text:
    David Jones, plaintiff and respondent, vs. William Howell, defendant and appellant.
    1. It seems that a chattel mortgage, unless renewed from time to time, by filing copies thereof, as required by law, is of no avail, as against the claim of one who acquires a lien upon the property by virtue of a subsequent mortgage, though it be with notice of the former.
    2. A party accepting a transfer of personal property, expressly subject to a mortgage thereon, held by another, is estopped from claiming a prior lien upon the property by virtue of a previous mortgage, not properly renewed.
    3. Nor can he set up such prior lien as a defense to an action by the subsequent mortgagee after having voluntarily become the bailee of the latter, by accepting possession of the property as belonging to, and promising to return the same to him, on demand.
    (Before Moncrief, Monell and McCunn, JJ.)
    Heard December 12, 1865;
    decided December 30, 1865.

      This action was brought to recover the value of certain personal property, consisting principally of household furniture, of which the plaintiff claimed to be the owner, and which, as he alleged, the defendant had unlawfully converted to his own use.
    The plaintiff made title to the property by virtue of a chattel mortgage, executed to him by Augustus Smith. The execution of the mortgage was admitted, and the articles mentioned in the complaint were described in the mortgage. This mortgage was dated December 31, 1860, filed in the register’s office, in the city of New York, 2d January, 1861, and renewed on the 30th December, 1861. It appeared on the trial, that Augustus Smith was the owner of the property at the time of the execution of the mortgage, and that it was then situated in Beekman street, in the city of New York. The mortgage was payable on demand, and payment of the indebtedness intended to be secured by it, was demanded. On the 28th September, 1861, Smith, the mortgagor, assigned and transferred to the defendant, among other things, the furniture specified in the mortgage given to the plaintiff, subject to the payment thereof, &e. and the defendant thereupon took possession of said property under such assignment, and continued the business with Smith. The plaintiff, claiming title to, and the right to possess himself of the property under his mortgage, default having been made in the payment thereof, on the 2d day of April, 1862, permitted the defendant to have possession thereof, who promised to keep it for the plaintiff, and to surrender it to him when requested. On the 25th of April, 1862, the plaintiff demanded the property of the defendant, who refused to surrender it; whereupon this action was commenced. The case came on for trial before one of the justices of this court, and a jury. The defendant offered in evidence, as a defense to the action, the leases of Rainbow Hotel and the. assignments thereof from the defendant to Smith and Stone, and a chattel mortgage, dated April 1, 1857, executed by Smith & Stone to the defendant, upon the property in. question, to secure the payment of certain promissory notes, and the rent due, and to- become due, upon the leases ) and proposed to prove that the rent was in arrear from July to December, 1861, and was paid by the defendant out of his own money, and that at the time the plaintiff took his mortgage, he had notice of the defendant’s ■ mortgage, fthe learned justice excluded this defense and offer, and limited the defendant to proof of the value of the property. The jury,- under a charge from the court, • to which there was no exception, found a verdict for the plaintiff, for the sum of $2620.16. A motion was made, at special term, for a new trial, and denied. From the judgment entered upon such verdict, and from the order denying such motion for a new trial, which was made solely upon the minutes of the learned justice presiding at the trial, the defendant appealed.

      John Townshend, for the appellant.
    I. The verdict does not warrant the judgment. The verdict does not find what damages the plaintiff sustained, or was ■ entitled to; but merely the value of the property in question. . The action is to recover damages for the detention of the property, and the damages may be more or less than the value of the property. (Sedgwick on Damages, 496.)
    1. The verdict is in the nature of a special verdict, and should have found all the facts necessary to support the judgment, or a new trial will be ordered. (Eisemann v. Swan, 6 Bosw. 669. Barto v. Himrod, 4 Seld. 483.)
    2. The defect is not a mere irregularity. It vitiates the judgment. (Loeschigk v. Addison, 3 Robertson, 331.)
    II. The demand and refusal proved were not sufficient to constitute a conversion, because the demand was too broad ; it included more than the plaintiff had any pretense to claim, and the motion for nonsuit should have been granted. (2 Hilld. Torts, 264. Abington v. Lipscomb, 1 Adol. & El. N. S. 776. Rushworth v. Taylor, 3 id. 699. Wilde v. Waters, 32 Eng. Law and Eq. R. 422.)
    ■ III. The omission to refile or file a copy of a chattel mortgage, as prescribed by law, does not affect its validity against a subsequent mortgagee with notice; such a subsequent mortgagee is no.t a ■ bona fide mortgagee, and consequently is not within the protection of the statute. (Hill v. Beebe, 3 Kern. 556, 561. Farmers’ Loan and Trust Co. v. Hendrickson, 25 Barb. 484. Manning v. Monaghan, 10 Bosw. 231.) The like rule applies as between the parties. (Bryant v. Woodruff, 5 N. Y. Leg. Obs. 139.) As against the plaintiff, therefore, and the mortgagors, the mortgage to the defendant was not affected by the omission to file it year by year. It is not disputed that at the time the mortgage was given to the plaintiff, the mortgage to the defendant was in full force.
    IV. A mortgage of chattels differs from a mortgage of land among other things in this : that whereas a mortgage of land “ is a mere security or incumbrance,” leaving the legal title in the mortgagor, a mortgage of chattels vests the whole legal title in the mortgagee, which can only be revested in the mortgagor by a performance of the condition in the mortgage,. or by release, or re-assignment by the mortgagee. (Power v. Lester, 23 N. Y. Rep. 531, 533. Kortright v. Cady, 21 id. 347. Butler v. Miller, 1 id. 500. Hill v. Beebe, 3 Kern. 565.) Smith did not perform the condition of his mortgage to the defendant; he made default in payment of rent.
    V. The agreement dated September, 1861, made between Smith and the defendant, did not satisfy nor extinguish the defendant’s mortgage. (Hill v. Beebe, 3 Kern. 565, 563-568. Kellogg v. Rand, 11 Paige, 59. Sparrow v. Kingman, 1 Comst. 253. Catlin v. Grote, 4 E. D. Smith, 296. Van Dyne v. Sayre, 19 Wend. 170. Brown v. Rich, 40 Barb. 31, 32.) The fact that such agreement was made expressly •subject to the plaintiff’s mortgage did not alter its legal effect. With or without those words the effect would have been the same. The words operated only as notice of the existence of the mortgage. (Hull v. Carnley, 1 Kern. 506. Trotter v. Hughes, 2 id. 74. Jewell v. Harrington, 19 Wend. 474. Walrath v. Redfield, 18 N. Y. Rep. 461.)
    VI. The defendant was not estopped by the agreement with Smith in September, 1861, because in the first place the plaintiff was not a party or privy to or bound by it. There was no intention to mislead him, and he was not misled. He did not act thereon, and was not influenced thereby.
    1. Only one bound by or who is a party or privy, can avail himself of an estoppel. (Lansing v. Montgomery, 2 John. 382. Welland Canal Company v. Hathaway, 8 Wend. 480. Jackson v. Brinckerhoff, 3 John. Cas. 101. Campbell v. Hall, 16 N. Y. Rep. 578.)
    2. To constitute an estoppel in pais there must be an intent to mislead ; the party must have been misled, and he must be influenced thereby. (Carpenter v. Stilwell, 1 Kern. 73. Lawrence v. Brown, 1 Seld. 401. Walrath v. Redfield, 18 N. Y. Rep. 460. Jewett v. Miller, 6 Seld. 402. Chautauque County Bank v. White, 2 id. 252. Wright v. Douglass, 10 Barb. 97. Griffith v. Beecher, Id. 432. Ryerss v. Farwell, 9 id. 615.)
    VII. At the time the plaintiff accepted his mortgage, with notice of the defendant’s mortgage, Smith had nothing to convey but his right to redeem, and the plaintiff took nothing else. The mortgage containing no warranty, no subsequent act of estoppel of the defendant, or revesting of property in Smith, could vest a property in the plaintiff. (Powers v. Lester, 23 N. Y. Rep. 532. Pike v. Acker, Hill & Den. Sup. 90. Jackson v. Hubble, 1 Cowen, 613. Jackson v. Wright, 14 John. 193. Jackson v. Bradford, 4 Wend. 619. Hill v. Beebe, 3 Kern. 565, 566.). The action is in trover, and the plaintiff cannot recover without establishing property in himself. (Hill v. Covell, 1 Comst. 523. Hill v. Beebe, 3 Kern. 567.)
    VIII. The proofs offered.and rejected constitute a complete answer to the plaintiff’s case, and their rejection entitled the defendant to a new trial, with costs.

      P. G. Clark, for the respondent.
    I. The plaintiff’s mortgage, dated 31st .December, 1860, was payable on demand. Payment was demanded as early as July 1, 1861, putting Smith then in default. After default, the plaintiff’s title to the property became absolute, and he was entitled to maintain an action therefor, either of replevin in the cepit or detinet or of trover. (Fuller v. Acker, 1 Hill, 473. Burdick v. McVanner, 2 Denio, 170, and cases cited. Butler et al. v. Miller, 1 Comst. 496. Edgerton v. Thomas, 5 Seld 40.)
    II. The property was in possession of the defendant, at the time of demand, and was duly demanded. .The defendant refused to deliver it. The plaintiff's right of action was therefore complete.
    III. The court decided correctly in excluding the defense offered, and the evidence to support it. The defendant only offered to prove title in himself under the mortgage executed to him on the 1st day of April, 1857, which was never renewed.
    1. The evidence showed this mortgage to he paid. That fact the defendant did not propose to controvert. He merely offered to prove that the rent was in arrear from July to December, 1861, and that he paid it out of his own money. He did not propose to show that it was not paid to him, or that there was any thing due him at the time he consented to keep the property for the plaintiff, or at the time of the demand, or at the time of the trial. Smith testified that the rent had been paid, and there was nothing due on the mortgage. The mortgage having been paid, it could not be used as evidence of title, either as against Smith or the plaintiff. Such payment, though after default, extinguished all right and interest of the defendant in and t^ the property mortgaged. (Charter v. Stevens, 3 Denio, 33.)

