author: By the Court—Bosworth, Ch. J.

text:
    Joseph W. Richardson, Plaintiff and Respondent, v. Wm. T. Dugan and Jennison A. Leland, Defendants and Appellants.
    1. Where a referee’s report does not, in terms, specify a finding upon each of the material allegations in the complaint, but finds that there is “due to the plaintiff by the defendants,” a specified sum. for which judgment is ordered, the report, on an appeal from the judgment, will not be disturbed, where there is nothing in the evidence or case repugnant to the inference that the referee did find all the allegations of fact essential to a recovery by the plaintiff, in his favor.
    2. Where, on an allegation that the defendants owned a vessel, and employed and hired the plaintiff to go on board of her as master on a designated voyage, and that under such employment, he served as master on such voyage, the report states that the defendants held the legal title, but as security only, and had control of the voyage, and that the plaintiff went as master with their assent, and obeyed their orders, and was paid by them for his services, in part, as such master, and that there is “ due to the said plaintiff by the defendants” the sum of $1,262.75, for which he “is entitled to recover judgment herein against said defendants,” it will be intended on an appeal from the judgment, that the Referee found that the plaintiff was hired by the defendants, although the report does mot in terms so state, if upon the evidence contained in the case, a finding to that effect would not be disturbed as unwarranted.
    (Before Bosworth, Oh. J., and Hoffman and Woodruff, J. J.)
    Heard, April 5;
    decided, May 25, 1861.

      Appeal by the defendants, from a judgment entered on the report of Livingston Livingston, Esq., as Referee.
    The complaint alleges (inter alia) that the defendants owning the bark or vessel “Mary and Jane," in April, 1853, employed and hired the plaintiff to take charge of, and serve as master of said vessel, on board thereof, for the said voyage, (a voyage from Hew York to Montevideo, and Buenos Ayres, thence to such other places as should be thereafter determined upon, and back to the United States,) for such price or wages as his services were reasonably worth; ” and performance of said contract by the plaintiff; and claims a balance of $1,264.80 to be due, for which, with interest, it prays judgment.
    The answer denies the allegations in the complaint, and then avers that the firm of E. Richardson & Co., (composed of E. and Wm. P. Richardson,) owned the vessel, and “ employed the plaintiff, and that having received a loan or advance from defendants on said vessel, the title of the vessel was put in defendants’ name as security, and they acted in the business of said vessel, and her cargo and freight, solely as the agent of the said firm.” The Referee’s report is as follows, viz.:
    “I find and report as matters of fact: That in the month of April, 1855, Edward Richardson and William P. Richardson were the owners of a vessel called the Mary and Jane, then lying in the port of Hew York; and in the latter part of April, 1855, employed the plaintiff as master of said vessel, for a voyage to South America. That the defendants made advances to the said Edward Richardson and William P. Richardson to a large amount; and for the purpose of securing to the defendants such advances, the said Edward Richardson and William P. Richardson, in the latter part of April, 1855, while said vessel was lying in the port of Hew York, made an absolute bill of sale of said vessel, in form, to the said defendants, but which was in fact a mortgage on said vessel to secure such advances; and at the same time to further secure the said defendants for such advances, the said Edward Richardson and WilHam P. Eiehardson consigned to the defendants the cargo of lumber then on board the said vessel, with authority to sell same in port, or to send same to sea.
    “ That the defendants, after receiving said bill of sale of said vessel, and consignment of cargo, were mortgagees in possession of said vessel and cargo; and that the plaintiff, with the assent of the defendants, continued in charge of said vessel, and was recognized and treated as the master of said vessel by said defendants; and that said plaintiff, as such master, after the giving of said bill of sale and consignment of cargo to said defendants, performed the voyage and did the services as alleged in the complaint herein, and as such master accoxmted to the defendants, as such mortgagees in possession, for the proceeds of the sale of the outward cargo, and out of the proceeds of sale of such outward cargo, plaintiff purchased, by the direction of said defendants, an intermediate cargo, and accounted to the defendants for the proceeds of the sale of such part of the intermediate cargo as was sold; that the said defendants collected all the freight earned by said vessel on said voyage; that the outward cargo of said vessel was consigned by defendants to their own agents, and the vessel, on her retxxrn voyage, was consigned to the said defendants; that the defendants after the retxxrn of said vessel, sold the said vessel, and received the purchase money therefor; that said defendants paid the expenses of said- vessel on said voyage, including the wages of the crew, and paid the plaintiff on account of the services rendered by him as such master, after his return, the sum of two hxxndred dollars. And I find and report, that the said Edward Eiehardson and William P. Eiehardson were in fact the owners of said vessel, and the defendants mortgagees thereof. That the only interest the said Edward Eiehardson and William P. Eiehardson had in said vessel, cargo, freight and proceeds of said voyage, was in such balances as might remain after the defendants had realized therefrom sxxfficient to pay them the advances made by them as aforesaid, and the expenses of said vessel in making said voyage; and the defendants had a right to, and did receive, the proceeds of the sale of the vessel, cargo and freight, as mortgagees in possession of said vessel. That said plaintiff performed services as such master, from the first day of May, 1855, to the eleventh day of April, 1856; and that his services as such master during that time were reasonably worth the sum of one hundred and twenty-five dollars per month, amounting in all to the sum of $1,420.82. That the said plaintiff disbursed money on account of the expenses of said vessel, and that on the eleventh day of April, 1856, there was due to the said plaintiff, for his services as such master, the sum of $1,220.82, and also the sum of $41.93 for money disbursed by him as such master, for the expenses of said vessel, over and above the amounts received by him from said defendants, making in all the sum of $1,262.75. That the defendants on the eighth day of April, 1856, paid to the plaintiff the sum of $253.13 on account of his services and disbursements, instead of after the eleventh day of April, 1856, as stated in said complaint, and leaving due to the said plaintiff on the eleventh day of April, 1856, the said sum of $1,262.75. And I find and report that there is now due to the said plaintiff by the defendants, the said sum of $1,262.75,- with interest thereon from the eleventh day of April, 1856, and which sum, with interest thereon as aforesaid, up to the date of this my report, amounts to the sum of $1,667.86. And I find and report, as a conclusion of law upon said facts so found, that the plaintiff is entitled to recover judgment herein against said defendants for said sum of $1,667.86, besides the costs of this action.
    The defendants excepted to the decision of the Beferee, and appealed from the judgment entered on the report.

      Charles Donahue, for the appellants.
    S. D. Dillaye, for the respondents.
   By the Court—Bosworth, Ch. J.

The Beferee has found most of the material facts alleged in the complaint, to be as therein stated. They cannot be disturbed as being contrary to the evidence, His findings do not determine in terms, the truth or falsity of some few of such facts.

The complaint alleges the defendants to be owners of the vessel. The Beferee finds that they held the legal title, but as security only, and that they were mortgagees in possession of the vessel and cargo, and that the plaintiff as master, by their direction, purchased with the proceeds of the cargo of the outward voyage, an intermediate cargo; that the defendants received the proceeds of such part of it as was sold, and collected all the freight earned by the vessel on the voyage in question. They therefore held the legal title, and had control of the voyage and were owners of the vessel, pro hac vice.

The complaint alleges that the defendants hired the plaintiff to go as master of the vessel for the voyage, and that he went as master under such hiring. This is denied by the answer.

The Beferee does not in terms state how he determined these allegations of fact. There was direct and positive testimony in relation to the question of an actual hiring of the plaintiff by the defendants.

The Beferee finds, that after the defendants became mortgagees in possession, the plaintiff continued in charge of the vessel with their assent and was treated by them as master; that he accounted to the defendants as mortgagees in possession, purchased by their direction an'intermediate cargo, that they sold the vessel after her return and received the purchase money, as well as collected all the freight for the voyage, paid the expenses of the vessel on the voyage, including the wages of the crew, and paid the plaintiff after his return, on account of the services rendered by him as such master, the sum of $200; that the master’s services were reasonably worth, $1,420.82; “ that there is due to the said plaintiff by the said defendants,” the sum of $1,262.75, with interest from April 11, 1856, amounting in all to $1,667.86. All these matters are found as matters of fact.

In order to have found, as a fact, that the defendants owed the plaintiff, for his services as such master, the $1,262.75, and interest, he must necessarily be deemed to have found adversely to the allegations in the answer that E. Bichardson & Co., the mortgagors, employed the master, and that the defendants acted in the business of said vessel and her cargo, and her freight, solely as the agent of the said firm.

