author: Van Vorst, J.

text:
    BENJAMIN GLEADELL, Plaintiff and Appellant, v. ALEXANDER A. THOMSON et al., Defendants and Respondents.
    The bill of lading provided—“ The goods to he talcen from alongside hy the consignee immediately the vessel is ready to discharge, or otherwise the privilege is reserved to the vessel to land them on the pier, or put them into craft, or deposit them in the warehouse designated by the collector of the port of New York, all at the expense of the consignee, and at his rish, loss err injury.

    If the carrier intended to insist that the goods should be taken from alongside, he must notify consignee of readiness to deliver and the place of delivery, and reasonable opportunity must be afforded, for consignee to make necessary preparation on his part to receive the same. From the fact of the vessel going to her usual pier and landing the goods there without any such notice to consignees, it may be inferred that it was for the convenience of the carrier, and was a waiver of the requirements of the bill of lading that the consignee should take the goods alongside.

      The landing by a carrier of merchandise on a public or private wharf or pier does not terminate his liability as such; this act must be accompanied with reasonable notice to the consigee, to whom must be afforded a fair opportunity to remove and care for the goods before the responsibility of the carrier ceases, should the goods be mixed with other merchandise, so that they cannot be distinguished or separated. They should be separated and set apart from other merchandise by the carrier, so that the consignee can remove and take care of the same (The Ship Ben Adams, 2 Benedict, 449; The Eddy, 5 Wallace, 481,495; Kent's Commentaries, 8<Z Vol.). And even after the exercise of this care and diligence by the carrier, if the goods are not seasonably removed or taken care of by the consignee, or the consignee refuses to receive them, the carrier cannot abandon nor negligently expose them to damage, but in such case, when his responsibility as a carrier ceases, that of a warehouseman commences.
    For a full and able review of the authorities on this question see the opinion of the court by Vas Vobst, J.
    Before Monell, Sedgwick, and Van Vorst, JJ.

      Decided February 1, 1873.
    ■ This is an appeal from judgment, entered in favor of the defendants, against the plaintiff, on the 12th day of June, 1872, and from an order denying the plaintiff’s motion for a new trial.
    The action was brought by the master of the steamship Celia, a vessel plying between the port of London, in England, and the port of ETew York, to recover $994.62 for freight upon 513 bundles of Russia iron carried from the former to the latter place, and then delivered to the defendants, the owners.
    The defendants in their answer allege that the transportation, handling, and unloading of the merchandise was conducted so badly and negligently by the plaintiff and his agents, that a portion of the merchandise was damaged to the extent of $979, which the defendants claimed to recover, 'and counter-claim against the plaintiff’s demand for freight. The bill of lading, signed in London when the goods were received on board ship, exempts its owner “from any act, negligence, or default whatever of the pilot, master, or the mariners.” The bill also provided that “ the goods be taken from “alongside by the consignee immediately the vessel is “ ready to discharge, or otherwise the privilege is reserved to the vessel to land them on the pier, or deposit “them in the warehouse designated by the collector of “ the port of blew York, all at the expense of the consignee, and at his risk of fire, loss, or injury.”
    There is evidence that some of the bundles were in a wet condition when received at London on the ship. An entry in the margin of the bill limits the number as wet to five.
    The vessel arrived in KTew York on Thursday, the 7th July. The defendants, who had been expecting the vessel, knew of its arrival at the time. The vessel had a general cargo of assorted merchandise, consisting of dry goods in crates, drugs in packages, iron and steel, etc., etc. The removal of the .freight from the vessel commenced immediately, the ship’s men working all Thursday night. At what hour the defendants’ merchandise came out does not distinctly appear; but at about mid-day of Friday, the 8th, was out and piled, some on the north, and a portion on the south, side of the pier. Iron of Phelps, Dodge and Co. was also placed on the same side of the pier. The pier was closed with a good roof, but it had openings on its north and south sides, which left exposed the merchandise to the weather. It had a gate, and was under the charge of the agents of the company.
    One of the plaintiff’s witnesses says, the defendants’ iron was placed on dunnage on the pier. On the other hand, a witness of the defendants says, it was intermixed with iron belonging to others, of similar appearance, and could be distinguished by its shipping marks only.
    On Friday, about noon, the defendants sent their carts to remove the iron, the carmen taking with them tarpaulings to protect the same from rain, which was threatened. The merchandise, although lying on the pier, had not been weighed by the Custom House officials, and could not be removed until it was so weighed. The iron had been covered by the agents of the vessel with the ship’s tarpauling ; but as there was other merchandise which belonged to other parties to be covered, a portion of the defendants’ iron was exposed. There was conflicting evidence as to whether or not the ship’s tarpauling really covered and protected all of the defendants’ iron. There was some question, also, as to the sufficiency of the covering furnished by the ship’s company, in quality, to protect the iron from rain. As the iron could not be at once removed, the weighing not having been commenced, and as the storm was at hand, the defendants’ servants covered their own iron with the tarpaulings they had brought for the purpose of protection. It rained while they were engaged in this work. They had used two of their taupaulings for the purpose, and were about to cover the remainder, which was exposed, with a third and the principal tarpauling, when it was forcibly taken from them, in opposition to their protestations, and taken to the ship by the stevedore or other persons engaged in discharging the vessel, and was used to cover the hatchway of the ship, which was open and exposed to the rain. The reason assigned for the taking away of the defendants’ tarpauling by the persons who removed, or ordered its removal, was, that the hold of the vessel was to be covered in preference to anything else. The defendants sent for other tarpaulings, but before their arrival the iron had got wet. The iron was on the next day, Saturday, removed from the pier by defendants.
    Upon opening the bundles at the defendants’ warehouse, it was found that sixty-nine bundles were injured and damaged by wet, and, as the persons who examined the iron stated, “it was very plain to see it was fresh water caused by the rain. The injury under the evidence was of a character to deteriorate the market value of the merchandise. It was sent to auction for sale, and notice of the sale was given to plaintiff. The market value of the iron in a sound condition was proven to be 11-|- cents a pound, gold. It sold at auction at so reduced a price that the loss on sixty-four bundles, exclusive of the loss on five bundles marked in the bill of lading as wet, amouted to $979.
    At the close of the defendants’ evidence, the counsel for the plaintiff moved for judgment in favor of plaintiff, upon the following grounds:

      First. That the facts proven by the defendants were a mere trespass, and did not in any way constitute a set-off or counter-claim, which would, under the pleadings or otherwise, be available to defeat the plaintiff’s claim for freight.

      Second. That under the clauses in the bill of lading, the plaintiff was not' responsible for the damage to the iron claimed by the defendants to have occurred on the dock, and relied upon by them as a defence.

      Third. That nothing had been proven by the defendants which constituted a defence to the plaintiff’s claim, and that the court should direct judgment therefor.
    The court denied the motion, and the plaintiff’s counsel duly excepted.
    The jury allowed the defendants’ claim for damages, and rendered a verdict for the plaintiff, of $17.
    So much of the judge’s charge and the exceptions as are necessary to be considered, appear in the opinion.

      George W. Wingate, for appellant.

      Thomas C. T. Buckley, for respondent.
   Van Vorst, J.

The rain on the 8th July was an efficient and proximate cause of the injury which the defendants’ iron sustained. When hoisted up the hatchway in defendants’ warehouse from the trucks, the water was running out; and being examined shortly afterwards it was found to be still wet, and the injury such as fresh water would occasion ; under such circumstances, it is useless to inquire whether the injury might not have been produced during the voyage, by some of the excepted causes mentioned' in the bill of lading. No evidence was adduced as to the presence of such causes in the vessel. But on the other hand, the plaintiff’s proof shows that the storage of the iron in the vessel was proper, and that when it was “ hove up,” and landed on the dock, there were no signs of wet.

The bill of lading signed by the master, expressly limited the number of bundles received in a wet condition at five. Such entry made at the time, by the party to be chiefly affected, would be presumed to state most broadly the number received by him in a wet condition. The damages on five bundles are not embraced in the verdict and judgment in this action.

The jury have found that the injury complained of was occasioned after the iron was unloaded and placed on the pier.

The plaintiff’s counsel claims that the contract of affreightment was completed when the iron was placed on the pier; that the goods were then legally delivered to the consignees by the carrier, and that he is not responsible for injuries thereafter occurring.

In support of this proposition, it is urged, on the part of plaintiff, that it was the duty of the owner to have taken the goods “from alongside” immediately the vessel was ready to discharge, otherwise the privilege was reserved to the vessel to land them on the “ pier.” What particular “pier” is not stated. There is no evidence that the defendants were notified by, or in behalf of, the carrier, at what time or at what place the vessel would be ready to discharge, or that opportunity or choice was afforded them to take the goods “from alongside.” The vessel went immediately to her own dock, and without notice to the consignees commenced to discharge her whole cargo. In this work several hours were consumed before the defendants’ iron, which lay near the bottom of the barge was reached, goods above requiring to be first removed. A “night permit” having been obtained, a portion of the cargo was taken out on Thursday night. Haste was required in her unloading, as the vessel was to commence her return voyage on the following Saturday, and in the meantime she was to be both disburdened and reloaded.

If the plaintiff intended to insist strictly on the terms of the bill of lading, that the goods should be removed “ from alongside,” notification of the vessel’s readiness to discharge, and where, should have been given to the defendants, and reasonable opportunity afforded them to make the necessary preparation on their part to do so. Spch requisition is surely not unreasonable. It may be inferred that in going to the pier, which proved to be her own, and landing the goods there, it was for the more convenient discharge of the whole cargo, and, as far as defendants were concerned, was a waiver of the removal “from alongside.”

