26 La. Ann. 505 | La. | 1874
The first important question in this case is, whether or not the plaintiff has an insurable interest in the property lost. He asserts it to be shown by the following correspondence:
“ New Orleans, April 21, 1868.
“John Pemberton, Esq., President:
“ Dear Sir — As assignee of the creditors of Hawes & Bowen, I sold their interest in the steamer Texas to J. C. Darden, a member of the firm of C. Turner & Co., for thesumof $10,000, payable asfollows: cash $5000, and Darden’s three drafts on and accepted by Messrs. J. C. Turner & Co., eacli for $1666 66, payable in one, two and three months from date, with vendor’s privilege on the steamer until final payment. The acceptances of J. C. Turner & Co., as they matured, were protested and were unpaid. By agreement with Darden, he was to insure the steamer and was to transfer policy to me, to the extent of $5000. Darden efleeted insurance, failed to pay for the policy, say $957 75, which I paid myself.
“ Eespeetfully your obedient servant,
“ WM. S. PIKE, Assignee.”
To which Pemberton replied :
“ Office of the Merchants’ Mutual Ins. Co.
" No. 104 Canal street.
" New Orleans, April 23, 1868.
“ Wm. S. Pike, Esq., New Orleans :
" I a.min receipt of your letter twenty-first instaDt, referring to insurance on steamer Texas. The contents of your letter are duly noted.
" Eespeetfully your obedient servant,
“ JOHN PEMBEETON, President.”
" P. S.' — The risk on steamer Texas to continue in force under the clauses and conditions of policy.No. 2500.
" JOHN PEMBEETON, President.”
The premium was paid before the institution of the proceedings in admiralty and none has since been paid or tendered. The vessel was sold in said proceedings on the twenty-second of April, and the proceeds distributed in a concurso of claimants. The vessel was totally lost on twenty-third September, 1868, by a peril insured against. The policy referred to in the correspondence, was to run to the twenty-fifth November, 1868.
Did the letter of Pemberton have the effect of continuing the insurable interest of the plaintiff? We think not.
The marshal’s sale divested the privilege and interest of plaintiff. R. C. C. 3239, 3240. But he contends that the doctrine of estoppel in pais precludes the defendant from making such a defense. This is an error. " The rule of law is clear, that when one, by his own words or conduct, willfully causes another to believe the existence of a certain state of things and induces him to act on that belief so as to alter his own previous position, the former is concluded from averriug against the latter a different state of things as existing at the time.” 6 A. and E. 469.
“ The estoppel is allowed to prevent fraud and injustice, and exists whenever a party can not in good conscience gainsay his own acts or assertions.” 3 Hill, 225.
The letter of Pemberton had no such effect. It did not change plaintiff’s rights or cause him to act so as to alter his previous position. It
Judgment affirmed.