after making the foregoing statement,delivered the opinion of the court.

■ Did the court err in refusing to allow parol evidence to- be admitted to explain the meaning of the term “watchman’s clause”?

. Plaintiff in error does not claim that evidence of a usage or custom may be received to control or vary the positive stipulations of a written contract, or to contradict them, but its contention is that the phrase “watchman’s clause” is a trade term, which has a well-defined- and understood meaning by custom and usage in the insurance business, and that the courts in construing the policy must ascertain the meaning of that term in the insurance business in order to. arrive at the intention of the contracting parties. It is further claimed by the plaintiff in error, independent of the “question of trade, custom and usage” that the court erred in rejecting plaintiff’s offer to prove by parol that the clause “warranted at all times” and concluding with the words “this policy shall immediately cease and determine” is a stock clause placed on all insurance policies issued on the Pacific Coast, while the permission “to remain idle,” subject to the conditions of the “watchman’s clause,” was one peculiar to this risk, and only intended to be applied to manufacturing plants which were in operation at the time the policy was issued, and provided for a contingency that might thereafter arise. It further claims that the policy was ambiguous, not only from the language used in the policy, but also from the condition of the parties.

We are of opinion that the court did not err in excluding parol testimony as to the meaning of the term “watchman’s clause.” There were no words or phrases used therein which required any parol evidence in order to explain their meaning. The contract was in writing, and was, in its entirety, susceptible of a reasonable construction by the court. The rule is well settled that:

■Having “satisfied ourselves that the policy is susceptible of a reasonable construction on- its face, without the necessity of resorting to extrinsic aid, we have at the same time established that usage or .custom cannot be resorted to for that purpose.” The Insurance Companies v. Wright, 1 Wall. 456, 470 , 17 L. Ed. 505 .

*699 The decisions of the courts upon the questions in dispute between the respective parties have not been entirely uniform. In Barnard v. Kellogg, 10 Wall. 383, 390, 393 , 19 L. Ed. 987 , the court said that, while it would be hard to reconcile all the cases, “it may be safely said they do not differ so much in principle, as in the application of the rules of law. The proper office of a custom or usage in trade is to ascertain and explain the meaning and intention of the parties to a contract, whether written or in parol, which could not be done without the aid of this extrinsic evidence. It does not go beyond this, and is used as a mode of interpretation on the theory that the parties knew of its existence, and contracted with reference to it. It is often employed to explain words or phrases in a contract of doubtful signi-ficaron, or which may be understood in different senses, according to the subject-matter to which they are applied. But if it be inconsistent with the contract, or expressly or by necessary implication contradicts it, it cannot be received in evidence to affect it.” In the course of the opinion several cases were cited, and it was directly held that:

See, also, Lillard v. Kentucky D. & W. Co. (C. C. A.) 134 Fed. 168, 173 , and authorities there cited.

Even if it should be conceded that the term “watchman’s clause” should not be held to include the words after the last proviso requiring notice to the company and permission to remain idle to be indorsed upon the policy, it is difficult to see how the plaintiff in error could be benefited thereby. If oral testimony had been given to the effect that the watchman’s clause only referred to the keeping of watchmen on duty, this would not annul the latter provision; that would remain as an independent proviso, and would have to be construed as such. A written contract solemnly entered into and executed by the parties to it must bind the parties. Courts do not make contracts, but interpret and construe them whenever any question arises as to what are their terms and conditions. Petit v. German Ins. Co. (C. C.) 98 Fed. 800, 804 . The proviso “that if such property be idle or shut down for more than thirty days at any one time notice must be given this company and permission to remain idle for such time must be indorsed hereon or this policy shall immediately cease and determine,” must be construed — whether considered as a part of the watchman?s clause, or as an independent condition of the contract — according to the sense and meaning of the terms which the parties used. The language is clear and unambiguous, and must be taken in its plain, ordinary, and popular sense, and, so construed, it is fatal to the right of recovery by the plaintiff in error, as it is admitted by it that it was not complied with. It was within the power ol the defendant in error to insist upon such a provision, and it cannot be claimed that the terms thereof were unreasonable.

*700 In Imperial Fire Ins. Co. v. Coos County, 151 U. S. 452, 462 , 14 Sup. Ct. 379, 38 L. Ed. 231 , the court said:

In Delaware Ins. Co. of Philadelphia v. Greer, 120 Fed. 916, 921 , 57 C. C. A. 188 , 61 L. R. A. 137, the court said:

The court did not err in refusing to allow the plaintiff in error to introduce parol testimony to the effect that the defendant had knowledge or notice that the property insured was idle during the life of the first policy, or in rejecting the other offers as to the inquiries made by the company or its officers or agents as to the status of the property, for the avowed purpose of showing, or attempting to show, a waiver or forfeiture by the insurance companj'’ of the clause under consideration. The second policy was not a mere continuation of the first, although in its terms and conditions it was identical with the first, except as to dates. It was not in any manner dependent upon any acts or conduct of the parties under the first policy. The minds of the respective parties met, upon the issuance of the policy by the insurance company and the payment of the premium by the insured. The second policy then became a new, separate, and independent contract between the parties.

In Brady v. Northwestern Ins. Co., 11 Mich. 425, 444 , the court said:

To the same effect, see Hartford Fire Ins. Co. v. Walsh, 54 Ill. 164 , 5 Am. Rep. 115 ; 16 Am. & Eng. Ency. L. (2d Ed.) 868, and authorities there cited.

