This ancient instrument has remained unchanged, in most of its peculiar phraseology, for a long period, and is everywhere substantially the same; and a long and varied litigation has affixed a definite legal meaning to its forms and phrases. Still it varies in different States, and from time to time in every State; neither law nor usage limiting the power of the parties to make what bargain they please.
The consideration for the promise of insurance is the premium paid by the insured. And although the contract is subscribed only by the insurers, it binds both parties; the insured as to the premium, as well as the insurers as to their undertaking. (h) There is, however, this difference between them; the insured has always his option whether he will put his property under the risks insured against. If he does not do so in any measure, the bargain is wholly void; (i) if he does so altogether, it passes wholly into effect; if he does so partially, the * bargain takes effect only upon that part, and the premium, as we shall see in a subsequent section, is proportionately reduced. The stipulations of the insured are only conditions, which he must comply with to bring the insurers under their obligations. But they can bring no action against him if he chooses to annul the bargain by putting no property at risk.
Nothing is assumed to be a part of the policy which may have been added to it, hence a paper is not made a part of a policy by merely being folded up with it (j) or even wafered to it. (k) But whatever is written either upon the face or the margin, (l) or the back of a policy, (m) or on the same sheet, (n) or even on a wholly separate paper, (o) becomes a part of the policy if referred to as such in the body of the instrument, or signed as such by the party upon whom it imposes an obligation, and in some cases this rule has received a wide construction. Things said or written by either party, or by both, while negotiating for the policy, whatever may be their importance, form no part of the policy, unless written therein, or specifically referred to. (p)
(g) Hall v. People's Ins. Co. 6 Gray, 185; Liberty Hall Association v. Housatonic Ins. Co. 7 Gray, 261.
(gg) Walker v. Metropolitan Ins. Co. 66 Me. 871.
(h) Ins. Co. of Penn. v. Smith. 3 Whart. 529; Patapsco Ins. Co. v. Smith, 6 Harris & J. 166.
(i) Tyrie v. Fletcher, Cowp. 666; Taylor v. Lowell, 3 Mass. 381.