According to the decision of the Court of Appeals in Grant v. Morse et al., (22 N. Y. R., 323,) and in the language of the opinion in that case, “as the Beferee did not draw any such conclusion,” (as is consistent with the truth of these allegations,) “it is not for the Court to draw it for him.” * * “The party appealing must make his case and have it settled, with such a statement of facts, as will show necessarily, that the law is in his favor. If he does not, every intendment not absolutely unreasonable .in itself, will be against him.” * * * “The Beferee’s general conclusion that the plaintiff was entitled to the judgment recovered, implies that he had a different view of the evidence; ” (that is a view adverse to the defeated party,) “because we are not to presume that he erred in the law.”

When it does not appear, by the terms of the report, or by the case, that the Beferee has refused or was requested to report more precisely than he has done, in respect to :any material allegations embraced within the issue, the Court is left to infer that the general conclusion of the Beferee, as contained in his report, did involve a finding by him, although not in terms expressed, upon every material allegation ,• and the intendment must be, (nothing in the case indicating the contrary,) that he found in favor of the party whom he held entitled to recover.

Upon the facts stated in the report of the Beferee, nothing •being proved to impair their legal force and effect, the .plaintiff would be entitled to a peremptory instruction .that he was entitled to a verdict. (4 Hill, 177 ; 6 id., 218.)

And if the report had, in terms, found the truth of the allegation in the complaint of an actual hiring of the plaintiff by the defendants, the Court could not have set it aside as contrary to the evidence.

There is a direct conflict between the witnesses testifying in respect to this matter. But the fact of actual hiring was sworn to, explicitly—what the truth was, was purely a question of fact. Its determination falls within the province of a jury; and in this case devolved upon the Referee, the substitute for a jury agreed upon by the parties. It must be intended that the Referee found it in favor of the plaintiffs.

Our attention is not directed by the appellant’s points to any exception taken during the trial, nor was there any called to our attention upon the argument.

The judgment should be affirmed.

Ordered accordingly.


source: Caselaw Access Project

author: Hoffman, J.

license: Public Domain

text:
    Geo. A. Simmons, Plaintiff and Respondent, v. George Law, Defendant and Appellant.
    1. Where gold dust is received at San Francisco, by a common carrier from, that place to the City of New York, to be carried and delivered by Mm at the latter place, and on receiving it he delivers to the shipper a bill of lading which states that it is received on the Antelope at San Francisco, and that “ on arrival at Panama, the same is to be forwarded across the Isthmus and to be reshipped by one of the United States Mail Steamship Company’s ships to New York, * * and to be delivered in like good order and condition at the port of New York, dangers of the seas, (land carriage and river navigation, thieves and robbers,) excepted,” and the gold dust is not delivered; the carrier is liable unless he shows that he was prevented from delivering it by some of these causes.
    2. Under such a bill of lading, the common carrier does not cease to be such as to the transportation across the Isthmus, and become a bailee for hire, chargeable only on proof, by the shipper, that the loss arose from Ms negligence or that of his servants.

      3. In such a case (no such defense being stated in the pleadings,) the defendant cannot prove that “it was the custom of shippers of treasure to insure it against risks upon the Isthmus; nor:

      4. That there was a custom, by which the carrier of gold refused to assume any risk of transportation on the Isthmus, or that the bills of lading then in use, excepted all risks of land and river carriage on the Isthmus, or that the plaintiff had previously shipped treasure by this line, and knew of this custom when he made the shipment in question.
    5. Such evidence is inadmissible for the purpose of giving thereby a construction to the bill of lading in conflict with the natural and obvious meaning of its language, or its clear legal import.
    (Before Bosworth, Oh. J., and Hoffman and Woodruff, J. J.)
    Heard, April 3d, 1861;
    decided, May 25, 1861.
    Appeal by the defendant, from a judgment. The action is brought to recover the value of gold dust shipped at San Francisco on the 14th of March, 1851, on account of the plaintiif, to be carried to, and delivered to him at the city of Hew York; but which was never delivered. It was shipped on board the Atitelope, one of a line of ships owned by the defendant, under a bill of lading in these words, viz.:
    “ Shipped, in good order and well-conditioned, by Collins, Cushman & Co., on board the steamer called the Antelope, whereof E. H. Ackley, Esq., is master, now lying in the port of San Francisco, and bound for Panama, to say: One package treasure, (said to contain two hundred and nine oz., ten dwts., fifteen grains, Troy, Gold Dust, valued at $16 per oz., is three thousand, three hundred and fifty-two dollars and fifty cents.)
    “ On arrival at Panama, the same is to be forwarded across the Isthmus, and to be reshipped by one of the United States Mail Steamship Company’s ships to Hew York, (with the right to ship on any other steamship, in case said Company’s ship should not be there on the arrival of said package,) being marked and numbered as in the margin, and to be delivered in like good order and condition at the port of Hew York, dangers of the seas, (land carriage and river navigation, thieves and robbers,) excepted, unto George A. Simmons, Esq., or Ms assigns, freight for the said package having been paid by the shippers through to Hew York, as per margin.*
    “ In witness whereof, the master or agent of the vessel hath affirmed to six bills of lading, all of this tenor and date, one of which being accomplished the others to stand void.
    “ San Francisco, March 14th, 1851.
    “ Contents unknown to “ M. L. Pultz,

      “Purser.”

    On the trial before Bosworth, Oh. J., and a Jury, June 26, 1860, it appeared that the gold dust in question, with a large amount of other treasure, was carried by the Antelope to Panama.
    At Panama such treasure was taken ashore in boats and carried by some twenty or twenty-five natives of the country to the office of Mr. Tracy, an agent of the line, where the packages were called off and checked; none then appeared to be missing.
    On the next morning, April 7th, the treasure was loaded upon mules, and in charge of some four or five conductors, one of whom was a volunteer-guard, and another a passenger recently arrived from California, and of twenty native muleteers, was carried about twenty-five miles to
    * LAW’S LINE OF PACIFIC STEAMERS.
    Marks and Numbers. Gross Weight Alleged Value. 13. fs..l Boston, Mass. 16| lbs. gross. Avor. [l. s.] $3,352 50 Freight through to New York 1\ per cent. Five per cent primage,................. $50 29 2 51 Paid,.......................... $52 80
    Received, payment, through to New York,
    O. OHARLICK,