      2. The defendant is estopped from denying the plaintiff's title to the property in question, (a.) By the agreement dated 28th September, 1861, by which, Smith transferred the property to the defendant, subject to the arrears of rent, and to the mortgage of the plaintiff, and the defendant received and accepted the property under this agreement, thereby directly recognizing the validity of the plaintiff’s mortgage, and becoming liable to the payment of the rent at least. It is for such rent only he claims his mortgage to have been valid. (Burr v. Beers, 24 N. Y. Hep. 178. Horton v. Davis, 26 N. Y. Rep. 495.) (6.) By accepting; said property from the plaintiff, agreeing to take charge of it for the plaintiff; to keep it for him and deliver it to him when requested, which was on April 2d, 1862.
    3. This testimony is not controverted. The estoppel is therefore perfect. (Kennedy v. Strong, 14 John. 128. Welland Canal Co. v. Hathaway, 8 Wend. 483. Presbyterian Congregation v. Williams, 9 Wend. 147. Dezell v. Odell, 3 Hill, 215. Jackson v. Ayers, 14 John, 224. Ingraham v. Baldwin, 5 Seld. 45. McGaw v. Adams, 14 How. Pr. 461. Bursley v. Hamilton, 15 Pick. 40. Stonard v. Duncan, 2 Camp. 344. Gosling v. Birnie, 7 Bing. 339, 341, 344. 11 Paige, 376. 37 Barb. 122.) By the defendant’s own act he induced the plaintiff, First, To leave the property in his, defendant’s, possession, and promised to surrender it when demanded. Second. He drew him into the expense of an action, and upon the trial; for the first time, set up. a .claim to the property under an old mortgage, to defeat the. claim of the plaintiff, which he had solemnly acknowledged.
    IV. The evidence on the question of value was conflicting. The jury determined the question upon the evidence, most favorable for the defendant, and their finding should not be disturbed.
   By the Court, Moncrief, J.

The plaintiff did not claim the property in question as a purchaser. Hence no question of. good faith could arise, save as to the fact of an actual indebtedness to him by Smith the mortgagor, and as to this there was no controversy or dispute. The mortgage to the defendant, of April, 1857, never having been renewed, as against the claim of the plaintiff under his subsisting lien, was of no avail, and. could not override it. • Again, the mortgage to the defendant had been canceled by-payment. Moreover, the claim paade by the defendant arises under a mortgage executed by Smith and one Sherman T. Stone, and the defendant,. subsequent to the execution and delivery thereof, accepted a transfer and entered into the possession . of the property, subject to a mortgage-made by Smith alone,. by a conveyance executed by him. . There was no evidence offered tending to controvert the fact of the payment of the defendant’s mortgage. The defendant was estopped from claiming a priority for any indebtedness to himself, by accepting the transfer of the property expressly subject to the mortgage held by the plaintiff. (Horton v. Davis, 26 N. Y. Rep. 495.) Even if this were not so, the defendant voluntarily became the bailee of the plaintiff, accepting possession of the property as belonging to, and promising to return the same to him, when requested so to do. There was no new condition of things tending in any degree to change either the facts within the knowledge of the defendant, or the relation of the parties to each other ; the law as well as justice requires, and good morals demand, that the defendant shall fulfill his promise and restore the property to the plaintiff. There was, therefore, no error in excluding the proffered evidence, as it would not constitute a defense.

Finding no error, and the exceptions taken to be untenable, I am of opinion that the judgment and order should be affirmed.

Judgment and order affirmed.


source: Caselaw Access Project

author: By the Court, Monell, J.

license: Public Domain

text:
    John McCaffil et al. plaintiffs and appellants, vs. Alexander C. Radcliff, defendant and respondent.
    1. Where goods are sold on the credit of, and charged to, one person, hut delivered to another, the case is not affected by the statute of frauds. The former becomes the original debtor, and it is an original, and not a collateral undertaking.
    2. Such a promise, or undertaking, need not be in writing; nor need there beany special consideration to uphold it.
    3. Goods purchased of the plaintiffs were ordered, by the buyer, to be marked with the name of the defendant, and charged to him, and shipped to St. Louis. Before charging the goods, dr shipping them, the plaintiffs informed the defendant of the purchase, and that the goods, so bought, had been charged to him. The latter, upon being asked if that was correct, replied: “ It is all right for this time,” &c. The plaintiffs, thereupon, charged the goods to the defendant, and shipped them as directed by the buyer; Held, that the question whether the goods were sold on the credit of the defendant, was a question of fact, which should have been submitted to the jury; and that the judge erred in dismissing the complaint.
    (Before Barbour, Monell and McCunn, JJ.)
    Heard November 10, 1865;
    decided December 30, 1865.
    The action was to recover for goods sold, and was tried before a justice óf this court, and a jury. At the close of the plaintiffs’ evidence, the justice dismissed the complaint, and the plaintiffs excepted. A motion was made, at special term, for a new trial, which was denied. Thereupon judgment was entered. The plaintiffs appealed from the order denying the motion for a new trial, and from the judgment.

      T. M. North, for the appellants.

      N. A. Chedsey, for the respondent.
   By the Court, Monell, J.

The only question in this case is, whether the goods were sold and delivered on the credit of the defendant. The complaint alleged a sale and delivery to the defendant, which the defendant denied.

Herrick, who seems to have acted as the plaintiffs’ broker, testified that he had several interviews with the defendant. That the defendant told him his brother-in-law, Mr. Haskell, proposed to buy tobacco and segars to take west, and that he would bring or send him in. That Haskell afterwards selected the goods, and ordered them to be marked “ A. O. Radcliff, St. Louis, Mo.” and shipped. That the plaintiffs refused to ship the goods until they had the defendant’s consent to the goods being charged to him; that the witness went to defendant's house the same evening, and found him out; called the next day, and again on the evening of the second or morning of the third day, and saw him; that he said to the defendant, Mr. Haskell has bought the goods of the plaintiffs, and has had them charged to him ; that they did not feel like shipping the goods until the defendant was seen, and they knew it was correct to charge them to the defendant. The witness said : I asked Mr. Radcliff, these goods are charged to you by Mr. Haskell’s order ; is that correct ?” He said, “ It is all right for this time, but I do not think this will continue long.” At the time of this conversation, the goods had not been shipped; they were still in the plaintiffs’ store. Nor had they then been charged to the defendant upon the plaintiffs’ books. One of the plaintiffs testified, that upon being informed by Herrick, that the defendant had consented to have the goods charged to him, they were so charged, and then shipped, as directed, to A. 0. Radcliff, St. Louis, Mo.”

There was some other evidence respecting a collateral note given to the plaintiffs by the defendant, to be applied upon the purchase.

If the goods delivered to Haskell were sold on the credit of the defendant, and charged to him, then the case is not affected by the statute of frauds. The defendant became the original debtor, and it was an original, and nót a collateral undertaking. (2 Parsons on Con. 301.) Such a promise, or undertaking, need not be in writing, nor need there be any special consideration to uphold it.

Whether the goods were sold on the credit of the defendant, was a question of fact, which, in my opinion, should have been submitted to the jury. There was some evidence, that the defendant consented to become responsible for the goods. He was told they were charged to him, and he said it was right for that time. A verdict against the defendant, on this evidence, would not, I think, be disturbed by the court. If so, then it was error to dismiss the complaint. (Hanford v. Higgins, 1 Bosw. 441. Graham v. O’Neil, 2 Hall, 476.)

It was attempted, on the argument, to attach some importance to the fact, that when Herrick said to the defendant that the goods were charged to him, and the defendant replied it was right for that time, the goods had not then been charged to the defendant. But the fact is unimportant. If the goods were sold on the defendant’s credit, it was enough to hold him. The mere charging the amount on the plaintiffs’ books would not increase or lessen the "liability. To whom was the credit given ? is the material inquiry. The mis-statement.of an immaterial fact, unless it tended to deceive or mislead the defendant, would have no effect upon his engagement. It cannot be pretended that the defendant consented to become responsible for the goods, only because he was told they were charged to him. He could not be made responsible without his consent, and when he consented, the goods were charged to him. There is no pretense that any fraud was intended or practiced, and I cannot perceive that the fact alluded to can in any way change or affect the defendant’s liability.

I think the justice erred in not submitting the question to whom the credit was given, to the jury, and, therefore, that the order and judgment should be reversed, and a new trial granted, with the costs of the appellant on the appeals to abide the event.


author: By the Court, Barbour, J.

