Burnham v. Boston Marine Insurance

139 Mass. 399 | Mass. | 1885

Field, J.

The statements made by Steele, before the policy was issued, that he could “ write $500 more in the Boston Marine Insurance Company,” and could “ call it advances,” and not “ outfits,” and that it would be “ all right,” could not be received to change the contract actually made. A written contract must be construed according to its terms in their ordinary signification, unless those terms, by usage in the business or between the parties, have a different meaning; and oral evidence that, before the contract was executed, the parties orally agreed that some of its terms should mean something different from their ordinary meaning, or their meaning as established by usage, is evidence to vary a written contract. Usage is a fact; and, if it is a particular usage, it must be known to the parties, and, if a general usage, it must be so well established and known that it must be considered that parties reasonably well acquainted with the trade or business either knew it, or ought to have known it.

The testimony of Gore is not testimony that what is usually described in policies of insurance as “ outfits ” had been actually insured as “ advances ” in policies generally, or in policies on fishing-vessels in Gloucester. Indeed, his testimony is that “ advances,” in policies of insurance, commonly means advances to the crew and advances on account of freight. The only portion of his testimony favorable to the claim of the plaintiffs is an expression of an opinion of what might propeíly be done, and not testimony of anything that had actually been done, or of any existing usage.

The advances claimed are $60.14, which had been advanced to different members of the crew, to be repaid by them out of their shares of the catch, and $100, which had been advanced to the captain to buy bait. Neither the captain nor the crew received wages, “but took shares of the catch instead.” It is not contended that the advances to the crew were not covered by the policy, if the evidence showed a total loss. For the advances to the crew, the plaintiffs had a lien upon their share of the catch. The plaintiffs also had a lien upon the catch for any money expended for bait. If the plaintiffs delivered money to the captain to be expended for bait, and he did not so expend it, it would seem that the captain became personally indebted to the plaintiffs for it, and that the plaintiffs would have no lien on the catch for the payment of this debt; and that it would not be covered by the policy. Minturn v. Warren Ins. Co. 2 Allen, 86. So far, however, as the money was expended for bait, it was an advance on account of the catch, for the payment of which the plaintiffs had a lien on the catch, and was covered by the policy. There was evidence from which the jury could properly find that $90 had been expended for bait.

The defendant denies that there was a total loss of the catch out of which the advances were payable. The policy was “ free from claim for particular and (or) general average; ” and the plaintiffs must show either an actual total' loss of the catch, or a constructive total loss followed by an abandonment. Heebner v. Eagle Ins. Co. 10 Gray, 131. Greene v. Pacific Ins. Co. 9 Allen, 217.

The defendant asked no instructions upon the distinction between an actual total loss and a constructive total loss; but merely asked the judge to rule that, on the evidence, the plaintiff could not recover. The judge ruled that there was evidence which would justify the jury in finding that the advances were totally lost. We take this to mean totally lost within the meaning of the policy; and as, in this Commonwealth, such a policy is held to cover a constructive total loss where there is an abandonment, as well as an actual total loss, if, on the evidence, the jury were warranted in finding either, the exceptions cannot be sustained. We think there was sufficient evidence of a constructive total loss of the schooner, outfits, and catch, and of an abandonment to Steele, and of an acceptance of it by him. The Gloucester Mutual Fishing Insurance Company, of which Steele was president, had insured the schooner and “ outfits, catch, cargo, or the freight on said cargo.” Steele was also “ the local agent of the defendant at Gloucester, having authority to take risks and countersign and issue policies, which were furnished him by the defendant, signed by its president and secretary.” The defendant’s policy is “on advances on board the schooner Madame Roland.” A constructive total loss of the catch would be a constructive total loss of the advances, which were a lien on the catch. At the same time that the plaintiffs delivered to Steele written notice that they abandoned the schooner Madame Roland to the Gloucester Company, they also delivered to him, as agent of the defendant company, written notice that they abandoned the schooner to the defendant, as insured under the policy, the number of which they gave. The plaintiffs had previously orally abandoned the vessel to Steele, and informed him of the grounds of abandonment, and he had sent a man to take charge of her.

We think it is too narrow a construction of this notice to the defendant to hold that it was merely an abandonment of the schooner. The defendant had not insured the schooner, but “ advances on board the schooner; ” the notice refers to the policy, and reasonably gives notice that the plaintiffs abandoned whatever was on board the schooner to which the policy attached. Macy v. Whaling Ins. Co. 9 Met. 354.

Whether Steele had authority to accept an abandonment on behalf of the defendant is immaterial, if there was actually a constructive total loss, and the plaintiffs gave proper notice of abandonment. The defendant offered no testimony. If Steele was a proper person to receive notice of an abandonment on behalf of the defendant, or if the defendant received the notice delivered to him as its agent, and was informed of the grounds of abandonment, it was a good abandonment; and we cannot say that it was not competent for the jury, on the evidence, to find either of these facts.

If the defendant insists upon a new trial, in order to determine what part of the $100 was actually expended for bait, the exceptions must be sustained, and a new trial granted upon damages only; otherwise, if the plaintiffs will remit from the verdict $10, with interest thereon from the date of the writ, there may be Judgment on the verdict.