Wherever words can mean but one thing, they may give rise to many questions, as of mistake, fraud, or the like; but they do not raise a question of construction. The general principles or rules which determine all construc-· tion are as applicable to contracts of insurance as to all other contracts. Some of them, however, have been considered with peculiar frequency in cases of insurance.1 SECTION II. Which Party shall be favored by Construction. ONE question, which perhaps lies at the basis of all, is this, Which of the two parties shall the court be disposed to favor? In our introductory remarks, in speaking of the fluctuation which has characterized the jurisprudence of England and of this country in this respect, we have said that at one time courts have appeared to think that merchants who paid their premium were entitled to indemnity in case of loss, without any critical examination of the words of the bargain. In an early case approved by Lord Mansfield it is held, that, in the construction of policies, the "strictum jus or apex juris is not to be laid hold on; but they are to be construed largely for the benefit of trade." 2 It is said by Mr. Duer that the rule of liberal construction thus laid down has since been invariably followed. But the same writer adds, whether it has not in some cases been carried too far, so as to substitute a presumed intent for that expressed by the words of the policy, may perhaps be reasonably doubted. We should, however, have great doubts whether this rule of liberal construction has been invariably followed; it has certainly been modified and restrained in recent cases, by a disposition to treat marks: "When a deed is worded in clear and precise terms, when its meaning is evident, and leads to no absurd conclusion, there can be no reason for refusing to admit the meaning which such deed naturally presents. To go elsewhere in search of conjectures, in order to restrict or extend it, is but an attempt to elude it. If this dangerous method be once admitted, there will be no deed which it will not render useless." 1 See the language of Lord Ellenborough (Note 8), in Robertson v. French, 4 East, 135. See also Truman v. Loder, 11 Ad. & E. 600, and the remarks of Kent, J., in Goix v. Low, 1 Johns. Cas. 341; Mumford v. Hallett, 1 Johns. 430. Relly v. Royal Ex. Ass. Co., 1 Burr. 2 349. these contracts like all other contracts, in such a way as shall do equal justice to all interested. In the passage above quoted, the phrases" for the benefit of trade," and "of the insured," are used as though they were convertible terms, or as if the interests of trade required that, in the construction of policies of insurance, the insured should always be protected against the insurers. A much juster view prevails, we think, at present. It is seen that, if the insured should be protected against nice and technical 1 Graves & Scriber v. Marine Ins. Co., 2 Caines, 339; Richards v. Marine Ins. Co., 3 Johns. 307. In this case the action was on the policy of insurance on goods "laden or to be laden on board the schooner Beaver, &c., from Nevitas, in the island of Cuba, to New York, beginning the adventure, &c., from and immediately following the loading thereof on board of the said vessel at Nevitas in Cuba." The vessel sailed from New York with a cargo of flour, lard, &c. She arrived at Nevitas, but was permitted to sell only a small part of her cargo, and she sailed again from Nevitas for Jamaica with the principal part of the outward cargo on board, and while proceeding to that place was lost by perils of the sea. Held, that the policy did not attach to the outward cargo which continued on board the Nevitas, and was lost, and that the insured could only recover back the premium he had paid. The court affirms the case of Graves & Scriber v. Marine Ins. Co. In Hood v. Manhattan Fire Ins. Co., 1 Kern. 532, Parker, J., remarked: "Although it is said that policies of insurance are to be construed liberally for the insured, yet where the words are not ambiguous, and the expression of the intent of the parties is full, I know of no reason why they should be excepted from the general rules of law applicable to the construction of all contracts." And Lord Ellenborough, in Robertson v. French, 4 East, 130, 135, is still more explicit. He says: "In the course of the argument it seems to have been assumed that some peculiar rules of construction apply to the terms of a policy of assurance which are not equally applicable to the terms of other instruments, and in all other cases; it is, therefore, proper to state,.upon this head, that the same rule of construction which applies to all other instruments, applies equally to this instrument of a policy of insurance, namely, that it is to 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 special and peculiar sense." 