The simple deposit of the goods on the pier did not, in law, discharge the carrier from further responsibility for their safety, and that whether they were landed on Thursday night or Friday morning. The time of landing, that is whether it be in the night or in the day time, does not control.

It has been repeatedly adjudicated that the landing by a carrier of merchandise on a public or private wharf or pier, does not terminate his liability as such. This act must be supplemented by due and reasonable notice given to the consignee, and a fair opportunity afforded him to remove the goods before the responsibility of the carrier can be ended. Nor should the goods landed be mixed with the merchandise of others, so that they cannot be distinguished. They should be separated and set apart (The Ship Ben Adams, 2 Benedict, 449; The Eddy, 5 Wallace, 481, 495; 3 Kent’s Com.).

Nor in the event that the goods be not seasonably removed, or though the consignee refuse them even, may the carrier abandon or negligently expose them to damage. If the goods remained in his possession, his liability as warehouseman would commence when his responsibility as carrier ended.

In the case of Price v. Penell (3 Carn’s. 322), six boxes of marble tomb tops had been shipped on a vessel at New York, to be delivered to the owner in good order at the Port of Wilmington, N. C, to which place the vessel Avas bound. Notice was given at Wilmington, by the consignee of the vessel, to the owner of the marble late in the evening of the day of the marble’s having been taken out, and that it was lying on the wharf. The owner of the marble had heard during the day of the arrival of the vessel; late in the evening he visited her at the wharf, and was informed that the marble was unloaded.

The next morning he went to the wharf, and, on examination, found some of the tops broken. The master claimed, and'the evidence tended to show, that the damage had not occurred during the voyage, as they had been properly stowed against the stanchions on their edges. On the trial, the defendants, the owners of the vessel, asked the judge to charge the jury that the plaintiff could not recover without shoAving that the marble was broken whilst in the possession of defendants, and before the termination of the voyage, and that the carrier’s duty was ended by the delivery of the marble on the wharf, at which time it was not shown that the same was injured. The court refused so to charge. But did charge that a delivery at the wharf was not sufficient to exonerate defendants from their liability as carriers, without notice to the consignee, and also that the consignee has a reasonable time after notice within which to take possession of the property, and if the marble was broken on the wharf overnight, the consignee not having had a reasonable time to remove it before the next morning, the carriers would still be liable.

The ruling of the judge on the trial was sustained by the Court of Appeals.

The case of Redmond v. Liverpool, N. Y. &. Phil. S. S. Co., 46 N. Y. 578, contains an elaborate review of the law respecting the duty and liability of carriers in regard to the delivery of goods on a wharf or pier, when no particular place of delivery has been designated by the shipper or consignee.

In that case the carrier had delivered 23 boxes of merchandise consigned to a party at New York on pier No. 44, which was under its control. After being landed, they were checked off by a person acting for the ship. The consignee carted away and gave receipts for all the boxes except one, which after being landed safely, had in some way disappeared. The carrier was held liable to the owner for the value of the lost package. It was held in that case, that a carrier by water is not relieved from all responsibility by a discharge from his vessel at a wharf or place of discharge not selected by the owner for storing his goods. That, until a reasonable time has elapsed for the owner to remove the goods, they are at the risk of the carrier. See also Ostrander v. Brown, 15 Johns. R. 39; McAndrew and others v. Whitlock, 2 Sweeney, 623.

Under the bill of lading in the case before us, the privilege was reserved to the vessel to land the iron on the pier, or put them into craft, or deposit them in the warehouse designated by the collector of the port of New York, in the event of the goods not having been removed ‘ ‘ from alongside ” by the owner. As already observed, no particular pier was designated in the bill. Plaintiff elected to place them on a pier under his own control, attached to which was a gate from which the goods were delivered to consignees.

The defendants had heard of the arrival of the vessel. From whom they had heard this does not appear. At mid-day, on Friday, they sent tarpanlings to cover, and carts to remove, their property. The iron had not yet passed the custom-house scales, and could not be removed until weighed, even had it been-prudent to have attempted it in view of the impending storm. It had been the duty of the plaintiff, up to this time, and at least until a reasonable time after defendants’ actual knowledge, on Friday noon, of the goods being on the pier, to have cared for them with the diligence required of a common carrier. Plaintiff’s company had a large shed at the bulkhead on the pier, where two-thirds of the cargo had been stored, which was entirely secure ; defendants’ merchandise was not placed there, but it was piled farther down the dock, under a shed which was covered on the top, but was not enclosed all the way down, and in the sides of which there were also large openings. The iron was arranged with its ends sticking out towards the open sides, and was exposed to the weather. The agents of the plaintiff in charge of the merchandise knew of its exposed condition. It was Bussia sheet-iron, whose surface was readily injured by water. After placing it in this position, and when they saw the storm coming, they had placed over this, and other portions of the cargo, the ship’s tarpaulings. They claim in this manner to have covered all the cargo except that which was in the shed in the bulkhead, and to have done" it well. The action of the plaintiff in this regard does not indicate that he considered himself relieved of all liability by simply placing the iron on the pier. But whatever he undertook to do should have been so well done, as to have actually shielded the property from the coming rain.

The servants of the defendants on their arrival (Friday noon), on examination, concluded that their goods were not sufficiently covered, “and that they were exposed to damage from water. Defendants’ goods had not been distinctly separated, but were lying intermixed with similar merchandise belonging to others. They were about to cover a portion of their iron much exposed, and upon which the rain fell, with their remaining tarpauling, having used the others on different portions of the merchandise, when it was forcibly taken from them by the ship’s stevedore, and others engaged in the plaintiff’s service in unloading the ship, and was used by them to cover the hatchway of the vessel, and to protect the property of others in its hold. Whether this act was a trespass or not, it is of no consequence to inquire. It shows that the defendants had not yet been entrusted by the carrier with the exclusive control and care of their own goods. It is only reconcilable with the idea that the carrier considered the goods still in his care, and that in his judgment they were already sufficiently protected by the ship’s tarpaulings, and he was willing to assume, in his anxiety to protect other property in his charge, that the precautions he had taken to guard defendants’ property was sufficient.

The plaintiff’s witness, Brush, testified: “I saw the storm coming up some time before it came. I got my tarpaulings out, got the men to work, and covered it up,” and he insisted that he had covered it so well that it was shielded from the rain.

In so understanding, and in his efforts to meet his responsibility, with respect to the goods of the defendants and others in his charge, the plaintiff acted under the legal obligation resting upon him. But if the goods were damaged by the rain, notwithstanding what he did, he is responsible, not as a trespasser in taking the defendants’ tarpauling, but as a common carrier.

There is nothing in the excepted clauses in the bill of lading which excuses the carrier from damages sustained on the pier, although it may have resulted from the improper conduct of his own employés.

The evidence fully justified the jury in finding that the injury resulted from the exposure to rain while the goods were on the pier (in the plaintiff’s case). The judge instructed the jury, “ It is for you to say when the iron was injured; and if you find it was injured here, while under the care of steamship’s company, you will then ascertain the amount of the injury it then sustained.” What was said by the judge in respect of the damage being the result of the taking away of the tarpauling by the stevedore or other agents of the ship, could hot affect the substantial result. In one aspect it was true that if the tarpauling was necessary to protect the iron from the rain, and its abstraction left it exposed, then the damage might be said to follow the act. The damages proved on the sale of the goods at auction was $979, and that is the precise amount the jury allow.

We see no substantial error in the ruling and decisions on the trial, or in the result. The motion for a new trial is denied, and judgment should be affirmed, with costs.


source: Caselaw Access Project

author: By the Court.—Sedgwick, J.

license: Public Domain

text:
    CHRISTIAN S. DELEVAN, Plaintiff and Appellant, v. GEORGE SIMONSON et al., Defendants and Respondents.
    The plaintiff brings an action against the defendants, as brokers employed ' by him to buy and sell stocks and gold; and claims by his complaint, that defendants did purchase and sell stocks and gold for plaintiff under their agreement; and that la/rge profits had accrued, and defendants had received a large amount of money to which plaintiff was entitled, to wit §40,000, and that defendants had neglected to account therefor, and prayed judgment for an accounting, 'and for the balance found due thereon.

    As matter of law, the plaintiff is entitled to no other judgment on the complaint than such as shall be based upon profits in the transactions entered into by defendants for and on account of plaintiff.

      Proof of damages on the trial, arising from the violation of orders or directions of plaintiff, to defendants, will not support the judgment, although not objected to, and in regard to which both parties introduced testimony.
    The conclusion of law by the referee, that under such proofs plaintiff was entitled to judgment, although the complaint set up no such cause of action, was erroneous, and the defendants’ exception to such conclusion should be sustained.
    Before Monell, Sedgwick, and Van Vorst, JJ.

      Decided February 1st, 1873.
    Appeal from a judgment entered upon the report of a referee, and from an order to vacate the judgment.
    The facts and points in the case appear fully from the opinion of the court.

      Ruggles & Felt, for appellants.

      Horace Andrews and John M. Harrell, for respondents.
   By the Court.—Sedgwick, J.

The motion for a new trial has no merits, and this appeal must be decided upon exceptions taken at the trial.

