Lawrence v. Sebor , 2 Cai. Cas. 203 ( 1804 )

Livingston', J.

This is ah attempt to recover as for a total loss, under a pretence that the assurance was effected for the plaintiff’s separate interest, and was intended t<B cover nothing more than his proportion of the joint prop-perty. There can be no doubt that such an insurance may be made, and then, as in the case of Lawrence & Whitney v. Vanhorn & Clarkson, (Vol. 1. p. 276,) the partner, who thus insures his particular interest, will be permitted to recover accordingly; but there it appeared that- Lawrence & Whitney had no right to insure for-the other parties concerned in the voyage, and that it was well understood that the policy was to extend to their share only. But every thing forbids such a conclusion here. The plaintiff was at. Gaudaloupe, and to him was committed the entire management of the voyage. He made-the purchases; he loaded the vessel. To him it was left, and thence it became his duty to make insurances. The shipment was made on the joint account (and so expressed in *-the bills of lading and invoices) of him and Gault, and amounted, with charges, to 9,922 dollars. On the 23rd of June, 1801, the plaintiff directs-his agents iu Hew-York to make insurance for 5,000 dollars. In this letter he speaks of Gault, and of his loading the sloop Hope on their joint account; and there is nothing in it from which it can be inferred that he intended to confine the insurance to his own proportion of the adventure. Five days after the plaintiff writes another letter, directing an additional insurance to be made on the same shipment, for 4,500 dollars, which would have covered all the property on board. After this, no doubt can be harbored of the plaintiff’s intention. But it is said that these letters, not being commu-, nicated to the underwriters, ought not to be received to explain the meaning of the parties. This may generally be right; but if any doubt arise on the written contract, I think the acts of the assured, although not known to the assurers, may be examined to show that his intentions were different from what afterwards he pretends was the case. If he had designed to restrain .the insurance to his interest in the cargo, it was easy to have used apt words for that purpose. If this had not been doue, and there be any corn troversy as to its extent, and this has been occasioned by what may be deemed a neglect in the plaintiff himself, his acts, however desirous he may be to keep them from our view, must surely be good evidence, if they militate against the construction he now sets up, or if they have a tendency to show that it is foreign from what he intended at the time, and contrary to his own written instructions. But there is no necessity to travel out of the contract, which is always dangerous, to ascertain the meaning of the parties to it. The insurance is not only for Lawrence, but for “ every other person to whom the property doth, may, or shall appertain, in part or in whole.” After this we must do violence to the plain import of these terms, to confine this indemnity to the goods of Lawrence alone, or to the amount of his interest in the joint property. This is the usual way of making insurances on a joint interest for a particular voyage, where no general partnership exists. One of the concern is intrusted with the conduct of the voyage, and in making insurance. Ordinarily he discloses his own name only, but under such contract the other partners will be permitted to recover for a loss of their interest also. The words “ for account of Richard M. Lawrence,” being in writing, is of no moment, for as they do not contradict, there is no reason*wby they should control, the printed clauses of the instrument. It may be be subjoined, that no one can doubt the plaintiff may charge Gault with his proportion of the premium of insurance, and that the latter may compel him to carry to his credit whatever is recovered in this suit. If so, it is another reason for regarding this, as it was most certainly intended to be, an insurance of the joint property. The French law has been referred to as settling this, point in favor of the plaintiff; but on looking into Emerigon and Yalin, we shall find them at variance. The former being of opinion that an assurance by one partner, without a specification of the interest he means to cover, is valid, only for his proportion of the adventure, while Yalin, however, with several writers cited bj him, consider it as extending to the whole cargo ; quia id quod commune esi, nostrum esse dicitur. This is especially so, says Yalin, if the insurance be made by the chef de la societe, or acting partner, as was the case here. It should be observed also, that Emerigon, in giving his opinion on a question which he admits to have been much agitated, makes use of .expressions not only very guarded, but which cannot be applied to the present policy. If partnership effects are loaded, says he, for my account and that of others, an insurance which is made for “ my sole account, (pour mon compte seule,) will only protect my interest, because nothing more has been covered. 1 Emer. 294; 2 Yal. 34. But is that the case here ? When the policy is as general as our language can make it, shall we call it an insurance “on the sole account” of Lawrence? Emerigon also admits that a judgment has been rendered in Erance, contrary to the opinion he entertains. Something was said of a misrepresentation as to the time of the vessel’s sailing, but this objection was abandoned on the argument.

As to the lateness of the abandonment., this is a point I consider as settled by this court, in the case of Earle v. Shaw. It was there determined, that an abandonment, is never too late, provided the loss continue total to the time of making it.

Being, then, well satisfied that the plaintiff meant to insure the property of Gault as well as his own, and that the terms of the policy comport with this intention, he can recover a partial loss only. Judgment must therefore be entered for 366 dollars and 60 cents.

SpenceR and Tompkins, Justices, concurred,

Kent, Oh. J.

Upon this case, the question is, whether the plaintiff shall recover the moiety of the sum insured, or the "'whole ? There is no dispute but that the plaintiff’s individual interest was sufficient to cover the whole policy.

