Mumford v. Hallett

1 Johns. 433 | N.Y. Sup. Ct. | 1806

Livingston, J.

delivered the opinion of the court. As there is no contradiction between the written and printed parts of this policy, and no ambiguity in its terms, parol evidence cannot be received to explain the intention of the parties ; nor ought the usage of merchants to be resorted to, where the language used is so explicit, as it is here. It is an insurance on profits, and the goods from which the profits were expected, are valued at twenty-five hundred dollars. This valuation, it is said, was intended to be put on the profits, and not on the goods, and that printed policies on cargoes are generally used for these insurances. This may be so, but we must only look to what has been done, and not to what was intended. If the parties will not make use of a proper policy, nor make the necessary corrections in the printed forms which they do use, it is their own fault.

There is another ground, however, on which the plaintiff may recover. Though the profits are not valued, yet every such insurance must, of necessity, be considered as a valued, and not an open policy ; especially, if the goods themselves, as is the case here, are valued. If it were otherwise, it would be next to impossible to prove their value, as is done in regard to vessels and cargoes. In these cases, it is easy to show what the different subjects cost, but how are you to ascertain what is often imaginary and must depend on so many contingencies ? It does not follow that a profit will be made, if the cargo arrives ; yet its loss would give a right to recover on such an insurance.

i But admitting that this is to be regarded as a valued policy, it is said, that the assured, by abandoning the cargo to its underwriters, has put it out of the power of the defendant, to receive any salvage on the profits, and that, therefore, he has no right to recover in this suit. This is a'dilemma which the defendant ought to have foreseen at the time of his subscription. He must have supposed there was a policy on the cargo, which, in case of disaster, would naturally be abandoned to those who had insured it. It is idle to complain of what must have been clearly his own understanding of the contract; nor is it reasonable in him to expect, that for the purpose of recovering on a small policy, on profits, a merchant should, by not abandoning the cargo, fore-go his insurance on that subject. We have said in Tom v. Smith,^* than an insurer on "profits is entitled, as against the insured, to an abandonment, but what right, he would thereby acquire against an insurer of the goods, was not then settled, nor is that point now before us. We mean only to decide, that a double abandonment, as in this case, does not deprive him of his remedy on a profit-policy, and that, therefore, the plaintiff must have judgment. This decision conforms with our judgment in the case of Davy v. Hallett, where there was supposed to exist a similar conflict between the underwriters on the vessel and those on freight.

Judgment for the plaintiff.

* 3 Caines, 246.

* Davy v. Halett. 3 Caines, 21.

† 5 East, 316. Hodgson v. Glover.

2 East, 544. Barclay v. Counins.