21 Wend. 600 | N.Y. Sup. Ct. | 1839
Upon the evidence, there were two British vessels of nearly the same capacity, both named Abeona, and both having been in the port of New York The one was a brig, and the other was either a schooner or a half brig, brigantine or hermaphrodite brig. The very decided opinion of the witness Waring,- that this vessel was a schooner, is pretty strongly confirmed by the fact that the plaintiffs had so designated her in their proposals for insurance on the voyage from St. Johns, and by the further fact that she was called a schooner by the master and one of the seamen in their protest after the loss. None of the witnesses call her a brig proper, but several of them think her a half brig, or a brig forward and a schooner aft. The brig was a good vessel, and the schooner or half brig a poor one—the one was insurable-, the other according to Waring, was not insurable. Newcomb, the only- other witness who speaks to the point, says this was not an insurable vessel, but his company did not like to insure her. The brig was undoubtedly a much better risk for the insurers than the schooner or half brig. -
But independent of the difficulty growing out of the increased risk, I am unable to say that the policy ever attached. The insurance was on goods laden or to be laden on board the brig Abeona ; the vessel lost, and on board of which the goods were laden, was the schooner or half brig Abeona. It was a different ship from that mentioned in the contract. This is not the case of a simple misnaming or other misdescription of a particular vessel, about which the parties - intended to contract, and where, notwithstanding the mistake, the subject can be sufficiently identified. See Le Mesurier v. Vaughan, 6 East, 382, and the case there'cited by Lawrence, J. of Hall v. Mollineaux. 1 Phillips’ Ins. 64, § 1. 1 Marshall (Candy’s) Ins. 314. Here there were two vessels of the same name, but of different species. . The policy describes with accuracy one of the vessels, and not the other. In such a case, there is no principle which will authorize us to presume, without proof, that the parties meant a different vessel from that described in the contract. A change of the ship, made without necessity or the consent of the insurer, will
.Although the schooner or half;brig Abeona was in poft at ■ the time the insurance was made5 there is np proof that the Underwriters knew that fact, or that they knew that the Jorig Abeona.Was not also in port at the same time. ' There is not only the absence of any just grouhd for inferring that the defendants, intended or were willing to-insure on the schoqnerj but. the evidence furnishes ground for the contrary inference. The application was for insurance on the cargo Of the brig Abepna* The; defendants seem not to have known janv thing about the 'vessel.' Their inspector was not in, thewessel was not on their books, and' the president -went out to make, inquiries. He went to’the- office of the Atlantic Company, ¿nd on his return agreed to take the risk. • If he| examined the books of the Atlantic company, he found ¡that there was both a, brig and a schooner-called Abbona ; ¡-that the brig was a good vessel, and the schooner a poor one; 'ithat the one was considered insurable, and the other not..l If; without' consulting the books, he-inquired of the officer's of the, Atlantic company, he probabjy obtained the same information. There is then' reason for believing that the defendants n'ot only supposed they were insuring on th effing,tbut that théy would not have consented to take a risk onthe yessel'which.was lost. But it is enough that the contract relates to one vessel, and the goods were shipped by another* It is for the plaintiffs to show, if that can be done, 'that although-the brig was mentioned Sn the policy, the schooner or half brig was the vessel about Which the parties intended to contract. " '' \
It follows, I think, from what has been said, that the Case was not properly submitted to the jury, and that the exception to the charge was well taken. :
Judgment reversed*
