author: Oakley, J.

text:
    Charles Stebbins versus The Globe Insurance Company.
    A representation as to the situation of buildings to be insured, in relation to other contiguous buildings, made by the assured at the time of his application for insurance, does not amount to a warranty that such buildings are, or that they shall remain, during the continuance of the risk, in the situation described by the representation, unless such representation appear upon the face of the policy-If, upon an application for insurance, the assured describe the premises to bo insured, by a diagram or otherwise, and represent the ground contiguous to such premises as “ vacant,” such representation does not amount to a warranty that the contiguous ground shall remain vacant during the continuance of the risk; neither is the assured prevented from building upon such vacant ground, by any prohibition in the policy, express or implied.
    A fraudulent concealment of circumstances material to the risk, will vitiate the policy ; and the assured cannot recover in any case, where the loss is occasioned by his own fraudulent, improper, or negligent acts.
    Evidence as to a usage existing at New-York, that upon the occurring of any circumstance, whereby the risk is increased by the act of the assured, after the effecting of the insurance, notice thereof shall be given to the assurers, so that they may have the option of continuing the policy, or annulling it, cannot be received to alter the legal effect or operation of the contract.
    This was an action upon a policy of insurance against fire. The policy bore date the 5th of January, 1827, and by it, the plaintiff was insured by the defendants to the amount of $1750, for one year, (commencing on the 10th day of December, 1826,) " on a frame building, in three tenements, situated on the corner “ of New-York Wharf and Commerce-street, in the city of Mo- “ bile, privileged to contain hazardous goods, per report No. “ 36,748, filed in the Washington Office.”
    The cause was tried before Mr. Justice Oakley. At the trial, it was proved that the premises insured were totally destroyed by fire in the month of October, 1827; and there was no controversy as to the interest of the plaintiff, or the sufficiency of his preliminary proofs.
    The company set up, as their defence, the breach of a warranty implied in the policy, (as they contended,) on the part of the plaintiff, that he would not, during the continuance of the risk, erect any building upon certain vacant ground, contiguous to the premises insured. They therefore introduced the plaintiff’s application for insurance as evidence, which bore date at Mobile, the 23d of November, 1826. This application was contained a letter addressed by the plaintiff to his correspondents in New-York, wherein he requested them to effect insurance in his behalf, to the amount of $3500, for twelve months, on his store, “ situated on the corner of Commerce-street and New-York “ Wharf;” and, for particulars, they were referred to a diagram annexed to the letter. By this diagram, it appeared, that Commerce-street was formed of planks projecting over the water, and the premises insured lay upon the corner of a Square comprehended between Commerce-street, Alabama-street, Water-street, and New-York Wharf.
    Immediately adjoining the premises insured, were two other stores, and these three occupied the whole space fronting onCommerce-street, which intervened between New-York Wharf and Alabama-street. The space in the rear of these stores, and between them and Water-street, was marked on the diagram as “ vacant,’’ and there was also an alley-way near to Water-street, marked out on the same vacant space, as extending from Alabama-street to New-York Wharf; and the word “ vacant” was placed on the diagram between the premises insured and the alley. After exhibiting this diagram the defendants offered to prove, that after the insurance was effected, and during the continuance of the risk, the plaintiff had erected other buildings immediately contiguous to the premises insured, and that the risk was thereby increased.

    To the admission of this evidence, the counsel for the plaintiff objected, upon the ground, that it did not constitute any defence to the action. The Judge decided that the evidence was not admissible, unless the defendants also meant to show that the plaintiff intended, at the time of effecting the policy, to build upon the vacant ground, and concealed that intention from the defendants; or unless they could show that the fire originated in, or was occasioned by, the adjacent buildings so erected. To this decision the counsel for the defendants excepted.
    The defendants then introduced evidence, which tended, in some degree, to show, that at the time the policy was effected, there were other buildings on the square besides those designated on the diagram, or at least upon that part of it lying between the alley-way and Water-street; and it clearly appeared that the or th® plaintiff and other persons, had erected buildings, near to the premises insured, on the vacant ground, after the policy was effected, and during the continuance of the risk.
    The defendants then offered also to prove, that there existed a usage at New-York, whereby the insured was bound to give notice to the insurers of any act done by himself after effecting the policy, which increased the risk; and that by such usage, the insurers had the privilege of continuing the policy after the notice, or of abandoning, it at their option. To the introduction of this evidence, the plaintiff objected, and it was overruled by the presiding Judge. To this decision, the defendants also excepted. There was no evidence offered to show that the fire, which destroyed the plaintiff’s store, originated in the buildings erected on the ground which was vacant, when the policy was made; neither did it appear that the fire approached the premises insured, through the medium of the new buildings.

    Upon this evidence, the Judge charged the jury, that the representation made by the plaintiff, as to the situation of the premises insured, in relation to other contiguous buildings, did not amount to a warranty that the ground, designated as “ vacant,” should be kept so during the continuance of the risk; and that the erection of other buildings by the plaintiff, after the date of the policy, on the vacant ground, did not vitiate' the policy, unless the intention to erect such buildings existed in the mind of the plaintiff at the time he effected the insurance. That in such case, there would be a fraudulent concealment, on his part, of a fact material to the risk; but that the burthen of proving such fraud, rested upon the defendants.

      The Judge also instructed the jury, that they were to find whether the representation made by the plaintiff to the defendants as to the situation of his store, in reference to other contiguous buildings, was true in point of fact: and if not true, whether the difference between the actual and the represented situation of the building materially enhanced the risk at the time the policy was effected. That if the representation was untrue in fact, still that their verdict would be for the plaintiff, unless the risk was materially increased by the actual situation of the store, in relation to the other buildings, or unless the plaintiff had concealed such actual situation with a fraudulent design.
    The Judge also further charged the jury, that as the word " contiguous,” when applied to buildings, was uncertain and indefinite, they must give it such a meaning as they supposed was intended by the parties. That the proof on the part of the defendants, as to the existence of other buildings between the alley-way and Commerce-street, besides those designated on the diagram, was vague and uncertain; but if the jury were satisfied that such buildings were placed upon the ground assumed to be vacant, they were then to determine whether the risk was materially enhanced by such buildings. The jury were also charged that they were to determine whether the plaintiff’s representation, as to the vacant ground in the rear of the buildings on Commerce-street, extended to Water-street, or only to the alley, leading from Alabama-street to New-York Wharf. That on this point the parties differed, and the jury, therefore, were to draw their own conclusions from the facts; if they supposed the representation extended to Water-street, then they were to determine whether the buildings on that street were so contiguous to the property insured, as to affect the risk.
    The jury found ¿ verdict for the plaintiff, under an arrangement between the parties, that the defendants should have leave to make a case, and turn the same into a bill of exceptions on the points of law raised at the trial.
    A case having accordingly been made, the defendants now moved for a new trial, and the questions raised were argued
      by Mr. T. L. Ogden and Mr. Slosson for the defendants, and by Mr. D. Lord and Mr. G. Griffen for the plaintiff.
    The defendants relied on the following points % I. That the description specifically referred to in the contract, and required by the proposals for insuring, annexed- to the policy, ought to be considered as a warranty; and being untrue in point of fact,, that the plaintiff was not entitled to recover.
    II. That the description was binding on the assured, so far as it was connected with his own acts, during the continuance of the risk, whether considered as a warranty or as a representation ; and therefore, that the testimony offered on the trial, as to the subsequent erection of contiguous buildings, by the assured, and of the increase of risk thereby produced, was material and ought to have been admitted. But considering the description as a representation merely, that the intention- of the assured, at the time of the insurance, to erect other buildings on the ground then vacant, ought to have been inferred prima facie from the circumstances proved, and on this point that the verdict was against the evidence.
    III. That the evidence as to usage, and the general practice in cases of alteration in the condition of the property insured, and change of circumstances relating to it, proceeding from the acts of the assured himself, was admissible and ought not to have been rejected.
    IV. That the representation as to the vacant space in the rear of the buildings on Commerce-street, applied to all the ground between those buildings and Water-street, and as matter of construction the court ought so to have instructed the jury.
    V. That the misrepresentation of the assured, as to the situation and circumstances of the property, in regard to surrounding buildings, and as to the extent of the vacant ground was material; and on this point also, that the verdict was against the weight of the evidence.
    In support of these positions it was observed, that applications for insurance are made, by the parties, the ground upon which the company are to regulate their contracts, and are therefore to be considered as incorporated into the agreement itself. That the defendants only desired that a fair and liberal interpretation might be applied to the application for insurance; and that according to that interpretation it amounted to a warranty. That the effect of the warranty, as to the regulation of the contract, was matter of law.

