and $1,500 on stock therein," if renewed by a receipt which simply states that the policy is renewed for $2,500, is thus changed, so that the distribution of the risk ceases, and it becomes a policy for $2,500 upon all the property.'

ง

A policy upon "property," kept in a certain building, covers articles kept for use as well as for sale; but a policy upon "merchandise " only covers property kept for sale, and excludes that kept for use." Thus, a policy upon "a jeweler's stock in trade," was held not to cover blankets, purchased with the consent of the insurer, to protect the store from a fire burning in an adjoining building. And even where certain classes of property are incident to the business insured, yet, if the policy specifically designates the classes of property covered, all other is excluded. Thus, where a policy was issued "on stock in trade, consisting of corn, seed, hay, straw, fixtures and utensils in business," no other kind of property, except that designated, is covered by the policy, even though it was in fact a part of the stock in trade at the time when the policy was issued. So, where a policy was issued upon "jewelry and clothing, being stock in trade," it was held that it did not cover musical or surgical instruments, guns, pistols, books, etc., although they were a part of the assured's stock in trade, because the classes of property insured were specifically designated, and no other classes could be included.' So a policy upon a "stock of hair, wrought, raw, and in process, as a retail store," does not extend to fancy goods made of other materials, although they are such as are usually kept in a retail hair store. Thus it will be seen that the question whether a particular class of property is covered by a policy not naming it, will depend, first, upon whether it is impliedly excluded by the language of the policy; and second, whether it belongs to the class insured, either as a natural incident thereof, or by usage. If the property insured is

1 Driggs v. Albany Ins. Co., 10 Barb. (N. Y.) 440.

'Burgess v. Alliance Ins. Co., 10 Allen (Mass.) 221. In Kent v. London, etc., Ins. Co., 26 Ind. 294, the term "merchandise," in a policy of insurance against loss, etc., by fire, on grain and other merchandise, in each of two warehouses, which were kept by the assured, who were grain merchants, for the purpose of receiving and storing grain, was held not to include a platform scale, bedded in the floor of one of the warehouses, or belting, or a corn-sheller, or a beam-scale, which things had been dispensed with in the business, but which had not been offered for sale; or tools, implements, or articles of property purchased for use in the warehouses, as being necessary or convenient in the business, and which were used as occasion required.

'Welles v. Boston Ins. Co., 6 Pick. (Mass.) 182.

specifically designated, all other is excluded, even though usually of the same tribe of that insured. If, however, the policy is general in its description of the property, it may be shown that a certain species of property is usually included in the same class, and so covered by the policy.'

So, if the classification is evidently intended to enlarge, rather than to restrict the risk, as if the word including is used instead of the words "consisting of," the classification does not exclude other articles not enumerated. Thus, where a policy covered "a stock of ship timber, including planks, futtocks, knees, locust standards, staves blocks, falls, clamps, screws, augers and tools contained in the yards and buildings, etc.;" it was held that locust capstans, partly prepared, were embraced in the risk. The naming of particular articles, as covered by the policy, does not exclude all others, when such is not the obvious intent, and natural construction of the language used. When the policy covers a "stock in trade consisting of" none other than articles belonging in one or the other of the classes named are covered, because the obvious intent of the parties is to particularly define the risk; but when the policy covers a "stock in trade, including, etc.," the obvious intent of the parties is to enlarge the scope of the risk beyond what would otherwise be included therein.

Under a policy which insures a certain sum on all or either" of certain buildings, the insured are liable for the full amount of a loss, not exceeding the sum insured, occasioned by the burning of either or any of the buildings.'

Silver forks, spoons, knives, etc., are not covered by a policy insuring "silver plate."*

When a policy covers a particular business, or class of property, as

1In Crosby v. Franklin Ins. Co., 5 Gray (Mass.) 504, a doctrine apparently in conflict with this, was held. In that case, the policy was for a certain sum "on their stock of watches, watch trimmings, etc.," and the court held that the word stock included the general stock, and was not limited to watches, watch trimmings and material. The doctrine of this case is in conflict with the case cited supra from the 120th Mass. ; and is also in conflict with the current of authority. The word "stock," when employed generally, as a "jeweler's stock," a "stock of groceries," "druggist's stock," etc., includes all articles usually kept as a part thereof; but, when the word "stock" is defined by the insurer, and limited to a certain class of goods, as was done in this case, there is no rule of law that will permit a different construction to be placed thereon. In such a case, the court, by permitting evidence as to what is "usually" a part of such stocks, permits an addition to be made to the contract, which is in contravention of that actually made by the parties. Medina v. Builders' Ins. Co., ante; Rafel v. Nashville, etc., Ins. Co., ante; Joel v. Harvey, ante.