The complaint stated that the defendants, as brokers, had agreed with the plaintiff to buy and sell for him, and as he should direct, stocks and gold, and to render true accounts ; that the plaintiff gave directions to the defendants to buy and sell for him certain stocks and various amounts of gold ; that the defendants under the agreement did purchase and sell for plaintiff stocks and gold, from time to time ; that large profits had accrued,' and that, by reason of said sales, “ the defendants have •collected and received a large amount of money, to which the plaintiff is fairly and justly entitled by the terms of said agreement, to wit, the sum of $40,000,’’and that the •defendants have neglected to account; wherefore the plaintiff prayed that an order and judgment of the court might be made, that the defendants’ account for all purchases and sales made under the agreement, and that the plaintiff might have judgment for the sum that should be found due upon the accounting, etc.

The answer admitted an employment, as specified in the complaint, and that the defendants had bought and sold stocks and gold, on the direction of the plaintiff: but they said that no profits had accrued to the plaintiff, and that they had fully and justly accounted, etc.

To sustain his action, the plaintiff put in evidence an account which the defendants had rendered to him. That account was of purchase and sale assumed by the defendant to have been made by them for the plaintiff. The plaintiff then proceeded to point out many errors in it. He also gave testimony as to violations of orders given by him to the defendants under the agreement, by which he testified he lost large sums of money. He further testified to the defendants’ buying and selling without orders. Hone of these matters were objected to by the defendants. When the latter went into their case, they gave evidence as to these alleged errors and violations of orders.

It will be noticed that the plaintiff made out the case he stated in the complaint, simply by the account which he proved had been given to him, and which he used in an admission by the defendant, except so far as he varied or contradicted it by affirmative proof.

On the evidence, as matter of fact, the referee found in substance (the finding, however, being specified) that the defendants had neglected to make sale and purchases when directed by plaintiff; that purchases were made without plaintiff’s orders, and the amounts given thereon were charged against the plaintiff, when in fact they could have been bought for much less ; that sales were made on plaintiff’s account, and charged against him without plaintiff’s authority ; that the deduction that should be made from the account presented, and the amounts of credit that should be given to the plaintiff on that account by reason of these acts and omissions of defendants done without plaintiff’s authority, were in all $32,080.32, “from which sum,” in the words of the report, “deduct the balance appearing by said account to be due to the defendants, and there remains the sum of $9,597.10.” And as a conclusion of law from these facts, the referee found that the plaintiff should have judgment for the difference, with interest.

The result is, that the plaintiff proved that he was not entitled to recover anything as profits made on his account, and not one cent; of his recovery consists of profits. His recovery was for damage he had sustained by a violation of his directions ; the measure of damage as .to most of his claim being the profit he would have made. The complaint did not claim damages for violation of orders, or for neglect to obey orders. It said there had been profits on the purchases and sales, and it demanded an accounting as to these profits.

The defendants excepted to the conclusions of law. The objection is, that, as matter of law, the plaintiff is entitled to no other payment on the complaint than is based upon proof of profits, and that proof of damages, or violation of orders or directions, will not support the judgment. We think the objection must be maintained. It is not a case of the defendant voluntarily, by not objecting, taking the court’s judgment as to the legal result of - a set of facts with which both sides have fully gone; and yet which, upon defendants’ motion, would be held to be within the case a failure of proof (Belknap v. Sealey, 14 N. Y. 143). It is rather within Codd v. Rathbone, 19 N. Y R. 39. There was no barrier of any objection, because the matters which were given in evidence on which the referee relied, were relevant to the issue framed upon the complaint as it stood. An objection to them would have been overruled. The plaintiff set out by proving admissions of the defendants, as to purchases and sales, made by them for plaintiff’s account, as stated in an account which defendants had rendered plaintiff. He then proposed to ■contradict certain parts of that account, which would leave the rest of it good evidence against the defendants. This was all unobjectionable. On the other hand, the plaintiff was entitled, without waiving the objection that there was a failure of proof, to go into the facts testified to by plaintiff, in showing errors in the account, because the defendants claimed, as an affirmative defence and counter-claim, that there had been accounting and an account stated between the parties. Therefore, the defendants were entitled to show that there were no errors in the account as rendered. All this left the plaintiff to make out the case of his complaint, that the defendants» in executing his orders for purchases and sales had earned large profits, and that he was entitled to an account of them. This I think the plaintiff failed to do, and therefore the defendants’ exception to the referee’s conclusion of law is sustained.

The judgment should be reversed, and there must be ■a new trial, with costs to appellant to abide the event.

The order of referee should also be vacated.


author: By the Court.—Van Vorst, J.

text:
    SAMUEL G. WHEELER, Jr., Plaintiff, v. THE NEW YORK MUTUAL INSURANCE COMPANY, Defendant.
    The defendant insured for the plaintiff the schooner “ Thomas Holcombe,” from Feb. 24, 1870, to Feb. 24, 1871.
    The policy contained a warranty, not to me foreign prn'ts and places in the Gv*f of Mexico.

    On May 14, 1870, the vessel cleared for the port of Frontera, in the Gulf of Mexico, and sailed for that port May 15. On May 26, 1870, and on this voyage towards Frontera, the vessel went aground on the coast of Cuba, from the perils of the sea, at a distance of seven hundred miles from the prohibited port, and for injuries and damages received by her on that occasion, plaintiff claims $1,531.67. Before the vessel sailed, application was made to defendant for leave to use the port of Frontera, and the application was denied.
    The defendant claims, that when the vessel cleared and sailed from the port of New York, for Frontera, the warranty was broken, and she ceased to be under the protection of the policy.

      Sdd, That when the words “ to use,” are employed in connection with “port” they mean, “ to go into a poj't, Jiarboi', or Jumen, for sJielter, commerce, or pleasure, and to derime a benefit or advantage from its protection.” That clearing for it, or sailing towards it, is not “ a use” of the port under the policy, and not a violation of the warranty (Snow v. Columbian Ins. Co., 48 Barb. 469, reversed in 48 W. T. 624, reviewed and held to be decisive of this case).
    Before Monell, Sedgwick, and Van Vorst, JJ.

      Decided February 1, 1873.
    Verdict by the direction of the court, subject to the-opinion of the General Term.
    The defendants on the 26th February, 1869, by a policy bio. 20,587, insured for the plaintiff the schooner “ Thomas Holcombe,” from the 24th day of February, 1870, to the 24th day of February, 1871.
    The policy contained a warranty not to use foreign ports or places in the Gulf of Mexico. On the 15th day of May, 1870, the vessel sailed from the port of blew York in ballast, bound for the port of Frontera, Mexico, for which port she had on the 14th day of May been duly cleared. The port of Frontera is a foreign port in the Gulf of Mexico. On the 26th day of May, 1870, the vessel ran aground on the coast of Cuba, about ten miles from the port of Havana, in consequence of which she was injured by the perils of the sea to an amount exceeding six thousand dollars, for one-quarter of which, to wit, $1,531.67, with interest from the 30th day of August, 1870, the defendant, if liable under the policy, is responsible.

      The port of Frontera is distant from the port of Havana about seven hundred miles.
    Before the vessel sailed from New York on her voyage, she made application to the defendant to use the port of Frontera. The defendant refused to grant such leave; due proof of the loss, and of the plaintiff’s interest in the vessel, was given to the defendant. The jury, under the direction of the court, found a verdict for plaintiff for the sum of §1.656.74, subject to the opinion of the court at General Term, on a case to be made.

      Thomas M. Wheeler, for plaintiff.

      R. S. Emmet, for defendants.
   By the Court.—Van Vorst, J.

The only question to be determined, and upon which the plaintiff’s right to recover depends, is whether there was a breach of the warranty, on the part of the assured u not to use foreign ports, or ports in the Gulf of Mexico.” When the vessel ran aground, she was seven hundred miles from the prohibited port, her objective point.

The defendant claims, that, directly the vessel sailed on her voyage towards the prohibited port for which she had cleared, the warranty was broken, and she ceased to be under the protection of the policy of insurance.

This view of the law appears to have been sustained in Snow v. Columbian Insurance Co., decided in the Supreme Court (48 Barb. 469).

In that case, the policy contained a warranty, not to use ports in the British North American provinces, except between the 15th day of May and the 15th day of August.

On the 20th September, the schooner sailed from Boston, bound for Lingan, in Cape Breton, Nova Scotia, one of the British North American provinces, for a cargo of coal. On the 24th September, before reaching Lingan. the vessel was wrecked on the coast, near LounsTbnrg, about fifty miles from Lingan.

Justice Ingraham, who delivered the opinion of a majority of the court, says, “The sole object of the voyage in the present case being to enter a prohibited port, after the schooner entered on the voyage to Lingan she ceased to be under the protection of the policy, and the plaintiff cannot recover.” Justice Leonard dissented, holding, that “the policy was not violated by an intent of the owner to violate it at a future time ; it is the actual entry or use of the port that violates the contract.”

Upon appeal to the Court of Appeals, the judgment of the Supreme Court was reversed, all the judges concurring.

The court deciding, that, when the words “to use” are employed in connection with the word “port,” they mean, to go into a harbor or haven for shelter, for commerce, or for pleasure, and to derive a benefit or an advantage from its protection.

That going in the direction of it, is not a use of the port (S. C. 48 N. Y. 624).

The case before us cannot be distinguished from the one above cited.

The defendant’s counsel on the argument urged, that it did not appear in Snow v. Columbian Insurance Co, that the vessel had “ cleared” for the prohibited port, as it does in the case under consideration. But it is difficult to perceive how in principle the conduct of the one is a breach of warranty, and of the other not.