      Mr. Ogden and Mr. Slosson.

    The party who makes an application for insurance is required, amongst other things, to describe the property to be insured, in respect to contiguous buildings. In compliance with this requisition, the plaintiff described the premises as having contiguous buildings on one side, but none in their rear. In this state of things, the premises were clearly exposed to less hazard than if the rear were filled with contiguous buildings. Suppose the ground designated as vacant on the diagram had been, in fact, filled with other buildings at the time of the application for insurance, as it afterwards was; would there not have been in this case a clear breach of the description ? As there is danger of some kind to be guarded against, this is not in itself an immaterial circumstance. The company had the election after the representation was made, either not to assume the risk at all, or if thus assumed, to fix their own premium; and this premium would be graduated of course, by the description contained in the application.
    If then it was an essential part of the representation, that it should be true in this particular, it was a part of the contract, that it should continue so during the time the policy was to run. This is a correct principle in all cases of marine insurance, (as in warranties of neutrality, of convoy and the like,) leeause the representation is a part of the contract; and the party cannot,
      by his own act, vary the relation in which he is placed by his own agreement.
    In this case there was also a concealment. The plaintiff must have had the intention to build upon the vacant ground when he effected the policy, because he proceeded to erect such buildings, within a short time after the date of his insurance. In contracts of insurance, good faith is required, and the plaintiff was bound to communicate all circumstances which were material to the risk.
    II. But was there not a warranty on the part of the plaintiff, not only that the premises were, in fact, as he described them to be, but that they should remain so during the continuance of the risk ?
    The first condition of insurance attached to the policy, requires a true statement as to the actual condition of the property to be insured, and the contract is made upon the faith of this statement. The statement, then, is incorporated into the contract, and its materiality is a matter entirely between the parties. Contiguity of other buildings is certainly material, and correctness in this part of the representation, was of the last importance.
    III. If the statement was a part of the contract it was of course a warranty, and if a warranty, it was co-extensive with the duration of the contract. [6 Cow, 673, Fowler v. The Ætna Insurance Company.]

      Now the representation here is, that the premises to be insured were entirely detached from all the other buildings of the town, except those laid down on the diagram. There was then a material misdescription, which,per se, rendered the policy void. This description, as contained in the diagram, ought not to have been put to the jury upon the question of risk, because it was matter of law upon the face of the representation. Upon the diagram, the whole square or block, except that part which was on Commerce-street, is described as vacant; whereas, in point of fact, there were other buildings upon it at the very time, and afterwards, more extensive erections were made by the plaintiff himself. But who is to prove the exact situation of the buildings at the time when they were insured ? If this representation was a warranty, then the plaintiff is bound to show, as a condition precedent to his right of recovery, that he had complied with all the requirements of his contract.
    But the Judge was wrong in excluding the testimony, even if the application for insurance be taken as a representation. Every thing which leads to the making of the contract, is matter of proof under the representation ; for representations may be executory. A warranty to depart with convoy is not complied with, if the convoy be abandoned before the voyage be ended. [Park on Ins. 395. Doug. 74., n.] So here} the representation was a continuing one, and was co-extensive with the duration of the contract. [2 Caines’ Rep. 73, Goold v. The United Insurance Company.] The representation when taken thus strictly, is perhaps confined to the party’s own acts ; nevertheless to this extent it enters into the contract. In the case of Murray v. Alsop, (3 John. Cas. 47,) the representation was, that the vessel insured should have a bill of sale. She had one, at the time of sailing, but it could not be produced at the time of her capture, and it was held that the warranty was not complied with. [See also Doug. 271, Size v. Fletcher. Park. on Ins. 133.]
    Can the assured after the making of the policy, do any act to increase the risk ? The Judge, at the trial, excluded all testimony showing an increase of risk, unless accompanied by proof that the assured intended to erect additional buildings at the time when he effected the policy, or unless the defendants could show that they were thereby actually injured. But we contend, that if the risk was increased, the policy was void ; and the question for the jury was, not whether the defendants sustained injury by the buildings subsequently erected, but whether the risk was increased, The representation was material to the risk as we suppose, but that cannot now be ascertained, because all the testimony relating to it, was excluded at the trial. At all events, the representation was a material inducement to the contract, and if so, the plaintiff could not, by his own act, defeat the of the parties.
    Upon the point of usage, the testimony was also improperly excluded. If the plaintiff altered the state of the buildings, he was bound to communicate that fact to the company, that it might be known whether they would continue the risk or not. The contract was made in New-York, and was of course subject to the custom there,, and the plaintiff was bound to know it. Usage enters into all mercantile contracts, and in this case it was of vital importance, and the evidence necessary to establish it should have been admitted. [2 Marshall 570, Eng. Ed.]
    There was also error in this, at the trial; the diagram should not have been submitted to the jury for a construction as to its meaning. It is a written representation, and as such, should have been construed by the court.
    For the plaintiff it was contended, I. That the erecting of buildings in the rear of the premises insured, was not prohibited by any stipulation in the policy express or implied, and could not therefore vitiate the contract.
    II. That the evidence offered as to the usage of persons in New-York, who alter their buildings after insurance is effected, and the opinions of underwriters there as to the effect of such alterations upon the policy, were properly rejected.

      Mr. Lord and Mr. Griffen.

    As to the usage, if proved, its effect was to alter the clear terms of the contract, and, in fact, to engraft upon it a new clause of vital importance. The evidence was not offered to explain the meaning of a particular phrase,' or the usage as to a particular trade, but its object was to put a construction upon the - agreement. It is well settled, that the plain terms of a clear agreement, cannot be altered by proof of usage. [Parkinson v. Collier, Park 416. Homer v. Dorr, 10 Mass. Rep. 26. 6 Taunt. 446. Aymar v. Astor, 6 Cow. Rep. 266. The N. Y. In. Co. v. Thomas, 3 John. Cas. 1.]

      Here the custom is local, it is confined to the City of New-York, and cannot be extended to parties residing in other states or countries. The custom of one manor cannot govern another, and in Mobile it may be different from our own. Where a contract is made with a direct reference to a foreign country, the laws and customs of that country ought, perhaps, to be the criterion by which it is to be construed.
    But a custom to have force, must be so prevalent, as that both parties may be supposed to know the custom, and to contract with reference to it. Here the supposition of any personal acquaintance with the customs of New-York, is negatived by the terms of the first condition annexed to the policy, which contemplate that a policy by a non-resident may be effected by letter.
    Every custom is in derogation of the common law, and it ought therefore, to be clear, that both parties were acquainted with it, and had reference to its terms, in making their contract. But here there is nothing to charge such knowledge upon the plaintiffj and the evidence offered was properly rejected.
    In support of the plaintiff’s first proposition it was contended that the erection of new buildings, contiguous to that insured, did not vitiate the policy. The defendants (it is said) do not allege that there is any express warranty that the contiguous land should not be builded upon, and if any such warranty exist, it must be implied from the nature of the engagement. But if any warranty can be implied, the defendants must assume, that the vacant contiguous ground, was under the control of the plaintiff, at the time when he effected his insurance. Now there is no evidence before the court, either that the plaintiff could control the contiguous vacant ground, or that he made any representation to that effect to the defendants. The defendants certainly knew that the contiguous land was vacant, and as they made no inquiry concerning the plaintiff’s power over it, they made their contract with a perfect knowledge that the vacant ground was liable to be built upon. They have, then, with notice of all the circumstances, graduated the risk according to their own discretion. They have charged the plaintiff with their own premium, and cannot pretend that they have been deceived.