      Per Crane. Gorgona, where the train remained over night, and where Mr, Tracy left it. From Gorgona the train proceeded by water, stopping at night at Gatoon, and arrived, April 9th, at Chagres, where the treasure was delivered to the agent of the U. S. Mail Company, with the exception of two packages, one of them being that consigned to the plaintiff, which it then appeared were missing. Ho robbery, assault, or accident of any description occurred on the way.
    After due demand, and on the 9th of September, 1851, this action was commenced. The value of the gold treasure, at the port of destination, was proved.
    The only defense stated in the answer, in addition to a denial of material allegations in the complaint, is presented by the averment, that the “gold dust was stolen by thieves and robbers from the agents and servants of the defendant, between Panama and Chagres, while the said agents and servants were engaged in transporting the same from Panama to Chagres by land and river.”
    The defendant offered to prove certain facts, and made several requests to charge, which are stated in the opinion of Hoffmas, J. The main points in the controversy depend upon the construction and legal effect of the bill of lading; the defendant insisting and asking the Court to charge, that according to its true construction, “the transportation on the Isthmus by road and river navigation was to be at the risk of the plaintiff, and that so far as the Isthmus was concerned, the defendant was a bailee for hire and not a common carrier, and that the plaintiff cannot recover in this action, unless he proves that the loss was by the negligence of the defendant or his agents.” The Judge refused so to charge and the defendant excepted.
    The charge (which was not excepted to) was as follows, viz.:
    “There is no question that the gold dust belonging to the plaintiff, was shipped on the defendant’s line at San Francisco, to be brought to Hew York, and delivered here. There is no question, that it has not been delivered. The plaintiff brings this suit to recover of the defendant, the value of the gold dust, because it has not been delivered here. By the bill of lading the defendant agreed to deliver it here, unless he was prevented from doing so by some of the perils or causes specified in that bill of lading—among those are dangers of the seas, land carriage, river navigation, thieves and robbers. The gold dust not having been delivered, it is incumbent upon him to show by satisfactory evidence, that he has been prevented from delivering it by some of these causes.
    “There is no pretense that it was lost by dangers of the seas, if it reached Panama, and the evidence seems to be satisfactory that it did reach there.
    “There is no evidence that it was lost by robbers—that is, none of the persons in charge of the gold dust, pretend that they were attacked by any person, or that it was taken from them by violence. And the question of fact submitted to you by the counsel for the defendant is, that it was really stolen ; lost by thieves.
    “In the first place, it is proper to say, that even if it was stolen by persons employed by the company—by Mr. Law’s line, his agents, or servants, or employees, still he would be responsible. And, as it occurs to me now, I will state to you, that is of no sort of consequence in the disposition of this suit, that the plaintiff did not effect an insurance against any of the dangers of the voyage— whether he did or not would not affect the Lability of Mr. Law, on the contract which he had made.
    “Is there any evidence to satisfy you that this was lost by thieves—that is, stolen by persons not in the employment of Mr. Law, his agents or employees in connection with the business of this line ? The evidence will probar bly satisfy you, that that gold dust reached Panama.
    “ Then the next question is, did it start on the morning of the 7th in the mule train for Gorgona ? That question you will determine upon all the evidence, find if it did not, then there is no evidence to show what became of it, or which tends to show in what way it has been disposed of, or what has been its fate ? If you are satisfied that it left Panama for Gorgona, in that train, could it have been lost on the way without great carelessness on the part of the persons having charge of it ?
    “Here were these muleteers employed to take charge of the mules—these guards, each one having his attention directed particularly to the five mules in front of him; and it seems impossible that it could have been, dropped or lost on the way, there being no accident or casualty occurring, and no stopping any where as they say, for refreshments, until they reached Gorgona. There was no robbery they say, on the way, and it is pretty difficult to conjecture on what principle there could have been any theft of the treasure between Panama and Gorgona.
    “The statement is, that when they reached Gorgona, they placed it in the warehouse and it was watched during the night by these guards. There is no pretense that any body got into the house, or that there was any one in or around the house, except the persons having charge. If you are satisfied that all that went into the house went on board the boat, then it was lost after it went on board - the boat. If it was not left at Panama, and was not lost between there and Gorgona, and went on to the boat, then it was lost between Gorgona and Ohagres, because the evidence tends to show that it was not delivered from the boat; the packages were taken out, the accounts were delivered, and it was not there.
    “If it went on board of the boat, and if it was not on board when it reached Ohagres, how did it disappear? There is no pretense that any person was on board the boat except these guards and persons employed to manage it. There was no robbery committed there by any outside persons, and it is not suggested that any such person was on board, or had any facility for stealing it, so that he could have stolen it.
    “How, you are to be satisfied, in order to find a verdict in favor of the defendant, that this was stolen by some person not in his employ, or that it was taken from those in charge of it by robbery.

      “The last proposition. I do not think the defendant would urge as true in point of fact.
    “Is there any evidence which satisfies you that it was stolen, if stolen at all, by persons not in the employ of the Company? If the evidence shall satisfy you of that fact, of course you will find in favor of the defendant. If, on the contrary, there is no evidence to satisfy you that such is the fact, then your verdict will be for the plaintiff.
    “There is no controversy, I believe, in respect to the value of the gold dust, at this place. The plaintiff is entitled to the value here, with interest on that value from the time of the demand made, after it was the duty of the defendant to have delivered it here.
    “I do not understand that any objection is made to the computation in the event that you shall find for the plaintiff.”
    The cause was then submitted to the Jury, who, after retiring, returned into Court with a verdict for the plaintiff for $5,848.18, damages.
    From the judgment entered on this verdict, the present appeal is taken.

      J. W. Ashmead, for appellant.

      William Bliss, for respondent.
   Hoffman, J.

It appears to me that the bill of lading properly admits of only one construction; and that is, that the parties undertook, as common carriers, to transport the treasure from San Francisco to Panama; then to be forwarded across the Isthmus; then to be reshipped by one of the vessels designated to Hew York, there to be delivered ; and that the exception to responsibility, was from dangers of the seas, dangers of land carriage, and river navigation, and dangers from thieves and robbers.

The duty assumed by the defendants, was the duty of common carriers throughout; and, to exonerate themselves from liability for a loss, they were bound to show that it occurred from one or more of the causes within the exception.

The learned Judge covered these cases in his charge to the Jury. “The gold dust not having been delivered, it is incumbent upon the defendant to show, by satisfactory evidence, that he has been prevented from delivering it by some of these causes.

Ho part of the charge is excepted to.

The defendant’s Counsel requested the Court to charge, “ that the true construction of the bill of lading is, that the transportation on the Isthmus by road and river navigation was to be at the risk of the plaintiff, and that, so far as the Isthmus was concerned, the defendant was a bailee for hire, and not a common carrier; and that the plaintiff cannot recover in this action, unless he proves that the loss was by the negligence of the defendant or his agents. The Court refused so to charge, to which refusal the defendant’s Counsel excepted.

There is not in my opinion the slightest reason in the language or apparent object of the instrument, to warrant such a construction. The duty as common carrier is not severed so as to last for the voyage from San Francisco, to Panama, then to cease on the Isthmus, and to be resumed at the Atlantic Ocean. If so important a change of relations was intended by the parties, they should have employed terms adequate to have expressed it. There are none such here.

The only other exceptions arise as follows:

The defendant’s Counsel put to the witness the following question: “In what shape was this bill of lading, when presented to Collins, Cushman & Co.,” (the shippers of the gold dust.) The plaintiff’s Counsel objected to the question. The Court sustained the objection, and the defendant’s Counsel excepted.

The defendant’s Counsel then offered and proposed to prove by the witness:

“ That it was the custom of shippers of treasure to insure the treasure against risks on the Isthmus.

To prove the customary premium on insurance of treasure, against the risks of the Isthmus in March, 1851.

“To prove that there was a custom in reference to the transportation of treasure across the Isthmus in 1851, and previous thereto, by which the carrier of gold from San Francisco to New York, refused to assume any risk of transportation on the Isthmus, and that the bills of lading then in use, excepted all risks of land and river carriage on the Isthmus.

“ To prove that the bill of lading read in evidence by the plaintiff, was entered into with this understanding, for the purpose of explaining any ambiguity in the language.

“To prove that the parties who shipped the treasure in question, had frequently before shipped treasure by the line on which this treasure was shipped, and when they shipped this treasure they knew the customs which the defendant’s Counsel had offered to prove as above stated.

“And to prove that Henry Tracy was the agent at Panama, of the United States Mail Steamship Company, and not of the defendant.”

To each of these offers or propositions which were separately made, the plaintiff’s Counsel objected, as they were respectively made, and the Court sustained each objection, and excluded all of said testimony. And the defendant’s Counsel excepted to each of such decisions of the Court.

The leading object of these offers of counsel, is to show that a custom existed by which the plain language of a bill of lading constituting common carriers is to be superseded, and that they were bound, for a portion of the transportation of the goods, only for acts of neglect on their own part, or on the part of their servants; that the burden of proof is changed, and instead of discharging themselves by proof of the case being within an exception, the shipper must show their negligence and fault.

I cannot imagine that any respectable authority can be found which would justify the introduction of a custom in proof to control and annul the legal effect of the instrument in question. It is also remarkable, if the bills of lading in common use had the effect ascribed to them, that in the present instance a wholly different bill of lading has been used, without any proof of mistake or accident.

The appellant has not relied, in his points, upon the exceptions for not admitting proof of an insurance by the plaintiff. We cannot see how such a fact could have varied the case. Nor has he insisted upon the repetition of the offer to prove that he was the agent of the mail company at Panama and not of the defendant.

I think the judgment should be affirmed, with costs.

Bosworth, Ch. J., and Robertson, J., concurred.