In the case cited, the vessel sailed from Boston, in “ ballast,” bound for the prohibited port, which she intended, from the very outset, to use,” by taking in her cargo there. She could have expressed her intention no stronger if she had “ cleared ” for the port.

Judgment should be entered for the plaintiff on the verdict, with costs.


author: By the Court.—Monell J.

text:
    RUSSEL STURGIS, Plaintiff and Respondent, v. THE NEW JERSEY STEAM NAVIGATION CO., Defendant and Appellant.
    The admission of the allegation in the complaint, “ That Drew, the president of the Company, was authorized to manage its affairs, and to make contracts on its behalf," by the defendant, rendered it unnecessary to give any proof on that subject.
    The contract was that plaintiff should have five per cent, on the earnings of certain steamboats, if he succeeded in chartering them to the U. S. Government ; plaintiff negotiated a charter at $800 a day for the full term of one month, and as much longer as the vessels were required by the U. S. Government at the same rate.
    This was a charter for one month, and so much longer as the U. S. Government retained the vessels in its service. The earnings were under the charter, and plaintiff was entitled to his commission upon the whole earnings of the vessels under the charter, and not merely to the earnings of the month alone; that by the terms of the charter the government were absolutely bound to keep the vessels in its service.
    The whole ea/rnings, of the vessels under the charter should form the basis for estimating the plaintiff’s compensation (Howland ®. Coffin, 47 Ba/rb. 653).
    Before Monell, Sedgwick, and Van Vorst, JJ.

      Decided February 1, 1873.
    Appeal from a judgment.
    The action was to recover broker’s commissions for effecting the charter to the United States Government of two of the defendant’s steamers.
    It was conceded that the defendant made a contract with the Government by which the steamers were chartered; which charter was to remain in force “for the full term of one month from the above date, and as much longer as said vessel may be required by the United States War Department. One of the vessels was retained by the government for 239 days, and the other for 210 days.

      This action was not brought until after the expiration of those periods.
    On the trial the plaintiff testified as follows:—
    I called upon Mr. Drew on the 17th of February, 1862, at his office ; I found him there almost alone; there was one person sitting by the stove, and I think one -clerk in the office; I told Mr. Drew I was aware that the government would be requiring steam vessels for transportation, of all classes and sizes ; I asked him if he had any vessels of their line that were at leisure that he would like me to charter, provided I could do so; he answered: “ Yes, yes,” and spoke of the Vanderbilt and of the Commodore. * * * * *
    I asked him to give me the particulars of the Commodore and Vanderbilt; he took me into the back room and looked over a book that lay on the shelf, but appeared not to be able to find what he wanted ; he said to me : “Captain Jake Vanderbilt will be in here soon, by 11 o’clock, and I will send him to you to give you theinformation; he said he wanted $1,000 dollars a day for these boats ; that they were in first-rate order and of good capacity.” I said: “Very well, my commission is five per cent, on the earnings of these boats if I charter them to the government.” He said: “Very well,. I will give it to you, and I wish you would take the others.”
    He further testified that he offered the vessels to the U. S. quartermaster, who directed Capt. Loper to examine them. After they had been examined, plaintiff went with Capt. Loper, and saw Mr. Drew. Capt. L. said he would recommend the vessels at $800 a day. Mr. Drew consented to that. Whereupon he, plaintiff, said to Drew, “ This of course carries my commission of five per cent.” “Yes,” said he.
    The vessels were chartered at $800 a day each. Mr. Drew was the president of the defendant’s company; and it was alleged in the complaint, that as such president, he was duly authorized and empowered by the defendant, to manage the affairs of the company, and to make and enter into contracts on its behalf. This was not denied.
    An action was made to dismiss the complaint on the ground that the authority of Drew to bind the defendant was not shown. The motion was denied.
    On the part of the defendant, Mr. Drew denied that he had employed the plaintiff to procure a charter, and -denied the alleged agreement for commissions.
    The defendant requested the court to charge, that the recovery could only be for commissions, upon one month’s earnings under the charter, and not for the whole period the vessels were retained by the government. The court refused so to charge.
    The court submitted the disputed question of fact to the jury, who found for the plaintiff.
    From the judgment the defendant appealed.

      Mr. Charles Jones, for appellant.

      Mr. Wm. Allen Butler, for respondent.
   By the Court.—Monell J.

The defendant’s admission of the allegation in the complaint, that Drew, as president of the company, was authorized to manage its .affairs, and to make contracts on its behalf, rendered it unnecessary to give any proof on that subject. The .general power thus admitted to have been vested in the president, was of course sufficient to authorize him to make the contract which is the subject of this action.

The motion to dismiss the complaint was, therefore, properly denied.

The question of fact in dispute, was submitted to the jury for their determination, and as the appeal is from the judgment only, we are not at liberty, even if it were necessary, to question the correctness of this conclusion.

The principal question arises under the request to charge the jury, that the recovery should be limited to commissions on the earnings for a month. This request was refused, and the court charged in effect, that the recovery might be predicated upon the earnings under the charter for the whole period the vessels remained in the government service.

The duration of the charter was, “the full term of one month from the above date, and as much longer as said vessels may be required by the United States War Department ; ” and the per diem allowance was for “ each and every day said vessel may be employed.’ ’

There was no option on the part of the charterers. They parted with all control on the vessels, so long as the government saw fit-to employ them in its service ; and they did not reserve any right whatever to cancel the charter at the end of a month, or at any other time. That right rested wholly with the War Department. It had the option to terminate the contract at the end of the month, or to continue it for a longer and indefinite period. It was not, therefore, a charter for a month, except at the will of the government. For a month, it was a charter, and could not, probably, be terminated short of that time, by either party. But for a continuance beyond that period it required no new contract. The exercise of the government’s option was alone sufficient, and then it became a charter for so long a time as the vessels remained in the government service.

The agreement, as the jury found it, was a commission of five percent, on the “ earnings” of the boats under the charter; and as under the charter the two vessels remained in the service of the government for the aggregate period of 449 days, earning the handsome sum of about $360,000, it was not incorrect to hold that such earnings were the proper basis for estimating the plaintiff’s commissions. If such earnings were not under the charter which 'the plaintiff had procured, then the payment by the government of the large sum of money which the defendant received was without any authority whatever. But no such allegation is made, and the defendants admit that they received the money as the earnings under the charter.

In Howland v. Coffin (47 Barb. 653), the agreement was, to pay commissions on the charter, so long as the vessel remained in the government service. After a period of several months, the per diem allowance was by mutual agreement, endorsed upon the charter, reduced from $200 to $125, and it was claimed that the commissions should cease at that time. But it was held, that the change in the allowance did not annul the charter, or terminate the period to which the plaintiff should be limited, as the earnings under the charter. In other words, that the new agreement affected only the amount of the earnings, and did not deprive the plaintiff of his commissions on the reduced sum, so long as the vessel remained in the government service.

The construction of the court, therefore, was correct, that the whole earnings of the vessels under the charter should form the basis for estimating the plaintiff’s compensation.

The question on the cross-examination of the plaintiff, the exclusion of which was excepted to, may have been properly excluded, on the ground that it had already been answered. The immediately preceding question was, “ Was it not a matter of public notoriety, that vessels were wanted by the government \ ’’ Answer: “It was not:” then the witness answered, “this was a special expedition.” Instead of moving to strike out the addition, the defendant’s counsel said, “ I have not asked you that question ; I ask, whether it was not a matter of public notoriety, that vessels were wanted by the government ? ” This latter question was excluded, and properly so, for the reason stated. Besides, it was of no consequence as affecting any of the questions in the case.

The judgment should he affirmed.


text:
    GEORGE WESTLAKE, et al., Plaintiffs, v. JABEZ A. BOSTWICK, etal., Defendants.
    The defendants were bound by contracts to deliver to plaintiffs 1,000 barrels of oil on the 27th of August, and 1,000 barrels on the 29th of August, 1870. On August 22d, the plaintiffs wrote to defendants, that unless they sent them word at once that they would deliver the oil according to contract, that they would purchase the oil called for in the contracts, and hold defendants responsible in the premises. To this defendants made no answer, and on the 23d of August plaintiffs wrote to defendants that they had purchased the oil, in pursuance of them letter of the day before. On the days fixed for the delivery of the oil under the contracts, plaintiffs demanded the oil, making offer of payment. It not appearing that defendants had been misled, or had in any manner acted upon, or been governed by, the letters of the 22d or 23d of August, they cannot claim, and are not entitled to, a release or waiver of the delivery of the oil under the contracts, and were bound to fulfil the same.
    If it had been otherwise, and defendants had acted upon the latter, and, in consequence, had treated the contracts as annulled, and had not prepared themselves for the delivery of the oil, there would be great difficulty in the enforcement of the contract. —Opinion of the Court, Sedgwick, J.
    Before Monell, Sedgwick, and Van Vorst, JJ.

      Decided February 1, 1873.
    Verdict for plaintiffs. Exceptions to he heard at the General Term in the first instance, with a suspension of judgment.
    The facts and exceptions fully appear in the opinion of the court.

      Wm. W. Goodrich, for plaintiffs.

      W. C. Whitney, for defendants.
   By the Court.—Sedgwick, J.

The plaintiffs were the parties in interest in the contracts which were the subject of this action.

One Wood was their agent through the transactions now to be considered.

The defendants, and a firm of Egbert & Brown, by written contracts agreed with the former to sell to the latter, and the latter to buy from the former, 2,000 barrels of oil, the deliveries to be made upon notice to be given by Egbert & Brown.