text:
    James C. Price et al. plaintiffs, vs. John D. Phillips, defendant.
    1. By the entry of a decree in bankruptcy, under the act of 1841, and the appointment of an assignee, the latter becomes ipso facto, the legal owner of all .the real estate belonging to the bankrupt, and is as fully vested with all legal and equitable rights pertaining to such ownership as the bankrupt had theretofore been.
    2. Where premises owned by a bankrupt are subject to a mortgage which is a lien thereon, such mortgage is not an adverse claim, within the meaning of the 8th section of the bankrupt act, which requires all suits to be brought by the assignee against any person claiming an adverse interest, touching -the property, &c. of the bankrupt, within two years after the decree in bankruptcy.
    3. Nor will the foreclosure of the mortgage,- in a suit to which the assignee in bankruptcy is not a party, and the purchase of the property, by the mortgagee, at the sale under the decree, change the legal position and relation of the rights of the parties.
    4. Such assignee, being entirely unaffected by the decree to which he was not made a party, still remains the owner in fee, and entitled to the possession.
    5. Where there has been no time, since the publication of the decree, when the assignee was required by the statute of bankruptcy to institute a suit against the purchaser at the mortgage sale, as an adverse claimant, he would not he barred by the limitations contained in that act, but may take possession of the premises, if vacant, or maintain an action for the recovery of their possession.
    (Before Moncrief, Barbour and Garvin, JJ.)
    Heard June 16, 1865;
    decided December 30, 1865.
    This was a controversy submitted, without action, under the 372d section of the Code of Procedure, upon the following facts: On the 28 th of December, 1864, an instrument in writing was duly made and entered into between the above named plaintiffs, then being in possession as owners of the premises hereinafter described, and one Warren Brady, by which the plaintiffs agreed to sell to the said Brady, or his assigns, the certain gore lot described as follows :
    “ All that certain lot, piece or parcel of land, situate, lying and being in the twelfth ward of the city of New York, and distinguished on a map of a piece or parcel of land purchased by Ely Moore of Noah Sewell, by an indenture dated November 1st, 1827, which map was made by Isaac T. Ludlam, city surveyor, July, 1827, and is filed in the office of the register of the city and county of New York, entitled the Canal Tract, as the gore, on the northwest corner of the Eighth Avenue and 118th street, and being bounded northwardly by land of Hart-wright, eastwardly by the Eighth Avenue, and westwardly by the middle of 118th street, said parcel containing the quantity of half a lot, more or less.”
    And the said Brady agreed to purchase the same for the sum of $900 at a time and place named in said agreement; and the plaintiffs agreed on receiving such payment at the time and in the manner above mentioned, to execute, acknowledge and deliver to the said Brady or his assigns, “ a proper deed containing a general warranty and the usual full covenants for the conveying and assuring to him or them the fee simple of the said premises, free from all incumbrance.” Brady assigned his said contract to the defendant. At the time and place named in the contract the parties hereto were present, and the plaintiffs tendered to the defendant a deed in form as required, by said agreement, but the defendant refused to receive the same.
    It was, and is admitted, that on the 5th day of September, 1835, one John Scudder purchased and received a conveyance of the premises in question, with other premises, from one Edward Price, and thereupon executed a mortgage back to said Price, to secure a part of the purchase money upon such purchase. On the 23d of March, 1836, Scudder sold and conveyed the said premises to one Ebenezer L. Williams, subject to said mortgage.
    On the 27th of May, 1843, said Williams, by decree of the District Court of the United States for the southern district of New York, the proper court having jurisdiction of proceedings for that purpose, was duly, pursuant to the act of congress entitled “ An act to establish a uniform system of bankruptcy throughout the United States,” approved August 19th, 1841,. declared to be a bankrupt, and all his property and rights of property became, under the provisions of said act, vested in William C. H. Waddell, the assignee, duly appointed by said court for said purpose.
    In the year 1845, Edward Price, the mortgagee above named, filed his bill in the court of chancery in this state against said John Scudder and others to foreclose the said mortgage, and on the 17th of June, in that year, a decree for foreclosure and sale of said premises under said mortgage was entered, and the premises were, pursuant to said judgment and decree, sold by- Philo T. Euggles, master in chancery, and by him conveyed to said Edward Price, by deed dated September 8, 1846. The plaintiffs are heirs at law of said Price. Neither said Ebenezer L. Williams nor Wm. C. H. Waddell were made parties to said foreclosure suit.
    The defendant’s refusal to take the deed tendered by the plaintiffs was based wholly upon the objection that said Williams and Waddell had not been made parties to the said foreclosure, and that the title was for that reason defective.
    This question is now submitted to this court.
    If the court shall decide that the omission of the said parties from such foreclosure suits prevents a good title being given, judgment will be for the defendant. If otherwise, judgment is to he entered for the plaintiffs, decreeing a specific performance of said contract by the defendant.

      H. H. Anderson, for the plaintiffs.

      Townsend Wandell, for the defendant.
   By the Court, Barbour, J.

As the official assignee in bankruptcy was not a party to the foreclosure suit, and is, for that reason, wholly unaffected by the judgment and sale had thereunder, the only question for our consideration is, whether such assignee now has such an estate and interest in the premises which are the subject of this controversy as materially to affect the title of the plaintiffs.

Upon and by the entry of the decree in the bankruptcy proceedings, and the appointment of Mr. Waddell as assignee, such assignee became and was, ipso facto, the owner in fee of the premises in question, and as fully'vested with all the legal and equitable rights pertaining to such ownership as the bankrupt himself theretofore had been. (See Bankruptcy Act, 5 U. S. Stat. at Large, p. 442, § 3.)

The 8 th section of that act provides that the circuit and district courts of the United States shall have concurrent jurisdiction of all suits that may be brought by an assignee of the bankrupt against any person claiming an adverse interest, or by such person against such assignee, touching any property or rights of property of said bankrupt, transferable to or vested in such assignee ; and that no suit at law or in equity shall, in any case, be maintainable by or against such assignee, or by or against any person claiming an adverse interest, touching the property and rights of property aforesaid, in any court •whatsoever, unless the same shall be brought within two years after the declaration and decree in bankruptcy, or after the cause of action shall have first accrued. (Id. p. 444.)

Although the power of congress to deprive any person, not being a party to or connected with the bankruptcy proceedings, - •of the right to bring.in and maintain his suit in a state court, within the time limited by the laws of such state, may well be doubted, it is quite clear that the same statute which vests the assignee with all the property and interests of the bankrupt, may also provide that no suit shall be brought by him against an adverse claimant, unless the same shall be commenced within two years after the right of action shall have accrued, and that the assignee will take his title subject to that restrictive provision.

Neither when the mortgage in this case was executed, nor at any subsequent period, did such mortgage itself constitute an • adverse claim within the meaning of the act. For it conferred • upon the mortgagee no estate in the land, nor did it vest him ■ with the possession of the premises. It was, simply, a lien and charge upon the land, which, for aught that appears, was •never disputed by the mortgagor or the assignee, and which .both were estopped by the mortgage itself to deny.

Nor did the foreclosure sale, and the purchase of the property by the mortgagee, change the legal status of the parties. The assignee in bankruptcy being entirely unaffected by the ■ decree to which he was not a party, still remained the owner in fee and entitled to the possession, while Price took no greater . interest or right, as between himself and. the former, than he ■ had before the commencement of that proceeding, to wit, that ■ of a mere mortgagee.

.Had such purchaser informed the assignee that he claimed •’ the ownership or right of possession by virtue of the master's . deedj or,- even, if he had entered into the actual possession of and ocpiipied the premises in such a manner that the assignee ".must be presumed to have had notice thereof, as was the -case in Stevens v. Hauser, (1 Rob. Rep. 50,) such assignee ■ would have been bound, no doubt, to commence an action ■ for the- recovery of the premises, or to quiet his title, within •two years thereafter. .But the case before us neither shows that such possession was ever taken, nor that the assignee -has, ever Jhad notice, constructive or otherwise, that such purchaser had or claimed any right or interest in the premises adverse to his own title, nor, indeed, that the mortgagee ever claimed any interest, except as such mortgagee, prior to his agreement to sell to the defendant. So far as appears from the submitted cáse, therefore, there has been no time, since the publication of the decree, when the assignee was required by the statute of bankruptcy to institute a suit against the purchaser as an adverse claimant; and it follows that he is not barred by the limitation contained in that act, but, when such agreement was made, lawfully might have taken, and still may take possession of the premises, if vacant, or bring and maintain his action in ejectment for the recovery of the possession, if occupied by any other person against his will.

J udgment must, therefore, be rendered for the defendant, under the stipulation, with costs to be regulated by the 273d section of the Code.


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

text:
    Charles H. Newton et al. plaintiffs and respondents, vs. Joseph Wales et al. defendants and appellants.
    1. Where the time for the performance of a contract for the delivery by a vendor of goods sold has been indefinitely extended, by agreement of the parties, and a reasonable time for performance has elapsed, the right of either party to sue must depend on a demand or tender. The purchaser will have no right of action until a demand and refusal.
    2. The time for performance of a contract is never indefinitely postponed by law except by special agreement. It must be governed by the rule of reasonableness, unless the performance be on demand.
    3. What evidence will justify a charge that if there was any extension of time, it was indefinite,
    (Before Robertson, Ch. J. and Monell and Garvin, JJ.)
    Heard October 9, 1865;
    decided December 30, 1865.
    On the 18th and 20th days of August, 1862, Wales, Wet-more & Co., the appellants, made two contracts with Newton & Gregory, for the delivery of naptha and benzole. By the first agreement (of August 18) the defendants agreed to deliver a certain number (300) barrels of refined, deodorized- naptha, within ten days, at a certain price per gallon, (18 cts.,) and barrels at a certain price ($1.25) each ; and by the second agreement (of August 20) the defendants agreed to deliver to the plaintiffs a certain other number of. (200) barrels of benzole, at a certain price (15J cents) per gallon, and barrels at the same price as that fixed by the first. Under the first contract, the defendants delivered a certain number (285) barrels of naptha; and under the second, a certain other number (101) of barrels of benzole leaving fifteen barrels of naptha undelivered under the first contract, and ninety-nine barrels of benzole under the second, on the 21st of November, 1862. The complaint avers, that the time to deliver the balance of naptha and benzole, under both contracts, was extended by agreement to the 21st of November, 1862 ; and on that day, the plaintiffs suffered damage, for a failure to deliver the fifteen barrels of naptha, to the amount of $500 ; and for a failure to deliver the ninety-nine barrels of benzole, $3000.
    The answer of the defendants was a general denial of all the allegations of the complaint. From said 18th and 20th days of August, (the dates of the contraéis,) down to October following, naptha and benzole had advanced but little, if at all, in the market. After the time for delivery, as specified in the contracts, had expired, and down to the 21st of November, 1862, the plaintiffs, on various occasions, called upon the defendants for the oil, to which the defendants uniformly replied that “ they expected the oil,” “ it was coming along,” “ and would be there in a few days.” On the 21st of November, the plaintiffs made a formal demand for the naptha, and on the defendants’ failure to deliver, brought this suit.
    The jury found a verdict in favor of the plaintiffs for $3317.64, and from the judgment entered thereon, the defendants appealed.

