Deshon v. Merchants' Insurance, 52 Mass. 199

Deshon v. Merchants' Insurance

52 Mass. 199 | Mass. | 1846

Hubbard, J.

It is contended that the invoice of the cargo, the bill of lading, the letter to the master, and the letter of Hutchins, the owner, to Deshon, constitute together the whole contract between Hutchins and Deshon, and consequently that the evidence of the clerk was improperly admitted ok the trial, as violating the rule of law respecting the construction of written contracts. ^—

It is very clear that the first three named papers are but documents growing out of the contract; and the question is, whether the letter of Hutchins, when written, was intendea to be a reducing of the contract itself to writing, or was meant as a memorandum of the principal matters constituting the existing oral contract between the parties. To enable us to form a correct conclusion, it is necessary not only to-consider the letter, but the circumstances under which it was written. The letter, if read accórding to its apparent date, is but a proposition of Hutchins to Deshon to undertake a certain agency for him, and giving directions in regard to it ; and of itself it is not an instrument upon which an action could be maintained as upon an executory agreement. An assent by Deshon to the precise terms proposed must be shown, before it can constitute a contract between them. Such assent is not shown in writing, and we are therefore at liberty to inquire under what circumstances the letter was written. And it appears from the testimony of the clerk, that the letter is in his hand writing, and, though it bears date June 28th, that it was not in fact written till after the vessel sailed with the cargo which was the subject of the contract

*206It would seem that it was written at the instance of the clerk himself, and not at the request of Deshon; and the clerk expressly states that the object of the letter was to have something to show the character of the transaction. Upon this evidence, we are, upon the whole, satisfied that it was not a committing of the contract of Hutchins and Deshon to writing, but was a mere memorandum, inartificially drawn, and intended by the clerk to preserve in substance the outline of the contract which had been made. It is a mere piece of evidence, and is not the contract itself, which was by parol, and was partially executed before the letter appears to have been thought of. Under this view of the facts, we think the parol testimony was properly admitted to show the contract and the nature of the relation between the parties, prior to the sailing of the vessel.

The next question raised by the report is, whether the ruling of the presiding judge was correct, in respect to the seaworthiness of the vessel for the voyage insured. It appeared in evidence, that all the water on board the vessel was stowed on deck, and it was contended by the defendants, that the vessel was on that account unseaworthy; and on this point, as to the burden of proof, it was ruled that it was matter of defence that the vessel was unseaworthy for this cause, and must be proved by the defendants.

It is argued by the counsel for the defendants, that in the absence of all proof, unseaworthiness is not to be presumed, but when the question arises, upon whom is the burden of nroof to show the unseaworthiness of the vessel ? then it rests with the assured, and he must,show it; that in this case, there is a departure from the usual mode of stowing water, a mode contrary to the statute of the United States on the subject ; a departure which increases the ordinary risk; and therefore, the plaintiff not being supported by the ordinary presumption of seaworthiness, the burden is on him to show that the vessel was seaworthy. The case of Watson v. Clark, 1 Dow, 344, was cited, to show that the onus jtrobandi is on the plaintiff, on the point of seaworthiness. See also Barnewall v. Church, 1 Caines, 234.

*207The law is well settled, and upon the soundest principles, that the seaworthiness of the vessel for the voyage insured is a warranty on the part of the assured, and a condition precedent to the attaching of the contract. The insurance is against the extraordinary perils to which the vessel is exposed, and not against ordinary hazards. An unseaworthy vessel is not fitted to bear these ordinary hazards, and therefore is not the fair subject of the contract. But a usage has existed in this Commonwealth, for a long course of years, that although the seaworthiness is a matter of warranty on the part of the assured, and must necessarily be complied with, yet he is not called upon, in lirnina, to give evidence of his having complied with it. It is assumed as a fact, in the absence of fraud, and he has the benefit of the presumption. If the underwriter, therefore, rests his defence on the breach of this warranty, he is required, in the first instance, to offer evidence tending to establish it, either by direct proof of the fact, or as a fact following by necessary inference from other facts ; as where a vessel, immediately after her first sailing upon the voyage insured, without encountering any storm, or taking the bottom, or running foul of another vessel, should spring a leak and sink. The assured will then find it necessary, because the weight of evidence is against him, to rebut the presumption, and to establish, by competent proofs, the seaworthiness of the vessel. But where a vessel sails on the voyage insured, and is never heard from, the fact of seaworthiness is presumed, and the assured has the benefit of it, in the absence of ppoof to the contrary. In the case cited from 1 Dow, 344, Lord Eldon says, “ when the inability of the ship to perform a voyage became evident, in a short time from the commencement of the risk, the presumption was, that it was from causes existing before her setting sail on her intended voyage, and that the ship was then not seaworthy ; and the onus probandi, in such a case, rested with the assured, to show that the inability arose from causes subsequent to the commencement of the voyage.” The doctrine here laid down is not in fact contradictory to the law as practised upon in this *208Commonwealth ; but the use of the terms “ onus probandi ” may be calculated to mislead. It is not, however, there asserted that the burden of proof is originally on the assured to establish by evidence the seaworthiness of the vessel, but that, in the absence of other causes, and an adequate cause of loss being shown, arising from unseaworthiness, he is then called upon effectually to rebut it, or the warranty will be held to have been broken; which is nothing more than that, the weight of evidence being against him, he must control it by other evidence, or suffer the consequence that will follow from the want of it. And so in no case can the assured ever recover upon legal grounds, without showing the existence of a peril insured ¿gainst, to which the vessel has been exposed, and which was adequate to cause the loss; otherwise, the underwriter would be often required to pay for losses occasioned by unseaworthiness. In the present case, an adequate cause of loss existed by a peril insured against. But this cannot avail the owner, if the vessel was not protected by the policy; in other words, if she was not seaworthy when she sailed on the voyage insured; but the defendants must show that fact, in order to defeat the plaintiff’s claim.

