jury in finding such intent. Nor is there any doubt but that these owners had an insurable interest when the loss occurred, for they were the absolute owners of the cotton then as well as when the insurance was effected. Have they then adopted this policy? As was said by the supreme court in a case where a similar policy was under consideration: "The adoption of the policy need not be in any particular form; any thing which clearly evinces such purpose is sufficient." Hooper v. Robinson, 98 U. S. 537. Adoption is a question of fact, and all we need say on this point is that we think there is enough in this record to have authorized a court to submit that question to the finding of a jury. But counsel for the appellant contended that by the terms of this policy the obligation of the insurer to make good the loss insured against is expressly limited to the interest of the assured. The argument in support of this position is ingenious and is founded upon what counsel insists is the true grammatical construction of that part of the printed portion of the policy above quoted. According to this construction they contend that the terms, "except as herein provided," refer to the "loss or damage," in the previous part of the sentence, and that their office is simply to exclude therefrom such loss as by subsequent conditions the insurer was exempted from paying, and that they in nowise modify the preceding terms which limit the amount to be paid to a sum "not exceeding the interest of the insured in the property." But this reading would, as it seems to us, be in conflict with the intention of the parties as expressed in the written part of the instrument; and we have already said that this part, read in connection with the surrounding circumstances, manifests an intention to insure more than the mere interest of the insured carrier. There is ample authority as well as good sense for the position that where the written and printed portions of a policy conflict, effect must be given to the former, because being incorporated into the contract at the time it was made, it is presumed that it expresses the actual agreement of the parties and that they intended thereby to override that portion of the contract expressed in type which is inconsistent therewith. 1 Wood Ins. (2d ed.), § 58. But it is not necessary in this case to go to the extent of adopting the law as thus stated, for we think the terms except as herein provided," in the connection in which they stand, are quite susceptible of being read as referring to the written as well as to the subsequent printed portions, and as modifying the immediately preceding terms limiting the extent of liability. So read they remove all conflict, and effectuate the intention of the parties as expressed in the written part; and this construction would seem to be sanctioned by the rule laid down of old by Lord HALE that: "Judges ought to be curious and subtle to invent reasons and means to make acts effectual according to the just intent of the parties; they will not, therefore, cavil about the propriety of words when the intent of the parties appears, but will rather apply the words to fulfill the intent than destroy the intent by reason of the insufficiency of the words." Crossing v. Scudmore, 2 Lev. 9. Courts are no more inclined now, than they were in the days of Lord HALE, to draw fine distinctions, or be nice about the grammatical construction of sentences, whether in insurance contracts or others, in order to sustain a defense in which there is no merit. We regard this policy as an insurance upon specific goods stored in a specified place, under which the interest of the owner, if properly asserted, can be protected. If, therefore, a jury, or a court acting as a jury, should find in their favor the facts which we have said must, under the proof in this record, be left to such finding, the action can be maintained; and from this it follows that the court below was right in rejecting the defendant's first and seventh propositions or prayers. We are also further of opinion that under the circumstances disclosed in the record, the plaintiff was in no default in furnishing the preliminary proofs of loss, and that there was evidence in the case which afforded sufficient means of determining the amount, if any, the plaintiff was entitled to recover. There was consequently no error in the rejection of the defendant's second and tenth prayers. Second. The second main question is that of contribution under the seventh condition of the policy, and the defense founded thereon is clearly meritorious. This seventh condition is the latent modification that has fallen under our notice, of what has been termed the "American clause," and so much of it as need be stated is as follows: "In case of any other insurance upon the property hereby insured, whether made prior or subsequent to the date of this policy, the assured shall be entitled to recover of this company no greater proportion of the loss sustained than the sum hereby insured bears to the whole amount insured thereon; and it is hereby declared and agreed that in case of the assured holding any other policy in this or any other company on the property insured subject to the conditions of average this policy shall be subject to average in like manner. Any floating policy attaching in whole or in part to the property covered by this policy shall, as