11 N.Y. 532 | NY | 1854
Lead Opinion
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *539 The question in this case is, what was the subject insured; was it the barque, as its materials should from time to time be put together in their appropriate positions in the process of its construction, or was it also such materials as were completely prepared to enter into its structure, though not united to it, and which by reason of such preparation were rendered valueless for any other use. These questions must be answered by the language of the parties, which is to be read and interpreted in its plain and ordinary sense, subject to the rules of interpretation applicable to written instruments, to ascertain the intention which they by its use have expressed. That language designates "a barque" as the subject insured, and adds to this designation certain descriptive particulars, viz. that it was on the stocks near a ship before mentioned, and that it was building for Howes, Godfrey Co. The clause gives, further, a privilege to build another vessel alongside. The term, "a barque," standing by itself, has for its primary signification a completed vessel; but as the context shows that it could not in this case have been used by the parties in that sense, we are in the next place to see in what secondary or modified sense it has been used. To this inquiry the context affords an answer, as it discloses that the word is used, not in reference to a completed vessel, but with reference to a vessel of that class then about to be built, or then in course of actual construction; and that its construction was to be carried on at the pleasure of the insured, during the continuance of the risk, and that the insurance was to apply from time to time, not only to such part of the barque as at the inception of the risk was capable of designation by the term used, but also to such materials as from time to time should become part of the barque. It is plain that the keel of the intended vessel, when it had been blocked, and was in its place to be built upon, furnished a subject embraced by the language of the policy; it is equally plain that timbers in the rough, brought into the yard to be worked and put into the vessel, would not be covered by the policy. The inquiry then is, at what point in the process of building the vessel will such timbers cease to be *540 materials for the barque, and become a part of the barque. The answer, I think, is, when they have entered into the structure which, when completed, will be a barque. This construction accords with the ordinary use of language upon such subjects. If a man had entered this ship-yard and asked to be shown the barque building for Howes, Godfrey Co., he would have been shown the structure upon the keel, irrespective of how far the work had progressed, as being the barque; and it would have occurred to no one to point out materials not annexed to the keel, although completely prepared for that use, as being the barque. It is true that, in a technical sense, neither the keel, with the incomplete structure thereon, nor any of the materials intended for the vessel, is a barque, but in the ordinary use of language, the former would be so spoken of, and the others, though the work on them was all done, would not. It is in this ordinary sense that the language of parties is to be interpreted. I do not think it necessary to place any reliance upon the words "on the stocks near said ship," nor upon the expression of a "privilege to build another vessel alongside;" for though those words perhaps confirm the view which I have taken, indicating as they do an estimate of the amount of risk with reference to the precise locality to be occupied by the subject insured, yet the broader ground is more satisfactory that the language used in its ordinary acceptation, embraces the structure which, when completed, will be the barque, and does not embrace materials which are not become a part of the structure, by being fixed to or in it.
The decision below is objectionable in another aspect. If it be upheld, it follows that timber so far completed becomes thereupon part of the vessel, and consequently loses its character of "materials," and could not be insured under that name. It frequently happens that one man owns the keel and employs another, the ship builder, to furnish materials and finish the ship. Such materials, though completely finished, remain the property of the builder until they actually become a part of the structure of the ship. (Johnson v. Hunt, 11 Wend. 135;Merritt v. *541 Johnson, 7 John. R. 473; Andrews v. Durant, 1 Kern.ante 35.) In such a case, upon a loss by fire, the ship owner could not recover upon a policy on the "ship building" for lack of interest, nor the ship builder upon a policy on "materials," because the property has lost the character of "materials," and become a part of the "ship building." This consequence must follow, unless courts are at liberty to hold property to be properly described as "materials" and not as "parts of a ship," or as "parts of a ship" and not as "materials," according as one or the other description is necessary to give indemnity to the assured.
That the construction given accords with the law regulating the change of property when the owner and builder are different persons; that the common use of language is in harmony with it, and that the test of liability is simple and easy of application, recommend it as fit to be adopted. The case of Mason v.Franklin Fire Ins. Co., (12 Gill John. 468,) presented substantially the same question, and was decided in the same way by the court of appeals in Maryland. Ellmaker v. Franklin Ins,Co., (5 Barr, 183,) is analogous, and was decided on the same principle in Pennsylvania.
The plaintiff should have been nonsuited, and the judgment must be reversed and a new trial ordered; costs to abide the event.
