4 Wend. 75 | Court for the Trial of Impeachments and Correction of Errors | 1829
The following opinions were delivered:
The plaintiffs in error have raised several objections to the recovery, all of which I shall consider, but not in the exact order in which they were argued. As the fifth and the sixth points go to the form of the action
1. Was the action properly brought in the names of Catlett and J. Keith, junior, without joining T. R. Keith as a co-plaintiff? To ascertain whether the latter was a necessary party we must enquire whether he had such an interest in the policy as to enable him to recover against the underwriters. The policy was made by the agents in behalf of the owners of the cargo, and the plaintiffs could not recover without showing themselves to be owners. The difference between the expression in the policy in tins case and the usual one, “ for whom it may concern,” I apprehend to be, that if the policy is in behalf of the owners, no other person than tire owner can recover, although he may have an interest in the subject by lien, respondentia, or otherwise; but if the policy is for whom it may concern, a person who has only a special interest in tire subject insured may sustain an action thereon. In either case it must appear that the policy was made in behalf of the persons who claim to recover. (Steinback v. Rhinelander, 3 Johns. C. 269. Bodwy v. The Union Ins. Co. Condy’s Marshall, 473, note c. Toppan v. Atkinson, 2 Mass. R. 365.)
At the time tire insurance was effected in this case, Thomas R. Keith had no interest in the proposed shipment. Whether the specie which was to compose the cargo had actually been obtained from the banks at that time does not appear ; but it is evident from the letter ordering the insurance that the parties only intended to have the interest of Catlett and J. Keith, junior, covered by the policy. Whether this letter was shewn to the underwriters or not does not seem to be material; but if it was so, the evidence was probably sufficient to authorize tire jury to find that fact. Agreeably to the authorities which I have before referred to, if the agent did not intend to insure for the benefit of Thomas R. Keith, he could not be benefitted by the insurance whether the letter was communicated to the underwriters or otherwise. If no cargo had been put on board in which the assured had an
2. Was the interest of the assured, as averred in the declaration, different from the interest proved ? The averment is that a large quantity, to wit, 30,000 Spanish milled dollars, were laden on board the brig to be carried on the voyage,. and that the plaintiffs were then and until and at the time of tire loss “ the owners of and interested in the said specie to a large amount, to wit, the amount of all the money by the said plaintiffs insured thereon,” and that the policy was made on their account and for their sole use and benefit. The quantity of specie on board is laid with a silicet, and the plaintiffs were not confined to the precise quantity mentioned in the declaration. The averment of interest is not of an entire interest in the whole cargo; but the plaintiffs aver they were owners of and interested in the cargo to the amount insured thereon.
The case of Page v. Fry, (2 Bos. & Pul. 240,) is directly in point in favor of the assured as to this manner of averring interest. As I understand that case, Hyde and Hobbs ordered an insurance on account of themselves and Hacks, to whom they had assigned an interest in the cargo; and the
The case of Page v. Fry was not overruled by that of Bell v. Ansley, (16 East, 141.) In the latter case the insurance was in fact made for John Bell and his brother William, who were jointly interested; and the averment was that John Bell was interested to the amount of all the monies insured, and that the policy was made for the use and benefit and on account of John Bell; and the decision is put upon the ground that the averment that the policy was made on his account was material under the 19 Geo. 2, and should have been truly stated. The case of Page v. Fry was doubted by Chief Justice Marshall in Graves v. The Bolton Marine Insurance Company, (2 Cranch, 441.) If, as he supposed, the plaintiff was permitted under that policy to recover anything on account of Hacks’ interest in the cargo, the case cannot be law; but if, as I have endeavored to show, he only recovered the amount at which Hyde and Hobbs’ interest was valued in the policy, it does not interfere in the least with the doctrine the chief justice was endeavoring to establish. In the case then before him the insurance, although intended to be made by one partner for the benefit of himself and his co-partner, was made in his own name, and the company supposed they were insuring his own interest only. In that case, as the policy was an open one, the plaintiff had no right to recover for any interest which his co-partner had in the property. No averment could have remedied the defect. The chief justice says, that under no rule for proceeding on a special contract could the interest of a co-partnership be given in evidence on an averment of individual interest, or could an averment of the interest of a company be supported by a special contract relating in terms to an individual. There was no doubt in that case of the right of Graves to recover the full amount of his loss, and the defendants acknowledged themselves liable to pay him, but they denied their liability to pay the loss of his partner who was not insured. I do not therefore understand the chief justice as intending to say Graves’ own interest in a
