129 Mass. 185 | Mass. | 1880
Upon the facts reported, the court is of opinion that Machado had an insurable interest in the vessel at the time the policies attached, even if we assume that they took effect on July 5, 1876, the day of their date. On that day, the plaintiffs, as agents for Machado, made an oral agreement in New York with the owners of the vessel for her purchase for the sum of $11,000, payable on delivery of a proper bill of sale; and, having previously ascertained that the defendants would insure her, they gave directions to have the insurance closed. The policies were written on that day; the precise time of their delivery does not appear. The oral contract to purchase was reduced to writing and signed by the plaintiffs and the owners on July 7; and a portion of the purchase money was paid on that day. Possession was taken by Machado, the balance due was paid, and a bill of sale was duly executed to a third person in trust for Machado, who was a foreigner.
It is conceded by the defendants that Machado was the only person whose interest was insured, as appears by the declarations and the policies. But they contend that he had no insurable interest on July 5, for at that time he had only an oral contract for the purchase of the vessel; and that such a contract, being
But the oral contract to purchase was not void or illegal by reason of the statute of frauds. Indeed, the statute presupposes an existing lawful contract; it affects the remedy only as between the parties, and not the validity of the contract itself; and where the contract has actually been performed, even as between the parties themselves, it stands unaffected by the statute. It is therefore to be “ treated as a valid subsisting contract when it comes in question between other parties for purposes other than a recovery upon it.” Townsend v. Hargraves, 118 Mass. 325, 336. Cahill v. Bigelow, 18 Pick. 369. Beal v. Brown, 13 Allen, 114. Norton v. Simonds, 124 Mass. 19. See also Stone v. Dennison, 13 Pick. 1. Machado had under his oral agreement an interest in the vessel, and would have suffered a loss by her injury or destruction. Bastern Railroad v. Relief Ins. Co. 98 Mass. 420. This interest he could have assigned for a valuable consideration, and, if he had assigned it, all the rights afterwards perfected in him would have enured to the benefit of his assignee. Norton v. Simonds, ubi supra. The case of Stockdale v. Dunlop, 6 M. & W. 224, relied upon by the defendants, does not sustain their position, for reasons which are stated in Townsend v. Hargraves, ubi supra.
The several policies of the defendants insure the ship on a voyage “ at and from New York, via Bangor, to St. Michael, Western Islands.” She left New York on September 3, and arrived at Bangor on September 13, where she took in additional cargo; from that port she sailed on October 27, and was lost on her passage to St. Michael. The defendants offered evidence of unreasonable delay at Bangor, where the ship remained for forty-three days, contending that, under the general denial of the answer, they could show that she did not sail on the voyage insured; in other words, that there was a deviation.
Any departure from the route named in the policy to a port or place not named, and any delay in prosecuting the voyage, without necessity or just cause, or any delay at a port named in the policy, for the prosecution of business not connected with the business of the voyage, or any unreasonable delay at such port ir prosecuting the business of the voyage, is a deviation. Whether
The declaration in each of these cases alleges that the defend ant insured the ship, “ on a voyage at and from New York, via Bangor, to St. Michael, Western Islands; and while proceeding on said voyage said ship was wrecked, and totally lost by the perils and dangers of the seas.” These are necessary allegations, which the plaintiff is bound to establish in order to recover, namely, that the ship was insured on that voyage, and while prosecuting it she was lost by the perils of the sea. The answers admit that the defendants insured the ship for that voyage, but they contain a general denial of each and every other allegation in the declaration. In this state of the pleadings, the plaintiffs introduced evidence to prove that the ship was prosecuting the voyage named in the policy when she was lost; that she sailed from New York to Bangor, and from Bangor to St. Michael, and was totally lost between those ports.
We are of opinion that the defendants should have been allowed to rebut and control that evidence, which was a necessary part of the plaintiff’s case, by showing that the ship did not sail on the voyage insured, that there was a deviation from that voyage by unreasonable delay at Bangor; and evidence of deviation, by departing from the route, or by unreasonable delay in prosecuting it, is appropriate to prove that the voyage actually prosecuted was not the voyage insured. It certainly would have been competent to prove, under the general denial, and in reply to the plaintiffs’ evidence, that the ship went to Portland, and not to Bangor; and it is equally competent to prove that she deviated from her route by unreasonable delay at Bangor. The
In this aspect of the case, we express no opinion upon the other questions raised in the report, and argued at the bar. They all relate to the admission of evidence, and to prayers for instructions, in regard to the unreasonable delay of the ship at New York. Many of them may not arise at a new trial, and, by the terms of the report, if any of the rulings made were erroneous, the verdicts are to be set aside. As we decide that Machado had an insurable interest in the ship when the policies attached, and that it was open to the defendants to show that there was unreasonable delay at Bangor, the cases must stand for trial upon the questions of delay at New York and at Bangor.
Verdicts set aside.
On this point the plaintiffs cited Tidmarsh v. Washington Ins. Co. 4 Mason, 439, 441; 2 Greenl. Ev. §§ 395, 399, 403; Chit. Pl. (11th Am. ed ) 515 a.