Judgment affirmed.


text:
    A. Rӧlker et al., Plaintiffs, v. The Great Western Insurance Company, Defendants.
    1. A policy, which insures the plaintiffs, “on account of whom it may concern for outward shipments, and homeward, to be for account of themselves, and to be consigned to them by invoice and bill of lading," and which declares; “no outward shipment to be considered insured until approved and indorsed on this policy by this company." Homeward shipments to be reported as soon as ascertained. Also, to cover such other risks as may be approved and indorsed on this policy. It is agreed that this policy shall also cover shipments consigned to the plaintiffs, and addressed to Veuve A. Merentie & Co.,” will not cover a homeward shipment consigned to the plaintiffs, it not being addressed to Veuve A. Merentie & Co., and being consigned by third persons, owners thereof, to the plaintiffs for sale as factors, and the plaintiffs not being otherwise interested therein.
    (Before Bosworth, Ch. J., and Hoffman and Woodruff, J. J.)
    Heard, April 11;
    decided, May 25, 1861.
    Exception by the plaintiffs, August Rolker, August Mollman, Alphonse Eerier and Felix Cheteaux (comprising the firm of “ Utilizer, MtiTlman & Co.,”) to a decision in favor of the defendant, The Great Western Insurance Company, dismissing the complaint.

      The defendants, by a policy of insurance dated January 17, 1857, insured the plaintiffs “ on account of whom it may concern for outward shipments, and homeward to be for account of themselves and to be consigned to them by invoice and bill of lading,” for voyages specified, “ on specie and merchandise, or either. * Ho outward shipment to be considered insured until approved and indorsed on this policy by this company. * * Homeward shipments to be reported as soon as ascertained. * * Also to cover such other risks as may be approved and indorsed on this policy.” * * It is agreed that this policy shall also “ cover shipments consigned to A. Bolker, Mollman & Go., and addressed to Yeuve A. Merentie & Go., upon all kinds of lawful goods and merchandises, laden or to be laden on board the good vessel or vessels,” &c. The parts of the policy above quoted were written in the blanks of its printed parts. The-goods, for the loss of which the plaintiffs in this action claim to recover under said policy, were shipped at Port au Prince on the 18th of December, 1856, on the ship Delafield, and were by the bills of lading to be delivered “ unto Messrs. A. Bolker, Moll-man & Go., or to their assigns,” and consisted of 825 bags of coffee, which were so consigned “ for the account of Edward Lloyd & Go.,” and of 275 bags which were so consigned “ for the account of Mr. Maunder,” and the “ consignment was to them (the plaintiffs) for sale as factors.” The Delafield sailed from Port au Prince on the 21st of December, 1856, and was not heard from after that. On the 6th of February, 1857, the plaintiffs presented to the defendants a written statement and notice of the fact and particulars of such shipment, including the date of . the bill of lading, the names of the vessel and of the master, with a request that it might be entered on said policy; and the defendants declined, stating that they would not take the risk. This statement or nolice was presented and application made, as soon as the plaintiffs heard of such shipment.

      The complaint, on a trial had December 15, 1859, before Judge Pierrepont and a jury, was dismissed, on the ground “ that it appeared from the evidence that the plaintiffs were not interested in the coffee shipped by the brig Bélafiéld, otherwise than that the same was coming under consignment to them, and that the policy did not cover such homeward risk.”
    The plaintiffs excepted, and the court then ordered that the questions of law be first heard at the general term, and the entry of judgment, in the meantime, suspended.

      A. Roller, for the plaintiffs.
    I. The plaintiffs, as consignees, had an insurable interest in the goods to their full amount, and might effect insurance thereon in their own names and on their own account. (Arnould on Ins., I, p. 229, ch. X, and pp. 245,246 ; Phil. on Ins., I, p. 176 ; De Forest v. The Fulton Fire Insurance Company, 1 Hall, pp. 133, 134, 135 ; Lucena v. Crauford, 3 Bos. & Pull., 95 ; 2 Bos. & Pull., N. R., 302, 321 ; S. C., 5 Bos. & Pull., 289 ; Craufurd v. Hunter, 8 T. R., 13 ; Hancox v. Fishing Insurance Company, 3 Sumn., 132 ; Wiggin v. Mercantile Insurance Company, 7 Pick., 271 ; Carruthers v. Sheddon, 6 Taunt., 14 ; S. C., 1 Marsh. R., 416 ; 3 Kent Com., p. 271 ; Putnam v. Mercantile Marine Insurance Company, 5 Metc., 386 ; French v. Hope Insurance Company, 16 Pick., 397.
    The words “on account of whom it may concern” must relate to both outward and homeward shipments.
    It would be an arbitrary interpretation to refer these words to outward shipments alone.
    If it refers to neither “outward and homeward” shipments, then the words would have no effect whatsoever.
    The Court will give a meaning to all words contained in an instrument.
    The plain intention of the parties was to have the policy apply to all goods which might come to them, either for account of themselves, or that might be consigned to them, and to insure them for whom it might concern.

      The sentence, if put in proper English, would be: The plaintiffs make insurance for such outward shipments and homeward, as shall be for account of themselves and such as shall be consigned to them by invoice and bill of lading. (Wiggin v. Mercantile Insurance Company, 7 Pick., 271 ; Buck v. Chesapeake Insurance Company, 1 Pet., 151, 162, 163 ; Columbian Insurance Company v. Lawrence, 2 id., 25, 46, 47 ; Hancox v. Fishing Insurance Company, 3 Sumn., 132, 140.)
    XL The policy attached to and covered the cargo of the brig Delafield. Upon the evidence, its loss by the perils of the seas was presumptively established. The plaintiffs were entitled to recover under the policy. The decision of the Court by which the case was taken from the jury, and the complaint was dismissed, is erroneous. A new trial should be ordered;

      Wm. M. Evarts, for defendants.
    I. The interest in homeward cargoes, intended by the parties to be protected by the insurance, is clearly and unequivocally described in the policy as limited to “homeward shipments, to be for account of the plaintiffs themselves, and to be consigned to them by invoice and bill of lading.” A manifest distinction is made between outward shipments and homeward. Ko outward shipment was to be considered insured, unless approved and indorsed on the policy; and any outward cargo might be so applied upon the policy, for account of whom it might concern, whether the plaintiffs had any interest therein or not, and whether the same should be shipped by themselves or other parties; -but in each outward risk the Company retained the power of approval or rejection. As to homeward shipments, nothing is left open for subsequent adjustment between the parties, the company being bound to apply upon the policy the class of homeward shipments therein described, and the assured being entitled to no others'. The homeward shipment reported in this instance was not for account of the plaintiffs themselves, and they had no interest in it at or before the time of the loss. It was not therefore within the policy.
    1. The reason for the distinction made between outward and homeward shipments is obvious. As to outward shipments, whether made by, or for account of, the plaintiffs or other parties, the company retained complete control over the contract, by means of its right to notice, and power to approve or reject. As to homeward shipments, which were, of course, made abroad, and by unknown parties, and under undisclosed circumstances, the company limited the risks it was willing, in advance and without the possibility of particular judgment on the risks, to assume. It required the determinateness of ownership, and the guaranties which the ascertained ownership gave as to the unknown circumstances of the risk, as fixed elements in the open contract it was ready to make. As the company was contented to make, so the plaintiffs were contented to take this insurance.
    2. The remaining written portion of the policy sanctions the construction of the first clause, contended for by the defendant. “Also, to cover such other risks as may be approved and indorsed on this policy.” As to outward shipments the same provision had already been expressed. This clause, therefore, must have been added in reference to homeward shipments only; and by this clause it was left open for the plaintiffs to cover any consignments to them, for account of the consignors or other parties, which they might desire to insure, and which, when reported, the company might see fit tó cover. “ It is agreed that this policy shall also cover shipments consigned to A. Rolker, Mollmann & Company, and addressed to Veuve A. Merentie & Company,” &c. Obviously, if the preceding words of the policy operated to cover all shipments from the West Indies consigned to the plaintiffs, and also all shipments from there consigned to other parties for the plaintiffs’ account, these words would be unnecessary and superfluous.

      3. Some force must be given to the words in the policy “on account of whom it may concern,” of which the essential part is written and not printed. That these words apply to outward shipments is agreed on both sides, and such application satisfies then use. That these words do not apply to homeward shipments is clear, for if they did, the addition of the words “for account of themselves,’ as limiting the class of homeward risks to be taken, would be utterly insensible.
    H. There is neither obscurity nor ambiguity in the terms of the policy which describe the classes of risks to be covered. Had there been, it might have been competent to give evidence of the dealings of the parties under the policy, or of the usage among underwriters under similar policies. Ho such evidence having been offered, the case must stand upon the distinct and certain terms of the .contract.
    III. The plaintiffs’ exception must be overruled, and judgment directed to be entered for the defendant.
   By the Court—Bosworth, Ch. J.