      But it is said, that the conditions of insurance require a representation as to the contiguous buil dings. So they also require to know who occupy the contiguous buildings, how they are occupied, and' the descriptions of goods contained in them. Will it be contended, that if, at the time the insurance was effected, a contiguous-building was occupied as a dwelling, that the policy is destroyed, if the purpose for which such building was occupied, be changed for one more hazardous ? If this be the true construction of the contract, then the interest of the assured may at any time be defeated by the act of a third person. The defendants themselves will hardly contend for a construction which is to be carried to this length.
    So also it is said, that the application for insurance makes a part of the contract, and that the representation therein made, amounts to an express warranty that the contiguous ground was not only vacant when the policy was effected, but that it should continue to- be vacant during the continuance of the risk.
    But every express warranty must appear upon the face of the policy itself. [3 Kent’s Com. 235. Phil. on Ins. 125.] The supposed exceptions are to be found in those cases where the warranty is contained in the proposals, which form a part of the policy. [1 H. Bla. 254. 6 D. and E. 710.] The rule suggested by Phillips, that a simple reference to documents make a part of the policy, is incorrect.
    In this case, the application for insurance is to be taken in connexion with the first condition annexed to the policy, and that shows it to be a representation merely. If the representation, be false, whereby the defendants are induced to take the risk at a premium less than that which they would have demanded, had the representation been true, then the policy is void. This is the utmost extent to which the rule can be carried, and the question, whether the representation be true or false, must always have reference to the risk; for if the application be considered as an express warranty, then any alteration in the contiguous ground or buildings, though tending to lessen the risk, would be a breach of the warranty, and vitiate the policy.
    But the notion, that there is an implied warranty that the assured shall do nothing to increase the risk, is altogether unfoünded. The risk may be increased in a variety of ways, injury to the contract; for the assured may increase the number of his family, convert the building into a boarding-house, and under-let the apartments in his house for any trades not interdicted by the policy.
    The contract between the parties, whatever it may be, is special and in detail, and the law will not raise any implied covenants or warranties. Where the contract is express, the law implies nothing. [Vanderkarr v. Vanderkarr, 11 Johns. R. 122.] Here the policy provides minutely as to every thing which shall vitiate the insurance, and has omitted every thing upon which the defendants rely. Hence “ expressio unius est exclusio al- “ terius.”
    The contract provides, that the building shall not be applied to the purposes of hazardous trades, or for the storing of hazardous goods. But it claims no information respecting contiguous buildings between the date of the policy and its renewal. Were this omission accidental, it could not be remedied. But it is not accidental, and an express covenant that the assured should not improve his land, would be void as against sound policy. Suppose thé insurance to be for seven years, cannot the assured, during all that period, use his property for its obvious purposes, without endangering his contract ?

    If there be an implied warranty that the assured shall not put up a contiguous building, why is there not a like warranty that he shall not use a contiguous building, already up, for a hazardous purpose ? The only way in which the assured can forfeit his policy, (except by the violation of an express warranty or covenant,) is by doing that which is unlawful; as by setting fire to his own house, or by being guilty of some fraudulent practice, or perhaps by gross negligence.
    Perhaps, if the assured were to use the contiguous land for some unusual purpose, such as erecting a brick-kiln thereon, whereby a loss should accrue, the law might interpose to save the assurers harmless. But in all these cases,.it must first appear that the loss occured in consequence of the fraud or negligence of the assured.
    But in this case, there is nothing unusual in the appropriation of the contiguous ground to the purpose of erecting ware-houses thereon, and there is no pretence that the loss was occasioned thereby. No evidence was offered to show that the assured intended, at the date of the insurance, to erect buildings on the vacant ground, and if there was, the verdict of the jury upon this point, was conclusive. Neither was there any concealment, in point of fact, by the plaintiff nor is there any pretence of fraud on his part.
    It cannot be, that the assured is bound, by any change of circumstances, to make a second representation, during the continuance of the first risk. By the twelfth condition of insurance, it is provided, that insurances may be continued under the original representation, where no changes have taken place; but where the risk is altered, then there must be a new representation, and another premium. Now this would be senseless, if a new representation were to be required during the continuance of the first risk. And if an original policy were void, for such change of risk, it would not be continued by a payment of a new premium on the old representation.
    As to the argument drawn from marine contracts, it can have no application here, because there is no analogy between the two cases. The subjects of insurance are entirely different, and in marine policies, it is implied that certain things shall be done. If a vessel is to sail from one port to another, the contract is, that she shall proceed by the nearest usual route, as commercially understood, and a deviation makes another voyage. The deviation does not necessarily increase the risk, but it changes the voyage. So in all the cases put by the counsel for the defendants, some act is to be done by the assured, which is material to the contract. But here the argument is, that the assured is prohibit-ted from doing any thing; his hands are tied; his property must lie unimproved, and any act which alters the situation of the property, destroys the contract, whether it increases the risk or not The extent to which the argument unavoidably leads, proves its incorrectness, and carries with it its own refutation.

       By the conditions of insurance annexed to the policy, it was required that applications for insurance on property out of the city of New-York, should be in writing, and specify the construction and materials of the buildings to be insured, and their situation with respect to contiguous buildings. And if the person effecting the insurance, should describe the premises otherwise than as they really were, bo that the same should be insured at less than the rate of premium specified in the printed proposals of the company, such insurance would be void.

   Oakley, J.

This is an action on a fire policy, dated January the 5th, A. D. 1827. The property insured is described in the policy, as “a framed building in three tenements, situate on the “corner of New-York Wharf and Commerce-street, in the city of " Mobile, privileged to contain hazardous goods, per report No. " 36,748, filed in the Washington Office” The application for insurance, bears date at Mobile, on the 23d of Nov. 1826, and gives a description of the premises to be insured; and, with a view to point out their situation with respect to contiguous buildings, there is subjoined to, or inserted in the application, a map or diagram, on which the store of the plaintiff is marked out, and also two stores adjoining thereto; and in the rear of the whole, the word “ vacant” is written. The New-York Wharf and Commerce-street, mentioned in the policy, are laid down on the diagram, and also two other streets, called Alabama-street and Water-street, forming in the whole a square, or parallelogram. The plan or map contains no building except the three stores abovementioned,—all of which front on Commerce-street.

At the trial, the defendants offered to prove, that subsequently to the insurance, the plaintiff had erected other buildings, immediately contiguous to the store insured, and on the ground represented as vacant, and that the risk of loss was thereby increased. The Judge rejected the evidence, unless the defendants meant to show that the intention of the plaintiff, at the time of effecting the insurance, was to erect these buildings, and that he had concealed that intention, or that the fire was occasioned by, or originated in the adjacent buildings so erected. To this decision of the Judge, the defendants excepted, and the first and principal question arising in this case is, whether the fact offered to be proved, would have avoided the policy.

It is contended, in the first place, that the application for insurance with the diagram, being referred to in the policy as a report on file in the Washington Office, is thereby incorporated in it, and is a warranty, not only that the ground marked on the diagram as vacant, was really so at the time, but that it should continue vacant during the running of the policy, and that the subsequent erection of any building, by the plaintiff, on such vacant ground, was a breach of the warranty.

