
    Rufus Parks et al. versus The General Interest Assurance Company.
    Insurance was effected by the plaintiff upon goods in his store and <f ly mm neld in trust/* he representing that he was in the habit of receiving goods for sale and making advances upon them, and that he wished to obtain insurance on such goods to secure himself against loss by fire, as the consignors might not be able to repay the advances. Construing the policy and representation together, it was held, that the insurance attached to goods received by the plaintiff as consignee, but that it covered only his interest in them, and not that of the consignors.
    How far, independently of the consent of parties, a representation can be taken into consideration, in construing a policy of insurance, quaere.
    
    This was an action on a policy of insurance, by which the defendants undertook to insure the sum of 10,000 dollars on merchandise in the store of the plaintiffs, and by them held in trust, for the term of a year, against any loss or damage by fire.
    Upon the case stated it appeared, that the plaintiffs, being commission merchants, represented to the defendants, at the time of procuring the policy, that they were in the habit of receiving goods for sale ; that upon some of such goods they had already advanced money, and upon others they had not then made any advances ; that the goods on hand were constantly changing, by reason of sales and new consignments, and that they wished to obtain a policy of insurance for such goods, to secure themselves against loss by fire, as the consignors might not be able to repay the advances. On the night of the 7th of April, 1825, certain goods, of the value of 8,618 dollars, 30 cents, owned by several persons, were in the plaintiff’s store, and were then, without the fault of the plaintiffs, consumed by fire. The whole of this property was consigned to the plaintiffs, to be sold on account and risk of the respective consignors. Part of it was in the possession of the plaintiffs before, and the residue was received after, the execution of the policy; and advances had been made to some of the consignors before, to others, after that tíme ; and to others, no advances had been made. The plaintiffs held no goods in trust other than this consigned property. The plaintiffs had received no orders to effect insurance upon this property, unless the receipt of such orders may be inferred because of the communication hereafter mentioned, between the plaintiffs and Curtis, one of the c nsignors ; nor did the plaintiffs charge either of the consignors with any premium for insurance. The communication above referred to was as follows. A day or two after the execution of the policy, one of the plaintiffs, in a conversation relative to insuring the property, told him he had this policy, calling it a standing policy, on the property, and showed it to Curtis, who read it, and said that it was very well,—that he was going to speak to him on the subject of the insurance before ; — the plaintiff stated to Curtis that he should not be charged with a premium, —Curtis replied, it was a trifling charge and of no consequence. Goods of the value of 5,362 dollars, belonging to Curtis, and upon which the plaintiffs had advanced 3,715 dollars, were destroyed by the fire. The defendants paid the plaintiffs 5,150 dollars, 64 cents, which covered the interest which the plaintiffs themselves had in all the property destroyed. •
    The question which the parties submitted to the decision of the Court was, could a recovery be had in this action, under the foregoing statement, for a loss which all or either of the consignors sustained by the destruction of their goods.
    
      Gorham and Warner, for the plaintiffs,
    cited Phillips on Ins. 58, et seq., 70 ; 10 East, 536, 539 ; 4 Dallas, 463 ; 1 Bos. & Pul. 316 ; 12 Mass. R. 80 ; 1 Campb. 538 ; 13 East, 24 ; 2 Maule & Selw. 485 ; 3 Johns. Cas. 281 ; 6 Esp. R. 11.
    
      Solder, for the defendants,
    cited 17 Mass. R. 613 ; 2 Cranch, 419 ; 11 Johns. R. 302 ; 2 Caines’s R. 203 ; 13 Mass. R. 267.
   Wilde J.

delivered the opinion of the Court. [Aftet stating some of the facts.] The case depends on the true construction of the policy. By the terms of it, t covers only such goods as the plaintiffs should, during the term, hold in trust. But strictly speaking, they held no goods in trust, either at the time of effecting the policy, or since. But the contract is to receive such a construction, as will best effectuate the intention of the contracting parties ; and we can have no doubt, from the facts agreed, that the policy was intended to cover goods which the plaintiffs held as consignees, they being commission merchants, and, in the ordinary course of business, having no other goods to which the terms of the policy could by any possibility apply.