As we construe the policy, the plaintiffs were insured by it “ on account of outward shipments for whom it may concern.” The outward shipments insured on account of whom it may concern, were not, by force of the subsequent clause, to be shipments “for account of themselves, and to be consigned to them by invoice and bill of lading.” Such a qualification, applied to outward shipments, would be impossible and absurd. Those words must apply to, and define the class of risks on homeward shipments to which the policy, by force of its first, sentence, was to attach.

Outward shipments, while they were insured on account of whom it might concern, were not to be considered insured until approved and indorsed on the policy by the company.

All homeward shipments within the description of that class of risks contained in the policy were covered by it, and the only further condition was, that they should be reported as soon as ascertained.

Whether the further provision, “ that this policy shall also cover shipments consigned to A. Rolker, Mollmann & Co., and addressed to Veuve A. Merentie & Co.,” &c., would cover shipments answering to this description, although the plaintiffs had no interest in them except as consignees, is a question that does not arise on the case as it is now presented. The shipment in question was not so addressed.

Under this construction of the policy, the case is free from doubt.

The shipment in question was not for account of the plaintiffs; it was for account of Edward Lloyd & Co., as to part, and for account of Joseph Maunder, as to tire residue, and was to be sold for the account of the said owners, by the defendants as factors. The shipment, therefore, was not covered by the policy, and the complaint was properly dismissed.

Judgment must be entered in favor of the defendant.

Ordered accordingly.


text:
    E. Wells Sackett and Alfred Cobb, Plaintiffs and Respondents, v. The New York and New Haven Railroad Company, Defendants and Appellants.
    I. Where an action, to recover a sum alleged to be due for work and labor done by the plaintiffs for the defendants and at their request, is tried before a. referee who finds for the plaintiffs the sum claimed, and his report contains a statement of the matters of fact found by him, and many of such matters are not embraced within the terms of the issue, and the report does not in terms pass upon the substance of the issue made by the pleadings, and the evidence in the case would -not warrant a finding of such issue, in its substance, in the plaintiffs’ favor, and many of the material facts specified as found, are contrary to evidence, the report will be set aside and a new trial granted.
    (Before Boswobth, Oh. J., and Hoffman, J.)
    Heard, April 3, 1861;
    decided, June 1, 1861.

      Appeal by the defendants, from a judgment entered on the report of Dan Marvin, Esq., as Beferee.
    The complaint alleges that on the 9th of September, 1858, “defendant was indebted to the plaintiffs in the sum of $115, on account for the services of these plaintiffs and their servants, rendered to the defendant, at its request, at the Oity of Yew York, in printing 250 pamphlets, and for materials and other necessary things furnished by the said plaintiffs in and about said work, and on the like request, which sum became due'to them therefor, from the defendant, on the 9th of September, 1858, but no part thereof has been paid,” and prays judgment for $115, with interest from September 9, 1858. The complaint contains no other material allegation. "
    The answer denies the several allegations of the complaint.
    The Beferee’s report is as follows, ..viz.:
    “ I find, as matters of fact: That on or about the 7th day of September, 1858, the defendant, The Yew York and Yew Haven Bailroad Company, employed one George S. Boe, a stationer, to print, or procure to be printed, 250 pamphlets entitled “Memorial,” mentioned in the complaint.
    “ That said Boe, at the time of receiving said order, was insolvent, and made a general assignment a few days afterwards, (15th September, 1858,) and his check for money borrowed of the defendants had been returned through the bank dishonored, in April, 1858.
    “That said Boe had had dealings with the defendant for about ten years previous, and, in his printed cards, described himself as a stationer, printer and blank book manufacturer, but had no printing establishment, and actually did no printing himself, and the defendants had notice of that fact.
    “ That said Boe employed the plaintiffs to do such printing, informing them it was for the defendants, who would pay cash for the same as soon as it was done; and the plaintiffs printed such pamphlet only on the credit of the defendants, and charged the same only to them, and upon the condition and understanding that the payment for the same was to be made direct to them by the defendants.
    “ That within ten days after the printing was ordered, (the same having been done, and the pamphlets delivered to the defendants in the meantime,) the plaintiffs presented their bill to the defendants for such printing, being one hundred and fifteen dollars cash, and requested payment, and gave notice to the defendants not to pay any money to said Roe, or his assignee, for such printing.
    “That such sum was the fair value of such printing.
    “That after such presentation and notice, the defendants retained, used and distributed such pamphlets.
    “ That the defendants, when the plaintiffs’ bill was presented, made no objection thereto, except alleging that they knew only said Roe in the transaction, and he was indebted to them, and if they paid the plaintiffs they would pay twice.
    “That the state of accounts between said defendants and said Roe was not proved béfore me, but if any indebtedness existed on the part of said Roe to the defendants, it accrued before the month of August, 1858, and the defendants have not paid said Roe, or any one else, for such printing, which was done entirely by and at the expense of the plaintiffs, on the credit of the defendants, as aforesaid.
    “And upon these facts I adjudge, as matter of law, that the defendants are liable to the plaintiffs for the price and value of such printing, and that the said plaintiffs recover against the said defendants the amount thereof, Avith interest, being the sum of $130.07, together with their costs and disbursements herein to be adjusted.
    “All which is respectfully submitted.
    “Dated October 26th, 1860.”
    The evidence, in relation to the facts specially found by the Referee, and stated in his report, is sufficiently set forth in the opinion following.

      Judgment having been entered on the report, the defendants appealed from it to the General Term.

      Wm. Tracy, for the appellants.

      George Bowman, for the respondents.
   By the Court—Bosworth, Ch. J.

The complaint states as a cause of action, that defendants are indebted to plaintiffs in the sum of $115, for printing 250 pamphlets at the request of the defendants.

There is no ground, upon the evidence, for pretending that the defendants ever requested the plaintiffs to do the printing, or authorized any one to make such request in their behalf.

At the trial only four witnesses were examined, viz.: the two plaintiffs and the defendants’ treasurer and president.

The evidence establishes that G. S. Roe had furnished the defendants, from 1849 into September, 1858, with their books, stationery and printing; that they always settled with him therefor; and that in his printed cards he represented himself to be a “ Stationer, Printer and Blank Book Manufacturer.” Early in September, 1858, the defendants’ president ordered Roe to print the 250 pamphlets in question. This was done in the regular course of the business they had had with him during the previous nine years. The pamphlets were furnished to the defendants under this order. The plaintiffs were employed by Roe to do the printing.

Sackett (one of the plaintiffs) testifies, that ten days after the work was done he had an interview with Mr. Bement, the defendants’ treasurer, in relation to it. That about a week afterwards he called again on Bement, and on the day after the second interview, the plaintiffs sent to the defendants a bill for the printing, accompanied by a not e signed by them, which were read in evidence. The bill is dated September 9,1858, (probably on the day the printing was completed, it having been ordered by Roe about the 7th of September.) Hence this account and accompanying note were delivered about the 26th or 27th of September. The written note states, that “ the above work was done by us, and we are entitled to the pay for it, which Mr. Eoe, as agent or broker obtaining the order, promised to get from you and bring to us as soon as the work teas done."

All the evidence there is, as to what passed between Eoe and either of the plaintiffs, or as to what Eoe said when he applied to them to do the printing, is in the testimony of Mr. Cobb, (one of the plaintiffs.) He testifies thus: “ Mr. Eoe sent for me and I went to see him; he asked me if I could do the work of printing the pamphlets; I told him I could do it; I told him as soon as it was finished I must have the money ; he said that we should have the money direct from the Eew Haven B. E. Co. That's all that took place betiveen us." In all this, Eoe does not profess to order printing as the agents of the defendants. Eor does it furnish any basis for a pretense that he represented himself as authorized to contract in their behalf, and on their credit.

This contract, and the plaintiffs’ written note before quoted, import that the plaintiffs did the printing, relying on Eoe’s promise to get the money from the defendants and take it to them as soon as the work was done. Such is their written statement of the nature of the transaction, made some fourteen days after the work was done.

