1 Wend. 561 | N.Y. Sup. Ct. | 1828
By the Court,
The most important inquiry in this case is as to the relation in which Thomas R. Keith stood to the plaintiffs on the record at the time when the insurance was effected, or the policy attached, and also when the loss occurred at the Isle of France.
If he was one of the assured, then he was a party to the contract, and should have united in the action; and upon that hypothesis, it seems also to be conceded that his interference with the property after the disaster at the Isle of France, would discharge the underwriters. (Ogden & Murray v. N. Y. Ins. Company, 10 Johns. R. 177, and 12 Johns. R. 25, S. C. in error, and cases there cited. See also 6 Crunch, 272.)
The policy bears date on the 2d day of February, 1818. The only designation which it contains of the assured is in its commencement, where it states, “ that Le Roy, Bayard Co. on account of the owners, did make insurance.” The authority under which they acted in procuring the insurance, is proved to have been the letter of Charles J. Catlett to them of the 29th January, 1818. In that letter, Mr. Catlett requests that the insurance may be effected on the joint account of Mr. James Keith, jun. and himself. That such was the intention of Catlett and Keith at the time, and that they supposed that the policy in question was on their sole account., is further proved by the testimony of captain Page, who states, that when Catlett was first apprised of the intention of Mr. James Keith to give his brother an interest in the adventure, and was asked by James Keith whether that interest was an insurable one, he replied that it was, and that they (Catlett and James Keith) were then insured about $30,000, and that he would write to Mr. Perkins, of Boston, to effect further insurance, and that Thomas R. Keith’s interest should be insured in the Boston policy.
If Thomas R. Keith was not one of the assured, then it seems to me not very important, to determine what was the precise character of his interest in the adventure. If he was a partner, it was in a limited and special partnership, confined to this transaction only ; and I am inclined to think that the views of judge Thompson on this point are sound; that, under the. circumstances of this case, admitting Thomas R.
2. The proof of loss was prima facie sufficient. The master states, in his deposition, that the surveyors, after a thorough examination, reported that the vessel could not be re
8. The warranty of American property was sufficiently established. It is proved, by the affidavit of Charles J. Keith, of the 2d April, 1819, that she was owned by citizens of the United States. She cleared from an American port; and I am inclined to think that the register -was sufficiently proved. A copy was produced from the treasury department of the U. S., (where the original is required to be filed after a vessel is condemned,) certified by the register of the department, and the fact of his being register, attested by the secretary of the treasury, under the seal of the department. Proof that there was a register, was prima facie evidence that it was on board during the voyage. (2 Serg. & Rawle, 133.)
4. As to the question of interest: it commenced 30 days after the preliminary proofs were exhibited to the officer. There is no direct positive proof in the case when they were exhibited. The abandonment was made on the 24th February, 1819; and the principal documents to establish the interest of the plaintiffs, appear t.o have been prepared as early as February and April of that year. I allude to the affidavit of Charles J. Catlett and James Keith, jun., of the 27th of February, 1819, and the separate affidavit of Catlett, of the 2d April, 1819. The agreement between the plaintiffs and the defendants, of the 26th July, 1819, which is attached to and made a part of the case, shows, 1. That the plaintiffs at the time knew that the cargo had been invested in
Now the . probability is extremely strong, that the knowledge of the defendants as to the transaction at the Isle of France, was derived from the preliminary proofs; and it is also very improbable that the parties, in a formal article of agreement, would speak of a contemplated suit, if the foundation for a suit had not already been laid, by the exhibition of preliminary proofs, and the refusal of the underwriters to pay; this evidence is corroborated, in some degree, by the testimony of Sands and Jones, the former secretaries of the company. Mr. Jones was secretary at the time of the loss; and payment, he says, was resisted on various grounds. Payment could not be demanded until the preliminary proofs were exhibited, and the grounds on which it was resisted grew out of them also.
I think it is established prima facie, by the testimony of Mr. Bayard, that the letter of Catlett to Le Roy, Bayard & Co., of the 29th January, 1818, which requested insurance to be effected, was exhibited to the underwriters when the insurance was effected.
On the whole, I think a jury would be authorized in inferring from the facts and circumstances in the case, that the preliminary proofs were made some time during the year 1819, and the interest, therefore, ought to commence, say from January, 1820.