109 Mass. 384 | Mass. | 1872
The plaintiff admits that the burden is on him to prove that the article loaded was known in commerce as a different article from that which was bought and sold as coal. But this leaves open the question as to what this difference must consist in. Sometimes there is a difference in the mere name; for the same article often has different names in different places. Articles may also be different as to one class of dealers, while they are the same as to other classes. If for example there had been a warranty against carrying cotton cloth, it would as to an insurer include all cloths made of cotton; while at .a retailer’s shop calico, gingham, muslin, and a variety of other goods, which consist of cotton cloth, would never be called for by the name of cotton cloth, nor would they be sold by merchants under that name. Or lead may be run into moulds resembling images, for the purpose of avoiding duties, while it remained mere lead as to an insurer. So if coal were broken by a patented machine, and thereby had a peculiar shape, it might well be called “ patent fuel,” though it should be the same to the insurer and the method of breaking it constituted its only material peculiarity. Illustrations of this character might be multiplied; and they make it apparent that further inquiries than those relating to the difference of the appellation of the article are pertinent.
It was proper to inquire into the materials of which “ patent fuel ” was originally composed, the process of manufacture, and the substance and character of the finished article, in order to ascertain whether there was any difference material to a contract of insurance. The statements of a witness acquainted with its composition and mode of preparation, and its constituent parts as a manufactured article, were properly admitted.
Under the rulings, the jury must have found that patent fuel was coal, in the sense in which that term was used in the policy; with no change in its character, except that it was put into blocks for convenience of freighting, handling and use; so that it was not different from ordinary coal, with reference to the perils of the sea and the importance of not loading ; with it beyond the registered tonnage.
In contracts of a commercial nature, a reference to usage is implied. Clark v. United Insurance Co. 7 Mass. 365, 369. When the meaning of a word, used to designate an article of trade, is to be fixed by proof of mercantile usage, it may be by the usage of the trade among merchants dealing particularly in that article. Underwriters insuring by certain words are bound to know the mercantile meaning of the words, and are liable according to that meaning. Astor v. Union Insurance Co. 7 Cowen, 202. The presumption is, that they mean to deal according to the general usage, if any exists, in relation to the subject matter. It may be local, but must be in force among persons engaged in the trade. Thus it was held that the word “ outfits,” as applied to a whaling voyage, may acquire by usage a peculiar local meaning, but, if limited to Hew Bedford only, the usage is not admissible to affect the construction of a policy. Macy v. Whaling Insurance Co. 9 Met. 354, 363.
When a local usage at a particular port grows out of the peeul iar situation or circumstances of the place, such for example as a peculiar method of managing a vessel, or taking in or discharging
Exceptions overruled.
Gray, J., did not sit in this case.