The Beferee’s finding that Eoe informed the plaintiffs at the time of ordering the printing, “that it was for the defendants, who would pay cash for the same as soon as it was done,” is not warranted by the evidence; if, thereby, it be meant, that he said he wanted it done on the credit of the defendants, or that they would pay the plaintiffs for doing it. The evidence shows that they relied on his promise to get the money and bring it to them.

The finding that the defendants knew Eoe “had no printing establishment and actually did no printing himself,” is contrary to the evidence. Eo one swears that the defendants had notice to that effect.

Bement swears that he did not know that Roe had not any printing establishment; and he gave nearly every order that was given to Roe for the Company, during their nine years’ business.

Hr. Bulkley, the President, who gave the order in this instance, says he knew Roe as a stationer and printer. He never saw him printing, nor any printing establishment at his place, No 1 Hanover street. There is no other evidence as to notice to the defendants that Roe had no printing establishment, and actually did no printing himself.

The finding that the plaintiffs presented their bill and gave the notice in evidence, within ten days after the printing was done, is in direct conflict with the testimony of Sackett, who swears he presented the bill at the second interview, some seventeen days after the printing was done; and with that of Bement, who swears, in effect, that it was not presented at the first interview, (which was ten days after the printing was done,) but that it was presented at the second interview

The finding that the defendants retained, used and distributed the pamphlets after the bill and notice were presented to them, has no evidence to support it beyond the two facts that the defendants received and distributed the pamphlets; whether they were distributed before or after the notice was given, there is no evidence to show. To support the fact found, it must be deemed just, as an inference, that they would be withheld from distribution some seventeen days. This seems an unnatural inference from the fact that they were published to be distributed.

The Referee’s finding is not in the terms of the issue made by the pleadings. • ■

The evidence given does not justify a finding of such issue in favor of the plaintiffs. It does not support either -of several of the facts specially found.

The judgment must be reversed and a new trial granted, with costs to abide the event.

Ordered accordingly.


text:
    Hayden et al., Plaintiffs and Respondents, v. Nevins et al., Defendants and Appellants.
    The defendants being joint owners with W. & Co., of the Metoka, obtained a policy, March 8, 1852, for one year, in their own names, for §5,500, on the interest of W. & Co., therein, (being one-sixth,) loss, if any, payable to themselves, and gave their notes for the premium, which in case of loss was to be deducted.
    October 2, 1852, W. & Co., assigned all their property to plaintiffs, who, by letter, October 20, 1852, informed defendants thereof and stated, “we wish insurance on the Metoka to be for our account, from October 2, 1852, and we will be accountable for the premium from that time to the expiration of the present policies, or until we direct them to be canceled.”
    October 25th, 1852, defendants acknowledged receipt of the letter, saying “ we note contents; will forward our accounts against W. & Co. when we know how to make them out.”
    November 20,1852, they procured this indorsement to be made on the policy, “It is agreed that a change of interest shall not prejudice this insurance.” In December, 1852, the defendants charged in their books, to the plaintiffs, the premium from October, 2, 1852, for the balance of the year, and in January, 1853, rendered an account containing this charge.
    A loss occurred in December, 1852, and defendants received the whole amount, $5,500, in March, 1853. In that month, plaintiffs requested payment of the moneys received, and defendants insisted on deducting the whole amount of their premium notes, and refused to pay only the balance after making such deduction. The plaintiffs drew for $4,500, which was paid, and brought this suit to recover the balance due without such deduction.

      Held, 1. That the policy from October 2,1852, became one on the interest of the plaintiffs as assignees, and that they were entitled to the whole sum insured, without any liability to have deducted therefrom the premium, from the date of the policy to October 2, 1852.
    2. That the demand made and refusal to pay, were sufficient to maintain the action.
    (Before Bosworth, Ch. J., and Woodruff, J.)
    Heard, April 1, 1861;
    decided, June 1, 1861.
    Appeal by the defendants, Peter I. Kevins, Jacob A. Kevins and Peter I. Kevins, Jr., from a judgment in favor of the plaintiffs, Aaron Hayden, Bion Bradbury and Seward B. Hume, as assignees of Wheeler & Co.
    The action is brought to recover the amount insured on the“Metoka,” defendants having received it; and was tried in April, 1860, before Judge Bobebtsob, without a Jury. The facts found by him, and his conclusions of law, are succinctly stated in an opinion accompanying his decision, as follows, viz.:
    Bobebtsob, J. In the year 1852, Messrs. Wheeler & Co., merchants, doing business at Eastport, in the State of Maine, were joint owners with the defendants, of the ship Metoka. The defendants procured a policy of insurance in their own names upon the interest of Wheeler & Co., in such ship for $5,500, from the Mercantile Insurance Company, of the City of Kew York, for one year from the 8th of March, 1852, the loss, if any, payable to themselves.
    On or about the 2d of October following, Wheeler & Co. assigned all their interest in such vessel and other property to the plaintiffs, also residing in Eastport, Maine.
    On the 20th of October, the plaintiffs wrote to the defendants, informing them of the assignment from Wheeler & Co., and in the same letter requested the insurance on the Metoha, and other vessels, to he for their account, saying they would be accountable for the premiums from the preceding 2d of the month until the expiration of the existing policies, or until they should direct the policies to be canceled. The defendants replied to such, letter that they had received it, and noted its contents, and promised to forward accounts. The defendants had in September previous, paid all the premiums upon such policy of insurance, and charged the amount to Wheeler & Co. In December following, they credited that firm with the same proportion of such premium as the period between the 8th of March and 2d of October bore to the whole year, and charged the plaintiffs, as assignees, with the residue; and in January' following, they rendered an account to the plaintiffs containing such charge. In Kovernber of the same year, an indorsement on such policy was procured by the defendants to be made by the Mercantile Insurance Company, declaring that a change of interest should not prejudice such policy. In December, a loss occurred under the policy, and in March following, the defendants received the amount of such loss from the Company, and paid over a large part to the plaintiffs, but claimed to retain the part of the premium charged to Wheeler & Oo. The amount of the original premium was, by the terms of the policy, to be deducted, if unpaid, from the loss. The assignment from Wheeler & Oo. to the plaintiffs, provided for a return of assets to the former, after paying the claims of creditors who should accept such assignment.
    The only question, it seems to me, under these facts, so far as any claim for a lien on the proceeds of the policy is concerned, is whether the policy with the indorsement in November, became a new policy covering the interest of the plaintiffs, instead of a continuance of the old policy covering the interest of Wheeler & Oo. At the time the plaintiffs gave directions respecting the insurance in October, ■ 1852, they would have had no claims for any loss, under the original policy, because they were not the persons, and theirs was not the interest intended to be insured thereby, by the defendants. (Sharp v. Whipple, 1 Bosw., 567.)
    And whether Wheeler & Oo. could have recovered or not is immaterial, except that the defendants could not, by merely agreeing to hold the same policy for the plaintiffs, divert the right to the proceeds from Wheeler & Oo.; of course the assignment to the plaintiffs, by the latter, of the ship did not transfer the right to the policy, or any sums to become due under it. Nor is it material whether the insurers were informed, in either case, of the persons intended to be covered by the insurance, the mere intention by the defendants being enough. The defendants had control of the policy, so far as Wheeler & Oo. were concerned; as their agents, they could have the policy canceled, and pro rata premium returned, which it would have been a matter of prudence to do, as it might be doubtful if Wheeler & Oo.’s insurable interest remained, and they would thereby secure the part of the premium unearned. It would also be much more convenient to reinsure for the plaintiffs in the same company, because, by taking out a new policy, the latter might be rendered more willing to cancel the old policy, where no premium was to be returned.
    The defendants undoubtedly accepted the engagement proffered by the plaintiffs, in the letter of October 20th, at least they did acts from which the plaintiffs had a right to infer that they had performed what the former had requested to be done. If the defendants had, in Hovember, taken out a new policy, in the same form in which it formerly stood, intending to cover the plaintiffs thereby, there is.no doubt that no one else- but they would be entitled to the proceeds of a loss. There is no question but they did so intend, and that both they and the Company understood that the policy with the indorsement was intended to cover a new interest; in fact, so far as the plaintiffs were. concerned, to become in reality a new policy, using the old instrument to express the new contract. The defendants might have gone through the ceremony of receiving back the pro rata premium on the Wheeler policy with the understanding that they Avould pay it back on the Hayden policy, but it was unnecessary; they might also have used another printed form of insuring, but that was also unnecessary; the understanding plainly was that the policy should cover the new interest and the loss was paid on account of it. The plaintiffs not only proposed to have the insurance continued on their account, but also to pay the future part of the premium; they had no object or interest in undertaking to pay the past, they might as well have insured anew; it cannot be supposed that they intended to have any moneys they might be entitled to for a loss of goods belonging- to them, applied to paying- a debt of Wheeler & Co. Upon all the facts of the case I have come to the conclusion that on the 20th of October the plaintiffs had no interest in the policy previously made to the defendants, and instructed the latter to continue insurance on their behalf; promising to pay the future part of the premium; that the defendants accepted such agency, and having a right to cancel the policy for Wheeler & Co., did so, by changing it to one on the plaintiffs’ interest in the vessel in question, the premiums being changed so as to apply to a new one by consent.
    That the defendants could have no lien for the part of the premium earned on the first policy, on the proceeds of a loss under the second, it being a new engagement with new parties. (Sharp v. Whipple, ubi sup.)

