Coit & Pierpoint v. Commercial Insurance

7 Johns. 385 | N.Y. Sup. Ct. | 1811

Per Curiam.

The plaintiffs offered the strongest proof that could be given of a mercantile usage, settling the meaning and extent of the term roots, in the memorandum of the policy, and that it did not apply to the subject in question. The only point then is, whether usage is admissible at all, to control the ordinary and popular sense of the term.

The case of Baker v. Ludlow (2 Johns. Cas. 289.) says, that the words in the memorandum, “ all other articles perishable in their own nature,” were not applicable to the articles previously and specifically enumerated. But that case does not decide the question, how far usage is admissible to explain the sense of the contract; though evidence of usage was there admitted without objection.

The law has been too long settled to be now question- . 7 ed, that if any terms in a policy have, by the known usage of trade, or by use and practice, as between assurers and assured, acquired an appropriate sense, they shall be construed according to that sense and meaning. (Mason v. Skuney, 1 Marsh. 143. 4 East, 135. 6 East, 207. 5 Bos. & Pull. 213.) This is not only the modern rule, as to mercantile instruments in general, (Doug. 654.) but it appears to have been the established practice, as far back as the time of Ch. J. Rolle, and of Lord Holt. (Pickering v. Barkley, 2 Roll. Abr. 248. pl. 10. Sty. 132. Lethulier's case, 2 Salk. 443.) And though Lord Eldon, in the case of Anderson v. Pitcher, (2 Bos. & Pull. 168.) regretted the rule, yet he admitted that it was too late to question its force, and that policies must be expounded with due regard to the usage of trade. To reject this testimony now would produce the greatest injustice, for the contract must have been made and understood, at the time, by the parties, in reference to this mercantile and practical meaning of the terms employed.

The nonsuit ought, therefore, to be set aside, and a new trial awarded, with costs to abide the event of the suit.