N. Y. Ins. Co. v. Thomas. sequent in date was to have no effect at all on the present policy. This is the amount of the printed stipulation, and whether a policy be printed or written, the construction upon it must be the same, as in both cases the contract is of equal validity. If there be any apparent contradiction in a contract, it is the business of the courts to endeavor to reconcile the whole instrument; and the language which is clear and ex[4] plicit, must always control that which is obscure *or equivocal. But I do not perceive any contradiction between the written and printed stipulation. By the former the plaintiffs were to return fifteen per cent in case an insurance had been effected in Europe. The expression "had been effected" is perfectly consistent with the other expression, "provided any other insurance prior in date has been made," &c. and if there were any uncertainty in the one expression, it is wholly done away by the peremptory and decisive provisions in the printed stipulation. If the written clause be, therefore, taken in connection with the subsequent printed clauses as it ought to be, since they are but connected parts of the same contract, it cannot be understood to refer to a subsequent insurance. There is, at most, but a redundancy in the expressions.(a)(b) (a) Quoties in verbis nulla est ambiguitas, ibi nulla expositio contra verba fienda est. (Wing. Max. p. 24.) In the absence of ambiguity, no exposition shall be made which is opposed to the express words of the instrument. (See Bro. Max. 266.) (b) Upon the construction of policies of insurance, Lord Ellenborough, remarks, in the case of Robertson v. French, (4 East, 135,) “that the greater part of the printed language of them being invariable and uniform has acquired from use and practice a known and definite meaning, and that the words superadded in writing (subject indeed always to be governed in point of construction by the language and terms with which they are accompanied) are entitled nevertheless, if there should be any reasonable doubt upon the sense and meaning of the whole, to have a greater effect, attributed to them than to the printed words, inasmuch as the written words are the immediate language and terms selected by the parties themselves for the expression of their meaning, and the printed words are a general formula adapted equally to their case, and that of all other contracting parties upon similar occasions and subjects." N Y. Ins. Co. v. Thomas. 2. The next point is, whether the parol proof be admissible to explain the contract, and if it be, what is the effect, in the present case, of such proof. I know no rule better established, than that parol evidence shall not be admitted to disannul or substantially vary or extend a written agreement. The admission of such testimony would be mischievous and inconvenient. Parol evidence is to be received in the case of an ambiguitas latens to ascertain the identity of a person or thing, but before the parol evidence is to be received in such case the latent ambiguity must be made out and shown to the court.(c) In the present instance, there is no ambiguity. The language of the contract, throughout, is consistent and explicit. This general rule of law has been particularly and emphatically applied to policies. (Skinn. 54.) And except in the special instance of explanations resulting from the usage of trade, they have never been allowed to be contradicted by parol agreements. Emerigon observes: "Il est permis de déroger aux clauses imprimées, et on est censé y déroger par cela seul que les clauses ectrites à la main y sont contraires." (1 Emerig. 34. Pardessus, n. 792.) In commenting upon this principle, Mr. Duer remarks that, "The reasons suggested by Lord Ellenborough for attributing a superior efficacy to the written words, command our immediate assent. The repugnant printed words, as contained in a general formula, not prepared with any reference to the immediate contract, may well have been retained from inadvertence. The written are the terms selected for the special occasion by the parties themselves, and were necessarily inserted from design. The first, may not express the intentions of the parties, the latter, certainly do. (1 Duer on Ins 166. See also 1 Phillips on Ins. 54. Robinson v. Tobin, 1 Starkie, 336.) (c) Ambiguitas verborum latens verificatione suppletur; nam quod ex facto oritur ambiguum verificatione facti tollitur. (Bac. Max., reg. 25.) Latent ambiguity may be supplied by evidence; for an ambiguity which arises by proof of an extrinsic fact may, in the same manner, be removed The cases in support of this maxim are too numerous to require citation. They will be found collected in Cowen and Hill's Notes to 1 Phill. Ev. 1360, et seq. 1 Phill. Ev. ed 1843, p. 531, et seq. 1 Greenleaf's Ev. ed. 1842, § 297, et seq. 3 Stark. Ev. 1021. 