1 Port. 238 | Ala. | 1834
The action was assumpsit, for money had and received — ■ brought in the Circuit Court of Mobile county, by the present defendant, against the plaintiff in error. Thouron & Co. in support of the action in the Circuit Court, read in evidence, a paper as follows: “ Mobile, 11th February, 1829. — I wilj account to Messrs. N. Thouron & Co. or to any agent they may appoint, for the sum that may be coming to them, (their proportion of insurance on a box of laces burnt in my store on the morning of the 21st of October, 1827,) when the , amount coming to each loser will have been ascertained.— Sighed, M. Durand.” They also read in evidence a state- ■ ment drawn up by Durand for the Insurance Company, showing the amount of loss in his store, (which he used as an auc
The counsel for the .defendant below, also requested th© court to instruct the jury*—
2d. That if Durand had more than two thousend dollars burnt, he was first entitled to be paid.
3d. That the paper relied on did not admit any proportion whatever.
4th. That if it admitted any proportion, it was only for so much as might remain after Durand had been first paid.
All these instructions the court refused to give.
The rejection of the parol evidence, and the refusal of the court to instruct the jury as above requested, and instructing-differently, is the cause assigned for error.
As respects the rejection of the evidence, it may be observed, that the object of offering it, must have been for the purpose of varying, explaining, or contradicting the written evidence, which had been introduced by the plaintiff. That pa-rol proofis inadmissible toalteror contradict written contracts or agreements, is one of the most valuable and best established general rules of evidence. It is true, there are some exceptions to it, as in the case of receipts and other particular circumstances of accident, mistake or fraud; but no such circumstances appear in this case, to justify an exception to, or departure from, the general rule.
The schedule of goods claimed to have been insured, made out for the purpose of demanding the insurance, and containing, among various other articles, the laces in question, was admitted and sworn to by Durand himself; as being just and correct, in November, 1827. Afterwards, in February, 1829, he signs a written agreement to account to Thouron & Co. the plaintiffs, for their proportion of the insurance, in the terms of the instrument first given in evidence. Then on trial he would resist the force of his written promise by parol evidence — that in giving the former, “ it was not. intended by either him or the plaintiffs, as an acknowledgment that any
The other parol evidence offered, respecting the written . promise, was all of a similar nature, connected with the proposition quoted, and dependent on the same principle. The proof offered respecting the motive in preparing the schedule, had the sanction of but little plausibility, and less materiality; his true motives may have been concealed within his own breast, and may have been different from those indicated by his conduct; but he must be bound by his acts and declarations, which are less equivocal than his secret intentions;— There could have been no propriety in including in the schedule of his demand on the insurers, articles which had not been insured ; and after having thus solemnly declared them to have been insured, even on a valued policy, and received the insurance, he was estopped to deny it. The fact, that in this, he acted on the advice of counsel, cannot vary the case. To the admissibility of the proof, that the plaintiff had given no instructions for the insurance, and that in the settlement with his agent for other sales previous to the fire, no insurance was charged, there would appear to have been no legal objections, had the same been material, and separately relied on : but such does not appear to have been the case. The court below, seems to have placed the right to recover on the ground alone, that the defendant’s written promise to account, contained an admission, that he had insured for and on account of the plaintiffs. I am therefore of opinion, there was no error in the rejection bf the evidence. The propriety of refusing the instructions to the jury, as requested, and of giving the contrary as stated, depends upon the force and effect of the written evidence, and the law applicable thereto. It is the province of the court to determine the legal effect of written agreements. Then what is the true construction of the défendant’s undertaking of the 11th February, 1829 ? Does it admit any insurance for the benefit of the plaintiffs, and promise to pay any thing on account thereof? The pro
From this view of the case, it results, that there was no error, either in giving or refusing instructions, as stated, unless the objection .can be sustained, that in as much as there was no authority given for the insurance, and the other goods Tost were of greater value than the amount of the policy, the defendant’s promise to pay on account thereof was nudum, pactum, and created no legal obligation.
On this point the counsel have referred to various authorities on each side. For the plaintiffs in error, has been cited the case of Grant, et al. vs. Hill.
In the case of Parks, et al. vs. The General Insurance Company,
In Graves vs. Boston Marine Insurance Company,
These cases sustained the principles for which the counsel for the plaintiffs mainly contends, that if one effect an insurance, and in the event of a loss, receive the money on goods, in which he had no interest, his wrongful recovery or receipt of the money, does not give the true owners a right of action against him, and that one having a qualified interest in goods, as consignee, for instance on account of hisipommis-sions, or money advanced, and insuring his own interest only, may recover accordingly without securing the interest of the
As contended on the part of the defendants in error, the law seems to be settled, that “ an insurance effected for the benefit of a third person, although without his authority or sanction, may be adopted by the person for whose benefit it was made.”
4 Taunt.380
5 Picker. 84.
Hughes on Ins. 41.
2 Maul. & Sel. 485.
2 New R.283 291, 307---1 Pet. 162.