It would be a sufficient answer to this position, to say, that there is no evidence in the case, showing that the application for insurance, is the report which the policy refers to. But as it seems to have been so considered at the trial, it is proper to assume the fact to be so, for the purposes of the present discussion.

In the case of Delonguemare v. The Tradesmens' Ins. Co. (ante, p. 580,) we had occasion to consider how far a general reference in a policy to a description of the insured property, on file in the office of the assurers, constituted that description a part of the contract, and converted it into a warranty; and the conclusion arrived at was, that no representation ought to be held to be a warranty, except it -appeared on the face of the policy. The principles which led to that result, in that case, apply with greater force to the present; as the reference here, to the description of the premises, is less distinct and precise.

It is contended, in the second place, that the description of .the vacant ground adjacent to the insured premises, whether •considered as a warranty or a representation, was binding on the plaintiff, during the continuance of the policy; and that he had no right to erect buildings on such vacant ground, especially if such erections increased the risk.

It is clear, that there is no express prohibition in the policy against the erection of new buildings, contiguous to those insured; and it is difficult to see on what ground any such prohibition can be implied. The defendants have, by the terms of the policy, guarded against an increase of the risk, by an appropriation of the building insured to any hazardous business, or to the storing of hazardous goods not specially authorized, by suspending the policy during the continuance of the increased risk. They have not thought proper to introduce any such stipulation with respect to an increase of the risk, by the erection of adjacent buildings ; and it would be unreasonable to imply a prohibition of so important a character, when the party has omitted to express it.

Although the policy, in my judgment, is not rendered void by the subsequent erection of buildings adjacent to those insured, it by no means follows, that the insurers are compelled to bear any loss, which may be the result of such an act on the part of the assured. The contract of insurance, has its foundation in the mutual good faith of the parties. If the assured violates that good faith, in any circumstance entering into the creation of the contract, it is no doubt void. But if, subsequently to its formation, he acts with fraud, or gross negligence, or in bad faith, with respect to the subject matter insured, his rights, under the contract are not impaired, unless the loss, which he seeks to recover, is the result of his own misconduct. It is a general principle, that no man can derive a right of action against another, from his own violation of duty, or from his own illegal acts. Thus there is no stipulation in this policy, that the assured shall not set fire to the buildings insured. If he had done so, hé could not recover the loss, on the ground, not that he had violated any stipulation in the contract, but that he could not profit by the consequences of his own illegal or fraudulent acts. If, however, he had set fire to an adjoining building with the intent to consume the one insured, but no injury to that had in fact ensued, it could not have been contended, that the policy was thereby rendered void; notwithstanding the act would have been in the highest degree a violation of the good faith which was pledged to the insurers, that the risk should not be increased by any act of the assured.

An erection of buildings on vacant ground, by the assured, subsequently to the policy, and contiguous to those insured, whereby the risk is increased, stands upon the same principle. If buildings thus erected, should be removed before the occurrence of any loss, it could not be maintained that the policy would be thereby annulled. The act, not being in violation of any express stipulation in the policy, and not resulting in any actual injury to the insurers, the law would regard it as harmless and rightful; and if this be so, it seems clearly to follow, that the continuance of such erections, (as in the case now before us,) until the fire; cannot change the legal consequences of the act of erecting them, if they have in no way been the cause of the loss. The act of the assured in erecting them, may have been a breach of an implied understanding between the parties, that the situation of the insured premises, with respect to the contiguous buildings, should not be changed by the act of the assured so as to increase the risk; but if such increase of risk, has in fact, been without injury to the defendants, I hold that the policy is not affected by it.

Upon this view of the case I ruled at the trial, that evidence of the erection of buildings, by the assured, on the ground represented as vacant was immaterial, unless the defendants could show, that the fire which caused the loss originated in the buildings thus erected, or was communicated by them to the insured premises. The application of this principle to the case, seems to me to preserve unimpaired the rights of all the parties. The policy continues binding on the defendants, as to the risks, fairly assumed, while they cannot suffer from the acts of the plaintiff, by which those risks are alleged to have been increased. I think, therefore, that there was no error in the decision of the Judge, in excluding the evidence offered by the defendants on this point.

The defendants also offered to prove, that it is the usage at New-Tork, in case of the occurrence of any circumstance by the act of the assured, after effecting the insurance, whereby the risk is increased, for the assured to give notice thereof to the insurer, who is then to have the option of continuing the policy, or of annulling it. This evidence was also rejected by the Judge. It is contended by the defendants, that there was error in this respect also.

This evidence, it still appears to me, was properly rejected, on two grounds, 1st, that the usage offered to be proved was a local one, applying only to insurances on property, in the city of New-York; and 2dly, that if it were a general usage, it could not be given in evidence, to alter the legal operation and effect of the policy. It was not offered to explain the meaning, or extent of any stipulation expressed in the contract, but with a view to introduce into it, an entirely new and distinct condition.

The Judge also left it to the jury to decide, how far the plaintiff’s representation by the diagram, of the vacant ground in the rear of the insured premises extended, whether to Water-street, or to an alley dividing the lots fronting on Water-street, from those fronting on Commerce-street, which alley was laid down on the said diagram. The defendants now contend, that this was matter of law, and should have been determined by the court. As a general rule, the construction of written documents offered in evidence is matter of law; but in the present instance, that rule does not seem applicable. The effect of the diagram or map in question, could be ascertained only by determining the extent, to which the word “ vacant” was intended to be applied, and this depended on the location of the word on the paper, and by its relative situation with the various streets and alleys laid down on the map. It seemed necessary, therefore, to submit the paper to the inspeetion of the jury; and it was their province to ascertain the facts which were to be inferred from it.

Motion for a new trial denied.

[D. Lord, Att’y for the plff. Ogden and Huggins, Att'ys for the defts.]


source: Caselaw Access Project

author:
      Per Curiam.

      Per Curiam.

license: Public Domain

text:
    William Roberts versus Henry Canington.
    The bond required by the 12th section of the Judiciary Act of 1789, upon the removal of a cause from a state court, to the Circuit Court of the U. S., is a joint and several bond, which should be offered at the time of the presenting of the petition.

      Mr. D. Lord, in behalf of the defendant in this cause, read a petition for its removal into the Circuit Court of the United States, upon the ground that the defendant was a citizen of another state. As there had been considerable delay in the application, he read affidavits showing that it had been occasioned by the indisposition of the defendant’s counsel.

      Mr. Slosson, contra, for the plaintiff objected,
    that the act of Congress, (the 12th section of the Judiciary Act of 1789,) had not been complied with, and that the defendant could not, therefore, transfer his cause into the Circuit Court at all That the act requires a-joint and several bond to be filed, and that in this case the bond furnished by the defendants, was only a joint bond executed by himself and his surety.

      Mr. Lord insisted, that the spirit of the statute was complied with. That if a Court of Chancery could not in strictness allow a party to pursue the representatives of a joint obligor who dies, leaving his co-obligor bound, until all the remedies against the survivor had been exhausted, yet that a preference would be given to the creditor, and he would be first paid out of the assets of the deceased obligor. [He cited 3 Ves. 574, Burn v. Burn.]

   Per Curiam.

The plaintiff is entitled, by the express- words of the act, to a joint and several bond from the defendant, who transfers a cause commenced against him. in a state court, into the Circuit Court of the United States. Even although a Court of Equity might interpose, and furnish a remedy in some form to-the plantiff if required, yet he is entitled to a perfect security,, and an adequate remedy at lato, against each of the obligors. He is not bound to take a mere equitable lien, and the court cannot accept it. The petition and motion in this case must therefore be denied.