Egbert & Brown assigned their interest in these contracts to Wood, the plaintiffs’ agent.

After this assignment, Egbert & Brown in their own name gave due notices under the contracts to the defendants, that they would require 1,000 barrels of the ■oil to be delivered on August 27,1870, and 1,000 barrels on the 29th. To these notices were added the words, Oil goes to Abiel Wood.”

On August 22d, five days before the day named for the first delivery, Abiel Wood wrote to the defendants, that unless they should send him word at once that they would deliver 1,000 barrels on 27th inst., and 1,000 barrels on 29th inst., he would purchase 2,000 barrels, called for by Egbert & Brown’s contracts, and should hold him responsible in the premises.

To this the defendants made no answer, and on August 23d, the next day, Wood wrote to them that he had purchased, in pursuance of his letter of the day before, 2,000 barrels of oil.

On the days fixed for the deliveries, Wood demanded of the defendants the oil, making offer of payment of the proper amount, and showing the assignment to them of the contracts.

The plaintiffs gave evidence to show that Wood had, previously to the notice of Egbert & Brown, informed the defendants that the contracts had been assigned to him. This was contested by the defendants.

This action is brought for damages for the breach by the defendants of their contracts in not delivering the oil.

The defendants say that the letters of Wood to them, of August 22d and 23d, dispensed with the duty they might otherwise have been under to deliver the oil to him. The argument deserves attention. Substantially, Wood informed them that, unless they would make a promise they were not called on to make, he would not wait until the 27th and 29th for the oil, but would buy the same quantity at once, and hold them for the damage. This necessarily gave notice, as much as if it had been expressly made, that unless Wood obtained the promise, he would not take the oil from the defendants. If he had in his head the notion of holding them for damages, he could not have meant to do that which would forbid his obtaining damages. There was also involved notice that he would not be ready to pay on the future days.

“If one bound to perform a future act, before the time of doing it declares his intention not to do it, this is no breach of the contract; but if his declaration be not withdrawn, when the time comes for the act to be done, it constitutes a sufficient excuse for the default of the other party ” (2 Parsons on Cont., 188, cited in Crist, v. Armour, 34 Bard. 378. This last case is approved in Bunge v. Koop, 48 N. Y. R. 228). In Tarwilliger v. Knapp, 2 E. D. Smith, 88, Judge Woodruff said, “The plaintiff was therefore not in fault, when the defendant gave him notice that he would not take the brick. . . The defendant, having given such notice, cannot complain that the plaintiff took him at his word” (1 Smith, Leading Cases, 6 American ed., 40). If it were a fact in the case, that the defendants acted upon that letter, and treated the Egbert & Brown contracts as annulled, and had not prepared themselves with the means of performance on their part, I think there would be great difficulty in sustaining this judgment. Take the facts together, and it is clear that Wood did not mean to abandon the contract. The words of his letter did not convey his real meaning. He meant to give the defendants warning in advance of the consequence of a failure to deliver. If, however, the letter he did write had been acted upon, perhaps he would have had to abide by that consequence.

But as we have said before, the defendants’ position is, that, when they received the letter, they did not know that the writer, Wood, was the assignee of the contracts; that they had no reason to believe that he was anything but a purchaser of the same quantity of oil from Egbert & Brown; and their answer alleges that they were ready at all times to fulfil the said contract according to the terms thereof, and that they tendered to Egbert & Brown a delivery of the oil under these contracts, according to the notices given by Egbert & Brown, but that the latter refused to receive and pay for‘the same.

If, therefore, the defendants did not believe Wood to be the owner of the contracts, his letter to them could not have led to anything affecting the contracts by way of agreement or consent, nor could the defendants have so acted on the contents of this letter, as to estop Wood from claiming the delivery. The contract was in existence on the days properly fixed under it for performance. The defendants were not led to wait to prepare themselves to deliver, because they had the oil on hand to deliver to Egbert & Brown. But Wood was the owner of the contract, and entitled to have the deliveries made to him. I can see no reason for the defendants not making the delivery under contracts which they were prepared to fulfil to the party entitled to it.

There is another question made by the defendants. They offered to show that they had made other contracts with Egbert & Brown, on which the latter became in default on 20th August, by which they were then indebted to the defendants in the sum of $1,800, and at the same time they offered to show, that, up to this default, they had had ho notice of the assignment to Wood of the contracts in suit.

This offer was made to support an allegation in the answer, that the defendants had a right to off-set the amount due by Egbert & Brown against the plaintiffs’ claim.

The offer was rejected by the court. The exception to the offer is good, if want of notice of the assignment preserves the right to off-set against the claim assigned.

Section 112 of the Code recites, that an action by an assignee shall be without prejudice to a set-off or defence, ‘1 at the time of, or before notice of, the assignment.” This seems quite clearly to mean that the right to set off is presumed down to notice of an assignment, as much as down to time of assignment. But there are several cases of the highest authority, since the Code, that gives another construction to the section. The explanation of such a result seems to be this. Section 112 is in its language a condensation of the 8th subdivision of section 18, on page 366 of 2d Mdm. R. 8. The cases say that it was intended that the rights under both should be the same. There is a provision in the Revised Statutes, that a demand, to be set off, must belong to the defendant in good faith before notice of the assignment of the cause of action in suit. The words are, “a demand existing against such plaintiff, or any assignee of such contract” (the one in suit), “at the time of the assignment thereof, and belonging to the defendant in good faith, before notice of such assignment, may be set-off,” etc. The Code,has not fully described in the words of the Revised Statutes the necessity that the demand used as off-set, shall belong to the defendant in good faith, in the cases where he is an assignee of it.

But it employs a part of those words, which is so characteristic that there can be no doubt that it was meant

that that reasonable and equitable provision of the Revised Statutes should be preserved. But whether there is a reason for it or not, the authorities are, that a demand to be used as an off-set, must be payable at the time of the assignment of the cause of action sued°upon. Otherwise, it is not an off-set (Beckwith v. The Union Bank, 9 N. Y. 211; Myers v. Davis, 22 N. Y. 489; Roberts v. Carter, 88 N. Y. 107; Martin v. Kunzmuller, 37 N. Y. 396). The last case especially overrules Maas v. Goodwin, 2 Hilt. 275.

An equitable set-off by reason of Egbert & Brown’s insolvency cannot be allowed, because the plaintiffs, through Wood, are purchasers in good faith, and' for value of the contract. In cases like Smith v. Felton, 43 N. Y. R. 419, the action was either between the original parties, or others who stood in their shoes.

Judgment should be entered for plaintiff on the verdict, with costs.


text:
    WILLIAM K. CLARE, Plaintiff and Respondent, v. THE NATIONAL CITY BANK, Defendants and Appellants.
    In an action to recover for injuries caused by the negligence of the owners of a building in making repairs and alterations in the same, defendants, in answer to the complaint of plaintiff, admitted they were the owners, etc., and “ that they earned alterations to he made in and upon the same (the building) at the times mentioned in the complaint. This statement or admission in the answer is not one that should exclude evidence offered by defendants to the effect, that the work of the repairs and alterations was not done under the direct supervision of defendants, but was done for defendants by a contract under independent contractors, over whose workmen defendants had no control, the workmen being responsible only to the contractors.

      Gauging alte?'ations to be made does not necessarily mean that they were actually made by the projector.
    Before Monell, Sedgwick, and Van Vorst, JJ.

      Decided February 1, 1873.
    Appeal from a judgment entered in favor of the plaintiff against the defendants, upon the verdict of a jury rendered at a trial term.
    The complaint in this action alleges, that the defendants, ' owned and occupied the "building and premises known as 52 Wall Street, New York. That the defendants were, on or about the 25th day of March, 1868, and for several weeks immediately prior and subsequent thereto, making alterations and repairs upon their said building. That by reason of the repairs, and the manner in which the same were made, it was unsafe for persons to pass over the sidewalk in front of the building, that the building was dangerous to the passers-by, and so known to the defendants ; and it was their duty to provide suitable barriers, safeguards, and warnings of the danger. That the defendants carelessly, negligently, and wrongfully omitted to provide any barrier, safeguards, or warnings to prevent persons from passing near the building, or to warn them of the danger. That on the 25th day of March, while the defendants and their employés were engaged in making the repairs, the plaintiff who was lawfully and carefully passing over the sidewalk in front of the defendants’ building, and being unaware of the unsafe condition of the building, a board was negligently and carelessly thrown or fell from the defendants’ building, through the negligence and carelessness of the defendants, or of the employés in the course of their employment, and struck the plaintiff violently upon his head, throwing him upon the ground. That the plaintiff' was thereby greatly hurt and injured, and incapacitated for business for several weeks, and sustained damages.
    The defendants’ answer to the complaint shows :

      First. “That the defendants are a corporation as alleged in the complaint, that they were and still are the owners and in part the occupants of the premises specified in the complaint, and that they caused alterations in and upon the same at the times mentioned in the complaint.”