The next question to be considered is, whether the policy must be understood to apply to goods consigned generally, or is to be limited to the goods on which the plaintiffs had made or might make advances. The solution of this question depends upon the construction to be given to the contract, taken in connexion with the representation of the assured at the time of their application for insurance. If this representation is to be taken into view, in the construction of the contract, as explaining the intention of the parties, there can be no reasonable doubt, we think, that the policy must be considered as referring only to those consignments on which advances were made ; otherwise the indemnity expected from the policy might partly fail. Suppose goods to the amount of 20,000 dollars had been consumed, on the half of which advances had been made, to the amount of 8,000 ; — by the plaintiffs’ construction of the contract, in such case they would be entitled to receive only 5,000 dollars on the goods on which they had made advances, and the other 5,000 would go to the consignors in whose goods they had no interest. This would be inconsistent with the object of the policy, and the views and expectation of the plaintiffs, as explained by their representation. If however the policy covers only the goods on which advances were made, the question would then be, whether by a fair construction of the policy, the plaintiffs are entitled to recover the value of the goods, or only to the extent of their own interest therein ; and we can discern nothing in the representation made, which manifests the intention of securing any interest but their own.

On the plaintiffs’ construction, it would depend on a conmgency whether they should be indemnified or not. For if their advances had amounted to 10,000 dollars, and goods of the value of 20,000 had been consumed, the plaintiffs would recover a moiety only to their own use, and the other moiety would enure to the benefit of the consignors. This we think could not have been the intention of the plaintiffs in procuring the policy, nor could they be so understood by the underwriters. The plaintiffs requested an indemnity for themselves, and not for the consignors. The conversation they had with Curtis, soon after obtaining the policy, may seem to indicate a different understanding of the contract. This however seems doubtful. The plaintiffs had made large advances on Curtis’s consignment, and might perhaps refer to the policy, as security to the extent of those advances ; but whether such was their intention or not, it is very clear that the conversation with Curtis cannot be taken into consideration in the construction of the policy.

It has been further argued, that as events have happened, the plaintiffs will be indemnified, whichever construction may be adopted. This is true ; but in seeking for the intent of the parties, we must not regard the events which have •happened since the contract, but the circumstances existing at the time of its inception. The plaintiffs could not then know what amount of consignments they might receive during the .year, and they must be considered as having their own security in view, rather than that of strangers. Besides, the language made use of in the representation is clear and unambiguous, and evinces beyond a doubt, that their object was to secure their advances, and not to insure the goods lor the benefit of the consignors.

How far a representation is to be taken into consideration m the construction of a policy, is a question not submitted to our consideration. Generally, no doubt, the terms of the policy are to be taken as the evidence of the contract ; and if they are explicit, all proposals made, or conversation had, before the subscription, inconsistent therewith, are to be considered as waived, according to a well known rule ot construction of written contracts.

But a condition, or an implied undertaking, not expressed in the policy, may be superseded by a verbal or written statement. Or, if the representation is referred to in the policy, it may be taken into consideration, for the purpose of ascertaining the intention of the parties. So, also, if the terms of the policy be doubtful, containing a latent ambiguity, it may be explained by the representation, or by parol testimony. It might perhaps have been made a question, whether the contract in this" case might not be explained, according to these principles of construction, and the rules of evidence. The policy is on goods “ held in trust.” Now the plaintiffs had in their possession two descriptions of goods, held in trust; on the one of which they had a lien ; and nothing in the policy ascertains to which of these two descriptions it was intended to apply.

But we give no opinion on this question, not considering it as submitted to our determination. By the agreement of the parties, the representation is made a part of the case, and is to be considered in connexion with the terms of the policy, for the purpose of ascertaining the true meaning and construe tion of the contract.

In this view of the case, we are of opinion that the policy must be limited to the interest which the plaintiffs had in the goods at the time of the loss, and that they cannot recover for the benefit of any of the consignors.

Plaintiffs nonsuit 
      
       See 2 Phil. Ins. 12, 482; Astor v. Union Ins. Co. 7 Cowen, 202.
     