The question is whether the term "merchandise ” can, in any case, be used to describe property not intended for sale. We think it can. The word not only may be, but often is, used as the synonym of goods, wares, and commodities. It is so defined in Webster’s dictionary. If used in an insurance policy to describe the goods of a merchant, it might, perhaps, be very properly limited to goods intended for sale. If used for the same purpose to desorille the goods of a painter, we think it might be held to cover property intended for use and not for sale.
In Kent v. Insurance Company, 26 Ind. 294 (89 Am. Dec. 463), the court lield that the meaning of the term "merchandise,” when used in a contract, must depend in a great measure upon the context; that it has no fixed legal or technical signification ; that when applied to the goods of a merchant, it might include such articles only as are kept for sale; but if applied to the goods of one not a merchant, it might include articles not intended for sale. "A policy of insurance, like any other contract, is to be read in the light of the circumstances that surround it; and is to be interpreted most strongly against the company whose contract it is.” (19 Am. St. Rep. 596, and note.)
In the present case, the plaintiff was not a merchant. He was a house and fresco painter. He kept nothing for sale except as he first used it and then charged for it in connection with his labor. And yet the defendant compauy issued to him an insurance policy on his paints, oils, varnish, brushes, and "such other merchandise,” in the second story of a building on Miller street in Auburn. And the evidence shows that the agent of the company first went and examined the property and then wrote the policy himself. Can there be any doubt as to the *528sense in which the agent employed the phrase," and such other merchandise ?” We think not. We think he used it to describe such other articles of convenience or necessity as were used by the plaintiff in his business, and had not already been specially mentioned ; and that he did not use it in the narrow and technical sense contended for in defense. Such in effect was the decision of the presiding justice before whom the case was tried in the court below without the aid of a jury, and we think his decision was correct.
Complaint is made that oral evidence was admitted to show the intention of the parties, and to explain the terms of a written instrument, where there was no ambiguity. Some of the testimony received would bear that interpretation. But we do not think it was admittted or used for such a purpose. At any rate, the exceptions do not state that it was admitted or used for such a purpose. And when a case is tried by the court without the aid of a jury, and a party wishes to take exception to the illegal introduction, or the improper use, of evidence, he must take care to have the purpose for which the. evidence was admitted or used, distinctly stated in the record ; for illegality must not be presumed, it must be made to appear. Most of the evidence objected to was admissible to enable the court to read the contract in the light of the surrounding circumstances, and to explain the circumstances under which the policy was issued, and to identify and locate the property insured, and there is nothing in the record to lead us to believe that any portion of it was used for an illegal purpose. We feel confident that it was not. Exceptions overruled.
Peters, C. J., Virgin, Emery, Foster and Haskell, JJ., concurred.