      Second. That they deny each and every allegation in the complaint contained, not before admitted.
    After the plaintiff rested his case, the defendants called as a witness Moses Taylor, who testified that, as President of the Bank, he had to do with the alterations. The witness was then asked on his direct examination.
    Q. “Was the New York Life Insurance and Trust “ Company equally interested with the City Bank in the '■1 work that was done ? ”
    The question was objected to by plaintiff’s counsel as immaterial; the objection was sustained, the court saying, “ So far as the proposed evidence is intended to “ show who caused the occurrence, I shall admit it, but ■“ not for the purpose of proving that the work was not “being done by the defendants, or under their direc- “ tion.”
    The defendants’ counsel excepted to the ruling of the court. The judge also excluded evidence offered by defendants tending to show that the work was done for them by contract, under independent contractors, over whose workmen the defendants had no control, the workmen being responsible to the contractors. To such rulings the defendants’ counsel excepted.
    The defendants’’ counsel then moved to amend his answer by striking out the last clause of the first article. The motion was denied, and the defendants’ counsel excepted.
    In his charge to the jury the judge said : “Under the “pleadings in this action I have held, and I should “ charge you, that the defendants are responsible for the “ careful manner in which the workmen whom they “ caused to be put upon the premises performed the “ work assigned them.”

      Wm. Henry Arnoux, for the appellants.

      Luther R. Marsh, for the respondent.
   By the Court.—Van Vorst, J.

The rulings of the learned judge on the trial in the rejection of the evidence offered by the defendant, and in his charge to the jury, proceeded upon the construction he gave to the word “ caused ” in the answer. He held substantially that it was an admission on the defendants’ part that the-workmen and persons actually engaged in the alterations were the servants of, and in the employment of, the defendants. If he was correct in that construction his rulings should not be disturbed. In construing particular portions of its language, other parts of the pleading-are often necessary to be considered. In this case, the answer contains a general denial of each allegation of the complaint, except what is specifically admitted.

The complaint alleges that the defendants “ were making alterations and repairs upon their building.” This is denied, the defendants at the same time averring-that they “ caused alterations” in and upon the building. If it was the intention of the pleader to have admitted the “ making” of the alterations, then there was-no occasion for the qualification.

That the defendants caused the alterations, does not necessarily imply that the workmen engaged are in their service, or that they are responsible for their acts or negligence.

If the work was done under independent contract, made by the defendants with carpenters and masons who-undertook to make the repairs and to engage the necessary workmen for the purpose, for a consideration to "be paid them by defendants, such workmen could not be the servants of the defendants. Yet in such case, it might truly be said, that the defendants “ caused” the alterations.

The determination and action of the defendants to have the alterations made, may be a formal or primary cause, yet efficient agents were required for the completion of the work.

Causing work to be done is not necessarily its performance by the projector.

We may cause a building to "be erected, and yet not be the builder.

But it is unnecessary to proceed further in this direction.

The security formerly prevailing in regard to pleading has been relaxed under the Code.

The Code, § 159, provides as follows: “In the construction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed with a view of substantial justice between the parties.”

The fair application of the rule here indicated, would seem to suggest, that in construing a pleading a restricted meaning should. not be given to words used, clearly susceptible of a more liberal construction, unless the whole pleading, shows that the language was used in its restricted sense ; especially so when such restricted interpretation would exclude a defence on the merits. For it is to be observed that the construction of a pleading, under this section of the Code, is for the purpose of its “ determining its effect.” In Richards v. Edick, 17 Barb. 270, Judge Gridley says: “ The rule that once prevailed, that a pleading should be construed most strongly against the pleader, is now abrogated by the Code.”

In Allen v. Patterson, 7 N. Y. R., 480, the court says: “ The language of a pleading is to have a

reasonable intendment and construction; and when a matter is capable of different' meanings, that shall be taken which will support the declaration, not that which will defeat it.”

If the language of the answer was “ indefinite and uncertain,” which would include ambiguousness, the remedy of the plaintiff was, by motion, to have the same made more definite and certain by amendment (Code, § 160).

The fair construction of this answer is, that the defendants deny that they “ made the alterations and repairs,” although they caused them to be made.

We think that the learned judge erred in excluding the evidence offered by the defendant tending to show that the same were made by contractors under them. For this reason, there should be a new trial.

In this view it is not necessary to examine and pass upon the other exceptions taken by the defendants to the evidence, or to the judge’s charge.

The judgment should be reversed, and a new trial ■ordered, costs to abide the event.


author: By the Court.—Monell, J.

text:
    CHARLOTTE HAYNER, Plaintiff and Respondent, v. THE AMERICAN POPULAR LIFE INSURANCE COMPANY, Defendants and Appellants.
    A policy-holder in a life insurance company, from whom quarterly premiums were due on the 39th day of July, 1870, applied to the company for an extension of the payment of the premiums, alleging her inability to pay them, and her wish that the policy should not lapse and become void by reason of non-payment. The policy-holder was then informed verbally, and in writing, by the president of said company, that the policy was good, and would remain in foree, by virtue■ of what had already been paid, until November 39, 1870.
    This statement or stipulation that the policy would '■'■remain in foree’1'' not only continued the legal existence of the policy, but also all its stipulations and obligations, and operated as a waiver of any forfeiture of the same for the non-payment of the premiums due until November 39,1870.
    The construction of the language of the president (as claimed by the company), to the effect that the company stipulated that the policy remained in force, “merely as a policy,” and that its statement did not operate as a waiver of the forfeiture, cannot be sustained.
    The president of an insurance company is presumedly the agent of the company for the transaction of its general business, and by his acts can bind the company to any agreements made by him within the scope of his general authority; and if his acts, statements, and agreements with a policy-holder operated as a waiver of any of the conditions in the policy, it was a waiver by the company.
    It is peculiarly within the province of courts of equity to relieve parties against forfeitures. But the cases are such, that by the cure or removal of the alleged forfeiture a present cause of action will arise to the party relieved, or some beneficial estate be at once enjoyed ; and it would be somewhat anomalous to ask a court to remove, or relieve a party from, a forfeiture, without such party has a present right of action or a present benefit that can be enjoyed thereby.
    In this case the position of the parties before the court are as follows :
    1. The company declares its policy to have lapsed and become void by the reason of the policy-holder’s default, yet it has not instituted any legal proceedings to foreclose the rights of the holder under the policy, and to have the same adjudged to home lapsed and become void. The company has determined the question and declared that determination, as it claims the right to do under the policy; and thereupon it refuses to have any further dealings with the policy-holder.
    3. The latter brings an action at once to dispute this position of the company, and seeks in a court of equity to have the policy adjudged and decreed to be in life and full force ; and all this before any right of action or claim against the company has accrued under the policy, by reason of the death of the person whose life is insured thereby.

      Held, that the action cannot be maintained.
    The policy-holder has no present right of action under the policy, and cannot enforce any of its stipulations or covenants, and no liability of the defendants has as yet arisen upon it. The court will not now intervene, and declare this to be a subsisting policy, in full force and effect, and compel the company to accept the premiums and acknowledge its validity ; in other words, to adjudge and decree that the policy is not forfeited. There is no existing principle of law nor equity upon which such an action can be sustained.

      Before Monell, Sedgwick, and Van Vorst, JJ.

      Decided February 1, 1873.
    Appeal from a judgment.
    In January, 1869, the defendants issued to the plaintiff their policy of insurance upon the life of her husband, which required the premium to be paid, in quarterly payments, on or before the 27th days of January, April, July, and October, in each year, and provided that, in case of default, the policy should thereupon cease. The following covenant also appears in the policy :—
    “And the said company does further agree, that after payment of any of the premiums above mentioned, the said company will give to the assured an equitable paid-up policy for an amount equal to its true value as shall be estimated at that time by the actuary of the company, upon the delivery to it of this policy properly receipted and cancelled ; provided the last payment of premiums due shall not have remained unpaid for more than thirty days.”
    The defendants, claiming that default had been made, declared the policy annulled, and refused to admit or allow its validity.
    The plaintiff, alleging performance on her part of all the conditions, and especially the payment or timely tender of all premiums due, demanded in her complaint “that the said policy may, by the judgment and decree of this court, be declared and adjudged to be in life and of full force'in all its provisions, on the payment to said defendants of all the back unpaid premiums due, and to grow due and payable up to the time of such decree, with the interest thereon, including said premiums covered by said note with theinterest thereon, or that the defendants be compelled to issue to the plaintiff an equitable paid-up policy for an amount equal to