2 Pars. Contr. (5th ed.) 357; Merrill v. Boylston F. & M. Ins. Co., 3 Allen, 247; Jordan et al. v. Warren Ins. Co., 1 Story, 342; Aquilar v. Rodgers, 7 T. R. 421; Mumford v. Hallett, 1 Johns. 433; Graves v. Boston Ins. Co., 2 Cranch, 419; Grant v. Paxton, 1 Taunt. 463; Honnick v. Phoenix Ins. Co., 22 Mo. 82. defences on the part of the insurers, the insurers should be protected against opening the words used, to such an extent as to hold them to obligations and liabilities, which were not contemplated by the parties when the bargain was made, and are not included within any just and impartial construction of the words in which it was expressed. One of the rules of construction has been, we think, pressed quite too far in favor of the insured; it is, that every contract shall be construed contra proferentem. The reason of the rule is, that he who proffers a contract writes it as he pleases, and uses such words as he thinks sufficient to express his purpose. If then they are insufficient for this purpose, it is his fault. And if they are open to the charge of ambiguity, he who receives the writing has a right to understand it in any of the senses in which it may be fairly and reasonably understood.1 We have always thought this rule useful only in cases to which the reason of it was strictly applicable; as when one party wrote from his own mind the whole contract, and the other party had 1 "It is to be noted," says Lord Bacon, "that this rule is the last to be resorted to, and is never to be relied upon but where all other rules of exposition of words fail; and if any other come in place, this giveth place. And that is a point worthy to be observed generally in the rules of the law, that when they encounter and cross one another in any case, it be understood which the law holdeth worthier, and to be preferred, and it is in this particular very notable to consider, that this being a rule of some strictness and rigor, doth not as it were its office, but in absence of other rules which are of more equity and humanity." Bacon's Max. Reg. 3. See also Love v. Pares, 13 East, 80; Doe v. Dodd, 5 B. & Ad. 689; Adams v. Warner, 23 Vt. 411. There are good reasons for saying that the rule of contra proferentem would apply to this extent, that where either party proposes and inserts especial phrases or provisions, and these are found to be ambiguous, and they must be construed either for or against the proposer, he must be satisfied with the construction which is unfavorable to him, because it is his own fault that the words he used did not express his purpose and intention more plainly. See Blackett v. Royal Ex. Ass. Co., 2 Cromp. & Jerv. 244, 251, 2 Tyr. 266; Audley v. Duff, 2 B. & D. 111; Donnell v. Columbian Ins. Co., 2 Sumner, 366, 381; Palmer v. Warren Ins. Co., 1 Story, 360, 364; Louisville Mar. & F. Ins. Co. v. Bland, 9 Dana, 143, 151; Ætna Ins. Co. v. Jackson, 16 B. Mon. 242; Grant v. Lexington F., L., & M. Ins. Co., 5 Ind. 23; Western Ins. Co. v. Cropper, 32 Penn. St. 351. See also Shep. Touchst. 100; Earl of Cardigan v. Armitage, 2 B. & C. 207; Bullen v. Denning, 5 B. & C. 847, 850, 851. It is to be noticed that most of these cases apply the rule contra proferentem in regard to exceptions. Such is the case in 2 Cromp. & J. nothing to do but to receive or reject it. Almost the very opposite of this takes place usually when a policy of insurance is written. When the blanks are to be filled with a description of the ship, or other property on the voyage, or the risks, or the liberties and permissions required by the insured, he usually states them to the insurer orally or in writing, in the words which he wishes to be used.1 If the insurer objects, a negotiation may ensue; and the words finally adopted, are the result of an agreement.2 It is difficult to see how these words can be regarded as any more the words of the insurer than of the assured, or that one party should be required to suffer the consequences of ambiguity, on the ground that it is his fault, any more than the other party. It is true that the eminent judges who have pressed this rule against the insurers, have