9 La. 258 | La. | 1836
delivered the opinion of the court.
This is an action to recover of the defendants, as underwriters, the value of.seven bales of cotton, belonging to the plaintiff, which he avers were shipped by his agent, at Alexandria, on Red River, to John Linton,■ and were covered by an open policy of insurance, procured by Linton, for whom it might concern, of the defendants. The loss by perils of the river is not contested. In the policy it is declared, that this insurance is on cotton in bales, &c., &c., shipped, or to be shipped, to the consignment of John Linton.
The defence consists, 1st. Of a denial that the plaintiff’s cotton was covered by the policy, and 2d. An allegation that if the policy ever attached, all claim for the loss alleged to
The first question thus presented by the pleadings is, whether the cotton alleged to have been lost, was contemplated by the contract, and covered by the policy, or in other words, was it shipped to the consignment of John Linton.
The bill of lading shows that the -captain of the steamboat Paul Clifford, took on board seven bales of cotton, shipped by James Norment, which he engages to deliver to John Linton, or his assigns, and the plaintiff, 'in his petition, alleges that Norment was his agent. This appears to the court, on the face of it, to be a consignment. It authorised Linton, on paying the freight, to receive the cotton, and he would have a lien on the cotton for advance of freight and other charges. Admitting that Linton had no authority to sell, or make any other disposition of the property, we do not consider it of the essence of a consignment that the consignee should have such authority. It is enough if he had a right to receive it, and of that the bill of lading is sufficient evidence. If the bill of lading had been accompanied by a letter, instructing Linton on receiving the cotton to deliver it over to another person, or to store it, or to forward it to another market, it would nevertheless have been a consignment. The letter from Norment to Linton, requesting him to turn over the cotton to another house, is not inconsistent with the original consignment. It is true, Norment may have been in error in supposing that Linton was the general factor of the plaintiff, and consequently wrote to him, not revoking the consignment, but- directing in what manner he was to dispose of the cotton. Norment, who made the shipment in the absence, and without any positive orders from the owner, testifies that he would not have shipped the
The only remaining question is, whether Linton is shown to have done any act by which the defendants have been released from their obligation to Ballard. It appears that he presented the bill of lading of the plaintiff’s cotton to the president of the insurance company, but with an intimation that probably it was intended for Reynolds, Byrne & Co. Upon this suggestion, the president struck the name of the plaintiff out of the statement handed for settlement. Other lots of cotton, lost at the same time, and shipped in the same bill of lading, were paid for, and the policy was filled by Linton without reference to these seven bales. 'Mr. Thompson testifies at the same time, that Mr. Linton did not intend to abandon any rights which he might have acquired under the policy. It is not pretended that, at the time those seven bales were lost, the policy had been filled by other property to the value which the defendants engaged to cover, nor that losses have been paid to the full amount insured. Ballard having a right to sue, in his own name, under a policy procured by Linton for account of whom it may concern, Linton must be considered in relation to him as an agent. If he had can-celled the policy, he would have rendered himself liable for the loss, and the payment of the loss to him, would have been a good and valid discharge. It does not appear that the policy was cancelled, and even as relates to Linton himself, it is by no meaus clear that he would not still have a right to maintain an action on it. In the case of Russell
Upon the whole, we think the plaintiff entitled to recover the value of the seven bales of cotton, deducting the amount , of premium at one half per centum; but as the value is not shown by any evidence in the record, the case must be remanded. ' -
It is, therefore, ordered, adjudged and,decreed, that the judgment of the District Court be reversed -and annulled at the cost of the appellees, and it is further ordered that the case be remanded for a new trial.