3 Yeates 84 | Pa. | 1800
delivered the charge of the court. The assertion of the plaintiffs, that the defendants demanded and received the premium of insurance, after the demand made for the loss, seems to be fully obviated by the defendants’ statement.
The words of the policy are explicit and clear in favour of the defendants, if considered merely by themselves, independent of the written instructions or order to make insurance. In the first part of the policy, the voyage is described “at and from Port “de Paix to Philadelphia, with liberty to touch,” &c. ; but in the latter part thereof, according to the constant form, it points out what shall be called the risk, and the words there are, (1 Atky. 546) “beginning the adventure on the said lawful goods and “merchandizes, from and immediately following the loading “ thereof on board of said vessel at Port de Paix.” But the order runs thus : “ Insure 12,000 dollars property on board the “ brig American, at and from Port de Paix to Philadelphia.” This memorandum shews the intention of the plaintiffs to have been, to insure the articles on board at the time of the receipt of their last intelligence, however injudicious the measure might have been. This will control and explain the expressions in the formal policy, and the mistake of the clerk therein shall be rectified thereby, according to the authority cited. 1 Atky. 547. It ajrpears to have been the capital object of the plaintiffs, to insure the specie then laden in the brig at Port de Paix, and they are so mindful thereof, that they insist on the word cash being inserted in the policy. As to the money, it certainly was not material to the insurers where it was shipped, though it might be otherwise as to the flour and dry goods on account of average loss, as they might possibly have suffered in -the previous voyage from St. Thomas’s. The defendants certainly knew of cash being on board, and also of other merchandize, though they may not have been informed of the articles. The present exception ap¡Dears to me a technical one, and if there was nothing else in the case, ought not to prevent the recovery “of the plaintiffs,
On the head of concealment, it becomes the duty of the jury *to ascertain the facts in the first instance. Hence arises the law. Be it with them therefore to determine, [*92 under all the circumstances of the case, whether the events which took place as to the brig at Port de Paix, were within the usage and course of trade of the French part of the island of St. Domingo. If they shall be of opinion, that every thing which happened there was consonant to and within the custom, then the want of communication of the particulars received from captain M'Ever, cannot vitiate the policy, because all the cases abundantly prove that the underwriters were bound to inform themselves of such custom. But if they shall be fully persuaded, that other circumstances occurred not warranted by, nor within the custom, they are next to inquire of the materiality of those circumstances with respect to the subject of the present controversy, and whether the communication of those occurrences would have varied the risk in the judgment of the insurers. The verdict must necessarily, as to this last point, depend on the just inferences and conclusions which the jury •draw from the whole mass of the testimony. To subject the corporation to a loss, the risk really run, must correspond with the risk understood and intended to be run at the time of their president’s subscription of the policy. 3 Burr. 1909.
When the jury were prepared to give their verdict, Mr. In-gersoll on the part of the defendants, excepted to the charge of the court, relative to the insurance on the homeward bound voyage; and said, he would draw up the exception at large, which might be corrected by the judge’s notes, if necessary.
The bill of exceptions may be put in at any time before the jury have given in their verdict. 1 Tri. per Pais. 229. 2 Tidd 578.
The jury found a verdict for the plaintiff, the parties agreeing that the sum should be liquidated amicably.
