9 Johns. 32 | N.Y. Sup. Ct. | 1812
There is no trace of actual fraud in this case; and it is a question of constructive fraud merely, on the ground that Captain Clark did not use due diligence in communicating intelligence of the loss to his partners in Nem-York. It does not appear that Captain Clark had directed insurance, or was apprized of any intention of the plaintiffs, to cause insurance to be made. As we cannot, therefore, perceive any interested motive in him to withhold the intelligence, the case did not seem to require that extreme diligence that would have been due, had he known that application for insurance was pending. We ought, then, to exact from him, as part owner, that ordinary diligence only which the nature of such mercantile concerns, and common prudence and discretion would demand. Any thing like gross negligence, in communicating with his partners in such a crisis, would look like design, and justify the inference of fraud: but the circumstances of the case are proof of ordinary diligence. The captain was much injured by the stranding of the vessel, and was, for some time, disabled from bestowing attention to his business. He, however, made instant and anxious inquiries about the means of communicating with ]Slem-York,hy the mail, and was informed that no opportunity would occur, through the next post-office, which was ten miles off, under a week from that time. He had then good reason to believe he would himself arrive in Nem-York, with the cargo saved, before a letter would reach Nem-York by the mail. He had laden his cargo on board of other vessels, by Saturday next after the shipwreck, and embarked for Nem-York, and a fair wind would have carried him there in one day. He advanced about ten miles the same day, and was then detained by contrary winds, so as not to be able to arrive in Nem-York in eleven or twelve days.
Judgment for the plaintiffs.
