3 Cow. 210 | N.Y. Sup. Ct. | 1824
Curia,
The contract in this valued policy is, “ that the goods shall come safe to the port of delivery ; or, if they do not. to indemnify the plaintiff to the amount of the prime cost, or value in the policy.” (2 Burr. 1172, per Ld. Mansfield.) The valuation is admitted in the policy : it is the amount to be recovered, if the property insured is lost by the perils insured against. (Philips on Ins. 307. 3 taunt. 506. 6 Cranch, 220-1. 3 Caines’ Rep. 20. 3 T. R. 362.) And this value is conclusive upon the underwriters, when there is no suggestion of fraud or imposition.(id. 8 John. Rep. 234. 2 East, 109. 2 Campb. 69.) There is no question, in this case, that the whole quantity of wine insured was on board during the outward voyage ; and an amount beyond its avails was invested in the return cargo-. The exception, therefore, established by Forbes v. Aspinall, (13 East, 323) where part, only, of the goods insured are on board, at the time of the loss, does not apply.
. Had the wines themselves been lost on the outward Voyage, there could be no doubt as to the amount of the recovery ; but the loss was of the return cargo. The insurance being upon the wine out, and returns home, valued at §14,000, the remaining question, and the principal one made at the bar is, whether the goods lost were the returns of the' wine? Had the wine been sold for §7,000, and the return cargo purchased, with the avails, there is no doubt the defendants would have been liable under the authorities cited, for the whole §14,000. Now, whether the money was paid by Loesman, on a sale of the wines, or advanced on a pledge of them, makes no sort of difference to the defendants; though it would be otherwise, if the advance had been less than the value of the wine—one half, for instance. In such a case, if the plaintiff were permitted to recover to the extent of the valuation, he would compel the defendants to pay for the whole of his wine, and yet would have the one half safe at Batavia.. It should appear, therefore, that
Although when the $7,000 were advanced, the wine was Supposed to be worth more than $ 10,000, yet the actual sales were subsequently made for less than $4,000. The whole proceeds, therefore, or returns of the wine, and more, were invested in the goods lost. I cannot consider the $8,621, advanced by Loesman, as loaned upon the plaintiff’s personal credit. Loesman advanced the money upon the deposit of the wine, and that was all the security he took ; no doubt, supposing it amply sufficient to indemnify him, and something beyond, as we find provision made in the receipt for a remittance of the balance. Subsequent events have shewn,1 however, that the advance exceeded the whole proceeds.
I am, therefore, of opinion, that the plaintiff is entitled to-' recover the $14,000, and interest.-
Judgment accordingly.'