Mr. Lord then offered to file the security required by the statute, and give a joint and several bond for the defendant.

Per Curiam.

It is too late. The bond must be filed at the time pointed out in the act.


author: By the Court. Bosworth, Ch. J.

text:
    William L. Robbins, Plaintiff and Appellant v. The Hudson River Railroad Company, Defendants and Respondents.
    1. Where in an action to recover damages for an injury caused by the alleged negligence of the defendant, the jury find for the plaintiff and assess his damages at only six cents ; and the uncontradicted evidence is, that the plaintiff was so much injured that he remained insensible through the day; that he did not use his feet, or hardly know that he had any feet for ten or twelve days, and was laid up nearly five months, confined most of the time to his house—the verdict will be set aside as contrary to evidence.
    2. Where a verdict is set aside as contrary to evidence and the charge of the judge, the costs of the former trial will be ordered to be costs in the cause ' and abide the event.
    (Before Bosworth, Ch. J., and Pierrepont and Moncrief, J. J.)
    Heard May 15,
    decided June 2, 1860.
    Appeal by the plaintiff from an order denying a motion for a* new trial. The action was tried October 23, 185*7, before Mr. Justice Slosson and a jury, when a verdict was rendered in favor of the plaintiff for six cents damages.
    The action was brought to recover damages for an injury to the plaintiff on the 28th of February, 1854. He was a carman, and on that day went to the defendants’ depot in 12th street, New York, to get a load of straw boards there piled up in the depot. The straw paper or boards from which the load was to be procured, was laid up in a pile seven or eight feet high, and bales of hops were piled up in front of it. The bales of hops had to be removed to get at the straw boards. On rolling away the third bale, the paper fell on him and inflicted the injury'complained of. The complaint charged that the injury was caused solely by the negligent and improper manner in which the paper was piled. The evidence affecting the point decided, is sufficiently stated in the opinion of the Court.
    The Judge charged, among other things, as follows, viz:
    If the plaintiff is entitled to recover, the only remaining question is as to the amount of damages. The measure of this would be a reasonable compensation for the loss of.his time, deducting what he might have earned during that time; also what he has paid or incurred by reason of the injury; and also a compensation for his bodily suffering, and for the loss of bodily power which he has sustained; and from all this you must deduct what he has earned since the injury.

      E. C. Benedict, for Appellant.
    The Jury have found by their verdict for the plaintiff—
    I. That there was no negligence on the -part of the plaintiff.
    II. That there was negligence on the part of the defendants.
    III. That his damages were six cents for the following injury: An able-bodied and very healthy man was crushed out of his senses, injured permanently in the small of his back, and in his kidneys. There was a complete paralysis of his lower extremities and of the kidneys, excruciating pain in the small of the back; not yet cured, after three years and a half; not likely to be; .has earned all he could get; has not been able to earn $1 a week. -
    IV. The verdict as to the damages was against the charge of the Court.

      Y. The verdict as to the damages was against the weight of evidence.

      T. M. North, for Respondents.
    I. The plaintiff should have been non-suited upon his own testimony, and must be, upon the same statements if a new trial is granted. Plaintiff’s own negligence was the proximate cause of the injury of which he complains. Defendants’ negligence, if any existed, was remote. (Button v. Hud. R. R. Co., 18 N. Y. Rep., 248; Steves v. Syr. and Oswego R. R. Co., Id., 422; Owen v. Hud. R. R. R. Co., 2 Bosworth R., 314.)
    II. The verdict, though in form for plaintiff, is really for defendants, and is sustained by the evidence which warrants the jury's belief that the plaintiff pulled the piles of paper on to himself, either by removing the hops, if they supported it, or if they did not,' then by the jar caused by rolling them over.'
    III. There is no inadequacy of damages. In cases of this class there is no scale by which the damages are to be graduated with certainty; they admit of no other test than the intelligence of a jury governed by a sense of justice. This jury probably supposed from the refusal of the court to non-suit, that the plaintiff was entitled to at least nominal damages, and their conviction that his injuries were from his own fault constrained them to give no more; though their sympathies were so.strongly on his side that they sought to relieve him from costs.
    The court will only interfere on account of inadequacy of damages “when they are so small'as to force upon the mind of every man familiar with the circumstances of the case, the conviction that by some means the jury have acted under the influence of a perverted judgment.” (Collins v. Alb. and Sch. R. R. Co., 12 Barb. 492; Richards v. Sandford, 2 E. D. Smith, 349.)
    That the jury found a verdict for plaintiff with nominal damages, when they should have found a verdict for defendants, is no ground for a new trial. (Rundell v. Butler, 10 Wend. 119.)
    It is plain that substantial justice has been done in this case, and it is well settled that when a new trial ought to produce the same result, a new trial will not be granted. The court will not against the equity of the case, disturb the verdict upon technical objection.
   By the Court. Bosworth, Ch. J.

—This is an appeal by the plaintiff from an order denying a motion made by him for a new trial.

The action is brought to recover damages for a personal injury to the plaintiff, alleged to have been caused by the defendants. The jury found a verdict for the plaintiff, for six cents damages. The plaintiff was injured on the 28th of February, 1854. He was so much injured that he remained insensible through the day, and “ was laid up in this city nearly five months, most of the time confined to the house.”

Dr. Chapin attended him for three weeks, and testified thus : “ I called this a severe injury, so severe that he did not use his feet, or hardly know he had any feet, for ten or twelve days.” A person thus injured by the negligence of another, and without fault on his part, is entitled to recover more than six cents damages.

The jury found that he was injured by the defendants’ negligence, and the evidence already stated as to the extent of the injury, was not controverted.

The defendants insist that they were entitled to a dismissal of the complaint; that the jury should have found in their favor, and that, substantial justice having been done, a new trial should not be granted, although the verdict is in favor of the plaintiff.

When the plaintiff rested, the defendant,s moved to dismiss the complaint, on two grounds :

I. Because at the time of the injury the plaintiff was improperly in the defendants’ depot; and

II. Because his own negligence caused or directly contributed to the accident. This motion was denied. It was renewed when all the evidence had been given, and was again denied. Each decision was excepted to, but the defendants have not appealed.

The testimony of Robbins as to his own experience and practice in carting goods from defendants’ depot, and his ignorance of the alleged rules, that the carmen should not go into the freight sheds, corroborated by that of Ryerson, presented a case, which precluded a dismissal of the complaint on the ground first stated.

On the evidence, as it is presented by the appeal, the judge could not properly dismiss the complaint on the second ground. The case was one calling for the decision by a jury of the disputed questions of fact.

It being proper to submit the questions of fact to the jury, and they having found that the plaintiff was injured by the negligence of the defendants, and without fault on his part, the verdict must be set aside.

With such a verdict upon the record, the farther part of it, that the plaintiff is entitled to but six cents damages, is contrary to the clear and uncontroverted evidence, to the law of the case, and to the charge of the court in that behalf. The damages are clearly inadequate, (2 E. D. Smith, 349.)

The order must be reversed and a new trial granted, and the costs of the former trial, and of the subsequent proceedings, including the costs of this appeal, must be ordered to be costs in the cause, and to abide event. (Knapp v. Curtis and Root, v. 9 Wend. R. 60.)

