitute the application a part of the policy, but only the conditions annexed. Beardsley, J., said: "The conditions are thus undoubtedly made a part of the con

tract of insurance, as much as if embodied in the policy. But it is otherwise with the application. That, as it seems to me, is referred to for the mere purpose of describing and identifying the property insured, and not to incorporate its statements into the policy as parts thereof."

see

That when the policy contains a clause declaring that the application forms a part of the policy it thereby becomes a part of the contract, and its statements are thereby changed from representations into warranties, Burritt v. Saratoga Co. Mut. Fire Ins. Co., 5 Hill, 188; Wall v. Howard Ins. Co., 14 Barb. 383; Allen v. Charlestown Mut. F. Ins. Co., 5 Gray, 384. And in Kennedy v. St. Lawrence Co. Mut. Ins. Co., the policy of insurance referred to the application by its number for a more particular description of the goods insured, and treated it "as forming a part of the policy." The court say: "This form of expression has been repeatedly held to constitute a warranty, as much so as if the application were incorporated in the policy, and formed a component part of it."

1 And this meaning is sometimes presumed to be known to the courts. There is no occasion, therefore, for evidence of such meaning. 2 Pars. Cont. (5th ed.) 501, and note (1). Palmer v. Warren Ins. Co., 1 Story, 365. "The best construction," says Gibson, C. J., "is that which is made by viewing the subject of the contract as the mass of mankind would view it, for it may be safely assumed that such was the aspect in which the parties themselves viewed it. A result thus obtained is exactly what is obtained from the cardinal rule of intention." Schuylkill Nav. Co. v. Moore, 2 Whart. 491; Houghton v. Gilbert, 7 Car. & P. 701. "Ubi nulla est conjectura quæ ducat alio, verba intelligenda sunt ex proprietate non grammatica sed populari ex usa." Grotius (De Jur. B. & P., Lib. II. c. 16). On this passage Mr. Duer remarks (1 Ins. 215, n. III.), that Grotius constantly uses the word "conjectura" as denoting the collection of the intent, by other means than the sole explanation of words. So that his meaning here is, that words are to be understood in their ordinary and popular sense, unless the intent to use them in a different sense is otherwise manifest. What Lord Ellenborough, in Robertson v. French, 4 East, 135, says with regard to the construction of the policy of insurance is a full and clear statement of the law on this point, namely, that it must be construed according to its sense and meaning as collected in the first place from the terms used in it, which terms are themselves to be understood in their plain, ordinary, and popular sense, unless they have generally, in respect to

the subject-matter, as by the known usage of trade, or the like, acquired a peculiar sense distinct from the popular sense of the same words, or unless the context evidently points out that they must, in the particular instance, and in order to effectuate the immediate intention of the parties to that contract, be understood in some other special and peculiar sense. The first proposition of Mr. Wigram, in his treatise upon the admission of extrinsic evidence in aid of the interpretation of wills is, that, "a testator is always presumed to use the words in which he expresses himself, according to their strict and primary acceptation, unless from the substance of the will it appears that he used them in a different sense, in which case the sense in which he thus appears to have used them will be the sense in which they are to be construed." This, however, if true in regard to wills, is not so as to policies of insurance, unless by strict and primary meaning is meant ordinary meaning. The object of interpretation and construction is to find the intention of the parties, and it is obvious that that intention is best sought by affixing to the words of an instrument such meanings as are common or ordinary. Where, however, the law has defined the meaning of words, they must be understood to be used in the sense which the law attaches to them, unless the context or the circumstances of the case indicate that another meaning is the one in which they are there used. In Howe v. Mutual Safety Ins. Co., 1 Sandf. 151, the court say: "In fine, we believe the rule of construction applicable to policies of insurance does