      the true value of the policy herein, set forth, as shown by the amount in premiums actually paid thereon at the time of issuing such paid-up policy, according to the true intent and meaning of said policy herein set forth, upon delivering up said original policy to be can-celled.”
    The action was tried by the late Justice Spehcbr, without a jury, who found as facts : that in July, 1870, the defendants agreed that the policy should be in force until November 29, 1870, and, through their president, gave to the plaintiff the following note or memorandum:
    “ Hew Yobk, July 29,1870.
    “Mbs. Charlotte Hayher.
    “Madam:—According to Mr. Reid, our assistant “actuary, your policy (No. 2,723) will remain in force “by virtue of what has already been paid, until Nov. “29, 1870.
    “Respectfully,
    “T. S. Lambert, President.”
    That on the 29th of November, 1870, the plaintiff desired the defendant to take the promissory note of another person, which the defendant consented to do ; and to apply the same in payment of the premium due, if on investigation the note proved to be good; and thereupon they took the note, agreeing to report the next day, and also agreeing that until then the policy should remain in force, and should not lapse nor become void by reason of the delay. On the next day the defendants declined to take the note, and thereupon claimed that the policy had lapsed and become void, by reason of the non-payment of the premium. Thereupon, on the same day, the plaintiff tendered to the defendants the full amount of the premium due, which was refused.
    Prom those facts the justice found as conclusions of law, that the policy continued and was in force until the 30th of November, 1870, and had not lapsed or become void prior to that time by reason of any omission to pay premiums theretofore due, and that the tender on that day of all premiums due was sufficient to prevent the lapsing of the policy. He thereupon decided “That the plaintiff is therefore entitled to the judgment and decree of this court. That said policy is and shall be in life and in full force and effect, and binding in all its terms and conditions upon the defendant, in the same manner as if the plaintiff had paid to defendant each quarterly premium, and by its terms she was bound to pay at the time the said policy specified the same should be paid, and that defendant shall specially perform and fulfil each and every of the terms and conditions of said policy on defendants’ part to be performed and fulfilled, provided that said plaintiff shall within forty days from the entry of said decree pay to the defendants all the quarterly premiums owing and past due at the time of the entry of said judgment and decree from the plaintiff to the defendant, together with interest upon each of said quarterly premiums from the time the same became and was due and payable by the terms of said policy, to the time of the payment of the same as herein provided, and shall thereafter perform and fulfil on her part each and every of the terms and conditions of said policy on plaintiff’s part to be fulfilled and performed ; or if plaintiff shall so elect, the judgment or decree of this court, instead of providing for the payment of said premiums and interest, shall be adjudged and decreed that the plaintiff may within ten days after the entry of the judgment deliver the said policy to defendant, receipted and cancelled; and the defendant shall thereupon make, execute and deliver to plaintiff an equitable full paid-up policy, for an amount equal to its true value, for the premiums paid on the same to and including the last premiums paid on the 27th day of January, 1870 ; such amount and value to be estimated and ascertained by the actuary of the defendant in accordance with the agreement of the defendant, in the policy, providing for such ascertainment and estimate.”
    The defendants excepted to the conclusions of law, and appealed from the judgment entered upon the decision.

      Mr. George Bliss, Jr., for appellants, argued:
    1. Assuming the facts to be as found by the court below, and that there had been at the time of the commencement of this action no legal forfeiture of the policy, but that it was then in full force, and was binding on the defendants, we submit that this action cannot be maintained. The complaint asks the court to declare, and the judgment rendered does declare, that if the plaintiff shall, from the time of the rendering of the judgment, perform the conditions of the policy, the defendants will be liable to the plaintiff to pay her some money, at some future time, when that person whose life is insured shall die.
    It is an attempt to make the court declare in advance what will be the liability of the defendants upon the happening of the event on which—and on the happening of which alone—the policy was by its terms to be available to her.

      2. So far as relates to the first branch of the relief asked—viz.: that the policy be adjudged to be in full force on payment of the premiums then due or thereafter to accrue—the theory upon which the action is based is wholly unknown to English law. It is an attempt to bring into a court of chancery a question which properly belongs to a court of common law, and to procure an adjudication now upon questions which have not yet- arisen and may never arise. Such an action cannot be assigned to any recognized head of equity jurisprudence, and no similar case can be found in which an action of this nature has been sustained (Brooks v. Lord Kensington, 2 Kay & John, 755; Grove v. Bostard, 2 Phillips Ch. R. 619; Jenner v. Jenner, 1 Law Rep. Eq. Cas. 361; Baylies v. Payson, 5 Allen (Mass.) 488).
    3. The action could only be assigned to one of the three following heads. 1. Specific Performance. 2. Bills quia timet. 3. Bills of Peace. And it does not fall within the principles applicable to any one of these.
    4. The courts of this State have refused to maintain such actions. As in Scott v. Onderdonk, 14 N. Y. 9, a case of alleged illegal assessment upon real estate.
    5. This court has expressly applied the principles discussed in the last cited case to actions upon life insurance policies (O’Reily v. Mutual Life Ins. Co., 2 Abb., N. S. 167; Cohen v. Same, not reported, decided at General Term, June, 1868).
    6. It is therefore clear that so far as relates to the prayer of the complaint, that the policy should be regarded as in full force on payment of the premiums due and to grow due, the action cannot be maintained either upon principle or authority.
    7. Except for the alternative prayer of the complaint, the objection heretofore urged could have probably been raised by demurrer, but the complaint also prays that “the defendants be compelled to issue to the plaintiff an equitable paid-up policy for an amount equal to the true value of the policy.’ ’ This is in pursuance of a clause in the policy which provides that, after the payment of any premiums due, “the said company will give to the assured an equitable paid-up policy for an amount equal to its true value, as shall be estimated by the actuary of the company, upon the delivery to it of this policy properly receipted and cancelled’ ’ '
    Upon the trial no proof whatever was given of any offer, prior to the commencement of this action, to deliver up the policy properly receipted or cancelled, or of any demand, of a paid-up policy. ' Until this was done the defendants were not in default, and no right of action existed against them.
    The policy is for the benefit, not only of the plaintiff, but in case of her death before her husband, for the benefit of her children. She could not therefore surrender it and take out a-paid-up policy in such a way .as to bind them. And there is no evidence that she or they ever offered to surrender it or to cancel it (Chapin v. Fellows, 36 Conn. 132; Eadie v. Slimmon, 26 N. Y. 9; Swan v. Swan, 11 Allen, 224; Burroughs v. State Mut. Life Ass. Co., 97 Mass. 359; Ruppert v. Union Mut. Life Ins. Co., 7 Robertson, 155; Knickerbocker Life Ins. Co. v. Wertz, 99 Mass. 157; Conn. Mut. Life Ins. Co. v. Burroughs, 34 Conn. 305).

      Mr. L. R. Marsh, for respondent, held:
    I. The action was well brought, and the plaintiff is entitled to the relief granted in the findings, and the proof sustains the material allegations contained in the ■complaint, and justifies the findings of the judge who tried the cause.
    1. The policy was not legally lapsed, the forfeiture being waived ; the plaintiff therefore had the right to ■•ask the decree of the court declaring its validity, and that it continue in force.
    2. It cannot be contended that the plaintiff is bound, after the defendant insists that the policy has lapsed or is void, to continue to tender the premiums to the company from time to time until the death of her husband (which may be ten years hence), before she can sustain .an action to test the fact whether the policy be legally lapsed or still in force.
    3. Such a rule would put it in the power of the company to set their policy-holders at defiance at any time by claiming policies as lapsed - or void, and thus save the company from all liability until the death of the assured.
    4. The courts have and will entertain actions for specific performance of insurance policies (Whitaker v. Farmers’ Ins. Co., 29 Barb. 312). (a). A parol agreement to renew a policy of insurance made by an authorized agent of the company, may be enforced by an action for specific performance (Post v. Aetna Ins. Co., 43 Barb. 351.) (b). When the agent of an insurance company makes mistakes in issuing a policy, the insured can insist upon a performance of the contract in accordance with the terms agreed on (Bunten v. Oriental Ins. Co., 8 Bosw. 448; S. C., 2 Keyes, 667).
    5. The rights and equities of the plaintiff under this policy cannot be held in suspense during the life of her husband. She has the right to claim a specific performance of its terms or damages for the non-performance (Post v. AEtna Ins. Co., 43 Barb. 352). (a). When the action is for the specific performance equity considers the agreement as made, which the party was in equity bound to make, and decree the payment of the money which would have been payable under the consummated agreement (43 Barb. 352). (b). The policy was of much greater value, because obtained at a lower rate of premium than one that could be obtained on the life of the assured at the present time. (c). And. a life policy which the company repudiates for any reason (unless equity affords an immediate remedy), is of no appreciable value for any purpose whatever. It is only valuable when recognized by the company as of binding force.
    6. It is the policy of the law that all conflicting claims should be adjudicated as soon as practicable after such conflict occurs. Thus equitable actions for the construction of wills—for the removal of a cloud upon title—bills of quia timet, to settle and establish a party’s title to an estate securely against conflicting claims—is of long acknowledged equity jurisdiction (2 Story’ s Equity, §§ 825, 826; 2 Burrell's L. Dicty. 370; 46 Barb. 121).
    7. If the policy had not legally lapsed or was in force at the time the tender was made Tby the plaintiff, she was entitled to the full paid-up policy prayed for. This right was wholly ignored Tby defendant in claiming the policy had lapsed and was no longer in force.
    The defendants having ignored the validity of the assurance on the life of plaintiff’s husband, and having thrown obstacles in the way of plaintiff’s performance, the plaintiff is entitled in this action to recover back the amount paid to the company in premiums, with interest, or at least to the actual damage sustained (O’Reilly v. The Mutual Life Ins. Co., 2 Abb. N. S., 171; Post v. AEtna Ins. Co., 43 Barb. 352).

   By the Court.—Monell, J.

The decision in this case, if it can be sustained upon other grounds, is supported, I think upon sufficient evidence, that the policy had not, at the time the tender was made on the 30th of November, 1870, either lapsed or become void, by reason of the non-payment of any of the premiums previously, or on that day due. The only doubt suggested, was as to the sufficiency of the proof of the president’s authority to bind his company. The construction of the language of that official’s note, that the policy would “remain in force,” namely (in effect), that it should remain in force as a policy merely, without operating as a waiver of the forfeiture, cannot be sustained. Under a general agreement continuing the legal existence of the policy, all its obligations and stipulations continue also ; and anything which had theretofore, or which might thereafter happen, that could be construed into a waiver of previous forfeitures, would likewise continue to be available.

The various extensions of the time, for the payment of the premiums, were made by the president of the defendant’ s company. As such 'president he was presumedly the agent of the company for the transaction of its general business, and by his acts could bind them to any agreements made by him within the scope of his general authority. And if his acts and agreements operated as a waiver of any of the conditions in the policy, it was a waiver by the company.