      E. Brown, for the appellants.

      E. A. Doolittle, for the respondents.
   By the Court, Robertson, Ch. J,

This case comes before . us entirely on exceptions to the charge of the court and the admission and rejection of testimony. In such charge, the learned judge before whom the cause was tried, after observing that the time mentioned in the contract in question for its performance, was continued to the 21st of November, 1862, when a formal demand was made by the plaintiffs for a delivery of the oil in question, added, that therefore it became a material question whether the contracts were extended by the agreement of the parties to the 21st of November. He then instructed the jury “ that if the parties did agree to extend, it was an indefinite extensionto which the defendants’ counsel excepted. He also further instructed them “ that the plaintiffs would have no right of action, until they made a demand and there was a refusalto which also the defendants’ counsel excepted. There were no other exceptions to any part of the charge. The part of the charge so excepted to was only important on the question of damages, by fixing the day, at which the price of the article sold was to determine the amount of such damages. No complaint was made as to the mode in which the fact of an extension was submitted to the jury, independently of its duration ; nor was any request made for an instruction that such extension was to a specific date, or for a submission of the question of the fact or time of such extension, to the jury; nor was any objection taken to the statement of the demand and refusal on the 21st of November. The only questions of law arising out of the parts of the charge so excepted to, were whether if the performance of the contract was indefinitely extended, a demand and refusal were necessary to enable the plaintiffs to bring an action for its non-performance ; and whether the evidence justified' the statement that if there was any extension it was indefinite. As to the first, there can be no doubt that a reasonable time for performance having elapsed, the right of either party to sue must depend on a demand and tender. The time of performance of a contract is in no case indefinitely postponed, unless expressly agreed to be so, but must be governed by its reasonableness, unless it be on demand. It is generally immaterial when compared with the performance itself, which is considered to be the main object of the parties, and is of all the terms of a contract, most ductile, as it may be altered or waived by parol, in even a sealed instrument. (Fleming v. Gilbert, 3 John. 528. Flynn v. McKeon, 6 Duer, 203. Clarke v. Dales, 20 Barb. 42.)

A brief glance at the testimony will be sufficient to determine whether the learned judge was justifiable in determining that if there was any extension it was indefinite. The defendants had tacitly acknowledged the continuance of the contract, and their obligation to perform it, and so waived the question of time, by frequent promises to perform, after the period allowed by the contract had elapsed. A clerk of the plaintiffs (Cook) testified to making demands on the defendants for a performance, from a Week after the contract was made to the middle of November, once or twice a week. Another witness (Lockwood) testified that in October, 1862, when one of the plaintiffs made a formal demand, one of the defendants (Wet-more) promised that the balance “ would be delivered as soon as Wales (the other defendant) returned, or that it would be made satisfactory.” The plaintiff then promised to wait. Another clerk of the plaintiffs (Gregory) testified that on the 17t.h of November, 1862, one of the defendants (Wales) came to the office of the plaintiffs, and after remarking that “'he had come to see about the balance of the contract due them,” stated in reference to them that the contracts were made in good faith ; that he was obliged to “them” for waiting; made an excuse for the oil not being delivered before, and promised that if the plaintiffs “ would wait, the naptha was on the way and would be delivered that week.” The witness said they “ would wait,” and the brother of the witness (the plaintiff) subsequently confirmed such agreement. At the demand on the 21st of November, the language of the defendant Wales did not express any repudiation of the contract or denial of its obligation and continuance, but on the contrary expressed an intention to fulfill it, and a desire for further time. The plaintiff Gregory also testified, that up to that time he had agreed to wait by reason of the defendants’ promises reported to him. On this testimony, the jury found an extension of the time of the contract, and I have not been able to discover in it an extension to any definite time, and the plaintiffs having waited a reasonable time for the performance, had a right to demand it and sue for damages for non-performance. The defendants could have relieved themselves from all the consequences of a rising market by actually refusing, not merely neglecting, to perform the contract at the end of the twenty days, or by a tender of the merchandise.

The question put to a witness (Gregory) whether he consented to wait, did not imply a mere action of the mind, and if that was understood to be the purport of the question, it should have been elicited on cross-examination so as to strike out the answer. What the plaintiff said to ratify the promise of his agent to wait, was proper evidence, and the subsequent conduct of the parties was evidence that such ratification was known to the defendants.- The price of the article about the time of the demand was also proper to be introduced.

I see no reason for reversing the judgment; it must therefore be affirmed, with costs.


author:
By the Gourt, Monell, J.
      Barbour, J.

text:
    Antonio R. Fernandez, et al. plaintiffs, vs. The Great Western Insurance Company, defendants.
    1. A mere change of ownership of the subject insured, will not avoid a policy of insurance, provided there be an insurable interest at the time of loss; unless there be a clause in it, making it void upon any change of ownership. And even a clause of that kind will not prevent the application of that rule, if the change of interest is merely from absolute owner to mortgagee.
    2. By the terms of a policy of insurance upon a vessel, it was expressly provided that the policy covered only the original interest subsisting when negotiated, and that any change of interest, in whole or in part, should cancel the policy. After the issuing of the policy, the insured sold the vessel, and two days after-wards, according to previous agreement, took back from the purchaser a mortgage upon the vessel, to secure the payment of a part of the purchase money, accompanied by a power of attorney, placing the vessel under the entire control of the mortgagees. Held that this transfer did not terminate the interest of the insured, SO as to release the underwriters. (Barbour, J. dissented.)
    3. A- voluntary departure from the course of a voyage, without any excuse rendered therefor, although slight and unimportant, will discharge the underwriter. It is otherwise, if the departure is excused by a justifying cause.
    4. There cannot be a deviation from the usual course of the voyage, before it has commenced.
    6. And although underwriters are discharged, if a loss occur under a policy, “ at and from ” a port of departure, while the vessel is absent from such port, for any unexpected purpose, before her voyage has commenced; yet they will not be absolved if the vessel returns in safety from such temporary absence, and is afterwards lost upon her voyage, after it has formally commenced.
    6. It being the duty of the assured to put his ship in complete condition for her voyage, to avoid the consequences of a breach of the implied warranty of sea worthiness, he has a right to adopt all suitable and usual means to put her in such condition, and determine by proper tests in advance of her sailing, if she is seaworthy.
    7. Accordingly held, that under a policy of insurance on a steam vessel “ at and from New York to Havana,” the making a trip with her to Elizabethport, before starting upon her voyage, for the purpose of trying the engine, and ascertaining 'the draught of the vessel, with coal on board, neither of which objects’ could have been attained otherwise than by such actual trip, if a
    . deviation at all, was sufficiently excused by the necessity of trying the engine, and ascertaining the draught of the vessel when loaded. (Barbour, J. dissented.)
    (Before Barbour, Monell, and McCunn, JJ.)
    Heard November 16, 1865;
    decided December 30, 1865.
    Exceptions ordered to be heard at the general term in the first instance.
    The facts are as follows : In March, 1863, the plaintiffs made an application in writing to the defendants, for an insurance of $7.500 upon the propellor J. F. Barnard, at and from New York to Havana, which application stated that the vessel was “in perfect order,” and, also, contained the words “ warranted to sail in a few days ; ” and, thereupon, on the 18th of March, the defendants issued a policy to the plaintiffs, “for the benefit of whom it might concern,” in accordance with such application. The policy contained this express provision: “And it is also agreed that this policy covers only the original interest Subsisting when negotiated, and that any change of interest, in whole or in part, shall cancel the policy in the same ratio ; ” and, also, “ and it is further agreed that this policy shall be void in case of its being assigned, transferred, or pledged, without the previous consent in writing of this company.”
    At the time the policy was effected, the vessel was undergoing repairs, to fit her for sea going service, such as overhauling the engine, and putting in a mast and sails, and such reparation was continued until the 6th of April. On the latter date, she went to Elizabethport in New Jersey, sixteen or twenty miles from New York, upon a trial trip, where she took in some seventy tons of coal' for her voyage to Havana ; . returning to New York the next day, or the day after that. Upon her trip up from Elizabethport, it was found that her escape pipe was too much submerged, and her coal proving unfit, that was discharged, and she went into dock, and had the defect in regard to her pipe remedied. After that was done, she went across the river to Jersey city, and took in other coal for her voyage. In going across, her smoke stack and her upper houses, as well as a part of her steering apparatus, were carried away, and those damages were repaired at Jersey city. She finally left, on her voyage to Havana, on the 2d of May, forty-five days after the date of her insurance ; the delay, after her return from Elizabethport, being caused by getting her in a condition to go to sea ; and she was lost by fire soon after sailing. The usual period for loading such a steamer for Havana is four or five days.
    Some time before the loss, and on the 4th of April, the plaintiff, by a full bill of sale, under their hands and seals, sold and assigned the propeller 'J. F. Barnard, with her tackle, apparel, and furniture, to Clement Kane, a British resident, in consideration of $35,000, the receipt of which was therein admitted ; and such bill of sale was, on the same day, recorded at the British consulate at New York; and the vessel was then registered there as a British ship, under the name of “ Morro,” and a certificate of registry issued by the consul to Kane, as owner. The policy of insurance does not appear to have been assigned.
    On the 6th of April, Kane executed to the plaintiffs a paper, under seal, in which ho declared that he thereby mortgaged the vessel, (described therein under the name of “ Morro,” as well as that of “ J. F. Barnard,”) to them, to secure the payment of $30,000 lent to him by them ; and, on the same day, also executed to them his power of attorney, irrevocable, whereby he empowered them, for him, and in his name, to manage, control, mortgage, or sell, &c. such vessel.
    On the trial, before Justice Monell and a jury, the jury, by direction of the court, rendered their verdict for the plaintiffs for $7,990.20, being the amount claimed by the plaintiffs, less the premium note which had not been paid. The defendants’ counsel excepted to the direction of the court, and the court ordered the exceptions to be heard, in the first instance, at general term, and the judgment in the meantime suspended.