in some measure confined it to what are called exceptions; and these, we shall hereafter see, are words 1 See per Marshall, C. J., in Kentucky & Louisville Mut. Ins. Co. v. Southard, 8 B. Mon. 638: "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." In De Longuemere v. Tradesmen's Ins. Co., 2 Hall, 609 and 610, where Jones, C. J., remarks: "Both the survey and the report are ordinarily the acts of the agents of the insurers, and the statements they contain are the results of the inspection and inquiry of those agents, and not the representations of the assured. His statements are made in his application for insurance, but upon these the insurers, where the premises are accessible to their own surveyor, seldom act." But this must be confined to contracts made under that usage, and to the part of the contract which is affected by it, as is in fact admitted in the same case by Oakley, J. See Id. 629. See remarks of Walworth, Chanc., in Alston v. Mechanics' Mut. Ins. Co., 4 Hill, 340, 341. 66 Whetten, 1 Hall, 174, relied on by Mr. Duer in support of his statement that, as a contract of indemnity to the assured, the policy is to be liberally construed in his favor," &c., is reversed by the Court of Errors. 8 Wend. 160. The case of Tierney v. Etherington, at Guildhall, 5th March, 1743, relied on by Duer, and on which Lord Mansfield based his decision in Relly v. Royal Ex. Ass. Co., 1 Burr. 341, and of which the reported extracts are not full, would seem to be stronger in its obiter dicta than its decisions. Thus it is said by Lee, C. J.: "It is certain that, in construction of policies, the strictum jus or apex juris is not to be laid hold on; but they are to be construed largely for the benefit of trade, and for the insured." And what the case really decides is comprised in this: "When the end is insured, the usual means of attaining it are not meant to be excluded." The agreement was: "That, upon the arrival of the ship at Gibraltar, the goods might be unloaded and reshipped in one or more British ship or ships for The decision in the case of Dow v. England or Holland," &c. It appeared, which qualify or limit previous permissions or engagements.. There may be some reason for regarding these as suggested by the insurers, and as inserted for their protection; but even these, like the other written words, are the result of negotiation and arrangement. Judge Story, who in one case laid down the rule of contra proferentem, in another case speaks of it as "a mere technical rule of construction." 1 Upon the whole, we are convinced that the true rule of construction, and we think we may add, the present practice of courts, both of England and this country, is to do equal justice to both parties, without favor to either. THE cases are very numerous in which the intention of the parties is referred to as determining the construction.2 in evidence, that when the ship came to Gibraltar, the goods were unloaded, and put into a store-ship (which it was proved was always considered as a warehouse), and that there was then no British ship there. And this appeared to be the usual method of unloading and reshipping in that place, viz.: "That when there is no British ship there, then the goods are kept in store-ships." Here the facts were these, that a usual custom was allowed to form a portion of the contract. This is all that was decided, and the language of the learned Chief Justice seems to us to be much broader, and to go far beyond the requirements of the case or the actual decision. The case in 1 Story, 360, is one of exceptions also. And so is that of Yeaton v. Fry, 5 Cranch, 335. Neither does Mr. Marshall's statement (1 Marsh. Ins. 211) seem justified by that case, that "the words of the above clause" And from The case decides merely that, where it was customary to store goods in a certain way, they are covered by the policy while so stored. 1 Palmer v. Warren Ins. Co., 1 Story C. C. 360. The true meaning, the actual intention of the parties, is the controlling principle from which all the special rules of interpretation flow, and to which they are all subsidiary and subordinate. Maryland Ins. Co. v. Bossiere, 9 G. & Johns. 121; Arn. Ins. 64; per Story, J., in Schooner Reeside, 2 Sumn. 569; opinion of Lewis, J., in Joix v. Low, 1 John. Cas. 347. All contracts are to be construed according to the intent of the contracting parties, so as to give complete effect to such intent, if it may be done consistent with the rules |