3. Were the preliminary proofs sufficient; and was there sufficient evidence to authorise a jury to find they were exhibited to the underwriters in 1819 ? I can see no possible objection to the preliminary proof, as produced on the trial; and it appears to me there was sufficient to authorise the jury to infer that all the evidence of loss and interest which could reasonably be required, was exhibited early in the year 1819. The letter of abandonment was delivered on the 24th of February; to which was annexed the protest of the master, showing the injury to the brig by the perils of the sea, and her condemnation at the Isle of France. The survey is not printed at length in the case, but it must have described the injury substantially as testified to by the master on his examination as a witness in the cause. It also stated the fact that the brig could not be repaired at that place short of $20,000. The letter of Thomas R. Keith, of the 16th of November, 1818, was also presented at the same time: by which it appeared that the voyage was lost, as to the cargo, in consequence of there being no means of sending it on, or procuring a passage to Canton; and that he had been obliged, after waiting a long time, to invest the specie in cotton •to be sent to England. The preliminary proof of loss was
4. Was there any evidence to justify the jury in finding that the brig was injured to more than half her value ? The difficulty on this point has probably arisen from the fact that it was considered so clear that neither party had their attention particularly directed to it when the master’s deposition was taken. He does not in terms say he was satisfied the repairs would cost $20,000 at the Mauritius. He says the surveyors reported that fact, and that upon their report and on his request the vessel was sold. If the witness had been examined in open court, and the objection raised, the question would undoubtedly have been put to him directly, and answered in the affirmative. I think we have a right to pre
5. But it is alleged illegal evidence was received on the trial, and that the share of T. R. Keith should at all events have been deducted from the amount recovered. The latter part of this point does not appear to have been raised at the trial; and as it appears as a written appendage to the printed point, it is evidently a novus hospes here. If I am right in supposing that the policy attached upon $33,000 of the plaintiffs’ undivided interest in the whole cargo, and not upon 30,000 in number of the Spanish milled dollars, ther e is no foundation whatever for claiming such a deduction. It does not appear upon what principle the adjustment of the loss and the apportionment of salvage was made, but we must presume it was settled agreeably to the rights of the several parties, and in reference to the principles adopted by the supreme court. The illegal evidence complained of is the correspondence relative to the Boston policy; and the conversations testified to by the master as to T. R. Keith’s having a share in the adventure. If the fact that a subsequent policy, on $26,000 of the cargo, was made with the Boston company, in the names of the plaintiffs and T. R. Keith, could have any possible bearing on the case, either party had a right to prove that fact; and if it could not, neither party has been injured by the admission of the evidence. I see no objection to the proof of the conversation between the plaintiffs, as testified to by the master, to shew the fact that one of them had agreed to let his brother come in for a share
6. Was there legal proof as to the national character of the vessel, and that she was duly documented as American ? The underwriters had a right to use any of the preliminary proofs produced by the other party on the trial as evidence in chief, but when they objected to certain parts of those documents being read by the plaintiffs as evidence in chief, they expressly excepted from the objection the affidavit of Catlett of the 2d of April, 1819, and some other documents. I therefore consider them as having elected to use those documents as evidence in chief before the jury. By that affidavit it appears the owners of the brig were all native citizens of the United States, and in the invoice she is described as the American brig Sphinx of Alexandria. The register, on the condemnation of the vessel, is required to be returned to the treasury department. On the trial, an exemplified copy of the register, under the seal of that department, was produced, on which was endorsed a memorandum that it was received at the department on the 26th of June, 1819, and that the vessel had been condemned as unseaworthy at the Isle of France. I think this was prima facie evidence that the register was on board the vessel for the voyage. General evidence is all that is necessary in such cases, until some doubt is thrown on the question. (Ocean Ins. Co. v. Francis, 2 Wendell’s Rep. 64.)