The second policy, as delivered and accepted, must therefore be presumed to express the entire contract between the parties. The rule is well settled that all parol negotiations, understandings, and agreements are merged in the written contract, and are not to be controlled, modified, or changed by parol evidence in relation. thereto. Union Nat. Bank v. German Ins. Co., 71 Fed. 473, 476 , 18 C. C. A. 203 , and authorities there cited; Blake v. Pine Mountain I. & C. Co., 76 Fed. 624, 654 , 22 C. C. A. 430 , and authorities there cited; New York Life Ins. Co. v. McMaster, 87 Fed. 63, 70 , et seq., 30 C. C. A. 532 , and authorities there cited; McMaster v. New York Life Ins. Co., 99 Fed. 856, 863 , 40 C. C. A. 119 ; Northern Assurance Co. v. Grand View B. A., 101 Fed. 77, 83 , 41 C. C. A. 207 ; Id., 183 U. S. 308, 321 , 22 Sup. Ct. 133, 46 L. Ed. 213 .

No fraud or imposition was attempted to be shown, and it must be presumed that the plaintiff in error read and understood the plain and positive terms of its agreement in the policy, and well knew that its failure to comply with its promissory warranty would at once avoid the policy and relieve the defendant from liability. It also knew from the express provisions of the policy how to obtain a modification of this warranty. West End Co. v. American Fire Ins. Co. (C. C.) 74 Fed. 114, 117 .

It follows from the views we have expressed that proof that the property was idle and vacant at the lime the policy was issued would be of no avail to the insured. It would not amount to a forfeiture of the clause, or a waiver thereof by the defendant in error. There was no offer to prove that the defendant in error, or its authorized agents, ever agreed to waive the clause under consideration, or that it, or they, gave permission to the plaintiff in error to leave it idle and unoccupied except upon compliance with the terms of the policy. The plaintiff in error could not have been misled or deceived by anv information or knowledge which the defendant in error had as to the previous condition of the property. Under the terms of the policy, if the property remained idle “for more than thirty days at any one time,” the policy ceased and terminated, it became void and of no binding force and effect, unless the insured gave notice to the company and obtained permission to leave it idle for a longer time by having such time indorsed on the policy. England v. Westchester Fire Ins. Co., 81 Wis. 583 , 51 N. W. 954 , 29 Am. St. Rep. 917 ; Bart *702 lett v. The British America A. Co., 35 Wash. 525 , 77 Pac. 812 ; Brehm Lumber Co. v. Svea Ins. Co. (Wash.) 79 Pac. 35 , 68 L. R. A. 109; Ranspach v. Teutonia Fire Ins. Co. (Mich.) 67 N. W. 967 . Terms of warranty are conditions precedent to the right of recovery and must always, if not waived or forfeited, be complied with by the insured. American Credit I. Co. v. Carrollton F. M. Co., 95 Fed. 111, 112 , 36 C. C. A. 671 ; McKenzie v. Scottish Ins. Co. (Cal. Sup.) 44 Pac. 922, 924 .

The premium was paid by the insured upon the receipt of the policy. The failure to return it before this action was brought does not amount to a waiver of the right of defendant in error to forfeit the policy for a noncompliance of the insured with the positive terms of the policy.

In United States Life Ins. Co. v. Smith, 92 Fed. 503, 508 , 34 C. C. A. 506, 512 , the court said:

See Georgia Home Ins. Co. v. Rosenfield, 95 Fed. 358, 362 , 37 C. C. A. 96 , et seq., and authorities there cited.

“A waiver cannot be inferred from the insurer’s mere silence or nonaction. * ⅜ ⅜ It may wait until claim is made under the policy, and then allege the forfeiture in denial thereof, or in defense of a suit commenced therefor.” 16 Am. & Eng. Ency. L. (2d Ed.) 939, and authorities there cited.

The views we havé expressed are conclusive of the questions involved in this case, but there is one other question that ought perhaps to be noticed. The plaintiff in error alleged in its complaint that “plaintiff kept a constant night and day watchman on duty” at the premises insured, which averment was denied in the answer of the deféndant in error. The plaintiff in error, assuming1 it to be essential on its part to prove its averment in this respect, produced testimony to establish the fact, and, failing to obtain sufficient evidence on this point, upon appeal claims that the burden of such proof rested upon the defendant in error. This contention cannot be sustained. The general rule is that “a party who, with1 the acquiescence of his adversary, assumes the burden of proof of an issue, will be held to that position on appeal.” 21 Ency. Pl. & Pr. 668, and authorities there cited. The provision in question was made a warranty, and the burden of proof in regard thereto rested upon the plaintiff in error to prove a compliance upon its part with this provision. Imperial Fire Ins. Co. v. Coos County, supra; American Credit I. Co. v. Wood, 73 Fed. 81, 84 , 9 C. C. A: 264; McLoon v. Commercial Ins. Co., 100 Mass. 472 , 97 Am. Dec. 116 , 1 Am. Rep. 129 ; Van Wickle v. Insurance Co., *703 97 N.Y. 350, 353 ; Craig v. United States Ins. Co., 1 Pet. (C. C.) 410, Fed. Cas. No. 3,340. There was no proof whatever to show that the watchmen were on duty before June 1st. One watchman testified that he commenced work June 1, 1903, and quit when the mill burned. It was stipulated that the testimony of Branscombe (president of the plaintiff in error) taken in another case might be, and was, admitted, but upon examination it shows that the inquiry there made of Brans-combe as to the employment of watchmen was specifically limited to commence August 1st, which was the date of the policy in the case in which he gave his testimony. The hiatos in the testimony is claimed by counsel not to have been noticed by any one at the trial. We do not understand counsel to contend that the proof of the presence of the watchmen for 30 days prior to the time of the fire would be a compliance with the warranty. The law is otherwise.

In Cronin v. Fire Ass’n of Philadelphia (Mich.) 82 N. W. 45 , the court said:

Our conclusion is that the court did not err in instructing the jury to find a verdict in favor of the defendant

The judgment of the Circuit Court is affirmed.