Ordered accordingly.


text:
    Edward C. Richards, Plaintiff and Appellant v. Robert H. Wescott and Joseph A. Hyatt, Defendants and Respondents.
    1. Where an ordinary traveling trunk is delivered as such to expressmen, to be carried by them and left'at a designated railroad passenger depot, and it contains valuable jewelry belonging to a third person, which fact is not disclosed to them, and the trunk and all of its contents, except the jewelry, are delivered, and the jewelry is lost without their fault, they are not liable for it.
    2. The acceptance of such a trunk, on an application to receive and deliver it, is an undertaking to carry and deliver it, with the articles of personal conve“nience ordinarily carried by travelers that may be contained therein, and nothing more.
    3. To hold them responsible in such a case for the safe delivery of jewelry therein, belonging to a third person, and intended by him for sale as merchandize, would operate as a fraud on them, which the law will not sanction, though there may have been no actual intent to defraud,-in not disclosing the contents of the trunk.
    (Before Bosworth, Oh. J., and Pierrepont and Monorief, J. J.)
    Heard May 17,
    decided June 2, 1860.
    Appeal by the plaintiff from a judgment ordered at a trial had June 10,1859, before Mr. Justice Pierrepont and a jury.
    This action is brought against the defendants as common carriers, to recover the value of a box of jewelry, alleged to have been delivered to the defendants at Brooklyn, Nov. *7, 1855, in a trunk to be carried by them to Buffalo, and there delivered to the plaintiff. This case was previously tried, and the proceedings on that trial are reported in 2 Bosw. 589. By consent of the parties, the jury on the present trial found as facts, the same facts as were found by the jury on the former trial. The facts' as found, and the proceedings on the trial had subsequently to such finding, are stated in the case as follows, viz :
    1st Ques. Was the trunk in question delivered to the defendants by a William P. Davis, to be transported from Brooklyn to the New York and Erie railroad depot in New York city? A. Yes.
    2d. Did it at that time contain the jewelry in question ? A. Yes.
    3d. Was the trunk and jewelry delivered at the depot in New York? A. No.
    4th. What was the value of the said jewelry? A. $432.90.
    5th. Did Davis prepay for its'transportation? A. Yes.
    6th. Were the contents of the trunk asked for by the defendants, or made known to them by Davis, at -the time of its delivery to them for its transportation? A. No.
    7th. Is it the custom‘of the city express companies in general, or of the defendants’ company in particular, to charge for the transportation of articles according to their value ? A. It is when articles are known to be of extra value.
    8th. Was the usage or rule in the above particular (if the jury shall find such to have been proved) communicated to Davis before the defendants undertook the transportation of said trunk, or was such usage known to him ? A. It was not communicated to Davis, and we have no proof that he knew it of his own knowledge.
    9th. Was the trunk in question a traveler’s triink, in the common meaning of that word ? A., It was.
    10th. Was this trunk to be delivered at the passenger depot or at the freight depot, at the city of New York? A. Passenger depot.
    11th. If you say that the trunk was not delivered at the depot in New York city, what became of it ? A. By mistake it was delivered to the People’s Line steamer, Isaac Newton.
    12th. If, in answer to the last question, you say it was delivered by mistake at the wrong place, and afterwards 'sent by the defendants to Buffalo, state whether that was done by the defendants voluntarily, and without any further pecuniary compensation or consideration ? A. It was.
    13th. Upon the arrival of the trunk in Buffalo; what were its contents, and was the jewelry in the trunk? A. The trunk was broken open and the jewelry missing.

      • 14th. If you say, in answer to the last question, that the jewelry was not in the trunk on its arrival at Buffalo, was it lost or abstracted before or after its delivery at the wrong place in the city of New York (such place being the steamboat Isaac Newton, belonging to the People’s Line,) or was it lost or abstracted before the agreement of the defendants to deliver the same in Buffalo? A. After its delivery at the wrong place, but we have no evidence or means of knowing whether lost or abstracted before or after the agreement to deliver the same in Buffalo.
    15th. What was the customary charge for the transportation of a traveler’s trunk from'Brooklyn to New York? A. Twenty-five cents.
    16th. If you say Davis prepaid for the transportation of the trunk, did he so pay as a distinct item, or was the charge for the trunk and box of pictures lumped together, and paid as one item? A. As two distinct items.
    llth. Who was the owner of the jewelry in the trunk? A. Mr. Richards, the plaintiff.
    18th. Was the jewélry intended for merchandise, or did it constitute a part of a traveler’s equipments or baggage ? A. It was merchandise.
    19th. Did the defendants know that Davis had on former occasions carried jewelry in his trunk? A. No.
    The defendants here rested, and their counsel ■ on the above findings of fact, and on the whole case, moved for a non-suit on the following grounds :

      First. No allegation in complaint that trunk was - lost, without fault of the plaintiff, and the proof shows that accident may have happened through fault of plaintiff. Plaintiff’s negligence was, in not telling the carrier that the trunk contained jewelry. It was delivered as a trunk of ordinary clothing.

      Second. Fraud upon carrier in not disclosing contents of trunk.

      Third. A total failure of consideration between parties, no contract to carry jewelry.

      Fourth. Contract proved different from that in complaint; not a variance, but a total failure of proof. Contract alleged is to carry to city of Buffalo. Proof shows it was to carry to depot, New York. Subsequent agreement to carry to Buffalo not sustained by any consideration, or if there was, then the defendants are liable only as private carriers, and not as common carriers.

      Fifth. Contract was with DaVis to take his trunk. No contract with the plaintiff.

      Sixth. That oh the facts the plaintiff was not entitled to recover.
    And the plaintiff asked that the case go to the jury with the following instruction:
    “If the jury think there was no intentional fraud practiced by Davis in delivery of the trunk, they must find for the plaintiff.” Which the court refused, but granted the non-suit, and to which plaintiff’s counsel excepted.
    The testimony on the second trial was the same as on the first, except that some additional testimony was given by the defendants.
    Judgment of non-suit having been entered, the plaintiff appealed from it to the general term.

      R. A. Watkinson, for Appellant.
    I. Plaintiff was entitled to have the case go before the jury, as a new trial had been awarded, and the question involved under the opinion of general term, and as put before the court on second trial, was one oí fraud. (Zabriskie v. Smith, 3 Ker. 332; Nichols v. Pinner, 18 N. Y. 297; Griffin & Buel v. Marquardt, 17 N. Y. 30.)
    II. The non-suit was erroneous. The first, third, fourth, and fifth grounds are insufficient; and so decided by this court in this case. (2 Bosworth R. 589.)
    III. The second is erroneous, because the question of fraud was not set up in the answer.' And it cannot be proven under a mere denial of receipt of goods. Nor can the court infer fraud, and remedy the defect. In a court of law fraud must be proved. (Angell on Carriers, § 265 ; 1 Parsons on Con. 719; Jackson v. King, 4 Cowen, 220.)
    IV. There cannot be fraud without intent, and acts alone prove intent—which is a question for a jury; and no intent to defraud is shown. Constructive fraud is not applicable' here. (2 Kent, 484; Jones v. Howland, 8 Metc. 377; Gallatian v. Cunningham, 8 Cowen, 370.)
    V. It is the duty of the carrier to ask contents. And until asked, it is not the owner’s duty to disclose contents. And the mere packing valuables in a traveler’s trunk is not such an indication of fraud as the law requires to be shown. (2 Kent, 6th ed. 602; Story on Bail. § 567; Hollister v. Nowlen, 19 Wend. 245; 9 Wend. 115.)
    VI. Concealment is not per se a fraud, for the law says : The owner need not disclose contents, until asked, and no case goes the length of the application in this case. Carrier must show fraud affirmatively. (Hollister v. Nowlen, 19 Wend. 245 ; Nichols v. Pinner, 18 N. Y. R. 295; Batson v. Donovan, 4 B. & Aid. 21; Walker v. Jackson, 10 Mees. & Welb. 160, 169.)
    VII. Defendant is a common carrier, and as such held to the responsibility of an insurer against all except acts of God—if no artifice is used to deceive. (Dorr v. N. J. St. Nav; Co. 1 Kern. 485; Russell v. Livingston, 19 Barb. 346.)
    VIII. Defendant cannot limit-his liability by custom or notice. (1 Kern. 485.)
    IX. The law applicable to carriers of passengers cannot be applied here, it is not dependent on the kind of freight they carry, but it is modified tó them, because they are paid only for a passenger and baggage. (1 Parsons on Con. 673; Hawkins v. Hoffman, 6 Hill, 586.)
    X. The third ground taken for non-suit is erroneous, because loss of timé and a suspension of a right, was a good consideration to support second contract. 2 Kent, 6th Ed. 465.)
    XI. Carrier is liable if he voluntarily undertakes, whether interested.in means of transportation or not. (Fairchild v. Slocum, 19 Wend. 329; 25 Wend. 661; 13 Barb. 361;
      Russell v. Livingston, 19 Barb. R. 352; Moore v. Evans, 14 Barb. R. 524.)
    XII. Defendant voluntarily, for a good consideration, contracted to convey trunk as first given to him, to Buffalo.
    13. To arrive at the intent to defraud, the whole tenor of Davis’ conduct must be viewed together. ! And it shows no intention to impose on carrier.