      R. H. Huntley, for the plaintiffs.
    As to any warranty created by the application: I. The policy in no way refers to the application, or any .conditions contained in it. There can therefore be no ground for the assertion that the policy adopts the application as a part of it. Under these circumstances the law excludes the condition of the application from the policy. (Wall v. The Howard Ins. Co., 14 Barb. 383. 2 Parsons’ Maritime Law, 50, and cases cited in note 2. Dow v. Whetten, 8 Wend. 160, 166.)
    II. The policy contains several warranties, but none as to time of sailing, and it is a legal inference that all intended warranties are included in the policy.
    III. The time “a few days,” is too indefinite to constitute a warranty, which should be definite and certain, or be capable of being reduced to certainty. In this case only a probability of the time of sailing could be arrived at, and then only by a consideration of all the circumstances attending the date of sailing. These reasonably account for the delay. (1 Parsons’ Cont. 2d ed. 459.)

      As to the alleged deviation : I. This vessel was in port repairing at the time the insurance was effected, as the insurers well knew. The question therefore is, Did she, while in port, or prior to her sailing therefrom, do any act which changed the risk, or which was a technical deviation, all the circumstances of the case being considered ?
    II. Her remaining in port forty-five days, is not such a deviation, if there was a necessity for the delay. (Coffin v. Newburyport Marine Ins. Co., 9 Mass. Rep. 436 and 449. Palmer v. Marshall, 8 Bing. 79. S. C. Id. 317. Langhorn v. Allnut, 4 Taunt. 511.) Thus where the insurance was from a port, it not appearing that the vessel was detained by fraud or any sinister design, nor that the risk was thereby enhanced, it was held that a delay of six months after the policy was made was not a deviation, the jury having found that it was not unreasonable. (Earl v. Shaw, 1 John. Cas. 313. See Grant v. King, 4 Esp. 175; 2 Pars. Mar. Law, 283, and cases cited in note 3; Gilfert v. Hallet, 2 John. Cas. 296.) In Phillips v. Irving, (7 Man. & G. 325,) where the ship was insured on a long trading voyage, seven months was held not to be an unreasonable delay. The first three months being taken up in getting the vessel repaired and the rest of the time in seeking for a cargo which could not be obtained. In Driscoll v. Passmore, (1 B. & P. 200,) it was held that a compulsory return of a vessel to her home port without finishing her destined voyage caused by threats of desertion of her crew at one port of such voyage, would not deprive her charterers of the right to require her to sail as from her home port to the last terminus of her intended outward voyage, and from thence return •home, and therefore would not invalidate a policy of insurance on freight from such outward terminus to her home port, although'such policy was given upon a representation of her being then at another outward port, and about to proceed immediately on her destined voyage.
    III. A necessity existed for the delay in port, in this case, and the defendants did not seek to contradict or question it on the -trial. It could not by any possibility enhance the risk.

      IV. The trial trip to Elizabethport and back was not a deviation. The vessel was making repairs and not ready for sea when the insurance was effected. She was a small steamer, and when her repairs were completed it was necessary that her action and the working of her machinery should be tested. To do this it was thought proper that she should sail light down the bay, and return in about the trim she would be in when on her voyage. 1. This was nothing more than a necessary and proper precaution. Had this not been done, and the vessel been lost or injured by reason of the difficulty which this trial trip disclosed, the underwriters would have had just ground of complaint. 2. It cannot reasonably be said that the repairs were completed till this trial was made; it was a necessary part of the repairs, and the result demonstrated its necessity by showing the difficulty with the outboard delivery. 3. Even without authorities, the case is with the plaintiffs upon principle, but authorities to sustain the plaintiffs are abundant.
    Parsons, (2 Mar. Law, §278,) says: “Nor are they (the insurers) discharged, if the change of risk is merely temporary, and when it ceases, all subsequent risks are precisely and certainly the same as they would have been had no deviation taken place.” In the note to the same page, he says : “ It is obvious that in some cases there may be a temporary deviation, which would exonerate the underwriters from loss during such deviation, but not for subsequent loss. Thus, if a steamboat, while making regular trips between two ports, is insured for one year, and if, after the trip for the day is ended, she should tow a vessel, or do any other similar act, the underwriters would clearly be liable if she were subsequently lost on a regular trip, or while lying in port, but not if she were lost while engaged in towing.”
    Phillips, (1 vol. on Ins. § 1000,) defines deviation : “Unnecessarily or without sufficient reason, going off the usual course of the voyage, (if there be such,) or otherwise what the master deems the most direct or expeditious and convenient course.”
    In Smith v. Surridge, (4 Esp. 25,) a ship insured at and from Pillau to London, was delayed, for the purpose of making repairs. After being ready for sea she was prevented from proceeding for some time, by the lowness of the water on the bar. Lord Kenyon instructed the jury, that it was “not necessary that the vessel should be seaworthy at the time ” when the risk commenced, from which he inferred that a sufficient time might be taken for making repairs. (1 Phillips’ Ins. § 1002.)
    Y. It is not pretended that the delay in port, or the trial trip, were not bona fide made ; and being so, they cannot be admitted to avoid the insurance. (Col. Ins. v. Catlet, 12 Wheat. 383, per Story, J. See also 1 Phil. Ins. § 982, et seq. as to deviation and change of risk.)

      W. M. Evarts, for the defendants.
    I. The. record contains no proper proof of interest in the plaintiffs or that the insurance was effected to cover any interest of theirs. The plaintiffs’ interest, at the time of the inception of the risk, is put in issue by the answer. The plaintiffs’ counsel gave no competent evidence on this issue, but having read, as preliminary proofs presented to the company, certain affidavits of one of the plaintiffs, stating an interest in them, after he rested his .case, the court, upon his application, ruled that all the affidavits and papers introduced by them, as preliminary proofs, were to be considered as evidence in chief •in the case ; thereby making an ex parte affidavit, which, if offered as evidence in chief, would have been wholly incompetent, (but to the reading of which, as part of the preliminary proofs, the defendants’ counsel had no right to object, and in regard to which they had no opportunity of cross-examination,) conclusive evidence against them on a material issue. It is submitted, that the defendants' exception to this ruling was well taken. (2 Phil. on Ins. § 2090, and cases cited.)