between the assured and this company, be considered as contributing insurance for the full amount of such policy, and liable as such to pay pro rata any loss, total or partial, on the property hereby insured.” The latter paragraph seems to have been framed to meet precisely such a case as the present. As we read it the stipulation is plain that any floating policy attaching to the property, whether affected by the assured, or the owner, or any other party interested, shall, as between the insured and insurer under this policy, be brought under the rule of contribution. In this case the owners had such floating policies which purported to cover this cotton, and whether they attached to it depends, so far as the parties in this suit are concerned, upon the construction they are to receive by this court on this appeal. We do not agree in opinion with the learned judge of the superior Court that it was not proper for him to determine the construction of these policies, because the companies who issued them are not parties to this suit. They are documents produced in evidence in this case, and the rights of the parties to this suit are to be determined by the construction placed upon them in the first instance by the trial court, and finally on appeal by this court, no matter how they may be construed by other courts, or in other suits between other parties. It is our duty, therefore, to consider these policies and ascertain their meaning and construction, and in doing this we have encountered very little difficulty. They are thirteen in number and were issued by four different companies. There are some features common to all of them, and it may be said generally that they all insure cotton against loss by fire from any place of purchase in any southern State, by any route to the mills of the owners in the New England States. They also contain stipulations accepting a risk of fire on shore for a certain number of days before shipment. As illustrating this we take the policy of the Phoenix Insurance Company, insuring the Whittenton Manufacturing Company of Taunton, Mass., where the provision is " also to cover the risk of fire on shore for ten days prior to shipment.' A literal reading of this stipulation would make it not only ineffectual but nonsensical, for cotton destroyed by fire cannot afterward be shipped. The evident meaning of it, however, is that if the cotton is burned while on shore and awaiting shipment, and the loss occurs within ten days after the insurance upon it is effected, then the policy covers the loss; but if the fire occurs after the lapse of such ten days, then the risk does not attach. In this particular case the insurance was from Norfolk to Taunton, and the cotton had been for some time stored in the freight shed awaiting shipment. The insurance upon it was effected on the seventh of November, and the fire occurred on the fourteenth of the same month, less than ten days thereafter, and it seems to us too plain for argument that the loss is covered by this policy. No difficulty whatever is presented by any of the other policies, unless it be the one by which the Delaware Mutual Safety Insurance Company insured the Massachusetts cotton mills, and in which is found the provision "to attach as soon as water." But this, we think, by a fair construction of the policy, refers to the immediately preceding provision which makes the policy cover coal from southern coal ports and places to Boston or Salem, and not to the provision which expressly insures cotton purchased or to be purchased and shipped from any ports and places in the United States, except Boston," by any route to the mills at 'Lowell.'" Such being our construction of these policies, we entertain no doubt but that they are contributing insurances within the meaning of the seventh condition of the policy in suit. In our opinion, therefore, there was error in granting the plaintiff's eighth prayer which deny the defendant's right to such contribution, as well as in rejecting the defendant's fourth prayer, in which it asserts that right. Being of opinion that this is a case in which there must be such contribution, provided the plaintiff shall eventually succeed in maintaining the action and in recovering, we approve the rejection of the defendant's eighth prayer which throws the whole loss upon the marine policies. We are also further of opinion that the court below committed an error in admitting in evidence the contract referred to in the first exception. It is an agreement executed after this suit was brought, and to which the defendant is not a party. It seems to us to be clearly res inter alios and inadmissible. Judgment reversed and new trial awarded. INDEX. ABATEMENT AND SURVIVAL. Penalty.] Public Statutes, chapter 99, sections 1 and 2, in giving an action of tort ACCOUNTING. 1. Testamentary trustees-guardians.] To constitute a testamentary 2. Commissions.] Commissions properly allowable should be determined upon 3. Evidence.] On the examination, questions were put to H. which, although ACTION. 1. Consolidation.] It is error to consolidate separate bills brought by different 2. Without authority of assignee — ratification.] If a suit is begun by a benefit. ADMIRALTY. See NAVIGATION, 154. 1. Milk-standard.] The provision of the statute in regard to the adultera- 2. Negativing exception in statute.] In a complaint alleging that the VOL. IX.-- 115 |