4 N.Y.S. 621 | The Superior Court of the City of New York and Buffalo | 1889
The complaint was dismissed, and as to that the question now is whether there was sufficient proof to take the case to the jury upon issues presented by the pleadings. The defendants had advanced for the owners of a bark certain moneys disbursed upon the bark, had procured a charter for the bark, and were entitled to commissions for attending to the business. They took a policy of marine insurance upon the bark with the-plaintiff in the sum of $1,500, payable to “Parsons & Loud, on account of whom it may concern." The bark made a total loss. The defendants applied for payment of the policy. The plaintiff refused to pay, unless the defendants would make certain instruments. The defendants made the instruments, and thereupon the plaintiff paid the amount named in the policy, save a few dollars. One instrument was an indorsement upon the back of the master’s draft for disbursements drawn upon the defendants, and held by them, in the sum of $1,125. The indorsement was: “In consideration of amount insured as advances on this vessel being paid, all claims on account of this draft are assigned to Phenix Ins. Co.” The other instrument was: “For and in consideration of the sum of $1,500, the receipt whereof is hereby acknowledged, we hereby assign and transfer to the Phenix Insurance Company, * * * fifteen hundred dollars (amount insured by us in said Phenix Insurance Company, March 31, 1884, as advances) of our claim of $1,570.47 which we have against bark Elliott Ritchie and owner, for advances, commissions, * * * for heríate voyage, * * * on which voyage she became a total wreck." I see no reason to doubt that from these assignments there arose an implied warranty that the claims described were existing, valid claims, to which the defendants had a title which they might transfer, and that at least they had never been satisfied or discharged by the act of the defendants. Ledwich v. McKim, 53 N. Y. 307; Ross v. Terry, 63 N. Y. 613.
The next question is whether there were facts upon which the jury might have found that there had been a breach of this warranty; that is, were the ¿¡aims assigned valid, existing claims, which had not been satisfied or dis
The testimony disclosed that upon the payment of the $1,500 to the defendants, they consummated the arrangement, evidenced by the letters of April 1st and April 2d, and credited the owners with the amount upon the claim for advances, commissions, etc. It therefore appeared on the trial that there was a breach of the implied warranty, because the transaction based upon the previous agreement discharged and extinguished the claims that the assignments purported to transfer.
It is here argued by the learned counsel for the respondents that there was no consideration for the assignments, or for the implied warranty, inasmuch as the $1,500 paid to the defendants was already due to them by the plaintiff under the policy. Several considerations are relevant to this position. I advert to one of them. The policy was an open policy; loss payable to “Parsons & Loud, on account of whom it may concern. ” The entry in the book accompanying the policy was, with other matters: “Description of goods, seller, of bills; advances, $1,500; rate of premium 2J- per cent.” The insurable interest which would sustain the policy, and the right of action upon it in behalf of the defendants, would be the right to a lien upon the vessel, and the indebtedness of the owners to them for the advances.
The policy contained the following provision: “In case of any agreement or act, past or future, by.the insured, whereby any right of recovery of the
In this case, the legal extinguishment of the claim of the insured against the owners occurred after the payment of the $1,500 as a consideration for the assignment, and so it may be argued the claims were in existence and were valid at the time of the assignment, and there was no breach of the implied warranty. This is not correct, for, by the arrangement between the defendants and the owners, the payment would extinguish the claim, and that payment was made before the execution of the assignment. It may be asked, how can the plaintiff take the position that the $1,500 payment was not upon the policy, when it takes advantage of an arrangement by which payment upon the policy was to be the thing which would extinguish the claim? The answer to this is that the testimony does not show an absolute payment of the loss, under the obligations of the policy, but a payment conditional upon the execution of the assignments in its promissory as well as executed aspects, which include the obligation upon the implied warranty. There would be absolute payment, subject to the defendants’ fulfillment of that warranty, and, on the other hand, the insurer could not interfere with the legal rights of the other parties to extinguish the claim, under the agreement between them, by their applying to the claim the $1,500, treating it between themselves as a payment of the loss.
I am of opinion that, rejecting a good many allegations of the complaint as surplusage, there were left sufficient to support a cause of action of the kind that has been described in this opinion. The learned judge referred to it in supposing that the defendants did not covenant that their claim was valid. The complaintdid not proceed upon a fraudulent representation or concealment by the defendants as the gravamen of the action. Upon this point it has not been necessary to say more than.that the testimony was sufficient to take the case to the jury. The plaintiff’s exception to the dismissal of the complaint was therefore valid at the time. After the dismissal, the plaintiff moved the court to direct a verdict for the plaintiff, but took no exception to the denial of the motion. There can, therefore, be no review of the denial. This does not impair the plaintiff’s right to a review of his previous exception, as I think, even if the case were such that on the motion to dismiss the complaint it appeared that the motion should have been denied, for the reason that on the undisputed facts there should have been a verdict for the plaintiff. In my opinion it did so appear. The judgment should be reversed, and a new trial had, with costs to abide the event.
Ingraham, J., concurred.