    1. The policy being “ for account of whom it might concern,” some proof was necessary that it was intended by the parties, who applied for- it for their own benefit; especially in the absence of any evidence of their interest at the time, it was not competent for the court to conclude that they were the parties intended to be insured. (Crosby v. The New York Mu. Ins. Co., 5 Bosw. 377.)
    II. After the making of the policy and the inception of the risk, and before the loss, “ the original interest subsisting when the policy was negotiated was wholly changed,” and the policy thereby canceled. By bill of sale, executed, delivered and recorded, on the 4th of April, the plaintiffs conveyed to Clement Kane the entire vessel, and all their interest therein. This fact, according to the express agreement of the parties, canceled the policy.
    1. This case is perfectly distinguishable from that of Hitchcock v. The North Western Insurance Company, (26 N. Y. Rep. 68.) There the language of the policy was, “ in case of transfer or termination of any interest of the assured in the property assured, by sale or otherwise, the policy • should be void.” The court construed this as meaning, that in order to avoid the policy under itj there must be a transfer or termination of the whole insurable interest of the assured in the property. Moreover, it was expressly proved, in that case, that the bill of sale, and the mortgage back, were simultaneous, and constituted but one act, the result of which was, not that the seller parted with any title, for any space of time, however short, but simply that his title, before absolute, was thereby made defeasible. Here, however, the proof is directly the other way, the only evidence in regard to the transaction being in the documents themselves, by which it appears, that on the 4th of April the plaintiffs parted with all their title, and received therefor $35,000, in money, which is in the bill of sale recited as paid to them by the vendee. The vendee, Kane, remained sole owner until the 6th of April, and, , in the meantime, made oath of his ownership before the British consul, changed the name of the steamer, and procured a British register. Having effected this, he mortgaged it back to the plaintiffs, to secure the sum of $30,000 lent him by them, and they took possession as his agents. Here, then, was clearly an actual and entire change of the original interest of the assured which subsisted at the inception of the risk. The plaintiffs parted with all interest, and remained divested of it two days. The acquisition of a new and different interest, at a subsequent date, could not revive the policy.
    2. It was required, by the British law, that the party who received the British' register should be, at the time, actual owner. This shows the actual intent and meaning of the plaintiffs to have corresponded with the terms of the documents, namely, to divest themselves of all interest, and make Kane sole owner. They did not attempt to show that there was any thing feigned or colorable in the transaction, nor could they be permitted to show that, to contradict and falsify their solemn acts. (Carrol v. Boston Mar. Ins. Co., 8 Mass. Rep. 518. Ohl v. The Eagle Ins. Co., 4 Mason, 172.)
    3. The plaintiffs, in their complaint, count upon their interest as owners, and aver that they were sole owners at the time of the policy and of the loss. Under these allegations, they could not prove or avail themselves of a mortgagee’s title; and after the sale to Kane, they had no power to insure or collect insurance on any interest other than that of mortgagees, except in his name, and as his agents, under his power of attorney.
    III. The voyage embraced by the policy being only “ at and from New York to Havana,” the intermediate voyage of the steamer from New York to Elizabethport and back, was a deviation which avoided the policy.- Arnould says, p. 354® : “ In the absence of any usage or stipulation to the contrary, the meaning of the parties to the policy is invariably understood to be that the ship should proceed from one terminus of the voyage insured to the other in a direct course, with all due expedition, and without touching at any interjacent port, or pursuing any intermediate adventure; if she do so, without leave for that purpose being expressly given in the policy, this, however trifling in extent or duration, is a fatal deviation, although the ship may afterwards return to her proper course without having sustained the slightest damage in consequence of having departed from it.” Parsons says, (2 Marit. Law, 281,) that “ if it be a deviation for a vessel to go designedly and unnecessarily an hour out of her course, or to lie by a ship that time only, to save endangered property, it is obvious that any actual and substantial change of risk is a deviation, although it be a very small one.”
    1. The case of Brown v. Tayleur, (4 Ad. & Ellis, 241,) is directly in point. There the policy was, “ at and from her port of lading in North America to Liverpool.” The ship began to take in her cargo at Cocagne, in the province of New Brunswick, and continued to do so for three weeks ; she then sailed to Bucktouche, five to seven miles distant, to complete her loading; she arrived there in a few hours, Cocagne and Buktouche being situated on different creeks of the same bay. She took no cargo at Bucktouche, but returned to Cocagne in safety, and having sailed thence for Liverpool, was lost on the voyage. The deviation was held to be fatal.
    2. Elizabethport is a distinct port from New York, in another district and state, and the extent of the deviation, both in time and space, far exceed what has frequently been regarded as fatal by the courts. The purpose of this deviation does not excuse it, or cure its effect, except it be a matter of absolute necessity, or to save life, which is not pretended here, the only plea being that it was to try engines and take in coal, which proved wholly unfit for the purposes intended. (Coffin v. Newburyport Ins. Co., 9 Mass. Rep. 449. Beatson v. Haworth, 6 T. R. 531. Hartley v. Buggin, 3 Dougl. 39. Augusta Ins. and Banking Co. v. Abb., 12 Md. 348. Fox v. Black, 2 Park. Ins. 488. Townsend v. Guyon, Id. 438.)
    3. In like manner the trip to Jersey City and back, and the final sailing from Jersey City instead of New York, were deviations from the voyage insured. In Vos v. Robinson, (9 John. 192,) the insurance was “ at and from Port Plata to New York.” The vessel sailed from Port Plata to Susua, eighteen miles east, but in the same collection district, and it was held to be a fatal deviation. The court said, “ sailing from Port Plata to Susua was not sailing from Port Plata to New York, for Port Plata and the revenue district of Port Plata are very distinct objects. Nothing short of a most clear and well set-tied usage would be sufficient to include both objects in the simple name of Port Plata.”
    IV. The printed and written application for insurance, which was the contract signed by both parties, and made a binding undertaking on both sides, contained several express warranties, one of which, viz. “ warranted to sail in a few days,” was broken by the lapse of forty-five days, from the 18 th of March to the 2d of May before sailing, and all benefit of the policy thereby forfeited by the plaintiffs. The courts have been exceedingly rigorous in requiring the most exact and literal fulfillment of this particular warranty, especially where, as in this case, the insurance is “ at and from,” which makes the underwriter liable for the safety of the. ship during the whole period of her stay in port. (1 Arnould, 589.*)
    1. Forty-five days are not “ a few days,” when the subject of insurance is a vessel “ at and from New York to Havana,” for which the usual period in port is only four or five days. (Bowden v. Vaughan, 10 East, 415. Kernan v. Pierson, Law Journal, 1862, N. S. vol. 31.)
    2. It has been held in the English cases where the policy itself is the only binding contract between the parties, that an express warranty, to be binding as such, must be written or printed on the face of the policy. This decision has always been placed upon the ground that the policy is the formal instrument containing the final agreement of the parties ; therefore, no instruction or collateral representation, parol or written, can be admitted to contradict it. (Pawson v. Watson, Cowp. 785. Bean v. Stupart, 1 Dougl. 11. 1 Arnould, pp. 577 to 579.) It is submitted, that these and subsequent decisions of like tenor, and the dicta to the same effect transferred therefrom into the text books, are wholly inapplicable to the system which prevails in New York, proved in .the present instance, by which the application itself is signed by both parties, to make the insurance binding, and contains in itself, and by reference to the printed policy, (now in use,) all the terms and details of the insurance, being made the vehicle for any special terms not included in the usual printed policy. The insurance was complete when the application was so signed. After that, no communication passed.' between the parties, but as a matter of form and routine, the usual printed form of policy was filled up by the company, and sent to the insured. The application itself then was the final agreement, to which the court must look for the understanding of the parties, and it was in no sense collateral, like letters of-instructions, verbal statements, and .the like.
    3. Judge Nelson has, in a recent case, speaking of this system. of insurance by means of the application, signed by both parties, said: “ The making out of the application to the office for insurance, and the acceptance of that application by the company, operates as a contract between the parties, and if the company afterwards refuse to execute the policy or accept the' premium notes, or otherwise to go on with the exepution of the contract, a court of equity will compel them to do so. All that follows the signing of the application is a mere matter of fulfillment of contract, merely doing, that which the law would compel them to do—a sort of routine business.”. (Vide MS. charge in Godfrey v. Sun Mut. Ins. Co., October Term, 1865.)

    4. It never was decided, even in the English cases, that it was not competent for the underwriters and the insured to bind themselves to an express warranty inserted in an agreement signed by both for the purpose of binding themselves, upon a paper distinct from the policy. What the courts have always resisted, is the attempt to make a warranty out of some representation or statement not in its terms ah express agreement, and contained in some letter or paper distinct from -the policy. The same objection cannot lie to an actual warranty, in terms such, and so intended by the parties, inserted in a contract.

      5. It has been frequently laid down, that if what would otherwise be a warranty in the policy is there expressly declared to be a representation, and not a warranty, it will not be held to be a warranty. (1 Arnould, 492.* 2 Duer on Ins. 645, § 2. 3 Kent’s Com. 5th. ed. p. 282.)
    • So we insist, that if what might otherwise, by being in the application, be a mere representation, is there expressly declared to be a warranty, and not a representation, it should be held to be a warranty, because it is perfectly competent for the parties to make it so.
    Y. But if the words in the application, warranted “ to sail in a few days,” are to have the effect only of a representation, still a substantial compliance with its terms is required, and of this the plaintiffs have wholly failed. Taken together, the representations contained in the application were, that the steamer which had been built in Poughkeepsie during the previous year, was just metalled, had been last inspected within the year 1863, (the application being dated 18th March, 1863,) and was at the time of the application in perfect order for sailing, and should sail in a few days. As to every particular this representation was positive, material, and of the last importance to a fair appreciation of the risk and premium by the underwriter., The insurance being “ at and from New York to Havana,” the actual condition of the vessel, and the length of time she would probably remain in port, were the main elements of the risk on which he would calculate his premium, and he fixed the, premium in reliance upon the representation that she was in perfect order and would sail in a few days. He measured his premium upon four or five days in port, the usual time, and upon the risks usual in the March season, and upon a vessel in perfect order for sea. Upon the proofs, it turned out that when the application was made, she was very far from being in perfect order. At the very time, she was undergoing repairs, an extensive overhauling, which occupied until the 27th of March. Then, upon trying her engines, the bearings of the grate bars of her 'boiler broke down, the repairing of which occupied until the sixth of April. Then, upon her trial trip, it was discovered that her exhaust pipe was too deeply submerged. To renew this, occupied until the 18th of April, at which time, while committing another deviation, sailing to Jersey City, she was damaged by a collision resulting in damages, to repair which took till the second of May. There was thus an entire failure to comply with the representations. She was, when insured, not in perfect order, nor in a condition to sail, nor did she sail in a few days.
    1. Where express and positive representations are made on points material to the risk, e. g. the condition of the vessel, the time of sailing, the policy is avoided if the representations, or any of them, are false, or are not substantially complied with. There is no such thing. as saving this effect, by any excuse for the falsity or the failure to comply. If false, or not complied with, even through ignorance, mistake or accident, the policy is avoided, wherever the falsity or the departure from the representation varies the risk. Here the risk was varied from an insurance of a steamer in perfect order, that would remain in port “ a few days,” (four or five days the usual time,) to a steamer out of repair, with the bearings of her grate bars so arranged that at the first turn of the engines they broke down, with her escape pipe at so low a point, that taking in coal, (without any cargo,) submerged it so as to make it of no service; the result of all of which was, that she remained in port at the risk of the underwriters about ten times as long as they anticipated.. (1 Arnould, 487, 489,* and cases there cited. Maryland Ins. Co. v. Leroy, 7 Cranch, 26.)
    2. With regard to the time of the ship’s sailing, the rule is, that representations must be complied with almost as literally as warranties to the same effect, for in that matter the smallest difference is often very material. (1 Arnould, 523*. Kirby v. Smith, 1 B & Ald. 672.)
    3. It will be noticed that in this case the .representations of the insured as to the condition of .the vessel were made by them in reply to inquiries of the underwriter touching that material point. This being so, though they related to facts which the assured were not bound to disclose, the representations must be considered to have influenced the mind of the underwriter, and their 'falsity necessarily avoids the policy. (1 Arnould, 518,* and cases cited.)

    VI. Irrespective of any warranty or representations, the delay in port for forty-five days was a deviation. It was an unreasonable length of time, which materially enlarged the risk, and. was not excused by the circumstances of the case. Due expedition in time of sailing is as vital to the risk as directness in the route pursued, and a divergence from it equally avoids the policy. (1 Arnould, 383. 1 Parsons’ Mar. Law. 281. Palmer v. Marshall, 8 Bing. 79. Mount v. Larkins, Id. 108. Palmer v. Fenning, 9 id. 460.)
    1. The excuses claimed are, first, material alterations in her style and structure; second, the necessity of repairs. The alterations are said to have been made at the suggestion of some underwriter’s inspector, but not at the suggestion of the defendants, or of any inspector appointed by them. Clearly, therefore, the insured had no right to make them, since they might enlarge or vary the risk, and as against this underwriter who did not assent, they cannot be pleaded as a reason for enlarging his risk by remaining in port. And as to a large portion of the delay involved in the repairs, it was incurred in consequence of the other deviations in going to Elizabethport and to Jersey City.
    2. Whether this deviation by delay arose from any justifying causes, was a question of fact which should have been submitted to the jury.
    VII. The vessel was unseaworthy. Immediately after leaving port the steamer took fire in the immediate vicinity of the boiler, without any adequate cause apparent. The law will intend unseaworthiness, when no rational cause other than a latent or inherent defect in the vessel can be assigned for the loss. The machinery or the woodwork connecting with it must have been defectively constructed, and thus occasioned the fire. It has long been settled as regards sailing vessels, that where the inability of a ship to perform its voyage becomes apparent soon after leaving port, and she founders without stress of weather or other adequate cause of injury, the presumption is that this inability existed before setting sail, and that it was due to some latent defect which rendered her unseaworthy; the same rule and principle are applicable to un seaworthiness arising from latent defects in the hull and machinery of a steamer. At any rate, if she was not by presumption of law unseawortby, it should have been left to the jury to say whether upon the proofs the plaintiffs had established her seaworthiness at the time of sailing.
    "VIII. The changes of the name and nationality of the vessel pending the risk avoided the policy.
   By the Gourt, Monell, J.