    The mere fact of using the same printed form for both agreements, does not affect the question, and the plaintiff is entitled to judgment for the portion of the premium note withheld.
    The defendants are undoubtedly not hable as agents without a demand, but I consider their insisting on the amount of such note as an equivalent; and judgment must therefore be rendered for the balance of account in the defendants’ hands, with interest.
    Judgment having been entered accordingly, the defendants appealed.

      D. D. Lord, for appellants.
    I. Unless the defendants have lost their right by having discounted their own notes for premiums; or by Wheeler & Co.’s assignment; or by the memorandum made on the policy under date of 20th November; or by Hayden’s letter dated 20th October; or by the entries made on their own accounts; they are entitled to deduct from the loss collected the entire premium, including that which accrued previous to 20th October, 1852.
    1. As agents of Wheeler & Co., they had a lien on the policy, and on any funds collected under it for the premium. (Sharp v. Whipple, 1 Bosw., 565, and cases there cited.)
    2. Independent of their lien as agents, the terms of the policy secured this right of deducting premium. Wheeler & Co. were entitled, under the policy, only to the amount of loss, less the premium.
    3. If, therefore, the plaintiffs claim under this policy, they cannot object to its condition in this behalf.
    4. They do claim under this policy and on no other ground.
    II. The defendants have not lost their said rights by discounting their own notes given for premiums.
    1. Wheeler & Co. have not done or suffered anything entitling them to new rights.
    2. The lien for the note was not lost by anticipating its payment: whether paid before or after due, the liability to pay was the ground of lien.
    III. Wheeler & Co.’s assignment did not deprive defendants of any right.
    IV. The memorandum of 20th November, consenting that a change of interest should not prejudice the insurance, was merely a waiver of an objection; it was not a cancellation of the old policy nor the execution of a new one; the policy continued, notwithstanding, to be the same policy, and subject to the same liens and equities.
    V. Hayden’s letter of 20th October, 1852, was not a proposal involving in any way the relinquishment by defendants of their lien on the policy; on the contrary, it held out to. them the chance, in the event of a loss, of recovering the premium prior to 20th October, 1852. This was the only inducement to allow their policy to continue, and negotiate with the insurers for a waiver of the objection from change of interest.
    1. The letter says, “We wish the insurance to be for our account, until termination of the present policies, or until we direct them to he canceled.” This shows the intention that the policy should not be canceled.
    2. Defendants were justified in supposing that the continuance of the policy involved a continuance of the lien.
    VI. The defendants have not waived their lien by entries in their account.
    The entries were, charges to the assignees, of the premium after 2d October, and credit of same amount to Wheeler & Go. They show nothing more than acceptance of proposal contained in Hayden’s letter of 20th October.
    VII. The plaintiffs, being general assignees, hold really for- benefit of Wheeler & Go., who ultimately get the benefit of the insurance, and should not therefore be discharged from payment of the premium.
    VIII. The plaintiffs cannot recover without a demand. Hayden refused to take the balance admitted to be due, saying he would draw for it, and his only draft has been paid.

      H. G. De Forest, for respondents.
    I. The proofs show that the defendants collected for the plaintiffs’ account $5,500, and that the only sum actually" paid by them was $4,500.
    The burden of proof is upon the defendants, to show themselves entitled to the balance.
    Their only warrant for charging the premiums on the Admiral, the Azalia, and the Metoka, is plaintiff’s letter of 20th October.
    H. By the letter of 20th October, 1852, the plaintiffs requested the insurances to be for their (“our”) account from 2d October, adding that they would be accountable for the premiums from that date to the expiration of the existing policies.
    The evidence shows clearly, that Hevins & Sons accepted this employment.
    The plaintiffs became, thereupon, personally chargeable with the premiums from the 2d October, and the defendants were bound to fulfill the terms of the agency, the plaintiffs alone being their principals.
    III. The -defendants undertook to fulfill these instructions, and before the loss took place, they themselves adopted the only reasonable and fair construction of these instructions.

      1. The entries in the defendant’s books are inconsistent with the claim they now set up.
    2. The rendition of the account of December 1st, 1852, is inconsistent with this claim.
    3. The terms of the letter itself are inconsistent with this claim.
    4. Defendants only charged the pro rata on the other policies.
    5. The assertion of their claim was an entire afterthought.
    IV. The claim of the defendants to a lien on the policy, is inconsistent with the employment which they undertook.
    They undertook to have the policies continued on the account of the plaintiffs, for a new and distinct consideration, namely, the plaintiffs promise to pay the premium from the 2d October. Their undertaking was, that the /•plaintiffs should have the full benefit of the policies, without deduction.
    Suppose that the defendants had a lien on the policy for a balance due by Wheeler & Oo., sufficient to absorb the whole proceeds of the policy, would they have been entitled to charge this balance to the plaintiffs, after acceptance of their agency?
    The defendants not only failed to assert a lien, but they expressly and in terms stated that they had none.
    V. Ho demand was necessary to charge the defendants under the circumstances. The judgment should be affirmed.
   By the Court—Bosworth, Ch. J.

On the 2d of October, 1852, the plaintiffs, as assignees of Wheeler & Co., became owners of the vessels named in the plaintiffs’ letter of ' October 20, 1852. The defendants’ claim against Wheeler and Co., for the amount of the premium notes given on account of the policy in question, which notes the .defendants had discounted and taken up on the 29th of' September, 1852, was a mere personal demand against Wheeler & Co. The assignees were not personally liable to pay any part of it, and the defendants had no lien upon any part of the assigned property for the payment of it, or any portion of it.

If the assignees, as such, had effected a policy in their own names, the sum insured would have been received by them, unaffected by any claim of the defendants to be reimbursed out of it any part of the premium they had paid.

The request which the plaintiffs made by their letter of October 20,1852, was, that the assurance on the r Metoka should be on then' account from October 2,1852; and they in that letter agreed, on that request being acceded to, “to be accountable for the premium from that time.”

This request was acceded to. The defendants acted upon it, and, before the loss, rendered to the plaintiffs an account, in which they were debited with the premiums" from October 2, 1852.

The plaintiffs had a right to expect, in case of loss, to receive the sum insured free from any deduction for premiums, beyond the sum which they had agreed to pay to have the policy become one on their own account from October 2,1860. Their rights, as between themselves and the defendants, are the same as if a new policy had been obtained for them, for the same sum as that insured by the policy in question, and for the premium charged on defendants’ account of December 1,1852.

Mo question is now made that the moneys received on the policy belong to the plaintiffs, as the owners, at the time of the loss, and from October 2, 1852, of the property insured. The only point, in that regard, relied upon by the defendants, is, that they are entitled to retain the whole sum which they advanced for premiums, and are not restricted to the sum for which the plaintiffs agreed to be accountable, as a part of the contract that the policy should be theirs, and one on their property and their account from October 2, 1852.

As to the necessity of a demand before suit brought, we deem it sufficient to say, that after the defendants had received the moneys, which this suit is brought to recover, they refused to pay such amount thereof as they now claim the right to retain. The fair import of the findings of fact is that the defendants refused to pay all that it Avas their duty to pay. The position they then took, viewed in the light of their subsequent conduct in respect to this matter, shows that their refusal to pay the just balance, was intended to be unconditional and absolute.