1 Sugden on Vendors, ed. 1836, p. 183. Wigram Ext. Ev. 78, et seq. Bro. Max. 260 263, et seq. See also for the Civil Law on this subject, Dig. lib. 50, t. 17, 1. 67; id. lib. 45, t. 1, l. 8 ; id. lib. 22, t. 1. 1. 4. N. Y. Ins. Co. v. Thomas. Without, therefore, giving any opinion, what would [*5] be the effect of the parol proof, if admissible, we think *it was inadmissible. So, on both points raised, the court are of opinion with the plaintiffs, and that the verdict. ought to stand. Judgment for the plaintiffs. (d)(e) (d) [Old note.] See Park, (6th edit.) 1. 4. 546. Marsh. (2d edit.) 345. 706. (e) Upon the principle that where the language of a policy of insurance is consistent and explicit, the understanding and intention of the parties, is not admissible, to change its signification. (See I Phil. on Ins. 52, and cases cited.) Mr. Duer, in commenting upon this rule, observes: "The policy, from the time of its execution, with the exception of the cases to be hereafter stated, in which extrinsic proof may be received, constitutes the sole evidence of the agreement of the parties; nor, subject to these exceptions, can any previous letters or communications between them, nor even the written application or agreement, be sued to vary or control its interpretation. (New-York Ins. Co. v. Thomas, 3 Johns. Cases, 1. New-York Gas Light Co. v. Mech. F. Ins. 2 Hall, 108. Phenix F. Ins. Co. v. Gurnee, 1 Paige, 278. Higginson v. Dall, 13 Mass. 99. Dow v. Whetten, 8 Wend, 166. Ewer v. Wash. Ins. Co., 16 Pick, 502. Van Ness v. The United States, 4 Peters, 286. Opinion of Story, J.) If, from mistake, the policy has been so framed as not to correspond with the previous agreement of the parties, the error may be corrected, and the policy reformed in a court of equity; but this equitable power of remodelling a written agreement, is wisely exercised with extreme caution, and only upon the clearest evidence. To justify the remedial action of the court, the existence of the mistake, if positively denied by the insurer, must be established by proof morally irresistible. The prudent merchant will examine his policy as soon as he receives it, for the purpose of ascertaining whether it correspond with his previous agreement, and if a mistake be discovered, will demand from the insurer its immediate correction. If he delay the examination until a loss occur, the delay may be construed as evidence of his assent to the contract as expressed in the policy, and may thus deprive him of the relief to which his title otherwise could not have been disputed. "The power of a court of equity to receive in evidence the previous agreement of the parties, is not limited to the cases in which the agreement is made the basis of a reformation of the policy by an alteration of its terms. When a policy is intended to embrace the special provisions of an agreement but is so ambiguously expressed as to involve the meaning of the 'parties in serious doubt, the terms of the agreement may, with propriety, be invoked, to aid and fix the interpretation. Thus, should a policy contain a clause, that the insurance shall be void, if a policy on the premises insured is made in England, the words "is made" are so ambiguous that not only without violence, but in perfect consistency with their popular use, they may be limited to an insurance prior in date, or be construed to embrace any insurance, N. Y. Ins. Co. v. Thomas. whether prior or subsequent, made in England, before the determination of the risks; and should it appear from the previous agreement that, by the intention of the parties, they were to be understood in their most extensive sense, it is this construction that a court of equity would hold itself bound to adopt. Whether the same evidence might not, with entire propriety, be admitted for the same purpose in a court of law, is a question that will hereafter be considered. It is only, however, when the policy is on its face am. biguous, that the previous agreement is