8 Bosw. 448 | The Superior Court of New York City | 1861
The testimony of James Bunten, Jr., given on the trial, was to the effect that at ór about the 1st of October, 1855, he applied to the agent of the defendants, in Quebec, for insurance on a cargo of lumber in process of being laden on board the barque Azoff. That the agent gave him a tariff of rates of premium varying Avith the days named therein for the sailing of vessels, doivn to the tenth of November, and said that the premium of insurance would be according to
If such an agreement as this was made by the agent of the defendants, and he had authority to make such an agreement, I perceive no ground upon which the defendants can refuse to perform it.
That this agreement was made was testified in unqualified terms, and the agreement is one which disposed of every material particular, and enabled the parties to say, the moment the lading was completed, to what amount and upon what terms the plaintiff was insured, and, even while the day of sailing remained undetermined, the scale of prices furnished the certain and precise test of the amount of premium so soon as the day of actual sailing should be known. Here are all the elements of a valid, binding agreement, certainty in its provisions, consideration and mutual assent.
That this agreement was made is also testified by McLirnont, the defendants’ witness, their agent in the transaction. He says the insurance was agreed to, that the only condition was that the vessel should sail on or before the tenth of November following. That the rate of premium was not absolutely fixed, but that it was to be in accord
Here is the testimony of the plaintiff’s agent and of the defendants’ agent and witness, and to the same purport, in respect to this agreement; and to this testimony there is no contradiction.
To my mind it establishes a valid binding agreement, under which the defendants became bound to execute a policy, insuring the plaintiff to the amount of his invoice cost with the ten per cent addition, and by which the plaintiff was bound to pay to them such premium as according to the tariff of rates above referred to was chargeable according to the time when the vessel should sail, provided, however, the agent of the defendants had authority to take a risk for them upon those terms.
The only apparent discrepancy between these witnesses in relation to these interviews is, that Bunten, the plaintiff’s agent and witness says, that McLimont, the defendants’ agent, gave him the tariff of rates, while McLimont says he did not exhibit to Bunten the list or tariff of rates of premium, but informed him what the rate of premium would be. This discrepancy is of little moment—it still leaves the important fact that the rates were communicated and agreed to, and. whether it was done orally or by showing the paper on which the tariff was written, is of no moment—it is a particular in respect to which either of those two witnesses might be mistaken, without weak-
How, that the defendants’ agent had authority to bind the defendants as insurers upon risks like that offered to him by the plaintiff, cannot be denied. The letter of authority under which he acted, dated Dec. 14th, 1854, after stating the commissions to be allowed to him, and the reliance of the defendants upon his caution and discretion in the risks he should take, declares as follows : “We agree to your taking risks for us to the following extent;” * * * “3d, upon cargoes of lumber, Quebec to Great Britain and continent of Europe, in good vessels ranking not lower than A. 2, and avoiding such new vessels as are on their first trip or slightly put together, not more than $5,000 by each, with a discretion of going as-far as $7,500, on such as you consider more than ordinarily desirable,” and, after mentioning other risks he might take, the letter adds, “We approve the tariff of rates you have presented us as applicable to the several classes of risks # * * reserving our right of making such modifications as we may deem necessary.”
It is not claimed that the risk taken by the agent upon the lumber for the Azoff was not a proper risk to be taken under this letter of authority; and if so, then the utmost that the defendants can claim is, that their agent must, in fixing the premium for the risks he took, conform to the tariff referred to in the letter, or to such modifications as the Company might afterwards make. Even this is
The agreement was that the rate of premium should be paid according to the tariff of premiums, which one witness says was exhibited or given to him, and the other says was verbally stated. And this tariff is stated by the defendants’ witness, and argued strenuously by the defendants’ Counsel, to have been the exhibit B contained in the case from which the rates in the case are transcribed. And this tariff was according to the last instructions of the Company.
In this connection, however, and in reference to the construction of the authority given McLimont, and as tending to show that it was never designed to regard the rates of premiums as entering into any limitation or condition of his authority to take risks, but only as matters
The result of these observations is according to the uncontradicted testimony of the witnesses, a distinct agreement, within the authority of the defendant’s agent, for the insurance of the plaintiff at a rate of premium wMch the company had actually approved, and dependent only, by the very terms of the agreement, on the day on which the Azoff should actually sail.
If the agent had suffered the matter to rest in that stage until the day of sailing was known, or if he had sent for a policy which was in terms like the agreement, valuing the property at invoice cost and ten per cent added thereto, and for the rate of premium referring to the tariff, no question would, I presume, have arisen between the parties.
But Bunten, when he originally applied for the insurance, expressed the expectation that the vessel would sail as soon as the 10th of October, and the hope that she would get off sooner even than that.
And McLimont unfortunately in writing for the policy
I think, therefore, that the plaintiff was entitled to the relief which he sought in his complaint, in every respect but one, the premium to be allowed to the Company was four per cent instead of three and one-half, and in that particular I think the findings of fact and conclusions of law inaccurate.