In the case of water for the service of the ship’s company, the ship must have a sufficient quantity, in suitable casks or vessels, and properly stowed and secured on board the ship. But the mere fact of its being all carried on deck does not of itself, as matter of law, render the vessel unseaworthy. If it were so, there would be nothing for the jury to settle. It is a fact tending to prove unseaworthiness; yet, standing alone, it is not necessarily unseaworthiness. It is not like the case of a vessel sailing without anchors, or a competent crew to navigate her, which in themselves constitute unseaworthiness. It is not a fact which in itself shifts the burden of proof; or, to speak more correctly, it does not so materially affect the condition of the vessel as to its seaworthiness, as to require the plaintiff to support his case by opposite proofs, to prevent the conclusion, in the absence of such proofs, that the vessel was *209unseaworthy from that cause alone. The United States St. 1790, c. 56, § 9, imposing a penalty for not carrying a part of the water under deck, does not, as between the parties, constitute a case of unseaworthiness. That question was considered and settled in this court, in the case of Warren v. Manufacturers’ Ins. Co. 13 Pick. 518.

The statute of the United States oh this subject is, in my judgment, a most wise and salutary one, and though, prior to that decision, I was of opinion that a vessel was not seaworthy which did not carry a part of the water secured under deck, yet the above cited case has decided the point that a vessel is not necessarily unseaworthy on that account, and that the same is a matter of evidence, being a question of fact to be settled by the jury. The defendants, therefore, could not rely on the mere existence of the fact as a proof of unseaworthiness, to entitle them to a verdict, unless rebutted by evidence offered by the plaintiff to remove the presumption. The law, we think, was correctly and carefully stated in the ruling on this point.

The third question which arose on the trial related to the testimony of Edward Thomas, whose deposition was taken by the defendants to prove that the loss was fraudulent, and who was a witness liable to be impeached on account of bad character. He was asked, on his direct examination, with a view to sustain his credit by his own testimony, before it was impeached, whether he had made certain statements in regard to the probable loss of the vessel before the event happened ; and his answer, upon being objected to by the plaintiff, was rejected. We think it is very clear that a witness cannot be allowed to state, on the direct examination, that he communicated to third persons, at prior times, the same or other particular facts, with the view-of strengthening his testimony. To permit such statements is not within the acknowledged rules of evidence, as known and practised upon in this Commonwealth; and the introduction of such a practice, we fear, would open the door to great frauds in the hands of dishonest persons.

*210The question in fact presented to the consideration of the court, on the argument, was this; whether a witness of bad character, who testifies to a case of fraud, can be corroborated by the party who calls him, by proving that he has made similar statements to others of the same facts. This question is one of much importance, and has been elaborately argued ; and the authorities supporting and denying the proposition have been carefully investigated. But the point was not ruled upon, nor was it in fact raised on the trial. The presiding judge stated, that “ if it should become a material fact, that the witness declared his knowledge to other persons, and such persons should be called to testify to it, this decision would not preclude such evidence when offered; that it might stand on a different footing; that the evidence was offered to support the deponent’s own credit, for which purpose it was inadmissible.” But no such evidence was afterwards offered. Under these circumstances, we do not feel called upon to decide the question argued, it being an abstract proposition, but reserve the expression of an opinion till it -actually arises, and is judicially presented for our consideration and judgment.

Judgment on the verdict.