The only remaining point in the case is, whether the investing the cargo in cotton at' the Mauritius discharged the underwriters. If the assured had been there and had elected to abandon, it would have been their duty to take care of the property for the benefit of the salvage; but if they had invested it in a new adventure, and neglected to abandon until they ascertained it to be an unprofitable speculation, their
In this view of the case, the agent was doing the best that could be done for their benefit, or the benefit of whom it might concern; and although there was a loss on the cotton, it is probable there would have been a loss to the same extent in any thing else in which it might have been invested
The judgment of the supreme court should therefore be affirmed.
The counsel for the plaintiffs in error contend that the preliminary proofs were insufficient to authorise a recovery in the court below; or, at all events, to establish a claim for interest previous to 1824. I understand by the term preliminary proof, that in order to avoid a nonsuit, it is incumbent on the assured to prove the loss of property, and an insurable interest in such property. These facts, according to my view, were clearly made out by the assured when they produced the protest of the master, detailing the particulars of the survey and condemnation of the vessel, and the defeat of the voyage, together with the oath of Charles I. Catlett and James Keith, junior, proving their interest in the amount insured. In the case of Lenox v. United Ins. Co., (2 Johns. Dig. 78,) it was held, that when a loss is to be paid in 30 days after proof thereof, the protest of the master stating the loss, and the bill of lading and, invoice, are sufficient preliminary proofs. That these proofs were furnished, I think is evident from the testimony of Austin L. Sands, who saw them in the insurance office in 1824, when he made a list of them; and that they had been in the possession of the company since the 28th of July, 1819, appears by the agreement entered into between the company and the assured, by which the assured are authorised, without prejudice to either party, to take the proceeds of the cotton then in the hands -of Cropper, Benson & Co. of Liverpool, and in case of a recovery against the underwriters, they were to be credited for the amount of the, proceeds of the cotton. The only proper conclusion is, that the company having received sufficient proof of loss and interest to authorise a suit, they were willing; in order to avoid addition
2. It is contended, also, that there was no evidence that the repairs of the vessel would have cost half her value, and therefore the assured had no right to abandon.
Charles I. Catlett, in his letter of the 29th of January, 1819, to Le Roy, Bayard & Co., requests them to effect insurance on the vessel, ten thousand dollars, valued at that sum. This, I should presume, was pretty good proof of the value of the vessel, while she was at her port of departure at least In the deposition of the captain, he states that the surveyors reported that it would cost to repair the brig at the Isle of France as much as 20,000 dollars; and surely, when the owners value then- vessel at $10,000, it will not be contended that she was worth at the Isle of France $40,000! If, therefore, any reliance may be placed on this part of the evidence, it appears to me the fact that the repairs of the vessel would cost more than half her value is clearly made out. It appears also that the loss of the vessel was never disputed by the parties; for Sands, the vice-president of the company, states that he never understood there was any question as to the loss of the vessel, and Jones, who was secretary to the company, says that he never heard any doubt expressed on that subject.
3. It was contended further, that incompetent and illegal evidence was admitted on the trial, and that there was no legal proof that the vessel was American and duly documented as such during the voyage insured.
It would be the height of presumption in me, even to doubt the legality of the evidence admitted on the trial of the cause, after it had been allowed, both by the circuit and supreme court of this state. I proceed upon the principle, therefore, that the evidence adduced in the case is not illegal, but proper and admissible testimony.
In proof that the vessel was American, we have the oath of Catlett, that he and the Keiths were the owners of the
4. Another of the points strongly insisted on by the counsel for the plaintiffs in error was that Thomas R. Keith was a partner in this concern, and therefore ought to have been made a co-plaintiff in the court below; and if he was one of the owners of the property, the reception of the cargo at the Isle of France and its investment in a new adventure, discharged the underwriters from liability. On the 2d day of April, 1819, Charles I. Catlett makes oath that he, together with James Keith, junior, and Thomas R, Keith, are the owners, and the only owners of the cargo mentioned in the annexed invoice and affidavits, he being owner of one half thereof, and James Keith, jun. and Thomas R. Keith being the owners of the other half. If the case rested on this testimony alone, the judgment of the court below perhaps ought to be reversed and a new trial ordered; but, in order to a correct understanding of what the interest of Thomas R. Keith was, it is necessary and proper to advert to all the testimony bearing on the case, in connection with the circumstances attending the transaction.