2 Webb v. National F. Ins. Co., 2 Sandf. (N. Y.) 497. Com. v. Hide and Leather Ins. Co., 112 Mass. 136. Hanover F. Ins. Co. v. Mannasson, 29 Mich. 316.

"a starch manufactory," it covers all fixtures, machinery, implements, tools, etc., necessary or incident to the business. A policy covering an "engine and machinery for the manufacture of tin ware," covers all the implements used in connection with the machinery, as a part thereof, even though not attached to it. Thus, under a such a policy, it was held that it covered 600 dies, used to ive form to various articles manufactured, although a single pair of t ese dies only could be used at one time, and when not in use, they were taken out and kept upon shelves. A policy upon the stock of a mechanic includes all the tools and implements used by him in his business. Thus, a policy upon the assured's "stock in trade as a baker, and upon household furniture contained in a frame dwelling and bake house," was held to cover all the implements necessary for carrying in the business, as pans, sieves, bread troughs, etc. So a policy upon "articles used in packing hogs, cattle, etc.," was held to cover coal used upon the premises, necessary to be used in the process, and reasonable in quantity, for the business done.* A policy upon "stock in trade, being mostly chamber furniture in sets,

1 Peoria, etc., Ins. Co., v. Lewis, 18 Ill. 553. In Liebenstein v. Etna Ins. Co., 45 Ill. 303, insurance was effected on "chair lumber and such other stock as is usually used in a chair manufactory, contained in the chair factory situated on Superior street, Chicago." The establishment consisted of a main building, and also an engine-house standing ten feet in the rear of the main building, and connected with it by a platform, and by the belting passing from the engine to the machinery in the main building. A fire caught in the engine-house, and consumed a portion of the chair material which had been placed therein. Held, that the material in the engine-house fell within the description of the property insured as "contained in the chair factory." In Mark v. Etna Ins. Co., 29 Ind. 390, an open or running policy stipulated not to cover a loss accruing from any disaster by explosion or otherwise," which occurrence might be known to the applicant, the public, or the company, at the time of such application being made, whether such property was known to be involved thereby or not, without such contingency is expressly provided for in writing on this policy," was held not to cover the loss of a package of money sent by the assured by express, and without his knowledge placed on a steamboat, which, at the time of the application, had exploded its boiler, and sunk, the explosion being known to the public and the insured. In Home Ins. Co. v. Favorite, 46 Ill. 263, the policy covered goods held in trust or on commission, and it was held that this included goods held on storage, but it was also held that whether a policy "on hogs and cattle, salt, cooperage, boxes, and articles used in packing the same," covered coal on the insured premises, was a question of fact for the jury, and depended for its solution upon the question whether it was necessary or incident to the business of packing. Insurance was effected upon property “contained in the two-story frame building occupied by the assured as a chair manufactory, situated on Superior street." The factory comprised a main building of two stories, and a two-story building ten feet distant, used for an engine and dry-house. The main building was called the chair factory, where the work was carried on. Held, that the insurance covered only the property in the main building. Liebenstein v. Etna Ins. Co., 45 Ill. 303.

263.

Leavey v. Central, etc., Ins. Co., 111 Mass. 540.

Moadinger v. Mechanics', etc., Ins. Co., 2 Hall (N. Y.) 490.

Phoenix Ins. Co. v. Favorite et al., 49 Ill. 259; Home Ins. Co. v. Same, 49 id.

and other articles usually kept by furniture dealers," was held to cover varnish and oils necessary for use in such business, to the extent that they are usually kept by such dealers, as well as all other articles usually kept by persons engaged in that business.' So a policy covering "blacksmith and carriage maker's stock, manufactured and in process. of manufacture," covers raw or unmanufactured stock used in the business."

Intention of parties must be gathered from the policy.

