21 F. Cas. 328 | U.S. Circuit Court for the District of District of Columbia | 1820
decided that on settlement of a partial average the difference in value between the new and the old materials ought to be deducted, whether the deduction reduce the sum below the five per cent, or not.
Mr. Nichols, a witness sworn on the part of the defendants, testified, that he has been an insurance broker twenty-three years. That the universal practice, as far as he knows and believes, is to deduct one third for the difference in value between the new and the old materials, whether they were half worn, or three fourths worn, or quite new. That sometimes the insured gains, and sometimes loses, by the rule. -
The Court further instructed the jury that if they should be satisfied by the evidence, that the practice, as stated- by Mr. Nichols, was the general usage, in settlement of average losses, among ship-owners and underwriters, and that the usage was known to the plaintiff at the time of the contract, it was to be considered as part of the contract, and the plaintiff was bound by it..
Mr. Sioann, asked whether the opinion was the same, whether th.e materials, used in the repair, were new or old.
The Court, said it would be time enough to answer that question when a case should occur.
