164 Mass. 341 | Mass. | 1895
The memorandum relied on by the plaintiffs as a contract is in the form of an application for insurance containing a brief statement of particulars and is marked “ binding.” At the bottom are the words, “ Send policy to Walker & Hughes, 63 Wall Street, New York.” On its face it purports to be a preliminary and temporary arrangement, which contemplates the making of a full and definite contract in the form of a policy covering the same subject, with additional provisions. The premium which is to be paid as the consideration for the insurance, and which is perhaps the most important of the terms of the contract, is not fixed, but is left to be agreed upon when further information is obtained. At the time of the application the only information which the parties had in regard to the freight which was the subject of the insurance was derived from a very brief telegraphic message. Several of the particulars given in the application are stated in the most general terms and against the word “ Premium ” are written the words, “ Open for particulars.”
It is contended with much force by the defendant, that the memorandum lacks the essential features of a contract in its failure to fix exactly the amount of the insurance, or to state the rate of premium, and authorities are cited which go far towards sustaining this contention. Hartshorn v. Shoe & Leather Dealers’ Ins. Co. 15 Gray, 240, 244, 247, 249. Orient Ins. Co. v. Wright, 23 How. 401, 408, 409. Piedmont & Arlington Ins. Co. v. Ewing, 92 U. S. 377, 381. Kimball v. Lion Ins. Co. 17 Fed. Rep. 625. Hamilton v. Lycoming Ins. Co. 5 Penn. St. 339. Strohn v. Hartford Ins. Co. 37 Wis. 625, 631.
In the present case all the additional facts necessary to enable the parties to complete their contract and to put it in the form of a policy were known to the plaintiffs as soon as they received the charter party. This was sent them by the master of the vessel, and they received it about September 12,1890. The memorandum sued on bears date July 30,1890. The vessel did not sail on the voyage by which the freight was to be earned until September 22, 1890. The two particulars of which the parties were ignorant which were important in determining the rate of premium to be paid, were the nature of the cargo and the port of destination. The cablegram which furnished their only information on the subject was in these words: “ The vessel is fixed to load on the spot. Wood, forty francs. Queenstown, etc. for orders. U. K. or Continent.” The charter party shows that the cargo was to
The plaintiffs’ agent testified, and it was not denied, that he tried to have the defendant’s agent fix the rate of premium when the application was presented, but the defendant’s agent said he would rather leave it open for particulars of the cargo. There is nothing in the circumstances to show that the rate of premium was to be kept open for any other particulars than those which were shown by the charter party, and these were in the possession of the plaintiffs at their office in St. John ten days before the vessel sailed. It was the duty of the plaintiffs to communicate these facts to the defendant at once, upon their receipt of them. Instead of doing so, they made no communication to the defendant until February 11, 1891, when they made a claim for a total loss. They broke their implied contract when they neglected to communicate these facts within a reasonable time after the receipt of the charter party. Even if they were justified in waiting for the letter from the master of the vessel, which showed the exact quantity of the cargo, they failed to furnish the particulars to the defendant within a reasonable time, for they received this letter on October 27, 1890. This was almost two months before they got information of the loss of the vessel, which came by telegraph on December 16. The vessel was abandoned at sea by the captain and crew on November 16.
There is no ground for the contention that the contract con
Upon the conceded facts of the case, the plaintiffs failed to furnish the defendant within a reasonable time with the facts which were to be the foundation of the contemplated substantive contract of insurance, and the incidental and temporary arrangement made at the time of the application expired by the limitation which was one of its implied terms.
The construction which we put upon this preliminary arrangement in regard to the undertaking of the plaintiffs to furnish additional facts without unnecessary delay, accords with the testimony of all the experts as to the usage in similar cases. This usage almost necessarily results from the fact that the essence of a contract of insurance is to provide indemnity upon the payment of an agreed sum, and not to insure for a price to be determined upon a quantum valebat after the termination of the risk.
We see no error in the exclusion of certain answers in the depositions offered by the plaintiffs.
A majority of the court are of opinion that there should be
Judgment on the verdict.
The depositions were those of certain marine insurance brokers and underwriters in New York, and the answers excluded were to questions, in substance, as to when a contract of insurance is understood to be consummated, as to what is understood to be necessary to be inserted in order to the consummation of such a contract, or to make it binding, and as to when such a contract becomes binding.