SEC. 56. When the policy is specific as to the subject-matter of the risk, it cannot be extended by implication, nor is evidence admissible to show that the parties intended to have it cover matters not specified. Thus, where a policy covered "oil mill occupied for crushing linseed and grinding dye wood, £1,000; on fixed machinery and millwright works, including all the standing and growing gear therein, £1,000; one enginehouse adjoining the mill, £200; one steam engine therein, £300; one logwood warehouse in which chopping dyewood is performed, £200; one warehouse on the other side of the mill, £300." The assured claimed that the policy covered the machinery and gear in the logwood house, and offered to show that the parties intended that the policy should so cover, but the court held that, as the policy was specific as to the subject-matter of the risk, it could not be construed to cover any risk not named, and that the intention of the parties must be gathered from the policy, and could not be shown by evidence aliunde. In an Illinois case, the policy covered chair lumber, contained "in the two-story frame building occupied by the insured as a chair manufactory, situated on the north side of Superior street;" there was an engine-house near this building, connected with it by a platform, and used as a part of the plaintiff's factory, and a considerable quantity of chair lumber was stored therein. The plaintiff insisted that it was the intention of the parties to embrace the chair lumber therein, in the risk, and that the policy should be construed as covering it, but the court held that the intention of the insurers must be gathered from the policy, and that, as the risk therein was restricted to the lumber in the two-story frame building, the insurer was only liable for the lumber lost therein."

1

2

Haley v. Dorchester, etc., Ins. Co., 12 Gray (Mass.) 545.

Spratley v. Hartford Ins. Co., 1 Dil. U. S. (C. C.) 392.

Hare v. Barstow, 8 Jur. 928.

Liebenstein v. Etna Ins. Co., 45 Ill. 303.

See Annapolis R. R. Co. v. Baltimore F. Ins. Co., 32 Md. 37; Lycoming Ins. Co. v. Updegraff, 40 Penn. St. 311.

A policy "on stock in trade," consisting of corn, seed, hay, straw, fixtures and utensils in business, does not cover hops and matting, although they were in fact a part of the stock in trade when the insurance was made, and were usually kept by persons engaged in that business.1

Neither a watch, nor other articles of jewelry, although used for personal adornment, are comprehended under, or covered by a policy upon household furniture or wearing apparel.'

Construction of policies.

SEC. 57. The legal maxim benignae faciende sunt interpretationes propter implicitatem laicorum ut res magis valeat quam pereat; et verba intentione, non e contra, debent inserire, is as applicable in the interpretation of policies of insurance as of other written instruments, and the courts are inclined to construe them liberally, and so as to carry out and effectuate the real, true intention of the parties thereto."

Every part of the instrument will be made operative and effective, if possible, but, if it is evident that one part of the instrument expresses the real intent of the parties, and another part of it is inconsistent therewith, the part which is inconsistent with the intention of the parties must be rejected and yield to that part of it which will effectuate their real purpose. Thus, where the written and printed portions of a policy conflict, effect is given to the written portion of it, because, being incorporated into the contract at the time when it was made, it is presumed that it expresses the actual agreement made, and that the parties intended thereby to override that portion of the contract expressed in type, which is inconsistent therewith. The maxim, quando res non valit ut ago, valeat quantum valere potest applies, and the courts will look to the intent of the parties and effectuate it in some form, if possible, and, if necessary to do so, will reject that which is inconsistent. But, if there is no real inconsistency, and

'Joel v. Harvey, 5 W. R. 488.

'Clary v. Protection Ins. Co., ante; 2 Johns. (N. Y.) 261.

'Riggin v. Patapsco Ins. Co., 7 H. & J. (Md.) 279; Crauisllat v. Bull, 8 Yeates (Penn.) 375.

Nicoll v. American Ins. Co., 3 W. & M. (U. S.) 529.

Maugher v. Holyoke, etc., Ins. Co., 1 Holmes (U. S. C. C.) 289. In Bowman v. Pacific Ins. Co., 27 Mo. 15, the policy contained stipulations that "if there shall be kept or stored therein any articles denominated hazardous or extra hazardous, or included in the memorandum of special rates, so long as the same shall be appropriated, these presents shall cease;" also: "No greater amount than 25 lbs. of gunpowder shall be placed at any time in the building described in this policy." Insured kept from four to six pounds of powder in his store. Gunpowder was included in the memorandum of special rates. It was held that