      II. D. Sedgwick, for Respondents.
    I. This ease is res judicata in this court. The court having determined thé law upon the same facts now before it, will not reverse or review its former decision. (Richards v. Westcott, 2 Bosw. 589.)
    II. The non-suit was properly granted.
    1. The facts having been found by the jury, the necessary result of the application to those facts of the law of the case, as already determined, was a non-suit.
    2. The non-suit was quite independent of any question of fraud. The court had decided, that the rules governing the liabilities of carriers who transport the luggage of a passenger, as an incident to the conveyance of his person, and who, by the law of the State, are common carriers, in respect to such luggage, govern also the liability of other carriers receiving and conveying such luggage, as such. Under these rules, the carrier receiving a traveler’s trunk, is liable only for such a trunk and its appropriate contents —not for merchandise it may contain; and the traveler’s secret motives do not affect the carrier’s liability. It is his acts, not his thoughts, which produce the injurious consequence, and are alone material.
    In the present case, the merchandise was that of a third party—not of the traveler—who had no interest in it. (Richards v. Westcott, 2 Bosw. 589, and cases there cited.)
    ' 3. Assuming the question of fraud to have been necessarily involved, there was still, after the facts had been found, nothing left for the jury. At law as well as in equity, the question of fraud on a conceded or established state of facts, is one for the court—not the jury. Fraud becomes no longer a question of motive, but a matter of legal intendment. The natural -sequence, not the motive of the act, is the point of inquiry. (Sturtevant v. Ballard, 9 Johns. 342; Divver v. McLaughlin, 2 Wend. 599; Jackson v. Mather, 7 Cowen, 301; Kean v. Newell, 2 Missouri, 9; Coleman v. Wolcott, 1 Conn. 285, 294; Stevens v. Fisher, 19 Wend. 181; Dormick v. Reichenback, 10 S. and R. 84-90; Rea v. Alexander, 5 Iredell, 644, 647; Swift v. Fitzhugh, 9 Port, 39, 67; Pothill v. Walker, 3 Barn. & Aid. 125; Story v. Norwich and Worcester R. R. 24 Conn. 94; Edgell v. Hart, 5 Seld. 213; People v. Cook, 4 Seld. 79; Cunningham, v. Freeborn, 11 Wend. 240.)
    4. There was no request on the part of the plaintiff that the case should be left generally to the jury, but merely a request after the facts had been found, and the findings admitted by consent, and after the motion thereon for a non-suit had been made, that the case should go to the jury, coupled with an erroneous instruction.
    5. The cause of action stated in the complaint, is unproved in its entire scope and meaning. It is not merely a case of variance: it is a failure of proof. (Code, §§ l7l, 142; See 2d sec. of point 1 of defendants on former argument, 2 Bosw. 598.)
    6. On the several principles stated under the 2d, 3d, 4th, and 5th points for the defendant on the former argument of this case, (2d Bosw. pp. 598, 599, 600,) and the authorities there cited, which principles were sanctioned by this court in their opinion, (2 Bosw. pp. 603-606,) the non-suit was right. The judgment of non-suit should be affirmed.
   By the Court. Bosworth, Ch. J.

This employment was to carry a trunk, described as being a traveler’s trunk, and to carry it so that Davis might have it at the depot, to be taken with him as a traveler’s trunk.

The trunk itself, and all of its contents, were delivered at a place to which the defendants agreed to forward it, and the plaintiff to receive it; except that portion of the contents which consisted of articles not constituting any part of the usual contents of a traveler’s trunk.

The plaintiff now seeks to charge the defendants with the value of jewelry which was in the trunk, an article which the defendants were not only not asked to carry, but which, from the terms of the application made to them, they might justly suppose formed no part of the contents of the trunk.

The decision in this case, when it was before the general term, in February, 1858, (2 Bosw. 603-606,) disposes of all questions "presented by the present appeal. The same evidence was given by the plaintiff, and the same facts were found on the first trial as on the second.

On the second trial “ the plaintiff asked that the case go to the jnry with the following instruction: ‘If the jury think there was no intentional fraud practiced by Davis in delivery of the trunk, they must find for the plaintiff;’ which the court refused, but granted the non-suit, and to which plaintiff’s counsel excepted.”

In Pardee v. Drew, (25 Wend. 462,) Ch. J. Nelson says, “I would not say the plaintiff intended to impose upon the defendant, and under the cover of baggage obtain the transportation of merchandise, free of expense; this is not material. It is enough that such is the practical effect of his conduct.”

So in The Great Northern Railway Co. v. Shepherd, (14 Eng. L. & Eq. 367-370,) Baron Parke says, “Whether this was done with any fraudulent intention it is not material to inquire, for if without any fraud the passenger had so conducted himself that the company were not apprised of the nature of what he was carrying, it is the same in effect as if a fraud had been intended.”

The defendants, from the application made to them, could only regard this trunk as being the ordinary baggage trunk of a traveler, containing the usual personal conveniences belonging to Davis in that character, and had no reason to suspect that it contained, in addition, jewelry to be sold as merchandise, belonging either to Davis or the plaintiff, or to any other person.

We think that Pardee v. Drew, and The Great Northern Railway Co. v. Shepherd, (supra) are decisive against the plaintiff’s right to recover, and that he was properly non-suited. '

j The fact that the defendants were employed to carry the 'trunk only, and not its owner also, can make no difference in respect to the rights of the parties. The deception, in effect, practiced upon the defendants, however honest the actual intent of Davis, is the same in this case as if they had undertaken to carry Davis also.

It is this practical fraud, in case the defendants were to be held responsible, which prevents liability attaching, and not anything peculiar in the law applicable to passenger carriers.

The rule is that a defendant is not to be charged, when charging him would sanction and give effect to a fraud, in effect, practiced upon him by the plaintiff.

The judgment should be affirmed with-costs.

