This suit is on a policy of insurance.
Plaintiff alleged that a certain quantity of corn had been damaged at sea, sixty per cent., caused by violent winds, high seas, and straining of the vessel on which it was shipped; and that defendant had insured against this damage, by the policy of insurance which he made a part of his petition.
He prayed judgment against the company for the amount for which the corn was insured.
Defendant, by exception, asked the Court to dismiss the suit, on the the ground that the allegations of plaintiff’s petition disclosed no cause -of action.
The Judge sustained the exception and dismissed the suit.
From this judgment, plaintiff has appealed.
The question presented is, can the plaintiff recover on the allegations in his petitions ?
T-n the printed memorandum of the policy, there is this clause: “That 'the assured warranted that grain of any kind is free from any average, unless it happen by stranding or collision, and amount to twenty per cent. ”
The part of the policy in writing is, “that this insurance is declared to •be on corn, subject to twenty per cent average, subject to the war clause.”
The war clause is, that the insurer would not be answerable for any expense, damage or loss, which might occur, in consequence of seizure -or detention, for trade in articles contraband of war.
The plaintiff contends, in order to sustain his suit, that the written must control the printed expression in the policy; and we should so rule,
• did the printed so conflict with the written clauses, as to render them irreconcilable with each other. See 6 New Series, p. 55.
Bach stipulation, whether written or printed, should have effect, unless the giving effect to one would destroy another; and then the printed must yield to the written stipulation.
The written part of the policy is not inconsistent with the printed part.
The company, by the clause in the memorandum, proposed to insure grain against damages that might happen from stranding or collision, should the average damage amount to twenty per cent.
This proposition was accepted by the plaintiff, subject to the twenty per cent, average and the war clause.
There was no proposition made or assented to, by either plaintiff or defendant, that insurance on the grain should be for any other peril of the sea than stranding or collision.
The policy, by being annexed to the petition, controls the allegations therein, and sets forth that the insurance was for different causes of damage than for those for which plaintiff seeks to recover.
Judgment affirmed, with costs on plaintiff.