permitted to control the interpretation. When the terms of the policy suggest in themselves a plain and reasonable construction, if that construction be not directly at variance with the words of the agreement, it must be adopted. The agreement may explain an ambiguity or correct a mistake, but the policy must exhibit the ambiguity, or the agreement demonstrate the mistake. (1 Duer on Ins. 71-73.) Messrs Cowen and Hill state the rule, and comment upon it as follows: "Parol evidence is inadmissible to prove a usage varying the application of plain terms in a policy, when there is no sort of ambiguity; (see Mumford v. Hallett, 1 John. Rep. 439, per Livingston, J. ;) or to add conditions or limita. tions which the terms used plainly exclude. (Rankin v. The American Ins. Co. 1 Hall's Rep. N. Y. C. P. 619. See also Ph. Ev. note 957, p. 1415, et seq) "Nor is any other parol evidence admissible, in such cases, to change the effect of the policy; (Vandervoort v. Columbian Ins. Co. 2 Cain. Rep. 155 ;) as, to show a mistake; (Cherriot v. Barker, 2 John Rep 346; or to prove a cotemporaneous agreement, evincing a different intent from what is expressed. (New York Ins. Co. v. Thomas, 3 John. Cas. 1. See also Pitkin v. Brainerd, 5 Conn. Rep. 541.) If in a policy of insurance of a vessel, the vessel be warranted neutral, parol evidence will not be admitted to prove that such warranty was not intended. (Lewis v. Thatcher, 15 Mass. Rep. 431.) In an action on a valued policy of insurance, it is not competent for the underwriters to give parol evidence that the value of the subject insured is different from that stated in the policy. (Marine Ins. Co. of Alexandria v. Hodgson, 6 Crauch, 206) In an action upon a policy of insurance, drawn in the usual forin, except that at the bottom was a memorandum in these words, "This risk is against a total loss only, warranted safe 12 April last, in lat. 29° long. 65o 10';" it was proposed to show, on the part of the defendant, that it was expressly agreed at the time of subscribing the policy, that the same should be considered as insuring against a total loss in the natural sense of the words only, so that if any part of the property insured should be saved, the underwriters should not be liable;-But the evidence was held inadmissible. (Murray v. Hatch, 6 Mass. Rep. 465.") Cowen & Hill's Notes to 1 Phill. Ev. p. 1463. Cruger v. Armstrong. CRUGER against ARMSTRONG AND BARNWALL. Bank checks are considered as inland bills of exchange, and may be declared on as such, or they may be given in evidence under the money counts. The holder of such a check or bill is, prima facie, the rightful owner, and is not bound to prove a consideration, unless circumstances of suspicion appear. The holder of a check is bound to use due diligence in obtaining the money of the bank, and must present it and demand payment, within a reasonable time. Where a check was dated the 12th April, 1796, which was never presented to the bank for payment, but a suit was brought, about four years after against the drawer, it was held, that the plaintiff was not entitled to re cover. The declaration con THIS was an action of assumpsit. tained three counts; 1. For money had and received to the use of the plaintiff; 2. For money paid, &c.; 3. On an insimul computassent. Plea, non assumpsit. The cause was tried at the circuit, in New York, the 23d December, 1800, before Mr. Justice Lewis. The counsel for the plaintiff produced and proved a check drawn by the defendants, in the handwriting of Armstrong, as follows; "Cashier of the bank of New-York, pay to W. & J. C. or bearer, twenty-five hundred dollars. New York, the 12th April, 1796. (Signed,) Armstrong & Barnwall." The counsel for the defendants objected to the check, as evidence under the counts in the declaration : that it was an inland bill, and ought to have been declared on as such, and insisted that, at all events, the plaintiff ought to be called on to prove, that payment of the check had been demanded at the bank. It was proved, that on the day of the date of this check, checks of the defendants on the same bank, to the amount of 3500 dollars had been paid, and that, on the close of the bank business on that day, there remained 400 dollars to the credit of the defendants; that the defendants were merchants of credit, and were in the daily practice of paying money into, and drawing it out of the bank, until the dissolu |