The time of abandonment is not material, since, if the amount insured is to enure to the plaintiff, the loss remained total when the abandonment was made. This court has repeatedly decided that abandonment is not essential to enable the insured to recover a total loss, if the loss be actually total, and continue so to the bringing of the suit. Earle v. Lefferts; Earle v. Shaw, April, 1800; Roget v. Thurston, April, 1801; Page v. Fry, 2 Bos. & Pul. 240; 1 Caines’ Rep. 284.

There can be no doubt, also, but that a partner has such an interest in the entirety of the cargo as to enable him separately to insure it; and that an averment that he had an interest in the property to the amount of the insurance is.supported by proof of a partnership interest in him to that amount.

The important inquiry in the case is, what was the intent of the parties in the present case ? /Was the insurance intended for the separate interest of the plaintiff, or for the joint interest of him and Gault ? if the latter, then it appears that only a moiety of the sum insured has been lost.

It does not appear that the plaintiff and Gault were general partners in-business. It is rather to be intended from the case, that they were partners only in the particular shipment in question; and, although the printed part of the policy be in the usual form, yet. the order to insure was for the account of the plaintiff, and the blank in the policy was filled up accordingly for account of the plaintiff; no other communication was made to the defendant but the order. I am therefore of opinion, arising from these material features in the case, that the evidence resulting from the contract itself must decide the question. It is there that we are to look for the intent. The plaintiff and Gault were special partners; the order limits the insurance to the plaintiff. His name alone is inserted in the policy. His share in the shipment equalled the amount of the insurance, and the joint interest of him and Gault was not brought into view in making the contract. The letter of the plaintiff was not communicated, nor do I think it would have been very material if it had, for it is too equivocal and indefinite to operate by way of explanation or control of the policy. This question has been much discussed and litigated by the French and Italian writers, and different opinions have been entertained on the subject. Valin, vol. 2, p. 34, however, concludes that if one insure as his own a thing in common between him and others, the policy is valid only for his portion, unless he was the principal of the firm. *Emerigon, vol. 1, p. 293, 294, 295, after stating the various opinions on the point, says that the general rule is, that each copartner is presumed not to insure but for himself; and if one insures, and the insurance be declared to be for his account, it will enure only to the extent of the interest of such partner.

This opinion is entitled to the more weight, considering that the general principles of the law of insurance are the ■same in every country. I think, therefore, that the plaintiff is entitled to recover for a total loss, and that the verdict ought to stand.

Thompson, «T.

The only important question arising out of this case is, whether this insurance shall be considered as made for account of Richard M. Lawrence solely, or for account of Lawrence and Gault ? If for the former, the verdict must stand; if for the latter, it must be reduced to $366 and 60 cents. Several other points were raised by the defendant’s counsel on the argument, but which were either abandoned or fall within the rules and principles heretofore settled in this court. The principal one was with respect to the abandonment, whether it was made in season, the loss having happened in June, 1801, and the abandonment not made until the February following. Ths rule on that subject I understand to be, that the assured may abandon at any time while the loss continues total. If that be so, the abandonment in the'present instance wda in season. With respect to the main question, I am inclined to think the plaintiff is entitled to recover as for a total loss. Admitting the plaintiff to have only a joint interest in the subject with Grault, there is no doubt but he could insure his own interest therein separately, and, under a general averment of interest in the entire thing insured, prove an interest in any aliquot part, and recover damages for the loss in proportion to such part. This point was settled in this court in the case of Lawrence & Whitney v. Vanhorn & Clarkson. The policy declares the insurance to bo made for account of Richard M. Lawrence, and although the general printed words, “ for whomsoever it may concern,” might cover the interest of others, yet the written words serve in some measure as an index, by which to ascertain the intention and understanding of the parties. In the present case it must manifestly have been the understanding of the defendant and of the broker who 'effected the policj', that the insurance was on account of Richard M. Lawrence only. The order for insurance given by Lawrence and Whitney, the ^plaintiff’s agents, to the brokers, were explicit that the insurance was to be for account of Richard M. Lawrence. The letters written by the plaintiff to his agents, I think, are not entitled to much weight; for, from the one which they received, it may be doubtful whether it contained directions to insure on the joint account of Lawrence and Grault, or on the separate account of Lawrence. The one which never came to hand ought certainly to have no influence on the question. Whatever intimations were given by the ülaintiff to his agents, with respect to Gault’s interest in the cargo, they never came to the knowledge of the underwriter. The representation made to the defendant was, that the insurance was for account of Richard M. Lawrence, and ifj in any state of things, it would have been for the benefit of the underwriter to have confinéd the interest in cargo to Lawrence only, he might have urged, with great force and propriety, that such was the understanding of the parties at the time the policy ivas effected. The situations of Lawrence and Gault were different, and should an attempt have been made to recover, under different cir cumstances, on the joint interest of Lawrence and Gault, and the risk had been increased by the concern of Gault, in the subject insured, the underwriter would have had good right to urge the representation as a ground of fraud to avoid the policy. I think, from the policy itself, and from the understanding of the immediate contracting parties, it is clearly to be inferred that the insurance was m • tended for account of Richard M. Lawrence only. His interest is sufficient to cover the sum insured, and nothing appears in the case to induce a suspicion of fraud, or that he has, or is to derive any benefit from that part of the cargo restored to Gault. I am therefore of opinion that the plaintiff ought to have judgment for the 639 dollars and 34 cents.

Judgment for 366 dollars and sixty cents only.