But it was strenuously urged on behalf of the defendants, that assuming the facts to be as found by the court, and that there was no legal forfeiture, and that the policy was in full force and binding upon the defendants, still this action cannot be sustained.

The defendants have incurred no liability under the policy. The life insured is yet in existence; and the plaintiff has no cause of action to enforce the performance of any part of the contract.

But she demands that the court shall now declare the policy to be in force, and that she shall now be restored to all her rights under it.

This prayer for relief is in effect a demand to be relieved from a forfeiture which the defendants allege to have occurred, and which they claim annuls the policy.

The plaintiff could doubtless continue to tender payments of the premiums from time to time, as they shall become due, and upon the death of the life insured, in an action upon the policy to recover the amount insured, insist that the policy was then in force ; and upon that issue could show the facts which are now claimed to be a waiver of the forfeiture.

But it is said in reply to this, is she bound to do all that, and wait the uncertain and probably distant event of her husband’s death, before she can ascertain her legal rights under the policy ? Or may she not, in advance of that event, ask to be shown and have her status under the contract declared %

It is peculiarly within the province of courts of equity to relieve against forfeitures. But the usual cases are such, that upon curing or removing the forfeitures, a present cause of action will arise, or some beneficial estate be at once enjoyed. And it is somewhat anomalous to ask such courts to remove a forfeiture' without such a present right of action.

The relief sought in this case is not such as can be claimed to fall within the principles of bills of equity quia timet, yet it is said that the principles which govern such bills are analogous. Mr. Justice Story says of them (2 Story Ay., § 826), “they are in the nature of writs of prevention to accomplish the ends of precautionary justice. They are ordinarily applied to prevent wrongs or anticipated mischiefs, and not merely to redress them when done. The party seeks a court of equity because he fears some future probable injury to his rights or interests ; and not because any injury has already occurred, which requires any compensation or other relief.”

The position which the defendants have taken in respect to the policy in this case does not, it seems to me, bring it within any of the principles governing such bills. They (the defendants) declare the policy to have lapsed and become void by reason of the plaintiff’s default. They have not, it is true, instituted any legal proceeding with a view of having the policy declared and adjudged to be void, and thus foreclosing all rights of the plaintiff under it. But determining that question for themselves, as they claim the right to do, they construe the default as a forfeiture, and insist that there has been no waiver.

There is no doubt of the plaintiff’s right at some time, and in some way, to dispute this position of the defendants ; and it is conceded that it may be done whenever a right of action arises upon the policy. Then, and then only, as the defendants. claim, can the plaintiff assert that there has been no lapsing or forfeiture, and that the policy is in force. But it is contended that although that remedy is conceded, it does not necessarily deprive the party of all other remedies, if any other exist. Nor that it is always necessary to wait until some legal liability arises, for if there is some anterior duty which ought to be performed, which will aid in establishing the legal liability, equity ought and will require the performance of such duty. And we are referred to the case of Taylor v. Mut. Ins. Co., 9 How. 390, which was an action to compel an insurance company to issue a policy. There the court say (p. 405), “that the party had a right to resort to a court of equity to compel the delivering of the policy either before or after the happening of a loss.”

But that was a bill to enforce the specific performance of a contract to insure, and was filed after a loss had happened, and the prayer was to compel the delivery of a policy, pursuant to the agreement, and also for payment of the loss. Justice Nelson, in answer to the objection that there was an adequate remedy at law, observed that before the loss occurred, the appropriate, if not the only remedy was in a court of equity, to enforce a specific performance, and compel the company to issue the policy, and that such remedy was as appropriate after, as before the loss ; to facilitate the proceedings at law. The jurisdiction in that case was sustained because it was a bill for the specific performance of a contract after a loss had occurred, and for no other reason ; and it does not, therefore, furnish us with any aid in this case. This is not an action of that nature, although possibly, in one aspect, the alleged agreement that the policy should be continued in force until the 29th of November, and the further agreement, that until the next day, it should not lapse or become void by reason of the delay and postponement of payment of premiums, might be regarded in the nature of a new contract.

But I do not think it can so be regarded. The effect, and the only effect, that can be claimed for such agreements is, that they operated merely as a waiver of any supposed forfeiture of the policy, and therefore revived and validated that which was lost; and such effect could he given to the agreements at the proper time, without the aid of a court of equity to enforce them specifically as supposed new contracts.

But apart from the supposed analogies, which it is claimed are furnished in the principles which govern hills in equity, quia timet, or for the specific performance of contracts, it was further claimed that there are ■others which can he successfully invoked in support of this action. They are such as relate to reformation of contracts, removing clouds from titles, to relieve against void contracts, and the like. But those cases are sustained on the ground that there is no adequate remedy .at law at any time, or as in the case of a cloud on title, that the oppressive nature of litigation at law, required to protect the enjoyment of it, affords a proper ground-for equitable jurisdiction.

It is true that that is equity which is founded in natural justice, in honesty and right, and which properly arises ex aequo et bono, and that in the administration of it, it is contradistinguished from a strict adherence to the mere letter of the law. Its rules are more flexible, and better suited to the different postures of cases ; and its ■decrees may be adjusted, so as to meet most, if not all, ■exigencies ; and may vary, qualify, restrain, and model, the remedy, so as to suit it to adverse claims, controlling ■equities, and the real and substantial rights of all the parties {Story, B. § 28).

But the application of those fundamental rules and principles must be to cases where the law has not determined, and is not capable of determining, the matter with all its circumstances; or where, as is commonly said, "the law furnishes no adequate remedy. ¡Nor is it required that the legal right of the party should presently -exist. If it can arrive at a future time, and the legal remedy can then be adequate for the enforcement of the right, and the protection of the party, a court of equity cannot intervene.

It is only where the danger is imminent of the loss of a remedy at law, that the aid of equity can be invoked to save the remedy; and, as far as my examinations have gone, such aid can be used to enforce a present, and never a future liability.

The difficulty with the plaintiff’s case is, that she has no present cause of action upon the policy. She cannot now enforce any of its stipulations or covenants; and no liability of the defendants has, as yet, arisen upon it..

But she seeks to have the policy declared to be a subsisting policy, and to compel the defendants to accept the premiums and acknowledge its validity; in other-words to have it now declared that the policy is not forfeited.

I have endeavored to find some principle upon which this action can be sustained, and I have been unable to> find any, either in law or equity; and the reason is; obvious ; no such principle exists. Indeed, the action, is in hostility to those principles of justice which are-designed for the protection of legal rights, and if sustained, would be subversive rather than promotive of such rights.

The forfeiture claimed by the defendants to have an- , nulled the policy, can only be made effective in answer to a demand upon it for the amount insured. Such a, demand would of necessity be a legal cause of action to-which the defendants would be permitted to show that the instrument upon which it was founded had no validity, and would be entitled to have that issue tried by a. jury.

By endeavoring to secure the aid of equity in advance-of any legal liability, the question of forfeiture, which is strictly a legal defence, is disposed of without the intervention of a jury, which, under the guarantees of the.constitution, cannot be done. The defendants have the undoubted right to insist upon a trial by a jury of all questions involving their liability under the policy, and that is a right which a court of equity is powerless-to deprive them of. It is a right which strikes at the very foundation of the present case, and, if there were no other reasons, would be sufficient to defeat it.

We are not without adjudications on this subject. Two cases have arisen in this court (O’Reily v. Mutual Life Ins. Co., 2 Abb. N. S. 169, and Cohen v. Same, not reported), which were to restore policies of life insurance, forfeited for non-payment of premium. The policy-holders resided in the State of Alabama, during the war of the Rebellion, and failed to make payment of premiums. Furnishing as an excuse for not paying, the suspension of all communication by reason of the war, they demanded the relief. But ’ the court at Special Term, the late Chief Justice Robertson presiding, held that the action in equity could not be maintained. He says (p. 170), 1 ‘ The court cannot make a declaration or proclamation of its opinion to the world now, to be of any avail to the plaintiffs’ representations in recovering the amount insured hereafter; no transfer, or vesting, or divesting of rights would ensue for such a declaration, and nothing could now be decreed to be done as a consequence of such a declaration.” In the case of Cohen, the same learned justice, alluding to the O’Reily case, says: “The relief sought is the same, and the same-reasons prevail against any committal by the court to an opinion before any cause of action could have arisen on the policy.”

In the judgment and the mode of reaching it in this action, manifest injustice has been done the defendants; for, although they had an opportunity to meet the plaintiff’s case and to insist upon the forfeiture, they could not do so in the tribunal which the law allows them to select. Nor can we discover any hardship towards the plaintiff in requiring her to wait until a cause of action arises on the policy. She cannot recover anything at present, and the period is indefinite when she may have a right of action.

But she can perpetuate the testimony she now has to establish a waiver of the forfeiture, and in that way make it available whenever her cause of action arises. She need not, I think, repeat her offer to pay the premium at each stated quarter. One unqualified refusal by the defendants to refuse on the ground of the policy’s having been forfeited, would satisfy the condition to pay, and would effectually estop the defendants from claiming a forfeiture, by reason of the omission to pay or tender such quarterly premiums.

The judgment is erroneous and should be set aside, and judgment absolute ordered for the defendants, with costs.

Note.—Since the decision in this case, a re-argument was ordered and heard by the General Term, and the court reached á different conclusion: affirming the judgment of the Special Term, with modifications.

The case and opinion of the court on the re-argument will be reported in volume 36 of these reports. Befobtebs.