Concurrence Opinion
Although it is said that policies of insurance are to be construed liberally for the insured, (1 Story's R. 360; 2Sumner's R. 380; 5 Cranch, 335,) yet where the words are not ambiguous, and the expression of the intent of the parties is full, I know of no reason why they should be excepted from the general rules of law applicable to the construction of all contracts. In deciding, therefore, whether the property in question is covered by the insurance, the language of the transfer is to be construed in its usual and popular sense, there being nothing to take it out of that general rule. The question to be decided is not, whether the property in question is covered by the first or the second policy. If it be excluded from the first, *542 it does not necessarily follow that it is included in the second. But the question is, whether it is within the first policy, on which this action is brought; that is to say, whether the 462 sticks of timber burned were a part of the barque then building for Howes, Godfrey Co.
The sticks were cut and ready to be framed, but they had not been framed. They did not constitute frames. They not only had never been annexed to the barque, but they were not ready to become a part of it, for they could not be annexed to the barque till they had been framed. They were sticks of timber cut to be used in the construction of the barque, but had never been so used in fact. These sticks were scattered about the ship yard, and a part of them lay on the opposite side of the ship in which the fire broke out. It is true, the proof shows that these sticks, being cut for the frame of the barque, were useless for any other purpose. But I do not see how that fact tends to show that they were part of the barque. It only shows that in getting them ready to make them a part of the barque, they had been rendered unfit for any other use. That may be a misfortune to the owners, if they are not covered by the subsequent insurance on "lumber and building materials," but it is not an argument tending to show that they were part of the barque. If it were necessary, however, to the decision of this case to decide which policy covered the sticks of timber in question, I should have no hesitation in saying that they continued to be "building materials" at the time they were destroyed. The insured party seems to have taken a similar view of this question, and to have selected appropriate words, when, in his preliminary proofs, he called the property "timber and lumber," and described it as "462 pieces of timber, ready to be put into the frame of the barque."
The property insured was a barque on the stocks building, that is to say, being built for Howes, Godfrey Co. Now, it was only the barque on the stocks which was insured. The sticks scattered around the yard, though they had been ready to be annexed, were not on the stocks. I suppose the term "on *543 the stocks" is descriptive of the whole property insured; and that it would do violence to the language of the contract to make it extend to property, only part of which was on the stocks. The description of the barque as being near the ship, and the privilege being given to build another vessel alongside of it, shows that it referred to what was on the stocks alone. Such language was not applicable to property scattered all over the yard.
Any other rule of construction than that I have adopted, would lead to great uncertainty and confusion. If the sticks became part of the vessel, before being actually incorporated in it by annexation, then when did they become so? At what point did they cease to be "building materials" and become "a barque?" When the timber was cut in the forest? It may have been so selected and cut as to be fit for no other vessel. Or was it when the sticks were brought to the yard? or when the work was commenced on them to fit them for the barque? or when they were ready to be framed? or when they were framed and ready to be annexed? If all this would make the sticks a barque, which I deny, it is one step more than had been taken in this case, for the sticks had not been framed. It is apparent that as soon as we leave the safe rule, which requires actual annexation, there is no point of preparation at which the thing changes its entire character. If it were the building of a house instead of a ship, none of the materials furnished would lose their character as personal property and become part of the realty, until actually annexed. (Ferard on Fix. 9, note a.) "Ubi eadem ratio, ibi eademjus."
If we are at liberty to look beyond the naked words of this contract, it is plain that great injustice would be done by adopting the construction claimed by the plaintiff. The defendant's counsel offered to show that the premium would have been greater, if the scattered sticks in question had been included in the policy. And that the risk is greater for such property, can hardly be doubted. In this case, the fact cannot be overlooked, that if the sticks had become part of the barque on the stocks, no loss *544 would have been sustained; for the barque on the stocks was not injured.
The question presented is not at all like the cases cited, where rigging and provisions covered by a policy on a ship are protected, while severed from the ship and on shore in their usual and proper places. (1 Burr. 341; 4 Tenn. R. 210.) I concede that if the sticks had once been annexed, and had thus been made part of the vessel, they would not lose their character while severed for a temporary purpose. They would still, in that case, be part of the barque. Whether in such case they would have been excluded on the ground that they were not "on the stocks," is another question, and one not necessary to be determined in this suit.
I cannot distinguish this case from that of Mason Leap v.Franklin Ins. Co., (12 Gill John. 469;) and I think the judgment of the superior court should be reversed and a new trial awarded.
Judgment accordingly.