The principal questions raised by the exceptions in this case, are, first, whether the transfer, of the legal title to the vessel to Kane avoided the policy; and, second, whether the trial trip to Elizabethport was such a deviation from the voyage as amounted to an abandonment' of it and terminated the policy.

Having carefully examined the other exceptions taken by the defendants, I do not deem it necessary, in respect to them, to say any thing farther than that none of them, in my judgment, are well taken; >

By the policy it was agreed that it should cover only the original interest subsisting when negotiated,,, and that any change of interest, in whole or in part, should cancel the policy. It appeared on the trial that the policy was issued to the plaintiffs on the 18th of March, 1863, and that the vessel was destroyed on the 3d of May, of the same year. ' Intermediate the date of the policy and the loss, the plaintiffs, by a bill of sale, conveyed the vessel to one Kane. . Such bill of sale is dated the 4th day of April, 1863, and appears to have been recorded on the same day, at the British consulate. The consulate certificate, however, bears date the 6th day of April", 1863: " The consideration for the sale was #35,000;

On the 6th of April, 1863, Kane executed and" delivered to the1 plaintiffs a mortgage of the vessel, to secure the payment of thirty thousand dollars ; and also on the same day a power of attorney authorizing the plaintiffs to take possession and to have" the entire control of the vessel, with power to bargain, sell and convey the same. There was no evidence in regard to the delivery of these several papers, and it does not appear whether they were simultaneous acts. At most, two ¿ays only elapsed between the delivery of the bill of salé and the mortgage.

Independently of the clause in the policy respecting change" of ownership, no change whatever would avoid the policy, provided there was an insurable interest at the time of loss. (Arnould on Ins. 1333. Rhind v. Wilkinson, 2 Taunt. 237. Powles v. Innes, 11 Mees. & Wels. 10.) And the clause in question does not affect the rule, if the change is merely from owner to mortgagee. (Hitchcock v. North Western Ins. Co., 26 N. Y. Rep. 68.) Judge Selden says in that case, (p. 70,) “No transfer of interest will work a forfeiture under that clause, which does not so entirely deprive the assignor of insurable interest as to prevent his recovering on the policy for his own benefit, if that clause was not contained in it. To take away the cause of action in one case, and to render void the policy in the other, equally requires a transfer or termina-" tion of the entire insurable interest. So long as the insured retains such an interest that he may be a sufferer by the loss, the policy remains valid to protect that interest.” In that case there was a sale of the vessel and a mortgage for the purchase money, and the acts were simultaneous, and it was held that the bill of sale and mortgage constituted one transaction, and that the transfer did not terminate the interest of the insured. It is supposed that this case is an authority only when the transfer and the mortgage were executed at the same time. But it will be seen that the principle decided goes much further, and, it seems to me to.cover this case, even assuming that the bill of sale and mortgage were not executed or delivered at the same time. The principle decided is, that the mere transfer of the vessel, without payment by the vendee, and the taking back of a mortgage as a security for the purchase money, is not a change of interest; and the whole transaction was examined with reference to such result. The fact that the security was given at the same instant the transfer was made, is of no importance in giving effect to the transaction; and only important, perhaps, as putting a construction upon it, or as establishing the nature of the change of interest. The only question is, did the interest of the assured in the subject insured, terminate by the transfer ? If the change from owner to mortgagee did not work such a result, it is not necessary that the acts should be simultaneous ; and the fact that there was no other or different change, is the only important one to be ascertained.

That the sale in this case was conditional is sufficiently established by the papers themselves. The consideration of the sale was $35,000, for thirty thousand of which sum the mortgage was given, together with a power of attorney, placing the vessel under the entire control of the mortgagees. Until the delivery of the mortgage, the plaintiffs had an equitable lien for the purchase money, which was of itself an insurable interest, and the subsequent execution of the mortgage continued such interest. It was, therefore, as was said in the case before referred to, (Hitchcock v. North Western Ins. Co.,) owing more to the conditional character of the purchase, than to its instantaneous character, that the interest of the assured was continued.

I am unable to distinguish this case from the one cited, and therefore hold that the interest of the plaintiffs was not terminated by the sale of the vessel to Kane.

Second. Was the trip to Elizabethport a deviation from the voyage ?

The evidence was, that on the sixth of April, the plaintiffs having completed repairs, sent the vessel on a trial trip, to test her engines ; to take in coal, and to test her light and also heavy, draught. She went to Elizabethport and returned in safety to New York, and subsequently left on her voyage and was burnt at sea. The trial trip disclosed, that upon taking on board the necessary quantity of coal for her intended voyage, her exhaust pipes were too deeply submerged.

It is not disputed, that if a loss occurs while the vessel is in the slightest degree deviating from her voyage, the underwriters are not liable. In other words, if during the deviation the loss occurs, the insurers are discharged. (2 Pars. on Mar. Law, 278. Coffin v. Newburyport, 9 Mass. Rep. 436, 449.) Such was the case in Vos v. Robinson, (9 John. 166,) where the vessel was lost while deviating from her voyage. But it by no means follows that although a temporary deviation exonerates the underwriters for loss during such deviation, they are also relieved for a subsequent loss.

A voluntary and unexcused departure, although slight and unimportant, from the course of the voyage, will discharge the underwriters ; but it is otherwise if the departure is excused' by a justifying cause. (Arn. on Ins. 399.) Thus, making a port to refit; to recruit the crew ; stress of weather ; to avoid capture ; and, to succor ships in distress, are instances of justifiable deviation.

It therefore becomes important to inquire, if going to Elizabethport, under the circumstances and for the purposes disclosed, was a deviation, whether such deviation was justifiable.

If it was necessary to examine the first of these questions, it would, I think, be difficult to satisfy any one that there could be a deviation before a vessel started upon her .voyage from the home port. The elementary writers define a deviation to be, any unnecessary or unexcused departure from the usual course or general mode of carrying on the voyage. . Hence, until the voyage commences, there cannot be a deviation from the usual course of the voyage. And although the underwriters are discharged, if the loss occurs, upon a policy “ at and from” a port of departure, while the vessel is away from such port, for any unexcused purpose, yet they will not be absolved, if the vessel returns in safety, and is afterward lost upon her voyage. And one reason is, that the policy covers two risks ; one at the port of departure, and the other from such port upon the voyage to the port of destination. These risks are wholly independent, and distinct from each other. The former insures against the unenumerated perils while the vessel lies in port, and if she is taken from such port for any unjustifiable purpose, and is lost while absent from such port, the obligation of the insurer is at an end. The latter risk is limited to the voyage, and takes effect upon the departure of the vessel. If at that time no loss has occurred, the contract continues binding. It is true the case of Brown v. Taileur. (4 Ad. & Ell. 241,) is opposed to this view. . The policy in that case was “at and from her port of loading,” and it was held- to be a deviation, after having taken in a part of her cargo, for the vessel after-wards to go to another place in the same- bay to take in the rest. The case.draws nice distinctions, and holds, (per Patterson, J.) that if a ship were on a particular quay on a river, and merely removed to another quay, a mile or two off, that would not be a-deviation ; but it is a deviation if she removes to a different town, which might itself be a port of loading. The case, I believe, is not supported by any subsequent case ; for, as far ás I have been able to discover, no case has since arisen in which it became necessary to sustain or question a doctrine so.unique and apparently unjust.

,, It-is not, however, necessary for me to dispute the correctness of the rule laid down in that case. There are principles applicable to this case which relieve it from all difficulty.

In every policy of marine insurance there is an implied warranty that the ship shall be seaworthy for the voyage ; by which is meant, that she shall be in a fit state,, as to repairs, equipments, crew, and all other respects, to encounter the ordinary perils of the voyage. And the courts have held that such seaworthiness is a condition precedent to the underwriters' liability, for any loss incurred in the course of the voyage. (Arn. on Ins. 652. Draper v. Com. Ins. Co., 4 Duer, 234. S. C. 21 N. Y. Rep. 378.) It is the duty of the owner, therefore, to have the ship properly equipped, and sufficiently repaired for the intended voyage, and, as that is a condition precedent, it must, in an action by the. insured to recover a loss, be affirmatively established. Hence, he must show, that she had all necessary stores, (Fontaine v. Phœnix Ins. Co., 10 John. 58 ;) that she was duly manned with a competent crew, (Silva v. Low, 1 John. Cas. 184;) and that she is tight, sound and staunch in her hull, rigging and tackle. (Munroe v. Van Dam, Park. on Ins. 469.)

- In vessels propelled by steam, the implied warranty of seaworthiness extends to,, and requires, that the boilers, engines and all other machinery, are sufficient and suitable ; that the engineer is competent, and that sufficient coal or other fuel is taken on board. Any defect in these particulars will discharge the underwriters.

It being the duty of the assured to put his ship in complete condition for her voyage to avoid the consequences of a breach of the implied warranty of seaworthiness, he has the right to adopt all suitable and usual means to put her in such condition, and to determine, in advance of her sailing, if she is seaworthy.

The trip to Elizabethport was for two purposes, namely, to test the engine, and to ascertain, with a supply of coal on board, the light and heavy draught of the vessel. Neither of such objects could have been obtained, otherwise than by a trial trip, and they were, in my opinion, both necessary and proper, as well for the assured as the underwriters. The result of the trial trip was that when the ship got her supply of coal on board, her exhaust pipes were found to be too deeply submerged, and had to be altered.