The view thus taken renders the exceptions taken by the defendants on the trial, of no importance. The testimony rejected, if indeed any testimony was rejected which could, in any aspect, be material, could not affect the result above stated, because I have assumed the authority of the defendants’ agent to be just what they claim and desired and attempted to prove it to be, and all the testimony rejected was offered with a view to that precise point, viz., McLimont’s authority; except, perhaps, the question when McLimont returned or made known to the Company the premium he had received on the risk, which the defendants’ Counsel insisted upon to rebut the presumption of laches. As no question of laches was raised on the trial, and the decision, neither at Special Term nor here, proceeds upon any such idea, the question was wholly immaterial, and in no other aspect could any delay of their own agent in accounting for the premium received, affect the plaintiff. As to the letters at one stage of the trial apparently rejected, they all appear to have been, in fact, read in evidence in some stage of the trial. But whether so or not, their bearing on the question, what was the rate of pre
As already suggested, the mistakes in the preparation of a policy in which the terms “ warranted to sail October 10tli, 1855,” were inserted, and the premium stated to be “three per cent,” and the subsequent error in collecting only three and one-half per cent, were committed by McLimont, the defendants! agent, and did not impair the obligation of the defendants to issue a policy according to the actual agreement.
That agreement bound them as insurers of the cargo of the vessel, which actually sailed October 15th, 1855, at the rate of premium fixed in the then existing tariff for a vessel sailing on any day between the 10th and 20th, viz., four per cent. It would have bound them, had she sailed on a later day before November 10th, the rate of premium being in such case greater according to such tariff"; but as she actually sailed, and was represented by Bunten to have sailed October 15th, 1855, that is the proper day to have been named in such policy as the day of sailing.
The defendants are, therefore, to be regarded as having insured the plaintiff to the amount of the invoice cost of the cargo, with ten per cent added thereto, (which was $4,510,) with a warranty that the vessel should sail October 15, 1855, and at a premium of four per cent.
The loss, as settled by the written stipulation of the parties, after deducting from the valuation the small sum received by the plaintiff for proceeds of the sale of a portion of the cargo saved from the wreck, was $4,317.22, for which the defendants are liable to the plaintiff; but as by reason of the mistake abovementioned there still remains due to the defendants, one-half of one per cent on the valuation for premium in part unpaid, that is to be allowed to them in abatement from the loss, that is to say, one-half of one per cent on $4,510= $22.55, which being
It is found that the proofs of loss and of the plaintiff’s interest, (admitted by stipulation to have been duly furnished,) were presented to the defendants on the third day of December, 1855, and the loss was payable thirty days thereafter. The sum due, therefore, bears interest from the 2d day of January, 1856, which interest, at the date of the judgment, December 19th, 1860, was $1,492.28, and this being added to the principal makes $5,786.95, which the plaintiff was entitled to recover with his costs.
In preparing the finding of facts and conclusions of law, the Counsel must have inadvertently overlooked the fact that four per cent was the premium for a vessel sailing on the 15th of October, and, also, that if the warranty was extended to ¡November 10th, the premium would be eight per cent, and on settling the finding, as inserted in the case, this was not observed by the Judge at Special Term. The effect, however, was only to give to the plaintiff, by computation, a greater sum than he was entitled to; in other respects, the rights and liabilities of the parties were rightly determined.
The judgment, if permitted to stand, must be corrected in some of its terms. The plaintiff has recovered too much. The reduction to the proper amount can probably be only made by his consent. The defendants will not be prejudiced by the reduction of the amount of the recovery.
This being an action which would have been formerly called a suit in equity, in which the ultimate and final relief to which the plaintiff is entitled, viz.: recovery of the amount of his loss, could be-awarded to him, it was hardly necessary that the form of executing a policy should be required, but no objection is raised here by the appellants, on that ground. Becovery of the amount due is the substantial relief which satisfies all of the plaintiff’s demand.
¡Neither was it necessary to recite in the judgment the particulars of the decision; it is sufficient to refer to it,
If the plaintiff files . his consent, that the judgment entered herein be corrected by striking from the recital therein the words “ said decision containing,” and onward to and including the words “ costs of this action ;” also by striking out of the adjudication the words “November 10th, 1855,” and inserting instead thereof the words “October 15th, 1855;” and striking out the words “ three and one-half per cent,” and inserting instead thereof the words “four per cent;” and also by reducing the amount adjudged to the plaintiff therein, by striking out the words “five thousand eight hundred and forty-one dollars and sixty-seven cents,” and inserting instead thereof “ five thousand seven hundred and eighty-six dollars and ninety-five centsand striking out the words “ sixty-three hundred and forty-two dollars and twenty-eight cents,” and inserting instead thereof “six thousand two hundred and eighty-seven dollars and fifty-six cents,” the judgment as thus modified is affirmed without costs to either party on the appeal. If the plaintiff do not give such consent, the judgment is reversed and a new trial ordered, costs to abide the event.