The oath of Catlett does not necessarily imply that Thomas R. Keith was interested in the $30,000 insured by the Pacific Insurance Company; for the fact is, that the policy was truly intended to cover the interest of C. I. Catlett and
Now, it is evident, I think, that Catlett intended, when he wrote to Le Roy, Bayard & Co. to effect insurance, that only the interest of himself and James Keith, jun. should be covered. Of this there cannot be a doubt, as at the time of writing the letter, and at the date of the policy made by the Pacific Insurance Company, he could have no knowledge of the intention of James Keith, jun. to give his brother an interest in the shipment, nor did he know it until 18 or 20 days after, when the conversation in his counting room was had. This fact is still further corroborated by his reply to Keith that the interest he had given his brother was an in
' A supercargo who is to receive a compensation out of the homeward cargo, as he begins to render his services at the commencement of the voyage and so continues, sustains an absolute loss of his time and skill in case the cargo does not arrive. An insurance upon his interest is therefore strictly a contract of indemnity; and where the owners of a cargo agreed to pay the supercargo $10,000 out of the proceeds of any cargo the ship might bring from Batavia, or to deliver him part of such cargo to that amount on the ship’s arrival at New-York, it was not made a question that the supercargo had an insurable interest to that amount. (Phillips on Insurance, 44.
This being the interest of Thomas R. Keith, therefore, and that interest being covered by the Boston policy, the allegation that he ought to have been made a co-plaintiff in the suit below, in my opinion, falls to the ground. I am unable,
As to the transactions at the Isle of France in relation to the cargo of the vessel, it appears by the deposition of the captain that the surveyors ordered that the cargo should be landed, which was done on the 1st of August, 1818 ; that he delivered the specie to Mr. Bickham, the American consul, as the agent of T. R. Keith, and believed it the best course he could pursue for those who might be interested in the cargo. Having delivered up the cargo he left the Isle of France, and had no knowledge of what became of the specie after he left there. By the letter of T. R. Keith to his brother of the 16th of November, 1818, it appears Capt. Page left the place on or about the 5th of October in a ship for Havre to touch at Bourbon, and that a letter was wrote by this vessel informing of the disaster to the brig, but the vessel being detained (Nov. 16th) at Bourbon, he concludes to send on the protest, &c.; from all of which it appears that after the condemnation of the Sphinx, the supercargo waits in the hope of procuring a passage to Canton, but being tired of waiting, he-invests the specie in cottton, which, from the information he had received, he thought the best mode of laying out the funds. Had I a vessel here, he observes, I should have acted in a different manner, and should have gone to India in search of a cargo, &c.
The voyage being thus broken up, and no ship to be had to take the cargo to the port of destination, the assured had a right to abandon, and the captain or his agent was authorized to act for the benefit of whom it might concern. Whatever was right for him to have done, if it had been his own ship and cargo, the underwriters must answer for the consequence of it. (Phillips on Insurance, 399.)
The specie was landed on the 1st, and the vessel condemned on the 15th of August, 1818. The captain left the Isle of France on the 5th of October, near two months after the cargo was landed and the voyage broken up, and he avers that there was no opportunity from the Isle of France
It was urged by counsel that instead of investing in cotton, the specie might have been sent to England, or that bills of exchange might have been bought with it; but if it was the duty of the supercargo to act for the benefit of all concerned, and he, believing this investment to be for their benefit, which he was warranted in, from his then information as to profit, and the large advance obtained on the specie, he would have acted wrong, in my opinion, to have sent the specie instead of the cotton to England. As to purchasing bills of exchange, it is by no means probable they were to be had at a place of limited commerce and business, such as the Isle of France is, and which is resorted to as a port of refreshment for vessels bound to India, rather than a place of extensive trade.
On a review of the whole subject, therefore, I am of opinion that the interest of Thomas K,. Keith was not such as to create a co-partnership in the concern, and therefore that he ought not to have been a co-plaintiff in the court below; and not bring the owner of the property as such, his acts at the Isle of France were of the same force and effect as if done by the captain, who, after abandonment, becomes the agent of the underwriters; and therefore that the judgment of the court below ought to be affirmed.
And all the members of the court, with the exception of one senator, concurring in the opinion that the judgment of the supreme court ought to be affirmed, it was thereupon affirmed accordingly with costs.