Ordered accordingly.


author:
Bosworth, Ch. J.
      By the Court. Hoffman, J.

text:
    Isaac Jacobsohn, Plaintiff and Appellant v. August Belmont, Defendant and Respondent.
    1. Where a verdict is contrary to evidence and the law of the case, as declared to the jury by the court at the trial, a new trial will be granted, and the costs of the former trial ordered to abide the event.
    2. Where a hanker receives for collection a note made by a person residing- in a foreign country, and transmits it to his agent at the maker’s residence, by whom proceedings are taken to collect the note, and the owner of the note is previously and fully advised, from time to time, of the measures so intended to be pursued by such agent, and makes no objection thereto, and the note is lost by pursuing such measures, but without any fault of such agent, the owner of the note cannot subsequently disavow such measures as contrary to his original instructions, and maintain an action founded on the theory of a violation or neglect of duty by the defendant.
    (Before Hoffman, Pierbepont and Robertson, J. J.)
    Heard June 8,
    decided June 16, 1860.
    .Appeal by plaintiff from an order granting defendant’s motion for a new trial.
    This suit was brought about the 28th of December, 1857, to recover of the defendant the amount of two notes, one of which was for the sum of $350 and made by one Réné Masson, and payable the 18th of June, 1854; the other was made by one Lorenzo Salvi, was for the sum of $655.25, and due April 1, 1855. The complaint states that the Masson note was delivered to defendant May 12, &c., and the Salvi note June 5, 1854, to collect, that defendant received them for that purpose; and after having had them a reasonable time for collecting them, they had been demanded of the defendant, who had refused to return either of them or to account for them.
    The defendant’s answer states that he received the two notes for collection merely, that the makers of them then lived in Mexico, that Masson then was and since has been insolvent; that defendant, with the plaintiff’s assent, was still making efforts to collect the Masson note, that it was still in the possession of defendant’s agent for that purpose, and “if not collected, will, in a few days, be returned to the plaintiff.” That Salvi refused to pay the other note, and left Mexico for Havana, to which place defendant forwarded it to his correspondent, (Sharfenberg,) by the regular government and public mail, with the plaintiff’s sanction, and that it was lost, without fault or negligence on the part of the defendant.
    The action was tried before Mr. Justice Moncrief and a jury, November 22, 1859. It was proved that defendant, on receiving the notes at New York, (where he resided,) sent them to his agent (Mr. Davidson,) in Mexico for collection, and the evidence (which is sufficiently stated in a special term opinion of Bosworth, Ch. J.) tends to show, that the acts of defendant’s agent in the premises were, from time to time, made known to the plaintiff, and that he made no objection to what was done or represented as intended to be done, and that the Salvi note was lost, as stated in defendant’s answer.
    The judge charged, {inter alia,) that, “as to the Masson note, # # if the plaintiff consented to the defendant’s agent retaining it for collection, the defendant 0is not liable.”
    And as to the Salvi note, “'that if the plaintiff knew of, and assented to the proceeding to collect that note, by forwarding it to Havana, and it was lost in the mail, the defendant is not liable.” The jury rendered a verdict for plaintiff for $585.65, with interest thereon from June 18, 1854, being $222.52, making in all $808.1*7.
    The plaintiff moved at special term, January 21, 1860, on a case before Bosworth, Ch. J., for a new trial; which motion was granted, for the reasons assigned in the following opinion, viz:
   Bosworth, Ch. J.

—The judge charged “that if the plaintiff knew of, and assented to the proceedings to collect that note (the note made by Salvi) by forwarding it to Havana, and it was lost in the mail, the defendant is not liable.”

Davidson’s letter of the 19th day of November, 1854, stated that he should forward the “bills on Salvi to Mr. Sharfenberg by next packet.” This letter, on its receipt by the defendant, was shown or read to the plaintiff, and “ he made no objection to it.” There was no attempt to contradict or discredit this testimony. The plaintiff by not objecting to this course must be deemed to have assented to it. It is free from doubt, that the plaintiff’s note was so forwarded, and so .lost. Under the instruction of the judge, the defendant was not liable for this note. Its face is $655.25. The other note is but $350, and the verdict is “ $586.65, with interest from June 18th, 1854,” and of course was given either wholly or in part for this note.

It appears free from contradiction, that Salvi, when the note was presented to him, declared it a forgery, and Davidson so wrote tq the defendant by letter dated August the 19th, 1854, and this, as well as the other letters received by defendant from Davidson, relating to plaintiff’s notes, were either shown or read to the plaintiff, and he made no objection to the course Davidson was pursuing.

The instructions of the plaintiff to the defendant were “ to enforce payment (by Salvi,) if refused, without, however, incurring expenses of consequence.”

Or as expressed in defendant's letter of July 22, 1854, “ to take all measures that may be -required to enforce payment, and if that can be done without incurring expenses of consequence, and without subjecting you to trouble.”

To this Davidson replies by his letter of the 19th day of August, 1854, that Salvi “pretends that the signature is a forgery. I will consult my lawyer on the subject. But I consider it useless to commence a suit against him.”

The plaintiff was informed of these facts, and of the views of Davidson, and did not object to what was done, or omitted to be done.

As the agent was instructed to take only such proceeding as could be had without incurring expenses of consequence, and as Salvi declared the signature a forgery, and as the defendant’s agent thought it useless to sue him, and as the plaintiff was advised of all this, and did not object to it, nor to the note being detained, and sent- subsequently to Havana, after Salvi left Mexico for that place; I think he wholly fails to show any negligence on the part of the defendant, or any disregard of the instructions under which he took the note for collection.

The verdict therefore is, in part, if not wholly against the instruction of the judge.

I do not understand the answer as admitting “ a demand by the plaintiff of the notes in question, and a refusal by the defendant to return them.” As to the Masson note, the answer alleges, that defendant’s “agent has, up to the time of the commencement of this suit, with the assent of the plaintiff, been endeavoring to collect said note, and said note is still in his possession for that purpose, but which if not collected, will in a few days be returned to the plaintiff.”

As to the Salvi note, it alleges that the course taken to collect it, and the sending of it to Havana, “was fully known to and sanctioned by the plaintiff.”

I have already stated my conclusion that no negligence or disobedience of instructions is proved in respect to the Salvi note.

It is quite clear, that as to the Masson note, the course to be pursued was left to the discretion of defendant’s agent (Davidson,) and what he did was communicated to the plaintiff, from time to time, and he made no objection to it. There is no evidence that a dollar was collected of Masson or Salvi during this period by any other person, nor is any fact proved tending to show that Davidson did not act discreetly, or in good faith, or that any legal proceedings would presumptively have resulted in collecting either note.

I think the verdict is not warranted by the evidence, and that as it is contrary to the charge of the judge, a new trial must be granted; the costs of the former trial, and of this motion must abide the event of the suit. The verdict is against the law of the case as declared by the judge. As there was no conflict of evidence as to the plaintiff’s assent to send the Salvi note to Havana, and as to its loss by such transmission, the question whether he was liable for its loss, and for not "returning it, was one of law. The costs therefore should abide the event. (*7 Gowen Rep. 461.)

From the order granting a new trial the plaintiff appealed to the general term.

John Townshend, for Appellant.

Thomas H. Rodman, for Respondent.

By the Court. Hoffman, J.

—The defendant was sought to be charged for not collecting, or for his neglect in not taking proper measures to collect, two notes entrusted to him for collection.

The charge of the judge is before us, without exception. The law must be taken as correct, and the jury were bound to follow it.

There were two notes. One, that of Salvi, was .sent to Mexico to the defendant’s agent, presented to Salvi and declared to be a forgery, and he said he would not pay it. Thus far there was not a particle of evidence of such neglect as to charge the defendant.

But the note was sent forward to Havana, to which place Salvi had gone from Mexico, and not directly to New York. It is alleged to have been lost. The judge charged the jury that if that was so, the mere loss of the note would occasion no damage to the plaintiff, who could sue for the amount notwithstanding, and he would not be entitled to any damages in respect to it.

The jury must have found the defendant liable for some part of this note. If they did so, and on account of neglect in Mexico, they acted palpably against evidence ; if they did so on account of the transmission to Havana, they acted against the law as delivered to them.

Eor these reasons, as well as others stated by the Chief Justice, in an opinion upon granting an order appealed from, we are satisfied that the new trial was properly granted.

In regard to the Masson note, the course to be pursued was left to the discretion of the defendant’s agent, and what he did was communicated to the plaintiff, from time to time. The course adopted by the defendant’s agent was unexceptionable. The verdict as to this note, or the part of it included therein, was unwarranted.

Order affirmed with costs.