The judgment should be affirmed.


author: By the Court—Moncrief, J. White, J. concurred. Bosworth, Ch. J.

text:
    Duncan et al., Plaintiffs and Appellants, v. Gösche et al., Defendants and Respondents.
    1. AVhere a promissory note is made to be used for a specified purpose and is misapplied, no recovery can be had thereon by a party receiving it as security for a precedent debt.
    2. Where the evidence upon the questions of its misapplication, and of the plaintiffs’ taking it, Inna fide, for value, is conflicting, it must be-submitted to the Jury, and their verdict will be conclusive.
    (Before Bosworth, Oh. J., and Moncrief and White, J. J.)
    Heard, May 7th, 1861:
    decided, June 1st, 1861.
    Appeal by the plaintiffs, Alexander Duncan, Watts Sherman, William Butler Duncan, Charles H. Dabney and David Duncan, (comprising the firm of Duncan, Sherman, &. Go.,) from a judgment &c., in favor of the defendants, Jacob Gosche and Henry D. Palmer.
    The suit is upon two notes for $1,000 each, at four and six months respectively, dated 7th June, 1859, made by Gosche and indorsed by Palmer.
    The defense was, and there was evidence tending to show, that defendants, about June 7th, 1859, contracted with B. Ullman for the sole privilege of selling librettos, operas, &c., at the Academy of Music, for one year, for $2,000 to be paid therefor, Avhich contract was modified and reduced to writing June 20th, 1859, by which defendants were to pay $4,000, and to make payment to D. Kingsland. That about June 7th, 1859, Isaac Jacobsohn falsely represented that he was authorized by Ullman to receive for Ullman the said two such notes, for the price, under the verbal contract as first made, and thereupon they were made and delivered to him for that purpose and on that account; but he neither delivered them to Ullman or Kingsland, but deposited them with the plaintiffs as collateral security for a precedent debt; and that defendants had paid all of the $4,000, except about $200 thereof.
    Jacobsohn, on the other hand, testified that Ullman, in Boston, asked him if he could use two notes made by Gosche and indorsed by Palmer; that Ullman said he was to have them for sale of librettos for the coming year. Witness, ‘ eight or ten days after that, received the notes from Gosche. Ullman and Palmer met him in July, “ told me it was all right; that they had the contract, and I could use the notes. I then got the notes discounted by Mr. Sherman-.”
    It appeared that the. plaintiffs furnished two letters of ■credit to Jacobsohn, one of July 16th, 1858, for £1,200, in .all, and the other of August 3d, 1858, for £400; and one .Samuel French guaranteed to plaintiffs, performance by Jacobsohn, of his part of the contract on which such letters of credit were granted. The plaintiffs also took and held as further security, two shares of Academy of Music stock, and claimed to have subsequently received from Jacobsohn, the notes in suit, in payment of a like amount of the indebtedness of the latter to them, growing out of .transactions under said letters of credit.
    At the close of the testimony, plaintiffs requested the -Judge to charge that they were entitled to a verdict, which he refused to do, and they excepted.
    Judge Woodbitff, before whom the cause was tried, March 29th, 1860, charged the Jury as follows, viz.:
    1. “ That if upon the evidence they were satisfied that the notes in suit were business notes, given on the terms .stated by witness, Jacobsohn, then there was no defense, and the plaintiffs would be entitled to their verdict; but if, on the other hand, the notes were fraudulently obtained from the defendants, or given for a special purpose, and misapplied, then, unless the plaintiff's parted with the money, or some valuable thing or security, they could not recover.
    2. “That if plaintiffs made a transaction with Jacobsohn on receipt of these notes, which amounted to a discharge of French from his liability on his guarantees of the credits, the consideration for the notes would be good; and therefore, if the plaintiffs actually received the notes, by agreement with Jacobsohn, as payment of the amount due on account of the letters of credit, and gave an unqualified credit to Jacobsohn therefor on receipt of the notes, this would operate to discharge French’s liability; and such an arrangement, if made in good faith, without any notice that the notes were not valid notes, fairly procured and for value, was sufficient to make the plaintiffs holders for value, entitled to recover. But that if the plaintiffs received them only as further security, that would not discharge French, and they could not recover if the notes were without consideration, or were procured by false representations or fraud, or were misapplied.”
    The Jury found a verdict for the defendants. No exception was taken to the charge.
    The evidence, so far as it is deemed material to state it, is contained in the opinions following. From an order denying a motion for a new trial, and from the’ judgment, entered on the verdict, the plaintiffs appealed-

      Jeremiah Larocque, for the appellants.

      E. Blankman, for the respondents.
   By the Court—Moncrief, J.

The case was one proper to be submitted to the Jury. There were questions of fact to be determined, and it would have been error to have granted the motion made on behalf of the appellants, and directed a verdict against the defendants. (Cobb v. Cornish, 16 N. Y. R., 602 ; 4 Bosw., 528 ; 3 Id., 474 ; 2 Id., 365.)

The Jury were properly instructed as to the principles of law applicable to the case. There is no exception to the charge made by the Court. The Jury, among other things, were charged “ that if the plaintiffs received the notes in suit only as further security, that would not discharge French, and they could not recover if the notes xvere without consideration, or were procured by false representations or fraud, or were misapplied.” The testimony clearly warrants the finding of the Jury that the notes were without consideration; they were made in pursuance of the verbal arrangement of June 7th, which became <\ inoperative by the subsequent written agreement of the 20th of June, by the terms of which the payment was to be and actually has been made to another party than he. to whom the notes were given. It is, therefore, unnecessary to examine the question whether or not the transaction, as between the defendants and Jacobsohn, was fraudulent or not. The Jury were warranted by the evidence, in finding that the notes in suit were accepted, discounted and passed to the credit of Mr. Jacobsohn upon s the books of the plaintiffs, only as a further and additional security for the payment of the sum due to them from Jacobsohn. The transaction between the plaintiffs and Jacobsohn was not presented to the Jury by the testimony of either Mr. Sherman, one of the plaintiffs, or of Mr." Jacobsohn, so clear- and unmistakable as to lead me to believe they erred in not finding that the notes were taken as an absolute payment of such an amount of the Jacobsohn indebtedness. Mr. Sherman says: “We consider both Ullman and Jacobsohn liable to us.” Again, qualifying the previous statement (“we took the two notes now in suit as payment ”): “ If I should not realise anything on the notes toe received, I shall hold these shcvres (of stock of the Academy of Music, received prior to the notes and transferred to the plaintiff as collateral for the indebtedness of Jacobsohn) as collateral.” Jacobsohn says, “ The understanding was, that if these notes were paid, I was to get back the stock.” Again, “ The understanding was, when I delivered them to Sherman, that when these notes were paid, I was-to get back my stock.” In my opinion the verdict is not against evidence, and the exception taken to the refusal of the Judge to direct a verdict is untenable. The judgment and order refusing a new trial should be affirmed.

White, J. concurred.

Bosworth, Ch. J.

It is entirely clear that the notes in suit, were without consideration in Jacobsohn’s hands, at the time he transferred them to the plaintiffs. They were given as the price of a contract which the defendants were to have from Ullman, for the privilege of selling librettos, one year. This contract they never obtained. For the contract which they did receive, they agreed to pay $4,000, and at the time of the trial they had paid the whole $4,000, excepting the sum of $2,000. Jacobsohn, if he had held the notes at their maturity, could not have maintained an action upon them as plaintiff.

As to the terms of the transfer to the plaintiffs, Jacobsohn testified thus: “The understanding was, that if these notes were paid, I was to get back the stock.” * * * “The understanding was, when I delivered them to Sherman that when these notes were paid, I was to get back my stock.”

Watts Sherman testified, “If I should not realize anything on the notes we received, I shall hold these shares as collateral.”

This evidence not only justified, but required a verdict, that the credit which the plaintiff gave for these notes, at the time they were taken, was not unqualified credit, and that they were taken as further security only, not at the plaintiffs’ own risk, and as an absolute payment pro tanto, but as a conditional payment.

This was nol\a parting with value in such sense as to entitle the plaintiffs to recover. They did not, by the terms of their contract under which the notes were received, part with any money, other property or security. If, by reason of the transaction, they have lost any security, it is not* because they agreed to surrender any, but because they were parties to a transaction which discharges French, although such a result was not contemplated by them.

The verdict is not contrary to the evidence, and no exception was taken to the charge as made.

The judgment should be affirmed.

Ordered accordingly.