If therefore the going to Elizabethport could otherwise be regarded as a deviation, it was sufficiently excused by the necessity of testing the engine and ascertaining the draught of the vessel when loaded.

So far from increasing the risk, which is the theory discharging underwriters in cases of deviation, the risk was positively lessened by the trial trip.

Nor does it make any difference that the trial trip was to Elizabethport. It might have been up the Hudson river, or down to Sandy Hook. It could not be while lying at her wharf, and she had a right to go a sufficient distance in any direction to accomplish the object designed.

I am therefore of opinion that there was no deviation, and that all the exceptions of the defendants should be overruled, and judgment ordered for the plaintiff on the verdict.

McCunn, J. concurred.

Barbour, J.

The defendants claim, among other things, that by the bill of sale to Kane, the original interest, subsisting when the insurance was negotiated, was wholly changed, and the policy thereby became, by own its terms, canceled and void; that the failure of the vessel to sail upon her voyage within a reasonable time, and her going to Elizabethport, and to Jersey City, and each of those things, constituted a deviation, which avoided the policy; that the vessel was unseaworthy when she finally sailed upon her voyage, &c.

There are two degrees or conditions of sea-worthiness spoken of in the books, which are applicable to this case of insurance at, and from, one seaport to another; the one being that which is necessary to keep a vessel afloat and safe while lying in harbor, and the other, such a condition of the ship and her appointments as renders her fit to withstand the waves and tempests of the ocean, and to make her voyage, except for accidents or extraordinary contingencies. The statement of the plaintiffs, upon applying for an insurance, that the vessel was, “in perfect order,” was a representation of a fact in presentí—a fact existing at the time of such application, and at the inception of the risk; and not a representation as to what her condition would be when she should leave port and enter upon her voyage. If, therefore, the vessel was seaworthy for lying, in' harbor at that time, such representation was true, although she was not then in order for a sea voyage. It follows that the insurers had no right to believe, from the use of the words “ in perfect order,” in the representation, that the vessel was in in order to sail, or that the statement, “ warranted to sail in a few days,” was equivalent to the common representation or warranty “ to sail with ordinary dispatch,” or “ usual dispatch.” It is more reasonable to suppose that the relative, and therefore indefinite, phrase, “ a few days,” was understood by both parties to mean such reasonable time as should be necessary to put the vessel in sea-going order, and place her cargo on board; more particularly, as there is evidence in the case tending to prove that the inspectors of the company examined her at the time of the insurance, and must, probably, have known that she was then undergoing repairs.

The proofs show that all the time between the issuing of the policy and the day of sailing, except during her trip to Elizabethport, was necessarily employed in repairing the vessel. Considering the words “ warranted to sail in a few days,” as a mere representation, and not a warranty, the delay in sailing is excused ; (see Smith v. Surridge, 4 Esp. 25; 1 Phillips’ Ins. § 1002;) and I think they must be so considered, under the general rule that an express warranty, to be binding as such, must be written or printed on the face of the policy, or on some paper referred to therein, and made a part thereof, or annexed to and delivered with it. (Pawson v. Watson, Cowper, 785. Bean v. Stupart, 1 Doug. 11. 1 Am. Ins. 577. Murdoch v. Chen. Co. Mu. Ins. Co., 2 N. Y. Rep. 210. Delonguemare v. Tradesmen’s Ins. Co., 2 Hall, 589.) If no policy had been issued, but the insurance had rested upon the application alone, there can be no doubt there would have been a warranty, upon the principle of the charge of Justice Nelson, in Godfrey v. Sun Mu. Ins. Co., (Oct. Term, 1865,) cited by the counsel for the defendants. It is clear, too, that the insurers were authorized by the terms of the application, to write the words in question upon the policy as a warranty ; but having omitted to do so, it appears'to me they thereby waived that right, and must now rely upon the declaration as a representation, merely. The delay in sailing, therefore, was not a deviation, except in so far as the same was occasioned by the trip to Elizabethport, of which I will speak hereafter.

Nor can the trip to Jersey City be considered a deviation. For even while lying at the docks there, the hull of the vessel rested in the waters of the harbor and city of New York ; and she was therefore at New York, within the letter as well as the spirit of the policy. She was not restricted to any particular position there, but had a perfect right to move from one part of the harbor to another, as business or convenience should require; and though damaged by a collision in her removal to Jersey City, that was one of the perils she was insured against, if the policy was then in force, and the necessity for repairing, because of such injury, furnished an excuse, pro tanto, for the delay in her sailing. (See- v. Westmore, 6 Esp. 109, and Bell v. Western Mar. & Fire Ins. Co., 5 Rob. La. R. 423.)

But I am of opinion that the trip to Elizabethport terminated the policy and discharged the insurers from liability,for subsequent- losses. It was a deviation not justified by necessity. If the vessel was in a condition to sail, it was her duty to depart upon the voyage mentioned in the policy; and if not, she should have remained “ at New York,” and completed her preparations. The owners had no right thus to add two or three days to, or even change, the period during which she was covered by the risk, previous to sailing, nor to postpone to that extent the time of her departure upon the voyage insured against.

The trip was, in fact, a complete voyage to another port, intermediate her lying “at New York” and her sailing for Havana. If the policy in this case had covered the risk of the voyage to Havana, only,, and this intermediate voyage had been .made, such policy never would have attached; for the voyage insured against would have been supplanted by another. (Wooldridge v. Boydell, 1 Doug. 16. Forbes v. Church, 3 John. Cas. 159.) Or if so insured for the voyage only, the vessel had, without imperative necessity, gone out' of her way, to Elizabethport, after commencing the same, it would certainly have been a deviation that would have discharged the underwriters from all risks, subsequent to her leaving the route to Havana. (Thellusson v. Ferguson, 1 Doug. 361. Hare v. Travis, 7 B. & Cres. 14. Henshaw v. Marine Ins. Co., 2 Caines, 274. Marine Ins. Co. v. Tucker, 3 Cranch, 357.) And I see no reason for holding that a ship insured at, as well as from, a port of departure, can make an intermediate voyage, when a vessel that is insured simply from one place to another, cannot.

In Brown v. Tayleur, (4 Ad. & Ellis, 241,) the policy was “ at and from her port of lading in North America to Liverpool.” The ship began to take in her cargo at Cocaigne, New Brunswick, and continued to do so for three weeks-; she then sailed to Bucktouche, five to seven miles distant, on the same bay, to complete her loading, arriving there in a few hours. She took no cargo at the latter place, but returned to Cocaigne in safety; and having sailed thence for Liverpool, was lost on the voyage. The sailing for Bucktouche was held to be a fatal deviation.

The case of Vos v. Robinson, (9 John. 192,) was remarkably like 'the one before us. There the insurance was “ at and from Port Plata to New York;” after which, the vessel sailed from the former place for Susua, eighteen miles distant, but within the collection district of Port Plata, for cargo, and was lost on that trip. It was held that the sailing from Port Plata to Susua, instead of to New York, was a deviation which discharged the insurers.

■ In both of the cases last cited, it will be seen, the insurance was “ at and from” a port of departure to a designated port of destination, and in each- it was decided that the sailing upon a very short intermediate voyage prior to entering upon that covered by the risk, was a fatal deviation. The facts are substantially the same here, and I see no reason why those decisions ought not to be followed. "

I think, too, that the Sale and transfer of the vessel' to Kane, on the 4th of April, terminated the risk, and released the insurers from all liability for subsequent losses. *

The- policy expressly declares that it covers “ only the original interest subsisting when negotiated, and that any change of interest, in whole or in part, shall cancel1 the policy in the same ratio.” The sale to Kane was of the entire vessel; and it was not only absolute upon its face, but was designed and intended to be so, as nothing short of an absolute sale would have enabled the owners to accomplish the object which they now declare they had in view. In order to change the nationality of the- vessel and place her under the protection of the British flag, it was necessary that the vendors should wholly divest themselves of all interest, as owners, and vest the entire ownership in a British subject, as they did. No mortgage or lien was taken or reserved at the time of the sale, nor even is there any evidence in the case tending to prove that an equitable lien was then created by an agreement tb execute a mortgage for the purchase money at a future period, or otherwise. Indeed, the mortgage, executed two days after the sale, was not given to secure the purchase money, but the return of money lent to Kane by the plaintiffs. For two entire days, therefore, subsequent to the sale, the plaintiffs were without any interest whatever in the vessel, either legal or equitable; and that deprivation of interest canceled the policy. ' It was then dead, as an obligation, by its own terms ; and it is not possible to suppose that the subsequent execution of a mortgage brought it again into life and action.

The decision in Hitchcock v. The North Westn. Ins. Co., (26 N. Y. Rep. 68,) which is somewhat relied upon by the plaintiffs, is directly against them. In that case, the assured in a policy containing a provision similar to this in regard to a transfer of interest, sold the insured property, and, simultaneously therewith, took a mortgage for part of the purchase money. ■ The court held that an insurable interest in the property continued ; and that, to avoid the policy, under the provision in question, it was necessary that there should be a transfer or termination of the whole insurable interest of the assured in the property ; thus, by strong implication, holding, as I understand it, that where the assured, under such a policy, parts with all his insurable interest, the provision in question attaches, and the policy is no longer operative.

It follows, frorii these conclusions, that the defendants were entitled to a judgment upon the evidence; and that the direction to the jury to render a verdict in favor of the plaintiffs was, consequently, erroneous.

Having arrived at this conclusion, it is not necessary to consider the further questions, raised by the defendants’ counsel, as to the effect of the change in the nationality of the vessel,.or in regard to her seaworthiness when she finally left New York upon her voyage to Havana, or touching the rulings of the court in the admission and exclusion of evidence.

The judgment should be reversed, with costs, .and a new trial granted. -

Judgment rendered for the plaintiff, according to the verdict.